By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
"My fear was incredible," Madrazo recalls, "I didn't know if anybody would help me or protect menobody had given me simple human treatment since they took me there. But I decided I had to fight. I had been punished my whole life since I was little and that made me emotionally strong."
After a few days, Madrazo confided about the rape to a Krome psychiatrist and to a representative from the Mexican consulate, who made a visit to Krome. And with their support, she made an official complaint to a Krome captain on May 20. But the next night, Smith brought her dinner tray to her cell. Later, he returned. Says Madrazo, "He did it again."
"I wanted to scream, but I couldn't," Madrazo recalls. "He told me if I say anything, I'm gonna pay. I felt so angry, so impotent. He called me a bitch and said I deserved it, like he was glad."
This time, Madrazo went to the doctor first thing in the morning, and told what had happened. A Krome official asked her, "How are you going to prove it?" And she gave a ready answer: "I have his sperm." She had kept her soiled underwear as evidence.
Sheldon demanded Madrazo's immediate release, but she was taken to the psychiatric hospital. Weeks later, an immigration judge granted her releaseon a bond of $15,000, a sum far beyond Madrazo's means. She remained in the institution while the investigation lumbered on. The FBI had to order Smith to comply with a blood test, but the DNA matched. "That," says attorney Sheldon, "is the only reason they haven't deported Christina."
On August 31, 2000, a month after Madrazo's July release, investigators came up with the indictment. Last May, Sheldon was shocked again when prosecutors let Smith cop a plea. Sheldon suspects that the government didn't want the embarrassment of having to explain why they'd allow a guard to keep watch over a woman he'd raped a week beforebetter to agree that the sex was consensual. U.S. Attorney Scott Ray, who prosecuted the case, discounts the theory. "I just didn't have proof beyond a reasonable doubt," he says.
What raised the doubt? Some of Madrazo's semen was found on a towel in the bathroom of her cell. While involuntary ejaculations are certainly possible even during a rape, Ray says that Madrazo had no answer for why her sperm would be there, and that raised questions about her credibility. Sheldon scoffs at this reasoning. Madrazo wishes she could laugh at it: "What does it have to do with anything?"
Ray agrees that "there's no such thing as consensual sex" between a detainee and a guard. "That's why it's a crime." And he also figures that Madrazo has a good chance of winning a settlement under the tort claims act for the distress she sufferedthe burden of proof is far lower in such civil claims than the "beyond a reasonable doubt" standard required in criminal cases. Madrazo and Sheldon filed such a claim in May 2000, demanding $1 million, but the government's only reply was to ask, in a letter of September 14, 2001, for further explanation of the damages they were seekingand whether she would settle for less. When such a claim is not dealt with, aggrieved parties may sue, as long as they file within two years of the alleged crime. So that is what Madrazo and Sheldon are ready to do.
Sheldon knows that they are about to go up against "the biggest and most powerful law firm in the world." But both are determined. Says Madrazo, "I can't forget about it. I can't move on with my life unless I know we tried to get justice." Now working part-time doing alterations for a clothing shop, Madrazo knows, too, that the fight will not only be hard. It will be ugly. "Transsexuals have the worst reputation," she says. "They will try to find everything bad about me and use it against me. They will try to destroy me."
Sheldon acknowledges the point, but sees the case a little differently. True, none of this would have happened to Madrazo if she weren't transsexual. But, he says, "I see it more as an immigration issue than as transsexual issue. Somebody comes to the U.S. and asks for asylum, and we put that person in detention? That innocent person seeking asylum? Where she gets raped? Immigrants just can't be treated that way."
This is the third of an ongoing series investigating the INS.
Contact the author: firstname.lastname@example.org