This Court, by its decision dated August 3, 2011, had found the defendant liable for the multiple sexual encounters between Jeanette P. and correction officer Peter Zawislak while claimant was incarcerated at Bayview Correctional Facility in Manhattan. A trial was then had on damages, and this is the decision therefrom.

Claimant had been assigned to Bayview's honor dorm, which housed about a dozen women in individual rooms, although the evidence we have for the date of the assignment is a little uncertain.^[FN1] JP and Zawislak began having sex in Bayview in the late summer of 1999,^[FN2] [*2]continuing through early 2001. Claimant became pregnant and gave birth to their son J on October 15, 2001.

Jeanette P. was 25 years old in July 1996 when she first came into State correctional custody. She had been arrested in 1994 and spent two years in jail with the City of New York's Department of Correction. Her life before then was not an easy one: -

Claimant was fondled by her uncle at the age of five. She told her mother, who did not believe her and hit her. -

A man named Raymond moved in to live with her mother when Jeanette was between 4 and 5 years old. Raymond began sexually abusing Jeanette at the age of 5 or 6. Because she was not believed about her uncle, Jeanette did not tell her mother about Raymond's abuse. -

Jeanette's mother struck her with a belt or a switch on a regular basis until her early teens; this stopped at age 12, by which time she was pregnant. -

Jeanette had her first child, a daughter, when she was 13 years old by Miguel V, whom she never married. She had a second daughter with Miguel just before turning 17. Miguel was physically abusive to claimant, and Jeanette began taking drugs when she was with him. -

Jeanette's highest level of schooling completed was grade 9, and she stopped attending school at age 16. -

Claimant was introduced to cocaine and heroin at age 11, which she snorted. JP recalled that she did not begin regular use until she was 16, dropped it again and resumed use when she was 19 years old . -

JP testified that she engaged in prostitution to trade for or buy drugs, beginning a few times at age 16, then from age 17 or 18 until she was incarcerated at age 23. On that subject, we heard the following trial testimony:

"Q. Now around this time period when you were engaging in prostitution, approximately how much money a day were you spending on your heroin addiction?

A. Ninety, a hundred [dollars], maybe more, it depends on how many people I slept with. -

JP married Francisco G when she was 19 or 20, with whom she had two girls, the last at the age of 22. Francisco was mentally, but not physically, abusive. -

JP took part in a theft of cocaine from a drug dealer or dealers' apartment, and they came looking for her at her mother's apartment saying they would kill her if they found her. Claimant recalled being very frightened. -

Claimant attempted suicide three times in the years before incarceration. Her first attempt was at age 16 or "around that age." She took a bottle of aspirin and was hospitalized at Montefiore Medical Center for two months. When she was 17, JP testified that "We [were] all arguing in my mother's house, and I couldn't take it no more. And it was just a statement that I made [that maybe I should just throw myself out the window], and unfortunately I reacted when I saw that nobody cared." Claimant testified that her mother had said go ahead, which claimant proceeded to do, resulting in multiple fractures to her ankle and injury to her spine. JP did not testify about a third attempt, but does not dispute that it occurred; three attempts are referenced in her Fordham-Tremont Community Mental Health Center records (def exh BB, hand numbered p. 2). [*3]

When JP was asked on the stand whether her life had changed in any way with State incarceration, she responded that with the structure, she learned how to take care of herself and began to have "an interest in life." This testimony followed:

Q. And in terms of your life in prison, did it improve or get worse after you met Peter?

A. At the beginning it was better, I thought.

Around Christmas of 1999, Zawislak gave JP a wedding band:

"Q. And when you put that wedding band on and agreed to wear it, what did you believe?

A. I believed in a fairy tale.

Q. And that fairy tale was what, that when you were released from prison you and Peter were going to be together?

A. Yes.

Q. And that you were going to marry him for real in person when you came out of prison?

A. Yes."

However, things changed. According to Jeanette, "It was late 2000, like November of 2000," and she realized she was being used. Part of this was that she had heard rumors of Zawislak and other female inmates: "I wanted it to end . . . I didn't want to be part of it no more." The following exchange with JP occurred:

"Q. From November of 2000 until February 2001 was there anyone that you could get help from regarding Peter's demands to have sexual intercourse with you?

A. I feel like I couldn't, no.

Q. How did you view your situation in 2001?

A. I was scared. I was desperate. I didn't know what to do. A lot of things going through my mind. I felt hopeless.

Q. Did you have any way to protect yourself?

A. No."

The opening argument made on behalf of claimant sets out her basic contention: [*4]

"The evidence will prove that Claimant suffered a tough life and had many psychiatric involvements stemming from her own life, the life with early boyfriends. She ended up indulging in a life of crime, and she was finally caught and sent to prison."

Continuing, counsel explained how in prison her life improved and that included the first portion of her sexual encounters with Zawislak:

"When she got into prison, finally her life became stable. There was order there and it's our position that her mental life improved. In fact, when she started to be seduced by Peter Zawislak . . . her life improved even further."

The opening goes on to describe that at some point things turned:

"After Peter's seductions wore off and she realized that she was being abused and that he continued to have forced sexual - - excuse me, unconsented-to sexual encounters with the inmate in the state prison, she had no place to turn. She was totally stuck. There was nobody in the correctional facility who would give her help to get Peter away from her."

It presents as somewhat unusual that claimant seeks damages running from a time well beyond the beginning of Officer Zawislak's felonious acts. But that is because JP seeks damages for the psychological injury done to her, and she maintains that such did not begin until the later date.

A significant portion of the evidence presented as to the damage to JP is grounded upon what she told the psychiatrists who testified here and what she told the Court. This goes not only to the effects on her from Zawislak's unwanted advances, but the timing thereof. JP maintains that her injuries began in November 2000.

JP's credibility is flawed. She has admitted to lying to a magistrate judge in her parallel federal suit arising from the same events.^[FN3] She was not forthcoming to Dr. Richard Dudley about the number of her suicide attempts, mentioning only one of them. JP went to Bronx-Lebanon Hospital Center in 2011, apparently because she was requested to do so by a social services agency, and the hospital's records note that: "she currently wants therapy to deal with her on-going interpersonal and other issues" (cl exh 19, p. 4). However, at trial, this was her version:

"Q. Okay, and why did you go to Bronx Lebanon?

A. I need to learn how to cope with the things that happened to [J's] father.

Q. Did you ever discuss with them your - -the rapes that Peter inflicted on you?

A. In passing.

Q. Can you tell the Court why you have not discussed these rapes with your current social worker and psychiatrist? [*5]

A. Because it still hurts."

This trier of fact saw claimant on the stand for parts of three days in the liability and damages trial phases. In the former, she calmly, if not coldly, relayed extensive detail about her interactions with Zawislak; claimant was distraught when recalling her earlier years. Furthermore, as we shall see below, claimant's testimony about her sleeping habits was inconsistent.

This brings us to the timing question - - when did JP's feelings for Zawislak turn, resulting in her sense of helplessness and inability to protect herself from his sexual demands. At the liability trial, she made reference to wanting it to stop in September 2000. When caught in her room on March 10, 2001, they were arguing. This could have been about the pregnancy, and it is possible that the breakup did not come until after JP learned of her pregnancy, told Zawislak, the two fought about it, and never had sex from then on.

As for the November 2000 date when she said that the sex became unwilling, claimant testified that at that time, she had heard rumors of Zawislak's involvement with other inmates, but conceded that she herself had seen nothing to suggest this, nor was she told by any of the other inmates that they had direct knowledge of such. It looks more likely that when the break actually came, claimant looked back to the time when things started to go bad. Asked about the effect of the rumors of November, this exchange occurred:

"Q. And that made you start looking at your relationship with Peter differently, correct?

A. Some of it, yes."

This trier of fact concludes that even given JP's credibility problems, she has met her evidentiary burden that estrangement from Zawislak occurred before the sex between the two stopped. JP's reason for breaking with Zawislak in January comes across as uncontrived. The officer told her he was going on vacation for one or two weeks, but was actually off for three weeks and according to claimant, everyone else but her knew it. The Court concludes that the unwilling sex began in the latter part of January and continued for something more than a month (note the above-quoted question and answer on claimant's direct testimony with February 2001 as the end date for the unwilling sex with Zawislak).

The earlier psychological stressors JP was subject to, on their face, were more severe than any she may have had from her encounter with Zawislak. Moreover, her actions and much of her testimony offer confirmation thereof.

After claimant's release from prison in late 2002, the only documented mental health treatment dates from several years later, at the Fordham-Tremont Center and the Bronx-Lebanon Hospital Center (cl exhs 16 and 19; def exh BB). They contain no specific reference to any sexual encounter with Zawislak at Bayview.

The Fordham-Tremont records run from February 16 through March 9, 2006, covering some three weeks. The records noted that she reported a depressed mood, low self-esteem and "ruminations" of death. It recorded three suicide attempts in the 1980's, but no current ideation then. On an item headed physical/sexual abuse, the record reads (hand numbered p.7): [*6]

"Molested by stepfather from age 5 to 12. Ct [client] ran away from home to make it stop. Mother didn't believe her. Uncle 5-7 yo. Ct physically abused by her mother, brother, and/or domestic violence."^[FN4]

The Bronx-Lebanon records are fairly recent; the first outpatient consult is October 27, 2011 (cl exh 19, p. 1). Note that the Bronx-Lebanon record of April 17, 2012, the last appointment we have, concludes that "The client's psychiatric symptoms have diminished and stabilized but the client needs to be maintained on a psychiatric medication regiment . . ." (cl exh 16, hand numbered p. 7).

On the stand, claimant added a little to the records. She said she had seen a counselor when she first came into State custody and saw the same individual again (who JP said was a licensed therapist) a few times after she became pregnant. When asked if she sought psychiatric care after her release in 2002, she answered that after a year, she went to Goodwill for two years, though it was unclear what kind of services it offered, and at some point, she went for psychiatric services at a hospital in Bronx County called Union Community. Around this time, in 2006, right after she had completed parole, JP was arrested on a drug charge, but released with community service, and claimant believes that this was the period when she went to Union Community for a few sessions.

At Fordham-Tremont, in response to a printed inquiry about the impact of such abuse, JP's own words are: "It killed me. All of my relationships are abusive" (def exh BB, hand numbered p. 7). The latter sentence could comprehend her encounters with Zawislak, but claimant never elaborated on this for anything we have in evidence. The Bronx-Lebanon records are nearly 40 pages; while a good deal of it covers current complaints and medications, there is, with one exception, no reference to her relationship with Zawislak. All the recorded history relates to childhood abuse, early pregnancies etc., except in the context of her unquestioned love for her son, which is consistent with her testimony and is credible:

"Patient also spoke about her fear of telling her son her history (e.g. that he was born while patient was in jail and that his dad was a security guard who impregnated patient while she was incarcerated) . . . She wants to admit the truth to him, but is afraid of how it will make her seem to him." (Cl exh 16, hand numbered pp. 17- 18).

On the witness stand, JP said that currently she has images of Raymond's sexual abuse of her, that she tries not to think of Miguel, but sometimes does, and is "sad for the little girl that I was back then and that I didn't have [any] help." She added that sometimes she thinks about the abuse Francisco subjected her to and feels sad about that. JP sometimes has images or

thoughts about having engaged in prostitution to pay for her heroin addiction, which makes her feel "[a]wful and ashamed."

Each party had a psychiatrist examine JP, and each submitted a report and testified at [*7]trial; Dr. Richard Dudley on behalf of claimant, and Dr. Lawrence Siegel for defendant. Dr. Dudley saw JP in February and June of 2012; the first appointment was three to four hours and the second was for one and a half hours. Dudley was also present in court for claimant's first day of testimony and reviewed the transcript from her second day (June 26 and 27, 2012). Dr. Siegel examined claimant on May 14 and May 17, 2012 for a total of five hours, sent her to a psychologist for intelligence testing and spoke briefly over the phone with her on May 25, 2012.

At the trial, Dr. Dudley indicated that when he met with JP, "she spoke about how she bought into this kind of fairy tale sort of possibility with Peter," and that:

"[T]here was this period before the breakup that she had described to me as kind of this fairy tale existence, that she thought that their relationship had some sort of meaning, that she was thinking about what would happen in the future when she was released . . . she was doing well. She was functioning all right and was - - and was feeling pretty good about herself, and hopeful."

But then, "there came a time [when it] wasn't a special relationship . . . wasn't exclusive . . . she felt that she had been used . . . And so she made a decision to extricate herself." Dr. Dudley goes on to effectively compare this to her early-life experiences: "against the backdrop of having what she believed [was she] stayed in too long in these prior relationships that were destructive to her . . . having found herself in another relationship which she felt was going to be harmful to her if she continued in it, that she made a decision to get out of it."

Dr. Dudley agreed with Dr. Siegel's conclusion that the symptoms JP reported are consistent with borderline personality disorder, and that children who were sexually abused when they become adults present with such disorder. Dr. Dudley concluded that as a result of her experience with Zawislak, she suffered from posttraumatic stress disorder and from depressive disorder N.O.S. (not otherwise specified), which he explained does not "neatly fit" into any specific categories for depression (cl exh 18).

In his report dated March 6, 2012, Dr. Dudley stated:

"Clearly, JP developed significant psychiatric difficulties as a result of her extremely difficult childhood and adolescence. More specifically, her childhood experiences caused instability in multiple important areas of functioning, including attachment (with fears of abandonment), her sense of self-worth/self-esteem, her ability to regulate her mood, and her ability to make sound decisions. She noted that she has never been able to talk about the cruelty she endured at the hands of her first boyfriend . . . her relationship with him was still quite traumatic for her."

(Cl exh 13, pp. 2-3).

Dr. Dudley added that although claimant "had not resolved all of the above by the time she was incarcerated, she was making at least some progress in understanding and addressing her issues" (Id., p. 3). Dr. Dudley on cross-examination testified that in his opinion, JP's relationship with Zawislak was equally traumatic with that of her stepfather who sexually abused her as a child, and more traumatic than what she suffered from Miguel.

Dr. Dudley testified that claimant's affect was more dramatic when talking about Zawislak and the subsequent associated events, rather than her earlier life, but to the extent that trial testimony accurately reflected her condition, this trier of fact saw something different. [*8]

Dr. Siegel's conclusion expressed in his testimony and report were more persuasive: that she "mobilizes significantly more emotion in discussing her strained relationship with her family and her traumas prior to her incarceration than she does in discussing the improper sexual activities that occurred in prison," and she does not have posttraumatic stress disorder (def exh AA, p. 30). The Court concludes in view of the evidence that claimant does not meet the criteria for PTSD (see cl exh 17) .

Dr. Siegel noted claimant's focus on her childhood traumatic events, her concern for her relationship with her four daughters and her worry about her son learning that he was conceived and born in prison and about her criminal past. Siegel concluded his 31-page report by stating that, "I find no good indication that this claimant has suffered significant emotional damages attributable to the improper sexual behaviors to which she was subjected while incarcerated." (def exh AA).

Claimant told Dr. Siegel that she does not have bad dreams or nightmares that interrupt her sleep, although she sleeps for three or four hours, wakes up, then goes back to sleep. JP said that she is alert for dangers to J, but not for herself. Claimant's following testimony, even if true, does not establish the necessary causal link to the unwilling sex with Zawislak:

"Well [by] 9:30 I'm in bed. I might fall asleep around 10:00, 10:30. I'll get up like maybe two hours later and check on [J], make sure my door's closed, make sure the windows are okay. I'll go back to sleep. I'll get up two hours later and do the same thing.

. . . I'm constantly checking the doors and making sure both locks are on, making sure all my windows are locked, make sure [J] is okay. When we're outside, I'm always walking like tense. I never realized that . . . a few people pointed it out to me that I always walk like I'm ready to run. . ."

A few other instances that do not show JP traumatized from her sex with Zawislak include: she wrote a letter on March 19, 2001 to the Bayview deputy superintendent trying to get moved back to the honor dorm (def exh N); her casual and friendly letters in April 2001 to her friend Cookie (although she did express anger at Zawislak);^[FN5] and her concealing Zawislak's identity from the Inspector General's office in late April (although the two had been discovered in her room in March) even when it was known she was pregnant.^[FN6] Furthermore, according to JP's liability trial testimony, the following occurred: after JP was released from prison and a few months after Zawislak was released from serving some two years for rape in the third degree, she [*9]had sex with Zawislak once. In the damages phase, claimant added that the two had "started talking." JP testified that she did so to get back at him. JP and Zawislak shared custody of their son, with Zawislak having J on the weekends. In evidence are four photographs that show JP, Zawislak and their son together (def exhs Y1-3 and Y5). To this trier of fact, they were happy in every photo; those smiles were not forced for the camera .

The Court finds no subsequent psychological damage because of the Zawislak sexual activities. Even without a finding of a diagnosed psychological condition or detriment, a claimant may still be compensated for some sequelae such as memories affecting sleep (see Kenneth H. v State of New York, UID No. 2008-016-018 [Ct Cl, Marin, J., May 1, 2008]). But here, JP does not make the case; she says she wakes up and worries about her son. When she does try to make the case, she tries to prove too much with her checking-the-locks testimony. The Court is mindful of the principle that we take a claimant as we find her and that a condition can be exacerbated by subsequent injury (PJI 2:282). Dr. Dudley in his report states that JP's "early and repetitive trauma increased the likelihood of her developing these more serious psychiatric difficulties . . . it is the adult trauma she endured at the hands of Zawislak that ultimately caused her to develop these more severe difficulties," (Cl exh 13, p. 4) but the Court does not find that result.^[FN7]

What I do find is that claimant is entitled to recover for her statutory rape by Zawislak, with damages principally for the period of the unwilling violation of JP's corporeal integrity for more than a month and JP's fear thereof during that period: the Court awards $350,000.

JP seeks recompense for loss of various privileges that occurred when her sexual activities with the officer were discovered. The State was found 100% liable, so that whether claimant complied, for example, with the manual that inmates are issued which includes keeping a proper distance from correction officers (sexual or otherwise) does not, for our purposes, come into play. The ordinary and customary principles of negligence law applies - - how was claimant's daily life affected? She was transferred out of Bayview - - the honor dorm being the only time in her life up to then she had had her own room - - to a facility away from immediate proximity to her family which had a special housing unit (SHU) to which she was demoted.

Any period of time in the prison infirmary or hospital receiving medical treatment is not actionable. As for the effect on her sentence, we do not have the Parole Board's decision or the transcript of its proceedings. There is insufficient evidence to find that her custodial stay was lengthened. Moreover, her SHU ticket was reversed by the Bayview deputy superintendent. For the actionable changes in her daily life as a result of the State's liability, the Court awards $10,000.

In sum, the Court awards $360,000 for past pain and suffering; for the reasons stated above, the Court makes no award for future pain and suffering. Accordingly, the Clerk of the Court is directed to enter such award with the statutory rate of interest from August 3, 2011 to date together with the return of any filing fee per §11-a(2) of the Court of Claims Act. [*10]

ALAN C. MARIN

Judge of the Court of Claims