Delaware Prison Sex Abuse Agreement in Dispute - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Delaware Prison Sex Abuse Agreement in Dispute

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WILMINGTON, Del. (AP) - The American Civil Liberties Union is asking a federal magistrate to recommend that a U.S. District Court judge set a new deadline for Delaware's Department of Correction to comply with a consent agreement aimed at protecting female prisoners from rape and sexual assault.
    
But DOC officials argue that they already are in compliance with a 2011 federal consent agreement and a court order, and that no new deadline is needed.
    
"If it ain't broke, don't fix it," deputy attorney general Ralph Durstein III, representing the Department of Correction, told Magistrate Judge Sherry Fallon at a hearing Tuesday.
    
Fallon is scheduled to submit her report and recommendations on the ACLU's motion for a new compliance deadline to a federal judge within the next two weeks. The judge will make the final determination on whether state officials are in substantial compliance with the consent agreement.
    
State officials say several changes have been made at the Baylor Women's Correctional Institution in New Castle to ensure that allegations of sexual abuse are fully investigated and that inmates reporting alleged abuse are protected from retaliation.
    
But the warden of the women's prison, which holds about 400 inmates, acknowledged at a hearing Tuesday that the installation of about 175 new security cameras isn't scheduled to be completed until next month, and that the facility is dealing with significant understaffing.
    
"We need more staff ... at least 25 additional security staff," warden Wendi Lucus-Caple said in response to a question from ACLU attorney Richard Morse.
    
That number equals one-fourth of the current staff level at Baylor, which currently has 98 employees, according to the DOC.
    
In addition to adequate staffing levels, the ACLU is concerned that DOC officials do not have written policies and procedures in place to ensure compliance with all provisions of the consent agreement stemming from a lawsuit in which a female inmate claimed she was raped by a prison guard in 2008. State officials settled that underlying case and now argue that the ACLU is making unfounded assertions that they are not complying with the consent agreement.
    
"In terms of evidence, they haven't shown any," Durstein said.
    
State officials acknowledge that they failed to meet a September 2012 deadline to fully comply with all the provisions of the consent agreement, but both the DOC and ACLU say significant improvements have been made in the past two years.
    
"They've done a lot ... but there's more that the order requires them to do," Morse said.
    
While Durstein argued that the state is now in full compliance with the consent agreement, the ACLU wants written documentation to show how the DOC is complying with the court order. The ACLU said it wants to ensure, in particular, that  investigations are done properly, that female inmates are never alone with prison staffers except in emergency situations, and that inmates who report abuse are protected from retaliation.
    
"These are extremely vulnerable women," Morse said.
    
Lucus-Caple said officials have conducted 52 investigations at Baylor since 2011 under the federal Prison Rape Elimination Act. Of those 52 alleged incidents of sexual abuse, only two were substantiated, one involving two inmates, and the other involving a staffer and an inmate, she said. The rest were either unsubstantiated, meaning the allegations could not be confirmed by a preponderance of the evidence, or were determined to be unfounded, meaning they were not true.
    
"Unfounded means there's no way it could have happened," explained Lucus-Caple, who said all allegations of sexual abuse are "investigated thoroughly."
    
The court order requires that inmates reporting alleged abuse are monitored for 90 days to ensure that they are not targeted for retaliation, but state officials note that the PREA law allows such monitoring to be terminated if an allegation is declared unfounded. Morse said that is inconsistent with the court order, which he said is stricter than the PREA statute.
    
Durstein noted that the U.S. Department of Justice is expected to conduct an audit of the women's prison next year for compliance with the PREA, suggesting that the audit would identify any shortcomings that might need to be addressed.

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