Rape Behind Bars

Each year in the United States corrections system, roughly 200,000 men, women, and children inmates are sexually abused, sometimes by fellow inmates, too often by the very guards charged to protect them. This is the story of one woman rape victim who stood up for herself.

by Avi McClelland-Cohen

Each year in the United States corrections system, roughly 200,000 men, women, and children inmates are sexually abused, sometimes by fellow inmates, too often by the very guards charged to protect them. Despite the disturbing prevalence of this sort of violence, only recently has legislation, such as the 2003 Prison Rape Elimination Act, been introduced to curb this epidemic.

In 1996, Michelle Ortiz joined the statistic of those sexually abused in prison when she was raped by a male corrections officer at the Ohio Reformatory for Women in Marysville, Ohio. The guard, Douglas Shultz, entered Ortiz’s cell on the night of November 7, forcibly touched her, and issued a threat: “I’ll get you tomorrow, watch.”

Ortiz reported the assault to Paula Jordan, the cottage manager at the reformatory, but Jordan was dismissive. She told Ortiz that Shultz was “just a dirty old man,” and that he was being transferred out of the reformatory. The next night, however, Shultz kept his word; on November 8, he returned to the cell where Ortiz was sleeping and raped her.

Michelle Ortiz (photo Clevland.com)

Once again, Ortiz reported the attack. Rebecca Bright, an investigator at the reformatory, opened an investigation, which involved immediately placing Ortiz, handcuffed, in solitary confinement, where she remained for five days without adequate medical treatment, or even sufficient blankets to keep warm. Prison officials claim solitary confinement for victims of assault is standard procedure, but for recent victims of rape—who need medical and psychological care—such treatment is simply inhumane.

Ortiz was administered three separate lie detector tests to prove her story, and she passed each one with flying colors. In the mean time, Shultz was indeed transferred to a men’s prison, but when Ortiz began pushing for criminal charges, the guard disappeared without a trace.

At the time of her assaults, Ortiz was serving a one-year sentence for stabbing her husband in self-defense; he had repeatedly beaten her in the past, including breaking her arm, and she feared for her own (and her five children’s) safety. As in too many self-defense cases, Ortiz was nevertheless convicted and sent to jail; her children, left without a mother, would later read about her rape in the newspapers.

Ortiz’s story of being raped while incarceration is sadly far from unique. During an investigation into sexual assaults at the Ohio Reformatory for Women where Ortiz was confined and assaulted, the organization Stop Prisoner Rape (SPR, now known as Just Detention International) discovered that it was common practice at the facility to send women who report sexual abuse to “the hole,” where they face harsher conditions than in normal confinement, including 23-hour-a-day isolation and loss of privileges. Such treatment discourages victims from reporting assault and provides protection for their assailants.

SPR also found, through reports by whistleblowers and interviews with inmates, that the Ohio Reformatory for Women fostered a “climate of abuse” where rape, threatening and unwanted sexual advances, the trading of sex for favors, and abusive relationships were common. The problem is compounded by the vulnerability of the prisoners, who are under the near-total control of prison staff, and many of whom—like Ortiz—are former abuse victims; furthermore, it is not a problem unique to Marysville, or even to Ohio.

The “culture of silence and denial” and lack of institutional response discovered by SPR were exemplified by the claims of Reginald Wilkinson, the director of the Ohio Department of Rehabilitation and Correction, who repeatedly denied that any problem even existed.

Ortiz sued both Paula Jordan and Rebecca Bright in federal court for punishing her, the victim, rather than protecting her from Shultz, and for failing to provide adequate medical treatment. A jury ruled in favor of Ortiz, awarding $625,000 in total damages from the two defendants. (The suit initially also included Ohio Governor George Voinovich, but the court dismissed those charges, and Warden Shirley Rogers, who passed away during the case.)

Jordan and Bright appealed the decision to the 6^th Circuit Court of Appeals, which overturned the verdict—revoking the settlement money—in a 2-1 decision on the basis that prison officials have “qualified immunity,” which protects public officials from being sued for damages unless the official violated a “clearly established” law. Judge Martha Craig Daughtrey issued a heated dissenting opinion, calling the result a “legal travesty” and stating that “The majority’s decision to overturn the jury’s verdict strikes me not just as an unfortunate result in this case, but as one that is thoroughly senseless.”

Ortiz persevered, and with the help of appellate attorney David Mills, she appealed to the Supreme Court of the United States. Despite the objections of Ohio Attorney General Richard Cordray, almost a decade and a half after the assault at the Ohio reformatory, the Supreme Court agreed to hear the case.

The Supreme Court Hears the Case

Formerly an attorney with the Jones Day firm, David Mills opened his own practice in Cleveland in September 2008; a small practice adjacent to his apartment, the Mills Law Office had only two employees: David Mills himself, and a paralegal who also happened to be his mother, Elisabeth. His representation of Michelle Ortiz would lead to Mills’s ingratiation into the elite club of attorneys in the United States (about one in 10,000) who have the privilege of presenting arguments to the nation’s highest judicial body.

A bright young lawyer (just 34 years old at the time of the Supreme Court hearings) who had clerked at both the U.S. District Court for the District of Columbia and at the 6^th Circuit Court of Appeals, Mills spent over 450 hours preparing to argue before the nine justices of the high court, which historically has a shaky track record on the civil rights claims of prison inmates. He immersed himself in briefings, studied case law, and had fellow attorneys grill him during grueling practice sessions. Oral arguments were heard in Ortiz v. Jordan et al on November 1, 2010. Then, Ortiz and Mills waited.

On Monday, January 24, 2011, the day the verdict was set to be handed down, Mills was glued to his computer screen, obsessively refreshing his web browser. Thirty stomach-churning seconds after the SCOTUS blog announced the Ortiz decision would be announced next, the verdict appeared: a 9-0 vote. “The decision is reversed.”

It was a dramatic victory for Mills, and a deeply emotional moment for Michelle Ortiz. The attorney called his client and told her that her case had been upheld by the Supreme Court, establishing not only a modicum of closure for Ortiz but a precedent for future cases. “You won,” he told her.

“Excuse me?” she replied in disbelief.

“We won,” he repeated.

She understood this time, uttering, “Oh my God, praise the Lord,” before bursting into tears.

It still wasn’t a conviction of her attacker, but Ortiz did receive a substantial sum in settlement money. Later Ortiz would say of the ruling, “If this helps one woman that this has ever happened to or that it could ever happen to, then I am just so happy. Not for the money, but for the verdict.”

An Epidemic of Sexual Abuse in Prison

Even the Supreme Court cannot unilaterally alter the “climate of abuse” that pervades the U.S. corrections system, nor can it roll back the trauma inflicted by sexual violence. It can, however, set a precedent, and in doing so provide some level of vindication to a victim whose rapist has yet to see a day of punishment for his crimes. The importance of the ruling should be examined cautiously, though. “It isn’t some new ruling about the way prison officials must treat inmates,” Andrew Pollis, a visiting law professor at Case Western Reserve University who assisted Mills in preparing for the case, made sure to clarify, “although you could tell from the way Justice Ginsburg wrote the ruling that she was displeased with the way prison officials treated Michelle Ortiz.”

Rather, the opinion was based on a narrow examination of procedure and how cases involving public officials should be handled. The unanimous agreement among the justices was, as Justice Ruth Bader Ginsberg stated in the majority opinion, that the 6^th Circuit Court had “no warrant” to overturn the jury verdict. The decision unifies the rules that federal and state courts must follow in challenging qualified immunity for public officials if such immunity is rejected before trial, but does not in itself heal any wounds or solve the overarching issue of prison rape, which remains pervasive in the United States corrections system.

The epidemic of sexual abuse in U.S. prisons must be dealt with institutionally, at all levels of the corrections system. As Just Detention International (JDI, the modern incarnation of Stop Prisoner Rape), states, “When the government removes someone’s freedom, it takes on an absolute responsibility to keep that person safe. No matter what crime someone has committed, rape is not part of the penalty.” Furthermore, “prisoner rape is preventable. Prisons and jails with committed leaders, good policies, and sound practices can keep inmates safe.”

For myriad reasons, however, ranging from lack of funds to lack of compassion, prisons are not keeping their inmates safe from rape, and serious barriers exist to achieving this goal.

In 1996, the same year Michelle Ortiz was raped in an Ohio, Human Rights Watch (HRW) published a report titled All too Familiar: Sexual Abuse of Women in U.S. State Prisons, which did little to garner public support for legislation. Though U.S. Representative John Conyers, a Michigan Democrat, introduced a rider to the Violence Against Women Act that year to address the prison rape epidemic, the amendment failed miserably, not even garnering sufficient support to merit debate. (Notably, and contrary to common sense, even the Violence Against Women Act itself did not provide resources to incarcerated victims of violence until the controversial 2012 reauthorization—nearly 20 years after initial passage.)

Congress did manage to pass one piece of legislation in 1996 dealing with prison rape: the Prison Litigation Reform Act (PLRA), which not only failed to help prevent prison rape but actually established more barriers to incarcerated inmates seeking justice for violations of their rights, such as sexual abuse. The bill required incarcerated rape survivors to file complaints with specific corrections officers, even if the officer was involved in the assault, and set a strict timeline (a matter of days) by which assaults must be reported—an unrealistic timeline given the emotional (and often physical) injuries sustained during sexual abuse.

Many of these requirements for the reporting of rape in prison are far more stringent than those for reporting non-prison rape; this sets an unfairly high bar for incarcerated individuals (a category ranging from those serving extended prison sentences to those merely spending a night in the drunk tank for disorderly conduct) who have suffered sexual assault, and essentially treats them as second-class citizens. Furthermore, in a tremendous catch-22, as Just Detention International notes, “the PLRA requires proof of a physical injury in order to seek monetary damages and, shockingly, courts have held that some forms of sexual abuse do not amount to a physical injury.”

The Prison Rape Elimination Act

In 2001, Human Rights Watch published another report, this one titled No Escape: Male Prison Rape. This report received significantly more attention than the earlier report on female victims of the same epidemic. This helped raised significant awareness among the public, as well as spurring action from conservative and religious groups like Focus on the Family, who joined Human Rights Watch, Just Detention International, and others already working on the issue. These groups began pushing in force for legislation to combat sexual violence behind bars.

Two years after the publication of No Escape, in September 2003, Congress unanimously passed the Prison Rape Elimination Act, or PREA. Brenda Smith of American University’s Washington College of Law notes that one “factor that contributed to the passage of the [Prison Rape Elimination] Act is frankly that sexual victimization of women in our society is entrenched. While society takes as a given that women will be victimized both in the free world and in custody, the image of male rape was much more disturbing to members of Congress.” Notably, the initial version of PREA did not even address sexual victimization of women in custody, and even its final iteration focuses more heavily on male-on-male inmate rape than other forms of rape (e.g., staff-on-inmate rape) that disproportionately affect female prisoners.

Regardless of the reasons for its passage and the failure of earlier legislation, and despite its imperfections, the Prison Rape Elimination Act does establish systems for tracking and ultimately curbing the epidemic of prison rape. Smith describes PREA as “an ambitious piece of legislation which fundamentally seeks to prohibit sexual violence in all custodial correctional settings—juvenile, adult, community corrections, and immigration—whether operated by the federal, state, or local government.” The legislation “established a set of tools—data collection, research, training, technical assistance, grants, and standards—to prevent, reduce, and sanction sexual violence in custody.”

PREA authorizes significant funding to states for the purpose of conforming to the new requirements. States have used the funding for such endeavors as collecting data, establishing pathways for investigating reports, enhancing security, creating housing options for victims, providing physical and mental health treatment to victims, and recidivism reduction programs. As a punitive measure—the stick portion of the “carrot and stick” equation—the federal government may withhold up to five percent of its criminal justice assistance to states or agencies that fail to conform to these standards.

Ten years after its passage, it remains difficult to determine realistically what kind of impact the Prison Rape Elimination Act has had. Surveys are, too often, problematic; for example, several states that reported in early PREA surveys having zero incidents of sexual assault in their prisons (Alaska, Maine, New Hampshire and North Dakota all reported this unbelievably low rate) were actually under public investigation at the time of reporting for their levels of sexual violence. There are also disparities between inmate reporting and staff reporting: while a survey of correctional authorities reported 6,528 incidents of sexual violence in 2006, an inmate survey the next year reported 189,400; though the two surveys cannot be directly compared, the profound disparity in measurements makes analysis difficult until reporting systems can be unified and streamlined.

Importantly, because of PREA agencies are better able to address the issue of prison rape, and research projects funded by the act and carried out by various agencies (including the American Probation and Parole Association, the American Prosecutor Research Institute, Community Resource for Justice, and the Center for Innovative Public Policy) have been undertaken to determine and help implement best practices for prevention. In sum, while significantly more must be done to combat prison rape, PREA—which is still a relatively new statute—sets a national precedent that paves the way for more thorough efforts now and in the future. For now, a message is being sent to victims like Michelle Ortiz, perpetrators like Douglas Shultz, and communities nationwide that institutions of government will not sit idly by while incarcerated individuals are sexually exploited.

For Michelle Ortiz, the fight for justice is not yet over. After 17 years of hiding out in North Carolina, her attacker has resurfaced in Columbus, Ohio, for reasons unknown. Shultz has yet to face any consequences for his crimes, but the statute of limitations – 25 years in the case of rape – has not expired, and Ortiz plans to pursue prosecution as well as a civil suit.

Ortiz, who finally freed herself of her abusive husband following her release from prison and whose five children are now grown (and have added seven grandchildren to the family), has relocated to Texas. She is working with women’s rights groups to begin a speaking tour, and wants to start her own nonprofit to provide support to victims of rape.

Helpful References

Casella, Jean, and James Ridgeway. "Prisoner Sent to Solitary for Reporting Rape Takes Her Case to the Supreme Court." Just Detention International. N.p., 02 Nov. 2010. Web. <http://www.justdetention.org/en/jdinews/2010/11_2_2010.aspx>.

Grant, Alison. "Cleveland Lawyer David Mills Wins Sexual Assault Case He Argued before Supreme Court." The Cleveland Plain Dealer, 24 Jan. 2011. Web. <http://www.cleveland.com/business/index.ssf/2011/01/cleveland_lawyer_win....

Koff, Stephen, and Alison Grant. "U.S. Supreme Court Rules in Favor of Ohio Woman Assaulted by Prison Guard." The Cleveland Plain Dealer, 25 Jan. 2011. Web. <http://www.cleveland.com/open/index.ssf/2011/01/us_supreme_court_rules_i....

"Learn the Basics." Just Detention International. N.p., 2013. Web. <http://www.justdetention.org/en/learn_the_basics.aspx>.

"Rape Survivor's Quest for Justice Leads to the U.S. Supreme Court." Just Detention International. N.p., 2013. Web. <http://www.justdetention.org/en/listserv/2010/110110.aspx>.

Ridgeway, James, and Jean Casella. "Woman Prisoner Sent to Solitary for Reporting Rape by Guard." Mother Jones. N.p., 08 May 2010. Web. <http://www.motherjones.com/mojo/2010/05/woman-prisoner-sent-solitary-rep....

Smith, Brenda V., The Prison Rape Elimination Act: Implementation and Unresolved Issues (2008). American University, WCL Research Paper No. 2008-49. Available at SSRN: <http://ssrn.com/abstract=1129810>.

Torry, Jack. "Prison Sex Case Will Be Heard by Supreme Court." Dayton Daily News, 27 Apr. 2010. Web. 05 Sept. 2013. <http://www.daytondailynews.com/news/news/crime-law/prison-sex-case-will-....

Yarussi, Jaime M. "The Violence Against Women Act: Denying Needed Resources Based On Criminal History." Criminal Law Brief 3, no. 2 (2008): 29-36  <http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1031&....