Anyone can experience assault or abuse; but we know that certain groups of vulnerable people are at much greater risk for suffering from these traumas.
Women, people with disabilities, Indigenous people, racialized people and LGBTQIA2+ people, among other marginalized groups, are all statistically more likely to sustain assault or abuse in their lifetime. And sadly, for some of these groups, this increased risk is magnified further by systemic discrimination which disproportionately results in their incarceration.
If you are incarcerated, the power imbalances can be extreme. You are in a uniquely vulnerable situation where you have restricted liberty and are greatly dependent on a facility’s staff and must live alongside people who ordinarily you would not.
In this blog post, I examine some recent examples of abuse and assault in the correctional system, explain what governments are doing to limit the potential for these acts to occur, and outline some steps to take if you or a loved one is or has experienced assault or abuse in one of these settings.
How Bad is Physical Violence Against Inmates in Correctional Facilities?
In politics there’s an old saying that it’s not the crime voters care about, it’s the cover up. In the justice system, we care about both. Ten years ago, Ontario’s Ombudsperson released a bombshell report that revealed extensive incidence of excessive use of force in the correctional system and a culture in which guards and other staff conspired to cover up their wrongdoings or intimidate anyone who would dare to speak out against it.
The Ombudsperson at the time, Andre Marin, urged the provincial government to implement 45 recommendations to crack “the code of silence” that protected abusers and prevent these crimes from continuing to take place. Marin’s investigation revealed “disturbing stories of some correctional staff who committed ‘brazen acts of violence’ against inmates, attempted to destroy and falsify evidence, and intimidated colleagues who tried to report the perpetrators.”
Marin described the conspiracy as being “malignant” – a “cancer” of actions by a rogue group of correctional officers had been “allowed to metastasize throughout the prison system.”
Although the report specifically looked at excessive violence, the concerns inmates express for their safety and security when reporting any assault or abuse remain. As one inmate named at the Central East Correctional Centre told investigators: “… the guy that just beat me up was standing there … every time I was questioned about this, the officers that were involved were right beside me. I felt intimidated. I felt scared…”
Although this report specifically looked at the actions of correctional employees, inmate- on-inmate violence can be just as traumatizing - especially when the survivor of these assaults is not believed or supported by staff if they come forward, or if the facility’s negligence causes or contributes to this violence.
Are Other Forms of Assaults and Abuse Also Prevalent in the Correctional System?
Excessive force and other violent acts against inmates and residents of correctional centres often leave visible evidence of what’s occurred - especially if the person’s injuries are serious enough to require medical treatment.
But other forms of assault and abuse are easier to conceal. These crimes often include acts of sexual violence, and they also far more prevalent in correctional systems than any of us would like to believe:
- Multiple guards in women’s prisons have been charged with sex crimes against inmates in the last 10 years – though this represents only a small extent of these crimes. One case only came to police attention when a sitting Canadian senator intervened.
- Hundreds of former inmates were sexually abused in a youth correctional facility in Nova Scotia over almost 30 years. And these types of acts in youth in these facilities have been subject of numerous complaints elsewhere.
- For many years, trans people who have been placed in single-sex facilities that do not match their gender presentation have experienced significant sexual abuse. A California study found 6 in 10 trans women reported being sexually abused while in a men’s prison. While the Canadian system is becoming more affirming of gender identity in correctional settings, “as recently as January 2017, the CSC policy dictated that trans prisoners be assigned to either men’s or women’s penitentiaries based on their pre-operative sex.”
But sexual assault charges emerging from incidents in these facilities are the exception, not the rule. For instance, in a 2018 news report, an access to information request showed that in Alberta’s provincial correctional facilities there was only a single charge laid in a five-year period where inmates lodged 67 complaints.
If an adult inmate lodges a complaint about a sexual assault committed by another inmate, a correctional officer, or other person working in the facility, they must overcome even more bias than if they were to come forward in other types of settings simply by virtue of them being incarcerated.
Beyond the risk of not being believed that the sexual violence took place, the person or people accused of this crime may argue it was consensual. It’s important to remember that the law protects people in a dependent situation in these cases.
Consent cannot be freely given when one person holds a certain kind of power over another person. Subsection 273.1(2) of the Criminal Code sets out specific situations where there is no consent in law.
No consent is obtained: “where the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.” Social workers, guards, medical professionals, and other correctional staff all occupy such a position over an inmate.
The number of sexual assault charges we see coming out of correctional settings represents a small fraction of the cases reported. Considering that “sexual assault is the most underreported violent crime in Canada,” this small fraction, in turn, is an even smaller fraction of what is actually occurring in this system.
To make matters worse, even though sexual assaults and abuse are already significantly underreported, the Globe and Mail reported in 2021 that the Correctional Service of Canada (CSC) did not keep track of employees when accused of sexual assault by inmates. Absurdly, the CSC “records disciplinary actions against employees, but only in the broad categories of insubordination, deportment and negligence.”
What’s Being Done?
Fixing systemic issues of any kind is not a fast process, but there have been positive developments on some fronts. In response to the Ontario Ombuds’s 2013 report on excessive force in correctional facilities, by 2022 the Ministry of the Solicitor General had implemented 42 of its 45 recommendations, and it is working on the remaining recommendations such as installing closed-circuit cameras in all correctional facilities.
In 2022, Public Safety Canada sought proposals for a research project into “the nature and extent” of sexual coercion and violence against inmates who are Indigenous, racialized or otherwise at risk. A national study of these crimes in its federal corrections facilities is reportedly underway and scheduled to be completed within a year.
But whatever the results of these initiatives, they will come to late for people who have already survived sexual assault or abuse in these settings.
What Should I Do If I Have Suffered From Assault or Abuse in a Correctional Setting?
If you or a loved one has been assaulted or abused in a correctional facility, you have options in your search for justice.
First, always prioritize your own safety as you determine if and when you’ll decide to come forward. Some people may not be ready to report crimes such as sexual assault or abuse until they have had time to reflect, time to discuss what happened with a professional, or until they are no longer in a situation where they are dependent on the abuser or otherwise at risk for retaliation.
There is no statute of limitations on reporting sexual assaults or abuse. If you choose to wait until you are no longer incarcerated to come forward with allegations of these crimes, you will not lose your opportunity to press criminal charges or file a civil claim for damages.
Second, unless you are at risk of immediate harm that requires police intervention, you may want to seek independent legal advice before making a complaint to the correctional facility or police. When you consult a lawyer with a practice focused on assault and abuse, you can gain valuable information and advice that will help you make an informed decision. When people who have experienced this type of violence contact me, for example, I provide a no cost, no obligation initial consultation to help them understand their options.
Third, if possible, securely compile evidence of what happened for future use in a criminal or civil case. A lawyer can help you to determine what evidence may be available beyond your own testimony. For example, medical records, closed-camera surveillance, and visitor logs to the facility can all be used to corroborate your account of what happened.
Some of this evidence, such as security footage, may not be retained for long periods. Therefore, if security footage of an incident would be especially helpful for your potential case, it’s important to speak to a lawyer as soon as possible to determine how to ensure it’s preserved.
Physical evidence not reported to the facility’s medical team may also still be useful. For example, if you do not want to visit a medical facility after an assault but you have bruising or other physical evidence of what occurred, a lawyer can help you determine how to preserve it (for example, a visitor or lawyer taking photographic evidence of bruising that would be submitted along with a written or verbal statement from you at a later time.
Protecting Vulnerable Populations.
As Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission, has said in response to reports of sexual violence and coercion in federal prisons: “A prison sentence deprives a person of their right to liberty, but it does not deprive them of their right to security.”
Regardless of the reason why a person is in a correctional facility or has come through the criminal justice system, and whether their sentence is justified or not, no one should have to accept being subject to assault or abuse. Studies have shown half of people in Canadian prisons have already experienced childhood abuse; it is unconscionable that our systems are failing to protect them from further assaults and abuse in adulthood.
To learn more about how Jellinek Ellis Gluckstein Personal Injury Lawyers can help you or a loved one who is an assault or abuse survivor in a correctional facility, please contact us at www.sexualabuselawyer.ca