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Florida’s Record on Rape

A closer look at the Sunshine State’s history of undercounting, or altogether ignoring, sexual abuse in its prisons.

Lemuel McMillan was a prisoner at the Northwest Florida Reception Center in May 2009 when a corrections officer named Ricardo Hay raped him in the laundry room. Another inmate had made a similar allegation against Hay, but McMillan had proof: after being forced to perform oral sex, McMillan vomited a DNA sample — Hay's semen — onto his own shirt. Five days after McMillan reported the incident, Hay resigned.

It took well over a year for corrections officials to test the shirt and find that it was a match. Hay was arrested, pled no contest, and received 10 years probation. But because of the lapse in time between the incident and the department’s investigation, details about the rape were never reported to the federal Bureau of Justice Statistics, which collects data about sexual abuse from state and federal prisons, a requirement of the Prison Rape Elimination Act (PREA).

Before Congress passed PREA in 2003, there was no national system in place for measuring the frequency of rape in prisons and jails. PREA’s role was not just numbers for the sake of numbers, but data that could help devise standards to prevent and respond to sexual abuse. The law mandated data-collection nationwide to identify how, when, and by whom prison rape occurs.

PREA administrators also created a two-tiered reporting method: At one level, inmates complete anonymous surveys, which are submitted to the federal statistics agency. Additionally, after a departmental investigation, prison administrators fill out a form for each substantiated incident of sexual abuse. In Florida, the Office of Inspector General is responsible for conducting those investigations. But cases can easily fall between the cracks. For instance, in their annual reports prison agencies are not required to include incidents of sexual abuse from previous years, even if they are substantiated at a later date, as was the case with McMillan.

“The atrocities I thought I saw on the streets of America hold no cord to what I’ve seen in the penitentiaries in the state of Florida.”John Ulm, veteran law enforcement officer

While Florida’s omission of McMillan’s rape from its annual report does not violate any rules, his case illuminates larger inconsistencies in the state’s PREA data that suggest the state is seriously under-reporting rape in its facilities. According to Florida’s administrative reports, rapes are a rare occurrance. Yet in the anonymous surveys, Florida inmates report numbers that rank the state’s facilities among the worst in the nation.

In the last national inmate survey, conducted between 2011 and 2012, four of the 21 facilities classified as having a “high rate” of sexual abuse were located in Florida, the most of any state. In those facilities, 12 to 14 percent of inmates alleged that they had been sexually abused or harassed by an inmate or guard on at least one occasion in the previous year. Nationally, that number was 4 percent.

But in its official account for 2011, the same year the inmate survey was conducted, Florida’s prison agency reported that of the 823 inmate allegations of sexual abuse and harassment, 7 incidents, or fewer than 1 percent, were substantiated.

One reason so few rapes are substantiated may be Florida’s history of ignoring, or outright intimidating, those who want to bring abuse claims to light. During recent testimony before the state senate’s Criminal Justice Committee, Florida prison inspectors claimed that they were ordered by high-ranking officials in the Inspector General’s office to ignore evidence and avoid bringing criminal charges against officers and other officials so as not to give the department a “black eye.”

“The organized crimes, the murders, the assaults, the victimization that goes on there every day is horrendous,” said John Ulm, a veteran law enforcement officer who investigates crimes in the state’s prisons for the inspector general’s office. “The atrocities I thought I saw on the streets of America hold no cord to what I’ve seen in the penitentiaries in the state of Florida.”

Ulm is one of four inspectors who filed a whistleblower lawsuit claiming Florida’s prison system is corrupt, rife with guards who routinely abuse inmates. The suit alleges that their boss, Inspector General Jeff Beasley, threatened them after they tried to expose wrongdoing, including the death of a 27-year-old inmate that they believed had been covered up.

Some of the families of Florida inmates who died mysteriously have claimed their loved ones’ deaths were retaliation for reporting sexual abuse. McMillan said that at first, he wasn’t going to report that he was raped out of fear of what might happen if he did. “The officers stand together. It’s understood,” he said, but he eventually changed his mind. “I knew that if I didn’t say anything it was just going to continue.” After making the report, McMillan said he was harassed and scared for his life. During his transport to a new facility, McMillan said an officer asked: “Which one of you is sucking dick?” After arriving at the new facility, McMillan claims that officers indicated to him they knew he had told on one of their colleagues and called him a “troublemaker.”

“Survivors describe devastating sexual violence, often at the hands of staff. Worse still, they explain that when they report abuse, they are ignored, disbelieved, or even punished.”Jesse Lerner-Kinglake, Communications Director, Just Detention International

Those who have been sexually abused in Florida’s prisons have attempted to be heard in other ways. “We receive letters from prisoner rape survivors in Florida on a regular basis,” said Jesse Lerner-Kinglake, the communications director for Just Detention International, an advocacy organization that works to stop prison rape. “Survivors describe devastating sexual violence, often at the hands of staff. Worse still, they explain that when they report abuse, they are ignored, disbelieved, or even punished.” Reporting sexual abuse might well mean a trip to solitary confinement, according to the state’s historical data. Nearly three-quarters of Florida inmates who report being sexually abused are placed in administrative segregation or protective custody (i.e. solitary), compared with 34 percent nationwide.

McMillan said he was placed directly in solitary after reporting being raped, and has since filed a lawsuit against Florida’s prison system alleging the violent assault he suffered violated his constitutional rights. In his work on the case, McMillan’s attorney, Josh Glickman, has reviewed hundreds of documents that he says illustrate “a culture where officers were at complete liberty to physically and sexually abuse vulnerable inmates in their custody, without fear of repercussions.”

Despite claims that reporting was discouraged, the PREA data shows that many Florida inmates have complained about sexual abuse over the years; it’s just that the department almost never classifies those incidents as genuine. Between 2009 and 2011, Florida substantiated fewer than 1 percent of the more than 2,500 reports of sexual victimization in its prisons. In comparison, the nationwide substantiation rate was between 8.5 and 9 percent in the same period. Florida ranked 48th or 49th among the states in each of those years for the percentage of cases it substantiated.

While PREA statistics provide a broad, national overview of rape in American prisons, the data is not broken down to the facility level. Florida’s PREA incident reports were obtained by The Marshall Project under the state’s freedom-of-information law. A review of the documents reveals that McMillan’s rape was not the only incident of staff sexual misconduct that the state left out of its reports. In 2013, a female prison guard was arrested for allegedly having a sexual relationship with an inmate that same year, but that incident was not included in the PREA reports. Florida’s whistleblowing inspectors have alleged that while investigating this particular guard, they faced retaliation. In court records, prison inspector Aubrey Land described another investigation featuring a guard accused of meeting an inmate’s girlfriend at a hotel for sex and agreeing to carry contraband into the facility. Land testified he was told by Inspector General Beasley to “slow walk” the process so the officer could “resign without being under investigation.”

Florida prison officials would not comment on any particular cases of sexual abuse, but said they take investigations seriously and submit each report that is required.

In 2013 the state stepped up its PREA reporting, listing 39 substantiated incidents of sexual abuse, more than in the previous seven years combined. Kendra Prisk, Florida’s PREA coordinator, said the jump in substantiated claims resulted from improvements in the education of inmates and staff, which has helped the state better investigate claims of rape.

But the higher number is still only 2.8 percent of the 1,400 abuses reported to prison officials. And this slightly higher rate of substantiation has not applied to reports of abuse by staff. Out of 834 allegations made by inmates against staff in 2013, PREA records show that just five of those complaints were substantiated. Those statistics represent “a fantastical scenario,” said Just Detention’s Lerner-Kinglake.

Since staff investigations often take longer than other sexual-abuse claims, Allen Beck, senior statistical advisor for the Bureau of Justice Statistics, says that those incidents are also less likely to make it into a state’s annual PREA report. He estimates that the PREA data misses as many as 10 percent of cases in which a corrections officer was the accused perpetrator of the abuse. Said Beck, “The actual occurrence of rape and sexual assault that goes on is really unknown still.”

The bureau, he said, does not have a mechanism for checking state statistics to ensure accuracy. “We’re not an investigative agency,” Beck said. “We rely on the veracity of those self-reports.”