Impunity: Sexual abuse in women's prisons

Harvard Civil Rights-Civil Liberties Law Review

Volumn 42, Issue 1, 2007, Pages 45-87

  Buchanan, Kim Shayo ^a,b  

^a The Earth Institute at Columbia University   (United States)

^b YORK UNIVERSITY   (Canada)

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[No Author keywords available]

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EID: 34047137840     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (418)

1. Angela Davis, Public Imprisonment and Private Violence: Reflections on the Hidden Punishment of Women, 24 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 339, 350 (1998).
2. In this Article, I use the term "prison" to refer generally to all forms of institutional criminal incarceration, including federal and state prisons and local jails.
3. See AMNESTY INT'L, ABUSE OF WOMEN IN CUSTODY: SEXUAL MISCONDUCT AND SHACKLING OF PREGNANT WOMEN (2006), available at http://www.amnestyusa.org/women/ custody/custody_all.pdf [hereinafter ABUSE OF WOMEN IN CUSTODY] (highlighting general concern about assault in prison);
4. AMNESTY INT'L, UNITED STATES OF AMERICA: "NOT PART OF MY SENTENCE": VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY (1999), available at http://web.amnesty.org/library/Index/engAMR510011999 [hereinafter NOT PART OF MY SENTENCE] (providing general information about women in prison);
5. HUMAN RIGHTS WATCH, ALL TOO FAMILIAR: SEXUAL ABUSE OF WOMEN IN U.S. STATE PRISONS (1996), available at http://www.hrw.org/ reports/1996/USl.htm [hereinafter ALL TOO FAMILIAR] (detailing specific acts of abuse in prison);
6. HUMAN RIGHTS WATCH, NOWHERE TO HIDE: RETALIATION AGAINST WOMEN IN MICHIGAN STATE PRISONS (1998), available at http://www.hrw.org/reports98/women/Mich.htm [hereinafter NOWHERE TO HIDE] (discussing privacy violations and abuse in prison);
7. U.N. Comm. on Human Rights, Report of the Human Rights Committee: Volume 1, ¶¶ 285, 289, U.N. Doc. A/50/40 (Feb. 4, 1996), available at http://www.unhchr.ch/tbs/DOCNSF/ 8e9c603f486cdf83802566f8003870e7/bbd592d8d48 a76fec12563f000586adc? OpenDocument#A%2F50%2F40E (expressing Committee's concern regarding serious allegations of sexual abuse of female prisoners by male prison guards);
8. U.N. Econ. & Soc. Council, Sub-Comm. on Human Rights, Integration of the Human Rights of Women and the Gender Perspective: Violence Against Women, U.N. Doc. E/CN.4/ 1999/68/Add.2 (Jan. 4, 1999) (prepared by Radhka Coomaraswamy), available at http://www. unhchr.ch/HurIdocda/ HurIdocda.nsf/0/7560a6237c67bb118025674c004406e9?Opendocument [hereinafter Violence Against Women] (noting prevalence of harassment and rape);
9. U.N. High Comm'r for Human Rights, Conclusions and Recommendations of the Committee Against Torture: United States of America ¶ 179, U.N. Doc. A/55/44 (May 15, 2000), available at http://www.unhchr.ch/tbs/doc. nsf/(Symbol)/A.55.44,paras.175-180.En?OpenDocument (discussing humiliation of women in prison).
10. See also Davis, supra note 1, at 350-51; Deborah M. Golden, It's Not All in My Head: The Harm of Rape and the Prison Litigation Reform Act, 11 CARDOZO WOMEN'S L.J. 37, 42-43 (2004);
11. Teresa A. Miller, Keeping the Government's Hands Off Our Bodies: Mapping a Feminist Legal Theory Approach to Privacy in Cross-Gender Prison Searches, 4 BUFF. CRIM. L. REV. 861, 866-89 (2001);
12. Brenda V. Smith, Watching You, Watching Me, 15 YALE J.L. & FEMINISM 225, 230-33 (2003);
13. Jennifer R. Weiser, The Fourth Amendment Right of Female Inmates To Be Free from Cross-Gender Pat-Frisks, 33 SETON HALL L. REV. 31, 32-33 (2002);
14. Ashlie E. Case, Comment, Conflicting Feminisms and the Rights of Women Prisoners, 17 YALE J.L. & FEMINISM 309, 309-12 (2005);
15. Cindy Chen, Note, The Prison Litigation Reform Act of 1995: Doing away with More Than Just Crunchy Peanut Butter, 78 ST. JOHN'S L. REV. 203, 215 (2004);
16. Ashley E. Day, Comment, Cruel and Unusual Punishment of Female Inmates: The Need for Redress Under 42 U.S.C. § 1983, 38 SANTA CLARA L. REV. 555, 555-56 (1998);
17. Anthea Dinos, Note, Custodial Sexual Abuse: Enforcing Long-Awaited Policies Designed to Protect Female Prisoners, 45 N.Y.L. SCH. L. REV. 281 (2001) (discussing the inadequacy of remedies available for custodial sexual abuse);
18. Amy Laderberg, Note, The "Dirty Little Secret": Why Class Actions Have Emerged as the Only Viable Option for Women Inmates Attempting To Satisfy the Subjective Prong of the Eighth Amendment in Suits for Custodial Sexual Abuse, 40 WM. & MARY L. REV. 323, 338 (1998);
19. Katherine C. Parker, Note and Comment, Female Inmates Living in Fear: Sexual Abuse by Correctional Officers in the District of Columbia, 10 AM. U. J. GENDER SOC. POL'Y & L. 443, 451, 460-61 (2002).
20. CRISTINA RATHBONE, A WORLD APART: WOMEN, PRISON AND LIFE BEHIND BARS 42-65 (2005);
21. Lori B. Girshick, Abused Women and Incarceration, in WOMEN IN PRISON: GENDER AND SOCIAL CONTROL 95, 109 (Barbara H. Zaitzow & Jim Thomas eds., 2003).
22. See generally Cheryl Bell et al., Rape and Sexual Misconduct in the Prison System: Analyzing America's Most "Open" Secret, 18 YALE L. & POL'Y REV. 195, 210 (1999) (discussing abuse of women in prison).
23. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989) ("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being."); Logan v. United States, 144 U.S. 263, 284 (1892) (holding that the government owes a duty to protect prisoners against "assault or injury from any quarter" and that prisoners have a corresponding substantive due process right to such protection); see also Helling v. McKinley, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 103-04(1976).
24. See BRENDA V. SMITH, AM. UNIV., FIFTY-STATE SURVEY OF CRIMINAL LAWS PROHIBITING SEXUAL ABUSE OF PRISONERS (2001), http://www.nicic.org/Downloads/PDF/ Video/statelaws.pdf. Amnesty International notes that every state has criminalized this contact except Alabama, Minnesota, Oregon, Utah, Vermont, and Wisconsin. As of March 1, 2006, a criminalization bill had passed both houses in Utah and was awaiting the governor's signature. ABUSE OF WOMEN IN CUSTODY, supra note 3, at 1, 13. It is important to note, however, that Colorado, Missouri, and Wyoming permit prisoner consent to mitigate the offense; in addition, Arizona, California, Delaware, and Nevada punish both the prisoner and the guard for this behavior. Id. at 5. Finally, in some states prison disciplinary rules establish that having sex with a guard is a disciplinary offense for which a prisoner can be punished. New York only abolished its version of such a disciplinary rule in 2006. E-mail from Dori Lewis to author, Litigator, Legal Aid Soc'y Prisoners' Rights Project (Apr. 18, 2006) (on file with author). Moreover it is important to note that on its own, criminal liability often is an inadequate deterrent to sexual abuse. In a state where criminal liability exists, a prisoner must still convince prison authorities that her reports should be taken seriously enough to be investigated by the police. Prison administrators deem most prisoner reports unfounded and thus many cases are not investigated. See Preliminary Statement ¶¶ 24-37, Amador v. Dep't of Corr. Servs., No. 03 Civ. 0650, (S.D.N.Y. Jan. 28, 2003) [hereinafter Amador Statement]; Interview with Dori Lewis, Litigator, Legal Aid Soc'y Prisoners' Rights Project, in N.Y., N.Y. (Oct. 31, 2005).
25. See, e.g., AMNESTY INT'L, AMNESTY INTERNATIONAL USA: WOMEN (2006), http:// www.amnestyusa.org/ women/custody/ (providing state-by-state survey of policies and practices based on information obtained from state and federal attorneys general, correctional departments, court documents, and the Federal Bureau of Prisons);
26. U.S. GEN. ACCOUNTING OFFICE, WOMEN IN PRISON: SEXUAL MISCONDUCT BY CORRECTIONAL STAFF 3 (1999), available at http://www.wcl.american.edu/ faculty/smith/0303conf/gao_ggd99104.pdf? rd=1 [hereinafter SEXUAL MISCONDUCT BY CORRECTIONAL STAFF] (noting that by 1999, at least twenty-three correctional administrations had been named as defendants in class-action or individual lawsuits alleging sexual misconduct); see also Everson v. Mich. Dep't of Corr., 391 F.3d 737, 741 (6th Cir. 2005); Morris v. Eversley, 343 F. Supp. 2d 234, 242 (S.D.N.Y. 2004); Fisher v. Goord, 981 F. Supp. 140, 149 (W.D.N.Y. 1997); Nunn v. Mich. Dep't of Corr., No. 96-CV-71416, 1997 WL 33559323 at *1 (E.D. Mich. Feb. 4, 1997); Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 649 (D.D.C. 1995).
27. See, e.g., Prison Rape Elimination Act of 2003 §§ 1-9, 42 U.S.C.A. §§ 15601-15609 (2003); ALLEN J. BECK & TIMOTHY A. HUGHS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT: SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, 2004 (2005), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/svrca04.pdf [hereinafter SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES];
28. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, DETERRING STAFF SEXUAL ABUSE OF FEDERAL INMATES 4 (2005), available at http:// www.usdoj.gov/oig/special/0504/final.pdf [hereinafter DETERRING STAFF SEXUAL ABUSE];
29. SEXUAL MISCONDUCT BY CORRECTIONAL STAFF, supra note 7, at 3 ("In 1996, the National Association of Correctional Administrators identified staff sexual misconduct as one of its major management concerns."); see also NAT'L INST. OF CORR., U.S. DEP'T OF JUSTICE, ADDRESSING STAFF SEXUAL MISCONDUCT WITH OFFENDERS, REMOTE CONFERENCE FOR INVESTIGATING AND PREVENTING STAFF SEXUAL MISCONDUCT IN A CORRECTIONS SETTING (2001);
30. Louise Bill, The Victimization and Revictimization of Female Offenders, 60 CORRECTIONS TODAY, Dec. 1998, at 106.
31. See supra note 3.
32. See Girshick, supra note 4, at 109-10; see also Violence Against Women, supra note 3, at ¶¶ 74-75 (noting that inmates fear retaliation and that guards operate with impunity). See generally ALL TOO FAMILIAR, supra note 3 (documenting ineffective responses and retaliation in various states); NOWHERE TO HIDE, supra note 3 (noting that virtually all women interviewed for a previous report who had reported abuse faced retaliation).
33. The misnamed Prison Rape Elimination Act of 2003 does not adequately punish or eliminate sexual abuse. It establishes no sanctions for guards who rape prisoners or for institutions that look the other way when prisoners are raped. Apart from threatening to name prisons that accept federal rape-prevention funds but subsequently fail to comply with asyet-to-be-adopted national standards, the statute does not take any steps to limit the incidence of sexual abuse in prison. Instead, it establishes procedures for compiling prison rape statistics and allots funds to support prison rape prevention policies. The best that can be said of this legislation is that it at least acknowledges in the congressional findings that prison rape is unconstitutional. Prison Rape Elimination Act of 2003 § 15601.
34. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified as amended at 11 U.S.C § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A (2000); 42 U.S.C. §§ 1997a-1997f, 1997h (2000)).
35. See Zanita E. Fenton, Silence Compounded - The Conjunction of Race and Gender Violence, 11 AM. U. J. GENDER SOC. POL'Y & L. 271, 278-79, 283-84 (2003) [hereinafter Fenton, Silence Compounded];
36. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1296 (2004);
37. Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, 3 PUNISHMENT & SOC'Y 95, 118 (2001).
38. While reports differ as to the exact rates of incarceration by race, the plurality of U.S. women prisoners are black, and Latinas are also overrepresented in relation to the population. Compare NOT PART OF MY SENTENCE, supra note 3, § 3.1 (more than 52% of U.S. female prisoners African American), and ALL TOO FAMILIAR, supra note 3, at 17 ("Hispanic" women also grossly overrepresented), with LAWRENCE A. GREENFIELD & TRACY L. SNELL, U.S. DEP'T OF JUSTICE, WOMEN OFFENDERS 5-6 (1999) (revised 2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ wo.pdf [hereinafter WOMEN OFFENDERS] (black women represent 35% of federal prisoners, 48% of state prisoners, and 44% of inmates of local jails; Hispanic women account for 32% of federal, 15% of state, and 15% of local prisoners; white women constitute 29% of federal, 33% of state, and 36% of local prisoners; other women make up 4% of federal, 4% of state, and 5% of local prisoners).
39. See Davis, supra note 1, at 350 (noting the historical resonance between contemporary images of women prisoners and the treatment of black women under slavery).
40. See Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CAL. L. REV. 77 (2000) [hereinafter Siegel, Color Blindness];
41. Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) [hereinafter Siegel, Rule of Love];
42. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111 (1997) [hereinafter Siegel, Equal Protection]:
43. see also J. M. Balkin, The Constitution of Status, 106 YALE L.J. 2313 (1997).
44. Siegel, Rule of Love, supra note 16, at 2206.
45. Id. at 2184.
46. Siegel, Equal Protection, supra note 16, at 1148.
47. See Siegel, Rule of Love, supra note 16, at 2184; see also Grutter v. Bollinger, 539 U.S. 306, 333, 341-42 (2003); Gratz v. Bollinger, 539 U.S. 244, 270-72 (2003); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003); United States v. Virginia, 518 U.S. 515, 523 (1996); Frontiero v. Richardson, 411 U.S. 677, 682-84, 687-88 (1973); Reed v. Reed, 404 U.S. 71, 76 (1971); Loving v. Virginia, 388 U.S. 1, 12 (1967); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
48. See LENORA LAPIDUS ET AL., ACLU, BRENNAN CTR. FOR JUSTICE, & BREAK THE CHAINS, CAUGHT IN THE NET: THE IMPACT OF DRUG POLICIES ON WOMEN AND FAMILIES 345 (2005), http://www.fairlaws4families.org/final-caught-in-the-net-report.pdf [hereinafter CAUGHT IN THE NET];
49. see also BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER ENTRAPMENT OF BATTERED BLACK WOMEN (1996).
50. Balkin, supra note 16, at 2320, 2342-58.
51. Id. at 2361.
52. Siegel, Equal Protection, supra note 16, at 1148.
53. Davis, supra note 1, at 350.
54. These human rights abuses include: racism; physical violence; arbitrary discipline; discriminatory security classification; inadequate health care; abusive conditions of incarceration (e.g., solitary confinement and supermax prison facilities); interference with privacy, religion, and expression; and failure to protect against inmate violence. See Girshick, supra note 4, at 105-08; James E. Robertson, A Punk's Song About Prison Reform, 24 PACE L. REV. 527, 537-47 (2004) [hereinafter Robertson, A Punk's Song] (discussing state support of prison hierarchy involving abuse of punks and queens in men's prisons);
55. Wil S. Hylton, Sick on the Inside: Correctional HMOs and the Coming Prison Plague, HARPER'S, Aug. 2003, at 43, 54 (detailing inadequate and abusive medical care in prisons);
56. see also William Bennett Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners' Rights Litigation, 23 STAN. L. REV. 473, 484-90 (1971) (discussing violations of religious freedom, individual expression, and right to medical care in prison).
57. See Pub. L. No. 108-79 (codified as the Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2003)), Findings, § 2 ¶ 6 ("Prison rape often goes unreported, and inmate victims often receive inadequate treatment for the severe physical and psychological effects of sexual assault - if they receive treatment at all."); ABUSE OF WOMEN IN CUSTODY, supra note 3, at 12; SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, supra note 8, at 2;
58. DIANA MAJURY, WOMEN'S LEGAL EDUC. & ACTION FUND, THE TIP OF THE DISCRIMINATION ICEBERG: BARRIERS TO DISCLOSURE OF THE ABUSE AND MISTREATMENT OF FEDERALLY SENTENCED WOMEN 8 (2003), available at http://www.elizabeth fry.ca/submissn/leaf/leaf.pdf [hereinafter THE TIP OF THE DISCRIMINATION ICEBERG];
59. DETERRING STAFF SEXUAL ABUSE, supra note 8, at 3.
60. RATHBONE, supra note 4, at 81; Telephone Interview with Philip Genty, Professor of Law, Columbia Law Sch., in N.Y., N.Y (Aug. 4, 2005); Interview with Dori Lewis, supra note 6.
61. As we have seen with the "wars" on drugs and, more recently, terrorism, the war metaphor often "indicates tacit approval of the fact that such processes sacrifice rights." PAULA C. JOHNSON, INNER LIVES: VOICES OF AFRICAN AMERICAN WOMEN IN PRISON 48 (2003) (citing David Rudovsky, The Impact of the War on Drugs on Procedural Fairness and Racial Equality, 1994 U. CHI. LEGAL F. 237 (1994)).
62. CAUGHT IN THE NET, supra note 21, at 27-32. See generally JOHNSON, supra note 29.
63. Violence Against Women, supra note 3, ¶ 26;
64. HUMAN RIGHTS WATCH, UNITED STATES: PUNISHMENT AND PREJUDICE: RACIAL DISPARITIES IN THE WAR ON DRUGS (2000), available at http://www.hrw.org/reports/2000/usa/ [hereinafter WAR ON DRUGS]; JOHNSON, supra note 29, at 45-47. One Seattle study "revealed a significant level of white involvement in the crack cocaine market, [but] because police associated blacks with crack cocaine they were predisposed to focus on arresting blacks to the exclusion of whites engaged in the same behavior."
65. CAUGHT IN THE NET, supra note 21, at 30-31.
66. MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA 105(1995).
67. See, e.g., LLOYD D. JOHNSTON ET AL., MONITORING THE FUTURE: NATIONAL RESULTS ON ADOLESCENT DRUG USE: OVERVIEW OF KEY FINDINGS 2003 40, 41 (2004), available at http://www.monitoringthefuture.org/pubs/monographs/overview2003.pdf (showing that African Americans in high school use drugs at similar or lower rates than whites);
68. CAUGHT IN THE NET, supra note 21, at 27 ("[W]omen of color are arrested for drug related offenses at far higher rates than white women, despite lower or equal rates of drug use.");
69. Danice K. Eaton et al., Youth Risk Behavior Surveillance - United States, 2005, MORBIDITY & MORTALITY WEEKLY REPORT: SURVEILLANCE SUMMARIES (Ctrs. for Disease Control & Prevention, Atlanta, Ga.), June 9, 2006, at 1, available at http://www.cdc.gov/mmwr/PDF/ ss/ss5505.pdf (showing that African Americans in high school do not tend to use drugs more than white students).
70. But see SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., DEP'T OF HEALTH & HUMAN SERVS., RESULTS FROM THE 2005 NATIONAL SURVEY ON DRUG USE AND HEALTH: NATIONAL FINDINGS 22 (2006), available at http://oas.samhsa.gov/ sduh/2k5nsduh/2kResults.pdf (reporting that 9.7% of African Americans are current users of illicit drugs, compared to 8.1% of whites).
71. WAR ON DRUGS, supra note 31. Although studies repeatedly show that blacks use crack cocaine at only slightly higher per capita rates than whites, "black crack users are much more likely to be sentenced under . . . harsh [mandatory minimum sentencing] laws."
72. CAUGHT IN THE NET, supra note 21, at 26.
73. WAR ON DRUGS, supra note 31;
74. CAUGHT IN THE NET, supra note 21, at 16-18. The "war on drugs" has introduced an increased reliance on incarceration to deal with the non-violent crimes committed by women. Current drug laws criminalize "not just those who sell drugs, but also a wide range of people who help or merely associate with those who sell drugs."
75. CAUGHT IN THE NET, supra note 21, at 35. Broad definitions of conspiracy, accomplice liability, and constructive possession expose women - as users, couriers, family members, or hangers-on - to criminal liability for partners' or relatives' conspiracies to trade in large amounts of drugs. Mandatory minimum sentences based on the amount of drugs involved rather than the nature of the accused's participation further expose women to lengthy drug sentences. Moreover, because women are more likely to serve in low-level capacities rather than as principals in the drug trade, women charged with drug offenses are unlikely to have information to trade with prosecutors in exchange for more lenient sentencing. See id. at 35-43.
76. CAUGHT IN THE NET, supra note 21, at 16.
77. MARC MAUER ET AL., GENDER AND JUSTICE: WOMEN, DRUGS, AND SENTENCING POLICY 5 (1999), available at http://www.sentencingproject.org/ pdfs/9042.pdf.
78. MAUER ET AL., supra note 37, at 10.
79. James E. Robertson, The Majority Opinion as the Construction of Social Reality: The Supreme Court and Prison Rules, 53 OKLA. L. REV. 161, 187-88 (2000) [hereinafter Robertson, Majority Opinion].
80. The Department of Justice estimates that two-thirds of women in state prisons have been physically or sexually abused prior to their incarceration. WOMEN OFFENDERS, supra note 14, at 1, 8; see also Jordan v. Gardner, 986 F.2d 1521, 1523 (9th Cir. 1992) (quoting the testimony of a California women's prison psychologist that eighty-five percent of female prisoners reported they had been sexually abused);
81. Violence Against Women, supra note 3, ¶ 29 (noting that prison administrators had advised that "at least two thirds" of the female prisoners had been physically or sexually abused in the past);
82. CAROLINE WOLF HARLOW, U.S. DEP'T OF JUSTICE, PRIOR ABUSE REPORTED BY INMATES AND PROBATIONERS (1999), available at http://www.ojp. usdoj.gov/bjs/pub/pdf/parip.pdf;
83. JEAN HARRIS, THEY ALWAYS CALL US LADIES: STORIES FROM PRISON 116 (1998); JOHNSON, supra note 29, at 7 ("Sixty-nine percent of women under correctional system authority reported that physical or sexual abuse occurred before they reached eighteen years of age.");
84. CAUGHT IN THE NET, supra note 21, at 9; RATHBONE, supra note 4, at 22; Girshick, supra note 4, at 97-98 (citing several relevant studies);
85. Lisa Krim, A Reasonable Woman's Version of Cruel and Unusual Punishment: Cross-Gender, Clothed-Body Searches of Female Prisoners, 6 UCLA WOMEN'S L.J. 85, 112-13 (1995) (citing an American Correctional Association published profile "indicating that the typical female prisoner was sexually abused between the ages of five and fourteen, usually by a male in her immediate family"); Laderberg, supra note 3, at 338 n.97.
86. See CAUGHT IN THE NET, supra note 21, at 47-48; Girshick, supra note 4, at 96.
87. See CAUGHT IN THE NET, supra note 21, at 9-10.
88. Id. at 9.
89. Kimberle Crenshaw, Race, Gender, and Sexual Harassment, 65 S. CAL. L. REV. 1467, 1469-71 (1992) [hereinafter Crenshaw, Sexual Harassment];
90. Fenton, Silence Compounded, supra note 13, at 283-84.
91. Davis, supra note 1, at 344.
92. ROBERT BACHMAN & LINDA E. SALTZMAN, U.S. DEP'T OF JUSTICE, VIOLENCE AGAINST WOMEN: ESTIMATES FROM THE REDESIGNED SURVEY 4 (1995), available at http:// www.ojp.usdoj.gov/bjs/ pub/pdf/femvied.pdf [hereinafter ESTIMATES FROM THE REDESIGNED SURVEY];
93. see also Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1251 n.35 (1991) [hereinafter Crenshaw, Mapping the Margins]; Davis, supra note 1, at 344.
94. CAUGHT IN THE NET, supra note 21, at 9-10; Girshick, supra note 4, at 96-99.
95. CAUGHT IN THE NET, supra note 21, at 9 (citing BETH E. RICHIE, COMPELLED TO CRIME: THE GENDER ENTRAPMENT OF BATTERED BLACK WOMEN 125-27 (1996)).
96. See RATHBONE, supra note 4, at 22 ("[These women] are frequently mere accessories to their crimes: girlfriends, wives, or lovers of drug dealers, even leaseholders of apartments in which drugs are stashed.").
97. CAUGHT IN THE NET, supra note 21, at 35-37.
98. See id. at 3, 24-25; see also Violence Against Women, supra note 3, ¶¶ 11-13, 18-20. See generally JOHNSON, supra note 29; RATHBONE, supra note 4.
99. WOMEN OFFENDERS, supra note 14, at 7.
100. Id.
101. Id.
102. See JOHNSON, supra note 29, at 32-34 (noting that in the immediate post-Civil War period, "[w]hite women were systematically channeled out of prisons, while African American women were systematically channeled into them"); see also KATHRYN WATTERSON BURKHART, WOMEN IN PRISON 32-35 (1973) (discussing same phenomenon in early 1970s).
103. NOT PART OF MY SENTENCE, supra note 3, at Part V.
104. See, e.g., NOWHERE TO HIDE, supra note 3; see also ABUSE OF WOMEN IN CUSTODY, supra note 3, at 17.
105. RATHBONE, supra note 4, at 57.
106. Id.
107. Robertson, Majority Opinion, supra note 39, at 166-69.
108. Id. at 184. See MICHAEL JACKSON, JUSTICE BEHIND THE WALLS: HUMAN RIGHTS IN CANADIAN PRISONS 616-17 (Barbara Pulling ed., 2002).
109. See RATHBONE, supra note 4, at 44-65.
110. Violence Against Women, supra note 3, ¶ 55.
111. SEXUAL MISCONDUCT BY CORRECTIONAL STAFF, supra note 7, at 4.
112. ABUSE OF WOMEN IN CUSTODY, supra note 3, at 6 (revealing that forty-five states allow pat-down searches of female prisoners by male guards in some circumstances and that in six states - Connecticut, Kansas, Michigan, New Hampshire, New York, and Pennsylvania - such cross-gender physical searches are routine). However, New York has recently issued a directive limiting cross-gender pat frisks. E-mail from Dori Lewis to author, supra note 6.
113. See ALL TOO FAMILIAR, supra note 3;
114. Violence Against Women, supra note 3, at ¶¶ 55-63.
115. Bill, supra note 8, at 106-12; Laderberg, supra note 3, at 338; see also CAUGHT IN THE NET, supra note 21, at 15-16, 53-54.
116. See JOHNSON, supra note 29, at 99-100, 110-11, 136, 144-46, 161-62, 186.
117. See RATHBONE, supra note 4, at 58.
118. RATHBONE, supra note 4, at 58.
119. Id. at 49.
120. Id. at 51.
121. Girshick, supra note 4, at 108-10; see also RATHBONE, supra note 4, at 47-51.
122. See Fisher v. Goord, 981 F. Supp. 140, 145-46 (W.D.N.Y. 1997); Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 666 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995); Amador Statement, supra note 6, ¶¶ 47(c), 51(g); RATHBONE, supra note 4, at 52.
123. NOWHERE TO HIDE, supra note 3.
124. Girshick, supra note 4, at 108.
125. See id.
126. RATHBONE, supra note 4, at 52-54.
127. Id. at 54.
128. See id. at 58-59.
129. See Davis, supra note 1, at 350 (noting resonances between contemporary imprisonment and slavery).
130. George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1899 (1999).
131. Mikel-Meredith Weidman, The Culture of Judicial Deference and the Problem of Supermax Prisons, 51 UCLA L. REV. 1505, 1509 (2004);
132. Note, Constitutional Rights of Prisoners: The Developing Law, 110 U. PA. L. REV. 985, 985 (1962) [hereinafter Constitutional Rights of Prisoners].
133. Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871).
134. See Comment, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 YALE L.J. 506, 506, 508-09, 515-16 (1963) [hereinafter Beyond the Ken of the Courts].
135. Id. at 507.
136. Constitutional Rights of Prisoners, supra note 83, at 987 (emphasis omitted).
137. See Turner, supra note 26, at 473, 503; Beyond the Ken of the Courts, supra note 85, at 507;
138. Constitutional Rights of Prisoners, supra note 83, at 985, 1506.
139. Wacquant, supra note 13, at 98-99; see also ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 22-39 (2003);
140. Lewis R. Gordon, Philosophical Anthropology, Race, and the Political Economy of Disenfranchisement, 36 COLUM. HUM. RTS. L. REV. 145, 156-60 (2004).
141. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1856).
142. State v. Mann, 13 N.C. (2 Dev.) 263 (1829); MARK V. TUSHNET, SLAVE LAW IN THE AMERICAN SOUTH: STATE V. MANN IN HISTORY AND LITERATURE 58 (2003).
143. TUSHNET, supra note 91, at 25.
144. Mann, 13 N.C. at 263.
145. W.E.B. DUBOIS, THE SOULS OF BLACK FOLK 200-01 (Signet Classics 1969) (1903);
146. see also ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863-1877, 593-94 (1988).
147. Blyew v. United States, 80 U.S. (13 Wall.) 581, 592-93 (1872) (upholding statutory exclusion of three black witnesses' testimony against the accused white person on the basis that federal court had no jurisdiction over Thirteenth Amendment challenge to the statute because the witnesses, unlike the accused, were not persons "affected" by the criminal prosecution).
148. FONER, supra note 94, at 150.
149. Id.
150. Id. at 151.
151. Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1856); State v. Mann, 13 N.C. (2 Dev.) 263 (1829).
152. Siegel, Equal Protection, supra note 16, at 1121-22; FONER, supra note 94, at 592.
153. U.S. CONST. amend. XIII, § 1.
154. See CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE 171-83 (1989) [hereinafter MACKINNON, TOWARD A FEMINIST THEORY];
155. Susan Estrich, Rape, 95 YALE L.J. 1087 (1986);
156. Zanita E. Fenton, Mirrored Silence: Reflections on Judicial Complicity in Private Violence, 78 OR. L. REV. 995, 1018, 1019 (1999) [hereinafter Fenton, Mirrored Silence];
157. Kendall Thomas, Beyond the Privacy Principle, 92 COLUM. L. REV. 1431, 1464-65, 1482-83 (1992).
158. FONER, supra note 94, at 593.
159. JOHNSON, supra note 29, at 23-24; Crenshaw, Mapping the Margins, supra note 46, at 1272.
160. Fenton, Mirrored Silence, supra note 102, at 999; Siegel, Rule of Love, supra note 16, at 2118.
161. MACKINNON, TOWARD A FEMINIST THEORY, supra note 102, at 171-83; Estrich, supra note 102, at 1090.
162. Thomas, supra note 102, at 1490-91.
163. Robertson, A Punk's Song, supra note 26, at 540.
164. Thomas, supra note 102, at 1484.
165. See TUSHNET, supra note 91, at 32; Siegel, Rule of Love, supra note 16, at 2122-23.
166. See Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393, 427 (1856); State v. Rhodes, 61 N.C. (Phil.) 453, 459 (1868) ("We will not inflict upon society the greater evil of raising the curtain upon domestic privacy, to punish the lesser evil of trifling violence."); State v. Mann, 13 N.C. (2 Dev.) 263, 263 (1829); TUSHNET, supra note 91, at 58; Siegel, Rule of Love, supra note 16, at 2123, 2132, 2157.
167. See, e.g., Fenton, Mirrored Silence, supra note 102, at 1018.
168. Siegel, Rule of Love, supra note 16, at 2153-60.
169. Id. at 2153 (quoting State v. Hussey, 44 N.C. (Busb.) 123, 126-27 (1852)).
170. Id. at 2122-23.
171. Id. at 2128 (quoting REPORT OF THE WOMAN'S RIGHTS CONVENTION, HELD AT SENECA FALLS, N.Y., JULY 19TH & 20TH, 1848, at 6 (Rochester, John Dick 1848)).
172. Id. at 2154.
173. Fenton, Mirrored Silence, supra note 102, at 1034; Siegel, Rule of Love, supra note 16, at 2150-53.
174. Elizabeth M. Schneider, The Violence of Privacy, 23 CONN. L. REV. 973, 976-84 (1991);
175. Siegel, Rule of Love, supra note 16, at 2155-56.
176. Siegel, Rule of Love, supra note 16, at 2154-55.
177. Id. at 2120.
178. Id. at 2134-41; see also Fulgham v. State, 46 Ala. 143 (1871); Harris v. State, 14 So. 266 (Miss. 1894); Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South After the Civil War, 3 J. HIST. SEXUALITY 402, 403 (1993).
179. Crenshaw, Mapping the Margins, supra note 46, at 1256; see also Siegel, Rule of Love, supra note 16, at 2140.
180. Siegel, Rule of Love, supra note 16, at 2134-40.
181. Id. at 2153.
182. See Carlton F. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. PA. L. REV. 863, 870 (2006);
183. see also Fenton, Mirrored Silence, supra note 102, at 1019;
184. Kathryn Preyer, Crime, the Criminal Law and Reform in Post-Revolutionary Virginia, 1 LAW & HIST. REV. 53, 64 (1983);
185. Elizabeth M. Schneider, Equal Rights to Trial for Women: Sex Bias in the Law of Self Defense, 15 HARV. C.R.-C.L. L. REV. 623, 628-29 (1980).
186. Fenton, Mirrored Silence, supra note 102, at 1020-22. In practice, the murders of slaves were rarely prosecuted. See TUSHNET, supra note 91, at 13.
187. State v. Mann, 13 N.C. (2 Dev.) 263 (1829); TUSHNET, supra note 91, at 33-36.
188. JOHNSON, supra note 29, at 22-23.
189. Id. at 23-24; Crenshaw, Mapping the Margins, supra note 46, at 1271-73.
190. See Furman v. Georgia, 408 U.S. 238, 364-65 (1972) (Marshall, J., concurring); Adrien Katherine Wing & Sylke Merchan, Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America, 25 COLUM. HUM. RTS. L. REV. 1, 27 (1993);
191. Barbara Holden-Smith, Inherently Unequal Justice: Interracial Rape and the Death Penalty, 86 J. CRIM. L. & CRIMINOLOGY 1571 (2000)
192. (reviewing ERIC W. RISE, THE MARTINSVILLE SEVEN: RACE, RAPE, AND CAPITAL PUNISHMENT (1995)).
193. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 102, at 175-76, 179.
194. See PATRICIA HILL-COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, ONSCIOUSNESS, AND THE POLITICS OF EMPOWERMENT 166-68, 177-79 (1990); JOHNSON, supra note 29, at 23-24; Crenshaw, Sexual Harassment, supra note 44, at 1469-71.
195. See ANGELA Y. DAVIS, WOMEN, RACE, AND CLASS 175-76 (1981); HILL-COLLINS, supra note 133, at 178;
196. Pamela D. Bridgewater, Un/Re/Dis Covering Slave Breeding in Thirteenth Amendment Jurisprudence, 7 RACE & ETHNIC ANC. L.J. 11 (2001);
197. Crenshaw, Mapping the Margins, supra note 46, at 1276 n.118;
198. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1719 (1993).
199. JOHNSON, supra note 29, at 22.
200. MACKINNON, TOWARD A FEMINIST THEORY, supra note 102, at 175.
201. State v. Rhodes, 61 N.C. (Phil.) 453, 454 (1868), quoted in Siegel, Rule of Love, supra note 16, at 2154.
202. See Robertson, Majority Opinion, supra note 39, at 172;
203. James E. Robertson, Psychological Injury and the Prison Litigation Reform Act: A "Not Exactly," Equal Protection Analysis, 37 HARV. J. ON LEGIS. 105, 109 (2000) [hereinafter Robertson, Psychological Injury];
204. Margot Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1565 (2003).
205. 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 635 (1736).
206. Akhil Reed Amar, Concurring in Roe, Dissenting in Doe, in WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S MOST CONTROVERSIAL DECISION 152, 165 (Jack M. Balkin ed., 2005).
207. See id. at 165; Crenshaw, Mapping the Margins, supra note 46, at 1266; Estrich, supra note 102, at 1135.
208. Amar, supra note 140, at 165; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70 (1873).
209. Crenshaw, Sexual Harassment, supra note 44, at 1469.
210. See FONER, supra note 94, at 421.
211. Relatively few prisoners are convicted of crimes that reflect dishonesty, such as fraud, embezzlement, or perjury; a plurality are imprisoned for drug crimes and most of the rest for violent crimes. WOMEN OFFENDERS, supra note 17, at 5-6.
212. See Fisher v. Goord, 981 F. Supp. 140, 162 (W.D.N.Y. 1997).
213. Girshick, supra note 4, at 109.
214. In our own legal system, a connection was once drawn between chastity and . . . veracity. In other words, a women [sic] who was likely to have sex was not likely to tell the truth. Because Black women were not expected to be chaste, similarly, they were unlikely to tell the truth. Judges were known to instruct juries to take a Black woman's word with a grain of salt. Crenshaw, Sexual Harassment, supra note 44, at 1469; see also Crenshaw, Mapping the Margins, supra note 46, at 1269, 1279-80.
215. See THÉRÈSE LAJEUNESSE ET AL., CROSS GENDER MONITORING PROJECT: THIRD AND FINAL ANNUAL REPORT 36-37 (2000), available at http://www.csc-scc.gc.ca/text/prgrm/ fsw/gender3/ cg3_finalversion_e.rtf;
216. David M. Adlerstein, Note, In Need of Correction: The "Iron Triangle" of the Prison Litigation Reform Act, 101 COLUM. L. REV. 1681, 1695-96 (2001).
217. Adlerstein, supra note 149, at 1694.
218. Girshick, supra note 4, at 109.
219. See id.; see also Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 666 (D.D.C. 1994) ("By leaking private information [about grievances] prison officials coerce women prisoners and staff into silence and insulate themselves from scrutiny."), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995);
220. NOT PART OF MY SENTENCE, supra note 3, at Part V.5;
221. ALL TOO FAMILIAR, supra note 3;
222. NOWHERE TO HIDE, supra note 3; Bell, supra note 4, at 204-05;
223. John Boston, The Prison Litigation Reform Act: The New Face of Court Stripping, 67 BROOK. L. REV. 429, 431 & n.7 (2001); Adlerstein, supra note 149, at 1696.
224. See MACKINNON, TOWARD A FEMINIST THEORY, supra note 102, at 179; LEE MADIGAN & NANCY GAMBLE, THE SECOND RAPE: SOCIETY'S CONTINUED BETRAYAL OF THE VICTIM (1991).
225. Lucas v. White, 63 F. Supp. 2d 1046, 1050 (N.D. Cal. 1999).
226. NOT PART OF MY SENTENCE, supra note 3.
227. Lucas, 63 F. Supp. 2d at 1050.
228. Amador Statement, supra note 6, ¶¶ 34(a), 37, 39(d), 39(p), 49(1).
229. Id. ¶ 34; E-mail from Dori Lewis to author, supra note 6.
230. E-mail from Dori Lewis to author, supra note 6.
231. Id.
232. See RATHBONE, supra note 4, at 56-57; Laderberg, supra note 3, at 324.
233. Fisher v. Goord, 981 F. Supp. 140, 162 (W.D.N.Y. 1997) (quoting Michael Urban, Assistant Inspector Gen. of N.Y. Dep't of Corr. Servs.).
234. Under traditional rape law, there were special jury instructions about the danger of convicting on a woman's testimony alone. Estrich, supra note 102, at 1135, 1140.
235. Adlerstein, supra note 149, at 1691.
236. Violence Against Women, supra note 3, ¶ 62.
237. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 3
238. (citing Kristin Bumiller, Victims in the Shadow of the Law: A Critique of the Model of Legal Protection, 12 SIGNS 421, 429 (1987));
239. see also LAJEUNESSE ET AL., supra note 149, at 80.
240. Amador Statement, supra note 6, ¶ 45(f); NOWHERE TO HIDE, supra note 3.
241. RATHBONE, supra note 4, at 55, 65; see also Amador Statement, supra note 6, ¶¶ 35, 39(q), 47(f) ("Women may be charged with disciplinary offenses for having sexual relations with staff, despite the fact that sexual acts by prisoners with staff are involuntary as a matter of state law.") (referring to N.Y. Penal Law § 130.05(e)); NOWHERE TO HIDE, supra note 3.
242. Amador Statement, supra note 6, ¶ 49(h); ABUSE OF WOMEN IN CUSTODY, supra note 3, at 27;
243. RATHBONE, supra note 4, at 55, 65.
244. See, e.g., NOWHERE TO HIDE, supra note 3; RATHBONE, supra note 4, at 61.
245. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 8; see also Girshick, supra note 4, at 107.
246. ESTIMATES FROM THE REDESIGNED SURVEY, supra note 46, at 1;
247. MACKINNON, TOWARD A FEMINIST THEORY, supra note 102, at 179; Estrich, supra note 102, at 1140.
248. These reasons include shame, fear of the abuser's revenge, concern that the woman will not be believed, certainty that her conduct will be judged against rape myths and stereotypes about appropriate feminine conduct, fear that the investigation will prove as humiliating as the assault, and concern that police or courts will be unsympathetic to her claims. See R. v. Ewanchuck, [1999] S.C.R. 330, 336 (L'Heureux-Dubé and Gonthier, JJ., agreeing with the judgment) (Can.); R. v. Seaboyer, [1991] 2 S.C.R. 577, 650 (L'Heureux-Dubé, J., dissenting in part) (Can.); THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 8; see also R. v. Osolin, [1993] 4 S.C.R. 595, 624-27 (L'Heureux- Dubé, J., dissenting) (Can.).
249. See Amador Statement, supra note 6, ¶ 26 (noting that the threat of underreporting is exacerbated in prison); ABUSE OF WOMEN IN CUSTODY, supra note 3, at 13, 15 (discussing reasons victims of sexual assault may underreport abuse);
250. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 8 ("Allegations of abuse are complicated and compromised when they occur in institutional settings.");
251. DETERRING STAFF SEXUAL ABUSE, supra note 8, at 2 ("Due to fear of reprisal from perpetrators, a code of silence among inmates, personal embarrassment, and lack of trust in staff, victims are often reluctant to report incidents to correctional authorities.").
252. NOT PART OF MY SENTENCE, supra note 3; NOWHERE TO HIDE, supra note 3; Violence Against Women, supra note 3; Bell, supra note 4, 210-11.
253. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 7; Laderberg, supra note 3, at 362-63; see also Dinos, supra note 3, at 293.
254. SEXUAL VIOLENCE REPORTED BY CORRECTIONAL AUTHORITIES, supra note 8, at 2; THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 10.
255. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 10.
256. See LOUISE ARBOUR, COMMISSION OF INQUIRY INTO CERTAIN EVENTS AT THE PRISON FOR WOMEN IN KINGSTON 162 (1996), available at http://www.justicebehindthewalls. net/resources/arbour_report/arbour_rpt.htm; JACKSON, supra note 61, at 616-17;
257. SKYBLUE MORIN, FEDERALLY SENTENCED ABORIGINAL WOMEN IN MAXIMUM SECURITY: WHAT HAPPENED TO THE PROMISES OF "CREATING CHOICES"? (1999), available at http://www.csc-scc.gc. ca/text/prgrm/fsw/skyblue/toce_e.shtml;
258. Jessica Feierman, Creative Prison Lawyering: From Silence to Democracy, 11 GEO. J. ON POVERTY L. & POL'Y 249, 263 (2004);
259. Andrea Jacobs, Prison Power Corrupts Absolutely: Exploring the Phenomenon of Prison Guard Brutality and the Need to Develop a System of Accountability, 41 CAL. W. L. REV. 277, 278 (2004); see also Adlerstein, supra note 149, at 1695.
260. RATHBONE, supra note 4, at 57-58.
261. Id. at 50-52, 58.
262. Id. at 58-59.
263. Id. at 59.
264. See, e.g., Fisher v. Goord, 981 F. Supp. 140, 145-46 (W.D.N.Y 1997).
265. See Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995); RATHBONE, supra note 4, at 62.
266. RATHBONE, supra note 4. at 54.
267. Id. at 60-61.
268. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 4.
269. Id. at 4-5.
270. Id. at 5.
271. Id.
272. W. at 5-6 (quoting Donna Young, Memorandum on the Handling of Race Discrimination Complaints at the Ontario Human Rights Comm'n to the Anti-Racism Coram. (Oct. 23, 1992) [hereinafter Young Memo]).
273. LAJEUNESSE ET AL., supra note 149, at 80; see also Amador Statement, supra note 6, ¶ 33(b).
274. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 5-6 (citing Young Memo, supra note 192).
275. HILL-COLLINS, supra note 133, at 178.
276. THE TIP OF THE DISCRIMINATION ICEBERG, supra note 27, at 10.
277. Id.
278. Id. at 4.
279. See, e.g., Nunn v. Mich. Dep't of Corr., No. 96-CV-71416, 1997 WL 33559323, at *1 (E.D. Mich. Feb. 4, 1997); Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995).
280. See Everson v. Mich. Dep't of Corr., 391 F.3d 737, 741 (6th Cir. 2004); Torres v. Wisconsin, 859 F.2d 1523 (7th Cir. 1988).
281. Everson, 391 F.3d at 740.
282. See Fisher v. Goord, 981 F. Supp. 140, 145-48, 150 (W.D.N.Y. 1997) (refusing injunction on basis that prisoner was "not credible" because she had formed a "plan" to get a transfer by reporting sexual activity with corrections officers; the court found some of this activity not to have happened because it was uncorroborated, and stated that other activity "could only reasonably be described as consensual" because the prisoner "never tried to fight [the guards] off, scream, or yell").
283. Schlanger, supra note 138, at 1603-07.
284. Id. at 1622; see, e.g., Butler v. Dowd, 979 F.2d 661 (8th Cir. 1992) (upholding jury award of one dollar nominal damages against prison administration for failing to protect male prisoners against rape by other inmates).
285. 343 F. Supp. 2d 234, 238 (S.D.N.Y. 2004) (holding that a female prisoner who suffered sexual assault was entitled to compensation for attorney's fees, paralegal fees, and relevant costs, in addition to a jury award of compensatory and punitive damages).
286. Outside of the prison context, damage awards for sexual assault are typically much higher. A recent survey of civil actions for sexual assault resolved in state appellate courts between 2001 and 2004 found that damage awards in sexual assault cases outside prison can range from nothing to well over one million dollars. But in cases involving institutional liability, "a significant number of cases award compensatory damages of $100,000 to $200,000." Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil Courts: Lessons for Courts, Classrooms, and Constituencies, 59 SMU L. REV. 55, 96-97 & n.267 (2006) (listing cases). As Bublick observes, "[i]nadequate damage awards may be a particular issue when the victim and the assailant are acquaintances or partners," as they are by definition in cases of custodial sexual abuse. Id. at 95 (citing Louviere v. Louviere, 839 So. 2d 57, 76 (La. Ct. App. 2002) (awarding assaulter's estranged wife less than twenty-five percent of damages awarded to unrelated victim who suffered similar sexual assaults); A.R.B. v. Elkin, 98 S.W.3d 99, 104-05 (Mo. Ct. App. 2003) (reversing trial award of $100 nominal damages to son abused by father, setting aside award of no damages to daughter abused by father, and remanding with instruction to consider compensatory and punitive damages for both children); Beaver v. Mont. Dep't of Natural Res. & Conservation, 78 P.3d 857, 874-75 (Mont. 2003) (holding that $9095 award for sexual assault by co-worker was not inadequate)).
287. Morris, 343 F. Supp. 2d at 248.
288. In the rare instances in which a man is incarcerated for raping a black woman, "the average sentence given to Black women's assailants is two years. The average sentence given to white women's assailants is ten years." Crenshaw, Sexual Harassment, supra note 44, at 1471.
289. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified as amended at 11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A (2000); 42 U.S.C. §§ 1997a-1997f, 1997h (2000)).
290. Schlanger, supra note 138, at 1557-58; Robertson, Psychological Injury, supra note 138, at 142 (pointing out that the "rate of filings per 1000 inmates decreased seventeen percent between 1980 and 1996").
291. See 141 CONG. REC. S14611-01 (daily ed. Sept. 29, 1995).
292. Jamie Ayers, Comment, To Plead or Not To Plead: Does the Prison Litigation Reform Act's Exhaustion Requirement Establish a Pleading Requirement or an Affirmative Defense?, 39 U.C. DAVIS L. REV. 247, 248 n.2 (2005) (describing frivolous claims, all of which were filed by male prisoners, discussed by Congress).
293. 141 CONG. REC. S14611-01 (daily ed. Sept. 29, 1995).
294. Id.
295. Women Prisoners of the D.C. Dep't of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994), vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995).
296. Schlanger, supra note 138, at 1559.
297. See id. at 1650; Adlerstein, supra note 149, at 1694-95.
298. Siegel, Rule of Love, supra note 16, at 2150 (quoting State v. Rhodes, 61 N.C. (Phil.) 453, 457 (1868)).
299. 42 U.S.C. § 1997e(a) (2000); see also Booth v. Churner, 532 U.S. 731, 739 (2001); Schlanger, supra note 138, at 1649-54. Previously, the Civil Rights of Institutionalized Persons Act provided that a lawsuit could be "continue[d]" for ninety days for a prisoner (or other litigant subject to the Act) to exhaust "such plain, speedy and effective administrative remedies as are available," if the Attorney General certified that the available administrative remedies were in "substantial compliance with . . . minimum acceptable standards." Pub. L. No. 96-247, 94 Stat. 349, 352 (1980) (codified as amended at 42 U.S.C. § 1997e (2000)). The PLRA removed the requirements of administrative remedies that are "plain, speedy and effective" and of Attorney General certification for prisoners, but not for other institutionalized persons. See Schlanger, supra note 138, at 1695-96.
300. Schlanger, supra note 138, at 1650-53.
301. Boston, supra note 152, at 431.
302. Schlanger, supra note 138, at 1653-54 (citing cases in which prisoner litigation was barred even though the missed grievance deadline resulted from the prisoner's hospitalization for the injury that gave rise to the lawsuit); Adlerstein, supra note 149, at 1695.
303. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.7(a)(1) (2004). See generally Brief of the ACLU et al. as Amici Curiae Supporting Petitioner at 12-16, Booth v. Churner, 532 U.S. 731 (2001) (No.99-1964) (demonstrating other grievance processes impose even shorter deadlines).
304. E-mail from Dori Lewis to author, supra note 6.
305. Amador Statement, supra note 6, ¶¶ 34(a), 37, 39(d), 39(p), 49(1); Interview with Dori Lewis, supra note 6.
306. See, e.g., Amador Statement, supra note 6, ¶ 49(g) ("During [the] investigation into Officer Gilbert's misconduct by Albion officials and by staff of the Inspector General's office, Ms. Rock was subjected to demeaning statements, including comments about her supposed sexual activities prior to her incarceration. She was threatened, including a threat that her parole date would be delayed. She was subjected to an intrusive strip frisk of her entire body and photographs were taken of her in her bra and panties.").
307. 42 U.S.C. § 1997e(e) (2000); see also 28 U.S.C. § 1346(b)(2) (2000); Royal v. Kautzky, 375 F.3d 720, 723 (8th Cir. 2004); Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Searles v. Van Bebber, 251 F.3d 869, 876-77 (10th Cir. 2001); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000); Zehner v. Trigg, 133 F.3d 459, 461-64 (7th Cir. 1997). But see Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998) (declining to apply injury requirement to First Amendment claims).
308. See Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997) (leading case holding PLRA requires more than de minimis physical harm); infra, notes 314-318 and accompanying text; see also Oliver v. Keller, 289 F.3d 623 (9th Cir. 2002); Robertson, Psychological Injury, supra note 138, at 118-19; Schlanger, supra note 143, at 1630-31.
309. See Golden, supra note 3, at 46.
310. Boston, supra note 152, at 434-43; Stacey Heather O'Bryan, Closing the Courthouse Door: The Impact of the Prison Litigation Reform Act's Physical Injury Requirement on the Constitutional Rights of Prisoners, 83 VA. L. REV. 1189, 1201 (1997).
311. See, e.g., Williams v. Prudden, No. 02-1754, 2003 U.S. App. LEXIS 9553, at *4 (8th Cir. May 19, 2003); Liner v. Goord, 196 F.3d 132 (2d Cir. 1999); Boston, supra note 152, at 441, 434-43 (arguing that, in effect, courts "have rewritten a statute that bars the filing of a certain kind of civil action so that it bars the award of certain kinds of damages instead").
312. See, e.g., Thompson, 284 F.3d at 418; Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Harris v. Garner, 190 F.3d 1279, 1288 (11th Cir. 1999); Harper v. Showers, 174 F.3d 716, 719 (6th Cir. 1999); Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 808 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998); Zehner v. Trigg, 133 F.3d 459, 462-63 (7th Cir. 1997).
313. See, e.g., Williams, 2003 U.S. App. LEXIS 9553, at *4; Liner, 196 F.3d at 135.
314. Kemner v. Hemphill, 199 F. Supp. 2d 1264, 1270 (N.D. Fla. 2002).
315. City of Riverside v. Rivera, 477 U.S. 561, 568 (1986).
316. As of January 1, 2006, the CJA hourly rate is $92. See INSTRUCTIONS FOR COMPLETING THE CJA FORM 20: APPOINTMENT OF AND AUTHORITY TO PAY COURT APPOINTED COUNSEL 2 (Mar. 22, 2006), available at http://www.moed.uscourts.gov/documents/cja Directions.pdf.
317. See supra notes 204-207 and accompanying text.
318. Schlanger, supra note 138, at 1641-42 (noting that in order to bypass PLRA attorney's fee barriers, prisoners' rights attorneys may seek to represent either persons who have been released or families of prisoners who have died).
319. 28 U.S.C. § 1915A(a) (2000). A court must review and may dismiss a claim if it is frivolous or malicious, or fails to state a claim, without providing an opportunity for plaintiff to respond. Id. A defendant need not respond to the prisoner's claim unless the court determines that the claim has "reasonable opportunity to prevail on the merits" and orders defendant to respond. 42 U.S.C. § 1997e(g)(2) (2000); see also Schlanger, supra note 138, at 1629-30.
320. 18 U.S.C. § 3626(a)(1)(A) (2000).
321. 18 U.S.C. §§ 3626(b)(1)(A)(iii), 3626(b)(3).
322. Dinos, supra note 3, at 294; see also Adlerstein, supra note 149, at 1692.
323. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also Scott v. Moore, 85 F.3d 230 (3d Cir. 1996).
324. Monell, 436 U.S. at 690-91; see also Scott, 85 F.3d at 233.
325. Canton v. Harris, 489 U.S. 378, 390 (1989). For a discussion of the difficulties that "deliberate indifference" presents to prisoners' sexual abuse litigation, see infra notes 320-331 and accompanying text.
326. "The Eleventh Amendment bars [Section 1983 suits against the state] unless the State has waived its immunity, or unless Congress has exercised its undoubted power under Section 5 of the Fourteenth Amendment to override that immunity." Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). "[A] suit against a state official in his or her official capacity . . . is a suit against the official's office. As such it is no different from a suit against the State itself." Id. at 71.
327. See, e.g., Ottman v. City of Independence, 341 F.3d 751, 761 (8th Cir. 2003); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995); Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992); Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982); Morris v. Eversley, 282 F. Supp. 2d 196, 203 (S.D.N.Y. 2003).
328. For example, the Second Circuit has found that when a defendant did not participate directly in the constitutional violation, a plaintiff may only establish personal involvement by showing that a supervisor (1) failed to remedy a known wrong, (2) created an environment where the violation was tolerated, or (3) was grossly negligent in supervising the subordinates that caused the violation. Williams, 781 F.2d at 323. It is fairly easy for supervisors to satisfy their responsibilities under this doctrine to avoid liability. For example, a supervisor may fulfill his responsibility to take appropriate action to remedy a known wrong by referring the report to the correctional investigative agency. See Morris, 282 F. Supp. 2d at 205; Eng v. Coughlin, 684 F. Supp. 56, 66 (S.D.N.Y. 1988). For similar requirements in other circuits see, for example, Ottman, 341 F.3d at 761; Cottone, 326 F.3d at 1360; Crowder, 687 F.2d at 1005. For this reason, the Eleventh Circuit explained, "the standard by which a supervisor is liable in her individual capacity for the actions of a subordinate is extremely rigorous." Braddy v. Fla. Dep't of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998).
329. See Morris, 282 F. Supp. 2d at 206 ("Morris presents no evidence . . . from which a reasonable jury could find that Dixon or Porter created an environment in which the violation of inmates' constitutional rights was encouraged and tolerated." (emphasis added)).
330. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 50 (1998);
331. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 353 (2000).
332. Jeffries, supra note 250, at 50.
333. Interview with Dori Lewis, supra note 6.
334. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
335. Harlow, 457 U.S. at 818.
336. See Schwenk v. Hartford, 204 F.3d 1187, 1205 (9th Cir. 2000) (finding it well established that raping an inmate "constitutes a violation of the Eighth Amendment and no reasonable prison guard could have believed otherwise").
337. Day, supra note 3, at 580-81.
338. See Bowie v. Cal. Dep't of Corr., No. 95-55539, 1996 WL 593182, at *2 (9th Cir. Oct. 8, 1996); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir. 1995).
339. In Vermont, consensual sex between prisoners and guards has not been banned by statute; in Colorado, New Hampshire, and Wyoming, prisoner "consent" mitigates the offense. ABUSE OF WOMEN IN CUSTODY, supra note 3.
340. Current precedent suggests that the standard may not be very exacting. See supra note 248 and accompanying text.
341. Richardson v. McKnight, 521 U.S. 399, 408-09 (1997) (analyzing a section 1983 claim against guards in a private prison, the Court described unwarranted timidity as "the most important special government immunity producing concern").
342. Levinson, supra note 250, at 351.
343. See Morris v. Eversley, 282 F. Supp. 2d 196, 204 (2003) ("The use of summary judgment by government officials claiming qualified immunity is expressly encouraged to reduce the burden of defending insubstantial suits.").
344. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982); see also Butz v. Economou, 438 U.S. 478, 504-05 (1978); Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).
345. Harlow, 457 U.S. at 817.
346. Siegel, Rule of Love, supra note 16, at 2156.
347. "Doubtless many correctional facilities are autonomously managed with due concern for inmates' rights - and do not foment costly litigation as a result." Adlerstein, supra note 149, at 1688.
348. Canadian federal and provincial Crown liability acts provide that governments, their agents, and employees are liable in tort under the same liability rules as private actors. See, e.g., Crown Liability and Proceedings Act, R.S.C., ch. C 50, ss. 3, 5, 35-36 (1985) (Can.); Crown Proceeding Act, R.S.B.C., ch. 89, s. 2(c) (1996) (Can.); Proceedings Against the Crown Act, R.S.O., ch. P.27, s. 5 (1990) (Can.). There are no exceptions for correctional administrators or employees, and no common law exceptions such as the Monell rule or qualified immunity. Under Canadian law, a prison administration owes a common law duty of care to prisoners in its custody. Funk v. Clapp, [1986] 68 B.C.L.R. (2d) 222, 225, 231-32. Thus federal and provincial governments could be held liable, vicariously or in negligence, for intentional sexual abuse by a prison guard, or for sexual abuse that results from prison officials' negligent acts or omissions.
349. The Supreme Court observed: For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Preiser v. Rodriguez, 411 U.S. 475, 492 (1973).
350. See Robertson, Majority Opinion, supra note 39, at 182.
351. See supra note 5 and accompanying text.
352. Weidman, supra note 83, at 1514.
353. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
354. Turner v. Safley, 482 U.S. 78, 89 (1987).
355. Id.
356. Sandin v. Connor, 515 U.S. 472, 482 (1995).
357. Id. at 483 (citing Burgin v. Nix, 899 F.2d 733, 735 (8th Cir. 1990)).
358. Id. (citing Lyon v. Farrier, 727 F.2d 766, 768-69 (8th Cir. 1984)).
359. Turner, 482 U.S. at 89.
360. Id. at 84-85.
361. Id. at 84-85, 90.
362. Robertson, Majority Opinion, supra note 39, at 182 (footnotes omitted) (citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Bell v. Wolfish, 441 U.S. 529, 562 (1979)).
363. Block v. Rutherford, 468 U.S. 576, 596 (1984) (Marshall, J., dissenting).
364. Cruz v. Beto, 405 U.S. 319, 321 (1972); Johnson v. Avery, 393 U.S. 483, 485 (1969).
365. Hudson v. Palmer, 468 U.S. 517, 523 (1984); Procunier v. Martinez, 416 U.S. 396, 405-06 (1974).
366. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974); see also Block, 468 U.S. at 601 n.9; Hudson, 468 U.S. at 523.
367. Bell, 441 U.S. at 547.
368. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995); see also Turner v. Safley, 482 U.S. 78, 90 (1987); Bell, 441 U.S. at 547.
369. See Wacquant, supra note 13, at 96; see also supra notes 52-55 and accompanying text.
370. JOHNSON, supra note 29, at 31.
371. Weidman, supra note 83, at 1521.
372. Id. at 1550-51.
373. 543 U.S. 499 (2005).
374. Johnson, 543 U.S. at 510 (quoting Overton v. Bazzeta, 539 U.S. 126, 131 (2003)).
375. Id.
376. Id. at 505; see also Lee v. Washington, 390 U.S. 333, 333-34 (applying heightened standard of review when evaluating racial segregation in prison).
377. Id. at 511 (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).
378. See supra notes 217-221 and accompanying text.
379. See supra Part I.B.
380. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
381. Id.
382. See, e.g., Roe v. Wade, 410 U.S. 113, 152-53 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965).
383. See, e.g., Turner v. Safley, 482 U.S. 78, 89 (1987) ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.").
384. See Amy Kapczynski, Same-Sex Privacy and the Limits of Antidiscrimination Law, 112 YALE L.J. 1257, 1271-72 (2003) (citing Norwood v. Dale Maint. Sys., 590 F. Supp. 1410 (N.D. Ill. 1984)).
385. Such practices include watching the prisoners in their housing units, viewing them in the shower and on the toilet, and performing intrusive body searches. Kim Shayo Buchanan, Beyond Modesty: Privacy in Prison and the Risk of Sexual Abuse, 88 MARQ. L. REV. 751, 763-73 (2005).
386. Hudson v. Palmer, 468 U.S. 517, 526 (1984).
387. See Rodriguez v. McClenning, 399 F. Supp. 2d 228, 239 (S.D.N.Y. 2005).
388. Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998); Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993); Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir. 1992); Michenfelder v. Sumner, 860 F.2d 328, 334 (9th Cir. 1988); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986).
389. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995).
390. Weiser, supra note 3, at 32.
391. Hudson, 517 U.S. at 526.
392. Id. at 528.
393. Id. at 530.
394. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that deliberate indifference to prisoners' medical needs constitutes cruel and unusual punishment under the Eighth Amendment).
395. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) ("Our cases have held that a prison official violates the Eighth Amendment only when . . . the deprivation alleged [is], objectively, 'sufficiently serious.'" (citation omitted)).
396. Williams v. Prudden, No. 02-1754, 2003 U.S. App. LEXIS 953, at *4 (8th Cir. May 19, 2003) (finding allegations that male guard "forcibly ground his pelvis against" female inmate and "attempted to force himself upon her" stated an Eighth Amendment claim); Schwenk v. Hartford, 204 F.3d 1187, 1197-98 (9th Cir. 2000) (holding attempted rape stated Eighth Amendment claim).
397. See, e.g., Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006) (holding female guard ordering male prisoner to masturbate under threat of reprisal not more than de minimis harm); Jackson v. Madery, 158 F. App'x 656, 661 (6th Cir. 2005) (holding "rubbing and grabbing Jackson's buttocks in a degrading and humiliating manner" not more than de minimis harm); Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997) (finding "welcome and voluntary sexual interactions," such as kissing and hugging, between female guard and male prisoner not more than de minimis harm); Boddie v. Schnieder, 105 F.3d 857, 861-62 (2d Cir. 1997) (holding that although female guard verbally sexually harassed, touched, and rubbed her body against male plaintiff, this was not "severe enough" to meet de minimis standard); Bowie v. Cal. Dep't of Corr., No. 95-55539, 1996 WL 593182, at *2 (9th Cir. Oct. 15, 1996) (concluding verbal sexual harassment and demands for sex, without touching, were not "clearly established" Eighth Amendment violation). However, a trend of declining judicial tolerance of sexual harassment and threats may be emerging. See Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003) (finding that guards making "ribald comments" during strip search, making sexual gestures, and forcing male prisoner to "perform sexually provocative acts" stated Eighth Amendment claim); Rodriguez v. McClenning, 399 F. Supp. 2d 228 (S.D.N.Y. 2005) (finding Eighth Amendment violation for groping and implicit sexual threats during "pat-frisk" physical search without explicit discussion of "de minimis harm" standard).
398. 59 F.3d 1034 (10th Cir. 1995).
399. Id. at 1036-37.
400. Id.
401. Farmer v. Brennan, 511 U.S. 825, 835 (1994) (citations omitted).
402. See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979); Washington v. Davis, 426 U.S. 229, 238-44 (1976).
403. Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976).
404. Farmer, 511 U.S. at 837.
405. Id. at 838.
406. See id. at 837 ("[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.").
407. Dinos, supra note 3, at 291, 293. But see Farmer, 511 U.S. at 843 n.8 ("While the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him, he would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist."); Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999) (holding proof of malice not necessary when clear that sex was forced); Carrigan v. Davis, 70 F. Supp. 2d 448, 454-55 (D. Del. 1999) (finding that criminal law banning guards' sex with prisoners establishes "deliberate indifference" regardless of whether guard had "consensual" sex with inmate or raped her).
408. See Hovater v. Robinson, 1 F.3d 1063, 1067-68 (10th Cir. 1993).
409. Adlerstein, supra note 149, at 1695 (observing that staff in some institutions actively discourage prisoners from filing internal grievances).
410. Laderberg, supra note 3, at 323.
411. Buchanan, supra note 304, at 807.
412. Id. at 808.
413. Siegel, Equal Protection, supra note 16, at 1148.
414. Balkin, supra note 16, at 2323.
415. Id. at 2340.
416. See generally SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN, AND RAPE (1975) (exploring history and social understanding of rape and rape law);
417. CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979) (exposing the prevalence of sexual harassment in the workplace and arguing for legal recognition of such behavior as sex discrimination);
418. DIANA E. H. RUSSELL, THE POLITICS OF RAPE: THE VICTIM'S PERSPECTIVE (1974) (providing a collection of women's accounts of their rapes that challenge common myths to reveal rape as rooted in sexism).