I. PURPOSE The purpose of this policy is to provide procedures for the prevention, detection, response, and investigation of staff sexual misconduct within the Detention Command facilities. II. POLICY The policy of the Harris County Sheriff s Office is one of zero tolerance for staff sexual misconduct with inmates. This policy applies to all inmates, persons employed by the Harris County Sheriff s Office and any other individuals assigned within the Detention Command. All employees are prohibited from subjecting another employee or other individual to harassment or retaliation for reporting alleged sexual misconduct with inmates. III. PROCEDURE A. Definitions 1. Employee includes any person employed by the Harris County Sheriff s Office (HCSO) on a full-time, part-time, or temporary basis. 2. Independent Contractor is an individual or company who performs services for HCSO under an express or implied agreement and who is not subject to the Department's control as an employee. 3. Inmate is an individual under the supervision, custody, or incarceration by the HCSO, including an inmate housed in a detention facility outside of Harris County. 4. Other Individual for the purpose of this directive, includes, but is not limited to, a contract employee, employee of a vendor or volunteer. 5. Other Sexual Contact includes hugging, kissing, touching or making physical contact with any part of a clothed or unclothed body with the intent to arouse or gratify the sexual desire of any person. 6. Sexual Contact is any touching of the anus, breast or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person (meaning assigned by Section 21.01, Texas Penal Code). 7. Sexual Intercourse is any penetration of the female sex organ by the male sex organ, any contact between any part of the genitals of one person and the mouth or anus of another person or the penetration of the genitals or the anus of another person with an object (meaning assigned by Section 21.01, Texas Penal Code). 8. Sexual Misconduct is any behavior or act of a sexual nature by an employee or other individual that is directed toward any incarcerated inmate. 9. Sexually Provocative is words or actions by an employee or other individual directed toward an inmate that are intended to elicit sexual arousal or comments from the inmate. 10. Volunteer is an individual who performs services without compensation. B. Discussion 1. State Jail Felony Offenses An employee or other individual commits a state jail felony offense if the person intentionally engages in sexual contact or sexual intercourse with an inmate. 2. Specific Acts of Sexual Misconduct (The following list is not all-inclusive.) a. Having sexual contact or sexual intercourse with an inmate. b. Requiring or intentionally allowing an inmate to engage in sexual contact, sexual intercourse or other sexual conduct for any reason (e.g., the sexual gratification of another employee or other individual). c. Masturbating in front of an inmate. 1
d. Making obscene or sexual advances, gestures or comments toward an inmate or being receptive to any such advances, gestures or comments made by an inmate toward another employee or other individual. e. Touching of self in a sexually provocative way to solicit a response from an inmate or while in any area where inmates might be located. f. Conducting any verbal communication of a sexual nature with or within potential hearing range of an inmate, except in the context of a Sex Inmate Treatment Program. g. Providing written communication or photographic items of a sexual nature to an inmate. h. Influencing or making promises regarding, but not limited to, an inmate s safety, custody, privacy, monetary gain, privileges, work assignment or program status in exchange for sexual favors or because an inmate refused to submit to a sexual advance. This includes putting money into or promising to put money into an inmate s trust fund or bringing in or promising to bring in contraband for an inmate in exchange for sexual favors. i. Engaging in other sexual conduct with an inmate. j. Photographing or digitally recording inmates in any state of undress. (Legitimate investigative purposes are excluded.) C. Authority Texas s Custodial Sexual Misconduct Statute (Texas Penal Code) 39.04. Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody (a) An official of a correctional facility, an employee of a correctional facility, a person other than an employee who works for compensation at a correctional facility, a volunteer at a correctional facility, or a peace officer commits an offense if the person intentionally: (1) denies or impedes a person in custody in the exercise or enjoyment of any right, privilege, or immunity knowing his conduct is unlawful; or (2) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual in custody. (b) An offense under Subsection (a)(1) is a Class A misdemeanor. An offense under Subsection (a)(2) is a state jail felony. (c) This section shall not preclude prosecution for any other offense set out in this code. (d) The Attorney General of Texas shall have concurrent jurisdiction with law enforcement agencies to investigate violations of this statute involving serious bodily injury or death. (e) In this section: (1) "Correctional facility" means: (A) any place described by Section 1.07(a)(14); or (B) a "secure correctional facility" or "secure detention facility" as defined by Section 51.02, Family Code. (2) "Custody" means the detention, arrest, or confinement of an adult inmate or the detention or the commitment of a juvenile inmate to a facility operated by or under a contract with the Texas Youth Commission or a facility operated by or under contract with a juvenile board. (3) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01. (f) An employee of the Texas Department of Criminal Justice commits an offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with an individual who is not the employee's spouse and who the employee knows is under the supervision of the department but not in the custody of the department. (g) An offense under Subsection (f) is a state jail felony. 2
Texas s Custodial Sexual Misconduct Statute (Texas Penal Code) continued Sec. 21.01. DEFINITIONS. (Texas Penal Code) In this chapter: (1) "Deviate sexual intercourse" means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. (2) "Sexual contact" means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ. D. Reporting 1. The Sheriff s Office will carefully examine all incidents of alleged sexual misconduct. Each event shall be properly documented and/or evaluated to ensure: a. The necessity of filing criminal charges. b. The policies of the Sheriff s Office are followed. c. The continuing evaluation of additional training needs. d. The proper and accurate documentation and/or future investigation. 2. Supervisory personnel shall initiate documentation each time an alleged incident of sexual misconduct is suspected or reported. 3. The inmate(s) involved in the report shall be taken to Medical Services for treatment/examination. 4. The collection of any physical evidence will be conducted in accordance with current procedures with oversight by investigative or crime scene personnel. 5. Sexual Misconduct Reporting Responsibilities a. Employee i. An employee who becomes aware of, or is notified of, alleged sexual misconduct via inmate outcry, anonymously, or any other manner, shall immediately report such misconduct to their immediate supervisor. ii. The employee s second level supervisor shall be notified if the person allegedly conducting such misconduct is the employee s immediate supervisor. b. First-line Supervisor The immediate supervisor shall document the incident and forward it to the Bureau Commander, via the chain ~ of ~ command, for review and investigatory determination (Internal Affairs / Criminal Investigations Bureau). c. Watch Commander (On-Duty) i. The On-Duty Watch Commander shall review the Offense/Incident reports to insure all provisions of this policy are followed. ii. The On-Duty Watch Commander shall generate a Personnel Early Warning System (PEWS) report for the subject employee(s). iii. The On-Duty Watch Commander shall forward all documentation to the Division Commander for review. d. Division Commander i. The Division Commander shall review all supporting documentation, and make a determination regarding personnel re-assignments / inmates to be re-housed, etc. ii. In any event, the Bureau Commander shall be notified as timely as possible of all allegations of staff sexual misconduct. e. Bureau Commander i. The original Offense Report shall be submitted to the Office of Inspector General. 3
ii. The Bureau Commander(s) will conduct/or cause to be conducted quarterly reviews of alleged sexual misconduct incidents to identify any discernable trends and/or patterns. 6. Prohibition on False Reporting An employee shall not report false information regarding sexual misconduct with inmates or provide false information in an investigation of sexual misconduct with inmates. E. Retaliation Prohibited Any staff member or inmate who reports sexual misconduct or cooperates in sexual misconduct investigations shall be free from harassment or retaliation. Protective measures may include: 1. Transfer of subject employee. 2. When staff/supervisory personnel are alerted to possible retaliation they shall take immediate corrective measures. F. Disciplinary Action Personnel are subject to disciplinary sanctions up to and including termination when it is determined staff has violated Departmental sexual misconduct policies. The presumptive disciplinary sanction for staff members who have violated sexual conduct policies is termination. 1. Employees An employee who commits an act of sexual misconduct with an inmate shall be subject to disciplinary actions and /or criminal charges. 2. Other Individuals Other individuals (vendors, volunteers, contractors, etc.) who commit an act of sexual misconduct with an inmate shall be subject to criminal charges, and will not be allowed to continue to perform services for the Department and shall be denied access to all HCSO premises. 3. All substantiated allegations of sexual misconduct will be referred to the District Attorney s Office for criminal prosecution. G. Training 1. Employees All employees shall receive training regarding the provisions of this directive while attending New Employee Orientation. 2. Independent Contractors/Vendors Independent Contractors and Vendors shall receive training regarding sexual misconduct with inmates while participating in the Orientation Session. Contract employees who are not required to participate in the orientation program shall be notified of the provisions within this directive by the HCSO employee serving as the contract employee s supervisor or HCSO contract liaison. The appropriate Division Commander or designee shall provide a vendor with a copy of this directive, obtain the vendor s signature acknowledging receipt of the directive and instruct the vendor to notify each of the vendor s employees accessing HCSO premises or providing services to inmates of the provisions within this directive. 3. Volunteers A volunteer shall be notified of the provisions within this directive and PREA (Prison Rape Elimination Act) by the HCSO employee serving as the volunteer s supervisor. H. Severability If any provision of the Department Manual or its application to any person or circumstance is held invalid, such invalidity shall not affect any other provision of the Department Manual or its application to any person or circumstance. 4
IV. REVISION: This policy has been revised on the below listed dates: May 18, 2012 V. AUTHORITY Mike Smith, Chief Deputy 5