In the late 1970s, when Thomas Terrizzi began working as an attorney in the Elmira, New York office of the newly formed Prisoners’ Legal Services, sex between corrections officers and inmates wasn’t an issue that prisoners complained about to PLS, then the only New York organization specializing in prisoners’ rights. The state had very few female inmates then. In fact, some of the correctional facilities that currently house only women then housed men, either instead of women or in addition to them. Cross-gender supervision of inmates (in other words, men supervising women or women supervising men) was rare then, with most female inmates being supervised by women. Since 1955, the U.N. Standard Minimum Rules for the Treatment of Prisoners had banned cross-gender supervision. The men who worked at Bedford Hills before 1976 worked not in the housing units but in areas including the grounds, the school and the library. Men’s prisons also had few female officers then.
Partly because most inmates were men, most of the complaints PLS received then came from male inmates. At the time, one of their most common complaints was that guards were using excessive force. Female inmates complained to PLS so rarely during that time that Terrizzi doesn’t remember handling any of their complaints. “I think women just generally didn’t complain much … out of fear of retaliation,” Terrizzi says.
But in 1976 New York’s prisons underwent policy changes that would reverberate in sexual-misconduct allegations decades later. That year, DOCS—in an effort to comply with the equal employment law codified in Title VII of the Civil Rights Act of 1964—decided to allow male officers at Bedford Hills to supervise the women’s living and sleeping quarters. The first male officers began those jobs in February 1977.
Within months, the opening salvo in the statewide battle to define the parameters of cross-gender supervision was fired, when 10 female inmates filed a lawsuit alleging that male officers’ ability to view them naked in their cells and showers and on their toilets violated their privacy rights.
The first judge who heard the case in federal district court, Judge Richard Owen, concluded that some male officers were indeed viewing the women nude, sometimes as a result of performing their jobs and sometimes while being what he called “Peeping Toms.”
He ordered DOCS to develop a plan that could prevent Bedford Hills’ male officers from viewing the women nude. The policy DOCS developed became the basis for a court order in 1979. It required female guards to be on hand at all times in case there was an emergency requiring privacy; barred male guards from overnight duties that might require looking in female cells; prohibited male guards from working infirmary posts where female nudity was possible; and mandated that male guards give female inmates a five-minute warning before opening their cell doors. Beyond that, male guards were allowed to keep working in women’s living quarters.
Within seven months, the corrections lieutenants’ union and its executive director appealed part of the judge’s order, reigniting the battle over cross-gender supervision. The appeal argued that barring male officers from the female housing areas overnight infringed unduly on the male officers’ fair employment rights. They also argued that the provision would infringe female officers’ employment rights: Removing male officers from night shift duties would bump female officers from preferred daytime shifts, to which they would normally be entitled by virtue of seniority, they argued.
The appeals court judge sided with the union, ruling that female inmates could prevent the male officers from seeing them nude at night by wearing appropriate clothing or covering their windows with a curtain for up to 15 minutes at a time.
That May 1980 appeals court ruling secured for New York State’s male corrections officers fuller entrée into the housing areas of women’s prisons. But for at least 10 more years, it didn't change the nature of the complaints PLS received, which continued to be primarily from men, Terrizzi says.
By the 1990s, Terrizzi began to hear occasionally that a female prisoner or former female prisoner had sued a male officer for damages in connection with allegations of sexual abuse, the first evidence that cross-gender supervision in women's prison was beginning to have some unintended consequences. But even those cases were rare, he says. “Those cases got little publicity. You couldn’t track them, really,” he says.
“They oftentimes would get settled very quickly and wouldn't be on the radar screen.” Not until 1996, when Terrizzi was a PLS supervisor, did PLS receive significant complaints about cross-gender supervision in women's prisons.
One day that year, his office received a letter from a woman at Albion saying that officers had just videotaped her strip frisk, a procedure in which an inmate disrobes and officers search the crevices of her body for contraband. The strip-frisking was being conducted by female officers while male officers stood watching just outside an ajar door. When Terrizzi read it, he was shocked and immediately called the DOCS counsel’s office. An attorney there acknowledged that officers were videotaping some strip frisks and said the officers had permission from DOCS’ central office, Terrizzi says. Video cameras were used only when officers believed they might have to use force to conduct the strip frisk, a DOCS spokesperson told The New York Times. “They were doing it to have a record of the strip search, so there’s no allegations of wrongdoing,” Terrizzi says DOCS explained. “They said it was as much a protection for the woman as for staff, which is pretty outrageous. Obviously the procedure is so humiliating and degrading to begin with for everybody.”
Operating under a consent decree from a case in which male inmates alleged they were improperly strip-searched, Terrizzi gradually found 72 women who complained of the same treatment. He also learned that videotapes of the searches were not stored in any controlled way, he says (A DOCS spokesperson told The New York Times the videos were locked away). Under a settlement, DOCS agreed to pay each victim, of which there were ultimately 85, $1,000. But DOCS did not agree to stop the videotaping, according to the paper, saying they’d done nothing wrong.
After that settlement made the news, more women began pursuing legal action against DOCS to launch allegations of sexual abuse. Within less than two years of the strip-frisk victory, more female inmates launched a new attack against DOCS on yet another front related to cross-gender supervision— the pat frisk, a procedure for detecting contraband that directed officers to touch a clothed inmate’s vaginal and breast areas.
One lawsuit alleged—and the then-corrections commissioner largely confirmed—that an instructional videotape that DOCS then used to train officers suggested that a pat-frisk was to be conducted as follows: “An officer begins by ordering the inmate to stand against the wall with her back to him. The officer then approaches the inmate from behind, placing his hands on the inmate’s neck and inside the collar of her shirt. He works his hands down every inch of the surface of her body. Probing for small items, the officer runs his hands under and over the woman’s breast, brushing her nipples. Searching the woman’s legs, the officer grips one inner thigh. His hands press against the woman’s vagina before moving down her thigh toward the ankle. He then grips the other thigh and repeats this procedure on the woman’s other side.”
The policy mandated that officers conduct this procedure in certain situations. For instance, officers were required to pat-frisk every woman returning from a visit in which she had contact with unincarcerated people. But the policy also allowed officers—regardless of their gender—latitude to conduct random pat frisks when an inmate aroused suspicion.
Claudia Angelos, a New York University School of Law professor who had worked at PLS during the 1970s, heard about DOCS’ pat-frisk policy while representing Stacey Hamilton, then a prisoner at Bedford Hills, in an unrelated matter. “The way they conducted the frisk was so beyond shocking that when we sent the press the videotape, we had absolute pandemonium across the state,” she says. “That was the training tape, which shows this guy spending five minutes frisking her, going up in her crotch.”
Before 1994, in at least one female facility, Bedford Hills, most if not all pat frisks were performed by female officers, because the staff was 60 percent female, Elaine Lord, the former Bedford Hills superintendent, testified in a 1999 deposition. But by the late 1990s, the facility’s gender makeup had reversed. And around the same time, in 1998, DOCS revised its pat-frisk policy to increase the number of circumstances under which pat frisks must be conducted.
Even though, according to Lord, male guards at Bedford Hills tended to let female officers do pat frisks of female inmates, the frequency with which male officers pat-frisked female inmates still increased, and so did the complaints from inmates and officers. Lord estimated that in 1999 all officers—male and female—were conducting a combined total of 200 to 250 pat frisks a day. Because the procedure made some officers uncomfortable, 20 to 30 of them complained to her about it, she later testified.
After numerous inmates complained to her that two or three male officers were making sexual remarks during the pat frisks, she sent an e-mail to one of her deputies in June 1997: “At this point I do not intend to go ahead with random pat frisks. I’m already sick of what I’m hearing about what some of our finest males think they’re going to get out of this. Sad to say, I truly believe the inmates in these cases. Stop it now and we will discuss how you might get control but no go until such time.” Lord testified she believed that some corrections officers “couldn’t wait to touch” female inmates.
Lord also said that she and her deputy handled the women’s complaints by speaking with them and the officers involved. Her deputy had staff monitor one of the guards. But neither official reported the officers to the inspector general’s office, nor, to Lord’s recollection, were those guards subjected to any disciplinary proceedings in connection with these incidents. Lord further testified that she never restricted cross-gender pat-frisking.
Inevitably, the issue of cross-gender pat frisks went to court. Angelos filed a federal lawsuit on behalf of New York State’s female prisoners in 1998, demanding an end to the practice, alleging that it provided a pretext for the misconduct of abusers and emboldened some officers to touch inmates sexually in other contexts. The judge assigned to the case, Allen G. Schwartz, was a former corrections officer. Very early on, the judge made it clear that he was going to rule in the inmates’ favor if they didn’t reach a settlement, Angelos says. Schwartz told them that he couldn’t imagine frisking a woman that way, she says.
DOCS initially resisted any change, and testimony by then Commissioner Goord provided some insight as to why. Goord testified in his deposition that equal employment law bars DOCS from eliminating cross-gender pat frisks. He cited an equal employment complaint that had been filed by female officers in 1996, when DOCS temporarily restricted cross-gender pat frisks at Albion in an effort to allay the concerns of advocacy groups. The female officers who filed the charge alleged that their new pat-frisk duties infringed on their rights to select their jobs based on seniority. DOCS ended the Albion experiment restricting cross-gender pat-frisks within seven months.
But DOCS’ resistance to the demands of Hamilton and the other plaintiffs did not last long. During the lawsuit’s first year, the agency compromised, agreeing to restrict cross-gender supervision under the terms of a settlement. The settlement made male pat-frisks of female inmates less intrusive, but ultimately permitted male officers to continue pat-frisking the majority of female inmates. A May 2010 letter written by DOCS commissioner Brian Fischer to the U.S. Department of Justice describes the results of the settlement, which governs pat frisks today: “Under this policy, a male officer cannot perform a non-emergency pat down search upon any female inmate who has been issued a Cross Gender Pat Frisk Exemption. Typically, such an exemption would be issued following a determination that the inmate suffers from post-traumatic stress disorder because of a history of sexual abuse."
The reforms haven’t eliminated concerns about pat-frisks. In fact, DOCS believes that misunderstandings about pat-frisks might explain some of the sexual misconduct allegations its inmates have made against guards. Some evidence suggests, however, that the problems in New York’s female prisons are deeper than that.