Prison sex-abuse cases grow, but prosecutions are rare

The investigation began with an anonymous tip: Theresa Nolte, a customer-service worker at the print shop in Monroe Correctional Complex, appeared to have a strange relationship with an inmate named Kelly Beard, a member of the prison’s Aryan gang who was finishing up a 20-year murder sentence. The two spent time together most days, huddled in whispered conversations.

Investigators discovered Nolte and Beard had secretly struck up a romance, and on several occasions sneaked away to have sex. The two even planned a life together after Beard’s expected release the following year.

“Think of me waiting for you with my arms open wide and my heart overflowing with love for you,” Nolte wrote in a letter to Beard in 2011. “I love you with my heart, my body and my soul. I love the way I keep loving you, like a love I can’t control.”

In Washington, prison staffers commit a crime whenever they have sexual contact with an inmate, even if both insist it was consensual.

Over the past decade, the number of annual complaints about staff sexual misconduct here has more than quadrupled, according to state data obtained by The Seattle Times. In 2014, complaints hit 216.

Prison officials said they look into every complaint. But only about one in seven is substantiated, meaning they meted out some form of staff discipline.

Since 2012, when the Department of Corrections (DOC) began tracking referrals for substantiated complaints, the agency sent 41 percent to law enforcement, below the national average.

The cases run the gamut from coerced rape to the seemingly consensual, such as Nolte’s. Female prison staffers make up the majority of perpetrators nationwide, but DOC doesn’t generally track the gender of staffers accused of abuse.

“The fact that anybody’s being raped at all should be cause for concern,” said Paul Wright, a former Monroe inmate and now editor of Prison Legal News. “Why is this so prevalent?”

Part of Washington’s decadelong climb in sex-abuse complaints can be explained by the 2003 federal Prison Rape Elimination Act (PREA), which, among its reforms, required prisons to improve how they track complaints of sexual misconduct by staff. Prisons nationally saw a jump in reports — showing the problem of staff-perpetrated sexual misconduct has been more common than previously realized.

Beth Schubach, the state’s PREA coordinator, said her agency takes the problem of staff-perpetrated sex abuse seriously and has cast a wider net in recent years to sweep up wrongdoers. “We’re making not only our prisons and our facilities safer — offenders are safer, staff are safer,” she said.

A troubled history

Washington wasn’t always so attuned to this problem. In 1996, in a highly publicized case, a guard impregnated Heather Wells, an inmate at Washington’s Correctional Center for Women near Purdy, in Pierce County. At the time, Washington was still among a dozen states with no law against staff-inmate sex.

Wells, who was finishing a 15-year murder rap, said the guard, Michael Stevens, raped her four days before Christmas. Stevens said Wells was willing, and prosecutors declined to file charges. She gave birth the next year, still serving time.

In Wells’ lawsuit against the guard and the DOC, her lawyer, Erik Bauer of Tacoma, argued that not only did Stevens force Wells to have sex with him — threatening punishment if she didn’t submit — but that the power imbalance between staff and inmates made consent impossible.

“These guards could go up to these gals and say, ‘Do this,’ ” said Bauer. “And the gal’s thinking, ‘What if I don’t? I could get reported, I could end up in the hole, I could lose my good time, I could lose my visitation.’ ”

The lawsuit was settled out of court for $150,000. In 1999, the Legislature passed a law making Washington the 39th state to criminalize staff-on-inmate sexual behavior.

Gender disparities

A month after someone informed on Theresa Nolte at Monroe Correctional, in March 2011, prison investigators confronted her with one of nine love letters discovered in Beard’s cell. “No,” she said, “I did not send those to him.”

Beard was also uncooperative at first, but later admitted Nolte wrote the letters. He had come to know her while working in the prison’s engraving shop, which occasionally brought him into her office, he said. Before long, the two found time alone to kiss and eventually have sex, according to records of the internal investigation.

“This occurred numerous times,” Beard told them. “I won’t give you any more details than that.” He said he and Nolte were in love and that he’d never testify against her.

From a legal standpoint, the gender of the perpetrator should not matter. But studies show the gender of the guard often determines how the abuse is viewed.

In cases in which sexual contact is confirmed, if the prison guard or staffer is female, the relationship “appeared to be willing” 84 percent of the time, according to the authors of a recent Department of Justice study examining cases from 2009 to 2011. But the study showed that in incidents committed by male staff, only 37 percent appeared to be willing.

The term “willing” is misleading, said Brenda Smith, director of The Project on Addressing Prison Rape, at American University. She lamented misconceptions about sexual misconduct perpetrated by female staff. Even if the relationships appear to be consensual, the victims often are coerced into the sex, she said. Research has also shown men are more reluctant to admit being victims of sexual misconduct.

“Men are always perceived to be willing,” Smith said. “Men don’t get to call these sexual interactions not willing.”

In a prison, even an apparently consensual relationship can lead to other crimes. Alicia Packer, a supervisor at Monroe’s clothing unit, developed a sexual relationship with an inmate in 2013 and smuggled in contraband, including a porn movie, a cellphone and an ounce of marijuana for him to sell to fellow convicts. After an inmate tipped off one of Packer’s co-workers, police investigated and she resigned. The Snohomish County Prosecutor’s Office didn’t charge her.

“It’s not like these are no-harm, no-foul situations,” Smith said.

After Beard admitted to sex with Theresa Nolte, prison officials fired Nolte and eventually turned her case over for prosecution. But Monroe police said they couldn’t find her for more than two years. Detective Spencer Robinson located her working at Boeing in South Seattle.

She was arrested on suspicion of “custodial sexual misconduct.” Despite Beard’s statement, witness accounts and the love letters, prosecutors declined to file charges, believing they’d lose.

Sex as “a job perk”

Four years after the federal prison rape act was passed, Columbia Legal Services and lawyer Melissa Lee represented female inmates in a class-action lawsuit against the Washington Department of Corrections. The suit described a culture of staff sexual misconduct toward inmates and inadequate investigations. Five women who were plaintiffs said they had been sexually assaulted multiple times.

“For decades, the staff at Purdy used to look at it as like having sex with the prisoners was just a job perk,” said Wright, the Prison Legal News editor and prisoners’ rights advocate. “It’s like overtime.”

The case settled for $1 million. Lee said the department has stepped up its policing of sexual misconduct. Investigations have started earlier, more women appear comfortable filing complaints, and abuse in most cases has been less severe, she said.

Even so, in the four years before the lawsuit, complaints alleging sex abuse by Purdy guards tallied 41. From 2011 to 2014, the count was 95, more than double.

“Sexual misconduct in prisons is a huge problem,” said Lee. “It’s not going away. Our lawsuit didn’t solve it.”

“Don’t you want some of this?”

The case of Eddie Garbitt, a former kitchen supervisor at the Purdy women’s prison, illustrates how a Washington prison and prosecutors can successfully deal with a sexual-abuse case.

In 2006, Garbitt took the hand of a female inmate who worked for him in the kitchen and placed it on his crotch. “Don’t you want some of this?” asked the 210-pound guard, according to court documents.

On a later day, he called the woman over to his desk, kissed the back of her neck and stuck his hand down her underpants.

She attempted to transfer out of the kitchen, but Garbitt threatened to fire her prison girlfriend, who also worked for him in the kitchen, a desirable job. The victim rescinded her transfer.

Around the same time, Garbitt called another inmate into a walk-in freezer and told her to count TV dinners. There, Garbitt pulled down her pants and forced her to have intercourse. He sexually abused her four times, according to court documents.

Cases like this often come down to an inmate’s word against the staffer’s, said Scott Moriarity, a Tacoma-based attorney who represented one inmate in her civil suit against Garbitt. When Moriarity’s client first made her accusations, prison investigators didn’t take her seriously, he said. Only after the woman mailed her semen-stained clothing for evidence — and testing matched its DNA to Garbitt’s — did prison officials give her account credence, he said.

The county prosecutor charged Garbitt with seven counts of custodial staff sexual misconduct, which carried a minimum seven-year prison sentence. Instead, Garbitt took a plea deal in 2008 for two counts in the first degree and one count in the second. He served one year in prison.

Staff rarely face charges

But it’s rare for cases to even make it to a prosecutor’s office. From 2012 to 2014, there have been 553 allegations of staff sexual misconduct in Washington prisons.

The data show only 58 of these complaints were found to have merit by prison investigators. More commonly, the cases are ruled unfounded — meaning investigators determined there was no misconduct — or that not enough evidence existed to prove wrongdoing.

This low rate disturbs Lee, the lawyer for Columbia Legal Services, who monitored cases from 2010 to 2013 as part of its class-action settlement.

“I’ve looked at many investigations where I would have come up with a different conclusion,” she said.

DOC officials said the department improved its record keeping in mid-2013 and may have missed some earlier referrals.

Of the 58 cases found to have merit, 24 were referred to law enforcement — 41 percent of the substantiated cases, records show. Of the 24 referrals, police or prosecutors declined 12, two defendants pleaded to lesser charges, and 10 cases were pending as of June, according to DOC. Not one has resulted in a sexual-misconduct conviction.

Schubach, the PREA coordinator, said the prison system has a broad definition of sexual misconduct, including cases that don’t actually involve physical contact and therefore aren’t a crime. This preventive strategy explains why the prisons refer so few substantiated complaints to law enforcement, she said.

In one case reviewed by The Times, a guard placed a banana near his groin and an inmate pretended to masturbate it. In another, a guard gave an inmate photographs of naked overweight women. Both incidents, explained as bad jokes gone awry, broke corrections policy, but with no sexual contact, the DOC didn’t send either to law enforcement.

Steep hill to climb

Washington’s record on forwarding prison sex cases for prosecution falls below the national average. According to a federal study of cases from 2009 to 2011, about 46 percent of substantiated staff sex-abuse cases in correctional facilities were referred for prosecution.

The national numbers reflect a wide range of prison policies; Michigan, for example, refers every complaint to law enforcement as soon as it’s received.

“When corrections facilities fail to hold abusive staff accountable — by letting them stay on the job, allowing them to resign, etc. — they are tacitly endorsing criminal behavior,” said Jesse Lerner-Kinglake, spokesman for human-rights organization Just Detention International.

In cases of custodial sexual misconduct, like Nolte’s, it’s very difficult to get a conviction, said Adam Cornell, Snohomish County deputy prosecuting attorney. By their nature, most of these crimes occur behind closed doors, so witnesses are scarce. And even if the victim gives prison investigators a statement, prosecutors can’t use it as evidence unless the inmate is willing to be cross-examined in court.

“If I don’t believe I can prove it, I can’t charge it,” said Cornell. “And there’s a big difference between believing something happened and being able to prove it to a jury.”

Punishment often light

Even when guards are convicted, some advocates for prison reform decry what they consider light sentences.

At the Purdy women’s prison, when inmates saw that a sex-offending guard like Garbitt would get punished, several others came forward, saying other male guards had sexually abused them, as well.

In one case, a guard named Jonathan Ray Clapper caught a female inmate stealing from a canteen cart, according to court records. She begged him not to report her. Clapper kissed her, unzipped his pants and forced her to perform oral sex, according to records.

Afterward, the victim found semen on her camisole, and hid it in her cell. She mailed it to her mother, who gave it to an attorney. DNA from the stain was a match for Clapper.

Clapper was charged with one count of first-degree custodial sexual misconduct in 2008. He served five months in Pierce County Jail.

Another prison employee, Tony Mikelson, was convicted of coercing a female inmate into sex in a supply closet. His time in jail: less than three months.

“If it was prisoners raping guards, do you think it would be the same response?” asked Wright, theprisoners’ rights advocate. “That’s the only question you have to ask yourself.”