Some victims of sex crimes are systematically denied the right to be heard in court

Asia Sebert says she was forced to perform oral sex on the man who attacked her. She was helpless to defend herself. The man made her show him her breasts and even invited other men to assault her, she said.

But when it came to seeking justice against him, there was a problem. Sebert was a prison inmate at the time, and her alleged abuser was a correctional officer. In practically any other situation, she would be guaranteed the right to be heard and consulted by the courts under the state’s victims’ rights laws. But in Arizona, where the alleged attack took place, those rights do not extend to inmates, a report issued from The Arizona Republic has found.

The result: while the officer who allegedly attacked Sebert in a staff bathroom was initially facing up to seven years in prison on a charge of unlawful sexual conduct with a person in custody, he pleaded down to a lesser charge—without Sebert being consulted or having any say in the matter. Sebert is out of prison now. Her alleged attacker never saw a day behind bars; he was given four years’ probation.

This is only one story. The Republic’s report uncovered 13 different cases of inmates who allegedly fell victim to sexual crimes at the hands of prison staff while behind bars, whose assailants were all allowed to plead down to lesser charges without any input from the victim. Not a single corrections officer received a day of jail time. Rather, all of them got off with misdemeanors or the lowest possible felony charges, which a judge might be able to turn into a misdemeanor at a later date.

Now, two of the alleged victims are suing the state, claiming their civil rights were violated when the state refused to consult with them on the favorable plea deals. Sebert, 32, a transgender woman who was serving time in a male prison for auto theft, is one of them.

“I want to hold people accountable,” she told the paper.

A prominent victims rights’ advocate has questioned the Arizona statute as well.

“Never, never, never have I seen anything in the context of human suffering and healing and victimization, where somebody is denied their rights, who is not the perpetrator of the crime,” retired Texas Chief Justice Richard Barajas, who now works as director for the National Organization for Victim Assistance, a nonprofit victims rights group, told Fusion.

In fact, in Arizona state law goes beyond categorically denying inmates their victims’ rights. The statute excludes anyone “in custody for an offense.” That wording is unique to the state, as far as Barajas can tell, and ripe for abuse.

“What if they’re temporarily detained by law enforcement during a traffic stop, and they’re sexually assaulted? They are victims. There’s no doubt in my mind they are victims, unless the statute excludes them. And in this case, it has,” he said. “That’s a real frightening prospect.”

This troubling interpretation of the state’s victims rights laws, which were enacted in 1991 and 1995, was confirmed by a state appeals court in 2012. In that year, there was a ruling on a case that involved a man who was in jail, who was previously the victim of a kidnapping. Defense attorneys for the kidnapping case tried to force him to comply with a discovery request, saying that he no longer could benefit from victims rights, because he was incarcerated. Initially, the trial court agreed.

But then the Arizona Court of Appeals ruled that the victim of kidnapping was, indeed, still a victim, even though he was currently an inmate. It then went on to say victims rights can only be stripped of people “who are already in custody when the criminal offense is committed against them.” If you become a victim of a crime while in state custody, you are no longer afforded victims rights.

Since then, the cases uncovered by the Republic are among the first examples of that interpretation in action.

The way Arizona’s laws were written must have been a legislative oversight, Barajas suggested, because it runs contrary to the intention of the victims’ rights movement.

In 1982, President Ronald Reagan created the President’s Task Force on Victims of Crime. It issued a series of lengthy reports that year, drawing the conclusion that the victims of crime should have a say in key parts of the legal process against those who violated them.

“Prosecutors have an obligation to bring to the attention of the court the views of victims of violent crime on bail decisions, continuances, plea bargains, dismissals, sentencing, and restitution,” read a 1982  report, detailing proposals for the criminal justice system. “They should establish procedures to ensure that such victims are given the opportunity to make their views on these matters known.”

“You’re afraid someone will let the defendant plead guilty to a lesser charge and be sentenced to probation,” one victim of an unspecified violent crime told federal authorities in 1982.

Since that set of reports came out, all states and the federal government have passed laws to better consider the wishes and needs of victims in the litigative process. But at the state level, these laws differ from one another. In California, for instance, the victims rights law states that the “direct victim of a crime” is allowed to exercise these rights, without any exclusions. In Florida, the standard is “victims of crime or their lawful representatives.”

In a separate case detailed by the Republic, another woman claimed that she was sexually assaulted by a corrections officer when he was supervising her on a prison crew work shift on three separate occasions. His DNA was found inside the victim, who wished to remain anonymous.

While the corrections officer was initially charged with six counts of unlawful sexual conduct with a person in custody, he was allowed to plead guilty on two counts of attempted unlawful sexual conduct with a person in custody. He is out on ten years probation, without facing a day in jail, the report notes. She has since been released.

A pre-sentencing report issued by the Maricopa County Adult Probation Office noted that the officer “abused his position and he remains a risk to the community.” The unnamed woman is suing the state, claiming that her civil rights have been violated.

“I couldn’t run away,” the woman, said. “If I would have run away, I would have been charged with escape. If I had fought back, I would have been charged with assault.”

“Objectively, anybody who is involuntarily subjected to the criminal element, regardless of where it happens, should never be deprived the human right to be seen as a victim,” said Barajas.

He suggests the Arizona state legislature should convene to amend the law to include people who become victims of crime, even under state custody. But, he said, he doubts that will ever happen.

“Lord knows where it goes from here,” he said.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.