The Voice for AZ Crime Victims is not Steve Twist...

 Some of the  68 names of the AZ DOC's victims of violence, neglect and abuse over the past 3 1/2 years,  from the roof of Phoenix's Firehouse Gallery during the opening of "Patriotic Descent".

(June 9, 2012)

 The letter and video link below came to me as a response to the editorial in the Arizona Republic today by Mr. Steve Twist, titled: "Ariz. prisons are humane, secure despite criticism". As implied, the letter is a defense of the state-as-perpetrator, not an argument that human life and rights should be vigorously protected.

Mr. Twist is a founder of the conservative Goldwater Institute, and the former assistant attorney general who authored the AZ Victims Bill of Rights, a constitutional amendment passed in the early 90's which explicitly excluded anyone "in custody for an offense" (as well as their survivors, if the crimes perpetrated against them result in death) from the legal definition of victim - and thus from all resource the state allocates to help victims cope with the devastating consequences of assault, rape, murder and other such serious crimes.

The letter was composed for the occasion by a real-life survivor of the state's cruelty and neglect; she lost her brother to it. Michelle gave me her blessings to post it widely - this is one of the voices we can trust. Please pass it on.

---------------from Michelle Lependorf------------------- 

Saturday, June 16, 2012

The recent articles written by Mr. Ortega in The Arizona Republic were primarily aimed at highlighting the deficiencies in health care provided to Arizona’s most seriously ill prisoners, those having severe mental and medical conditions.  It was fact-based, investigative reporting and not a media campaign or ACLU conspiracy aimed at generating sympathy and support for reduced prison terms or less restrictive environments within Arizona’s prisons.

The focus of the articles written by Mr. Ortega was not to question the housing protocol within the Arizona Department of Corrections.  Rather, it was to highlight the deliberate indifference shown to inmates who suffer from serious medical conditions wherever housed within Arizona’s prisons.  These inmates have been systematically, persistently and consistently denied or delayed meaningful and effectual medical care, the result being that far too many are dying, many of whom have not been incarcerated for violent, predatory crimes and who have not been perpetrators of inmate on inmate violence.

If officials within the Arizona Department of Corrections are, as is claimed by Mr. Twist, aware that “a significant percentage of those who live in Arizona prisons are in poor health when they enter prison,” don’t these same individuals have a heightened duty to ensure that an adequate health care system is in place to address the needs of these individuals?  This includes, at a minimum, ensuring that properly trained staff are in place and available to deliver the sophisticated health care required by such a high-risk prison population.  

Despite Mr. Twist’s assumptions to the contrary, there is a vast low-income segment of society that exists outside of the prison environs.  In that segment of society, there are a statistically larger number of individuals suffering from poor health conditions, as compared to more affluent segments of society.  This is primarily due to a lack of resources, high unemployment, low education levels, poor diet and nutrition, lack of health insurance and, perhaps, to some degree, genetic predispositions from the continuity of poor health conditions inherited by each successive generation.  That does not mean, however, that such individuals do not deserve adequate and effective medical care.  Should we deny or delay medical care for such individuals because they are born into and continually exist within a segment of society that renders them more susceptible to healthcare challenges?  Why can we not expect the same level of care for prisoners who enter Arizona’s prison systems with existing chronic conditions?  It may be true that many prisoners are entering into Arizona’s prisons “suffering from a litany of conditions.”  However, that does not mean that such individuals should not expect to receive or are undeserving of quality medical care – care that is delivered when it is needed and when it can make the greatest difference in the life of an inmate.  In fact, perhaps addressing the needs of such individuals would go a long way to improving conditions in the medically underserved communities from which these individuals come, as Mr. Twist claims. 

Given the threat it poses to public health in general, the failed healthcare system in Arizona’s prisons can no longer be denied, ignored or tolerated on the premise that prisoners, by virtue of their past misdeeds, are not deserving of adequate healthcare.  Although many in society believe that prisoners are not entitled to the same standard of medical care as individuals who have never been convicted of a crime, this view fails to take into consideration the high cost to society of substandard medical care provided to prisoners.  Inmates with serious illnesses or contagious diseases, who do not receive proper medical treatment while incarcerated, will eventually return to their communities.  When they do, they will likely be more unhealthy, unable to work and, more importantly, ineligible for health insurance.  This, in turn, will surely place a greater strain on the state’s already scarce resources.  So denying very ill prisoners adequate medical care is simply akin to being penny-wise and pound-foolish. 

What Bob Ortega’s articles make clear is that we have a failed health care delivery system in place within Arizona’s prisons.  It is a substandard, inhumane system that is responsible for the needless suffering and deaths of thousands of inmates.  For anyone who believes otherwise, the next time you or someone in your family becomes ill, by all means, opt for an exam with one of the paramedical professionals in Arizona’s Department of Corrections.  Mr. Twist, with his twisted notions, should be the first one to do so! 

For those of you who need further proof of just how inhumane healthcare is in Arizona’s prisons, you can get a first hand glimpse by clicking on the following link: http://www.ireport.com/docs/DOC-755489.

Michelle Lependorf is a NJ lawyer and the sister of Ferdinand Dix, a former AZDOC inmate who died while incarcerated in Arizona from undiagnosed, untreated metastatic small cell lung cancer.

AZ Victims of State Crimes: Constitutionally Denied Justice.

"Defend Human Rights"

Phoenix Committee of Homeless Campers.
Artwalk (March 4, 2011).

The international community recognized the need to protect victims of state violence a long time ago. Why does the Arizona Constitution exclude us when we're assaulted or killed in custody - it doesn't even protect the state from liability? It just means that the victims of police brutality have no rights in criminal court. As citizens who have been abused by the state, we aren't invited to comment on plea deals or the sentencing of our perpetrators, guaranteed services from the multitude of Victims' Rights agencies, appointed a victim/witness advocate, or assured that a restitution agreement will cover our medical expenses.

Excluding victims who "are in custody for an offense" from constitutional protections not only relegates prisoners to sub-human status in the hands of the state, it does the same to the family members who survive the violence or gross indifference to human life that takes their loved ones. The prisoners who get most abused are very often the ones who are least able to defend themselves or seek redress afterwards: the seriously mentally ill who shouldn't even be in the criminal justice system to begin with.

The legislature is empowered to extend victims rights to everyone - it doesn't have to go to referendum. Tell your legislator that victims of state crimes matter, too. He or she can be reached at:

Arizona State Legislature
1700 W. Washington St.
Phoenix, AZ 85007


cc your letter to the chair of the House Judiciary Committee, Rep. Eddie Farnsworth, the chair of the Senate Judiciary Committee, Ron Gould, and someone there who might really care: Mesa Representative and Chair of the House Health and Human Services Committee, Cecil Ash.

-------------From the Arizona State Constitution, Article 2--------

2.1. Victims' bill of rights

Section 2.1. (A) To preserve and protect victims' rights to justice and due process, a victim of crime has a right:
1. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
2. To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
3. To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
4. To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.
5. To refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant.
6. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
7. To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.
8. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.
9. To be heard at any proceeding when any post-conviction release from confinement is being considered.
10. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
11. To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.
12. To be informed of victims' constitutional rights.
(B) A victim's exercise of any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.
(C) "Victim" means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.
(D) The legislature, or the people by initiative or referendum, have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.
(E) The enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the legislature or retained by victims.

---------------

from the Office of the United Nations
High Commissioner for Human Rights.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power

Adopted by General Assembly resolution 40/34 of 29 November 1985

A. Victims of crime

1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.

Access to justice and fair treatment

4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

( a ) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

( b ) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

( c ) Providing proper assistance to victims throughout the legal process;

( d ) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

( e ) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

Restitution

8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.

11. Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimizing act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

Compensation

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

( a ) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

( b ) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

Assistance

14. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.

15. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

16. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

17. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.

B. Victims of abuse of power

18. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.

19. States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.

20. States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.

21. States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts.

Victimization in prison: the cold hard facts on rape.

Here's the Justice Department's 91-page pdf report: Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09. Good, brief editorial by the NYT as well, introducing the study.

----------------------------------

New York Times Editorial
September 9, 2010

Making Prisons Safer

Attorney General Eric Holder Jr. has spent nearly 15 months weighing new mandatory rape prevention policies for federal prisons and state correctional institutions that receive federal money. The policies, which are due this fall, need to be as tough as possible.

A recent report from the Justice Department’s Bureau of Justice Statistics makes that clear, suggesting yet again that sexual violence is frighteningly commonplace in the nation’s prisons and jails.

Based on a survey of more than 80,000 inmates at more than 450 facilities, it found that 4.4 percent of prison inmates and 3.1 percent of jail inmates reported being sexually assaulted one or more times. The bureau estimates that, nationally, 88,500 prison and jail inmates experienced some form of sexual victimization in the previous 12 months. The survey did not include follow-up investigations to determine the veracity of the inmates’ claims. But rape victims in prison are often hesitant to report their assaults out of shame or fear of reprisal, and these numbers may actually underestimate the problem.

The report’s finding that some prisons have far higher rates of victimization than others are consistent with the findings of the Congressionally mandated National Prison Rape Elimination Commission. It studied this problem extensively and found that some prisons promoted a climate of safety while others implicitly tolerated abuse.

The commission came up with a strong set of prevention recommendations. These included better screening and training for guards, better medical and psychiatric care for assault victims, better protection for the most vulnerable inmates and the creation of a system that allows victims to report rape without risk of reprisal. Mr. Holder received the commission’s recommendations in June last year and then put them out for public comment, raising fears that state and local corrections officials would water them down. Mr. Holder needs to ensure that doesn’t happen.

The Walking Wounded and Purple Hearts.

This lengthy update on new federal rules that should help soldiers and veterans get easier access to benefits due to PTSD symptoms comes from Charlie at CURE National - we get a lot of good info from them. As Charlie notes, without a purple heart to sway a judge, veterans with PTSD will probably keep going to prison at the rate they have been.

I have mixed feelings about giving out a bunch more purple hearts, though. My Dad was shattered by war, and I always thought he should have received one for what they did to him, but I don't want to glamorize anything about war more than it already is. Those medals and ribbons aren't just for the folks who "earn" them - they serve to justify state violence and glorify warriors, enticing the next generation of soldiers to enlist. The promise of college tuition with a stint in the service is certainly a big motivator for many youth - especially poor youth of color who see their peers and older siblings going off to prison at astounding rates. But most of the soldiers and vets I've known weren't in it for the money and benefits - state uniforms and rank command respect and infer nobility of some kind among the mainstream of our society. They also give people power, though, which they sometimes abuse or fail to recognize the grave consequences of.

Medals reinforce the honor of doing violence; they symbolize heroism and self-sacrifice, shame dissenters, and - except for firefighters - are most often given to cops and soldiers for the work they do for the state (even though teachers, nurses, and many other folks serve their community and country just as devotedly - sometimes at very high risk). I think that would just confuse a vet who was struggling with his or her role in war, whether they became targets themselves or whether they hit their targets from 5000 feet in the air. That's why I'm reluctant to endorse handing out a bunch more purple hearts.

Still, in all my years of working with homeless veterans, it was the ones with chronic PTSD and head injuries - not the amputees or those who took a bullet in the gut, got out and got through it -who were the most disabled by their experience. Having a buddy die in your arms, or watching a child burn to death is pretty devastating, especially if you think you should have been able to save them but couldn't. Their courage as well as their fear need to be validated, but not necessarily with a medal. For some people, recovery necessitates re-evaluating one's mental framework, and confusion is a sign of progress towards rejecting, rather than rationalizing, choosing a profession - or a crime - in which violence is seen as a necessity. Once you have that medal on your chest, you're suddenly not supposed to feel confused about any of it at all. I don't think that's necessarily a good thing.

Anyway, I'm posting this whole notice because a lot of folks from military bases have been finding their way to this site trying to make sense of what's happening to Clark Fish - and so many others like him. And while these new rules may not seem to affect the practice of mass incarceration on the surface, I think there may still be a trickle-down effect. If the VA is actually taking PTSD seriously and removing some of the barriers they've had to approving claims, they should also be improving access of veterans to treatment services - which could reduce the incidence of crime among them. It should also help legitimize PTSD as a mitigating factor in both prosecution and sentencing decisions in more jurisdictions.

This is so important because veterans, on the whole, are more prone to be convicted of violent crimes than non-veterans, which is what lands them in prison instead of doing community service or drug treatment programs. It risks harm to others and compounds their own trauma when they aren't able to check their fear or rage, or when they rely on psychoactive drugs to regulate their temperament for them. That combination can be a volatile cocktail even for those of us who haven't been trained to numb ourselves to the gruesomeness of war, the body counts, and the wondering about how many school children ended up being our collateral damage that day.

That connection between a history of trauma and being charged with violent crimes is evident among non-veterans as well, most notably women in prison. Those who have histories of trauma and victimization are much more likely to commit violent offenses than those who have never been abused. We turn victims into criminals when we fail to address the long term consequences of violence and terror - the potential that the victim may become the perpetrator - and in so doing we re-traumatize them further.

The last thing most of these folks want to do is hurt more people; they just want to stop being in so much pain themselves. Victims' rights groups would have a totally different take on crime and punishment if they followed the people they advocate for over the course of a couple of decades. It's not enough to throw a woman's rapist or a child's molester in prison and suck whatever money you can out of him as restitution, then cut them loose in ten or twenty years. For the victim's sake - for everyone's sake - we need to develop more systems of restorative justice that keep victims and communities safe without fostering internalized shame (manifesting in criminalized addictive behavior, for example), or externalized vindictiveness or rage further down the road in either survivors or perpetrators of violence.

"Victim" and "criminal" just aren't mutually exclusive categories, and we do everyone a disservice by acting as if they are - especially since it's the victims that so often get criminalized, which then exposes them to the more insidious and extensive violence of the state. At least 10% of men, women and children heading to prison will be physically or sexually assaulted there. The kids are most vulnerable, of course, and their perpetrators are most often the ones in uniform getting medals. Our recidivism rates are evidence that people don't get "rehabilitated" through being imprisoned, enslaved and brutalized - especially not if their festering wounds were caused by oppression in the first place.

Good luck to all you vets out there working on your PTSD benefit claims. I hope these new rules help, and that we bring your comrades home in one piece soon.

----------------------from CURE National---------------------

Dear Friends,

The new rules on PTSD Claims are a step forward. But I see little impact on alternative sentences for former combat veterans in the criminal justice system who are suffering from PTSD or TBI(Traumatic Brain Injury).

CURE feels strongly that these veterans should receive a Purple Heart like other combat veterans who are physically injured. Then, this purple heart recipent can convincingly show the judge that he should receive an alternative sentence if his crime was the result of PTSD or
TBI.

Because of below, combat veterans with PTSD and TBI will certainlyhave an easier time proving they should be given benefits. But, I think without a purple heart, they will be sent to prison pretty much at the same rate they are now.

Which, by the way, once in prison, veteran benefits are terminated during incarceration.

Charlie

*****

July 12, 2010

New Regulations on PTSD Claims

Quick Facts:

This new rule is for Veterans of any era.

The new rule will apply to claims:

o received by VA on or after July 13, 2010;

o received before July 13, 2010 but not yet decided by a VA regional office;

o appealed to the Board of Veterans' Appeals on or after July 13, 2010;

o appealed to the Board before July 13, 2010, but not yet decided by the Board; and

o pending before VA on or after July 13, 2010, because the Court of Appeals for Veterans Claims vacated a Board decision and remanded for re-adjudication.

QUESTIONS AND ANSWERS

“Stressor Determinations for Posttraumatic Stress Disorder”

1. What is Post-Traumatic Stress Disorder (PTSD)?

Post Traumatic Stress Disorder (PTSD) is a condition resulting from exposure to direct or indirect threat of death, serious injury or a physical threat. The events that can cause PTSD are called "stressors” and may include natural disasters, accidents or deliberate man-made events/disasters, including war. Symptoms of PTSD can include recurrent thoughts of a traumatic event, reduced involvement in work or outside interests, emotional numbing,
hyper-alertness, anxiety and irritability. The disorder can be more severe and longer lasting when the stress is human initiated action (example: war, rape, terrorism).

2. What does this final regulation do?

This final regulation liberalizes the evidentiary standard for Veterans claiming service connection for post traumatic stress disorder (PTSD). Under current regulations governing PTSD claims, unless the Veteran is a combat Veteran, VA adjudicators are typically required to undertake extensive record development to corroborate whether a Veteran actually experienced the claimed in-service stressor. This final rulemaking will simplify and improve the PTSD claims adjudication process by eliminating this time-consuming requirement where the claimed stressor is related to “fear of hostile military or terrorist activity,” is consistent with the places, types, and circumstances of their service, and a VA psychiatrist or psychologist, or contract psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD.

3. What types of claims for VA benefits does the final regulation affect?

The final regulation will benefit Veterans, regardless of their period of service. It applies to claims for PTSD service connection filed on or after the final regulation’s effective date, and to those claims that are considered on the merits at a VA Regional Office or the Board of Veterans’ Appeals on or after the effective date of the rule.

4. Why is this final regulation necessary?

The final regulation is necessary to make VA’s adjudication of PTSD claims both more timely and consistent with the current medical science.

5. How does this final regulation help Veterans?

The final regulation will simplify and streamline the processing of PTSD claims, which will result in Veterans receiving more timely decisions. A Veteran will be able to establish the occurrence of an in-service stressor through his or her own testimony, provided that:

(1) the Veteran is diagnosed with PTSD;

(2) a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a PTSD diagnosis;

(3) the Veteran's symptoms are related to the claimed stressor; and

(4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and the record provides no clear and convincing evidence to the contrary.

This will eliminate the requirement for VA to search for records, to verify stressor accounts, which is often a very involved and protracted process. As a result, the time required to adjudicate a PTSD compensation claim in accordance with the law will be significantly reduced.

5. How does VA plan to monitor the need for examiners in various regions of the country, and how does VA plan to respond if is determined that more examiners are needed in a particular region?

The Veterans Health Administration (VHA) has written in to the FY11-13 Operating Plan the need for additional staff to support doing adequate, timely exams. VHA proposes: “A8. Increase mental health field staff to address the increase in C&P examinations and develop monitoring system to ensure clinical delivery of mental health services does not decrease in VHA.“ Specifically, VHA has requested 125 clinicians for FY11 with additional 63 staff in FY12 if the need exists. If the Operating Plan and the proposed budget are approved, VA proposes asking the Veterans Integrated Service Networks (VISNs) to develop plans for distributing the funds in order to ensure adequate coverage at sites based on number of claims being processed; the VISNs are well positioned to determine these regional needs.

6. How does the regulatory revision affect PTSD service connection claims where an in-service diagnosis of PTSD has been rendered?

The new regulation does not apply to the adjudication of cases where PTSD has been initially diagnosed in service. Rather, under another VA rule, 38 CFR § 3.304(f)(1), if a Veteran is diagnosed with posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.

7. Is the new regulation applicable only if the Veteran's statements relate to combat or POW service?

No. The rule states that the stressor must be related to a “fear of hostile military or terrorist activity,” and the claimed stressor must be “consistent with the places, types, and circumstances of the veteran’s service.”

8. What circumstances will still require stressor verification through DoD’s Joint Services Records Research Center (JSRRC) , VBA’s Compensation &Pension Service (C&P Service), or other entity if a Veteran claims that his or her stressor is related to a fear of hostile or terrorist activity?

The regulatory revision will greatly lessen the need for undertaking development to verify Veterans’ accounts of in-service stressors. Now, stressor development may only need to be conducted if a review of the available record, such as the Veteran’s service personnel and/or treatment records, is inadequate to determine that the claimed stressor is “consistent with the places, types and circumstances of the veteran’s service.” In such circumstances, the Veterans Service Representative (VSR) will determine on a case-by-case basis what development should be undertaken.

However, it is anticipated that in the overwhelming majority of cases adjudicated under the new version of § 3.304(f), a simple review of the Veteran’s service treatment and/or personnel records will be sufficient to determine if the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. We also believe that, in some cases, a Veteran’s separation document, DD-Form 214, alone may enable an adjudicator to make such a determination.

9. As the regulatory revision seems to require an enhanced role for the examining VA mental health professional, whose role is it to determine whether the claimed stressor is consistent with the Veteran’s service?

VA adjudicators, not the examining psychiatrist or psychologist, will decide whether the claimed stressor is consistent with the Veteran’s service.

10. Is a Veteran's testimony about “fear of hostile military or terrorist activity” alone sufficient to establish a stressor?

Yes, if the other requirements of the regulation are satisfied, i.e., a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and that the Veteran's symptoms are related to the claimed stressor, and the stressor is consistent with the “places, types, and circumstances of the Veteran’s service.”

11. Are the stressors accepted as adequate for establishing service connection under new § 3.304(f)(3) limited to those specifically identified in the new regulation?

No. The examples given in the revised regulation do not represent an exclusive list in view of the use of the modifying phrase “such as” that precedes the listed examples. Any event or circumstance that involves actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, would qualify as a stressor under new § 3.304(f)(3).

12. How will the Veterans Health Administration (VHA) work with Veterans Benefits Administration (VBA) on the new regulation?

VHA was actively involved in discussion with VBA of the new regulation and fully supports the new regulation.

The new regulation will provide fair evaluation for Veterans whose military records have been damaged or destroyed, or for whom no definitive reports of combat action appeared in their military records, even though they can report such actions and it is reasonable to believe that these occurred, given the time and place of service.

This will be especially beneficial to women Veterans, whose records do not specify that they had combat assignments, even though their roles in the military placed them at risk of hostile military or terrorist activity.

This means that more Veterans will become eligible for VA care and thus be able to receive VA care for mental illness related to their military service, as well as receiving full holistic health care.VHA will work actively with VBA on implementing the regulation. VHA staff’s main role is as clinicians conducting C&P interviews to establish diagnoses and obtain other information to be used by VBA raters to determine the outcome of claims.

The new regulation will not change the diagnostic elements of the C&P interview, but may change what additional data are collected for use by VBA raters.

The Rape of Children: Juvenile Justice?

This is absolutely gut-wrenching. Again: why can't we keep the people we decide are so dangerous they have to be locked up from becoming victims while imprisoned? Especially children?And why aren't corrections officers being held accountable when they assault people? They've practically been given permission to carry on that way.



Be not mistaken: juvenile detention is prison for children. In this survey, 12.1% of kids reported having been sexually abused in their facility in the past year. That's profoundly troubling. Anyone who thinks that their kid will be "safer" in state custody of some kind than on his or her own self-destructive streak, keep in mind that there are predators in uniform, too, before you make any deals. There's a greater than 1/10 chance that your child will be sexually abused while there.


 I was tipped off to this article by the UNSHACKLE list-serve. Sign up here: https://lists.mayfirst.org/mailman/listinfo/unshackle. Check out the BLS links to the reports themselves below - BLS has an amazing wealth of criminal justice statistics and numerous studies.

---------------- 

The Crisis of Juvenile Prison Rape: A New Report

David Kaiser and Lovisa Stannow

New York Review of Books January 7, 2010.

When Troy Erik Isaac was first imprisoned in California, his cellmate made the introductions for both of them. “He said to me, ‘Your name is gonna be Baby Romeo, and I’m Big Romeo.’ He was saying he would be my man.” Troy was twelve at the time. A skinny, terrified little kid, he accepted the prisoner’s bargain being imposed on him: protection for sex. He wasn’t protected, though. Soon he was attacked and raped at night by another cellmate, a sixteen-year-old. He told staff he was suicidal, hoping to be placed in solitary confinement, but they ignored him; the rapes continued.

In 2005, the Department of Justice investigated a juvenile facility in Plainfield, Indiana, where kids sexually abused one another so often and in such numbers that staff created flow charts to track the incidents. Investigators found “youths weighing under 70 pounds who engaged in sexual acts with youths who weighed as much as 100 pounds more than them.”