[Pnews] Trans Women Who Report Abuse in Prison Are Targets of Retaliation

Prisoner News ppnews at freedomarchives.org
Sun Aug 23 19:12:53 EDT 2020



Victoria Law - August 23, 2020 

For trans people in the U.S., 2020 might be a record high year for fatal
violence. As tens of thousands of people poured into the streets to
declare #BlackTransLivesMatter in June, six Black trans women (Brayla
Stone, Merci Mack, Shaki Peters, Draya McCary, Tatiana Hall and Bree
Black) were found dead within a nine-day period. At the end of July, two
other Black trans women (Queasha D. Hardy and Tiffany Harris) became the
20th and 21st trans women murdered this year [2]. "If this rapid pace
continues through the year, 2020 will set a record for violence against
the transgender community," wrote Devin Norelle [3]_._ 

The killings of trans and gender nonconforming people disproportionately
target Black trans women and trans women of color. In 2018, 82 percent
of trans people killed were trans women of color [4]. In 2019, 26 trans
women died from fatal violence; 20 of those women were Black [5]. A
report by the Human Rights Coalition found that, of fatal violence in
the trans and gender nonconforming communities between 2013 and 2018, 95
of the 128 victims identified were Black or African American [6] and at
least 103 were trans women of color. 

Behind prison walls, trans women are also targeted for physical, sexual
and fatal violence. When they attempt to report their assaults, they are
subjected to additional violence from both prison staff and those around
them. Trans women in men's prisons are 13 times more likely to be
sexually assaulted than cisgender men [7]. According to data provided by
CDCR, over 50 percent report fearing for their safety if they report
harassment, discrimination or violence. 

"There is a pervasive problem of not believing and dismissing complaints
of [transphobic] harassment because it's so normalized," said Jen
Orthwein, an attorney with Medina Orthwein LLP, a queer-owned civil
rights law firm, who has represented trans women in California prisons.
Orthwein also notes that, within prisons, authorities often perceive
trans people to be the perpetrators of violence, even when they have
been the victims of sexual abuse and harassment. While there is no data
about the intersections of race, gender identity and retaliation for
reporting sexual abuse, they note that they have seen ongoing
retaliation against trans women of color who report sexual abuse. 

That's what happened to Orthwein's client C. Jay Smith, a 59-year-old
Black trans woman who is now suing the California Department of
Corrections and Rehabilitation (CDCR) for failing to protect her from
continued sexual harassment and assault [8] and retaliating when she
reported sexual abuse. While her story is not unique among trans and
gender nonconforming people imprisoned across the nation, it is
indicative of the ways in which prison officials treat complaints of
sexual abuse and harassment, particularly by Black trans women and women
of color. 

"I would never have reported any of this [abuse] if I knew I would go
through this," Smith told _Truthout._ 


San Quentin is one of less than a dozen California prisons designated as
appropriate for transgender people. But Smith's lawsuit charges that the
prison has been far from safe for her. 

Under the Prison Rape Elimination Act (PREA), prison officials must
offer trans people the opportunity to shower separately from others. But
San Quentin staff consistently failed to provide that opportunity to
Smith and other trans women. Smith was often forced to shower either
with, or in full view of, dozens of men in custody. She has been openly
harassed, stared at and stalked. 

In 2013, Smith was violently raped from behind, but did not see the
assailant. She did not report the attack. "In the past, when transgender
inmates report anything, they lock you up and transfer you. You are not
the victim. You're always the one being accused," she told _Truthout._
"From experience, you're locked up and you're thrown away. I had come
too far for that. I didn't want to ruin my chances of being allowed to
take advantage of rehabilitation [at San Quentin]. How would it look if
I reported the assault and I didn't know who did it? I decided not to
report it for my own safety, so I could get a new start." 

Five years later, in 2018, Smith became the target of pervasive sexual
harassment and assaults by an incarcerated man known as "Prado." In
early 2019, Prado was moved to the cell next to hers and began throwing
paper airplanes and other objects into her cell. When near her, he
slapped her butt or grabbed her breasts. He exposed himself while
watching her shower or standing at the entrance of her cell. 

Smith reported his actions to prison staff, who did not intervene. Prado
escalated his harassment, exposing himself and demanding oral sex. Smith
requested that staff remove Prado, but they refused. The abuse

At one point, when Prado exposed himself, he drew her attention to what
appeared to be a large marble-shaped object inside the head of his
penis, taunting "Remember, you liked it." His words made Smith realize
that Prado had been the person who had raped her in 2013. Shortly after,
Smith told a prison lieutenant, B. Haub, about Prado's harassment and
requested that he be moved. When Haub refused, she requested that she be
transferred to another cell. He refused that request as well. 

On March 6, 2019, Smith reported the sexual assaults to a mental health
clinician, who then filed a PREA report. After leaving the clinic, Smith
was stopped by Haub, who escorted her to an Investigative Services Unit
(ISU) trailer, then shoved her against a wall, searched her breasts
using the palms of his hands, and locked her in a 3-foot-by-3-foot cage.
While inside the cage, she was questioned for hours by ISU officers, who
called her a "liar," a "drama queen" and an "attention seeker." 

Under the Prison Rape Elimination Act, Smith should have been given
access to outside advocates, a victim support person during the
investigation and a victim advocate. She was offered none of these.
Instead, officers ordered her to provide a urine sample, later claiming
that they suspected her to be under the influence of a controlled
substance. When she was unable to urinate, they issued her a rules
violation report for failing to provide a urine sample. 


During a cell search three days after her interrogation, an officer
groped Smith, then tossed and tore apart her belongings, including
letters from her mother who is deceased. Officers threw away many of her
personal items and, claiming that a broken statue was a makeshift
weapon, wrote her a violation report for possession of a deadly weapon.
Smith was placed in administrative segregation, a form of isolation in
which a person is locked in a cell 23 to 24 hours each day without their
belongings. When she appealed the charge, Warden Ron Davis wrote, "You
initiated an investigation by San Quentin ISU when you claimed to be the
victim of PREA. During the course of that investigation you were found
to be in possession of an inmate manufactured weapon resulting in your
ASU Placement." The district attorney pursued the weapons charge with
the threat of an additional 10-year prison sentence. (In July 2020,
after receiving over 100 calls and comments, the district attorney
dropped the charges.) 

In May 2019, prison officials informed Smith that her PREA allegation
was unfounded, meaning that, after investigation, the allegation was
"proven not to have occurred." This isn't unusual -- that year,
approximately 25 percent of California's PREA investigations against
other incarcerated people [9] were deemed unfounded. That percentage
rose to nearly 50 percent for complaints against prison staff. That same
day, prison officials listed Prado as Smith's confidential enemy, a
classification that meant that the two could not be housed in the same
prison. Smith was transferred from San Quentin, where she had been
attending GED classes and participating in both the Inmate Advisory
Council and the California Reentry Institute. Now at the California
Medical Facility (CMF), she is not allowed to work or participate in
prison programs until her ticket for the possession of a deadly weapon
is adjudicated. 

CDCR's own data collection shows that correctional staff
disproportionately target and retaliate against transgender women when
they report PREA allegations. Data collected in December 2019 from
transgender and other gender variant people in CDCR custody reveal that
over 50 percent of that population in CDCR facilities designated for men
fear for their safety if they report harassment, discrimination or
violence perpetrated against them. 

In late 2019, CDCR officials and community advocates met with
transgender and gender variant people in custody at all the prisons
designated for transgender people to conduct surveys and listen to
individuals' experiences in custody. By then, Smith had been transferred
to CMF. She was one of 10 trans women who attended and discussed their
experiences of sexual assault in prison. "I told [CDCR officials] that I
would not recommend any of these women report anything to staff at their
institutions because the institution is going to take care of themselves
before the girls," Smith recalled. "The [correctional counselor] took
down my name and number and told me she would look into my case. I never
heard anything back. What they were saying to us was totally rehearsed.
None of us heard back from any of them. Not one of us." 


Syiaah Skylit is a 30-year-old Black trans woman who has been
incarcerated in multiple California men's prisons. In May 2019, she was
transferred to the Kern Valley State Prison. Shortly after, she
witnessed an incarcerated man named David Brieby attack another trans
woman. Although Skylit provided testimony in the ongoing criminal case
against him for attempted murder, prison officials attempted to place
Brieby on the same prison yard as her. When Skylit expressed concerns
for her safety, she was placed in administrative segregation (ad seg),
in which she was locked into her cell for most of the day. Brieby
attacked a gay man on the yard and was also placed in ad seg. 

Once again, Skylit expressed concerns for her safety. Prison officials
transferred her to another yard -- where they later transferred Brieby.
On April 10, Brieby assaulted Skylit. 

To protest the prison's indifference to her safety, Skylit engaged in a
hunger strike. In response, prison officials placed her on suicide
watch, a form of confinement in which she was stripped of all of her
possessions and placed in isolation. 

On April 15, Skylit was released to another yard where she was attacked
by another person, then sexually assaulted with a baton by an officer.
She filed a PREA complaint against the officer. Like Smith, she was not
offered a victim advocate or support person. As of August 6, she has not
received any documentation related to the investigation. 

That same evening, officers entered Skylit's cell, stripped her naked,
put her clothes and property on the tier (corridor outside her cell) for
others to take and then left her naked without a mattress or blanket
until the next shift, when another officer provided her with a blanket
and clothing. The next morning, other officers punched, kicked and maced
Skylit, calling her homophobic names. She was then placed in a holding
cell where she was attacked by another incarcerated person, then maced
again by officers who filed a rules violation report claiming that
Skylit had battered another incarcerated person. 

Skylit is once again locked in ad seg, where she spent her 30th
birthday. Brieby also remains in ad seg and thus in the common areas
during the times that people are allowed out of their cells. Prison
staff have told Skylit that, because of COVID, both can expect to remain
there until January 2021. 

For years, Skylit requested transfer to a women's prison to no avail.
She has filed a complaint of housing discrimination with the state's
Department of Fair Employment and Housing. 

"I'm not going to make it out of this prison alive if I'm left here any
longer," she told her lawyers in June 2020. 

Her fears are not unfounded. In 2013, Kern Valley State Prison staff
ignored threats to Carmen Guerrero, a trans woman. The man who was
assigned to her cell had stated that he would kill Guerrero if they were
celled together. They ignored his threats; he tortured and killed her
[10]. In 2019, he was sentenced to death for her murder [11]. That same
year, California's Senate passed a bill requiring trans people to be
housed according to their gender identity [12]. COVID delayed the
expected Assembly vote, but advocates are hopeful for a final vote
before August ends. 


Even in a women's prison, Skylit may not be safe from sexual abuse or
staff retaliation. Rojas, a gender nonconforming person, spent 15 years
in the Central California Women's Facility (CCWF) where staff
continually harassed them because of their gender identity. Staff, they
told _Truthout,_ "are always harassing. That's the culture of the place.
They harass trans and GNC [gender nonconforming] folks." 

Furthermore, Rojas noted that staff attempt to rile women into
participating in harassment. "If you don't give them [trans and gender
nonconforming people] a hard time, they give you a hard time," they
explained. That hard time could include not being given mail on time or
being subjected to more frequent room searches or being denied the
ability to get medical care. 

As reported previously [13], in November 2015, Rojas informed prison
officers that they had been documenting their derogatory comments for
weeks and was planning to complain to the internal investigation unit.
In response, officers ripped apart Rojas's cell and physically attacked
them and two cellmates, who said they would report the attack. All three
were placed in small cages, typically used to confine people during
programming, for nearly 12 hours and denied medical care and bathroom
use. They were then placed in administrative segregation. 

In November 2017, Rojas, the two cellmates and a trans man incarcerated
at CCWF filed a lawsuit [14] charging that the continual sexual
harassment, excessive force and subsequent denial of medical care
violated the Eighth Amendment's prohibition on cruel and unusual
punishment. Their suit demanded more control and accountability when
violence, whether physical or sexual, occurs, as well as safe reporting
options to a third party outside the prison. 

Rojas, now out of prison, is organizing with the #MeTooBehindBars
campaign to end sexual and gender-based violence in prisons. Two of
their co-plaintiffs remain incarcerated, however, and continually face
retaliation for their involvement in the lawsuit, which is still

On June 29, 2020, Smith filed a lawsuit against CDCR for violating her
constitutional rights [8] and to change how California prisons treat
sexual abuse complaints, particularly those lodged by LGBTQI people. She
is also seeking to remove the violations staff issued in retaliation for
her PREA complaint. Because Smith is in prison, her suit must go through
an additional step -- a screening required by the 1996 Prison Litigation
Reform Act [15] -- before CDCR can be served. 

CDCR Deputy Press Secretary Terry Thornton confirmed that the agency has
not been served and noted that CDCR cannot comment on pending
litigation. In an email to _Truthout_, Thornton wrote, "CDCR is
committed to providing a safe, humane, rehabilitative and secure
environment for all people housed in the state's correctional
facilities. CDCR maintains a zero-tolerance policy for sexual
harassment, sexual violence, staff sexual misconduct and retaliation.
This policy applies to all incarcerated people, all CDCR employees, all
volunteers and all contractors. Moreover, the Prison Rape Elimination
Act (PREA) [16]drives all of CDCR's efforts to combat sexual abuse and
sexual misconduct." 

Smith disagrees. "At the time … I thought that PREA was going to protect
me, and … I thought the prison system had evolved to where I thought I
would have been protected," she told _Truthout._ "I was wrong, just like
I was wrong to think that my skin color wouldn't prevent justice for me.
There will never be a justice for me. I think this is a life sentence in
the flesh and in the bone that I'm serving. For me to be able to get up
every morning, clothed in my right mind, is a struggle. I will not stop
fighting for the girls." 


[12] https://rewire.news/article/2019/07/02/trans-jail-prison-sb-132/
[14] https://casetext.com/case/rojas-v-brown-5
[16] https://www.cdcr.ca.gov/prea/
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