Prison Abuse Victims Can Seek Justice in NYC


By Jae Hyun Oh | October 28, 2022, 5:14 p.m. EDT
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Jae Hyun Oh

Experts who study sexual assault describe it as soul murder – a form of torture that strips victims of their basic human dignity, with irreversible effects.[1] It usually takes time, sometimes years, for survivors to recount the assault and seek legal remedies.[2]

Existing sexual abuse laws often do not reflect this reality as the statute of limitations for bringing a civil action usually expires a few years after the incident in question.

In recognition of this disconnect, several states have passed laws allowing for a look-back period to revive claims for which the statute of limitations would otherwise have expired.

In New York State, on November 24, the Adult Survivors Act will open a one-year temporary window for survivors of adult sexual abuse to bring otherwise statute-barred claims. This retrospective period should bring widespread respite to victims of sexual abuse, including those formerly or currently incarcerated.

Although rarely acknowledged, sexual abuse between staff and inmates is a significant problem in correctional facilities. Kathleen Hawk Sawyer, former director of the Federal Bureau of Prisons, once said that inmate sexual abuse was the biggest problem she faced as director.[3]

The enabling legislation for the Eliminating Prison Rape Act states that approximately 13% of those incarcerated nationwide have been sexually assaulted, and many have been exposed to repeated assault.

In June 2021, the US Department of Justice reported that in 2018, those incarcerated reported 27,826 allegations of sexual victimization, a 14% increase from 2015.[4] Of the 27,826 allegations reported, 55% were perpetrated by prison staff.

It can take years for sexual abuse in correctional facilities to be uncovered. As JS Welsh writes in the Harvard Journal of Law and Gender, power dynamics in correctional facilities are such that “submitting to sexual coercion is often the safest option, and reporting a rape can make a survivor vulnerable to further abuse”.[5]

Victims fear that their complaints against correctional officers will not be taken seriously or thoroughly investigated.[6] Indeed, the DOJ acknowledged that “some prosecutors are reluctant to prosecute prison staff who do not use force or overt threats to obtain sexual relations with inmates, often because the sentence is only an offense”.[7]

Yet the use of force or overt threats is often unnecessary because, in correctional facilities, victims cannot escape their attackers and must depend on their mercy for their well-being.

The alleged credibility imbalance, power imbalance, and inability to escape create a toxic environment where inmates simply cannot say no.

For these reasons, under federal and New York State law, consent is not a legal defense for prison staff who engage in sexual acts with inmates.[8]

The responsibility to prevent any type of sexual contact between inmates and officers rests with the officers. Indeed, the BOP proclaims a zero-tolerance policy towards all forms of sexual activity, including sexual abuse and sexual harassment at its facilities.[9]

Under the binding regulations, BOP officers must immediately report “knowledge and even suspicion of sexual abuse” through a specific chain of command.

In a uniquely controlled environment like a prison, repeated rapes cannot be attributed solely to the depravity of a single perpetrator, but rather to a larger systemic failure.

A recent case, Herrera v. United States,[10] reflects a way that incarcerated victims can sue the government agency operating the correctional facility in question, rather than simply the individual officer who abused them.

Herrera[11] involved three incarcerated people who had been repeatedly sexually assaulted by Colin Akparanta, a former correctional officer at a now-closed Metropolitan Correctional Center facility in New York.

After inflicting recurring abuse on plaintiffs, Akparanta was charged and convicted of sexually abusing inmates. During a plea hearing held in March 2020, Akparanta admitted to sexually abusing at least seven inmates since 2012.

To seek redress for their ongoing trauma, three plaintiffs in Herrera[12] pursued not only Akparanta, but also the United States and its various officers who looked the other way.

They alleged claims under federal tort claims law for the negligence of various officers, as well as constitutional claims for their willful indifference.

The plaintiffs’ constitutional claims were filed under a common law doctrine derived from the 1971 United States Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics[13] and its offspring, because there is no law that affirmatively codifies the rights of plaintiffs to bring constitutional suits against federal agents.

The federal government decided to dismiss the case against all defendants except Akparanta, on the grounds that the conduct of the other officers was protected as discretionary under FTCA case law.

In a decision issued on March 27, US District Judge Kevin Castel of the U.S. District Court for the Southern District of New York rejected the government’s attempt to dismiss the FTCA’s claims, finding there was no discretion for fellow officers to authorize and condone Akparanta’s sexual abuse.

The court pointed out that under the BOP’s self-proclaimed zero-tolerance policy for any form of sexual activity, officers had no discretion to condone a co-worker’s alleged sexual abuse.[14] The government was required to remain true to its political mandate to immediately report and thoroughly investigate any suspicion or allegation of sexual abuse.[15]

Notably, the court denied Bivens’ constitutional claims under the Supreme Court’s 2017 decision in Ziglar v. Abbasi,[16] holding a Bivens[17] The remedy cannot be extended to this new context even if the officers’ conduct was in fact unconstitutional.

However, the court based its reasoning, at least in part, on the plaintiffs’ right to an alternative legal remedy under the FTCA. Therefore, the court left open the question of whether a Bivens[18] remedy would have existed here but for a viable FTCA claim.

The court’s evaluation of alternative remedies gives reason to believe that the justice system will not leave rape victims in jail without compensation.

Survival of FTCA claims to Herrera[19] upholds the principle that sexual abuse between staff and inmates reflects a systemic deficiency in the way our jails and prisons are run.

Unfortunately, according to a report by the National Commission for the Elimination of Rape in Prison, the public still tends to see sexual abuse in prison as “an expected consequence of incarceration, part of the sentence and the basis of jokes. “.[20]

Such a lack of understanding further hurts victims who live with crippling guilt and self-blame – that they should have done something, defended themselves or spoken out. Even after their release, victims often carry with them learned despair, shame, self-loathing and irrational guilt for having somehow allowed this terror to descend on them.[21]

As a result, victims often hesitate or delay seeking legal redress without knowing the statute of limitations.

The look-back window provided by the ASA is intended to provide victims with a much-needed opportunity to seek justice without worrying about delays.

It remains to be seen what ramifications, if any, this new state law will have on claims against the federal government, and what impact it will have on the incarcerated population more broadly in their willingness to seek legal remedies.


Jaehyun Oh is an attorney at the law firm Jacob D. Fuchsberg LLP.

Disclosure: Oh represented plaintiffs in Herrera v. US

“Perspectives” is a regular article written by guest authors on access to justice issues. To submit story ideas, email [email protected]

The views expressed are those of the authors and do not necessarily reflect the views of their employer, clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general informational purposes and is not intended to be and should not be considered legal advice.

[1] https://www.nytimes.com/2007/12/28/nyregion/28lives.html?ex=1356584400&en=e550b423e59326c0&ei=5124&partner=permalink&exprod=permalink.

[2] Dean G. Kilpatrick et al., Criminal Victimization: Lifetime Prevalence, Reporting to Police and Psychological Impact, Crime & Delinq. (1987).

[3] Addressing Staff Sexual Misconduct with Offenders, Remote Conference to Investigate and Prevent Staff Sexual Misconduct in a Correctional Setting (US Department of Justice National Institute of Corrections 2001).

[4] https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/pdca21.pdf.

[5] JS Welsh, Sex Discrimination in Prison: Title VII Protections for America’s Incarcerated Workers, Harvard Journal of Law & Gender (2019), https://harvardjlg.com/wp-content/uploads/sites/19/2020/05/Sex- Discrimination-in-Prison.pdf.

[6] Julie Small, “#MeToo Behind Bars: Records Shed Light on Sexual Abuse Inside State Women’s Prisons”, KQED (November 14, 2019), https://www.kqed.org/news/11786495/metoo-behind-bars-news recordings shed light on sexual abuse in state women’s prisons.

[7] https://oig.justice.gov/special/0504/index.htm.

[8] See 18 USC § 2243(c); New York Criminal Law § 130.05.

[9] https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.

[10] Herrera vs USA 1:20-cv-10206 (SDNY).

[11] Herrera v. USA, 1:20-cv-10206 (SDNY).

[12] Herrera v. USA, 1:20-cv-10206 (SDNY).

[13] Bivens c. Six Unknown Fed. Narcotics agents 403 US 388 (1971).

[14] See https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.

[15] See https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp.

[16] Ziglar vs. Abbasi , 137 S.Ct. 1843 (2017).

[17] Bivens c. Six Unknown Fed. Narcotics Agents, 403 US 388 (1971).

[18] Bivens c. Six Unknown Fed. Narcotics Agents, 403 US 388 (1971).

[19] Herrera v. USA, 1:20-cv-10206 (SDNY).

[20] National Commission to Eliminate Prison Rape, June 2009 report, https://www.ncjrs.gov/pdffiles1/226680.pdf.

[21] Robert W. Dumond, The Impact of Inmate Sexual Violence: Challenges in Implementing Public Law 108-79 Prison Rape Elimination Act of 2003, J. Legis. (2005).

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