WSR 05-13-162

PROPOSED RULES

DEPARTMENT OF CORRECTIONS


[ Filed June 21, 2005, 3:38 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-10-035.

Title of Rule and Other Identifying Information: Amendments to WAC 137-28-160 Definitions and 137-28-260 Serious infractions.

Hearing Location(s): Department of Corrections, 4th Floor Conference Room, 410 West 5th Street, Olympia, WA 98504, on July 26, 2005, at 9 a.m.

Date of Intended Adoption: July 26, 2005.

Submit Written Comments to: John R. Nispel, Rules Coordinator, Department of Corrections, P.O. Box 41114, Olympia, WA 98504-1114, fax (360) 664-2009, by July 20, 2005.

Assistance for Persons with Disabilities: Contact John R. Nispel by July 21, 2005, (360) 586-2160.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Refine the definitions of sexual assault and add a new infraction.

Summary: Clarify the definitions of sexual assault and add separate infractions for "attempted sexual assault" for data collection purposes for reporting under the Prison Rape Elimination Act; add a new infraction regarding unauthorized entry by an offender into a cell, tier or unit other than the one to which the offender is assigned.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed changes will enhance discipline in the institutions operated by the department, further refining and clarifying disciplinary behavior. The following changes are proposed: WAC 137-28-160 Definitions, add definitions of abusive sexual contact, attempted suicide and mental health professional.

WAC 137-28-260 Serious infractions, add infractions #611, 612, 636 and 637 dealing with sexual assaults, amending the definition of infraction; #712 Attempted suicide; and adding infraction #713 Self mutilation/self harm.

Reasons Supporting Proposal: These changes are necessary to capture data required under the Prison Rape Elimination Act of 2003 and maintain discipline in the prisons.

Statutory Authority for Adoption: RCW 72.01.090.

Statute Being Implemented: P.L. 108-79 108th Congress Prison Rape Elimination Act of 2003.

Rule is necessary because of federal law, P.L. 108-79 108th Congress Prison Rape Elimination Act of 2003.

Name of Proponent: Washington State Department of Corrections, governmental.

Name of Agency Personnel Responsible for Drafting: Lori Ramsdell-Gilkey, P.O. Box 41118, Olympia, WA 98504-1118, (360) 586-3490; Implementation and Enforcement: Eldon Vail, Deputy Secretary, P.O. Box 41118, Olympia, WA 98504-1118, (360) 753-1502.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These rules affect incarcerated offenders only and will not impose costs on businesses.

A cost-benefit analysis is not required under RCW 34.05.328. RCW 34.05.328 does not apply to this rule adoption as the agency is not named in RCW 34.05.328 (5)(a)(i).

June 21, 2005

H. W. Clarke

Secretary

OTS-7731.3


AMENDATORY SECTION(Amending WSR 02-12-023, filed 5/28/02, effective 6/28/02)

WAC 137-28-160   Definitions.   For the purposes of this chapter, the following words have the following meanings:

Abusive sexual contact - an incident in which the contact occurs without his/her consent or he/she was unable to consent or refuse. Abusive sexual contact includes one or more of the following behaviors:

Intentional touching, either directly or through the clothing of the genitalia, anus, groin, breast, inner thigh, or buttocks of the victim. It does not include kicking, grabbing or punching genitals when the intent is to harm or debilitate rather than to sexually exploit.

Adult correctional institution and institution - a facility identified in RCW 72.01.050(2) and any similar facility hereinafter established.

Aggravated assault - an assault resulting in physical injury and requiring medical care (see definition of medical care).

Assault - a physical attack upon the body of another person. The attack may be made with any instrument including, but not limited to weapons, body parts, food products or bodily secretions.

Attempted suicide - an unsuccessful attempt to kill oneself as determined by a medical or mental health professional.

Attempt - putting forth an effort to commit any infraction shall be considered the same as commission of the infraction. However, attempted aggravated assault shall be considered an attempted assault.

Bodily harm - physical pain or injury, illness, or impairment of physical condition.

Cell tag - if contraband or other violation is discovered in an area under control of the inmate (such as within the confines or contents of a cell), the contraband or other violation shall be constructively attributed to the inmate(s) assigned to that area, unless the inmate(s) can establish a lack of involvement in the infraction at the disciplinary hearing.

Conspiracy - an agreement between two or more persons to commit an infraction. Conspiracy to commit an infraction shall be considered the same as commission of the infraction.

Deputy secretary - the deputy secretary of the office of correctional operations of the Washington state department of corrections, or the deputy secretary's designee.

Discovery - when a staff member discovers that an infraction has occurred or when an investigation into the incident is concluded.

Earned time - means that portion of time an offender is eligible to earn for program participation approved by the classification process and consistent with his/her case management plan.

Earned release time - means the combined earned time and good conduct time credit an offender is eligible to earn off the minimum term established by the indeterminate sentence review board or the sentencing court.

Good conduct time credits - that portion of an inmate's potential reduction to minimum term which is authorized by RCW 9.95.070 and 72.09.130 and which may be lost by receiving serious infractions.

Hearing officer - Staff member(s) designated by the superintendent to conduct disciplinary hearings.

Infraction - commission of, attempt to commit, or conspiracy with another to commit any violation of prison rules as enumerated in this code. Aiding or abetting another to commit an infraction will be considered the same as commission of the infraction.

Infraction review officer - staff member(s) designated by the superintendent to review a serious infraction.

Lesser included offense - any infraction that must necessarily have been committed in order to commit another infraction.

Medical care - any care conducted in a medical facility/treatment center by medical staff to treat a documented, physical injury, including, but not limited to bandaging, suturing, surgery, etc. An examination conducted by medical staff to determine whether an injury has been sustained shall not be considered medical care.

Mental health professional - an individual with a unique set of knowledge, skills and abilities that makes him/her competent in either development, research, administration, assessment, prevention, treatment, education or training aimed at effecting the onset, occurrence, and maintenance of mental, behavioral and in some cases physical health disorders.

Mitigating factors - factors to be considered by the infracting officer in deciding whether to charge a #328 general infraction rather than a #728 serious infraction. Also, factors to be considered by the infraction review officer, hearings officer, and superintendent for the purpose of deciding whether a #728 serious infraction should be reduced to a #328 general infraction. Mitigating factors may include the seriousness of the sexually explicit material involved, whether the inmate has been convicted of a sexually motivated crime, the treatment needs of the inmate, the prior history of similar behavior, and the source of the material.

Possession - established when an item(s) is found on a person or in an area which is under the control of the individual(s) charged.

Promptly - to act as soon as reasonably possible, consistent with institutional goals of safety, security, and rehabilitation.

Secretary - the secretary of the Washington state department of corrections, or the secretary's designee.

Sexual harassment - any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.

Sexually explicit - means a depiction of one of the following:

One of the participants in the sexual act is, or appears to be, nonconsenting;

One of the participants in the sexual act appears to be forceful, threatening, or violent;

One of the partners in the sexual act is dominating one of the other participants and one of the individuals is obviously in a submissive role or one of the participants is degraded, humiliated, or willingly engages in behavior that is degrading or humiliating;

One of the participants in the sexual act is a minor, or appears to be a minor, or a minor alone is depicted in a sexually suggestive way;

Actual penetration, be it penile/vaginal-oral, penile-anal, or penile-vaginal; digital-anal; digital-vaginal; or insertion of any inanimate object in the vaginal or anal cavity, and the depiction in the context presented is deemed to be a threat to legitimate penological objectives;

Any bodily excretory function which is sexual in nature;

Bestiality, sadomasochistic behavior, bondage; or

Material reasonably deemed to be a threat to legitimate penological objectives.

Staff member - for purposes of this chapter includes employees of the department of corrections, contract employees, and volunteers.

Superintendent - superintendent of an adult correctional institution or the superintendent's designee.

Working days - Monday through Friday, excluding weekends and holidays.

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 02-12-023, 137-28-160, filed 5/28/02, effective 6/28/02. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-160, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-160, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-160, filed 7/13/95, effective 8/15/95.]


AMENDATORY SECTION(Amending WSR 04-07-163, filed 3/23/04, effective 4/23/04)

WAC 137-28-260   Serious infractions.  

(1) Assault/threatening actions/causing injury to another person
501 - Committing homicide.
502 - Aggravated assault on another offender.
503 - Extortion, blackmail, or demanding or receiving money or anything of value in return for protection against others, or under threat of informing.
505 - Fighting with any person.
506 - Threatening another with bodily harm or with any offense against another person, property or family.
508 - Throwing objects, materials, substances or spitting at staff, visitors, or other inmates.
511 - Aggravated assault on a visitor.
521 - Taking or holding any person hostage.
588 - Causing a valid and documented threat of transmission of a contagious disease to any person due to intentional, negligent or reckless action.
604 - Aggravated assault on a staff member.
611 - Sexual assault on a staff member.
612 - Attempted sexual assault of staff.*
613 - Abusive sexual contact with staff.
633 - Assault on another offender.
635 - Sexual assault on another offender.
636 - Attempted sexual assault on another offender.*
637 - Abusive sexual contact with another offender.
663 - Using physical force, intimidation or coercion against any person.
704 - Assault on a staff member.
711 - Assault on a visitor.
717 - Causing a threat of injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
777 - Causing injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain.
Unauthorized possession
559 - Gambling; possession of gambling paraphernalia.
601 - Possession, manufacture or introduction of an explosive device or any ammunition, or any components of an explosive device or ammunition.
602 - Possession, manufacture or introduction of any gun, firearm, weapon, sharpened instrument, knife, or poison or any components thereof.
620 - Receipt or possession of contraband during participation in off-grounds or outer perimeter activity or work detail.
660 - Unauthorized possession of money, stamps, or negotiable instruments, the value of which is five dollars or more.
702 - Possession, manufacture or introduction of an unauthorized tool.
736 - Possession, manufacture or introduction of unauthorized keys.
738 - Possession of the clothing of a staff member.
739 - Possession of personal information about currently employed staff, contractors or volunteers, or their immediate family members, not voluntarily given to the offender by the individual involved, including, but not limited to: Social Security numbers, unpublished home addresses or telephone numbers, drivers license numbers, medical, personnel, financial or real estate records, bank or credit card numbers, or other like information not authorized by the court or the superintendent.
Tattooing
710 - Being tattooed while incarcerated, tattooing another, or possessing tattoo paraphernalia.
Theft/possession of stolen property
555 - Theft of property or possession of stolen property.
741 - Theft of food, the value of which is more than five dollars.
755 - Misuse or waste of issued supplies, goods, services or property, the replacement value of which is ten dollars or more.
Forgery
654 - Counterfeiting, forging, altering or unauthorized reproduction of any document, article of identification, money, security, or official paper.
Setting fire, damaging or destroying property
553 - Setting a fire.
554 - Mutilating, altering, defacing or destroying any item, the value of which is ten dollars or more and that is not the personal property of the inmate.
563 - Making a false fire alarm, tampering, damaging, blocking or interfering with fire alarms, fire extinguishers, fire hoses, fire exits, or other fire fighting equipment or devices.
600 - Tampering with, damaging, blocking, or interfering with any locking or security device.
720 - Flooding a cell or other area of the institution.
Inciting others/participation in unacceptable group behavior
650 - Rioting.
651 - Inciting others to riot.
652 - Engaging in or inciting a group demonstration.
682 - Engaging in or inciting an organized work stoppage.
708 - Organizing or participating in an unauthorized group activity or meeting.
734 - Participating or engaging in the activities of any unauthorized club, organization, gang or security threat group; or wearing or possessing the symbols of an unauthorized club, organization, gang or security threat group.
746 - Engaging in or inciting an organized hunger strike.
Inappropriate sexual behavior
504 - Engaging in sexual acts with others with the exception of spouses during approved extended family visits.
659 - Sexual harassment; any word, action, gesture or other behavior that is sexual in nature and that would be offensive to a reasonable person.
728 - Possession of any written, photographic or hand-drawn material that depicts a sexually explicit act as defined in WAC 137-28-160.
750 - Indecent exposure.
Providing false statements
551 - Providing false information to a disciplinary hearing officer or on a disciplinary appeal.
552 - Causing an innocent person to be penalized or proceeded against by providing false information.
706 - Giving false information about proposed community residence when proposing a release plan, community placement, etc.
Interfering with staff/impersonating
558 - Interfering with staff members, medical personnel, fire fighters, or law enforcement personnel in the performance of their duties.
605 - Impersonating any staff member, other inmate or visitor.
Failure to follow orders and rules
509 - Refusing a direct order by any staff member to proceed to or disperse from a particular area.
556 - Refusing to submit to or cooperate in a search when ordered to do so by a staff member.
557 - Refusing to participate in an available education or work program or other mandatory programming assignment.
609 - Refusing or failing to submit to testing required by policy, statute, or court order, such as DNA blood tests, when ordered to do so by a staff member.
658 - Failing to comply with any administrative or posthearing sanction imposed for committing any general or serious infraction.
724 - Refusing a cell or housing assignment.
745 - Refusing a transfer to another facility.
Counts/unauthorized absence
653 - Causing an inaccurate count by means of unauthorized absence, hiding, concealing ones self or other form of deception or distraction.
Escape/attempted escape
525 - Violating conditions of furlough.
550 - Escape or attempted escape.
560 - Unauthorized possession of items or materials likely to be used in an escape attempt.
Committing crimes/excess infractions
507 - Committing any act that is a felony under state or federal law that is not otherwise included in these rules.
517 - Committing any act that is a misdemeanor under local, state, or federal law that is not otherwise included in these rules.
657 - Being found guilty of four or more general infractions which have been reported in writing arising out of separate incidents, all of which occur within a six-month period.
Unacceptable communication
718 - Use of mail or telephone in violation of court order or local, state or federal law.
726 - Telephoning or sending written communication or otherwise initiating communication with a minor without the approval of that minor's parent or guardian.
727 - Telephoning or sending written communications to any person contrary to previous written warnings and/or documented disciplinary actions.
Misuse of controlled substances, drugs, alcohol and related programs
603 - Possession, introduction, or transfer of any narcotic, controlled substance, illegal drug, unauthorized drug or drug paraphernalia.
606 - Possession, introduction or transfer of any tobacco, tobacco products, matches, or tobacco paraphernalia.
607 - Refusing to submit to a urinalysis and/or failure to provide a urine sample when ordered to do so by a staff member.
608 - Refusing or failing to submit to a breathalyzer or other standard sobriety test when ordered to do so by a staff member.
610 - Unauthorized accumulation of prescribed medication greater than a single or daily dose.
655 - Making intoxicants, alcohol, controlled substances, narcotics, or the possession of ingredients, equipment, items, formulas or instructions that are used in making intoxicants, alcohol, controlled substances, or narcotics.
707 - Possession, introduction, or transfer of any alcoholic or intoxicating beverage.
716 - Unauthorized use of drugs, alcohol or other intoxicants.
752 - Receiving a positive test for use of unauthorized drugs, alcohol, or other intoxicants.
Soliciting/fraud
656 - Giving, offering or receiving from any person a bribe or anything of value for an unauthorized favor or service.
662 - Soliciting goods or services for which the provider would expect payment when the inmate knows or should know that no funds are available to pay for those goods or services.
714 - Giving, selling, borrowing, lending, or trading money or anything of value to, or accepting or purchasing money or anything of value from, another inmate or that inmate's friend(s) or family, the value of which is ten dollars or more.
740 - Fraud, embezzlement, or obtaining goods, services, money, or anything of value under false pretense.
Creating an emergency situation
712 - Attempted suicide ((or self-mutilation)) as determined by mental health staff.
713 - Self-mutilation or self-harm.
742 - Creating a false emergency by feigning illness when contrary to medical/mental health screening results.
744 - Making a bomb threat.
(2) In determining whether a #728 infraction or a #328 infraction pursuant to WAC 137-28-220 should be charged, the infracting officer shall consider mitigating factors as defined in WAC 137-28-160.
*Attempts to commit infractions #611 or #635 are now separate infractions #612 and #636 for the Prison Rape Elimination Act (PREA) reporting purposes only and do not impact the definition in WAC 137-28-160 which includes "attempts."

[Statutory Authority: RCW 72.01.090, 72.09.130, and 9.94.070. 04-07-163, 137-28-260, filed 3/23/04, effective 4/23/04; 02-12-023, 137-28-260, filed 5/28/02, effective 6/28/02. 01-22-094, 137-28-260, filed 11/6/01, effective 12/6/01. Statutory Authority: RCW 72.01.090. 00-10-079, 137-28-260, filed 5/2/00, effective 6/2/00; 97-03-041, 137-28-260, filed 1/10/97, effective 2/4/97. 95-15-044, 137-28-260, filed 7/13/95, effective 8/15/95.]

Washington State Code Reviser's Office