Section 3401.5 - Staff Sexual Misconduct(a) For the purposes of this section, staff sexual misconduct means any sexual behavior by a departmental employee, volunteer, agent or individual working on behalf of the Department of Corrections and Rehabilitation, which involves or is directed toward an incarcerated or supervised person. The legal concept of "consent" does not exist between departmental staff and incarcerated/supervised persons; any sexual behavior between them constitutes sexual misconduct and shall subject the employee to disciplinary action and/or to prosecution under the law. Sexual misconduct includes, but is not limited to: (1) Influencing or offering to influence an incarcerated/supervised person's safety, custody, housing, privileges, parole conditions or programming, or offering goods or services, in exchange for sexual favors; or(2) Threatening an incarcerated/supervised person's safety, custody, housing, privileges, work detail, parole conditions or programming because the incarcerated/supervised person has refused to engage in sexual behavior; or(3) Engaging in sexual act(s) or contact, including:(A) Sexual intercourse; or(D) Penetration of genital or anal openings by a foreign object, substance, instrument or device for the purpose of sexual arousal, gratification, or manipulation; or(E) Rubbing or touching of the breasts or sexual organs of another or of oneself, in the presence of and with knowledge of another, for the purpose of sexual arousal, gratification, or manipulation; or(F) Invasion of privacy, beyond that reasonably necessary to maintain safety and security; or disrespectful, unduly familiar, or sexually threatening comments directed to, or within the hearing of, an incarcerated/supervised person.(4) Display by staff, in the presence of an incarcerated person, of the staff person's uncovered genitalia, buttocks, or breast;(5) Voyeurism by a staff person including volunteers or independent contractors. Voyeurism is defined as an invasion of privacy of an offender by staff for reasons unrelated to official duties.(b) Penalties. All allegations of staff sexual misconduct shall be subject to investigation, which may lead to disciplinary action and/or criminal prosecution.(c) Reporting Requirements. Any employee who observes, or who receives information from any source concerning staff sexual misconduct, shall immediately report the information or incident directly to the hiring authority, unit supervisor, or highest-ranking official on duty. Failure to accurately and promptly report any incident, information or facts which would lead a reasonable person to believe sexual misconduct has occurred may subject the employee who failed to report it to disciplinary action.(d) Confidentiality. Alleged victims who report criminal staff sexual misconduct falling into one of the Penal Code section set forth in Government Code Section 6254(f)(2) shall be advised that their identity may be kept confidential pursuant to Penal Code Section 293.5, upon their request.(e) Retaliation Against Employees. Retaliatory measures against employees who report incidents of staff sexual misconduct shall not be tolerated and shall result in disciplinary action and/or criminal prosecution. Such retaliatory measures include, but are not limited to, unwarranted denials of promotions, merit salary increases, training opportunities, or requested transfers; involuntary transfer to another location/position as a means of punishment; or unsubstantiated poor performance reports.(f) Retaliation Against Incarcerated/Supervised Persons. Retaliatory measures against incarcerated/supervised persons who report incidents of staff sexual misconduct shall not be tolerated and shall result in disciplinary action and/or criminal prosecution. Such retaliatory measures include, but are not limited to, coercion, threats of punishment, or any other activities intended to discourage or prevent an incarcerated person/supervised person from reporting sexual misconduct.(g) Protection Measures. Multiple protection measures shall be considered to protect incarcerated person victims who report staff sexual misconduct or cooperate with staff sexual misconduct investigations including but not limited to housing changes or transfers for incarcerated person victims, removal of alleged staff from contact with victims, and emotional support services for incarcerated persons or staff who fear retaliation for reporting staff sexual misconduct or sexual harassment or for cooperating with investigations.Cal. Code Regs. Tit. 15, § 3401.5
Note: Authority cited: Section 5058, Penal Code. Reference: Sections 289.6, 293.5 and 5054, Penal Code; and Section 6254, Government Code; and 28 CFR Section 115.67.
Note: Authority cited: Section 5058, Penal Code. Reference: Sections 289.6, 293.5 and 5054, Penal Code; and Section 6254, Government Code; and 28 CFR Section 115.67.
1. New section filed 6-21-2000 as an emergency; operative 6-21-2000 (Register 2000, No. 25). Pursuant to Penal Code section 5058(e), a Certificate of Compliance must be transmitted to OAL by 11-28-2000 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-21-2000 order transmitted to OAL 10-5-2000 and filed 11-6-2000 (Register 2000, No. 45).
3. Amendment of subsection (d) and repealer of subsection (g) filed 3-20-2002; operative 4-19-2002 (Register 2002, No. 12).
4. Change without regulatory effect amending subsection (a) filed 3-11-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 11).
5. Amendment of section heading and subsection (a), new subsections (a)(4)-(5), amendment of subsections (b)-(f), new subsection (g) and amendment of Note filed 10-20-2016; operative 10/20/2016 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 43).
6. Change without regulatory effect amending section filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).