OVC Provider Forum Transcript

Helping Incarcerated Victims of Crime
Linda McFarlane, Jeralita Costa  -  2016/5/24
Can organizations funded through VOCA provide services to incarcerated victims who have been victimized in prison or have a prior victimization not related to incarceration?
1.  Jeralita Costa
 Thank you Linda. JDI is a great resource for this kind of information! While VOCA funds are currently not able to be used for services to incarcerated victims, it is good to note that VAWA funds may be used for the purposes of “developing, enlarging, or strengthening programs addressing sexual assault against men, women, and youth in correctional and detention settings.”
2.  Heydon
 Score! I am so glad to hear this will be changing. It can be a real challenge to serve crime victims when they're incarcerated - especially with complex victimizations like DV and/or elder/child abuse in play. Thanks for that link!
3.  Linda McFarlane
 The short answer is “Yes.” While the current VOCA program guidelines prohibit funds from being used to serve currently incarcerated people, the rules do not prohibit agencies from using other funds or volunteers to serve incarcerated victims. It should be noted that it is anticipated that the rule will change quite soon. Sign up for JDI’s listserv (http://justdetention.org/#) and check OVC’s website for updates.
Do you have any good training materials to educate our victim service staff about PREA?
1.  Linda McFarlane
 Yes, there are lots of training materials available. I am not sure what type of agency you work at, but for advocates, there are resources here: http://justdetention.org/webinar/ For corrections staff, there is a victim services training curriculum here: http://www.prearesourcecenter.org/node/1912 If you are looking for something specific, let me know and I might be able to point you to it.
2.  Jeralita Costa
 There are a wealth of resources available at www.justdetention.org and also at http://www.prearesourcecenter.org
Hello, I am a Victim/Witness Specialist in a very busy County in MD. I have run across a situation many times when a defendant violates a no contact order on the sentence he/she is currently serving and has a period of Probation ordered as well. What is the recourse for this victim while the defendant is incarcerated? There are many opinions on this.
1.  Jeralita Costa
 It depends on your state’s laws and the specifics of the order. If it is a court order of no contact, it should be enforceable as a new law violation. If it is merely a condition of probation, then it is handled as a violation of probation according to the rules that govern in your state. A good resource for more information about your state’s victims’ rights laws is www.ncvli.org You can also find out more information or have an attorney take a look at the laws for you by contacting www.NAVRA.org
2.  Steph Brandquis
 Yes, but the sentence has been given, it is being served. The contact is now a Violation of the Probation. This is a GRAY area.
3.  Linda McFarlane
 PART 2: However, if I were advocating for someone in this situation, I would help them to contact the facility to inform the facility administrator of the violation. Most corrections facilities monitor mail and phone calls, so it should be easy to prove that contact occurred. I would then help the victim to report to whatever authority would take the report for a violation in the community (DA’s office or police, usually). If the victim were incarcerated, I would take the same steps. Of course, in both cases, making sure to gain the survivor’s permission before contacting anyone on their behalf.
4.  Jeralita Costa
 Your question is not specific to the topic of incarcerated victims; however, when someone is incarcerated and still violating a no contact or restraining order, the victim should be encouraged to report to law enforcement so that new charges can be filed. In many jurisdictions violations of the no contact order while the offender is incarcerated are treated as a new crime. If the jail is made aware of the violations, they can record phone calls which can be used as evidence for the new charges.
5.  Linda McFarlane
 PART 1: Can I clarify — are you saying that the defendant, or perpetrator, is incarcerated, has a no contact order and writes to or calls the victim from prison or jail? If I understand your question, the victim should have the same recourse as any other victim. I found a useful description of MD protection orders here: http://www.peoples-law.org/protective-orders. As in most states, what would constitute a violation of a protection order would depend on the parameters of the order and the nature of the violation. I am not an attorney, so this is not legal advice.
Does an incarcerated victim have the right to attend any court hearing related to the crime of which s/he is a victim? Or does court ordered incarceration trump his/her right as a victim to attend?
1.  Jeralita Costa
 Part 2. However, if they are not going to be called to give testimony, it is true that their incarcerated status may trump that right based on the security risk of the incarcerated individual. Additionally, if an incarcerated victim/survivor is granted furlough to attend the court proceedings, there may be a cost involved for correctional staff to escort them to and from the proceedings. Generally, the superintendent/warden makes the call on this with input from the victim services program if the department has one.
2.  Jeralita Costa
 Part 1. If your state has a constitutional amendment or statutes that gives victims the right to attend any hearing or court proceeding that the defendant has a right to attend, then the answer is yes. Additionally, if they are required as a witness, they may be transferred to the jail in the county where the hearing/proceeding will take place.
3.  Linda McFarlane
 I am not aware of any jurisdiction in which a crime victim loses their rights because they are incarcerated. Again, in practice, it is sometime more difficult. I would refer to the crime victim's rights laws in the state and work with the facility to create trauma-informed practices.
Does the inmate have a right to report with the presence of a community-based rape crisis advocate?
1.  Donna Mathews
 Linda, thank you for your thoughtful replies. I think this will help us in our work with incarcerated individuals and with jail facilities going forward.
2.  Linda McFarlane
 PART 2: Because the holder of privilege is the survivor, what is most important is that they be given information to make an informed choice. If they know the rape crisis hotline is monitored or that a jail administrator gets a notice, they can choose whether they want to reach out anyway, knowing it could be discovered. The rape crisis program does have to follow state guidelines and their own policies around confidentiality, which almost always require that they do not report back to the facility, except in very limited circumstances.
3.  Linda McFarlane
 PART 1: There are not any interpretations as to what it means. The standard requires that the facility notify prisoners the extent to which communications will be monitored. The standards are a floor when it comes to victim services — the minimum required — and lots of advocates and corrections departments are working together to create better, trauma-informed, practices. For example, several jurisdictions give mail to rape crisis programs the same status as mail to attorneys.
4.  Donna Mathews
 Related to the ability to privately speak with an advocate within PREA provisions, are there any interpretations of "in as confidential a manner as possible"? What about notice of an out-going call going to an Administrator responsible for danger reduction? What about the real-time screening of those calls out of concern for safety and liability? It is my understanding that calls going to advocates cannot be reported back to these administrative people by the advocate due to confidentiality requirements.
5.  Linda McFarlane
 PART 2: In practice, being able to have an advocate present when they actually report, would mean that the survivor has a way to contact an advocate confidentially to request that help. While the PREA standards require access to services, it is "in as confidential a manner as possible," in recognition of prison phone and mail systems that are not always confidential. (http://www.prearesourcecenter.org/training-technical-assistance/prea-101/prisons-and-jail-standards, see standard 115.53). It would also mean the local rape crisis or victim services program has the staffing to provide this level of advocacy. This certainly represents a best practice, and one we should be striving for as we set up programs for incarcerated survivors.
6.  Linda McFarlane
 PART 1: That’s an interesting question. Some of that depends upon victim’s rights statutes in your jurisdiction. In general, incarcerated survivors have the same rights as any other survivor. In states where sexual assault survivors have the right to an advocate at forensic exams and investigatory interviews, incarcerated survivors do as well — and this is backed up by the PREA standards (see http://www.prearesourcecenter.org/training-technical-assistance/prea-101/prisons-and-jail-standards, standard 115.21).
How do inmates get medical or mental health services without reporting? What are the confidential channels?
1.  Linda McFarlane
 PART 2: Medical staff members would be required to report any direct knowledge or suspicion of a crime that occurred in the facility, but the survivor cannot be denied care because they decline to name the abuser or participate in the investigation. How this works in practice varies facility to facility, depending on the training and understanding of the medical and security staff. This is definitely a place where advocates and corrections can work together to create a trauma-informed victim services program.
2.  Linda McFarlane
 PART 1: That depends a great deal on the actual facility, so my answer is going to be general. In many facilities, there is a sick call or medical request slip that can be handed to a medical staff or placed in a locked box. Usually, prisoners can request services without disclosing the exact nature of the complaint to staff members. The prisoner could request specific services without disclosing the reason for the request.
What are the proper channels to address retaliation for reporting? What can inmates do? What can advocates do?
1.  Linda McFarlane
 PART 2: As an advocate, it is of course important to ask the survivor what they want to do. If the survivor wants it reported, but doesn’t feel safe reporting, the advocate would gain permission to contact the facility PREA Coordinator or investigator to report on their behalf and make recommendations for safety.
2.  Linda McFarlane
 PART 1: Every facility is required, by the PREA standards, to have multiple ways for survivors and for third-parties to report sexual abuse, sexual harassment, and retaliation for reporting such abuse. Inmates should be able to report verbally, in writing, to an outside entity, anonymously, and to a third party (like a family member or friend). Also, if they have already reported, they should have the name or contact for the person who is conducting, or conducted, the investigation — because retaliation amounts to witness intimidation, the investigation team should take an interest.
Given the burgeoning awareness of options like Restorative/Transformative justice, how do you think that will impact the plight of incarcerated crime victims?
1.  Jeralita Costa
 It is important to remember that individuals who are harmed by criminal acts, whether while in the community or incarcerated, are entitled to the same services and rights, unless there is a specific statute that excludes them from those rights or services.
2.  Linda McFarlane
 That's a great question! I think that restorative/transformative justice programs inside facilities are almost always geared to helping victims on the outside and perpetrators in detention to gain closure. I think that similar approaches could be used to help incarcerated survivors and to rethink how to hold perpetrators accountable. I haven't seen it yet, but would be very interested!
3.  Jeralita Costa
 Restorative justice options MUST be victim/survivor initiated. Incarcerated victims/survivors may be provided information about the availability of programs such as Victim Offender Dialogue (VOD) and Apology Letter Banks, if those are options available to them in their jurisdiction. The choice of involvement in any restorative justice program MUST be initiated by the victim/survivor.
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