Trans Women Who Report Abuse in Prison Are Targets of Retaliation

For trans people in the U.S., 2020 might be a record high year for fatal violence. As tens of thousands of people poured into the streets to declare #BlackTransLivesMatter in June, six Black trans women (Brayla Stone, Merci Mack, Shaki Peters, Draya McCary, Tatiana Hall and Bree Black) were found dead within a nine-day period. At the end of July, two other Black trans women (Queasha D. Hardy and Tiffany Harris) became the 20th and 21st trans women murdered this year. “If this rapid pace continues through the year, 2020 will set a record for violence against the transgender community,” wrote Devin Norelle.

The killings of trans and gender nonconforming people disproportionately target Black trans women and trans women of color. In 2018, 82 percent of trans people killed were trans women of color. In 2019, 26 trans women died from fatal violence; 20 of those women were Black. A report by the Human Rights Coalition found that, of fatal violence in the trans and gender nonconforming communities between 2013 and 2018, 95 of the 128 victims identified were Black or African American and at least 103 were trans women of color.

Behind prison walls, trans women are also targeted for physical, sexual and fatal violence. When they attempt to report their assaults, they are subjected to additional violence from both prison staff and those around them. Trans women in men’s prisons are 13 times more likely to be sexually assaulted than cisgender men. According to data provided by CDCR, over 50 percent report fearing for their safety if they report harassment, discrimination or violence.

“There is a pervasive problem of not believing and dismissing complaints of [transphobic] harassment because it’s so normalized,” said Jen Orthwein, an attorney with Medina Orthwein LLP, a queer-owned civil rights law firm, who has represented trans women in California prisons. Orthwein also notes that, within prisons, authorities often perceive trans people to be the perpetrators of violence, even when they have been the victims of sexual abuse and harassment. While there is no data about the intersections of race, gender identity and retaliation for reporting sexual abuse, they note that they have seen ongoing retaliation against trans women of color who report sexual abuse.

That’s what happened to Orthwein’s client C. Jay Smith, a 59-year-old Black trans woman who is now suing the California Department of Corrections and Rehabilitation (CDCR) for failing to protect her from continued sexual harassment and assault and retaliating when she reported sexual abuse. While her story is not unique among trans and gender nonconforming people imprisoned across the nation, it is indicative of the ways in which prison officials treat complaints of sexual abuse and harassment, particularly by Black trans women and women of color.

“I would never have reported any of this [abuse] if I knew I would go through this,” Smith told Truthout.

“You Are Not the Victim. You’re Always the One Being Accused.”

San Quentin is one of less than a dozen California prisons designated as appropriate for transgender people. But Smith’s lawsuit charges that the prison has been far from safe for her.

Under the Prison Rape Elimination Act (PREA), prison officials must offer trans people the opportunity to shower separately from others. But San Quentin staff consistently failed to provide that opportunity to Smith and other trans women. Smith was often forced to shower either with, or in full view of, dozens of men in custody. She has been openly harassed, stared at and stalked.

In 2013, Smith was violently raped from behind, but did not see the assailant. She did not report the attack. “In the past, when transgender inmates report anything, they lock you up and transfer you. You are not the victim. You’re always the one being accused,” she told Truthout. “From experience, you’re locked up and you’re thrown away. I had come too far for that. I didn’t want to ruin my chances of being allowed to take advantage of rehabilitation [at San Quentin]. How would it look if I reported the assault and I didn’t know who did it? I decided not to report it for my own safety, so I could get a new start.”

Five years later, in 2018, Smith became the target of pervasive sexual harassment and assaults by an incarcerated man known as “Prado.” In early 2019, Prado was moved to the cell next to hers and began throwing paper airplanes and other objects into her cell. When near her, he slapped her butt or grabbed her breasts. He exposed himself while watching her shower or standing at the entrance of her cell.

Smith reported his actions to prison staff, who did not intervene. Prado escalated his harassment, exposing himself and demanding oral sex. Smith requested that staff remove Prado, but they refused. The abuse continued.

At one point, when Prado exposed himself, he drew her attention to what appeared to be a large marble-shaped object inside the head of his penis, taunting “Remember, you liked it.” His words made Smith realize that Prado had been the person who had raped her in 2013. Shortly after, Smith told a prison lieutenant, B. Haub, about Prado’s harassment and requested that he be moved. When Haub refused, she requested that she be transferred to another cell. He refused that request as well.

On March 6, 2019, Smith reported the sexual assaults to a mental health clinician, who then filed a PREA report. After leaving the clinic, Smith was stopped by Haub, who escorted her to an Investigative Services Unit (ISU) trailer, then shoved her against a wall, searched her breasts using the palms of his hands, and locked her in a 3-foot-by-3-foot cage. While inside the cage, she was questioned for hours by ISU officers, who called her a “liar,” a “drama queen” and an “attention seeker.”

Under the Prison Rape Elimination Act, Smith should have been given access to outside advocates, a victim support person during the investigation and a victim advocate. She was offered none of these. Instead, officers ordered her to provide a urine sample, later claiming that they suspected her to be under the influence of a controlled substance. When she was unable to urinate, they issued her a rules violation report for failing to provide a urine sample.

Escalating Retaliation

During a cell search three days after her interrogation, an officer groped Smith, then tossed and tore apart her belongings, including letters from her mother who is deceased. Officers threw away many of her personal items and, claiming that a broken statue was a makeshift weapon, wrote her a violation report for possession of a deadly weapon. Smith was placed in administrative segregation, a form of isolation in which a person is locked in a cell 23 to 24 hours each day without their belongings. When she appealed the charge, Warden Ron Davis wrote, “You initiated an investigation by San Quentin ISU when you claimed to be the victim of PREA. During the course of that investigation you were found to be in possession of an inmate manufactured weapon resulting in your ASU Placement.” The district attorney pursued the weapons charge with the threat of an additional 10-year prison sentence. (In July 2020, after receiving over 100 calls and comments, the district attorney dropped the charges.)

In May 2019, prison officials informed Smith that her PREA allegation was unfounded, meaning that, after investigation, the allegation was “proven not to have occurred.” This isn’t unusual — that year, approximately 25 percent of California’s PREA investigations against other incarcerated people were deemed unfounded. That percentage rose to nearly 50 percent for complaints against prison staff. That same day, prison officials listed Prado as Smith’s confidential enemy, a classification that meant that the two could not be housed in the same prison. Smith was transferred from San Quentin, where she had been attending GED classes and participating in both the Inmate Advisory Council and the California Reentry Institute. Now at the California Medical Facility (CMF), she is not allowed to work or participate in prison programs until her ticket for the possession of a deadly weapon is adjudicated.

CDCR’s own data collection shows that correctional staff disproportionately target and retaliate against transgender women when they report PREA allegations. Data collected in December 2019 from transgender and other gender variant people in CDCR custody reveal that over 50 percent of that population in CDCR facilities designated for men fear for their safety if they report harassment, discrimination or violence perpetrated against them.

In late 2019, CDCR officials and community advocates met with transgender and gender variant people in custody at all the prisons designated for transgender people to conduct surveys and listen to individuals’ experiences in custody. By then, Smith had been transferred to CMF. She was one of 10 trans women who attended and discussed their experiences of sexual assault in prison. “I told [CDCR officials] that I would not recommend any of these women report anything to staff at their institutions because the institution is going to take care of themselves before the girls,” Smith recalled. “The [correctional counselor] took down my name and number and told me she would look into my case. I never heard anything back. What they were saying to us was totally rehearsed. None of us heard back from any of them. Not one of us.”

“I’m Not Going to Make It Out of This Prison Alive If I’m Left Here Any Longer”

Syiaah Skylit is a 30-year-old Black trans woman who has been incarcerated in multiple California men’s prisons. In May 2019, she was transferred to the Kern Valley State Prison. Shortly after, she witnessed an incarcerated man named David Brieby attack another trans woman. Although Skylit provided testimony in the ongoing criminal case against him for attempted murder, prison officials attempted to place Brieby on the same prison yard as her. When Skylit expressed concerns for her safety, she was placed in administrative segregation (ad seg), in which she was locked into her cell for most of the day. Brieby attacked a gay man on the yard and was also placed in ad seg.

Once again, Skylit expressed concerns for her safety. Prison officials transferred her to another yard — where they later transferred Brieby. On April 10, Brieby assaulted Skylit.

To protest the prison’s indifference to her safety, Skylit engaged in a hunger strike. In response, prison officials placed her on suicide watch, a form of confinement in which she was stripped of all of her possessions and placed in isolation.

On April 15, Skylit was released to another yard where she was attacked by another person, then sexually assaulted with a baton by an officer. She filed a PREA complaint against the officer. Like Smith, she was not offered a victim advocate or support person. As of August 6, she has not received any documentation related to the investigation.

That same evening, officers entered Skylit’s cell, stripped her naked, put her clothes and property on the tier (corridor outside her cell) for others to take and then left her naked without a mattress or blanket until the next shift, when another officer provided her with a blanket and clothing. The next morning, other officers punched, kicked and maced Skylit, calling her homophobic names. She was then placed in a holding cell where she was attacked by another incarcerated person, then maced again by officers who filed a rules violation report claiming that Skylit had battered another incarcerated person.

Skylit is once again locked in ad seg, where she spent her 30th birthday. Brieby also remains in ad seg and thus in the common areas during the times that people are allowed out of their cells. Prison staff have told Skylit that, because of COVID, both can expect to remain there until January 2021.

For years, Skylit requested transfer to a women’s prison to no avail. She has filed a complaint of housing discrimination with the state’s Department of Fair Employment and Housing.

“I’m not going to make it out of this prison alive if I’m left here any longer,” she told her lawyers in June 2020.

Her fears are not unfounded. In 2013, Kern Valley State Prison staff ignored threats to Carmen Guerrero, a trans woman. The man who was assigned to her cell had stated that he would kill Guerrero if they were celled together. They ignored his threats; he tortured and killed her. In 2019, he was sentenced to death for her murder. That same year, California’s Senate passed a bill requiring trans people to be housed according to their gender identity. COVID delayed the expected Assembly vote, but advocates are hopeful for a final vote before August ends.

“I Will Not Stop Fighting”

Even in a women’s prison, Skylit may not be safe from sexual abuse or staff retaliation. Rojas, a gender nonconforming person, spent 15 years in the Central California Women’s Facility (CCWF) where staff continually harassed them because of their gender identity. Staff, they told Truthout, “are always harassing. That’s the culture of the place. They harass trans and GNC [gender nonconforming] folks.”

Furthermore, Rojas noted that staff attempt to rile women into participating in harassment. “If you don’t give them [trans and gender nonconforming people] a hard time, they give you a hard time,” they explained. That hard time could include not being given mail on time or being subjected to more frequent room searches or being denied the ability to get medical care.

As reported previously, in November 2015, Rojas informed prison officers that they had been documenting their derogatory comments for weeks and was planning to complain to the internal investigation unit. In response, officers ripped apart Rojas’s cell and physically attacked them and two cellmates, who said they would report the attack. All three were placed in small cages, typically used to confine people during programming, for nearly 12 hours and denied medical care and bathroom use. They were then placed in administrative segregation.

In November 2017, Rojas, the two cellmates and a trans man incarcerated at CCWF filed a lawsuit charging that the continual sexual harassment, excessive force and subsequent denial of medical care violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Their suit demanded more control and accountability when violence, whether physical or sexual, occurs, as well as safe reporting options to a third party outside the prison.

Rojas, now out of prison, is organizing with the #MeTooBehindBars campaign to end sexual and gender-based violence in prisons. Two of their co-plaintiffs remain incarcerated, however, and continually face retaliation for their involvement in the lawsuit, which is still pending.

On June 29, 2020, Smith filed a lawsuit against CDCR for violating her constitutional rights and to change how California prisons treat sexual abuse complaints, particularly those lodged by LGBTQI people. She is also seeking to remove the violations staff issued in retaliation for her PREA complaint. Because Smith is in prison, her suit must go through an additional step — a screening required by the 1996 Prison Litigation Reform Act — before CDCR can be served.

CDCR Deputy Press Secretary Terry Thornton confirmed that the agency has not been served and noted that CDCR cannot comment on pending litigation. In an email to Truthout, Thornton wrote, “CDCR is committed to providing a safe, humane, rehabilitative and secure environment for all people housed in the state’s correctional facilities. CDCR maintains a zero-tolerance policy for sexual harassment, sexual violence, staff sexual misconduct and retaliation. This policy applies to all incarcerated people, all CDCR employees, all volunteers and all contractors. Moreover, the Prison Rape Elimination Act (PREA) drives all of CDCR’s efforts to combat sexual abuse and sexual misconduct.”

Smith disagrees. “At the time … I thought that PREA was going to protect me, and … I thought the prison system had evolved to where I thought I would have been protected,” she told Truthout. “I was wrong, just like I was wrong to think that my skin color wouldn’t prevent justice for me. There will never be a justice for me. I think this is a life sentence in the flesh and in the bone that I’m serving. For me to be able to get up every morning, clothed in my right mind, is a struggle. I will not stop fighting for the girls.”