Gov. Schwarzenegger should sign AB 382, which would require the Department of Corrections and Rehabilitation to consider the sexual orientation and/or gender identity of prisoners so as to prevent sexual violence and to promote inmate and ward safety.

Currently, the department is required to consider specific factors when classifying inmates. For example, a violent rapist cannot be housed with a petty thief, particularly if the rapist is older, stronger and more aggressive. The United States Supreme Court has held that such random placements can result in sexual abuse or death for vulnerable inmates, and that they violate common decency, as well as constitutional provisions against “cruel and unusual punishment.”

But the law does not yet require the department to consider inmates’ sexual orientation and/or gender identity. AB 382 would require it to.

Congress has recognized that thousands of prisoners are raped each year. And, a decade ago, recognizing that being openly gay or transgender puts inmates and wards at a heightened risk of sexual violence and abuse in the prison environment, Los Angeles Sheriff Lee Baca provided jail facilities based upon sexual orientation. The program has reduced violence against gays in prison, reduced recidivism and is so popular that straight prisoners have pretended to be gay so that they can live safely among gay inmates.

There are no rules, however, requiring prison officials to protect gay prisoners, other than the general duty to prevent foreseeable harm to all inmates. But this arises only when victims complain of abuse, and because complaining subjects them to being isolated and denied services, doing so acts as a disincentive and effectively victimizes them again.

AB 382 would require segregated housing for prisoners who self-disclose their sexual orientation and/or gender identity. It would require the department to take into account the risk factors that can lead to inmates and wards becoming the target of sexual victimization or of being sexually aggressive toward others.

Specifically, the bill requires the department to consider factors such as: the age of the inmate or ward; self-reported safety concerns related to the sexual orientation and/or gender identity of the inmate or ward; whether the offender is a violent or nonviolent offender; whether the inmate or ward has served a prior term of commitment; and whether the inmate or ward has a history of mental illness. It also requires that staff intervene when an inmate or ward appears to be the target of sexual harassment or intimidation.

Importantly, the bill does not require any inmate or ward to disclose his or her sexual orientation or gender identity. The bill also does not require the construction of separate facilities for gay prisoners.

AB 382 is not solely a humanitarian measure, however. It also makes economic sense.

Requiring the state to take measures to prevent the likelihood of probable attacks against gays would reduce the number of lawsuits gay prisoners file against prisons for inadequately safeguarding them. Over the years the state has paid millions in damages and legal fees to settle these lawsuits. AB 382 is therefore also a risk-management device to reduce liability for the state.