No Touching Allowed for Many LGBTQ+ People in Prison

Sept 16, 2021

After a Thanksgiving Day meal, “J,” who was incarcerated at North Central Correctional Institute in Massachusetts, complained of a stomach ache. His friend Carlos, who requested to be identified by his first name only, leaned down from his top bunk and rubbed J’s head jokingly. “There, there,” he said, as the men laughed. Later that day, Carlos, who identifies as gay, was taken to solitary confinement in the Special Housing Unit (SHU). 

Carlos’s friendly head pat had been noticed by a correctional officer, who told him, “I don’t care what you are, but you’re a man, and what I saw was PREA.” The officer was accusing Carlos of violating the rules laid out in the Prison Rape Elimination Act, a 2003 federal law that aims to protect incarcerated people from sexual violence by establishing clearer procedures, collecting better data, and providing resources to correctional institutions. 

Fortunately for Carlos, other prison officials took his side and he was soon released from the SHU. But he should never have been there in the first place: Platonic physical touch, like his interaction with J, is not prohibited by PREA standards. Despite his unfair placement, Carlos’s weekend stay in “the hole” caused him to permanently lose his place in his housing unit and, therefore, his job, as well as the good time credits he had built up to reduce his sentence by participating in programming.

Carlos’s story is not unique. Although PREA was backed by many advocacy groups and passed by Congress with unanimous bipartisan support, a law is only as good as its implementation. From Carlos’s letter to Solitary Watch, multiple interviews with other formerly and currently incarcerated individuals, and accounts from advocates, it is clear that PREA’s intent is at times being twisted or misinterpreted to cause additional harm. 

Correctional officers in many prisons and jails prohibit platonic touching, issue disciplinary infractions based on their own personal biases and beliefs instead of the official rules, conflate consensual sex with rape, and appropriate PREA standards not to protect, but to punish. This misuse of PREA leads to unfair punishment, including time in solitary confinement, and is far more likely to affect LGBTQ+ individuals, who are already incarcerated at disproportionately high rates. Several LGBTQ+ people also emphasized to Solitary Watch how their treatment in the system was further compounded by their racial identities. 

Punished for Platonic Touching

Michael Cox, executive director for Black and Pink Massachusetts (which is not affiliated with the national organization of the same name), had an experience similar to Carlos’s. When he was incarcerated in the same Massachusetts prison in 2011, Cox and his friend—both of whom were openly LGBTQ+—hugged goodbye in the prison yard. He said correctional officers approached them, led by a lieutenant, who ordered, “Lock them up.” 

When Cox asked why they were being punished, he was told the hug was a PREA violation. Like Carlos, he spent the weekend in solitary before the administration reviewed his case and let him out.

“It was very apparent that it was just a hug,” Cox said. “And even if the suspicion was that we were in an intimate relationship, that shouldn’t be enough to put someone in solitary confinement. It is stigmatizing for LGBT people that we are treated differently than others while in the system. It happens all the time.”

In the largest-ever survey of incarcerated LGBTQ+ individuals, 85 percent of the 1,118 respondents reported spending time in solitary confinement—half of whom said they were in solitary for two or more years. The survey, which was conducted by Black & Pink, a national nonprofit organization that advocates for the abolition of prisons, further found that respondents of color were twice as likely as white respondents to have experienced isolation. Transgender individuals were especially likely to be placed in solitary, often as “protective custody,” a form of solitary confinement used with the intent of removing people from unsafe environments. 

And although PREA does not ban hugging, some prisons have. Kelly Savage-Rodriguez, a program coordinator with the California Coalition of Women Prisoners (CCWP), was incarcerated in a California prison for almost two decades; for eight years of that time, the prison had a memorandum prohibiting hugs. 

She said the ban made her job as a grief counselor more difficult. “It was really inappropriate when we would have somebody who the sergeant or captain notified of a loss, and [the individual] couldn’t even get a hug in a serious grief moment,” Savage-Rodriguez said.

Risks of Consensual Relationships

While platonic touching is prohibited in certain prisons and jails, consensual sex is banned almost everywhere, and often leads to time in solitary. But some people who are in consensual relationships are targeted by correctional officers more so than others. Savage-Rodriguez, for example, was incarcerated in the same facility as her spouse, both of whom are white. They were allowed to remain housed together, which Savage-Rodriguez believes was because they looked feminine and led programming in the prison.

Krystal Shelley, an activist who also works at CCWP, was not as fortunate. Shelley, who does not identify as male or female and is Black, said that while they were sharing a cell with their partner at Valley State Prison for Women, correctional officers planted a shank under their mattress. Shelley was sent to the SHU.

“It was falsified documentation upon me, just due to the fact that they did not want me living with my partner,” Shelley said. Then a second shank was planted under their bed, they said, leading to another six-month stay in solitary.

Dominique Morgan, the executive director of Black & Pink and a Black trans woman, was punished with solitary confinement and separated from her partner as well during her incarceration. At age 19, Morgan entered the Omaha Correctional Center, an adult facility for men, after having spent many of her teenage years in juvenile detention. Around that same time, she started to identify as female.

Morgan met Doug, who was incarcerated in the facility as well, and fell in love. They made plans together for when they got out; they introduced each other to their families. Morgan leaned on Doug as she grieved the death of her father. “I was building a family in a space where I felt alone,” she said.

But after two years, their consensual sexual activity was reported by another incarcerated individual, and they were sent to solitary for 90 days, which she says was an unusually long stint. 

“The irony was that I would see people who were being pressured [into sex], and the state would never step in in those situations,” Morgan said. 

After those 90 days, Morgan and Doug were sent to solitary in separate prisons—Morgan to a maximum security facility. The review board at that facility repeatedly recommended her release from solitary, but each time the warden appealed to keep her in.

“I remember thinking: ‘I’m not violent…I’m stuck in this hole. I’m scared. I’m alone,’” Morgan said. “It was sad to realize it was all because of my sexual orientation and gender identity.” 

After 18 months, the American Civil Liberties Union (ACLU) of Nebraska intervened, and Morgan was released from solitary. 

“I was happy to [go to the general population], but I was even more afraid because you took me from a minimum security prison and then you are going to put me in the general population in the supermax prison?” Morgan said. 

She added that this happened 20 years ago, and she is hearing similar stories from incarcerated people now.  

PREA Problems Abound

The PREA Resource Center (PRC), which is funded by the U.S. Department of Justice (DOJ), is charged with carrying out the work of PREA by implementing training sessions and reviewing audits. The PREA standards require all correctional facilities to track incidents and undergo PREA audits at least once every three years, which are conducted by third-party individuals trained and certified by the DOJ.

Since the PREA Standards were implemented, reports of sexual victimization filed by correctional officers have increased significantly, according to the Bureau of Justice Statistics. Researchers at the Urban Institute believe that the increase in reports may be a sign that incarcerated individuals are increasingly likely to trust the system now that PREA has been in place for some time.

Yet, experts are still concerned about the usage of the policy.

Amy Fettig—the executive director of the Sentencing Project, a nonprofit fighting against mass incarceration—was trained as a PREA auditor and spent years working to help finalize the standards in her former role as deputy director of the ACLU’s National Prison Project. 

Many are concerned that PREA is “being used as a sword instead of a shield,” Fettig said. “Anecdotally, we have heard from clients that affectionate behavior is being criminalized because there is animus towards the LGBT community in prisons.” 

But this is not the law’s intent. Fettig said that correctional officers and facilities are interpreting the law differently. “PREA doesn’t say no touching…I think when we have seen PREA abused, it is more about homophobia than anything else.”

Cox, from Black and Pink Massachusetts, agrees. He said he does not believe he would have been punished for giving a hug if not for PREA. In his view, after their training, “the takeaway from guards was that anything LGBT-related is now criminalized.”

Julie Abbate, the national advocacy director for the nonprofit Just Detention, which works to end sexual abuse behind bars, noted that physical touch is complex.

“In men’s facilities, what looks like what might be consensual [to staff] could be what is called ‘protective pairing,’ where somebody who is maybe more vulnerable agrees to pair up with a stronger inmate and provide sex in exchange for protection,” she said. 

But women’s behavior is often different from men, according to Abbate.

“Women have platonic relationships oftentimes where they might hold hands, or hug each other, or put their arms around each other.” She, too, said she has heard of certain jurisdictions incorrectly punishing platonic touching as alleged PREA violations.

To address this, correctional staff should receive a “deeper, nuanced training and understanding of human sexuality,” Abbate said, as well as better training for the signs of coercive or protective relationships.

Morgan, from Black & Pink, believes PREA generally leaves too much discretion in the hands of correctional officers. “You left the power in the institutions who were harming them [incarcerated individuals] in the first place,” she said.

Some of the PRC’s weakness stems from a general lack of resources, as well as a reliance on private contractors to act as the auditors overseeing PREA implementation, Fettig said. She would rather see more power and authority in the hands of a government oversight agency.

Abbate said the PRC has taken on an increased workload since its creation, to the point where it could double in size. 

Asked to comment on Solitary Watch’s findings, the PREA Resource Center provided a statement saying that if facilities request support in “achieving and maintaining compliance with the PREA Standards,” the PRC and PREA Management Office offer assistance. Requests from facilities “regularly” pertain to protecting LGBTQ+ individuals, according to the statement.

Long-Lasting Trauma

Being sent to solitary confinement for any length of time or for any reason can have devastating mental health effects. Since his time in solitary for platonic touching, Carlos said he has developed issues with anxiety. “The sound of keys and [hand]cuffs ‘triggers’ me—even a phone ringing or my name being called by an officer,” he wrote to Solitary Watch.

Isolation has also left an indelible mark on Shelley, who spent two one-year stints in solitary confinement, as well as additional sporadic time throughout their incarceration. Although they came home in 2012, they said the experience of solitary continues to make it harder to communicate, which in turn makes everyday tasks difficult.

“It is 2021. Solitary confinement is still affecting me today,” Shelley said. “I tend to want to be alone often…And don’t get me wrong, I go out—but I definitely don’t go out and live life as much as I should.”

A grandmother didn’t answer her phone during a class. She was sent back to prison.

Washington Post

By Justin Wm. Moyer and Neena Satija
June 26, 2021 PDT

Gwen Levi, shown in Baltimore while on home confinement, is now at the D.C. jail awaiting transfer to a federal facility.

In the year she was out of prison, Gwen Levi, 76, was thriving.

After serving 16 years in different federal facilities for dealing heroin, Levi was allowed to leave last June and finish her 24-year sentence in home confinement under the supervision of federal prison officials. She moved in with her 94-year-old mother in Baltimore and volunteered at prisoner advocacy organizations, hoping for a paying job to come along. She was also building her relationships with her sons and grandsons.

But Levi’s season on the outside ended June 12 after she attended a computer word-processing class in Baltimore’s Inner Harbor. A Federal Bureau of Prisons incident report said she was out of contact for a few hours with the officials supervising her.

Levi is now at the D.C. jail awaiting transfer to a federal facility, according to her attorney, Sapna Mirchandani, of Maryland’s Office of the Federal Public Defender.

“There’s no question she was in class,” Mirchandani said. “As I was told, because she could have been robbing a bank, they’re going to treat her as if she was robbing a bank.”

Levi is one of about 4,500 federal prisoners sent to home confinement last year to protect them from contracting the coronavirus. Advocates celebrated the move by the Trump administration and expected that President Biden would continue to keep former inmates home even after the pandemic receded.

But while Biden has taken steps supported by criminal justice advocates, the White House has appeared to follow President Donald Trump’s lead with respect to a Justice Department memo calling for nearly all people to return to prison when the public health emergency ends.

Inmates sent home amid pandemic may have to return under Trump-era policy

The administration hasn’t weighed in on the binding Justice Department memo, issued in the final days of Trump’s presidency. The White House and Justice Department wouldn’t comment when asked by The Washington Post about the return of inmates to prison on seemingly minor violations.

Kristie A. Breshears, spokeswoman for the Bureau of Prisons, said in an email that the agency cannot discuss individual cases. However, sanctions “are not imposed in a capricious or retaliatory manner,” she said, and bureau staff “are the determining factor when making determinations regarding transferring an inmate back to secure custody.”

Breshears added that the Bureau of Prisons could decide to allow inmates near the end of their sentences to stay on home confinement after the pandemic.

“For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over,” she said. “The president recently extended the national emergency and the Department of Health and Human Services has said the public health crisis is likely to last for the rest of the year.”

Biden administration endorses bill to end disparity in drug sentencing between crack and powder cocaine

According to Levi’s Bureau of Prisons incident report, the officials supervising her were alerted by her ankle monitor at 10:51 a.m. that she was not home. She did not answer calls to her phone for the next few hours. By 1:17 p.m., the ankle monitor showed she was back at her approved address. The report noted the incident as an “escape.”

In a statement released by Mirchandani, Levi said she was “devastated.”

“I feel like I was attempting to do all the right things,” Levi said. “Breaking rules is not who I am. I tried to explain what happened, and to tell the truth. At no time did I think I wasn’t supposed to go to that class. I apologize to my mother and my family for what this is doing to them.”

Biden launches an effort to head off violent crime — and political peril for his party

Other prisoners released to home confinement during the pandemic also are being sent back.

Lynn Espejo was sentenced to 45 months for filing false tax returns, wire fraud and money laundering in the Eastern District of Arkansas in 2017. In an interview, she said she was released in May last year, got a job at her church and re-enrolled in graduate school, where she was completing a master’s degree in clinical and mental health counseling. She also writes a blog focused on inmates’ rights and hosts a radio show

On Jan. 12, according to Bureau of Prisons documents, Espejo was written up for emailing inmates — “[v]iolating a condition of a community program” by “communicating with inmates currently incarcerated in numerous Federal Prisons,” according to the incident report. She was reincarcerated Jan. 12 and released Jan. 27 after a judge allowed her to be returned home because of health issues.

Espejo, who has since completed her degree, said she believes she was sent back to prison as retaliation for her activism. About 153,000 inmates are in the custody of the bureau, a 20-year low.

“You cannot hold someone’s freedom of speech over their head on home confinement,” she said.

Breshears said she could not comment on an individual inmate’s conditions of confinement.

Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons.

Kevin Ring, president of nonprofit prisoner advocacy organization Families Against Mandatory Minimums, said returning people on home confinement to prison for minor violations is “counter to human nature.” The Biden administration should say whether it will rescind the Trump administration memo, he said.

“This is exactly what we feared from them delaying resolution of this issue,” he said. “Every day is torture. They’re worried about going back to prison. .?.?. Waiting is the hardest part.”

Mark Osler, a former federal prosecutor and professor of law at the University of St. Thomas in Minneapolis, said that if the Justice Department won’t rescind the memo, the Biden administration could use another legal tool: clemency. Osler said he has spoken to administration officials about that possibility.

But such grants could prove controversial as Biden announces measures to combat violent crime amid an increase in violenceacross the country.

The transfer of prisoners to home confinement during the pandemic has proved to be safe, Osler said. At a Senate Judiciary Committee hearing in April, Bureau of Prisons Director Michael Carvajal said three inmates transferred to home confinement have been arrested on new charges.

“The facade of their incarceration in the interest of public safety has been knocked over,” Osler said.

As national leaders debate criminal justice, Levi is back behind bars. Her son Craig Levi said it was a blessing to have his mother home. Now, she’s gone.

“We don’t understand how it escalated,” he said. “It’s unjustified — the stress that they put on the family.”

By Justin Wm. Moyer—Justin Wm. Moyer is a breaking news reporter for The Washington Post. After a long stint as a contributing writer at the Washington City Paper, he came to The Post in 2008, becoming an editor in Outlook and for the Morning Mix, The Post’s overnight team. He became a reporter in 2015. Twitter

By Neena Satija—Neena Satija has been an investigative reporter for The Washington Post since January 2019. She was previously an investigative reporter and radio producer for the Texas Tribune and Reveal, a national radio show and podcast. Twitter

Trans women are still incarcerated with men and it’s putting their lives at risk


Story by Nora Neus
Wed. June 23, 2021

Jennifer Orthwein, a public interest attorney in California, filed a lawsuit on June 11 on behalf of a currently incarcerated trans woman, Syiaah Skylit, and the entire class of trans prisoners in similar situations in California. “As people have begun to assert their rights under SB 132, they have been met with severe retaliation, distressing delays, tactics intended to police their genders, dangerous rumors and misinformation, and systemic outing of transgender, nonbinary and intersex people,” Orthwein tells CNN.

She’s incarcerated in a men’s prison facility. Why she’s suing Georgia corrections

(CNN)—Jasmine Rose Jones is a woman. But for much of the last 23 years, she was incarcerated in a men’s facility, and she says she was subjected to rape, sexual assault and abuse, just because she is transgender. Jones, who was released from prison in May 2020 and is now a legal assistant at the?Transgender?Gender-Variant & Intersex Justice Project in San Francisco, says she was repeatedly raped and sexually assaulted by male prisoners and abused by male correctional officers across multiple facilities throughout her multiple stints in custody.

At the time, Jones did not feel like she could report the assaults to corrections officers, for fear of retribution, including being thrown into solitary confinement. But she says she had told officers that she was transgender and feared for her safety.She heard similar fears from other trans women serving with her.”We lived with it,” she says. “We lived with the abuse.”

Jones is not alone. As recently as last year, the vast majority of incarcerated trans people in America are still housed in facilities based on the sex they were assigned at birth, according to a 2020 investigation by NBC News.

Jasmine Rose Jones

This is despite robust evidence that trans women are at a significantly higher risk of abuse and assault than the general prison population, according to academic research and surveys of incarcerated trans people. And that is still the case nearly 30 years after a landmark Supreme Court decision in Farmer v Brennan that found deliberately failing to protect incarcerated trans people from abuse or violence behind bars qualifies as cruel and unusual punishment. Activists say not much has changed. Now, they are working to change policies on both the federal and state level to allow trans prisoners to decide for themselves where they would feel safest being housed — or at least have their voice heard, even if prisons or independent decision-making boards still get to make the final call.

2007 study from the University of California, Irvine, found that incarcerated transgender people were 13 times more likely to be sexually assaulted than a random sample of incarcerated men. Fifty-nine percent of transgender prisoners reported having been sexually assaulted within a California correctional facility compared to just 4.4% of the incarcerated population as a whole.”Transgender women are not safe behind bars, period,” says Rodrigo Heng-Lehtinen, the incoming executive director of the National Center for Transgender Equality (NCTE). “Nobody should be in danger just because they are in government custody.”

In 1994, the US Supreme Court ruled on Eighth Amendment grounds that failing to protect trans people in custody is unconstitutional because it qualifies as cruel and unusual punishment. Farmer v Brennan centered on the alleged prison rape of a trans woman, Dee Farmer. She says only a few days after a transfer to FCI Terre Haute, a federal prison in Terre Haute, Indiana, she was raped by a cellmate. Prior to her incarceration, she had been living as a transgender woman, and argued that that fact, coupled with what court documents called the “violent environment and a history of inmate assaults” at the Terre Haute facility, meant that officials deliberately failed to protect her from harm by placing her there.

A California lawmaker wants to repeal an anti-loitering code that critics say has been used to target trans women
A California lawmaker wants to repeal an anti-loitering code that critics say has been used to target trans women

“He just kept repeatedly punching me all over,” she remembers, voice strong but still emotional more than 30 years later. “He started kicking me and I saw a knife in his tennis shoe. And it scared me so bad that I just stopped resisting. And he threw me on the bed and raped me.””A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment,” wrote Justice David Souter in the court’s opinion. While a jury ultimately found for the defendants in her case, her win at the Supreme Court is still hailed as a victory.

Activists like Dee Farmer are still fighting to institute national and state-level policies that would require a facility to house transgender, nonbinary or intersex people in the facilities where they feel safest, which would often mean according to their gender identity.”They should not feel that they have to settle for being assaulted or violence or being harassed or being abused,” she tells CNN. “Make it known that this is what is happening. Let your voice be heard.”

‘I never murdered anyone or anything like that’

Transgender people are disproportionately impacted by the criminal justice system to begin with, incarcerated at significantly higher rates than other groups.According to the NTCE’s last national US Transgender Survey conducted in 2015, the rate of incarceration for transgender people was double that of the nation-wide rate of incarceration, and about 10 times higher for Black transgender women.In many states, being transgender in public can lead to an arrest under so-called “Walking While Trans” laws: anti-loitering codes officially used to target sex workers, which in practice target primarily trans women of color regardless of whether they are sex workers, advocates say.

“I was certainly profiled” as a transgender woman on the street, says activist and transgender woman Bamby Salcedo. “It was always a thing. I would always be stopped for just walking to get groceries from the store.”Salcedo says she was first incarcerated at age 19, shortly after she began her transition process, and spent the next 14 years in and out of prison and jail for a variety of drug charges and petty theft charges, which she says primarily entailed shoplifting makeup and food.

Activist Bamby Salcedo is seen at the AIDS Monument Groundbreaking earlier this month in West Hollywood, California.

“I never murdered anyone or anything like that,” Salcedo says. “Back in the ’80s there weren’t any services related to us. So anything we needed we got from the street, from our sisters. Participating in the street economy was the only way for us to live and survive.”Salcedo says the “inhumane” and “disgraceful” treatment of trans women in custody often starts immediately upon the intake process, a sentiment echoed by Jones and others.”We are told to get undressed in front of many men” including both corrections officers and other male prisoners, Salcedo describes, which “automatically creates this sense of fear for many of us and this sense… that it’s ok to sexually harass us and oftentimes sexually assault us.”Jones similarly spent a lot of time on the street as a teen, after becoming homeless when she says her mother kicked her out of the house after coming out as gay.”The streets were my best friend. That’s where I learned to become who I am today,” Jones says.But soon, for Jones too, life on the street turned to life behind bars.

Violence on the Inside

Once they are incarcerated, trans people are at significantly higher risk of violence. Trans prisoners are over nine times more likely than the prison average to be assaulted or abused by fellow prisoners, and over five times more likely to be assaulted or abused by facility staff, according to a national survey conducted by the National Center for Transgender Equality. According to the 2015 survey, within the year leading up to the survey, almost a quarter of transgender prisoners reported being physically assaulted by other people in custody or staff.Salcedo describes being raped in custody by a man who held a razor blade against her neck. On other occasions, she says she was beaten by other prisoners, including one time being beaten with a four-by-four piece of wood.”Every single day I was at least verbally attacked. Every single day,” she remembers.Formerly incarcerated trans women say that abuse often comes at the hands of correctional officers.

Deadly attacks on Black trans women are going up. This grieving mom is fighting back
Deadly attacks on Black trans women are going up. This grieving mom is fighting back

“They have this whole language they used toward the trans community,” Jones remembers. “They call us horrible names, they used to have us strip out in front of other inmates to embarrass us. They used to come and ransack our cells and take our make-up. They wouldn’t let us eat in chow halls if we were wearing any make-up at all.”Opponents of housing people in custody according to gender identity argue that men could falsely claim to be transgender so they are housed with women they can then assault. There is no evidence to support that this happens, while there is overwhelming evidence that trans women in men’s prisons are being sexually assaulted at exponentially higher rates than the general incarcerated population.”There is no evidence whatsoever to support this argument of false claims. It simply doesn’t happen,” Heng-Lehtinen says. “There are criteria for determining that someone really is transgender… It’s not as simple as simply declaring that you are transgender.”There is limited data available on whether incarcerated transgender women in women’s facilities are at a lower rate of sexual assault because so few transgender women are currently being incarcerated in women’s facilities. However, formerly incarcerated trans women speaking to CNN shared that they would feel more comfortable being strip searched by guards who are women — standard practice in women’s facilities — and would feel safer with cellmates who are women.

Laws on the books

In 2003, President George W. Bush signed the Prison Rape Elimination Act, or PREA, into law. It required the Department of Justice to develop federal rules for prisons and jails aimed at preventing and eliminating sexual assault and rape of prisoners. The DOJ issued those PREA Standards in 2012, which still stand today.Among them, the PREA Standards say that prison staff “must consider [housing assignments] on a case-by-case basis,” and not simply on the basis of a person’s “genital status.” The rules also say “serious consideration” should be given to an incarcerated person’s “own views regarding his or her own safety.”In practice, activists say those standards rarely lead to trans women ever being incarcerated in a women’s facility, despite their requests to be housed as such.”We’ve heard from so many trans women that prison officials will ask them if they have a penis during intake,” says Richard Saenz, a senior attorney with Lambda Legal. “And that’s how they decide where they should be housed.”

This Black trans activist is fighting to shield her community from an epidemic of violence
This Black trans activist is fighting to shield her community from an epidemic of violence

Saenz says Lambda Legal gets hundreds of letters and phone calls every year from trans people in prison who say they are being assaulted, abused and otherwise are unsafe in their housing situation specifically because they are transgender. .”[PREA is] still not enforced consistently enough,” Heng-Lehtinen says. “We need clearer and more detailed policy about exactly how to determine the housing assignment and it needs to be reevaluated periodically because circumstances change.””Best practice would be for a trans person’s housing to be re-evaluated every year. And if that’s not going to happen, it should be revisited every five years.”

The Department of Justice tells CNN that the Federal Bureau of Prisons “follows and enforces PREA standards and recognizes the importance of ensuring that inmates are and feel safe while in custody. Under current policy, a transgender or intersex inmate’s own views with respect to his or her own safety must be given serious consideration when BOP makes housing and programming assignments.”

Part of the problem, activists say, is that there is a “patchwork” of federal and state regulations that is often “exploited to ignore the transgender person who is unsafe,” explains Heng-Lehtinen.This patchwork includes the federal government’s Transgender Offender Manual, which the Trump Administration revised in 2018 to roll back protections for trans people in custody. It required officials “use biological sex as the initial determination” for housing placement, but it did not define the term “biological sex” — a controversial term for which there is not one standard set of medical criteria.

Despite the Biden administration’s assurances that they want to improve the quality of life for transgender Americans, it has not yet revised these Trump-era regulations or issued a new Transgender Offender Manual.

“We do expect the Biden administration to update and fix the Transgender Offender Manual,” says Heng-Lehtinen, who says the NCTE has been working closely with the Biden administration and Department of Justice to make these changes.Salcedo is now the CEO and President of Los Angeles-based TransLatin@ Coalition, an organization dedicated to improving the conditions of trans people in America. She says revising the Transgender Offender Manual is a good start, but not enough.”More than that, it’s important that we understand the reasons why trans people are incarcerated: we are criminalized because of who we are. An alternative to that is to provide trans people with the resources and support that we need, rather than… having to resort to survival which gets us put in prison.”

State level action

Individual states are also working on legislation requiring their state corrections facilities to house transgender people in the place they feel safest. That includes SB 132 in California, which Governor Gavin Newsom signed into law in September of 2020, effective January 1. This law requires transgender, non-binary and intersex prisoners to be housed in “a correctional facility designated for men or women based on the individual’s preference,” according to the bill text. It also requires all carceral staff to address prisoners by their correct gender pronouns and to search prisoners in a way consistent with their gender identity.But activists say this law is also unevenly implemented.

“Since I’ve been out, I’ve been hearing stories of trans people being assaulted …, being stripped out,” or strip searched, by male correctional officers says Jones, alleging that is happening because the trans women are still being housed in men’s facilities with officers who are men. “Even though SB 132 is now law, they are not implementing it right. They need to be held accountable for that. People are really under attack now.”

A transgender woman placed in a men's prison after alleging abuse has been moved to a women's facility
A transgender woman placed in a men’s prison after alleging abuse has been moved to a women’s facility

Jennifer Orthwein, a public interest attorney in California, and now a friend of Jones, filed a lawsuit on June 11 on behalf of a currently incarcerated trans woman, Syiaah Skylit, and the entire class of trans prisoners in similar situations in California. “As people have begun to assert their rights under SB 132, they have been met with severe retaliation, distressing delays, tactics intended to police their genders, dangerous rumors and misinformation, and systemic outing of transgender, nonbinary and intersex people,” Orthwein tells CNN.

The California Department of Corrections and Rehabilitation tells CNN, “CDCR has remained committed to providing a safe, humane, rehabilitative and secure environment for all transgender, non-binary, and intersex people housed in the state’s correctional facilities… All housing transfer requests are being reviewed by a multi-disciplinary team to include institution leadership, mental health professionals, and Prison Rape Elimination Act (PREA) Compliance Managers. We’ve also developed and provided specialized training to staff to ensure they are aware of laws and departmental policies and to give them the knowledge and tools they need when interacting with the incarcerated transgender community.”

According to the court filing, “Defendants and the California Department of Corrections and Rehabilitation (“CDCR”) have repeatedly tortured, sexually assaulted, threatened, and pepper sprayed Plaintiff Syiaah Skylit, a 30-year-old Black transgender woman.” Orthwein says Skylit has attempted suicide and gone on a hunger strike.

On the day the lawsuit was filed and CNN requested comment, Skylit was informed that her transfer request was approved and she will be transferred within the next few days, according to Orthwein.

“CDCR cannot comment on pending litigation, nor can we comment on a specific incarcerated person’s housing requests. But again, we take the health and safety of all those in our care very seriously and are ensuring thorough reviews are completed for each request.”

According to CDCR, out of 1,277 incarcerated individuals that identify as transgender, non-binary or intersex, 272 have requested gender-based housing transfer requests. 265 are from people being housed at male institutions requesting to be transferred to female institutions and seven are from people being housed at female institutions requesting transfer to a male facility.CDCR says that a total of 33 requests have been approved and 19 of those approved incarcerated people have already been transferred. They say the remaining 239 requests are “being evaluated.”

While both lawsuits and policy efforts are underway to ameliorate the conditions for transgender, non-binary and intersex people behind bars, advocates say lives are at stake.

“The need is urgent,” Heng-Lehtinen says. “There are trans people behind bars right now suffering.””We want people to understand that we are under no delusion that this bill will make prisons safe for anyone, including gender variant people,” Orthwein says. “We just hope that this bill makes it possible for transgender, nonbinary and intersex people to survive prison with as much of their mental and bodily integrity intact as possible.”

To Confront Sexual Violence, We Don’t Need Better Prosecutors — We Need to Abolish Them

By Taylor Blackston & Sojourner Rivers
June 17, 2021

When candidates running for prosecutor claim to be on the side of survivors of violence, we need to take a closer look. ZEYNEPKAYA / ISTOCK / GETTY IMAGES PLUS

Prosecutors’ offices deal in punishment, not healing, prevention or justice. When candidates running for prosecutor claim to be on the side of survivors of violence, we always need to take a closer look — and recognize the violence inherent in the office itself.

In May, Manhattandistrict attorney (DA) candidate Alvin Bragg published an op-ed with advocate Marissa Hoechstetter in which they assert that it’s time to “center survivors and fight the public health crisis that is sexual violence” by expanding the prosecutor’s office to include a specific sex crimes unit. Not long after,carceral feministsGloria Steinem and Sonia Ossorio announced support for the wealthy Wall Street candidate for Manhattan DA, Tali Farhadian Weinstein. They similarly claim that the expansion of the punishment system will improve the lives of women. The reality is that these carceral feminists, Manhattan DA candidates and the overwhelming majority of DAs across the country, are pushing forward a decades-old agenda of expanding a system that is inherently violent and counter to what most survivors say they need.

One year after the murder of Oluwatoyin Salau, a Black teen activist who was failed by a system unable to provide her safe housing and was, therefore, left more vulnerable to violence, the DA candidates are advocating for devouring the already austere New York City budget to build out the criminalization infrastructure.

Don’t miss a beat

Get the latest news and thought-provoking analysis from Truthout.

Three months after the violence in Georgia targeting Asian massage workers — after which activists and sex workers denounced the idea thatmore criminalization and police could keep massage workers and sex workers safe — these candidates are advocating against sex work decriminalization.

As Black survivors of gender-based violence ourselves, and as organizers who work to end the criminalization of survival, our vision for a world without gender-based violence requires a world without policing, prisons and prosecution. Carceral feminists — or those who believe punitive practices such as policing and incarceration can solve gender-based violence — continue to claim they speak for all survivors. Yet many of us are screaming from the rooftops that we deserve so much more than the few carceral crumbs governments toss our way.

While carceral feminists may take up much of the public spotlight, radical feminists have long made connections betweeninterpersonal and state violence, showing how law enforcement has perpetratedgender-based violence throughout history and outlining the ways thatcarceral systems have failed many survivors. While it may be true that some survivors feel that the criminal legal system is useful to them, studies have found that around 70 percent to75 percent of sexual violence survivors do not report the violence to the police. Of those who do report to police, crude estimates show that 2.3 percent result in a conviction.

As the experience of Chanel Miller — a sexual assault survivor whose victim impact statement went viral in 2016 — revealed to millions, the court process is frequently retraumatizing and victim-blaming for gender violence survivors, even if a conviction occurs. Survivors are often crushed as the carceral machinery churns along to cage its next victim. Unlike restorative or transformative justice approaches, this legal system does not foster survivor-centered healing and accountability. The things that are precious to so many survivors — the abusive person taking responsibility for the violence they caused, apologizing and outlining how they will stop their violence, and making agreed-upon amends — are not byproducts of this system. The byproduct is more violence. Studies have shown that when the state targets communities with criminalization and incarceration, these communities actually experience increased rates of interpersonal violence rather than less. In short, incarceration does not prevent violence, it fuels it. The Manhattan DA has had over two centuries to become a victim-centered office — ultimately carceral feminists need to reckon with the fact that this is not possible in a system that only cares about punishment and not what survivors actually say they need.

As arecent survey of violence survivors has shown, overall survivors of violence prefer investments in schools, jobs and mental health treatment over more investments in prisons and jails. These realities would not surprise most anti-violence advocates. Since the Violence Against Women Act was first introduced, survivor advocates, particularly those that center the most historically marginalized groups, have stated over and over what communities ask for most while experiencing abuse:somewhere safe to live and somewhere nurturing to heal. Nevertheless, these cries go largely ignored by most bureaucrats and lawmakers. As a result of refusals to invest in actualaffordable housing and sufficient emergency cash assistance, our city’s shelters burst at the seams, as domestic violence has become thenumber one driver of the New York City homeless shelter population. Upon fleeing violence, many survivors and their families then experience the stress of severe poverty and housing insecurity.

Any real commitment to survivors must involve divesting from law enforcement responses to violence — which most survivors do not benefit from and which many marginalized survivors experience as violent — and redistributing resources to life-affirming and non-carceral supports.

Prosecutors Must Drop Charges Against Survivors

Not only do prosecutors usually fail to provide any respite for survivors of gender-based violence, they also often directly target them with criminalization and incarceration. The Manhattan District Attorney’s office has a long history of prosecuting survivors of gender-based violence. In 2007, seven women were arrested for defending themselves after being sexually harassed in the West Village, andfour of them were later sentenced to up to 11 years in prison. Today, that same office isprosecuting Tracy McCarter, a survivor of domestic violence, for the death of her abusive partner. The DA’s office currently housesa Domestic Violence Unit similar to the proposed sex crimes unit that Bragg andHoechstetter propose, and yet it continues to prosecute people for defending their lives.

Meanwhile, DA candidate Farhadian Weinstein pledges to support domestic violence-related mandatory arrest laws, which have been shown to result in some survivors being arrested, due to being mistaken as the abusive person. Notably, theresearcher whose work helped spur the adoption of mandatory arrest laws backtracked when additional data emerged indicating that these laws actually resulted in increased domestic violence for low-income survivors of color.

Steinem and Ossorio are promoting Farhadian Weinstein’s plans for a Bureau of Gender-Based Violence as if a departmental expansion and name change can transform the system’s relationship to survivors. Prosecutors cannot claim to care about survivors while simultaneously criminalizing their survival.

Prosecutors often serve as a criminalized survivor’snext abuser through aggressive character assassinations, monitoring their movement and phone calls, and creating an environment of punishment and fear. New York City jails and prisons are also frequent sites of sexual violence. Criminalization, prosecution and incarceration inherently spread violence; they don’t solve it.

Any discussion about reforming criminal legal systems on behalf of survivors without mention of how these very systems are abusing survivors themselves is incomplete at best, and extremely harmful at worst. This is particularly true forBlack, Latinx, Indigenous, queer and trans survivors who are rarely seen as “real” victims by courts if they fight back, but are also killed at the highest rates when they do not fight back. The city’s next DA must decline to prosecute and drop the charges against all survivors of gender violence — including Tracy McCarter — once elected. Otherwise, their “commitments” to survivors are nothing more than campaign talking points while survivors continue to be penalized by prosecutors in New York City.

Prioritize Survivor Needs, Not the Expansion of the District Attorney’s Office

Survivors shouldn’t have to engage with violent carceral systems to receive the support they need. While gender-based violence is supposedly considered apublic health issue, local and state government officials and prosecutors continue to push for a law enforcement response.

The District Attorney’s office is a law enforcement body, and we know that in ravaged government budgets, when a budget line is added in one place, it means another is lost. Instead of adding more survivor-oriented social workers and medical personnel to the law enforcement budget, we should be building up these resources in other departments. Supports should not be an extension of policing.

Moreover, if these resources are housed in police precincts and district attorney’s offices, they are likely to be used as carrots to pressure survivors into working with cops and prosecutors. As just one example, New York State requires that survivors quickly report a crime to law enforcement to be eligible for Victim Compensation, financial assistance to cover medical bills, counseling or other costs related to their survivorship. This policy coerces survivors into engaging with police to receive emergency economic support. Funding for the prosecutor’s office should be redirected to the resources that survivors have been consistently asking for, such as housing, flexible funds, and other resources that are essential for supporting survivor healing and self-determination. If we funded these needs proactively, we would be investing in the prevention of violence rather than only responding after the fact — and peddling public dollars into institutions that often cause further harm.

Defund the District Attorney’s Office to Radically Invest in Safety

Prosecution cannot address the root causes of violence. The criminal legal system itself is built on anti-Black racism, settler colonialism, capitalism, cisheteropatriarchy, and other oppressive forces that sustain a culture of violence. Unable to recognize their fundamental role in continuing these systems of oppression, any solutions that prosecutors offer outside of shrinking their own power will continue to fall short. For example, something as simple yet consequential as the framing of the issue has implications for who is recognized as a survivor and can access public resources. During this campaign, DA candidates — as well as Steinem and Ossorio — wrongly use a “violence against women” frame to describe gendered violence, which is often used to exclude transgender women and erases many other survivors across the gender spectrum. These instances reinforce what other feminists have long been telling us about the delusions of trusting the criminal legal system to support survivors, when these systems have targeted the communities that many survivors come from.

Conversations about the consequences of relying on criminal legal responses to violence have been happening for decades, from theFeminist Alliance Against Rape newsletters in the 1970s to theMoment of Truth Statement signed by anti-violence organizations across the country in 2020. Prosecutor candidates like Bragg and Farhadian Weinstein are proposing to interrupt gender-based violence with more violence (such as the sexual violence of incarceration). A truly transformative step would be one that shrinks prosecutor power. If prosecutors really want to help gender-based violence survivors, they should cut their budgets and return their funds to the city for community and survivor-led participatory budgeting.

Prosecutors’ offices are using their outsized power and resources to harm so many of us, particularly Black, queer, and other historically marginalized communities. It is time to defund and abolish them all, and give us what we need to live.

Taylor Blackston
Taylor Blackston is a Black queer abolitionist organizer and survivor of sexual violence.

Sojourner Rivers
Sojourner Rivers is a sexual violence survivor, member of Survived & Punished NY and a member of the #StandWithTracy defense team.

A Film Tries to Make a Difference for Domestic Violence Survivors

Melena Ryzik
June 11, 2021

“And So I Stayed” examines how the courts treat women who kill their abusers. The movie played a role in one case that resulted in freedom after a conviction.

Tanisha Davis, left, and Kim Dadou Brown, domestic-violence survivors who were convicted of killing their abusers.
Credit: Libby March for The New York Times

In 2013, Tanisha Davis, a 26-year-old woman from Rochester, N.Y., was sentenced to 14 years in prison for killing her boyfriend, at whose hands she suffered, she said, nearly seven years of abuse, including choking, death threats and a beating on the night he died. The judge agreed that she was a victim of domestic violence but said her response did not merit leniency. “You handled the situation all wrong,” he told her. “You could have left.”

In 2021, because of a new law that allows survivors of domestic violence more nuanced consideration in the courts, the same judge released Davis, thanks in part to a documentary that helped frame her case.

It’s not uncommon for documentary projects to have an impact on legal proceedings, once they’ve found an audience and built public attention. But the film that helped Davis, “And So I Stayed,” was not yet released — it wasn’t even finished — when the filmmakers, Natalie Pattillo and Daniel A. Nelson, put together a short video for the court, describing her life.

“You could see the strength of the ties she had to her family and the strength of the support she would have” if she were released, said Angela N. Ellis, one of her lawyers. The prosecutor and judge both mentioned watching the footage when they agreed, in March, to set her free.

In her eight years in prison, Davis, 34, spoke to her son, now 15, every day. Now that she’s home, “I can just call him in the next room,” she said. “I can’t even explain that joy. I cry happy tears all the time.”

For the filmmakers, it was an unexpectedly bright ending to an often heartbreaking and troubling film. “And So I Stayed,” which will have its premiere Saturday at the Brooklyn Film Festival (viewable online through June 13), is personal for Pattillo, who is a survivor herself and whose sister was killed by a boyfriend in 2010. The documentary grew out of her thesis project at Columbia Journalism School, where she met Nelson, her co-director.

The filmmaker Natalie Pattillo is a domestic-violence survivor.Credit: Gwen Capistran

“I didn’t realize how common it was, the gravity of women being incarcerated for defending themselves or their children,” Pattillo said. “Once I found out, I couldn’t stop reporting,” in an effort to show just how misunderstood, and punitive, these cases are within the justice system.

The film’s first focus was Kim Dadou Brown, who served 17 years in prison for killing her abusive boyfriend. She became an advocate, traveling to Albany to needle New York lawmakers about the Domestic Violence Survivors Justice Act, the long-simmering legislation that eventually helped free Davis. Introduced in 2011, it was finally passed in 2019, after Democrats flipped the State Senate.

The act is among the few laws in the country that grant judges more leniency in sentencing domestic violence victims who commit crimes against their abusers. It follows a growing, research-backed understanding of the patterns of abusive relationships, and the unique hold they have on people within them.

“Leaving is the hardest part,” and the most dangerous, Dadou Brown said. “I thought that all men hit, and so I stayed with mine, so I knew which way the blows would come.”

After Dadou Brown, a Rochester native and former health-care worker, was paroled in 2008, she volunteered with survivors and crisscrossed the state for rallies — even when money was tight because her felony status made jobs hard to find, she said. With 17 earrings (one for each year of her incarceration) and her signature false eyelashes, “she’s just a force,” Pattillo said. “It’s pure tenacity. That’s Kim.”

Dadou Brown has become a fierce advocate for the Domestic Violence Survivors Justice Act, which was finally passed in 2019.
Credit: Libby March for The New York Times

When the bill passed, there was elation among its supporters and the filmmakers. But they kept their cameras rolling.

One case that was considered a surefire test of the act was that of Nicole Addimando, a young mother of two in Poughkeepsie, N.Y., who in 2017 fatally shot Christopher Grover, her live-in boyfriend and the children’s father. The film includes police camera footage of that night, when she was found disoriented and driving around in the wee hours, her 4- and 2-year-olds in the back seat.

Her case made national headlines because of the severity of the abuse she said she endured: bites and black eyes; bruises and burns to her body, including while she was pregnant, that were documented by medical professionals; rapes that Grover videotaped and uploaded to a porn site. In the film, a social worker calls it not just assault, but “sexual torture.” In 2020, Addimando was sentenced to 19 years to life for second-degree manslaughter; the judge denied that the survivors justice act was applicable.

“I felt like we failed her,” said Dadou Brown, who was at the sentencing.

The film looks at the case of Nicole Addimando, who was sentenced to 19 years to life for killing her abuser. A judge ruled that the new law didn’t apply to her.
Credit: Daniel A. Nelson

In the film, Addimando is heard mostly as a voice on the phone from prison; in one call, her mother tries to console her that at least she’s alive, that she escaped the abuse. “I’m still not free,” she replies, weeping.

Though there are no nationwide statistics on the number of women incarcerated after defending themselves against abusers, federal research suggests that about half of the women in prison have experienced past physical abuse or sexual violence, a majority from romantic partners. Black women are disproportionately victimized through both intimate partner violence and the justice system: They are the most likely to be killed by a romantic partner and more likely to end up in prison, according to Bernadine Waller, a scholar at Adelphi University.

In bringing stories like these to the screen, said Nelson, the filmmaker, the aim was not to dispute who pulled a trigger, but to contextualize those convicted. “The legal system forces you to create the perfect victim,” he said, “and a prosecutor will do everything in their power to characterize a survivor into not fitting into that box.” (In Addimando’s case, the judge said she “reluctantly consented” to the sexual abuse.)

Garrard Beeney, a lawyer for Addimando, who is awaiting a decision on her appeal, said the documentary’s examination of the way the judicial system treats survivors is “a necessary, but I also think, not sufficient step,” in changing the process. Police, prosecutors, and judges have to be educated on how to think about domestic violence, he said. “We need that kind of retraining more immediately than a gradual process of understanding.”

Dadou Brown being filmed by Julian Lim, center, and Daniel A. Nelson. The film grew out of a thesis project.
Credit: Natalie Pattillo/Grit Pictures

For Pattillo, who had two of her three children while making the film, some moments felt overwhelmingly raw. “There’s survivor’s guilt, always, when you’re dealing with trauma,” she said, adding, in reference to Addimando, “Why did I get to be OK and not Nikki? Why do her kids not get to be tucked in by her every night?”

But it was also “very healing,” she added, “to have a hand in making sure the survivors feel seen and heard and believed through this film.”

It originally ended on a dark note, at a vigil for Addimando. Then came the Davis case. The filmmakers were there on the day she was released from Bedford Hills Correctional Facility. Reacclimating to life outside — during a pandemic — is still challenging, Davis said last week. But she wanted her story told as a warning for victims, and a beacon. The filmmakers plan to make the documentary available to those in the legal system — “a tool kit,” Nelson said, on how to employ the new law.

Dadou Brown was also at Bedford Hills; she drove Davis’s family there. Her advocacy, Dadou Brown said, had become her life’s calling. “I feel so fortunate to have so many dream-come-true moments,” she said. “Even coming home from prison. My next dream-come-true moment will be bringing Nikki home.”