Oklahoma Attorney General seeks 'Gag Order' in Prison Rape Case

Civil Rights Suit Names Convicted Guard

Attorneys for a group of women allegedly raped by prison guards say the Oklahoma Attorney General’s Office is seeking a gag order that would unnecessarily bar attorneys from speaking with news media.

The women filed a lawsuit July 19, 2013 alleging that three guards at Mabel Bassett Correctional Facility in McCloud, Oklahoma repeatedly raped and sexually assaulted inmates between September, 2010 and December 2012. The lawsuit names three current or former DOC guards along with the facilty warden, deputy warden and Oklahoma Dept. of Corrections.

Two of the guards were later convicted of crimes related to the alleged incidents. Pottawatomie County District Court records say defendant Jamie Baker was a DOC cadet when he raped and groped several female inmates at Mabel Bassett Correctional Facility in McCloud, Oklahoma.

Baker entered a plea agreement and was sentenced to 20 years in prison. Defendant David Juber was originally charged with rape then pleaded to reduced charges of abuse by a caregiver and was handed a suspended sentence.

The women alleged guards raped them in staff restrooms and other areas where inmates are otherwise never allowed. Cameras that should have recorded unusual activity were not properly operating, their lawsuit alleges. They say guards later coerced them or offered incentives to remain silent. Oklahoma law prohibits any jail guard from having sexual contact with an inmate.

Prison officials ignored reports of sexual misconduct by one of the guards in a previous nursing job when they hired him to work as a guard, the women allege. The Dept. of Corrections allowed another to stay on the job as a guard at the women’s prison after he was disciplined for inappropriately exchanging sexual letters with a female inmate, the women’s 2013 filing alleges.

Plaintiffs: Order Aims to Stall Discovery

In a court filing, an attorney representing the nine women said the attorney general’s office is trying to delay release of potential evidence by claiming all requested materials are confidential. State attorneys proposed a protective order as part of pre-trial discovery procedures, but would only agree to their version of the proposed order, the women’s attorney alleged.

The women’s attorney did not object to a protective order. The women’s motions propose an order that would allow either side to declare materials confidential, and which details procedures for either side to challenge confidentiality requests.

Correspondence between the two sides suggested some agreement that much of the material sought by the inmates and former inmates could be sensitive. Materials include details of security cameras maintenance, inmate movements, and entry into cells occupied by prisoners. Other sensitive materials plaintiffs seek includes DOC personnel files, inmate mental heath records and prison officials’ responses to inmate complaints.

Gag Order Limits Free Speech

Of particular concern to the women’s attorney was the State’s proposed language that could bar attorneys from talking to news media. “Plaintiff’s counsel should be prohibited from discussing this matter in any way with the press beyond commenting on mere procedural matters,” State attorneys argued in a Nov. 18, 2014 motion.

The inmates’ attorney said that request amounts to a “gag order” based on “rank speculation” that would limit the women’s freedom of speech. State attorneys cited previous news media interviews with the attorney, including an interview that involved one of the women who filed the lawsuit after her release from prison.

The state’s proposed language oversteps reasonable limits on discussion of confidential materials, plaintiff’s argued. Their motion highlighted controversial language in the State’s proposed order that prohibits attorneys from participating in (emphasis added by plaintiff attorneys):

“…interviews or otherwise discussions with the news media of whatsoever nature in a manner which places disputed or confidential information in a public forum until such time as the trial of this matter.”

Some such disputed information might already be available as public records. An attorney general’s spokesperson told the Tulsa World the proposed order would not bar release of otherwise public records.

Protective Orders Require ‘Good Cause’

A federal court rule (Rule 26(c)(1)) allows judges to enter a protective order covering pre-trial discovery materials, including one that would protect parties in a lawsuit from annoyance, harassment, embarrassment, oppression or undue delay, burden or expense. Such an order can be issued only after “good cause” is shown for such an order, attorneys for the women argued.

Attorneys seeking a protective order in discovery must justify the confidentiality of “each and every document,” a Third Circuit court concluded in Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786-87 (3rd Cir. 1994)

Good cause for a protective order in discovery proceedings means more than “stereotyped and conclusory statements” a court stated in General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204, 1212 (10th Cir. 1981).

A party seeking such an order must show “disclosures will work a clearly defined and serious injury,” plaintiffs argued, citing Grundeberg v. Upjohn Company, 137 F.R.D. 372, 391 (D. Utah 1991); Turnbull v. Topeka State Hosp., 185 F.R.D. 645, 651-652 (D. Kan. 1999); and White v. Writz, 402 F.2d 145, 148 (10th Cir. 1968).

Redefining Sexual Abuse Reduced Reports

The inmates’ lawsuit underscores dire statistics that place some women accused of crimes at greater risk in Oklahoma than almost anywhere else in the world.

The United States is widely known to lead the world in per capita incarceration of citizens. And Oklahoma imprisons twice as many women per capita as the national average. The DOC’s 2013 annual report states “Oklahoma has consistently ranked first in the rate of female incarceration nationally.”

Many of those women spend time in the Mabel Bassett prison. While the inmates’ lawsuit cites systemic neglect and misconduct by prison staff, a Dept. of Justice study suggests Oklahoma women incarcerated in Mabel Bassett Correctional Facility also face unusually high rates of sexual abuse by other inmates.

The Mabel Bassett Correctional Facility stands out as having the highest reported rate of inmate-on-inmate sexual victimization nationwide. With 15.3 percent of inmates reporting incidents, the Pottowattamie County women’s prison “was the only female prison that could be classified as high rate” among all women’s prisons nationwide, the US Dept. of Justice report concluded.

Oklahoma prison officials told DOJ officials at a hearing that inmates report sexual victimization to manipulate other inmates or prison staff. One wonders why the women of Mabel Bassett prison would make so many more reports than those of any other prison in the nation.

When the DOJ changed definitions to exclude less explicit acts of victimization, incident reports declined, Oklahoma prison officials stated at a Justice Department hearing.

The Tulsa World reported the warden in charge of Mabel Bassett when Baker and Juber allegedly engaged in sexual activities with inmates – Millicent Newton-Embry – now works as Prison Rape Elimination Act Coordinator for Oklahoma.

Congress adopted the Prison Rape Elimination Act in 2003 after various studies suggested anywhere from 5 percent to 25 percent of prison inmates are victims of sexual assault. The act provides for nationwide data gathering, and grants to various state programs. Critics have argued the bill provides money to study sexual violence in prisons or jails while a pervasive culture of rape continues.

Strategy Session: Tulsa Jail Injury Attorney

If you or someone you know is a victim of sexual violence in a jail or prison – either by staff or by other inmates — that person has a legal right to be protected. Prison is punishment and prison can be a harsh environment, but the law does not allow sexual violence as a means of punishing those convicted of crimes.

In some cases, victims of sexual violence may be owed compensation. In 2013, the Oklahoma Supreme Court concluded state tort law cannot stop inmates for suing the government for cruel and unusual punishment.

To schedule your initial strategy session about jail injuries in Oklahoma, prison rape, sexual assault in Oklahoma jails and prison, or any other cruel, unusual or illegal act toward you or someone you know in an Oklahoma jail or prison contact the Tulsa jail injury attorney at Wirth Law Office.

Call today (918)-932-1681 or send your question by e-mail via the form at the top of this page.