Date: February 11, 2019

Rape Victim Who Smuggled DNA Evidence Out of Rikers Wins Settlement

The first time she filed a sexual abuse complaint against a Rikers guard, Jane Doe told investigators from the Inspector General’s office that the man was handing out cigarettes to female inmates in exchange for oral sex. But she never heard back from them, and she figured that they hadn’t taken her seriously because she had no evidence.

But even when there was evidence, women’s formal complaints seemed to go nowhere. Jane Doe had witnessed guards retaliate against another woman who had accused a male correctional officer of raping her. The woman had filed a complaint and handed over her underwear as proof to Department of Correction staff — but they discarded it and dismissed the complaint. That wasn’t an isolated instance: Darcell Marshall, a Rikers inmate who was raped by yet another male guard, and whose story was first told last year in a New York magazine article, rubbed the semen of the officer who raped her on her jeans and turned them over to investigators, but the jeans went missing for four days, and when they finally came back after testing, they contained traces of male DNA but no semen — a sign that they had been washed, according to a forensics expert.

Women to whom rape and sexual assault at the hands of guards have become an almost routine component of life at Rikers know they probably won’t be believed if they report their abusers. Worse, they fear that jail staff will cover up their allegations and retaliate against them. So when Jane Doe was brutally assaulted during a second stint at Rikers in 2015, she took no chances trusting the system.

On Monday, Jane Doe settled a civil lawsuit against the city, which she accused of “deliberate indifference” to the plight of women sexually abused by Rikers guards, according to a complaint filed last summer. As is standard with monetary settlements, the city denied all liability. Jane Doe’s story — one of dozens by women who reported being sexually assaulted and raped while detained at the infamous city jail — reveals just how challenging it is for abused detainees to seek justice in a system set up to offer none.


Illustration: Nicole Xu for The Intercept

Smuggled Evidence

The guard who sexually assaulted Jane Doe, Jose Cosme, had ejaculated onto her breasts. Back in her cell after the assault and still in shock, Jane Doe used a white T-shirt to wipe it off. Then she called for medical help and told a nurse that the officer had hurt her. Without examining her, a doctor decided that she was having a panic attack and instructed the nurse to “put ice on her,” then sent her back to her cell after less than 10 minutes. There, Jane Doe ripped the white T-shirt she had used to clean up and later that night, she went to an office at the jail where she worked a cleaning shift and mailed one piece of the shirt to her sister and another to a friend. Days later, during a visit, she gave that same friend another shirt she had been wearing at the time of the assault.

When she reported the assault, two weeks after it happened, investigators took Jane Doe back to the office where Cosme had cornered her. They videotaped her as she showed them how he had pushed her face against a Plexiglas wall in the room, smothering her 100 pounds with his 310. She told them she had screamed to be let go and banged on the Plexiglas, but that he had forced himself into her, taken a phone call while still inside her, and finally dropped her onto the floor and pulled her hair until it ripped to force her into oral sex. Then Jane Doe told the investigators that she had the DNA to prove it and that it was no longer at Rikers.

The DNA Jane Doe had smuggled out of Rikers matched Cosme’s, and in 2017, he pleaded guilty to a felony charge of sexually abusing her. As part of his plea deal, he was fired from his job, put on probation for 10 years, and required to register as a sex offender. But he served no prison time. Jane Doe had also accused a second officer, Leonard McNeil, of arranging for Cosme to rape her after Cosme discovered that they were having a sexual relationship — also considered rape under New York law. But she had no physical evidence against McNeil, and he was never prosecuted or disciplined, though jail authorities reassigned him to a different job at Rikers.

“If she hadn’t preserved the DNA evidence from the T-shirt, they never would have taken her seriously. And, of course, [Cosme] never would have been prosecuted,” said Marlen Bodden, a staff attorney with the special litigation unit at the Legal Aid Society, who represented Jane Doe. “At Rikers Island and at the DA’s office, they won’t prosecute corrections officers unless there’s DNA evidence, to our knowledge.”

In a complaint filed on her behalf by Legal Aid and the law firm Cravath, Swaine & Moore, Jane Doe accused the city of enabling her rape and subsequent retaliation against her. “The City has long been on notice that there is a significant risk that DOC staff sexually exploit women in its custody,” the complaint read. “The City, nevertheless, permits a culture of systemic rape, sexual abuse, and sexual harassment of women by staff to exist at the Rose M. Singer Center (”RMSC“), the women’s jail at Rikers.”

The lawsuit cited Mayor Bill de Blasio’s description of the jail — which after much pressure he pledged to close by 2027 — as a “dehumanizing environment” from which inmates are released “more broken than when they came in.” But the city’s recognition of Rikers’ problems did little to change the conditions there. “To date, neither policies and practices promulgated by the City nor the City’s approach to the women who brave retaliation from COs and other staff to complain of rape and other sexual abuse demonstrate any effort to change the status quo,” the complaint charged.

A spokesperson for the mayor’s office referred questions to the DOC and the New York City Law Department. A spokesperson for the law department, which handles lawsuits against the city, wrote in a statement to The Intercept that Jane Doe’s settlement is “a fair resolution of the claims against the city and in the best interest of all parties.” A spokesperson for the DOC referred questions about the settlement to the law department and questions about the internal investigation of Cosme and McNeil to the Department of Investigation. The spokesperson said that although McNeil remains employed at Rikers he no longer has contact with inmates. Cosme and McNeil did not immediately respond to requests for comment.

Diane Struzzi, a spokesperson for the city’s Department of Investigation (DOI), which oversees the Department of Corrections and investigates sexual abuse allegations involving corrections staff, told The Intercept in a statement that the DOI’s investigation resulted in officer Cosme’s arrest. She declined to comment on McNeil, writing that “this matter resides with DOC.”  Struzzi noted that since 2014, the DOI has arrested 62 correctional officers and DOC staff on an array of charges, including four over sexual abuse allegations.

Patrice O’Shaughnessy, a spokesperson for the Bronx District Attorney, which has jurisdiction over crimes committed on Rikers Island, wrote in a statement to The Intercept that the office “thoroughly investigated” the allegations against officer McNeil, but declined to comment further, citing sealed records in the case. O’Shaughnessy added that the Bronx DA has indicted a number of officers and a physician’s assistant for sexual abuse against inmates. “We take these cases seriously, investigate thoroughly and will prosecute if we have sufficient evidence to go forward with criminal charges,” she wrote. “We treat incarcerated victims as we would any victim of a crime.”

Attorneys for Jane Doe, who is currently serving a prison sentence upstate, declined to make her available for an interview. “This settlement is a small measure of justice for an exceptionally strong woman who has experienced unfathomable trauma,” said Brittany Sukiennik, an associate at Cravath. “Our hope is that her case will help foster reform aimed at ensuring both justice for other victims and protection of the rights of individuals in the City’s custody.”

Jane Doe’s $500,000 settlement follows a $1.2 million settlement last year with Darcell Marshall and an another woman who had accused the same officer, Benny Santiago. After Legal Aid took on that case, more than 100 women contacted them about sex abuse at the RMSC, and attorneys there are planning to file more lawsuits. Santiago, who has denied the allegations of abuse, was not criminally prosecuted and according to New York magazine, continues to receive a paycheck from Rikers, even though, as of last spring, he appeared to be no longer reporting for work. Santiago didn’t immediately respond to a request for comment.

There was also the case of Kelly Spinelli, a former detainee who accused one guard of raping her and two others of sexually abusing her between 2015 and 2016. Surveillance video shows the first officer taking her into a broom closet in the middle of the night for several minutes, and a wire she wore per investigators’ instructions recorded another officer warning her “not to say anything to anybody,” according to her attorney. While Spinelli settled with the city, a criminal investigation of the officers’ conduct went nowhere, Paul Prestia, her attorney, told The Intercept. O’Shaughnessy, the Bronx DA’s spokesperson, did not specifically answer questions about Spinelli’s case, but said that the office’s Public Integrity Bureau, which District Attorney Darcel Clark created to investigate and prosecute crimes by public officials, civil servants, and members of uniformed services, including Rikers guards, has “a number of pending investigations.” Struzzi, the DOI spokesperson, declined to comment on the case.

Prestia, who also represented the family of Kalief Browder in their recent $3.3 million settlement with the city, said that when he last heard from prosecutors about Spinelli’s case, they were still investigating her allegations, two years after the abuse took place, and that all the officers involved continued to work at Rikers. “In my opinion that means they are not going forward with prosecuting them,” he said. “I can’t get over the fact that the Bronx district attorney refuses to or refrains from prosecuting these corrections officers when there’s evidence that would have any other civilian arrested.”

“It’s totally a double standard,” he added. “It’s completely baffling to me.”

More lawsuits alleging sexual abuse at Rikers are also pending, including that of a woman who accused two guards and a captain of taking her to an isolated part of the jail in 2013, handcuffing her to a broken toilet fixture, and assaulting her for hours, including by penetrating her with a flashlight, before one of the officers warned her, “This never happened.” In another case, a woman accused a transportation officer of raping her on a bus while another officer watched. In yet another case, first reported by The Intercept in 2015, a medical contractor working at the jail was charged with raping four women there, and the DOC was subsequently accused of regularly sending women to medical appointments with no chaperones, a violation of department policies.

Correctional officers were also accused of turning a blind eye as an inmate repeatedly raped fellow inmates, in full view of security cameras. And inmates aren’t the only ones experiencing sexual assault at Rikers: As The Intercept reported in 2015, female visitors there are also regularly subjected to invasive — and unlawful — strip searches.

But no matter how widespread, sexual abuse at Rikers is rarely criminally prosecuted — and internal investigations, when they happen, seldom result in the discipline or dismissal of those accused of misconduct. More often, the city settles with victims before their allegations can be tested in court and under public scrutiny.

“That’s why this has been such a problem for a long time, because of the failure to discipline and the failure to prosecute in a meaningful capacity,” said Barbara Hamilton, another Legal Aid attorney representing Jane Doe, in an interview. “Oftentimes, the victims of these types of crimes are detainees, so people don’t find them credible, or they don’t put their resources into proper investigations. Or even if there is a recommendation from the internal investigation at DOC to prosecute, the DA office often declines to do so.”

No Consent

There can be no consent between a guard and an inmate. New York law considers all sex between correctional staff and incarcerated individuals to be rape, a recognition of “the inherently coercive power that correctional officers wield” over incarcerated people, Jane Doe’s lawsuit notes. Still, forced, coerced, or transactional sex between inmates and guards, and particularly at the women’s wing of Rikers colloquially known as “Rosie’s,” is rampant.

A Department of Justice survey found that between 2011 and 2012, 8.6 percent of the women incarcerated at Rikers reported being sexually victimized there; 5.9 percent of the women said they were sexually assaulted by staff. That’s compared to 3.2 percent of incarcerated individuals reporting being sexually victimized nationwide. A different report by the U.S. Attorney for the Southern District of New York, while not focused on sexual assault, warned that the DOC was “under-reporting” sexual assault allegations and questioned the department’s compliance with the Prison Rape Elimination Act, or PREA.

But as evidence of abuse and neglect mounted in recent years, along with public scrutiny of the jail, some city officials appeared to dismiss the problem. In a 2016 meeting of the Board of Correction, the body tasked with oversight of the city’s correctional facilities, board member Gerard Bryant said that “as long as we are going to have prisons, we are going to have sexual abuse in prisons. That’s a reality. That’s what happens.” He added: “You can tell staff until they’re blue in the face, ‘Don’t have sex with inmates,’ and it’s still going to happen.”

That year, a “sexual safety assessment” report commissioned by the city was disclosed to the press. The report detailed “entrenched problems” in how officials dealt with sexual abuse allegations, including hotlines that were not private or were nonfunctioning, and investigations that didn’t include reviews of surveillance video or interviews with witnesses and the accused. The city didn’t move to implement national safety standards detailed under PREA until 2016 — 13 years after the bill was signed into law in 2003. Still, male correctional officers continued to be assigned to guard women, including in their dormitories at night, and “to posts in which they have unmonitored contact and complete discretion and control over incarcerated women,” Jane Doe’s lawsuit noted. To date, there have been no audits for compliance with PREA at Rikers — the first review, at the RMSC, is scheduled for this spring.

In fact, while the DOC acknowledged in 2016 that the reports of systemic abuse had been a “wake-up call,” change was slow to come to Rikers.

In a 55-page expert report filed in 2017 as part of the case against Benny Santiago, former prison warden Timothy Ryan wrote that the city’s practices showed “callous disregard for legal requirements and correctional professionalism and demonstrate deliberate indifference by the City to the sexual safety and well-being of the female detainees for which it is responsible.” Despite women reporting sexual assault at more than double the national average, Ryan found that their allegations were rarely substantiated and that department investigators quickly concluded that “assaults could not have occurred exactly as described and thus did not occur at all.”

Last year, the DOC quietly confirmed that assessment when it published statistics about the rising number of sexual assault allegations at city jails. According to the department, there were 374 allegations of sexual misconduct by staff in 2017, and 322 in 2016.

A separate report noted that in the first five months of 2016, medical staff alone reported 118 incidents of alleged sexual abuse, mostly by officers.

But it wasn’t just the number of allegations that raised red flags: The DOC report also showed that at the time, more than 1,850 allegations of sexual harassment or abuse were still unresolved months or years after being filed, including 90 percent of allegations from 2016 and 97 percent of allegations from 2017. The department is required to complete all investigations within 90 days.

The DOC claims that it is trying to fix the problem — even as in June 2018, it reported a 40 percent increase of sexual abuse and harassment complaints over the previous two years.

At a New York City Council hearing held last September, DOC Commissioner Cynthia Brann claimed that the department had made “significant progress” in addressing sexual abuse and highlighted “top-to-bottom reform initiatives” it had put in place in recent years, including free calls to 311, a fully monitored and anonymous hotline, and contracts with an independent victim advocacy organization to provide support to sexual abuse victims. The department also hired PREA compliance managers, trained 7,300 staff on its zero-tolerance policies, and pledged to open investigations into all sexual abuse allegations within 72 hours of a report being filed. Still, Brann conceded that as of June 2018, the DOC had a backlog of 1,216 cases. The spokesperson for the DOC told The Intercept that the office was working to provide an update on the backlog.

At the same hearing, advocates and the Board of Correction said the department’s progress was hardly enough, particularly when it came to properly investigating and addressing complaints. “Since the new standards on sexual abuse, there is little evidence that the investigations process has improved or become more effective,” said Martha King, the board’s executive director, noting that the rate of substantiated complaints in New York was lower than the national average. “Without effective investigations, DOC’s efforts at prevention, accountability, and discipline will also be unsuccessful.”

“This should be disturbing to the council,” Kelsey De Avila, a jail services social workers with Brooklyn Defender Services, wrote in her testimony to the council. “Over 1,000 cases are still pending, and DOC staff are allowed to remain employed despite pending allegations, and no action will be taken against them until the case is officially closed.”

De Avila noted the irony that accused guards were allowed to keep watching over detainees, a majority of whom are held in pretrial detention at Rikers and are therefore also only accused of having committed crimes. “Notably,” she wrote, “our detained clients are subject to extremely punitive treatment and conditions — and exposed to this epidemic of sexual violence — while they fight criminal allegations against them.”


Illustration: Nicole Xu for The Intercept

A Coerced “Relationship”

Jane Doe was held at Rikers for eight months between 2015 and 2016, awaiting trial. Shortly after she arrived there, according to the lawsuit, McNeil “arranged to have undisturbed access to her” by requiring her to work for him as a sanitation worker, her lawsuit claims. McNeil would call Jane Doe into his station without filing the required paperwork and ordered her to stop working for other guards because he was “jealous,” becoming angry when she refused.

Jail staff were made aware of the sexual relationship between McNeil and Jane Doe on at least two occasions, the lawsuit contends. Once, a guard walked into McNeil’s office as he and Jane Doe were having intercourse, but never reported the incident. Another time, Jane Doe went to the jail’s health clinic to ask for an Abbott pregnancy test — which can detect a pregnancy early on — but was refused and given a different test because she had been in jail for two months, and staff “saw no need” for the early-detection one.

McNeil regularly gave Jane Doe contraband, including makeup, candy, and Starbucks coffee. He picked up clothes other detainees had left behind, told her “I want to see you in them,” and told her that when she was released, he wanted her to dye her hair blond and wear blue contact lenses. He let her use his cellphone to play games and call a friend, and even introduced her to his mother on the phone. He would go visit her in her housing area, and once he kissed her in front of two other detainees.

When Cosme learned of the encounters, he started making vulgar comments to Jane Doe, once asking her, in front of McNeil, for a “lap dance.” Then one day he passed her a note, threatening to report McNeil to superiors so that he would be fired and Cosme could take his place, the lawsuit alleged. When Jane Doe told McNeil, he became so angry, he flipped over a cart. Then a few days later, McNeil left Jane Doe alone at night in an isolated area of the jail, purportedly to make a call — even though he had made phone calls in her presence before, sometimes while she was performing oral sex on him.

There was a camera in that section of the jail, but it was not connected to the monitors in the control room, and it did not record or save footage. Staff and detainees knew that. That’s where Cosme, who was in a nearby office known as “the bubble” cornered Jane Doe. After raping her, according to the lawsuit, Cosme laughed at her and said, “At least my wife can have a break tonight.”

When she reported the sexual assault, Jane Doe was fired from her cleaning jobs at Rikers. A sign went up at “the bubble” warning COs not to take her out of her cell. Guards regularly refused to accompany her to religious services, group programs, and medical visits. Once, when she asked a guard why he wouldn’t let her go to church, he told her, “You run your mouth too much.” Guards also denied her toiletries, and on one occasion, they refused to escort her from a hearing back to the jail, leaving her behind at the courthouse.

There was verbal harassment too: Once, McNeil told another guard, in front of Jane Doe, “What you do with someone like her is two to the chest, one to the head, I can shoot.” Another time, he called her a “fucking snitch” and a “hoe.” Other COs called her a “bitch” and a “cracker,” and said that she was “just out for a pay day.” The retaliation followed her outside Rikers too, when she was sentenced to prison time at Bedford Hills, a prison in upstate New York. Someone there put a piece of onion in her pocket, and a CO said “that bitch stinks.”

Her attorneys said the experience made Jane Doe feel deeply isolated and left her suffering from nightmares and panic attacks. That’s far too common for incarcerated women, who often have a history of abuse even before arriving in jail.

Approximately 90 percent of incarcerated women have experienced sexual or physical abuse before being detained, and a majority are victims of domestic abuse, often leading to their incarceration in the first place, said Kandra Clark, who spent four months at Rikers in 2010. “There’s abuse before, during, and after incarceration,” she told The Intercept. Clark testified before the city council last year about how her experience at Rikers exacerbated her trauma. “Each and every night I spent on Rikers, I was fearful for my life and my body,” she said, describing how corrections officers would watch her go to the bathroom through the window of her cell or point a flashlight at her to watch as she tried to cover up with a sheet.

Clark now works with the Exodus Transitional Community and JustLeadershipUSA, one of the groups behind the #CloseRikers campaign that ultimately pushed the city to promise to shut down the jail within a decade — too slow a timeline, some advocates say. Clark also works with the “Beyond Rosie’s” campaign, an initiative of the Women’s Community Justice Association, which aims to tell the stories of women incarcerated at Rikers and is working with the mayor’s office and city council to ensure that the jails that will ultimately become substitutes are set up to combat abuse. “People are suffering every day while they’re in there so we definitely want it to move faster, but we also want to be really thoughtful about how we do it,” Clark said, listing top-down, trauma-informed training for all staff but also family-friendly spaces where incarcerated women’s children could spend a weekend. “What do we want these new facilities to look like? How can we really combat the trauma that so many women have faced?”

Yet others warned that until officers like those who abused Jane Doe face real consequences, the culture of impunity on the island will persist and simply spread to the smaller jails that will eventually replace it.

“These officers, they know that if they commit these heinous crimes, they’re going to get a slap on the wrist, and they’re not going to get fired. They’ll be moved around the island, they’ll still collect a paycheck, and they’ll still get a pension,” Redmond Haskins, a spokesperson for Legal Aid, told The Intercept. “Until corrections staff is truly held accountable, this will continue to happen.”

The post Rape Victim Who Smuggled DNA Evidence Out of Rikers Wins Settlement appeared first on The Intercept.