House Bill 1111c1

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    Florida House of Representatives - 2000             CS/HB 1111

        By the Committee on Corrections and Representative Roberts






  1                      A bill to be entitled

  2         An act relating to sexual violence in prisons;

  3         creating the "Protection Against Sexual

  4         Violence in Florida Jails and Prisons Act";

  5         amending ss. 944.35 and 951.23, F.S.;

  6         prohibiting sexual misconduct by any employee

  7         of a state agency or private contractor of the

  8         state; requiring the Department of Corrections

  9         to develop a course relating to sexual assault

10         identification and prevention as part of the

11         correctional officer training program;

12         requiring the department and county and

13         municipal detention facilities to provide an

14         orientation program and counseling; requiring

15         reporting by department employees of sexual

16         assault; creating s. 951.221, F.S.; prohibiting

17         sexual misconduct by employees of county or

18         municipal detention facilities; providing for

19         termination of employment under certain

20         circumstances; providing penalties; providing

21         legislative findings regarding

22         inappropriateness of certain treatment of

23         prisoners; requiring the Department of

24         Corrections to conduct or cause to be conducted

25         a study on the cross-gender treatment of

26         inmates in correctional institutions; requiring

27         the submission of the report to the Legislature

28         by December 31, 2000; providing an effective

29         date.

30

31  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  This act may be cited as the "Protection

  2  Against Sexual Violence in Florida Jails and Prisons Act."

  3         Section 2.  Subsections (3) and (4) of section 944.35,

  4  Florida Statutes, are amended, and subsections (5) and (6) are

  5  added to said section, to read:

  6         944.35  Authorized use of force; malicious battery and

  7  sexual misconduct prohibited; reporting required; penalties.--

  8         (3)(a)1.  Any employee of a state agency or private

  9  contractor the department who, with malicious intent, commits

10  a battery upon an inmate or an offender supervised by a state

11  agency or private contractor the department in the community,

12  commits a misdemeanor of the first degree, punishable as

13  provided in s. 775.082 or s. 775.083.

14         2.  Any employee of a state agency or private

15  contractor the department who, with malicious intent, commits

16  a battery or inflicts cruel or inhuman treatment by neglect or

17  otherwise, and in so doing causes great bodily harm, permanent

18  disability, or permanent disfigurement to an inmate or an

19  offender supervised by a state agency or private contractor

20  the department in the community, commits a felony of the third

21  degree, punishable as provided in s. 775.082, s. 775.083, or

22  s. 775.084.

23         (b)1.  As used in this paragraph, the term "sexual

24  misconduct" means the oral, anal, or vaginal penetration by,

25  or union with, the sexual organ of another or the anal or

26  vaginal penetration of another by any other object, but does

27  not include an act done for a bona fide medical purpose or an

28  internal search conducted in the lawful performance of the

29  employee's duty.

30         2.  Any employee of the state correctional system

31  operated by the department or a private contractor with either

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  1  the department or the Correctional Privatization Commission

  2  who engages in sexual misconduct with an inmate or an offender

  3  supervised by a state agency or private contractor the

  4  department in the community, without committing the crime of

  5  sexual battery, commits a felony of the third degree,

  6  punishable as provided in s. 775.082, s. 775.083, or s.

  7  775.084.

  8         3.  The consent of the inmate or offender supervised by

  9  a state agency or private contractor the department in the

10  community to any act of sexual misconduct shall not be raised

11  as a defense to a prosecution under this paragraph.

12         4.  This paragraph does not apply to any employee of a

13  state agency or private contractor the department who is

14  legally married to an inmate or an offender supervised by a

15  state agency or private contractor the department in the

16  community, nor does it apply to any employee who has no

17  knowledge, and would have no reason to believe, that the

18  person with whom the employee has engaged in sexual misconduct

19  is an inmate or an offender under community supervision of a

20  state agency or private contractor the department.

21         (c)  Notwithstanding prosecution, any violation of the

22  provisions of this subsection, as determined by the Public

23  Employees Relations Commission, shall constitute sufficient

24  cause under s. 110.227 for dismissal from employment with the

25  state department, and such person shall not again be employed

26  in any capacity in connection with the correctional system.

27         (d)  Each employee who witnesses, or has reasonable

28  cause to suspect, that an inmate or an offender under the

29  supervision of a state agency or private contractor the

30  department in the community has been unlawfully abused or is

31  the subject of sexual misconduct pursuant to this subsection

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  1  shall immediately prepare, date, and sign an independent

  2  report specifically describing the nature of the force used or

  3  the nature of the sexual misconduct, the location and time of

  4  the incident, and the persons involved.  The report shall be

  5  delivered to the inspector general of the department with a

  6  copy to be delivered to the warden superintendent of the

  7  institution or the regional administrator. The inspector

  8  general shall immediately conduct an appropriate

  9  investigation, and, if probable cause is determined that a

10  violation of this subsection has occurred, the respective

11  state attorney in the circuit in which the incident occurred

12  shall be notified.

13         (4)(a)  Any employee required to report pursuant to

14  this section who knowingly or willfully fails to do so, or who

15  knowingly or willfully prevents another person from doing so,

16  commits a misdemeanor of the first degree, punishable as

17  provided in s. 775.082 or s. 775.083.

18         (b)  Any person who knowingly or willfully submits

19  inaccurate, incomplete, or untruthful information with regard

20  to reports required in this section commits a misdemeanor of

21  the first degree, punishable as provided in s. 775.082 or s.

22  775.083.

23         (c)  Any person who knowingly or willfully coerces or

24  threatens any other person with the intent to alter either

25  testimony or a written report regarding an incident where

26  force was used or an incident of sexual misconduct commits a

27  felony of the third degree, punishable as provided in s.

28  775.082, s. 775.083, or s. 775.084.

29

30  As part of the correctional officer training program, the

31  Criminal Justice Standards and Training Commission shall

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  1  develop course materials for inclusion in the appropriate

  2  required course specifically designed to explain the

  3  parameters of this subsection and to teach sexual assault

  4  identification and prevention methods and techniques.

  5         (5)  State correctional institutions and private

  6  correctional facilities housing state inmates shall:

  7         (a)  Provide an initial orientation program on sexual

  8  assault to all inmates within 48 hours after incarceration.

  9  The program shall provide at least the following information:

10         1.  A realistic presentation on how to avoid sexual

11  violence while incarcerated.

12         2.  Information on how to prevent and reduce the risk

13  of sexual violence.

14         3.  Information on available sexual assault counseling.

15         4.  The procedure for requesting sexual assault

16  counseling.

17         (b)  Provide sexual assault counseling to any inmate

18  who requests it.

19         1.  Sexual assault counseling shall be provided by

20  trained or experienced psychological specialists employed by

21  the department or by a private correctional facility under

22  contract with the Correctional Privatization Commission, or by

23  trained or experienced representatives of a faith-based

24  organization, community outreach organization, or other

25  appropriate organization that has been approved by the

26  facility administrator to provide such programming.

27         2.  Literature and tapes on rape and rape trauma

28  syndrome developed or sponsored by community rape crisis

29  centers or state or national nonprofit organizations with

30  expertise in sexual assault issues shall not be barred from

31  any state correctional institution unless the administrator

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  1  determines that a particular item is unsuitable. Such

  2  literature provided to a state correctional institution shall

  3  be left out in areas where inmates can take it without calling

  4  attention to themselves, such as in the library, medical

  5  clinic, wellness areas, mental health offices, and educational

  6  areas.

  7         (6)  A correctional officer or other employee of a

  8  state correctional institution or of a private correctional

  9  facility who becomes aware of an actual or threatened sexual

10  assault, or a credible report of an actual or threatened

11  sexual assault, on an inmate in the custody of the institution

12  shall promptly report this situation to the inspector general

13  of the department, who shall respond as provided in paragraph

14  (3)(d).

15         Section 3.  Section 951.221, Florida Statutes, is

16  created to read:

17         951.221  Sexual activity between detention facility

18  employees and inmates; penalties.--

19         (1)  Any employee of a county or municipal detention

20  facility or of a private detention facility under contract

21  with a county commission who engages in sexual misconduct, as

22  defined in s. 944.35(3)(b)1., with an inmate or an offender

23  supervised by the facility without committing the crime of

24  sexual battery commits a felony of the third degree,

25  punishable as provided in s. 775.082, s. 775.083, or s.

26  775.084. The consent of an inmate to any act of sexual

27  misconduct shall not be raised as a defense to prosecution

28  under this section.

29         (2)  Notwithstanding prosecution, any violation of the

30  provisions of this section, as determined by the administrator

31  of the facility, shall constitute sufficient cause for

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  1  dismissal from employment, and such person shall not again be

  2  employed in any capacity in connection with the correctional

  3  system.

  4         Section 4.  (1)  The Legislature recognizes the need of

  5  the Department of Corrections, the Correctional Privatization

  6  Commission, and local county and municipal detention

  7  facilities to achieve institutional and security interests and

  8  provide equal employment opportunity for staff while

  9  respecting the constitutional rights of inmates and prisoners

10  in correctional institutions and detention facilities.

11  However, the Legislature finds that, precluding legitimate

12  correctional policies and practices, it is generally

13  inappropriate for prisoners to be subject to cross-gender

14  treatment in situations where it would be expected that such

15  treatment should be performed by staff of the same gender as

16  the inmate or prisoner.

17         (2)  For the purpose of providing information to the

18  Legislature on the general issue of cross-gender treatment of

19  inmates and prisoners, the Department of Corrections in

20  consultation with the Correctional Privatization Commission

21  shall conduct or cause to be conducted a study which describes

22  cross-gender treatment of inmates in the state and private

23  correctional system in terms of current policy and practices,

24  legal issues and concerns, and the extent to which other state

25  correctional systems achieve institutional and staff security

26  interests and provide equal employment opportunity for staff

27  while respecting the constitutional rights of inmates and

28  prisoners.

29         (3)  The department shall submit a report with findings

30  and recommendations as part of the study performed pursuant to

31  subsection (2) to the President of the Senate and the Speaker

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  1  of the House of Representatives on or before December 31,

  2  2000.

  3         Section 5.  Subsections (10) and (11) of section

  4  951.23, Florida Statutes, are renumbered as subsections (12)

  5  and (13), respectively, and new subsections (10) and (11) are

  6  added to said section to read:

  7         951.23  County and municipal detention facilities;

  8  definitions; administration; standards and requirements.--

  9         (10)  PROTECTION AGAINST SEXUAL VIOLENCE.--County

10  detention facilities and municipal detention facilities and

11  private detention facilities under contract with a county

12  commission shall:

13         (a)  Provide an initial orientation program on sexual

14  assault to all inmates within 48 hours after detention. The

15  program shall provide at least the following information:

16         1.  A realistic presentation on how to avoid sexual

17  violence while incarcerated.

18         2.  Information on how to prevent and reduce the risk

19  of sexual violence.

20         3.  Information on available sexual assault counseling.

21         4.  The procedure for requesting sexual assault

22  counseling.

23         (b)  Provide sexual assault counseling to any prisoner

24  who requests it.

25         1.  Sexual assault counseling shall be provided by

26  trained or experienced representatives of a faith-based

27  organization, community outreach organization, or other

28  appropriate organization that has been approved by the

29  facility administrator to provide such programming. County

30  detention facilities and municipal detention facilities may

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  1  contract with faith-based or community outreach organizations

  2  to provide these counseling services.

  3         2.  Literature and tapes on rape and rape trauma

  4  syndrome developed or sponsored by community rape crisis

  5  centers or state or national nonprofit organizations with

  6  expertise in sexual assault issues shall not be barred from

  7  any county detention facility or municipal detention facility

  8  unless the administrator determines that a particular item is

  9  unsuitable. Such literature provided to a detention center

10  shall be left out in areas where prisoners can take it without

11  calling attention to themselves, such as in the library,

12  medical clinic, recreation halls, mental health offices, and

13  educational areas.

14         (c)  Develop and implement an employee training program

15  to identify and prevent sexual assault.  The training program

16  shall provide at least 2 hours of training for each employee.

17         (11)  A guard or other employee of the detention

18  facility who becomes aware of an actual or threatened sexual

19  assault, or a credible report of an actual or threatened

20  sexual assault, on a prisoner in the custody of the detention

21  facility shall promptly report this situation to the person

22  responsible for facility inspections and investigations,

23  internal affairs investigations, inmate grievances, and

24  management reviews who shall immediately conduct an

25  appropriate investigation, and, if probable cause is

26  determined that a violation of this subsection has occurred,

27  the respective state attorney in the circuit in which the

28  incident occurred shall be notified.

29         Section 6.  This act shall take effect October 1, 2000.

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