Women Offender Programs and Issues

The Cross Gender Monitoring Project
3rd and Final Annual Report

b) Advantages and Disadvantages of Cross Gender Staffing: Conclusions and Recommendations

The issue of employing males in FSW facilities is indeed complex. In our interviews and consultations, we were presented with a wide array of opinions and perceptions. Many of these echoed the issues and concerns raised by Madam Justice Arbour referred to in the Introduction to this Section.

Gender integration is a controversial proposition. It must take into account the dignity and safety of inmates and workers. At the heart of the controversy is how it is possible to protect the dignity and safety of both inmates and staff and provide the best possible protection for women prisoners with respect to privacy violations and sexual misconduct by staff and other non-inmates. In addition, we must examine how it is possible to apply fair employment practices.

As mentioned, the rationale for employing male workers as front line workers in women's prisons embraces two main themes. The concepts of merit and fair employment practices are key to unions and their members. Under these concepts, employers should hire and promote based on the knowledge, skill and experience of workers, not their gender, race or ethnic background, perceived non-disability status, or sexual orientation. All workers, male and female, should be treated fairly and in accordance with collective agreements. In relationship to staffing in penitentiaries, the union proposes that male front line staff should be hired in women's facilities on merit and should be allowed to do what women correctional officers are allowed to do in male facilities. It is also proposed that this similarity in function and restrictions is required in light of equality guarantees of the Canadian Charter of Rights and Freedoms.

The other main rationale for employing males in front line positions in women's facilities is the rehabilitation and reintegration value of having positive male role models working as Primary Workers in women's facilities. Many, if not most, Federally Sentenced Women are survivors of sexual and physical abuse and many have never experienced a positive relationship with a respectful, kind and non-discriminatory male. Employing qualified males in front line positions would provide FSW with the experience of working and getting to know competent and caring men to assist them in healing past abuse.

Those who propose not allowing males to work in front line positions base their rationales on three main concerns. The first is the increased risk for privacy violations and sexual misconduct as well as the related issue of increased fear and flashbacks to earlier abuse by of males entrusted with authority. The perceived or actual potential for further sexual abuse/misconduct can interfere with the healing process for many women prisoners. It is also reasoned that the high percentage of sexual abuse experience among women prisoners, particularly from males in trust relationships, justifies female only front line workers. It is proposed that the equality provisions of the Canadian Charter of Rights and Freedoms do support protection of privacy and security of the person for women prisoners.

Another fundamental thesis is the challenge to the notion that women prisoners will experience a normalizing environment if males are employed in front line security positions. It is argued that the very nature of the power imbalance inherent in this relationship of prisoner and guard cannot be seen to be normalizing. A normalized positive relationship between a male and female can only be in the context of a greater balance of power. While it is true that most FSW females do not enjoy full equality with males in the community, the profound power of front line workers over the daily lives of women prisoners is at the opposite end of the continuum.

A third concern relates to the impact on female Primary Workers of necessary restrictions on the role of male Primary Workers in women's facilities. Women PWs must do all the invasive security duties, often reducing their role in counselling, release planning and program delivery. Female PWs also must assume a substantial amount of night work. Male PWs are essentially doing a different job, it is argued, one that is understandably more popular with women prisoners, as males do not perform strip searches, urinalysis, frisks and patdowns. Women staff are therefore seen as disadvantaged and their conditions of employment are negatively affected by having male PWs.

The need to address the controversy inherent in cross gender staffing is evident when we look south of the border for the consequences of not having an effective policy protecting women prisoners from sexual misconduct. The American prison system was condemned in two reports citing widespread sexual abuse of female prisoners. While Canadian correctional practice operates on very different principles than the US, Canadians need to be mindful of the potential for abuse. A December, 1996 report by the Human Rights Watch in the United States, entitled All Too Familiar: Sexual Abuse of Women in U.S. Prisons, graphically documents forms of abuse female prisoners endure. The 1998 Amnesty International, report entitled `Not part of my sentence' Violations of the Human Rights of Women in Custody,¹⁵ called for female inmates to be supervised by female staff only, and for victims to be more effectively protected from retaliations if they report abuse. The report states that the reporting of rape and other forms of sexual abuse are probably the tip of the iceberg and Amnesty International is calling for female imates to be supervised by female staff only.

Submissions from a number of organizations emphasized the need for Canada to uphold its international commitments in human rights, including our agreement to voluntarily implement the United Nations Standard Minimum Rules for the Treatment of Prisoners. These standards commit Canada to female only front line workers in female facilities.

In our Second Annual Report, we recommended that male Primary Workers could remain a part of the staff of federal facilities if and only if all of the following were implemented:

• recruitment, screening and training policies and procedures remain fully in place, with a return to the 10 day Women-Centred training;
• effective policies are in place and enforced that specify appropriate roles and restrictions for male Primary Workers;
• the needs of the significant minority of Federally Sentenced Women who feel very strongly that they are not willing or not able to deal with males in the living quarters at night are accommodated and respected in policy and practice; we also recommended that this be accomplished by not permitting males in the living units after curfew;
• that male PWs not exceed 20% of the PW staff complement.

In site visits for this final report, we found the following with respect to the four "if and only if" minimum safeguards:

• in a number of institutions, there had been no screening or training for as much as nine months for Primary Workers. Our findings indicate that 26 of the 82 staff who responded still had no women centred training, and a further 24 had a much shorter version. A significant number of male correctional officers had transferred directly from male penitentiaries to several women's facilities without any screening. These men were still awaiting women centred training at the time of our interviews nine months later;
• where there had been training, the number of days of training ranged from two to five days in total, reduced from the original ten days of training;
• the National Protocol was being partially or largely violated, aside from strip searches, and frisks/pat downs in all institutions employing male PWs. It is important to note that not only did FSW respondents identify a significant number of protocol violations and incidents of privacy violations and sexual misconduct, staff also identified such incidents, although with less frequency. In most institutions, male PWs were not announcing their presence, were not knocking before pulling back privacy curtains, were participating in cell extractions, and were engaging in single counts or pairing up with other males even at night. It is important to note that the number of incidents of women being exposed in a state of undress or nude did increase during this period;
• The broad-based purposeful non-compliance by many staff with the National Protocol suggests that at best the training was ineffective in creating an understanding of why such restrictions are necessary, and a commitment to compliance;
• In interviews, 59% of staff stated they were only "somewhat familiar" or "not at all familiar" with the Protocol and 74% could not name a single provision in the Protocol; and,
• The concept of a quota is hard to implement and must necessarily involve decision-makers beyond CSC. It is a controversial concept. On the other hand, concern was expressed by some prison managers that, without such a cap, there would be a dramatic increase in the number of male PWs, given imminent vacancies expected in these positions.

There appears to be little system-wide understanding of the need for and strict enforcement of particular policies and practices designed to protect women prisoners from privacy violations and sexual misconduct. Notions of equality by many at all levels, institutional, regional and headquarters, are often based on same treatment approaches, that is to say that male PWs in women's facilities should be able to do exactly what women front line workers in men's facilities can do. An understanding of substantive equality recognizes the differences between these two situations, gender/power dynamics, and the effects of sexual abuse on women. For example, while privacy violations may have negative effects on male and female prisoners alike, the implications for a woman prisoner of being viewed undressed by a male front line worker are different than a male prisoner being viewed in the same way by a female front line worker. Where both male and female inmates may experience embarrassment at being viewed by a staff member of the opposite sex, the female is more likely to feel fear, degradation, and violation. The social and personal context of women's experience of being a target for male violence is likely to be on the female's mind. Even among those who did receive training, many could not remember the content of it nor could they articulate the reasons for restrictions on male PW's as outlined in the National Protocol. The training for front line staff certainly did not create an awareness of the need for restrictions or the nee for a woman centred approach. In addition, enforcement of the National Protocol to address violations does not exist.

The penitentiary system has been designed for male inmates. Federal prisons house as many as ten thousand males and only a few hundred women each year. The duty to effectively and equitably rehabilitate and reintegrate women prisoners costs considerably more per capita. In this social and historic context, it is critical to plan for higher costs for program development, delivery and management in a permanent manner. It is equally important that maximum resources be made available where FSW serve their sentences in the institutions. While CSC and the Federal Government have clearly committed increased resources to women prisoners in creating regional facilities for women, there is a need for permanent additional funding for the specific selection and training of staff as well as the systemic work that needs to be undertaken to change the organizational culture with respect to substantive equality measures.

Another fundamental shift occurred this past year, in the development of a greater understanding of the complex gender equality issues. From the responses of FSW and staff on each aspect of the cross gender staffing Protocol, a clearer overview emerges. The majority of FSW and the majority of staff respondents, concur that the functions that are contact security functions, usually described as front line work, are not appropriate roles for male Primary Workers. Of particular interest is the shift in position by FSW with respect to males being allowed into living units at night. The majority of women respondents now do not want males in their living units at night. The degree to which this relates to the increase in privacy violations and the suspension and/or erosion of screening and training, can only be speculative. From this overview, it is fair to say that when Federally Sentenced Women have endorsed employing male Primary Workers, they want access to males in counselling, programming and pre-release planning functions. They do not want males performing contact security functions. As the Primary Worker position combines frontline security work with the other counselling/programming functions, the only way for women to have access to males in these non-security functions under the present approach is to have male Primary Workers remain while not performing contact security functions.

Several other trends have become apparent during the past year. There has been a significant turnover of male and female PWs in most facilities for Federally Sentenced Women. This has created immense staffing pressures. Contributing factors to this turnover appear to be:

• As mentioned, dissatisfaction among female staff with the heavy emphasis on security functions rather than programming and counseling functions. In order to accommodate the restrictions on the roles of male PWs, female PWs have had to assume night shifts and contact security functions disproportionately. Respondents noted that the situation of only women staff performing invasive security procedures has had a number of effects. Male and female PWs are actually performing different jobs. Women PWs spend significant portions of their shifts doing the "dirty work" rather than doing the work they thought they would largely be doing, i.e. counseling, release planning, program delivery. These skills are being underutilized as a consequence and many move on.
• Male Primary Workers have expressed frustration with limitations on their role. Males are sensitive to and perceive restrictions on their roles as an insult to their individual commitment to professionalism. These workers want to carry their full work responsibilities, to fulfill all aspects of their job, competently and completely. Their perception is they are "being viewed as potential harassers and rapists" regardless of who they really are. At the same time males recognize their gender based vulnerability in working with a female population that largely shows reactive problematic sexual behaviors. Male PWs also expressed concern about the overburden on female colleagues with respect to custodial functions and night shifts. They would like to do their share but the National Protocol prevents them from doing so. This frustration along with the perceived insult to professionalism may have contributed to the turnover in male Primary Workers.

The initial staffing of Primary Worker positions involved public recruitment, which drew in most cases hundreds of applications from women and men with appropriate experience with girls and women. This outreach approach to staffing appears to have been set aside with the result that the only pool to staff these positions is from new general recruits and lateral transfers from male penitentiaries.

These situational factors in total, plus budget freezes, had a cumulative effect of periodic suspension of training and screening of Primary Workers, and subsequent National Protocol violations.

In summary, in light of:

• the extensive, and in many cases purposeful, violations of the cross gender protocol;
• the inability of training to change the attitudes, which are systemic, that the cross gender protocol is unfair and discriminatory as opposed to essential and equality based;
• the extended suspension of screening and training including for male correctional officers laterally transferring in from male penitentiaries;
• the shift and greater clarity in the positions of the majority of female inmates with respect to not wanting males to perform contact security functions;
• the fact that the protocol has created a situation that negatively impacts on the roles of female PWs and implicitly creates a different job for male PWs;
• the confusion and demoralization on the part of male PWs by the necessity of having restrictions on their roles as required to protect the privacy and security of women inmates;
• the historic systemic status of Federally Sentenced Women in the penitentiaries and the related higher resource requirement for the custody, care and reintegration of female prisoners;
• the evolution of substantive equality as it relates to Primary Workers and Federally Sentenced Women including that Canada is a signatory to the U.N. Standard Minimum Rules for the Treatment of Prisoners committing Canada to female only front line workers in female facilities.

We have come to the conclusion that these standards, including the need for female only front line workers, are essential minimum standards to protect these vulnerable women from sexual misconduct. Based on these conclusions, we make the following recommendations.

Recommendation 1:

It is recommended that males should not be permitted to be front line Primary Workers. This would include not being permitted to act in a security function with respect to living and segregation units, cell extraction teams regardless of time of day, and escorts of any kind.

As noted earlier, the Monitoring Project's mandate was extended to include the protection of FSW from sexual misconduct by any non-inmate. It is essential, therefore, that there be a broad based approach to preventing sexual misconduct and to effectively and fairly dealing with such allegations. A subsequent section will address how allegations of sexual misconduct should be handled. This section will deal with the prevention of privacy violations and sexual misconduct by any non-inmate.

The number of privacy violations by male Primary Workers against female prisoners increased in the past year. Aside from the increased number of privacy violations largely involving male PWs, the vast majority of sexual misconduct allegations made by Federally Sentenced Women were against people other than male PWs. (The section on Findings describes more fully the alleged incidents that came to the Co-Monitors' attention during the course of our work.) Clearly, protecting FSW from sexual misconduct by any non-inmate must include screening out people with inappropriate attitudes and behaviour, and hiring people who have appropriate attitudes, knowledge and experience. The best way to ensure proper conduct is to hire the right people for the situation. In addition, women centred training would then prepare these individuals to work with the unique needs and vulnerabilities of women prisoners.

Certainly screening and training of workers and volunteers, enforcement of effective protocols and policies, and restrictions of males concerning front line security work are part of effective prevention strategies. The content of training, initial and ongoing, must include sufficient and appropriate information about sexual harassment and sexual misconduct. Part of this training should include:

• the content and rationale for laws, policies and restrictions designed to protect FSW from privacy violations and sexual misconduct;
• the need to respect professional boundaries, and the nature, power dynamics and responsibilities of fiduciary relationships; and
• a description of who is particularly at risk, high risk situations, and the effects of sexual misconduct on the victim in order to be better able to avoid, detect and report violations.

Recommendation 2:

It is recommended that all persons working in a facility for Federally Sentenced Women, including regional treatment centres and community correctional centres, be screened and undergo women-centred training to ensure appropriate attitudes, knowledge and experience. The women-centred training should be at least ten days in addition to core training. Screening should include checks for criminal convictions of a sexual nature.

As noted earlier, there has been an historic lack of recognition that there must be permanent funding set aside to properly staff institutions housing women and these funds will likely be significantly more for women per capita than men. There has been recent progress in this area as more money is being spent per capita for female inmates, including selection and training. Some erosion of this money has already occurred in the last year. This recommendation would necessitate more permanent funding being set aside and the protection of what funds are available for the exclusive use of facilities housing federal women. Individual respondents and Stakeholders strongly endorsed the need for sufficient and permanently funded selection and training for all staff. In light of the liability issues already discussed, it is essential that CSC demonstrate that it has taken all steps possible to screen out inappropriate workers re sexual misconduct concerns, and that adequate training to ensure appropriate behaviour and compliance with policies, protocols and legal requirements are assured through training.

Recommendation 3:

It is recommended that sufficient funds be allocated for effective screening, as well as initial and ongoing women centered training, and be permanently provided and completely protected for each facility housing Federally Sentenced Women.

The risk for privacy violations and sexual misconduct, including sexual assault, lies not only in the context of security functions performed by males. Alleged incidents over the past 27 months have occurred in a number of elevated risk situations involving other male staff, contract workers and volunteers, as well as female PWs. Situations that inherently elevate risk issues include:

• opportunities for a potential perpetrator to be alone with a FSW, especially in an unobserved area;
• the potential perpetrator is in a trust or authority position;
• the potential perpetrator is in a position to reward or punish a woman prisoner for compliance or refusal;
• physical contact is part of the duties, such as frisks, pat downs;
• where purported security concerns systematically override privacy rights such as not announcing the presence of a male in living units or not knocking before pulling aside privacy curtains; and
• the potential perpetrator has intimate knowledge of the victim.

There are staff and contract positions in most facilities for Federally Sentenced Women where there is intrinsically an elevated risk, both for an incident of sexual misconduct to occur as well as for the worker to risk an allegation. These positions such as recreation personnel, maintenance workers, shop instructors, religious/spiritual counsellors, and officers handling stores and personal supplies for inmates often involve situations where these males are frequently alone with a FSW in a non-observable area. We repeatedly heard that building designs are such that the Protocol is regularly violated by allowing women to be alone with a male worker in these non-observable areas. Some respondents recommended female-only positions for certain kinds of programs, particularly the facilitator of programs for survivors of sexual abuse. Additionally, protocols should ensure that elevated risk positions, where they are not filled by women, should be situated where observation is ongoing.

Recommendation 4:

It is recommended that elevated risk positions either be filled by females only or changes should be instituted, such that, women are never alone with a male worker in an unobservable area. In addition, a review of all positions should be undertaken by the office of the Deputy Commissioner for Women Offenders to determine if any positions or contracts should be female only. Any such exemption should be directly related to elevated risk of sexual misconduct against Federally Sentenced Women.

Given this set of recommendations, the next question becomes how to implement such potentially controversial recommendations. Under the Canadian Human Rights Act, a policy of hiring only women PWs can be justified as a bona fide occupational requirement and as such would constitute an exception to the Act's prohibition against sex discrimination in employment. Other measures under the Charter of Rights are also possible. These concepts are discussed in detail in the following section.

15 Human Rights Watch (1996) All Too Familiar: Sexual Abuse of Women in U.S. State Prisons. pp.1-2