2009 California Penal Code - Section 2635-2643 :: Article 3. Sexual Abuse In Detention

PENAL CODE
SECTION 2635-2643

2635.  The Department of Corrections and Rehabilitation shall review
informational handbooks regarding sexual abuse in detention
published by outside organizations. Upon approving the content
thereof, handbooks provided by one or more outside organizations
shall be made available to inmates and wards.

2636.  For the purposes of this section, all references to
classification of wards shall take effect upon the adoption of a
classification system for wards developed by the Department of
Corrections and Rehabilitation in compliance with Farrell v. Allen,
Alameda County Superior Court Case No. RG 03079344.
   The following practices shall be instituted to prevent sexual
violence and promote inmate and ward safety in the Department of
Corrections and Rehabilitation:
   (a) The Department of Corrections and Rehabilitation inmate
classification and housing assignment procedures shall take into
account risk factors that can lead to inmates and wards becoming the
target of sexual victimization or of being sexually aggressive toward
others. Relevant considerations include:
   (1) Age of the inmate or ward.
   (2) Whether the offender is a violent or nonviolent offender.
   (3) Whether the inmate or ward has served a prior term of
commitment.
   (4) Whether the inmate or ward has a history of mental illness.
   (b) The Department of Corrections and Rehabilitation shall ensure
that staff members intervene when an inmate or ward appears to be the
target of sexual harassment or intimidation.

2637.  The Department of Corrections and Rehabilitation shall ensure
that its protocols for responding to sexual abuse include all of the
following:
   (a) The safety of an inmate or ward who alleges that he or she has
been the victim of sexual abuse shall be immediately and discreetly
ensured. Staff shall provide the safest possible housing options to
inmates and wards who have experienced repeated abuse. Housing
options may include discreet institution transfers.
   (b) Inmates and wards who file complaints of sexual abuse shall
not be punished, either directly or indirectly, for doing so. If a
person is segregated for his or her own protection, segregation must
be nondisciplinary.
   (c) Any person who knowingly or willfully submits inaccurate or
untruthful information in regards to sexual abuse is punishable
pursuant to department regulations.
   (d) Under no circumstances is it appropriate to suggest that an
inmate should fight to avoid sexual violence or to suggest that the
reported sexual abuse is not significant enough to be addressed by
staff.
   (e) Staff shall not discriminate in their response to inmates and
wards who are gay, bisexual, or transgender who experience sexual
aggression, or report that they have experienced sexual abuse.
   (f) Retaliation against an inmate or ward for making an allegation
of sexual abuse shall be strictly prohibited.

2638.  Thoughtful, confidential standards of physical and mental
health care shall be implemented to reduce the impact of sexual abuse
on inmates and wards in the Department of Corrections and
Rehabilitation that include all of the following:
   (a) Victims shall receive appropriate acute-trauma care for rape
victims, including, but not limited to, treatment of injuries,
HIV/AIDS prophylactic measures, and, later, testing for sexually
transmittable diseases.
   (b) Health practitioners who conduct or encounter an inmate or
ward suffering from problems that might indicate sexual abuse, such
as trauma, sexually transmissible diseases, pregnancy, or chronic
pain symptoms, shall ask whether the patient has experienced sexual
abuse.
   (c) Practitioners should strive to ask frank, straightforward
questions about sexual incidents without shaming inmates or
displaying embarrassment about the subject matter.
   (d) Confidential mental health counseling intended to help the
victim to cope with the aftermath of abuse shall be offered to those
who report sexual abuse. Victims shall be monitored for suicidal
impulses, posttraumatic stress disorder, depression, and other mental
health consequences.
   (e) Any adult inmate in mental health counseling for any reason
shall be entitled to speak confidentially about sexual abuse.

2639.  The Department of Corrections and Rehabilitation shall ensure
that the following procedures are performed in the investigation and
prosecution of sexual abuse incidents:
   (a) The provision of safe housing options, medical care, and the
like shall not be contingent upon the victim's willingness to press
charges.
   (b) Investigations into allegations of sexual abuse shall include,
when deemed appropriate by the investigating agency, the use of
forensic rape kits, questioning of suspects and witnesses, and
gathering of other relevant evidence.
   (c) Physical and testimonial evidence shall be carefully preserved
for use in any future proceedings.
   (d) Staff attitudes that inmates and wards cannot provide reliable
information shall be discouraged.
   (e) If an investigation confirms that any employee has sexually
abused an inmate or ward, that employee shall be terminated.
Administrators shall report criminal sexual abuse by staff to law
enforcement authorities.
   (f) Consensual sodomy and oral copulation among inmates is
prohibited by subdivision (e) of Section 286 and subdivision (e) of
Section 288a, respectively. Without repealing those provisions, the
increased scrutiny provided by this article shall apply only to
nonconsensual sexual contact among inmates and custodial sexual
misconduct.

2640.  The Department of Corrections and Rehabilitation shall
collect data as follows:
   (a) The Department of Corrections and Rehabilitation shall keep
statistics on the sexual abuse of inmates and wards. Sexual abuse
incidents shall not be classified as "other" nor simply included in a
broader category of general assaults.
   (b) Statistics shall include whether the abuse was perpetrated by
a staff member or other inmate, the results of the investigation and
any resolution of the complaint by department officials and
prosecution authorities.
   The data shall be made available to the Office of the Sexual Abuse
in Detention Elimination Ombudsperson.

2641.  (a) The Office of the Sexual Abuse in Detention Elimination
Ombudsperson is hereby created in state government to ensure the
impartial resolution of inmate and ward sexual abuse complaints. The
office shall be based within the Office of the Inspector General. The
duties of this office may be contracted to outside nongovernmental
experts.
   (b) The ombudsperson shall have the authority to inspect all of
the Department of Corrections and Rehabilitation institutions and to
interview all inmates and wards.
   (c) The Department of Corrections and Rehabilitation shall allow
all inmates and wards to write confidential letters regarding sexual
abuse to the ombudsperson.
   (d) Information about how to confidentially contact the
ombudsperson shall be clearly posted in all of the Department of
Corrections and Rehabilitation institutions.
   (e) The Office of the Inspector General shall investigate reports
of the mishandling of incidents of sexual abuse, while maintaining
the confidentiality of the victims of sexual abuse, if requested by
the victim.

2642.  The Department of Corrections and Rehabilitation shall:
   Develop guidelines for allowing outside organizations and service
agencies to offer resources to inmates and wards, including, but not
limited to, the following:
   (1) Rape crisis agencies.
   (2) Hospitals.
   (3) Gay rights organizations.
   (4) HIV/AIDS service providers.
   (5) Civil rights organizations.
   (6) Human rights organizations.

2643.  The provisions of this act are severable. If any provision of
this act or its application is held invalid, that invalidity shall
not affect other provisions or applications that can be given effect
without the invalid provision or application.


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