Stark and Stark, along with its co-counsel Barry, Corrado, Grassi & Gillin-Schwartz, have filed a class action on behalf of thousands of potential female class members against the New Jersey Department of Corrections (“NJDOC”), over the intolerable conditions at the Edna Mahan Correctional Facility for Women (“EMCFW”).
NJDOC is a public entity that maintains an annual budget of roughly $1 billion; approximately 8,000 employees; 13 correctional institutions; and nearly 23,000 state-sentenced offenders housed in prisons, county jails, and community halfway houses. NJDOC is responsible for the day-to-day operations, supervision, and management of EMCFW. In 2017, EMCFW had an operational capacity of 846 persons and an average daily population of 659. The daily expense per inmate was $202.15, and the yearly per capita was $73,785.00.
EMCFW, formerly known as the Clinton Correctional Facility for Women, is located at 30 Route 513, in Clinton, Hunterdon County, New Jersey. Opened in 1913, EMCFW was named after one of the first female correctional superintendents in the United States. According to the official NJDOC website description, EMCFW “houses state-sentenced female offenders. The prison provides a campus-like setting with housing units and various support buildings. In terms of security designation, there are two compounds – minimum and maximum/medium. There is a third housing compound for inmates with varying classifications of special mental health needs. Programming includes counseling as well as education and vocational opportunities.” EMCFW is the only women’s correctional facility in New Jersey, providing custody and treatment programs for female offenders 16 years of age and older.
For decades, there has been a recognized and documented environment of rampant and unchecked sexual assault and harassment of female inmates by prison employees, agents and administrators, as well as other inmates, throughout state and federal corrections systems. For example, a 1996 study by Human Rights Watch, entitled Sexual Abuse of Women in U.S. State Prisons, stated:
Our findings indicate that being a woman prisoner in U.S. state prisons can be a terrifying experience. If you are sexually abused, you cannot escape from your abuser. Grievance or investigatory procedures, where they exist, are often ineffectual, and correctional employees continue to engage in abuse because they believe they will rarely be held accountable, administratively or criminally. Few people outside the prison walls know what is going on or care if they do know. Fewer still do anything to address the problem.
The United States has the dubious distinction of incarcerating the largest known number of prisoners in the world, of which a steadily increasing number are women. Since 1980, the number of women entering U.S. prisons has risen by almost 400 percent, roughly double the incarceration rate increase of males. Fifty-two percent of these prisoners are African-American women, who constitute 14 percent of the total U.S. population. According to current estimates, at least half of all female prisoners have experienced some form of sexual abuse prior to incarceration. Many women are incarcerated in the 170 state prison facilities for women across the United States and, more often than not, they are guarded by men.
The custodial sexual misconduct documented in this report takes many forms. We found that male correctional employees have vaginally, anally, and orally raped female prisoners and sexually assaulted and abused them. We found that in the course of committing such gross misconduct, male officers have not only used actual or threatened physical force, but have also used their near total authority to provide or deny goods and privileges to female prisoners to compel them to have sex or, in other cases, to reward them for having done so. In other cases, male officers have violated their most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat of force or any material exchange. In addition to engaging in sexual relations with prisoners, male officers have used mandatory pat-frisks or room searches to grope women’s breasts, buttocks, and vaginal areas and to view them inappropriately while in a state of undress in the housing or bathroom areas. Male correctional officers and staff have also engaged in regular verbal degradation and harassment of female prisoners, thus contributing to a custodial environment in the state prisons for women which is often highly sexualized and excessively hostile.
No one group of prisoners appears to suffer sexual misconduct more than any other, although those in prison for the first time and young or mentally ill prisoners are particularly vulnerable to abuse. Lesbian and transgendered prisoners have also been singled out for sexual misconduct by officers, as have prisoners who have in some way challenged an officer, either by informing on him for inappropriate conduct or for refusing to submit to demands for sexual relations.
Similarly, a 1999 report by Amnesty International, entitled Not Part of Her Sentence: Violations of the Human Rights of Women in Custody, found the same widespread and systematic abuse and harassment of female prisoners:
Many women in prisons and jails in the USA are victims of rape and other forms of sexual abuse including, commonly, sexually offensive language; male staff touching female inmates’ breasts and genitals while conducting searches and male staff watching women while they are naked. . . . Under international law, rape of an inmate by staff is considered to be torture. Other forms of sexual abuse violate the internationally recognized prohibition on cruel, inhuman or degrading treatment or punishment.
The plight of incarcerated women was perhaps best crystalized by Kim Shayo Buchanan, in her 2007 study entitled Impunity: Sexual Abuse in Women’s Prisons:
In the United States, sexual abuse by guards in women’s prisons is so notorious and widespread that it has been described as ‘an institutionalized component of punishment behind prison walls.’ Women in prisons across the United States are subjected to diverse and systematic forms of sexual abuse: vaginal and anal rape; forced oral sex and forced digital penetration; quid pro quo coercion of sex for drugs, favors, or protection; abusive pat searches and strip searches; observation by male guards while naked or toileting; groping; verbal harassment; and sexual threats. Guards and prisoners openly joke about prisoner ‘girlfriends’ and guard ‘boyfriends.’ Women prisoners become pregnant when the only men they have had contact with are guards and prison employees; often they are sent to solitary confinement—known as ‘the hole’—as punishment for having sexual contact with guards or for getting pregnant. Such open and obvious abuses would seem relatively easy for a prison administration to detect and prevent if it chose to do so.
Thus, it was no surprise that the United States Department of Justice, through the Bureau of Justice Statistics, confirmed that, as of 2011:
[F]emales account for a greater proportion of victims of staff-on-inmate victimization than they do in the overall inmate population. Females account for 7% of sentenced prison inmates, but represent 33% of all victims of staff-on-inmate sexual victimization in federal and state prisons. Similarly, females represent only 13% of inmates in local jails, but 67% of all victims of staff-on-inmate victimization.
Correctional authorities reported that the sexual contact between the inmate and staff ‘appeared to be willing’ in 59% of substantiated incidents. However, few incidents of staff sexual harassment were determined to be willing (2%). When limited to incidents of staff sexual misconduct only, nearly three-quarters (74%) were classified as ‘appeared to be willing.’ Any sexual contact between inmates and staff is illegal, regardless of whether it ‘appeared to be willing.’
Physical force, abuse of power, or pressure was involved in 13% of incidents of staff sexual misconduct. An estimated 10% of the incidents of staff sexual misconduct involved unwanted touching for sexual gratification, and 9% involved indecent exposure, invasion of privacy, or voyeurism.
Indeed, EMCFW was subject to sexual assault claims by two inmates (claims that were initially sought to be covered up), who were brutally assaulted from 1997 through 1999, in a lawsuit that continued into 2005. In that case, despite: extensive written policies and training manuals; a consent decree applicable to all New Jersey prisons that had been in effect since 1991, under which EMCFW was required to make minimum privacy accommodations for female inmates and institute formal training and policies for guards with respect to gender sensitivity and inmate privacy in areas such as locker rooms and showers; and a New Jersey state law specifically making it illegal to have “criminal/sexual contact” with inmates. See N.J.A.C. 4A:2-2.3(a) (prohibiting undue familiarity with inmates); N.J.S.A. 2C: 14-3b and 2C: 14-2c(2) (prohibiting guard /inmate sexual relations); an environment of sexual terror pervaded the EMCFW grounds:
Sella, the EMCFW guard that raped and sexually assaulted inmates Heggenmiller and Davis, was not the first to be fired or prosecuted for improper contact with a female inmate. EMCFW records and deposition testimony reveal as many as six ‘familiarity’ or ‘contact’ incidents between 1994 and 1998, all involving different guards, none of them Sella. At least five of these guards were fired and prosecuted for conduct ranging from sexual assault to consensual sexual contact with current and former inmates. Additionally, when viewed in the light most favorable to Appellants, deposition testimony from guards and their immediate supervisors, including Captain Ochs, shows the administrative hierarchy of EMCFW knew of up to a total of ten ‘familiarity’ or ‘contact’ incidents over a period of time dating back to 1990.
During this time, evidence of this climate of abuse became so marked as to engender federal protective measures, embodied in the Prison Rape Elimination Act. NJDOC has acknowledged its responsibilities under the Act:
The Prison Rape Elimination Act (PREA) was signed into Federal law in 2003 by President George W. Bush. It was created to address the problem of sexual misconduct in all confinement facilities. In 2012, the U.S. Department of Justice released national PREA standards to prevent, detect and respond to sexual abuse and sexual harassment in confinement facilities.
The NJ Department of Corrections (NJDOC) is responsible for protecting the rights of inmates placed under the Department’s custody and supervision. The Department has established a zero-tolerance policy for all forms of sexual abuse and sexual harassment and acts to prevent, detect and respond to all allegations and incidents of sexual misconduct.
All NJDOC employees, volunteers and contractors receive training on their duties and responsibilities under the Department’s zero-tolerance policy and are informed that they are required to immediately report any incident or allegation of sexual abuse and sexual harassment.
The NJDOC investigates all allegations of offender–on–offender and staff–on–offender sexual misconduct.
NJDOC commissioned a PREA audit of EMCFW in July 2014. That audit looked at 42 different multipart standards used to detect and combat sexual assault and sexual harassment at EMCFW. Despite the hostile environment at EMCFW, the facility scored a perfect 42 out of 42 “standards met” in the PREA audit.
Shortly after the audit, among numerous other incidents, a longtime NJDOC employee at EMCFW pleaded guilty in October 2017 to official misconduct for having sex with an inmate, and was sentenced to prison. Thereafter, in January 2018, four veteran EMCFW corrections officers were indicted by a Hunterdon County grand jury on charges ranging from second-degree official misconduct and sexual assault, to third-degree criminal coercion and fourth-degree criminal sexual contact. In all, seven NJDOC employees at EMCFW have been similarly charged within the last two years. This has culminated in an ongoing investigation by the United States Justice Department and the departure of NJDOC’s Commissioner, Gary Lanigan.
The class action lawsuit filed by Stark & Stark alleges that EMCFW is a place of public accommodation subject to the New Jersey Law Against Discrimination (“LAD”). See N.J.S.A. 10:5-12, et seq. Pursuant to the LAD, freedom from discrimination is a civil right. The class action complaint goes on to allege that the environment at the EMCFW is discriminatory based on the sex of the female inmates, and that the sexual harassment and discrimination at the facility has been so severe and pervasive that it constitutes a hostile and abusive environment in violation of the LAD. Further alleged is the fact that NJDOC knew, or should have known, of the environment of rampant threats and sexual abuse at EMCFW, which was especially harmful, considering the vulnerable status of those women incarcerated there.
Accordingly, Stark & Stark has sought to protect the rights of those injured, and force the NJDOC to take appropriate corrective action to end this widespread environment of harassment and discrimination against women at risk.
Heggenmiller v. Edna Mahan Corr. Inst., 2005 U.S. App. LEXIS 6067 **6-**9 (3d. Cir. 2005) (unreported)