Code Section Group

Penal Code - PEN

PART 3. OF IMPRISONMENT AND THE DEATH PENALTY [2000 - 10007]

  ( Part 3 repealed and added by Stats. 1941, Ch. 106. )

TITLE 1. IMPRISONMENT OF MALE PRISONERS IN STATE PRISONS [2000 - 3105]

  ( Title 1 repealed and added by Stats. 1941, Ch. 106. )

CHAPTER 3. Civil Rights of Prisoners [2600 - 2643]

  ( Heading of Chapter 3 amended by Stats. 1975, Ch. 1175. )

ARTICLE 3. Sexual Abuse in Detention [2635 - 2644]
  ( Article 3 added by Stats. 2005, Ch. 303, Sec. 3. )


2635.
  

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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 287 or former 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.

(Amended by Stats. 2018, Ch. 423, Sec. 102. (SB 1494) Effective January 1, 2019.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

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.

(Added by Stats. 2005, Ch. 303, Sec. 3. Effective January 1, 2006.)

2644.
  

(a) A male correctional officer shall not conduct a pat down search of a female inmate unless the prisoner presents a risk of immediate harm to herself or others or risk of escape and there is not a female correctional officer available to conduct the search.

(b) A male correctional officer shall not enter into an area of the institution where female inmates may be in a state of undress, or be in an area where they can view female inmates in a state of undress, including, but not limited to, restrooms, shower areas, or medical treatment areas, unless an inmate in the area presents a risk of immediate harm to herself or others or if there is a medical emergency in the area. A male correctional officer shall not enter into an area prohibited under this subdivision if there is a female correctional officer who can resolve the situation in a safe and timely manner without his assistance. To prevent incidental viewing, staff of the opposite sex shall announce their presence when entering a housing unit.

(c) If a male correctional officer conducts a pat down search under an exception provided in subdivision (a) or enters a prohibited area under an exception provided in subdivision (b), the circumstances for and details of the exception shall be documented within three days of the incident. The documentation shall be reviewed by the warden and retained by the institution for reporting purposes.

(d) The department may promulgate regulations to implement this section.

(Added by Stats. 2018, Ch. 174, Sec. 1. (AB 2550) Effective January 1, 2019.)

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