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By Tessa Moll
In May of last year, a guard had sex with a female detainee at the T. Don Hutto Residential Center.
Federal law criminalizes sex between detained inmates and guards, regardless of whether the relations are consensual. However, the U.S. Immigrations and Customs Enforcement, an agency under the Department of Homeland Security, falls within a loophole, only recently fixed through Congressional action, that prevented the prosecution of the guard.
With more than 400 pages of documents logging the ICE investigation into the incident in Taylor, no charges were ever filed against the guard, an employee of Corrections Corporations of America, the for-profit company that owns and operates the facility.
Following an open records request filed by the Taylor Daily Press, ICE released less than 80 pages of the investigation, most of which is redacted and blacked out, including names, ages, identifying information, a photo of the alleged victim and detailed testimony from both parties.
On Saturday, May 19, a guard was videotaped just before midnight crawling out of a detainee's room, “in an attempt to avoid the (security) camera,” according to the ICE report. Security officers monitoring the cameras saw him leaving the woman's room and contacted CCA supervisors.
According to the ICE reports, later viewings of security tapes show the guard entering the room on two occasions that night - once at 11:29 p.m. and leaving at 11:36, when he is shown “adjusting his pants around the belt area.” He reentered at 11:37 p.m. before crawling out about 10 minutes later.
For the next two days, CCA employees, Immigration and Customs Enforcement officers, a Taylor Police Department officer, Williamson County Sheriff's deputies and a Georgetown Police Department crime scene specialist filed through T. Don Hutto.
The outcome of the investigation, which included testimony from both parties, semen samples found on the concrete floor of the room, fingerprints on the toilet seat and sink and surveillance tapes of the common area where the guard patrolled, was nothing.
Both state and federal prosecutors have since said they could not pursue the case.
The night of the incident, in the very early hours of May 20, CCA officials interviewed both the alleged victim and the guard. The guard was immediately placed on administrative leave; he was officially fired the next day.
The company called ICE, which contracts out the facility to CCA to house immigrants seeking asylum with their families. In fact, the alleged victim's son was in the room during the sexual encounter, according to the ICE report. The son's age was not reported but the victim's room contained a crib.
When the ICE Incident Response Team arrived, they determined the case might carry criminal charges and called the Taylor Police Department.
“Based on our learned information ... it was clear this investigation was to proceed as a criminal matter and that the local law enforcement agency with investigational jurisdiction was to be notified,” the report states.
Pete Del Angel, an ICE official from San Antonio, called the Taylor dispatcher, requesting an officer go to the center to investigate the incident.
“And medical staff here thinks there might have been some foul play,” Del Angel said.
Sgt. Mark Clark of Taylor PD arrived just before 5 p.m. on Sunday, May 20, according to a TPD call for service report. After he arrived, Clark asked the dispatcher to see if a sexual assault nurse examiner was working at Johns Community Hospital at the time.
T. Don Hutto falls under the jurisdiction of the sheriff's office, so Clark requested sheriff's deputies take the case. Williamson County acts as a local intermediary between Immigration and Customs Enforcement and the center's contractor, CCA.
Sheriff's deputies arrived just before 6 p.m. on a call for “sexual assault,” according to a sheriff's incident report. An hour later, Det. Larry Hawkins requested a crime scene specialist from Georgetown PD, who arrived at 8 p.m. ICE investigators and the Georgetown officer collected seminal fluid and fingerprints from the room.
The female detainee was examined by an emergency nurse at a Williamson County hospital, who reported to the Williamson County Sheriff's Office that the woman sustained trauma to her vaginal area.
The female detainee and her son were taken to a hotel before being transported to an “alternative facility,” according to ICE spokeswoman Nina Pruneda. The victim was later deported.
Officially, ICE continued investigating the case under a possible charge of official oppression.
Crime avoided both state and federal jurisdiction
On Monday, May 21, the Williamson County District Attorney's Office declined to prosecute the case, according to the ICE report.
Jana McCown, first assistant district attorney, said the incident and possible charges of official oppression did not fall under Texas law because T. Don Hutto is a federal detention facility.
In state law, official oppression - a public servant's abuse of their post for sexual advances - only applies to incidents in municipal, county, state or juvenile detention centers, McCown said.
So the case moved to the U.S. District Attorney's office in Austin, and the FBI San Antonio division investigated.
U.S. District Attorney Tony Brown also declined to prosecute the case, according to ICE documents, despite sexual activity between a guard and detainee being against federal law.
According to U.S. federal code, “Whoever Š knowingly engages in a sexual act with another person who is in official detention; and under the custodial supervisory, or disciplinary authority of the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than one year, or both.”
However, the law only applies to prisons under the U.S. Attorney General, which does not include ICE detention centers, an oversight and loophole in the law only changed in July 2007.
The problem arose with the creation of the Department of Homeland Security in 2003. The new federal agency took over the detention of immigrants from Immigration and Naturalization Services, an agency under jurisdiction of the Department of Justice, according to a press statement from the office of Sen. Dianne Feinstein, D-California.
Feinstein sponsored an amendment that upon enactment would extend the current federal law to immigrants in detention under ICE.
“The Justice Department could not pursue these allegations because it was no longer a federal crime,” a press release states.
However, four years passed between the time homeland security took over the detention of immigrants and when the loophole was fixed - just a few months after the incident at T. Don Hutto.
Charges will never be filed in the Taylor assault - according to Scott Gerber, a spokesman for the senator, the change in legislation is not retroactive.
