E.D. v. Sharkey

Women’s Law Project and partner organizations filed an amicus curiae brief supporting a young woman who was sexually assaulted by a detention center counselor while detained at the Berks Family Residential Center.

The case will decide if the Center and staff who knew about the abuse, but failed to intervene, are liable for the abuse.

The young woman, E.D., is a Honduran asylum seeker and domestic abuse survivor who was detained at the Center with her toddler son. She was 19 years old when she was repeatedly assaulted by Daniel Sharkey, a Center employee with custodial duties over the immigration detainees.

Berks Family Residential Center is one of three facilities managed by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) for the purpose of long-term detainment of families seeking asylum or awaiting deportation.

The majority of immigrant families detained by ICE are seeking protection in the United States after having suffered abuse and persecution in their home countries.

“This case is about making sure that detention facilities and their staff are held accountable for sexual abuse that occurs on their watch. The inherent power inequities in prisons and other detention facilities create situations that are ripe for sexual abuse,” says WLP Staff Attorney Margaret Zhang, who co-authored the brief. “Incarcerated and detained persons still have rights. It is absolutely essential to reinforce and clarify legal protections for people who have been sexually abused while detained or incarcerated.”

Recent data shows that there were 1448 allegations of sexual abuse filed with ICE between 2012 and March 2018. A recent analysis of ICE handbooks distributed to detainees revealed that while the English version declared a “zero tolerance” policy on sexual assault, the Spanish version filled more than four pages advising “women not to drink or talk about sex so they won’t get assaulted during their time at the facility.”

Case History

E.D.’s assailant, Daniel Sharkey, pleaded guilty to institutional sexual assault and was sentenced to six to 23 months in prison. Sharkey reportedly served five months, a shorter period of time than his victim was held at the center.

Represented by the Pennsylvania Institutional Law Project, E.D. is suing Berks County (which represents the Center) and staff who knew about her abuse and failed to protect her from sexual violence.

These defendants argue they should not be liable because E.D. was an immigration detainee and not technically a prisoner and because E.D.’s assailant used threats—including frequent threats of deportation–and coercion rather than physical force to assault her.

WLP’s Role in the Case

On January 28, 2019 Women’s Law Project and fellow amici filed a brief to the United States Court of Appeals for the Third Circuit.

Amici assert the law presumes lack of consent when a custodian engages in a sexual contact with a confined person in any custodial setting. The inherent imbalance of power in any custodial setting has been long recognized by the courts. It is well established that the appellants had a duty to protect E.D. from institutional sexual assault.

The amicus brief was filed in the United States Court of Appeals for the Third Circuit by Zhang along with attorneys from the ACLU of Pennsylvania, the ACLU National Prison Project, the ACLU Women’s Rights Project, and Matthew Stiegler of the Law Office of Matthew Steigler. The Asian Pacific Institute on Gender-Based Violence, Futures without Violence, Just Detention International, National Alliance of End Sexual Violence, and the Tahirih Justice Center also signed on to the brief.