The Ninth Circuit has handed down an interesting ruling that reaffirms that sexual contact requires consent. What is different is that the case deals with prison sex. Former Idaho prison guard Sandra de Marti is accused of sexual harassment in groping inmate Conway Wood. The case is Wood v. Beauclair, 2012 U.S. App. LEXIS 18575 (9th Cir.).
The guard is described by the court as having a “reputation for . . . being overly friendly with the inmates.” She reportedly was transferred to Wood’s block and allegedly began to pursue him sexually. However, when Wood (who had found religion in prison) discovered that she was married, he told her that he did not want to have a personal relationship. He testified “she had to be honest with me. Because I did express to her before that my feelings on adultery . . . . I was kind of crushed in a way because. . . I believed that we were working on something . . . that we had a future together . . . I said that we needed to back off . . . . [W]e got to stop.” When she persisted and came into this cell and groped him, he allegedly objected and told her not to. This was followed by what Wood described as aggressive patdowns where she fondled him.
The court then offers an interesting discussion of sex in prison and the difficulty in discerning voluntary from coerced sex between a guard and inmate:
The rationale underpinning these decisions rests primarily on the pronounced dichotomy of control between prison guards and prisoners. Prisoners have no control over most aspects of their daily lives. They cannot choose what or when to eat, whether to turn the lights on or off, where to go, and what to do. They depend on prison employees for basic necessities, contact with their children, health care, and protection from other inmates. See Carrigan, 70 F. Supp. 2d at 458-59; see also Human Rights Watch Women’s Rights Project, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons 5 (1996) (hereinafter “All Too Familiar”) (documenting the sexual abuse of prisoners and finding that “[i]n prison, correctional employees have nearly absolute power over the well-being of prisoners.”). The power disparity between prisoners and prison guards is similar to that of an adult over a child or a teacher over a student. At least one commentator likens the relationship to that of an owner over a slave. See Brenda V. Smith, Sexual Abuse of Women in United States Prisons: A Modern Corollary of Slavery, 33 Fordham Urb. L.J. 571 (2006) (concluding that parallels exist between the prisoner-guard and owner-slave relationships). Just as power inequities between adults and minors, teachers and students, and owners and slaves foster opportunities for sexual abuse, so too does the prisoner-guard relationship. Indeed, sexual abuse in prison is prolific. Id. (noting that sexual harassment in prison “is so much a part of the power structure that it is almost invisible.”); Carrigan, 70 F. Supp. 2d at 458-61; Cash, 2009 U.S. Dist. LEXIS 91232, 2009 WL 3199558 at *2; see also All Too Familiar, 407 n.13 (recognizing that prisoners “cannot meaningfully consent to sexual relations with staff” and quoting the superintendent of the Bedford Hills Correctional Facility who said: “Where you have power over a person, [sex] cannot be consensual. . . . You cannot be in the position of an inmate and make that kind of decision. . . . Eventually, [sexual relations between an inmate and a staff person] makes other people feel unsafe.”); Laurie A. Hanson, Comment, Women Prisoners: Freedom from Sexual Harassment – A Constitutional Analysis, 13 Golden Gate U. L. Rev. 667, 667 (1983) (hereinafter “Freedom From Sexual Harassment”) (“Sexual relationships between inmates and guards are the product of sexual exploitation and cannot be defined as voluntary.”).
We agree with the underlying rationale of these cases. The power dynamics between prisoners and guards make it difficult to discern consent from coercion. Even if the prisoner concedes that the sexual relationship is “voluntary,” because sex is often traded for favors (more phone privileges or increased contact with children) or “luxuries” (shampoo, gum, cigarettes), it is difficult to [*13] characterize sexual relationships in prison as truly the product of free choice. All Too Familiar, 102, 420 (describing an environment where prisoners engage in sexual acts with staff in exchange for favorable treatment or coveted items such as gum, cigarettes, and drugs and quoting one prisoner who commented “The women here will [perform sexual acts] for gum.”); see also Freedom from Sexual Harassment, (noting that because prisoners often barter sex for certain feelings of freedom, “even so-called ‘voluntary’ sexual activity must be viewed as coercive”).
While affirming the district court’s dismissal of Wood’s deliberate indifference and retaliation claims, the court reverses the dismissal of the harassment case. The case is worth watching closely. Prisons have been notorious for their failure to prevent prison rape and sexual abuse. Tort liability could offer a modicum of deterrence in a system with few protections for inmates. It is notable that the facts in the case would also describe criminal acts since the alleged fondling and groping was done under color of the law and without consent. However, no criminal charges were brought in the case. It is also interesting that this is not a case of battery as an unconsented and offensive touching.
For prison advocates the case is important in that, as done before the district court, inmate claims are often dismissed with little scrutiny. Judges too often defer blindly to prison officials or simply take an officer’s word for what occurred in a given case. That makes this case a rare win for a prisoner.
Source: SF Gate