GDI 15 - Prisons Aff

Prisons Af
In prison, surveillance is power and power is sexualized

Teresa Miller
It isn't the demands for sex for me anymore. After twenty
years in prison, it's about losing the last thing I have, my
private body self. It's the male guards watching my naked
body, openly, and as I get older the comments change to
making fun of it, mocking me, my aging woman. It's the
commonness of them calling us bitches. It's being yelled at for
needing more toilet paper, for asking for an extra sanitary
napkin.
Witness from Everson v. MDOC
1AC
Advantage One is Sexual Abuse

Prisons provide a key lexicon for isolating gendered violence
male guards act out mandates of the state reasserting their
dominance through sexual surveillance
VanNatta 10
(Michelle VanNatta, Professor of Gender Studies, Sociology & Criminology,

2010, Conceptualizing and Stopping State Sexual Violence Against
Incarcerated Women, 28-29 SR)
Male prison guards often inflict sexual abuse against those incarcerated in womens prisons with
impunity and with the blessing or even the mandate of the state in the form of invasive body
searches (Kilroy, 2003) and sexually oriented surveillance (Miller, 2000). Guards of all genders have
harassed and attacked prisoners of all genders, but an Amnesty International report (1999) asserts that
male supervision of female prisoners presents particular problems . Labelle and Kubiak (2004: 423)
state that the social authority and control male custodial officers hold over incarcerated women
creates a super authority and that the gaze of male guards when women prisoners are undressed
creates an atmosphere of threat.
In particular the employment of cross-gender body searches

causes lasting physical and psychological trauma
Weiser 2
(Jennifer Weiser, 2002, is an Attorney at the Education Law Center, Newark,
New Jersey. The Fourth Amendment Right of Female Inmates to be Free from
Cross-Gender Pat-Frisks, published in Seton Hall Law Review, SR)
On July 5, 1989, male guards at the WCCW began performing clothed body searches of female
inmates that included the touching of the breast and genital areas .97 During that day, guards
searched several inmates, one of whom suffered tremendous anguish.98 After reluctantly submitting to
the search, this inmate had to have her fingers pried loose from the bars she had grabbed during
the search, and she vomited after returning to her cell block .99 That same day, the WCCW inmates
filed a pro se complaint in the Western District of Washington requesting a preliminary injunction
prohibiting male guards from performing random, clothed body searches on female prisoners.100 The
inmates were granted a temporary restraining order.101 They were later granted a preliminary injunction
and certified as a class.102 After a bench trial, the district court held that the cross-gender searches at
WCCW violated the female inmates First, Fourth, and Eighth Amendment rights.103 The district court
some areas of the human

body have more privacy attached to them than do other parts. The standards of decency in society
also recognize a right to privacy in the intimate parts of a human body.104 Turning to the Fourth
Amendment claim, the district court relied on Turner v. Safely and held that the cross-gender, clothed
body searches were unreasonable and thus violated the Fourth Amendment .105 A panel of the
Ninth Circuit reversed the district court on all three grounds .106 The Ninth Circuit then granted an en
concluded that: under the laws of the State of Washington and other states . . .
banc rehearing of the case and vacated the panel decision.107 A majority of the judges affirmed the
district courts holding as it pertained to the Eighth Amendment, but only a plurality agreed on the Fourth
Amendment grounds.108 Judge OScannlain, writing for four
judges, refused to address the inmates
First and Fourth Amendment claims after concluding that the cross-gender searches were
unconstitutional under the Eighth Amendment.109
The trauma faced by prisoners due to the cross-gender policies

spills over to the lack of resources to cope with sexual abuse
VanNatta 10
Cindy, the only counselor with extensive experience counseling in a county jail, spoke at length of the
challenges sexual assault crisis counselors face in carceral facilities.
Women she counseled there had
often faced extensive and extreme violence outside the jail . These horrible stories sometimes
provoked vicarious traumas: People tell you that their parent was so into their own addiction that when
they ran out of money and had nothing else to give, they were given to the drug dealer as a trade. So
they became a sex slave.... They were as young as five, six years old. And I have clients who
as a part of their abusewhen their partner would leave to go to work, would chain them to radiators
then,
and put a bowl in front of them so they could have water for the day. Or something to urinate in.... You
think that you dont want to deal with it anymore [since] having to deal with rape crisis trauma is a lot. But
when you compound it with years of this type of abuse that theyve suffered at the hand of their parent
I know clients who at eight and nine years

old had heroin shot up in them. So, those are the types of things that some counselors dont want
to deal with. Cindy explained that counselors sometimes avoided working in jails because women
or...someone that their parent trusted or that they trusted....
detained there might direct their anger at them: The clientele is not necessarily the most friendly.... One
female client said to me, I could blow your brains out right now and think nothing of it. ...Some [clients]
have become very hard, and so they want to talk about it; but if they talk about it too much, they get very
emotional and then they get angry at the person theyre talking to. And that can be scary for some
people.... [Some rape crisis center directors think to themselves], Im not going to send my staff in there to
hear all of this stuff and try to help and then get attitude from the client.... 40 michelle vannatta Cindy
amid the abusiveness of personnel at the jail and noted

that this was not conducive to healing. The guards, she said, talk down to the women who are
detained at the jail: Really, thats one of the most difficult parts aboutfor mebeing at the jail.
Worse than the attitudes that you might get from the clients. Because everybody has a right to be
treated with dignity. Even if you are incarcerated. And Im not trying to be some bleeding heart. I
think there are people who really should be in jail and never be released. But I also believe that there
should be some humaneness to it. That you could saycould you stand on that line and not get your
found it difficult to do her job adequately
ass in line you stupid blank! ....thats very disturbing. One of my clients came to me from...the hole. And
when they brought her, she was shackled and handcuffed. And that was really uncomfortable. Having
someone sit in front of me for an hour in handcuffs and shackled. When that happens, the sergeant
actually stands outside the door. Apparently, this persons done something out of the norm that they cant
be trusted. And so I said to the sergeant, Is this necessary? Can you, for just while shes in here, take off
the handcuffs and the shackles? And hes like, No, we cant do that. Cindy explained that correctional
staffers interfere with the healing process by mistreating counselors and those detained or incarcerated.
One reason some counselors stopped coming is that: they didnt like dealing with the officers. It
wasnt their own personal experience with the clients. It was the officers. They said that, I cant do real
advocacy for my client and spend an hour trying to empower her or support her and then she
walks out the door and she gets called some horrible name. ...And so some of them decided theyre
not going back.... I get teased [by jail staff]: Oh, here you come with your tissues. And, What
are they crying about today?
Sexual harassment stems from cross-gender abuse in forms of pat and strip
searchesthe prisoners are punished for reporting the guards action and
discouraged from doing it again while they are abused for reporting itleading to
an endless cycle of guard-on-prisoner abuse
Buchanan 7
(Kim Shayo Buchanan, Associate Professor of Law and Gender Studies at
Gould Law, 2007, IMPUNITY, published in Harvard Law Review, SR)
In the United States, sexual abuse by guards in womens prisons is so notorious and widespread that it
has been described as an institutionalized component of punishment behind prison walls .1
Women in pris- ons2 across the United States are subjected to diverse and systematic forms of
sexual abuse: vaginal and anal rape; forced oral sex and forced digital penetration; quid pro quo coercion
of sex for drugs, favors, or protection; abusive pat searches and strip searches ; observation by male
guards while naked or toileting; groping; verbal harassment; and sexual threats.3 Guards and prisoners
openly joke about prisoner girlfriends and guard boyfriends. Women prisoners become pregnant
when the only men they have had contact with are guards and prison employees ; often they are
sent to solitary conanementknown as the holeas punishment for having sexual contact with
guards or for getting pregnant.4 Such open and obvious abuses would seem relatively easy for a prison
administration to detect and prevent if it chose to do so. Prisons owe an afarmative legal duty to protect
their inmates against abuse.5 Congress and forty-four states have criminalized all sexual contact between
guards routinely
commit serious sexual offenses against the women in their custody. Government administrators
know that such abuse is occurring7 and acknowledge their duty to prevent it.8 However, they
have generally neglected to do much about it, as most prisons have failed to adopt institutional and
employment policies that effectively prevent or reduce custodial sexual abuse.9 In most workplaces,
an employee who had sex on the job would be ared. In prison, a report of custodial sexual abuse
is more likely to result in punishment or retaliation against the prisoner than in disciplinary consequences for the guard.10 One might expect the law to furnish incentives for prisons to control such
guards and prisoners, regardless of consent.6 Nonetheless, within womens prisons
unlawful acts by their employees, as it does for other civil defendants. It does not.11 Instead, as I
demonstrate in this Article, a network of prison law rulesthe Prison Litigation Reform Act of 1995
(PLRA),12 governmental immunities, and constitutional deference work together to confer nearcomplete immunity against prisoners claims.
The threat of punishment in exchange for reporting abuse

leads to a sexualization of power and a strengthening of
hierarchies.
Buchanan 5
Gould Law, 2005, PRIVACY IN PRISON AND THE RISK OF SEXUAL ABUSE,
published in Marquette Law Review, 776 SR)
"Disheartening" though it may be, the reality of the continuing abuse of women prisoners cannot be
theorized away. As Miller acknowledges, The power disparity that exists between men and women in
society is magnified within the rigidly hierarchical and closed prison apparatus. Power is sexualized in
prison. Because prison guards exercise near total authority over prisoners, the potential for male
guards to abuse their legitimate access to women's bodies to conduct bodily searches of women
and to visually monitor them nude or only partially dressed in ways that are overtly sexual is great.
When women prisoners are being sexually abused by guards, they are "powerless and subject to the
authority of men.'' 72 They are certainly not, as Jurado suggests, "protected from all possibilities of
Rather than being protected from sexual abuse, women prisoners continue to be
exposed to it without hope of relief or 173 redress. When prisoners report the abuse, they face
retaliation.
sexual assault."
Cross-gender strip searches lead to both physical and mental

manipulation of female prisoners, which increases their
vulnerability and only furthers the cycle of abuse.
VanNatta 10
Prison guards and jail personnel commit sexual abuse against incarcerated people in multiple
ways: directly, by physically overpowering an incarcerated person to have sexual contact; coercing a
through overt or veiled threats; using inducements such as

privileges or access to resources in exchange for sexual contact ; creating unequal or exploitive
romances; strip- searching; and sexual harassment and sexualized surveillance. Below I discuss
prisoner or detainee into sexual contact
forms of sexual abuse by agents of the state in Illinois womens jails and state prisons. The data include
The most obvious form of sexual abuse

is similar to the primary image of rape in the mainstream imagination: one individual physically
forces another into unwanted sexual activity (Ristroph, 2006). For many people, only this scenario
qualifies as actual sexual assault in prison. A second form occurs when guards force a prisoner or
detainee into sexual contact through threats of harm against the incarcerated person or the
persons loved ones, or deprivation of basic resources. Carceral staff control every aspect of
incarcerated peoples lives. As a civil rights attorney who has represented many prisoners explained:
interviews with Illinois prisoner advocates, attorneys, an RCC
Your entire life [as a prisoner] depends on the guards.... You dont have any other source of food, water,
light.... Youre all dependent on the officials to give it to you....
Guards have total control over a
prisoner. counselor in a county jail, news reports, and documentation of lawsuits against personnel in
Cook County and the Illinois Department of Corrections (IDOC).11 A third form of sexual abuse by
prison and jail staff is the promise of goods, resources, or special treatment in exchange for sex
acts. Just as people on the outside sometimes trade sex for survival needs, some incarcerated people
trade sexual contact for resources. The Illinois Criminal Code defines a guards sexual contact with a
prisoner, even with prisoners alleged consent, as Custodial Sexual Misconduct (West Group, 2002).
This is a Class 3 Felony in Illinois, punishable by probation or up to five years in prison (Adams and Olson,
2001). If an incarcerated person agrees to the trade, why is this sexual abuse? The attorney quoted above
explained that the extreme deprivations and power imbalances of prison are at the root of the problem:
If
someone is so driven that theyre willing to use sex in order to get something, why is the system
set up so theyre that desperate in the first place? Are they using sex because otherwise theyre
not getting any food? A fourth form of sexual abuse includes sexual contact with prison or jail
personnel in the context of ongoing romantic relationships. Illinois state law considers this a
crime by prison staff, but prison administrations may not work actively against such liaisons . Some
incarcerated persons may actively seek relationships with staff for reasons addressed earlier by
Smith (2003, see fn. 7). Incarceration itself creates this type of relationship and makes it inherently
I view it very much like

children. In theory, a child can say, yes, I want to have sex with an adult. The law has said that is not a
choice that we, as a society, allow a child to make. The same thing should apply to prisoners. Prisoners
are in an environment which is completely controlled by the guards, typically male guards, and
therefore male guards have tremendous influence over them.... All sex in prison between guards and
prisoners should be considered nonconsensual, and is, in Illinois. It is problematic to infantilize
prisoners, particularly women prisoners, and to erase their agency,12 but the analogy to children
highlights the power of guards and the vulnerability of prisoners. 13 Incarcerated women live with so
unequal. On prisoner/ guard relationships, the civil rights attorney states:
much constraint that their efforts to meet their needs for sexual interaction, physical contact, and intimacy
are fraught with complicated power dynamics and shaped by carceral rules and surveillance. The state
generally prohibits any physical contact between prisoners, such as hugging. Within the environment of
the total institution (Goffman, 1961), prisoners and detainees develop particular strategies to negotiate
their human needs for touch, sexuality, and intimacy. Greers research (2000: 452453) shows that women
prisoners reasons for developing sexual relationships are similar to those of other people: economic
motivation, sincere relationship, loneliness, curiosity, sexual identity, peer pressure, and other (sexual
release and diversion from the boredom). Prisoners sexual needs and motivations may be similar to
those of people on the outside, but these needs are negotiated within an inescapable environment of
extreme constraint and multiple forms of bodily surveillance, deprivation, and coercion. An incarcerated
persons apparent willingness to have sexual contact with a guardwhether in response to a voiced or
implied threat, to a promised or actual exchange of goods or privileges, or to romantic/emotional
attachmentdoes not negate the profound power differential between prisoner and guard. At the same
time, this does not mean that prisoners romantic or emotional attachments represent false consciousness.
All such contact takes place against the backdrop of the physical and emotional disciplines fundamental to
prison. A fifth form of sexual abuse is the strip-search . In Illinois, male guards are only supposed to
strip-search women in an emergency. What constitutes an emergency, however, has not been well defined.
Sometimes guards search women expressly as a form of punishment or harassment . The IDOC,
state officials, and the NPREC (see 2009 report, p. 6) consider strip-searching a legitimate part of security
and control at the prison, yet
the pain these searches inflict can be enormous. When men search
women prisoners, this may increase womens vulnerability to other forms abuse (Buchanan, 2005);
thus, the contribution of such searches to overall institutional safety is debatable.
Advantage Two is Dehumanization

Womens prisons exacerbate personal and social issues, and
create a sense of inequalitythis makes imprisonment an
institution that only furthers the dehumanization of women.
Zaitzow 4
(Barbara Zaitzow, professor of Criminology at Appalachian State University,
Pastel Fascism: Reflections of Social Control Techniques Used With Women in
Prison Women's Studies Quarterly, 32(3), 33 SR)
Often overlooked is the fact that personal and social problems are imported into the prison setting and
become a part of the intricate web of the prison culture through which women negotiate their
daily existence. It would not be fair to say that imprisonment is worse for women than it is for men, but
imprisonment is definitely different for women because women are different from men . At the
same time, there is a need to address how institutional rules and programmatic opportunities available to
women in prison contribute to the continuation of the disadvantaged status of women prisoners. After
all, women's prisons increase women's dependency, stress women's domestic rather than
employment role, aggravate women's emotional and physical isolation, can destroy family and other
relationships, engender a sense of injustice(because they are denied many of the opportunities
available to male prisoners), and may indirectly intensify the pains of imprisonment.
The idea of pastel fascism is pushed upon female prisoners

to the point where they are completely dehumanized and
objectified by the statethis only serves to further gender
inequality and reify the female gender as something that can
be controlled and manipulated.
Zaitzow 4

Prison Women's Studies Quarterly, 32(3), 38-39 SR)
Repression is every bit as strong as in men's prisons; it is simply much more subtle. The social
control in women's prisons' is best described as "pastel fascism": control glossed over and
concealed by a superficial facade of false benevolence and concern for the lives of inmates. Despite
the less-threatening appearance of women's prisons, the conditions for women prisoners are usually
worse than those for male prisoners. For example, women prisoners have more restricted access to
legal libraries, medical and dental care, and vocational and educational opportunities. What few
possessions they have are often confiscated or destroyed, and they are subject to arbitrary body
searches at any time (Cambanis, 2002; personal communications with women inmates housed in a
maximum security prison in the southeast, 1994-present). When women in prison fail to conform to
expectations, physical control is quickly instituted. Upon entry into prison, the objectives of the
correctional system and the crimes of female offenders notwithstanding, once women enter the
institution they often go from being a victim of justice to a victim of Injustice . Cruel and unusual
punishment is not supposed to exist today; however, one would never know by observing life in
women's penal facilities. After arriving at her assigned correctional home, the new female prisoner must
go through a series of orientation or "reception" procedures. She may come in handcuffed and be
She soon loses all remaining dignity when

she is stripped and searched for contraband, showered, and issued prison attire and bedding. When
she is given her prison number, she is officially -Property of the State : Being processed was like an
assembly line. Each woman had a job to do. When you go in there, you weren't a person anymore,
you weren't human anymore, they could care less . About forty-two of us came in together. They threw
refingerprinted and rephotographed for institutional records.
us all in the same room and we, four of us, shower together, it was awful. We were in orange jump suits
with no underwear. For some girls, it was that time of the month. One girl had to keep a pad on with a
That's just the way it is. And they don't care. The phrase is always,
Welcome to the real world. (Vanssa at the Central California Women's Facility, in Owen, 1998, p. 77).
Over the next two to six weeks the incarcerated woman , who is relegated to a communal segregation
living unit during this period, goes through medical and psychiatric examinations for everything from
venereal disease to mental illness. Most women describe this experience as stressful, frightening, and
dehumanizing (DeGrool. 1998( Girshick, 1999: Owen, 1998). By the time she joins the general prison
jump suit with no panties on.
population, she has been instilled with the extensive rules and regulations of her con-linemen, including
her new status of "institutional dependency." Although women's prisons are usually not the maximumsecurity fortresses that men's prisons are, some suggest
that the rules women must abide by are
stricter (Carlen, 1994). While the rules and regulationsas well as disciplinary actions for infractionsvary
from one institution to another, many female inmates view the rules and regulations of prisons as willful
efforts to "diminish their maturity" by "treating them like children and fostering dependency. (Mann,
From the day we are "received, we begin gradually adapting to the Ioss of our
identity and respect. We become accustom to the chaos and lurking danger because we have to. We are
forced to accept absurd rules and cope with insane reasoning.
1tr984210):
Specifically, cross-gender pat-frisks in womens prisons allow

for the sexualization of power and the dehumanization of
female prisoners.
Weiser 2
One way out of this quagmire would be for courts to recognize a general right to bodily integrity
for both free and incarcerated individuals. Such a view flows out of the Ninth Circuits expressed
concern in York v. Story244 about privacy in the naked body. The desire to shield ones unclothed
figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by
elementary self-respect and personal dignity.245 While agreeing with the basic nature of this aspect
of privacy, some courts distinguish York because it involved a female crime victim rather than a prisoner.
until society is ready to recognize that prisoners are individuals worthy of the same
constitutional protections as free citizens, the courts must continue to consider all relevant contextual
Thus,
factors when determining the reasonableness of a cross-gender body search under the Fourth Amendment.
the courts must

take into account the subjective experience of unwanted sexualized touching from the perspective
of a woman, who may or may not have been abused prior to incarceration. Although privacy is
genderless, concern for symmetry in the treatment of searches must not mean that critical
differences in the sexualization of power get overlooked.
In the situation of male corrections officers searching female inmates, this means that
Two diferent impacts:

First, these cross-gender policies in prisons force the erasure
of feminine identities and create a sense of disconnected
gender neutralitythis forces women to assimilate to the
male model of the prisoner
Labelle and Kubiak 04
(Deborah Labelle and Sheryl Pimlott Kubiak, Balancing Gender Equity for
Women Prisoners, published in Feminist Studies: The Prison Issue (Summer,
2004), 30(4) SR)
The women who fill our prisons and jails occupy a specific social location that is informed by the realities
of class and economic disparities, our nation's history of race discrimination, and the social constructions
of gender.
Women constitute the most rapidly growing population in the criminal justice system ,
and are the majority under its jurisdiction for drug-related crimes. It is estimated that during 1998more
than 950,000 women were under correctional supervision (probation, incarceration, parole). Women
in
criminal justice institutions have frequently been exposed to abuse before their incarceration. In
fact, 40 to 60 percent of women under correctional supervision report that they were physically or
sexually abused at some time during their lives with a far greater frequency and severity than non
offenders. Often extremely impoverished and disproportionately women of color, their disempowered
Historically,
women prisoners' very criminality was viewed as a failure to uphold the standards of femininity.
Matrons in the reformatories educated women in such "womanly arts" as sewing and cooking. Because
women were commonly viewed as the morally superior, nonviolent sex, those who violated these
gender norms were perceived as particularly aberrant. The goal was to cure these women by
socializing them back into the gender fold. To achieve this objective, women were offered home
societal position on the outside transfers to and expands in the correctional environment.2
economic classes where as male prisoners were provided a broad range of vocational training, for skilled
trades and college degrees. This gender-based rehabilitation strategy remained strong into the twentieth
century until challenged under equal opportunity laws. The first major class action of this sort was filed in
the gross inequality in their education and

training programs amounted to gender discrimination. The federal court in Gloverv. found the
women's claims to be meritorious and ruled Johnson that women were entitled to parity of
opportunity for rehabilitation and required education and skilled trades to achieve that end .3
1979 by women prisoners in Michigan who argued that
Although this unique case upheld equal opportunity, it also acknowledged and incorporated gender
differences. Legal remedies accommodated variation in the perceptions between women and men in the
employment sphere, as well as variation in the employment needs of women who were most likely single
mothers. Moreover, the court recognized that women may make employment decisions based on whether
they would have to compete with men for their jobs. For example, would women compete with men for
employment as an auto-mechanic? Rather the court asserted that "substantial equivalent" skilled training
considerations constituted a doctrine of "parity of opportunity," thereby

circumventing the implication that equal opportunity implied a "one size fits all" approach . Thus,
could be provided. These
the court provided equal protection that allowed for gender differences while creating a model of
rehabilitation for all prisoners in which female prisoners were entitled to their fair share of opportunity.
corrections administrators. Instead they chose to

interpret this ruling as one of gender neutrality, disregarding all gender differences for both
prisoners and staff. Within this gender blindness, female and male prisoners were treated
identically-based on a male prisoner model . However, this application of identical treatment in areas
such as security and custody resulted in a disparate negative impact on female prisoners. In
particular, policies of gender neutrality created two hardships for women prisoners. First,
consideration of any special circumstances under which women experienced incarceration was
disregarded. For example, there were no allowances for the differences in the type of visitation so that
However, the nuances of this strategy were lost to
policies that prohibited physical contact (e.g., kissing, hugging, etc.) would affect the prisoners equally.
Second, gendered supervision of inmates changed. Males were allowed on female housing units
subjecting women prisoners to twenty-four-hour male supervision-while showering, dressing, and
performing basic bodily functions. Women prisoners were subject to routine touching by male
guards performing body searches-indeed every aspect of life was performed under the auspices of
and according to the desires of male guards in authority.
Second, the invasive nature of strip-searches traumatizes

prisoners to the point where they no longer have control over
their life.
VanNatta 10
[At] Dwight, Lincoln, and Decatur, [guards make women do a] full naked strip-search before they
meet with us. We had two women refuse interviews [for free legal services] because they didnt want the
search. [Its] painful [and] embarrassing as hell. If youve been sexually abused, taking off your
clothes even when youre alone in a room [can be hard], not to mention taking your clothes off in
front of officers you dont know. The vulnerability of being in prison is you have no control over
your life. You have nothing. That will depress anyone. Strip-searches are terrible.... We always ask
the guards whats [the womens] reason for refusal [of legal services]; the guards said [the women] didnt
want to be strip-searched. An advocate with an agency providing legal services to prisoners described the
some prisoners are so

traumatized by strip-searches that they refuse all visits, even from attorneys and their own
children.14 In addition to assaults, prison guards sexually harass those in womens prisons. An
trauma inflicted by prison strip-searches in an interview: One attorney noted that
advocate for prisoners with extensive experience with people currently and formerly incarcerated in
womens prisons and jails explained: The
harassment is pretty regular and pretty constant and

people just sort of deal with it, thinking you dont really have the right to question or do anything
about it.
Solvency
Plan: The United States Federal Judiciary should rule crossgender body searches unconstitutional.
By eliminating cross-gender searches, prisoners would regain
some sense of privacy and dignitythey would re-claim the
ability to have a sense of autonomy over the protection of
their own being.
Weiser 2
Although Judge Reinhardt believed that the cross-gender search policy in Jordan violated both the
Fourth and Eighth Amendments, he suggested in his concurrence that the case should have been
decided on Fourth, rather than Eighth Amendment grounds.126 Judge Reinhardt offered several reasons
why a Fourth Amendment analysis is preferable. First, Judge Reinhardt viewed the conduct at issue as
clearly a search and noted that [t]he explicit textual source of constitutional protection with respect to
searches of persons is, without doubt, the Fourth Amendment, not the more general Eighth
Amendment.127 Second, Judge Reinhardt asserted that the Fourth Amendment is easier to apply than the
Eighth Amendment, suggesting that while the Fourth Amendment requires only an objective inquiry, the
Eighth Amendment requires a more complicated subjective inquiry.128 Third, Judge Reinhardt reasoned
that it would be more efficient to apply the Fourth Amendment because any search that violated the Eighth
Amendment would be an unreasonable search under the Fourth Amendment.129 Next, Judge Reinhardt
in addition to
protecting privacy, the Fourth Amendment also protects persons against infringements of bodily
integrity and personal dignity. . . . It is the privacy and dignitary interests of the female inmates
that are violated here.130 Thus, Judge Reinhardt concluded that random, cross-gender, clothed body
searches implicate a prison inmates rights of privacy and dignity.131 Once Judge Reinhardt
recognized that female inmates do, in fact, possess a right to bodily privacy, he analyzed their claim
under the four factors enumerated in Turner. First, considering prison administrators assertions that
prison security interests and guards equal employment rights justified these searches , he found
that the connection between any legitimate penological interest and cross- gender searches [was]
tenuous.132 Second, he recognized that since inmates cannot escape these searches by virtue of
their incarceration, the cross-gender search policy left them with no means of protecting their
bodies against unreasonable searches.133 Third, Judge Reinhardt analyzed the impact that the
examined the Fourth Amendment rights retained by prisoners. The judge reasoned that
accommodation of the inmates constitutional rights would have on other inmates and found that [h]ere,
there will, of course, be no adverse effect of any kind on other inmates if female guards instead of
male guards conduct the body searches . . . .134 Finally, he found that an obvious, easy alternative
was available: the prison could use only female guards to perform these searches .135 Although this
alternative would require administrative adjustments, these adjustments would be relatively insignificant,
both in themselves and when weighed against the constitutional interests at stake.136
Cross-gender searches leave prisoners with no option but to be

abusedsame-gender searches would eliminate this issue
Stollman 94
(David J. Stollman, 1994 Jordan v. Gardner: Female Prisoners' Rights to be
Free from Random, Cross-Gender Clothed Body Searches SR)
Reinhardt then addressed the prisoners' constitutional claim under the Turnerstandard: whether the prison
policy is reasonably related to legitimate penological interests. ' 70 In evaluating the prisoners'
claim, Judge Reinhardt examined the four factors that the Supreme Court enumerated in Turner. First,
there must be a rational connection between the cross-gender searches and a legitimate governmental
interest. 7' Reinhardt,
after analyzing prison administrators' assertions that prison security
interests and guards' equal employment rights justified these searches, concluded that "the
connection between any legitimate penological interest and cross-gender searches is tenuous
172 Second, the concurrence examined whether inmates have an alternative means of exercising their
an inmate,
by virtue of being incarcerated, cannot escape these searches."" Thus, the cross-gender searches
is tenuous." cross-gender search policy left the inmates with "no means of protecting 17 their
bodies against unreasonable searches."' 1 Third, the concurrence analyzed "'the impact that
Fourth Amendment right to be free from unreasonable searches.173 Reinhardt recognized that
accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison.'
,,176 Reinhardt found that "[h]ere, there will, of course, be no adverse effect of any kind on other inmates
if female guards instead of 1 male guards conduct the body searches."' 7 Finally, the concurrence
whether prison authorities had an "obvious, easy" alternative available ." 8 Reinhardt
found that there was an obvious, easy alternative-use only female guards to perform these
searches.179 Although this alternative would require administrative adjustments, these adjustments
examined
would be "relatively insignificant, both in themselves and when weighed against the constitutional
interests at stake.' Next, Reinhardt looked to Bell v. Wolfish for guidance on how to apply the Turner
factors.' 81 Bell, which was decided before Turner, mandated that unreasonable search cases "require[ ] a
balancing of the need for the particular search against the invasion of personal rights that the search
the ultimate determination was "whether the prison's

need to use male guards to conduct the body searches-to the extent that such need exists-outweighs the constitutional injury resulting from the invasiveness of the intrusion ."' 1 3 In
entails."'8 2 Thus Reinhardt reasoned that
applying the Bell balancing test, Judge Reinhardt identified the two interests that prison administrators
advanced in support of the cross-gender clothed body searches: prison security and guards' equal
employment rights.' As to prison security, prison administrators argued that suspicionless searches serve
to suppress the movement of contraband through prisons.185 They further argued that prohibiting male
guards from conducting these searches would reduce the element of unpredict- ability that random
searches brought to a prison environment. 86 Judge Reinhardt rejected this argument because the record
showed that the three-year-long injunction did not impair security in the slightest. 87 Prison
administrators also claimed that barring male guards from conducting random searches would require
adjustments "of staff schedules and job responsibilities, and the overriding of the bid system in the col-
lective bargaining agreement, possibly leading to litigation by the guards' union."1'88 Judge Reinhardt
noted, however, that prison authorities had not changed a single guard's job during the three-year-long
injunction. 8 9 In fact, the prison complied with the injunction simply by adjusting guards' schedules and
job assignments. 190 Further, Reinhardt explained that previously, in resolving these situations, neither
the bid system nor the collective bargaining agreement was adversely affected. 19 1 In sum, he concluded
that the prison had only a minor interest in the regulation. 92 Reinhardt then analyzed the other facet of
the Bell test: the invasion of personal rights that the search entails.' 93 Judge Reinhardt agreed with the
an unknown number of female inmates would suffer great harm

if the prison instituted a cross-gender search policy.' 94 Judge Reinhardt concluded that inmates
suffered substantial harm from these searches. 195 Judge Reinhardt completed his Fourth
district court's determination that
Amendment analysis by balancing the prison officials' interests against the harm inflicted on the in-
the cross-gender, clothed- body search policy failed the

the prison administration's
interests are "sig- nificantly outweighed by the harm the policy inflicts on the inmates and the injury
it does to their constitutional rights."'1 97
mates.196 In balancing, Reinhardt found, that
Bell v. Wolfish test as applied in light of the four Turner factors because
Solvency extensions
Courts key
Cross-gender searches violate inmates constitutional rightscourts necessary to stop harm
Jackson 98 (Karoline E. Jackson, partner in litigation department of Barnes and
Thornburg LLP and Co-adminstrator of the Indianapolis Litigation Department
in Indiana, 7-1-1998 The Legitimacy of Cross-Gender Searches and
Surveillance in Prisons: Defining an Appropriate and Uniform Review Indiana
Law Journal: 73(3)5 md)
Courts should explicitly recognize inmates' constitutional

right to be free from cross-gender searches and surveillance .
Sources of this constitutional right are found both in the privacy rights of the Fourth Amendment
and the penumbras of the Bill of Rights. Forced inspections and observations of inmates by
oppositesex officers are degrading, humiliating, and violate the basic tenets of human decency. In
analyzing inmates' claims of constitutional deprivations, courts should be
extremely faithful in applying the Turner standard of review. Courts must clearly and specifically
analyze all prongs of the Turner test. No longer can courts infringe on inmates' privacy rights
based on nonpenological objectives and the speculative concerns of prison
superintendents. Otherwise, the problems that have plagued many courts' decisions will
continue. Further, courts can no longer accord unlimited deference to the decisions of prison
officials. Such unlimited deference renders the Turner test meaningless. Alternatively,
inmates can assert their right to be free from cross-gender

searches and surveillance through the Eighth Amendment .
However, in analyzing male inmates' Eighth Amendment claims, courts must
avoid employing malegender stereotypes. Perpetuating these stereotypes not
only causes further harm to male inmates and society, but it also deprives
male inmates of any opportunity to gain legal recognition of "harm." It has
been said that "the way a society treats those who have transgressed against
it is evidence of the essential character of that society."2 " Refusing to protect
inmates' bodily integrity from the probing eyes and hands of opposite-sex officers reveals
indifference and disrespect. Should not our society reflect a character of the
highest integrity and fairness? We should requite no less.
Courts must rule cross-gender body searches unconstitutional. Inmates do not

forfeit constitutional privileges when in prison
REFORMING THE CURRENT APPROACH The above cases demonstrate that circuit and
district courts are having difficulty uniformly treating inmates' privacy claims. First, those
decisions recognizing inmates' privacy rights have rested on differing sources
of constitutional protection. Second, courts that have recognized a constitutional right to
privacy or assumed the existence of such a right for purposes of analysis have applied the Turner
test, if at all, with haphazard results. In order to provide consistent treatment of inmates
complaining of cross-gender searches or monitoring , courts must first recognize
that inmates do possess a limited right to privacy while

incarcerated and then conscientiously apply the Turner test . In
Turner v. Safley, ' 34 the Supreme Court held that "when a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological
interests.""' For inmates to satisfy the Turner test, courts must first recognize that inmates
possess the asserted constitutional right. As a preliminary matter, courts addressing the
issue of crossgender searches and surveillance in prison must first identify the precise right
implicated by the challenged regulation. Therefore, courts must determine whether inmates
even possess a constitutional right to privacy that would protect them from unwanted crossgender searches and surveillance. Put more simply, the threshold question is
whether inmates possess a constitutional right to privacy in their own person
while incarcerated.'36 Although the Supreme Court has not directly decided
this issue, it has dealt with inmates' right to privacy in other contexts. For
example, under the Fourth Amendment, inmates do not have a legitimate expectation of
privacy in their prison cells so as to prevent searches.'"1 The Court has also held that bodycavity searches of inmates are constitutional in order to ensure institutional security. 3
However, the Court has not addressed whether inmates have a right to privacy that would
prevent their unclothed bodies from being viewed by opposite-sex officers or from being patdown searched by opposite-sex officers. The inquiry into whether inmates possess
such a constitutional right to privacy must begin with the recognition that
prisoners do not forfeit their constitutional privileges when they are confined
in prison.'39 However, the Court has also recognized that inmates' constitutional rights can
be restricted due to "the legitimate goals and policies of the penal institution."' 4 0 The
question then becomes whether inmates' right to privacy in their own person
should be limited due to a legitimate penological goal. " ' Clearly, searches
and observations of inmates are necessary for the serious security concerns
that arise in penal institutions. In this aspect, a prisoner's right to privacy is certainly
eroded by imprisonment. However, the distinction is whether the cross-gender aspect of these
searches is warranted by the needs of the prison environment.
Inmates have the right to privacy under the Fourth Amendment. Cross gender
searches must be banned because of violation of law.
Turner involved a class-action suit brought by inmates challenging two prison
regulations relating to inmate-to-inmate mail correspondence and inmate
marriages." The first regulation limited correspondence between inmates at
different institutions and the second regulation prohibited inmate marriages
unless the prison superintendent approved the marriage due to the existence
of "compelling reasons."' 2 The Court upheld the limitation on the inmate-toinmate correspondence, but struck down the marriage restriction. The
Supreme Court did not apply the strict-scrutiny standard of review that the
Eighth Circuit had used to analyze the male prisoners' claims.' 3 Instead the
Court used a rational-basis standard of review stating that "when a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests."' 4 The Court concluded that this lesser standard of scrutiny
was necessary so that prison administrators, instead of the courts, would be
allowed to make difficult judgments in operating and managing a prison."5
The Court felt that subjecting prison officials' day-today judgments to strictscrutiny review would hamper administrators' ability to deal with the
demanding problems of prison administration. 6 The Court delineated four factors to
be considered in determining the reasonableness of a regulation. First, "there must be a
'valid, rational connection' between the prison regulation and the legitimate
governmental interest put forward to justify it.' 17 Second, do the prison
inmates have "alternative means of exercising the right" despite the prison
restriction?" If alternate avenues are available to the inmate, then courts
should be "particularly conscious" of the deference owed to prison
administrators.' 9 Third, courts should consider the impact that the "accommodation of the
asserted constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally."2 Finally, courts should recognize that the "absence of ready alternatives
is evidence of the reasonableness of a prison regulation."'" The rational-basis test set forth in
Turner is the foundation for the review of most prisoners' claims of constitutional violations by
prison officials.' Although the Turner test appears to reach a balance in accommodating
inmates' rights and prison concerns, the current application of the four factors, combined with the
extreme deference afforded to prison administrators,23 demonstrate that many prison regulations
can pass muster under the rational-basis standard. Inmates have made various
arguments in order to establish their right to be free from cross-gender
searches and surveillance. Courts have reacted differently to these claims
depending on which avenue the inmate pursued. Most of these claims are
brought under 42 U.S.C. 1983.2s Section 1983 is used as a vehicle to seek
relief from those persons who, acting under color of state law, violate
constitutional rights. However, individual state constitutions may provide
broader rights and remedies for state inmates. In establishing the federal
constitutional right to be free from cross-gender searches and visual
observation while naked or performing private bodily functions, prisoners
advance five main theories. A. The Fourth Amendment Not surprisingly, the
Fourth Amendment has been a common basis for these claims. The Fourth
Amendment 6 protects citizens from unreasonable searches and seizures. Although the Supreme
Court has not decided whether inmates are deprived of all Fourth Amendment rights while
incarcerated, it has held that certain Fourth Amendment rights are extinguished upon confinement
in prison. For example, the Supreme Court has concluded that inmates have no
reasonable expectation of privacy in their cells27 and that inmates can be
subjected to visual body-cavity inspections?8 In deciding whether inmates
enjoy Fourth Amendment protections, the Supreme Court has stated that the
answer depends on whether "the person invoking its protection can claim
a. . . 'legitimate expectation of privacy' that has been invaded by government
action."29 Accordingly, most courts facing the question-of whether the cross-gender aspect
of otherwise constitutional searches and observation violates the Fourth Amendment must first
determine whether the prisoner had a legitimate expectation of privacy. Inmates contend
that under the Fourth Amendment they have a reasonable
expectation of privacy in their bodily integrity ' Therefore, a

reasonable search under the Fourth Amendment becomes
unreasonable when the cross-gender aspect is introduced.
Assuming that iimates do possess a reasonable expectation of privacy in their

bodily integrity,3 ' a court would have to apply the rational-basis test as set
forth in Turner. In order to establish that their right has been violated, inmates
will have to demonstrate that the prison regulation allowing for the crossgender search is not reasonably related to a legitimate penological interest.
32
Courts key to defend inmates constitutional rights

Flesher 07 (Flyn L. Flesher, Editor-in-chief of the William and Mary Jouranl of
Women and the Laws and Knowledge Management Counsel at Ogletree

Deakins in Texas, 2007 Cross-Gender Supervision in Prison and the
Constitutional Right of Prisoners to Remain Free from Rape 13(3)8 md)
III. THE CONSTITUTIONAL RIGHT OF PRISONERS TO REMAIN FREE FROM RAPE
Many state legislatures have passed laws explicitly giving inmates a statutory right to remain free
from rape by prison guards,TM but plaintiffs can also challenge cross-gender supervision policies
under 42 U.S.C. 1983 by claiming a constitutionally protected right to remain free from
rape. The Eighth Amendment's prohibition of cruel and unusual punishments and the Fourteenth
Amendment's guarantee of bodily integrity both support the notion that female prisoners have a
constitutionally protected right to remain free from rape at the hands of prison guards. First, a
number of courts have reached the somewhat obvious conclusion that prison guards violate
the Eighth Amendment when they sexually assault prison inmates. 5 These decisions fall in
line with the even broader right recognized by the Supreme Court in Farmer v.
Brennan that prison guards can be held liable for deliberate indifference to
rapes perpetrated by other inmates.15 6 Furthermore, the Supreme Court held in
Hudson v. McMillian that a guard's use of excessive physical force against a prison inmate can be
a violation of the Eighth Amendment even if the use of such force leaves minimal physical
injuries. 5 ' These cases make clear that female prison inmates have an
Eighth Amendment right to remain free from sexual assault

while in prison. 5 ' The Fourteenth Amendment also provides support for the notion that
all United States citizens, including prisoners, have a right to remain free from rape at the hands
of government officials. In Ingraham v. Wright, the Supreme Court held that the
Fourteenth Amendment protected the right to remain free from "unjustified
intrusions on personal security," including "freedom from bodily restraint and
punishment." '59 The Supreme Court has not explicitly held
whether this Fourteenth Amendment guarantee of bodily

integrity includes a right to remain free from rape by public
officials ,16 although it decided a case concerning such facts in 1997 in
U.S. v. Lanier.6' In Lanier, the Court considered the conviction of a state judge
under 18 U.S.C. 242 for "criminally violating the constitutional rights of five
women by assaulting them sexually while [he] served as a state judge."'62
The Sixth Circuit Court of Appeals initially upheld the conviction,'63 but upon
rehearing en banc, the Court reversed that decision. 1 6 4 In so reversing, the
Court held that sexual assault could not be a constitutional violation because the Supreme Court
had not yet held as such.'65 The Supreme Court reversed, holding that a specific constitutional
right could exist absent a Supreme Court ruling recognizing such a right under fundamentally
similar facts. 66 In effect, the Court gave lower courts considerably more discretion in
recognizing constitutional rights. Since the Court passed down that decision, at least three Courts
of Appeals have held that the Fourteenth Amendment includes a right to remain free from sexual
assault by public officials.'67 Even before Lanier, some courts addressed the question of
whether such a right exists in specific contexts. In Doe v. Taylor Independent School
District, the Fifth Circuit held that the right of students to remain free from
sexual assault by their teachers existed and was clearly established as early
as 1987.168 The Third Circuit also had held that students have a right to
remain free from sexual assault by public officials prior to the Supreme
Court's holding in Lanier.169 In summary, ample precedent supports the
notion that all citizens have a right to remain free from sexual assault, a right
that female prisoners can raise in civil rights actions against the prison
officials incarcerating them.
***Ending cross-gender searches limits sexual violence and creates a model among
prisons
Flesher 07 (Flyn L. Flesher, Editor-in-chief of the William and Mary Jouranl of

IV. ELIMINATING CROSS-GENDER SUPERVISION IN PRISONS Shifting the focus of
cross-gender supervision challenges to the right to remain free from rape by public officials has
two benefits. The first benefit is that this shift necessitates analyzing prisoners' claims
under a standard that is less deferential to prison administrators. The second benefit is that
prisoners can use this theory to challenge cross-gender

supervision policies because these policies create
substantially higher rates of sexual assault. 171 A. The Standard of
Review One of the difficulties that inmates face when raising any
constitutional challenge is the overwhelming deference granted to prison
administrators under Turner v. Safley'7' and Farmer v. Brennan.172 Challenging
male supervision of female prisoners as creating an atmosphere tolerant to the deprivation of
these women's right to remain free from rape would either invoke a stricter standard of review or
would increase the inmate's chances of success under the Turner v. Safley framework. One
should first note that the Turner v. Safley framework may be inapplicable
when the deprived right is narrowly defined as the right to remain free from
rape by public officials. In Johnson v. California, an equal protection case, the
Supreme Court chose to forego the Turner framework and subjected the
prison practice at issue to strict scrutiny review.'73 The court stated that the
Turner framework was only applicable to those rights that are "inconsistent
with proper incarceration."'74 Cases in which courts have applied the Turner framework in
the past are distinguishable because in those cases the prisoners alleged a violation of a general
right to privacy rather than a specific, narrow privacy right that is not inconsistent with
incarceration.'75 Asserting that prisoners lose their right to remain free from rape by public
officials upon entering a prison or that this right is "inconsistent with proper incarceration" are
difficult arguments to make. Even if a court were to apply the Turner test to cross-gender
supervision practices, the prisoners' claims would withstand such scrutiny.'76 The first factor
considered by courts under the Turner test is whether the policy is
'reasonably related' to legitimate penological objectives."'77 Cross-gender
supervision policies appear to serve only one legitimate penological purpose, that of assuring
equal employment in prisons.' However, because the Court held in Dothard that
prisons have no obligation to provide jobs for opposite-sex prison guards, 7 9
courts must question the strength and validity of this interest. Second, female
prisoners have no alternative means by which to exercise their right to remain free from rape.8
In fact, because the right to remain free from rape is a negative freedom rather than a positive
right, one cannot truly exercise it at all. The right to remain free from rape is
by its very nature a binary right, one that a prisoner either

has or does not have . Ending or limiting cross-gender
supervision policies would assuredly have a "ripple effect" on
prison populations,1 8 1 but that effect would be a highly
positive one . Such elimination or limitation would allow female prisoners to live free
from fears of sexual violence at the hands of male guards. The only negative effect of
ending or limiting cross-gender supervision policies is that it could lead to a
drop in the number of jobs available to women in the prison system if
legislatures chose to abandon such policies in both female and male prison
facilities.8 2 Nevertheless, the government's duty to protect prisoners' Eighth Amendment
rights surely outweighs any obligation it may have to preserve jobs for female prison
guards. Finally, easy, obvious alternatives exist to cross-gender supervision policies that
accommodate female prisoners' rights to remain free from rape.'83 For example, prisons
could accommodate these rights and still satisfy security concerns by instituting policies that
substantially limit the access of male prison guards to female prisoners to include only
distant supervision. 4 Prisons could also choose only to hire guards of the
same sex as the prisoners. 85 The fact that some prisons have adopted such policies in
the past serves as evidence that these policies are both obvious and relatively easy to implement.
Ending cross-gender supervision decreases the risk of sexual abuse
Flesher 07 (Flyn L. Flesher, Editor-in-chief of the William and Mary Journal of
B. Ending Cross-Gender Supervision in Women's Prisons In Helling v.
McKinney, the Supreme Court held that a prisoner could sue for an injunction
under the Eighth Amendment to prevent injuries before they happened."8 6
The Court refused to distinguish between current harms suffered by prisoners and harms that
prisoners would suffer in the future if they did not receive relief."8 7 Before granting
injunctive relief to a prisoner, he must show not only that his present
conditions of confinement create a risk but that the risk is "so grave that it
violates contemporary standards of decency to expose anyone unwillingly to
such a risk. In other words, the prisoner must show that the risk of which he complains is
not one that today's society chooses to tolerate."' Plaintiffs can easily satisfy this part of the
analysis since rape is without question an unspeakable crime of violence that society does not
tolerate.'8 9 The primary hurdle for a female inmate requesting such an injunction would be
proving the causal link between cross-gender supervision

policies and the risk of rape at the hands of male prison
guards. The Tenth Circuit in Hovater v. Robinson expressed a fear that
holding prison administrators responsible for harms resulting from crossgender supervision would imply that all male guards pose a danger to the
bodily integrity of all female inmates. 9 ' While the proposition that all men would
inevitably sexually assault female inmates if given the chance is clearly false, leaving male
guards alone with female inmates is sufficiently dangerous to warrant an injunction against such
practices. Some studies from the 1990s address this causal link and reach the
conclusion that the risk is severe, but they fail to provide rigorous statistical
evidence supporting this conclusion. ' In at least one class action suit, the
plaintiffs showed the risks of psychological and other harms inherent in cross-gender supervision
through expert testimony. 192 Similar expert testimony could prove fruitful for plaintiffs
attempting to show the risk of rape inherent in such supervision. In some class action suits,
plaintiffs have met their burden of proof through the testimony of numerous
prison inmates regarding rapes at the hands of guards.193 Such testimony
would also bolster plaintiffs' claims when seeking an injunction against crossgender supervision policies. Finally, statistical evidence bolsters the claims of female
inmates seeking injunctions against cross-gender supervision. First, although it is by no
means dispositive, one should note that ninety-nine percent of those arrested
or convicted of rape are male,"' and male staff are reportedly the
perpetrators of "the overwhelming majority of complaints of sexual abuse by
female inmates against staff."1'95 These statistics at the very least imply that same-sex
supervision policies pose a lesser risk than cross-gender supervision policies. Second,
pursuant to the Prison Rape Elimination Act of 2003, the Bureau of Justice
Statistics of the United States Department of Justice must provide a
"comprehensive statistical review and analysis of the incidence and effects of
prison rape."'96 Although the first report under this statute sheds little light
on the causes of prison rape, 97 future reports may provide more information that
plaintiffs could use to show the effects of cross-gender supervision on the frequency of prison
rape. Assuming that a plaintiff or class of plaintiffs meets the burden of
proving that cross-gender supervision policies lead inevitably (or at least are
a substantial factor that leads to) the rape of female inmates, correct
application of current federal law necessitates granting relief to plaintiffs.
Upon making such a finding, courts must reach the conclusion that cross-gender
supervision policies either are a violation of prisoners' rights to remain free from rape by public
officials or are policies that create an atmosphere tolerant of such violations. If so, then the
plaintiff has a cognizable civil claim under 42 U.S.C. 1983, under which she
can request an injunction.'98 When addressing the plaintiffs 1983 claim, the
court must subject the policies either to strict scrutiny or to the Turner
standard of review. As stated in the previous section, such policies cannot
withstand either level of scrutiny. CONCLUSION A society that allows female prisoners
to live each day in constant fear of being sexually abused is guilty of the most heinous form of
barbarism. Nevertheless, sexual abuse of female prisoners by prison guards is a rampant
phenomenon that the law has thus far proved impotent to stop. Cross-gender supervision policies
exacerbate the problem by placing women in situations in which they have no escape from their
attackers. Clearly establishing that prisoners have a right to remain free from rape by public
officials promises to stem the tide of sexual abuse while simultaneously improving conditions of
confinement for female prisoners by restricting prisons from adopting cross-gender supervision
policies.
Congress can overturn past SCOTUS decisions

Friedman 1
(Leon Friedman, December 2001, Leon Friedman is a professor of

constitutional law at the Hofstra University School of Law. Overruling the
Court, http://prospect.org/article/overruling-court, SR)
One of the myths of our political system is that the Supreme Court has the last word on the scope
and meaning of federal law. But time and time again, Congress has shown its dissatisfaction with
Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to
clarify its original intent and overrule a contrary Court construction. The Supreme Court often insists
that Congress cannot really "overrule" its decisions on what a law means: The justices' interpretation has
Congress
certainly has the power to pass a new or revised law that "changes" or "reverses" the meaning or
scope of the law as interpreted by the Court, and the legislative history of the new law usually states
to be correct since the Constitution gives final say to the highest court in the land. But
that it was intended to "overrule" a specific Court decision. Often the reversal is in highly technical areas,
such as the statute of limitations in securities-fraud cases, the jurisdiction of tribal courts on Indian
in the last 20 years, a

main target of congressional "overruling" has been the Supreme Court's decisions in the area of
civil rights. In 1982, for example, Congress amended the Voting Rights Act of 1965 to overrule a
reservations, or the power of state courts to order denaturalization of citizens. But
narrow Supreme Court holding in Mobile v. Bolden, a 1980 decision that addressed whether intentional
discrimination must be shown before the act could be invoked. In 1988, Congress overruled another
the Civil Rights

Restoration Act, which broadened the coverage of Title VI of the Civil Rights Act of 1964. The legislative
Supreme Court decision (in the 1984 case Grove City College v. Bell) by passing
history of that law specifically recited that "certain aspects of recent decisions and opinions of the
Supreme Court have unduly narrowed or cast doubt upon" a number of federal civil rights statutes and
that "legislative action is necessary to restore the prior consistent and long-standing executive branch
interpretations" of those laws. And in 1991, Congress passed
a broad, new Civil Rights Act that
specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that
severely restricted and limited workers' rights under federal antidiscrimination laws.
Cross-gender searches
Cross-gender searches violate the eighth amendment and are enforced by
stereotypes of power of guards and prisoners
Miller 01 (Teresa A. Miller, Vice Provost for Equity and Inclusion and Professor
of Law at Buffalo Law School, 7-16-2001 Cross-Gender Supervision in Prison

and the Constitutional Right of Prisoners to Remain Free from Rape 4(2)
http://www.jstor.org/stable/10.1525/nclr.2001.4.2.861 md)
The power of privacy is diminishing in the prison setting, and yet privacy is the legal theory
prisoners rely upon most to resist searches by correctional officers. Incarcerated women in
particular rely upon privacy to shield them from the kind of physical contact that male guards
have been known to abuse.1 The kind of privacy that protects prisoners from
searches by guards of the opposite sex derives from several sources,
depending on the factual circumstances. Although some form of bodily
privacy is embodied in the First, Fourth, Eighth, and Fourteenth
Amendments,2 prisoners challenging the constitutionality of cross-gender searches most
commonly allege privacy violations under the Fourth Amendment proscription against
unreasonable searches by the government.3 Increasingly, however, Eighth
Amendment challenges to cross-gender searches are

becoming more common in the wake of Hudson v. Palmer4 and
Turner v. Safley. 5 Hudson and Turner narrow the scope of privacy and lower
the standard of review for policies which burden constitutional rights in
prison. In Hudson, the U.S. Supreme Court held that the Fourth Amendment
has no application in prison cells and suggested that the bodily privacy of
prisoners was similarly extinguished.6 While only one federal circuit has read
Hudson as broadly eliminating all claims to privacy by prisoners,7 the general
effect of the case was to limit drastically the degree of privacy to which
prisoners could lay claim. This remnant of a right to Fourth Amendment privacy inhered
only to prisoners bodies, particularly as to searches viewed or conducted by guards of the
opposite sex.8 However, in Turner, the Supreme Court reduced to a rational
basis the standard by which impingements on prisoners privacy are judged.
Any prison policy burdening a constitutional right became permissible so long as it was rationally
related a penological objective. In reducing the power of prisoners to assert privacy-based
challenges to prison regulations, the Supreme Court made it painfully clear that courts were not to
second guess the judgements of prison officials. In effect, the Court elevated the
judgements of correctional authorities to a near dispositive level. Privacy
as interpreted by the federal courts is therefore problematic
for incarcerated men . When male prisoners invoke privacy doctrine for protection
against unwanted intrusions upon their bodies by guards of the opposite sex, they frequently run
into doctrinal roadblocks. In Sex & Surveillance: Gender, Privacy and the
Sexualization of Power in Prison, 9 I contend that there is a great deal of
confusion within the rules regulating crossgender searches

and that much of the confusion stems from misconceptions
about how power and sex influence interactions between
guards and prisoners .10 Among these misconceptions are biases about the sexual
vulnerability of female guards, biases that negatively affect the physical security of male
prisoners.11 When federal judges establish the parameters of cross-sex contact between guards
and prisoners, they are strongly influenced by the stereotypes of men as sexual aggressors and
women either as sexual victims (female prisoners) or asexual nurturers (female guards).12 These
stereotypes are powerful. In fact, they elevate stereotyped notions of power within
traditional gender roles over the actual disparity of power that exists between correctional officers
and inmates.13 Thus, judges tend to deploy privacy primarily as a means of protecting sexually
vulnerable womenboth guards and prisoners from sexually aggressive men.14 As a
result, the sexual vulnerability of male prisoners is rarely acknowledged and the link between
searches and sexual violence against male prisonerscommonly occurring at the hands of fellow
inmatesremains largely unexplored.15 Furthermore, the stereotype of the sexually
aggressive male prisoner is bolstered by the fact that the privacy of male
prisoners is defined in opposition to the employment rights of women guards.
As I observed in Sex & Surveillance, federal judges position the privacy rights
of prisoners and the employment rights of guards in diametric opposition.16
Therefore, when federal judges expand the employment opportunities of
women in the traditionally male field of corrections by employing women in
positions previously reserved to menas they are mandated to do by Title VII
of the Civil Rights Act of 1964the scope of privacy for male prisoners is subsequently
diminished. In other words, women assigned to contact positions within
mens prisons are permitted to monitor visually the naked bodies of men
toileting, showering, and undressing and to perform random, suspicionless
hands-on searches such as pat frisks and clothed body searches. This
assignment results in less privacy for male prisoners. In addition, the stereotype
of the sexually aggressive male prisoner assists judges in rationalizing the loss of privacy.
Under the fourth amendment privacy is measured by the degree to which society
recognizes prisoners

Nevertheless, the doctrine of privacy is also problematic for incarcerated women,17
although it raises a different set of issues for women challenging the validity of searches
conducted by male guards. The primary problem for men is that privacy doctrine
emerges from concerns about the equal employment of women and is illsuited to protecting men from the risk of sexual assault posed largely by
fellow inmates. In contrast, women are precisely the group that judges seek to protect when
they determine the scope of privacy in the context of cross-gender searches. Yet the basis of their
privacy protection lies in stereotypes of women that are consistent with womens traditional sex
roles. These stereotypes reflect gender perceptions of female criminal offenders as fallen
women in need of correction that will return them to their proper roles as mothers, wives, and
daughters.18 In The Essence of Her Womanhood: Defining the Privacy Rights of
Women Prisoners and the Employment Rights of Women Guards, 19 Rebecca
Jurado examines how courts manipulate gendered stereotypes of male and female prisoners and
guards within the doctrine of cross-gender searches to achieve results consistent with their beliefs
about the traits of men and women. Jurado compares the scope of privacy for male
and female prisoners and concludes that incarcerated women are afforded more
privacy than their male counterparts.20 She suggests that the disparity results
from the impact of gendered dualisms21 (or opposing pairs of

stereotypes) on the legal standards establishing the scope of
privacy. For example, under the Fourth Amendment, privacy is measured by the degree
to which society is prepared to recognize that a prisoners subjective expectation of privacy is
legitimate.22 Likewise, cross-gender searches run afoul of the Eighth
Amendment when they subject prisoners to more than de minimis physical or
psychological harm, a standard that has been linked to vulnerabilities
associated with gender socialization.23 It is easy to see how the stereotype of
hardened, aggressive men, coupled with vulnerable women, applied to these standards would
result in vastly different levels of protection for male and female prisoners. Consistent with
the early history of womens incarcerationparticularly the separate
reformatory system which sought to return fallen women to their proper
societal roles as chaste, domestic and girlish mothers, daughters, and
wives24judges employ stereotypes of incarcerated women as modest and in need of
protection from their own sexuality. From this paternalistic construction of women prisoners
privacy needs, Jurado contends, judges rationalize limiting the authority of male guards to
search womens bodies and to monitor them visually in states of undress in their living quarters.
For men, incarceration has historically been based upon a military model of
harsh conditions of confinement, close surveillance, and swift discipline for
rule infractions. Consistent with this model, the stereotype of hardened men
accustomed to harsh conditions is employed by judges to justify narrowly construing their
privacy needs. This limited notion of mens privacy needs, combined with the stereotype of
female correctional workers as asexual nurturers and mothers, joins the contemporary
imperative of Title VII to provide equal employment opportunities to women and
justifies allowing women guards to search physically the bodies of male prisoners and to monitor
them visually in states of undress in their living quarters. However, as Jurado points out,
the converse is not true. The broader judicial construction of womens privacy needs is
balanced against a less weighty interest in expanding the employment opportunities of men in
womens prisons. Undeniably, incarcerated women need the protection of privacy to police
appropriate and inappropriate governmental intrusions upon their bodies at the hands of male
guards. There is a strong correlation between crossgender searches and custodial sexual
misconduct among male guards. The power disparity that exists between
men and women in society is magnified within the rigidly

hierarchical and closed prison apparatus. Power is sexualized
in prison .25 Because prison guards exercise near total authority over
prisoners, the potential for male guards to abuse their legitimate access to
womens bodies to conduct bodily searches of women and to visually monitor
them nude or only partially dressed in ways that are overtly sexual is great.
Indeed, in a major report on the sexual abuse of women prisoners, Human
Rights Watch found that male correctional officers misused their search authority to have
inappropriate sexual contact with female prisoners.26 This finding led to a
recommendation that all states limit cross-gender strip searches, pat-frisks and
inappropriate cross-gender visual surveillance of female prisoners.27 The link between crossgender searches and custodial sexual misconduct uniquely burdens women prisoners because
women are more likely than men to be subjected to cross-gender searches28 and more likely
than men to be the objects of custodial sexual misconduct.29
Courts are necessary to recognize privacy rights of prisoners


Despite the needed protection afforded to women by the invocation of
stereotypes , the concept of privacy as it has been applied to
cross-gender searches presents difficulties for both men and

women. Prisoners need to be able to shield their bodies in order to preserve their human
dignity, but privacy as it is currently formulated is too susceptible to harmful gender
bias. An understanding of privacy that is highly contextualized and grounded in fundamental
respect for human dignity and bodily integrity is needed. Privacy conceptualized as a
right to bodily integrity would inhere to the human bodyrather than rely on
biased notions of modestyand would therefore reflect a dual standard for
men and women. Moreover, if courts determined the degree to
which prisoners need protection from cross-gender searches

based upon concrete, case-by-case determinations of
institutional safety and prisoner vulnerability in specific
factual settings, privacy would be less likely to reflect
gendered stereotypes and ideals. There are tremendous conceptual
difficulties in basing the protection of women subject to cross-gender searches on gendered
stereotypes about men and women. First, by employing stereotypes of women that
afford female prisoners greater privacy than male prisoners, federal judges
have constructed a doctrinal bubble around incarcerated women. Within
this limited bubble, judges concern for the modesty of incarcerated women is
linked to stereotyped notions of women in traditional roles as mothers,
asexual nurturers, and sexual victims. The greater degree of protection afforded women
prisoners through privacy doctrine is wildly disproportionate to the harsh treatment of women in
every other aspect of their incarceration. As a small minority of prisoners viewed as
extrinsic to the traditionally male system of imprisonment, women are
generally disadvantaged in comparison to their male counterparts. For
example, women constitute a mere six percent of all prisoners. Consequently
there are far fewer correctional facilities in which to confine them. Within the
existing facilities, women tend to be over-incarcerated,30 that is confined in
higher security facilities even though they commit far fewer violent crimes
than men. Women are also incarcerated farther away from home than men,
in general, making visitation more arduous and increasing the likelihood that
family ties will deteriorate. Womens prisons generally lack the kind of
vocational training provided in mens prison and which creates better
employment options for men when they are released from prison. Yet courts
have refused to interpret the Equal Protection Clause of the Fourteenth
Amendment to require the same programs in mens and womens prisons,
finding instead that incarcerated men and women are not similarly
situated.31 Second, gendered stereotypes are a shaky foundation upon which to base needed
protections for incarcerated women when there is so little that remains of privacy. In light of
Hudson and Turner, cases which narrowly restricted the scope of
Fourth Amendment privacy in prison and revived the hands

off approach to judicial review of search policies prison
officials insist are necessary to maintain internal order, the
stereotypes are almost all that remain of privacy in prison .
When these stereotypes are exploded, there is little left with which to protect
incarcerated women from sexualized abuses of power. Third, the gendered
stereotypes upon which judges rely in expanding the privacy rights of women
are harmful because they actively participate in constructing the reality of
everyday prison life. For example, when judges presume the sexual vulnerability of
female prisoners, they conversely presume that male guards are sexually aggressive. When
judges employ gendered stereotypes of men as sexually aggressive, and therefore limit the
assignment of male guards within the housing units of womens prisons, they are accepting as a
given that male guards are unable to respect the human dignity of women when observing
them nude in the act of toileting, showering, and undressing. In accepting
this duality of aggression and vulnerability, judges are not just rationalizing
outcomes they can feel comfortable with on the basis of presumed traits.
They are actually constructing a reality within prisons. They are ultimately
writing rules around the fact that boys will be boys rather than facilitating a
culture change within prisons that requires male guards to conduct
themselves professionally, and in the process, to respect the basic human
dignity of women prisoners.
Cross Gender searches affect prisoners intersectionally
Thirdly, the use of gendered stereotypes to expand the privacy of women
prisoners is problematic because judges idealize, rather than contextualize,
the experiences of incarcerated women. In doing so, they overlook the
protection of those women whose experiences do not fit the stereotype.
Judicial resolution of privacy-based challenges to cross-gender search policies requires a
contextualized understanding of how the many varied aspects of men and women prisoners
identities shape their privacy expectations. Gender does not exist in isolation from
other components of the identities of male and female prisoners. The men and
women subjected to cross-gender searches possess racial and class attributes and sexual histories
that influence their perceptions of cross-gender searches. These attributes also influence judicial
perceptions of prisoners sensibilities and guards behavioral proclivities. Among women
incarcerated in the U.S., most are women of color, and most are poor. Many are lesbian, bisexual,
and/or transgendered. All these factors complicate how incarcerated
women as well as men experience crossgender searches. Factor

in as well the race, class, and sexualities of the guards conducting the
searches and a judge would be hard pressed to discern the parameters of
privacy in a manner that addresses the complex realities of prison life.
Perhaps that is why judges have largely failed to consider the sexuality of guards and
prisoners in their legal analysis of privacy in cross-gender searches,35 despite its obvious
relevance in the highly sexualized prison environment.
Same-gender searches would be less violating than crossgender searches

Weiser 2

When, however, the basis of a challenge to a prison search is a gender difference between a guard
and prisoner, the Supreme Court has provided little guidance to the lower federal courts.67 The
Courts silence on this issue leaves open the possibility that gender may affect the balance
between prisoners privacy and the penological interests of an institution .68 Searches by oppositesex guards may infringe upon inmates rights more than those by same- sex guards .69 In addition,
opposite-sex guards are not necessary to maintain security. Thus, a prisons use of opposite-sex
guards may be found to violate constitutional rights to privacy unless the prison can show another
legitimate goal besides maintaining security, such as promoting equal employment opportunity.70 Federal
judges appear to be somewhat uncomfortable sanctioning searches conducted by guards of the

opposite sex. This discomfort is heightened when the search is highly intrusive, involving physical contact
with breasts, genitalia, and anal areas. Nevertheless, the federal courts that have considered the
while prisoners have a limited right

to privacy, their interest in protecting bodily privacy is not as strong as the states interest in
internal security or equal opportunity employment for correctional officers.
constitutionality of cross-gender pat-frisks have generally held that
***A2 but men are abused in prisons too

Weiser 2
The Ninth Circuit, in determining whether cross-gender, clothed body searches constituted an
objectively cruel and unusual condition of confinement, considered the psychological impact of
the cross-gender searches from the perspective of the female inmates .161 The court paid particular
attention to the prevalence of sexual abuse histories among the female inmate population , noting
that: The record in the case, including the depositions of several inmates . . . describes the shocking
histories of verbal, physical, and, in particular, sexual abuse endured by many of the inmates prior to their
incarceration at WCCW. For example, [one inmate], who gave live trial testimony, described rapes by
strangers (twice) and by husbands or boyfriends. She described how she had been beaten by various men
in her life. Two deprived her of adequate food; one pushed her out of a moving car. [Her] story is not
unique. Eighty-five percent of the inmates report a history of serious abuse to WCCW counselors,
including rapes, molestations, beatings, and slavery.162 Relying on a Ninth Circuit sexual harassment
case, Ellison v. Bradley,163 the court found that because
women are disproportionately victims of

rape and sexual assault, they may respond differently than men in situations that are sexually
charged.164 The court reasoned that since men and women are vulnerable in different ways, the
severity and pervasiveness of sexual harassment should be evaluated from the victims
perspective.165 Thus, the court held that due to the differences in the experiences of men and
women with regard to sexuality,166 the cross-gender nature of the searches caused an
unconstitutional level of pain for all female inmates, even those who did not have a history of
sexual abuse.167 By reaching the conclusion that the female inmates at WCCW may suffer harm if
subjected to intrusive, clothed body searches conducted by male guards, the court was able to distinguish
similar searches of male prisoners by female guards had not

been shown to cause the same level of psychological harm. 168 In Grummett, for example, the court
asserted that the male inmates had not shown sufficient evidence of pain or likelihood of
psychological trauma as a result of the searches to make out a cognizable Eighth Amendment
prior case law. The court noted that
claim.169 Thus, the majority reasoned that because the precedent was based solely on a male prisoners
reaction to being searched by a female guard, which does not raise the same societal and constitutional
concerns as the touching of a woman by a man, it was inapposite.
Cross-gender policies need to be reformed

Weiser 2

In Coleman v. Vasquez,206 a female inmate placed in a special unit for victims of sexual abuse filed
a Section 1983 action against prison officials alleging that she was sexually abused by a male guard,
and challenging the constitutionality of the prisons cross-gender pat- searches . The defendants
filed a motion to dismiss arguing that the complaint did not allege a cause of action under the Fourth
Amendment since the Eighth Amendment is the explicit textual source of constitutional protection for
alleged infringements of prisoners rights.207 The district court denied the motion, rejecting as a matter of
law the suggestion that an inmate in the given circumstance has no claim under the Fourth
Amendment.208 Acknowledging that the defendants may be able to prove at trial that the prison
conducted the searches pursuant to a constitutionally valid policy,209 the court refused to decide on the
The court
stressed the need for further factual development on the specific pat-search policy, the
justification for its adoption, the frequency with which inmates in the Sexual Trauma Unit are
subject to pat-searches, and the other [Turner factors].211 Although the court did not reach this
ultimate issue, it carefully distinguished the situation in which an inmate has particular
vulnerabilities due to her sexual abuse history from the numerous cases in other jurisdictions
allowing pat-searches by guards of the opposite sex. 212
pleadings alone whether the plaintiffs Fourth Amendment right was clearly established.210
Cross-gender pat-frisks are intrusive and not reasonably

needed
Weiser 2
Pat-frisks of intimate body parts are intrusive and degrading to inmates in all contexts. When,
however, a male guard searches a female inmates body, a woman is apt to experience not only
the degradation of having the most intimate parts of her body exposed or explored, but also fear
that the male guard will abuse his power in the situation and sexually abuse her .237 The fear is
even more acute for those who have suffered past abuse.238 The extreme invasiveness of these
searches makes the states burden of establishing that these searches are reasonably necessary to
accommodate a legitimate penological interest and that there is no realistic alternative to accomplish
the same goal much harder to meet. Constitutional theorist Akhil Amar has called this idea the
proportionality principle, arguing that more serious intrusions require more weighty justifications.239
Fourth Amendment
http://jailhouselaw.org/your-right-to-be-free-from-unreasonable-searches-andseizures/
The Fourth Amendment forbids the government from conducting unreasonable searches and
seizures. Outside of prison, this means that a police officer or F.B.I. agent
cannot come into your home or search your body without your consent or a
search warrant, unless it is an emergency. However, the Fourth Amendment only
protects places or things in which you have a reasonable expectation of privacy. In the
outside world, this means that if you have your window shades wide open,
you cant expect somebody not to look in, so a cop can too. In Hudson v. Palmer,
468 U.S. 517, 530 (1984), the Supreme Court held that prisoners dont have a reasonable
expectation of privacy in their cells, so prison officials can search them as a routine matter
without any particular justification, and without having to produce anything like a search
warrant. This doesnt mean that all cell searches are OK . If a prison
official searches your cell just to harass you or for some other reason that is not
justified by a penological need, this may be a Fourth Amendment violation. However,
to get a court to believe that the purpose was harassment, you will need
some truly shocking facts. For example, in Scher v. Engelke, 943 F.2d 921,
923-24 (8th Cir. 1991) a prison guard searched a prisoners cell 10 times in
19 days and left the cell in disarray after three of these searches. There is
more protection against strip searches. While prisoners have no
expectation of privacy in their cells, they retain a limited

expectation of privacy in their bodies. In analyzing body cavity
searches, strip searches, or any invasions of bodily privacy, a court will
balance the need for the search against the invasion of privacy the search
involves. Strip searches are generally allowed but many courts state that the searches must
be related to legitimate penological interests and cannot be excessive or used to harass,
intimidate, or punish. In Jean-Laurent v. Wilkenson, 540 F. Supp. 2d 501 (S.D.N.Y
2008), for example, one court stated that a second-strip search might be
unconstitutional, because the inmate was under the constant supervision of
guards since the first search. Another good case to read is Lopez v. Youngblood, 609
F. Supp. 2d 1125 (E.D. Cal. 2009), in which a court held it was unconstitutional to strip
search detainees in a group. The jail tried to justify the group strip search as necessary for
administrative ease. The court disagreed, stating that administrative burdens and
inconvenience do not justify constitutional violations. Prisoners seem to have had the
most success when the searches were conducted by, or in front of, guards of
the opposite gender. For example, in Hayes v. Marriott, 70 F.3d 1144, 1147-48
(10th Cir. 1995), the court held that a body cavity search of a male prisoner in front of female
guards stated a claim for a Fourth Amendment violation because there was no security
need. In Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992), the court recognized
a male prisoners Fourth Amendment claim based on a strip search done outdoors, in front of
several female guards. This rule is not limited to strip searches . Where
a female prisoner had a documented history of sexual abuse but was forced
by male guards to endure pat-down searches that sometimes included
inappropriate touching and unwarranted sexual advances, a court found that
the circumstances could violate the Fourth Amendments prohibition against
unreasonable searches and its more general guarantee of a right to some

measure of bodily privacy. Colman v. Vasquez, 142 F. Supp. 2d 226 (D. Conn.
2001). In Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993), the court
recognized a claim by male inmates who were observed by female guards
while they showered and went to the bathroom. In Kent v. Johnson, 821 F.2d
1220, 1226-27 (6th Cir. 1987), the court refused to dismiss an inmates
complaint that stated female prison guards routinely saw male prisoners
naked, showering, and using the toilet. Even when the search is not done by or in front
of a person of the opposite gender, however, you may be able to show a Fourth Amendment
violation if there was no reasonable justification for the invasive search.
Unfortunately, many courts have held that strip searches after contact visits
are constitutional. Additionally, courts have held strip searches that are
accompanied by officer misconduct (name calling or some inappropriate
touching) usually do not violate the prisoners constitutional rights if there is
no physical injury. This may, however, be actionable under state tort law and
should always be reported and investigated. We discuss this more in Section
F, Part 2 of this chapter. The law is slightly better for pretrial detainees, so if
you havent yet been convicted, read Section J of this Chapter, on the rights
of pretrial detainees.
4th Amendment Rights

Prisoners are not even afforded basic 4th Amendment Rights
1994
Jordan v. Gardner: Female Prisoners' Rights to be Free from Random, CrossGender Clothed Body Searches
David J. Stollman
The Supreme Court has recognized that prisoners retain limited First
Amendment,2 7 Equal Protection,2 8 and Due Process rights2. 9 The Supreme
Court has not addressed the issue of whether a prisoner has any Fourth
Amendment rights to be free from unreasonable searches of his person.3"
The Supreme Court has, however, recently determined that prisoners have no
Fourth Amendment protection from searches of their property within their
prison cells. This conclusion indicates that if prisoners have any Fourth
Amendment rights whatsoever, they are extremely limited.
Restore 4th Amendment rights

Buchanan 5
Guards' sexual harassment and exploitation of prisoners , then, are practically unreviewable under
the Fourth Amendment.76 When the courts refuse to prohibit abusive behavior, their silence
amounts to an "abdication of judicial responsibility that permits delegation to a non- legitimate actor.""
abandons prisoners' well-being almost entirely to the discretion

of guards and wardens, effectively privatizes the abuse of prisoners: prisoners, and their treatment,
This uncritical judicial deference, which
have been removed from the public realm. "Like the patriarchal authority of the husband within the
traditionally ordered home, the authority of prison administrators within the prison cannot be 78
Fourth Amendment privacy doctrine inverts the prisoner's right to privacy: It

becomes a private right of prison officials, within very broad parameters, to treat prisoners as they
see fit.79
gainsaid. Thus,
4th Amendment restoration key

Buchanan 5
Fourth Amendment privacy is an individual constitutional right. Theoretically, it makes little sense to
construe its primary aim as the erosion of gender stereotypes. The purpose of a Fourth Amendment
privacy claim is to protect the prisoner, not to facilitate prison administration, as the courts have
interpreted it,' and not to eradicate symbolic harms to persons other than the claimant -especially
when those persons, such as male guards, are adverse in interest to the prisoner-plaintiff, or, like middleclass white women, are greatly advantaged in comparison with her (or him). Particularly in light of the high
the primary purpose of prisoners'

bodily privacy should be to protect them against custodial abuse. A Fourth Amendment right to
freedom from the threat of sexual assault could serve as an important step toward
operationalizing the concept of human dignity.
incidence of sexual abuse by guards in women's and men's prisons,
Autonomy add on
By granting personal power back to the incarcerated body, a
sense of self-determination is returned to themthis allows for
them to find resistance in their reality.
Larson 10
(Doran Larson, writer for The Johns Hopkins University Press, 2010, Towards
a Prison Poetics, published in College Literature 37(3), SR)
Within the controlled spaces of the prison, the structure of power is uni versal : men and women
live inside boxes, cages or cells; guards operate doors and gates, grant or withdraw privileges,
and mete out punishment; and all of these activities are carried on within the walled or fenced
perimeters of the prison grounds. Like the writing that emerges from inside them writing that at once
the cell protects the

guard from the inmate, and the inmate from the guard; the outer wall keeps the inmates in, in the
name of protecting 'law-abiding society', and it keeps law-abiding society out, protecting the
punishment apparatus from unregulated inspection. From either direction, isolation is the common
purpose. In theory, prison and cell walls arbitrate guard-inmate relationships upon models derived from
law and administrative policies operating within the limits of law. But every community that agrees to
build a perimeter that keeps public scrutiny out effectively cuts the nerves between the head and
the whip-wielding hand of the body politic. John Edgar Wideman remarks that "Prisons do their
grows out of and resists prison conditions walls and cages are ambivalent barriers:
dirtiest work in the dark. The evil they perpetrate depends on a kind of willed ignorance on the part of the
public" (qtd. in Lopez 2005, 69; cf.Abbott 1991, 108). The result is a prison that Hugh Lewin calls a
"complete world, a life complete in itself, without reference to anything outside itself" (1976, 50). National
and cultural differences are merely variations within this fixed schematic in which, as Foucault admits, the
practitioners of punishment, "the most hidden part of the penal process," "tend to become an autonomous
sector" (1995, 9, 10).Whether operated with sincere will to inmate reform, with blatant sadism, or benign
or malign indifference, the world inside the prison is a "complete prison universe" (Breytenbach
1984,276). Concealed from a pub lic that finds punishment "an additional shame that justice is ashamed
to impose on the condemned man" (Foucault 1995, 9), the prison universe is a true archipelago: a
transnational nation scattered across continents, but of one constitution, written day to day, and amended
The prison archipelago is one

eradicated from time and place: a transnational universe under military occupation .4 The sky
above the prison is the sky of Santiago or Quebec, Colombo or Madrid, Beijing, Rangoon or
Joliet, but conditions on the ground are those of men and women quarantined into the hands of
the jailors, wherein even the constitutionally derived decisions of courts are given up to the moods of the
hour to hour, by the hand of the jailor upon the flesh of the inmate.
men who turn the locks and wield the batons. As an apartheid era Security Branch officer said to jailed
activist Ruth First, "I
am the regulations" (1965, 84).Yet despite such legal and material isolation, the
prison writer writes resistance to the point where s/he can say of the jailor, "This creature is
irrelevant, he is not real. I represent reality" (Soyinka 1972,98). By identifying the tropes that emerge
from the transnational structure of prison experience, we will understand how such a reversal is enacted
both at the personal level and as the work of the prison text vis-a-vis the isolating monologue of power in
general.
Personal autonomy given to prisoners allows them the ability

to speak out about the injustices found within institutional
walls
Larson 10
(Doran Larson, writer for The Johns Hopkins University Press, 2010, Towards
a Prison Poetics, published in College Literature 37(3), SR)
In The Man Died, Wole Soyinka, like King, links his imprisonment to that of past and present freedom
fighters and the unjustly punished: the Greek writer George Mangakis, victims of American lynching, the
Holocaust, My Lai, the Warsaw ghetto, as well as liberation struggles in Indonesia, Asaba, Pakistan, and
Cuba (Soyinka 1972,20,22,24,25,40). Also like King,
Soyinka places his text within a smaller, more
intimate community, even while fully aware that this "correspondence" might some day be
witnessed by the world. But unlike King, Soyinka also knows that he might die in his cell; and so
his is a record of the effort to survive in body mind, and spirit. Soyinka sees what prison and its
physical deprivations have cost him as a man. He does not so readily or often as King write in the
plural; rather, he argues for such linkages as he writes for his very survival, from a position of personal
the characterization of this text as a "private record" offered up to

"world conscience." Soyinka knows that no prison text bears merely personal or even merely national
isolation and danger. Telling is
significance. He writes, "It seems tome that testimonies such as this [George Mangakis'] should become a
kind of chain-letter hung permanently on the leaden con science of the world" (1972, 11).Yet even this
grand formulation is literally bound to a single cell. In a subsequent image that graphically marks the
disparate positions of the imprisoned writer and free-world reader, this clever double-entendre proves all
The doubled meaning unfolds as a double consciousness that literally touches the
skin. Soyinka is bound by shackles:". . . in the experience of the physical thing the individual does not
too material.
stand alone, most especially a black man. I had felt it, it seemed tome, hundreds of years before ... racial
memory. Surely it cannot be a strictly personal experience" (39).18 Here the political fluency of the
"we" is conditioned by a bodily response to the history-the chain letter-of physical restraint. Soyinka's
book, like King's letter, graphs the prison writer's privileged moral position. But because the material
Soyinka speaks
directly from with in and against the physical grip of power. Here even the simplest, most personal
description of conditions testifies to the moral state of the penal apparatus. From the subtle sophisms
and selective enforcement of laws that are the "diversion of illegality for the illicit circuits of
profit and power of the dominant class" (Foucault 1995, 280) to the ham-fisted grip of the block screw,
the prisoner-caged, shackled-feels himself linked materially to the apparatuses of power between
whose physical manifestations the "law-abiding" citizen lies quiet. Every discovery is a
declaration, each impression a testament. Written from inside the flexed muscle of power, there can be
conditions of imprisonment always mark the prison text, we are never unaware that
no distinction in such a text between autobiography and testament, between reportage and witness. King
Soyinka knows that in the very heat of

his cell, as he writes with a stolen pen between the lines of books whose titles he cannot name
even after release for fear of implicating sympathetic jailors (1972, 8), he breathes in the hot
exhalations of power, and breathes out a testament to how that power can be survived through
the work that his text records and through the daily labor of its recording: "My shadow is trapped
but not my essence. Repeat. My shadow is trapped but not my essence" (187). His only other
strategically and eloquently depersonalizes his experience. But
available method of resistance is to retrieve even this shadow. In its most lyric passages, The Man Died is
the record of a writer who makes both an ascetic and aesthetic experience of fasting, working to a point
of perfect invulnerability, "leaving no handhold for them to seize on" (130). " I
need nothing. I feel

nothing. I desire nothing" (253)?a point where the author achieves "true weightlessness. I am blown
about by the lightest breeze, by the lightest lyrical thought or metaphor" (250) even while fully
aware of the material conditions that surround him and of his own, resulting metamorphosis: " There are
levels of despair from which, it seems, the human spirit should not recover"
A2 No test case
Hudson v Palmer is bad and unconstitutional and should be
overturned
Yak 85
(Patricia Yak, June 1985,
The Court's holding in Palmeris overly broad. The bright line rule it adopts in
this case is neither warranted by the circumstances of incarceration nor
justified by the Court's analysis. Case by case adjudication has been the
traditional treatment in fourth amendment cases.143 Categorical treatment
an is exception warranted in only a few instances. "4 In light of the fact that
the circuit courts found case by case adjudication workable for the sixty-five
year span between Stroud and Palmer and, that the Court offers little
justification for leaving prisoners wholly stripped of fourth amendment
protections,'45 the Court should have recognized at least a diminished
expectation of protection under the fourth amendment.
Echoed in the circuit court cases are the concerns inherent in the fourth
amendment's protections: limiting the discretion of individual government
agents; according dignity to prisoners; recognizing the history and purpose
underlying the amendment. In United States v. Lilly," the court maintained
that "[tihe history and purpose underlying the fourth amendment ...require
that prisoners retain at least some degree of their fourth
amendment protection.' 14 7 The fourth amendment was adopted in reaction
to general warrants "that gave government agents unfettered discretion to
conduct searches and to seize property."'48 Any wholesale denial of the
amendment's protections to persons who are incarcerated subjects them to
the threat of abuse at the hands of government agents. Palmer permits the
very evil that the Framers intended to eradicate when they
drafted the fourth amendment.
Earlier circuit court cases provide a more thorough and balanced appraisal of the significance of fourth amendment protections in the
prison context. They emphasize that appropriate deference to the security
needs of penal institutions is protected by testing the,reasonableness of
official conduct. Lilly held that a categorical denial of fourth amendment
protection for prison inmates is completely untenable. The Constitution,
according to Lilly, requires an evaluation of reasonableness based on the particularfacts of each case."' In United States v.Hinckley, 60 the District of
Columbia Circuit held that "the preeminent value underlying the fourth
amendment, the right to freedom from arbitrary interference with privacy,
must. . . be recognized. . . in a detention context. ' 151 A like concern with
the "dignity and in- trinsic worth of every individual" was evident in Bonner v.
Coughlin'52 which required the government to show the reasonableness of
the seizure in that case.
In Bell v. Wolfish'53 the Supreme Court maintained that, "in each case," the
test of reasonableness under the fourth amendment "requires a balancing of
the need for the particular search against the invasion of personal rights that
the search entails. ' 154 Conversely, categorical treatment under the fourth
amendment is generally appropriate only when "those forms of police action
which involve relatively minor intrusions into privacy, occur with great
frequency, and virtually defy on-the-spot rationalization on the basis of the

unique facts of the individual case." I5" Applying this test, prison searches are
inappropriate for the categorical treatment Justice O'Connor suggests or the
bright line rule that the Palmermajority creates. Although most searches can
be justified based on legitimate security concerns, searches that are solely to
harass or that are conducted in an abusive manner do not constitute minor
intrusions into privacy. Nor does the seizure of property, possessed by an
inmate in ac- cordance with state law and prison regulations, constitute a minor intrusion. Additionally, prison guidelines eliminate the ne- cessity for ad
hoc searches or seizures while ensuring that security considerations are not
jeopardized.
Categorical treatment under the fourth amendment is usually reserved to
restrict the discretion of the officer in the field to conduct minimal intrusions
on an individual's privacy and possessory interests in circumstances that do
not permit time to balance competing interests of privacy and security.15
Palmer's bright-line rule gives virtually unlimited discretion to officials in a
uniquely controlled situation. The facts of Palmer illustrate that its per se rule
is an unreasonable departure from traditional fourth amendment analysis..
While a search of the inmate's cell may have been justified for security
reasons, prison officials did not present any cogent reason for destroying the
non-contraband personal property.
"Prisoners are truly the outcasts of society."15 As such, the judiciary has a
constitutional duty to ensure that certain fundamental rights are not
"sacrificed to expediency. ' 15 The fourth amendment is such a fundamental
right for it "rests on the principle that a true balance between the individual
and society depends on the recognition of 'the right to be let alone - the
most comprehensive of rights and the right most valued by civilized men.'
",159 Only the fourth amendment can adequately protect the right to be let
alone; state tort actions are no substitute since they provide compensation
only after the right has been infringed. Likewise, the eighth amendment's
proscription against cruel and unusual punishment is effective only when an
abusive search and seizure rises to an extreme level. The Su- preme Court in
Palmer therefore, unjustifiably eradicates a fundamental constitutional
protection in prisons and takes a giant step backward to the archaic view of
the prisoner as a slave of the state.
A2 politics
Prison reformations are consistently bipartisan
Hurst 14
(EJ Hurst II, August 14th, contributor to The Hill, a leading Congressional
publication. Federal sentencing and prison reform now bipartisan issues
http://thehill.com/blogs/pundits-blog/crime/214998-federal-sentencing-andprison-reform-now-bipartisan-issues SR)
Over objections from older drug warriors, the GOP's younger generation and even some of its elders
are working with Capitol Hill Democrats to shorten federal sentences, reduce populations in
overcrowded federal prisons and even to count (and reconsider) the thousands of federal crimes on
the books. Among those leading the charge is Kentucky's junior senator, Rand Paul (R), seemingly a
future presidential candidate. Over the past two years, with such diverse Senate voices as Ted Cruz (RTexas), Elizabeth Warren (D-Mass.), Jeff Flake (R-Ariz.), and Cory Booker (D-N.J.), Paul has introduced or
co-sponsored legislation that would Reduce mandatory minimum sentences; Expand judges' power to
sentence defendants below mandatory minimum prison terms (the so-called "safety valve"); Equalize the
punishments for crack and powder cocaine, and reduce certain low-level felony offenses to misdemeanors;
Require a full count of federal criminal offenses; and Change the way criminal records are sealed or
On the House side,

bills have been co-sponsored by the usual Democrats , like Virginia's Bobby Scott and
Michigan's John Conyers. But in the 113th Congress, criminal justice reform has also enjoyed
Republican sponsorships from the conservative likes of Spencer Bachus (Ala.), Frank Wolf (Va.), and
expunged, to help ex-offenders and those arrested but never convicted find jobs.
similar
Paul Ryan (Wis.).
Prison reforms are popular

Berman 6/10
(Russell Berman, 6/10/15, Russell Berman is a senior associate editor at The

Atlantic, where he covers political news. The Moment for Criminal-Justice
Reform? http://www.theatlantic.com/politics/archive/2015/07/congressobama-criminal-justice-reform/398045/ SR)
The U.S. locks up more of its citizens than any nation in the world , and far too many of them are
African American and Hispanic men imprisoned for non-violent drug crimes. The sad state of the
criminal-justice system has become , over the last decade, a crisis lamented with nearly equal
measure of sorrow by Democrats and Republicans alike. To hear the politicians tell it, mass
incarceration is both a financial drain on the government at all levels, and a moral stain that
consigns families and entire communities to a cycle of poverty. Yet despite no shortage of proposals for
reform in recent years, Congress has done virtually nothing. That may, finally, be about to change,
as an emboldened President Obama eyes what might be the last major addition to his domestic legacy in
the White House. Speaking at a press conference last week, the president was asked how he might follow
the remarkable string of victories he earned in late June, which included a congressional win on trade, a
pair of legacy-setting Supreme Court decisions, and a widely-praised eulogy in Charleston. He ticked off
several unchecked boxes on his economic agenda, including a major infrastructure bill and enactment of
the big-ticket item Obama

mentioned that actually holds the most promise in the Republican Congress is a long-awaited
overhaul of the nations criminal-justice system. Weve seen some really interesting leadership from
his proposals to boost job training and access to community college. But
some unlikely Republican legislators very sincerely concerned about making progress there, the president
observed. Hes right.
The bipartisan coalition pushing to reduce incarceration rates in the worlds

most crowded prison system has been building for years , bringing together ardent foes like the Koch
Brothers and the ACLU, and Rand Paul and Cory Booker, among others. Various proposals to eliminate
mandatory-minimum sentences for certain drug crimes, and to keep young, nonviolent offenders from
that
movement is cresting now, providing what lawmakers and advocates say is a genuine opportunity to
enact legislation before the end of the year. I am very optimistic that we will get something done . If
receiving long, crippling prison sentences have circulated for a while without going anywhere. Yet
you had told me a couple years ago, I would not have believed it, said Representative Elijah Cummings, a
Maryland Democrat who is not known as a congressional Pollyanna.
A2 Only womens prisons

Under the Equal Protection Clause, male prisoners should also
be given 4th amendment rights
Jackson 98
(Jackson, Karoline E. J.D. Candidate, 1998, Indiana University School o fLawBloomington; B.A., summa cum laude, 1995, Ball State University. The Legitimacy of CrossGender Searches and Surveillance in Prisons: Defining an Appropriate and Uniform Review.
Indiana Law Journal, vol 73:959.) AWilson
The Equal Protection Clause ofthe Fourteenth Amendment62 generally requires the government
to treat similarly situated people the same. In states where prison regulations forbid cross-gender
searches with respect to female inmates and not to male inmates, male prisoners may be able to
establish an equal-protection violation. However, to establish a viable equal-protection claim,
male prisoners would first have to show that they are similarly situated to female inmates who are
receiving favorable treatment. Although courts dealing with equal-protection claims
in the prison setting admit the disparity between the prison policies regarding
male and female inmates,63 they usually conclude that male and female
inmates are not similarly situated.' Regulations that contain overt facial
classifications based on gender are subjected to a heightened, intermediate
standard of review. The Supreme Court has concluded that any gender-based distinction
"must serve important governmental objectives and must be substantially related to the
achievement of those objectives."6 Prison search regulations that classify on the basis of whether
the inmate is male or female would constitute an overt facial classification that would be subject
to the intermediate standard of review. Although this would seem to be a successful avenue for
male inmates to use to. free themselves from cross-gender searches, the courts have not been
receptive to such an approach.
Any abuse in mens prisons is still based on the subjugation of

the female
Miller 2k
(Teresa A. Miller, 2000, SEX & SURVEILLANCE: GENDER, PRIVACY & THE
SEXUALIZATION OF POWER IN PRISON, published in the George Mason
University Civil Rights Law Journal, SR)
Prisons are sites of sexual and gender complexity that require a far more nuanced understanding of
the relationship between gender, nudity, sex and violence than that implicit in the doctrinal analysis
of cross-gender search cases. Underlying the distinctions judges draw between permissible and
impermissible searches are gross generalizations about the significance of being observed naked or
only partially clothed by a stranger of the opposite sex. While they may be accurate in other privacy-
their applicability in the context of prisons must be re-examined . Any discussion of

acknowledge the significance
of power, and its sexualization in prison. Sexual aggression is the backdrop against which prison
searches are played out. Men's high-security prisons and large urban jails are characterized by
sexist, masculin- ized subcultures where power is allocated on the basis of one's ability to resist
sexual victimization. First, guards relate to prisoners in sexually derogative ways that emphasize the
prisoner's subordinate position. For example, guards commonly address male prisoners by sexually
derogatory titles such as pussy, sissy, cunt and bitch. These pejorative titles emphasize and stigmatize
the loss of authority incident to incarceration by likening it to unmanliness. Use of derogatory words
such a pussy and cunt to refer to male prisoners emphasizes and stigmatizes the prisoner's lack
of true male authority. Second, in rare instances where prisoners gain authority over guards, conversely
related contexts,
the constitutional jurisprudence of cross-gender searches in prison must
power is sexualized through violence. For example, during prison riots, prisoners frequently sexually
assault guards. [FN24] Finally, between male prisoners, a social pecking order is established and reinforced
through acts of sexual subjugation (either consensual or coerced submission to sexual penetration).
The abuse present in mens prisons is based upon feminine

degradation
Miller 2k
Masculinity is greatly valued among male prisoners . For most male prisoners in long-term
confinement, the loss of liberty suffered during incarceration is accompanied by a psychological
loss of manhood. Behaviors that the contemporary prison population of predominantly African American
and Hispanic working class young men associates with manliness are discouraged by prison officials and
Conduct that orders power among men on

the outside--dominance, aggression, confrontation, independence, autonomy and sexual access to
women--is off-limits to prisoners consistent with the disciplinary apparatus. Additionally, the rigid
punishable as violations of prison disciplinary rules. [FN28]
hierarchy of authority between guards and prisoners is a direct affront to manhood. As one theorist of
prison masculinities explains: [a]part from the enormous threat imposed by the loss of heterosexual
contact ... the prisoner's masculinity is besieged from every side: through loss of autonomy and independence, enforced submission to authority, lack of access to material goods, all of which are central to
his status as a man. [FN29] In the castrating, [FN30] infantilizing world of involuntary correctional
prisoners develop in- formal hierarchies that reconstruct masculinity and distribute
power. [FN31] These hierarchies have been documented*301 by several prison sociologists. [FN32 ]
Sexual dominance and subordination is the principal hierarchy that has emerged among male
prisoners. [FN33] Social scientists offer a variety of explanations for the centrality of this particular
hierarchy. Chodorow focuses broadly on the traumatic separation from the mother in creating a masculine
gender identity that rejects and suppresses femininity. [FN34] Consequently, masculinity becomes
defined by a rigid dichotomy of masculine versus feminine. [FN35] Platek suggests that a prisoner
confinement,
subjected to a totalitarian disciplinary apparatus must react as a radical in recapturing his identity. [FN36]
the image of masculinity

as power con- tributes to the formation of a more aggressive masculinity. [FN37] Newton expands
Segal posits that the conflict between the lives of lower working class men and
upon this notion, suggesting that the same forces that shape a tough, hypermasculine ideal among
working class men, accompanied by abhor- rence of femininity, are magnified in prison where prisoners'
masculine identities are constantly under siege. He states: [f]ar from being stripped of all props and
having to find entirely new ways of dealing with the deprivations of imprisonment, men in prison can be
seen to resort to time-honored techniques that have served to keep *302 men superordinate even when
masculine characteristics among

prisoners have created a pecking order within prisoner subculture wherein manhood is characterized
by one's ongoing ability to resist sexual penetration. [FN39] This hierarchy is particularly well-defined
their masculinity has been severely under threat. [FN38] These
in juvenile facilities, large urban jail facilities and maximum security prisons. It con- sists of three general
A prisoner's position in the hierarchy of

dominance and submission simultaneously defines his social and sexual status. [FN41] Prisoners who
are considered men have the greatest authority and power. They are at the top of the prisoner
hierarchy. Men rule the joint and establish values and norms for the entire prison population.
classes of prisoners: men, queens and punks. [FN40]
[FN42] They are political leaders, gang members, and organizers of the drug trade, sex trade, protection
A small class of queens [FN43] exists below

men. Generally no more than 1 or 2% of the population, they seek and are assigned the passive
sexual role historically associated with women. They are referred to with feminine pronouns and
terms. Their willingness to be sexually submissive makes them highly desirable as sexual partners. The
queen is the foil that instantly defines his partner as a man. However, consistent with the sexism that pervades the prison subculture, queens are excluded from positions of power within
the inmate eco- nomy.
rackets and the smuggling of contraband in prison.
A2 Surveillance good
If a prisoner attempts to report being sexually abused by a
male officer, they risk facing more sexual abuse and violence
VanNatta 10
Alleging rape meant acknowledging sexual contact, so any prisoner who reported rape was sent
to segregation as punishment . Current state law and prison policy supposedly hold guards rather than
prisoners accountable for sexual contact between them. Yet those who report it continue to be
confined to segregation during the investigation, with only the justification for doing so
changing. Beyond being isolating and disruptive, segregation may be dangerous. In a case pending in
Illinois, a woman alleges that she was raped in 29 separate attacks while in the general population of
Dwight Correctional Center, a womens prison. After reporting that a guard had raped her, she was
placed in segregation, where she alleges that a guard raped her and impregnated her (Puccinelli,
2008). Clearly, there is great disincentive for prisoners to report sexual abuse . In addition, prison
staff sometimes actively block investigations. An attorney stated in an interview that prison staff
deliberately sabotaged the investigation of a case. Prison staff showed the prisoner pictures of guards who
were not signed in to work on the unit the night she was raped and asked her to identify the rapist. When
she said that none of them had done it, they closed the investigation. The attorney found that different
Prisoners
surviving rape face special challenges in reporting, getting help, and pressing charges . A prisoner
guards were on the unit that night, and the survivor identified one of them as the rapist.
wishing to report does not have easy access to a telephone or to sympathetic medical personnel. The
survivor must wait to come into contact with someone s/he trusts. This may not be within the timeframe
The longer it takes for the prisoner to report, the less

credible the claim seems to administrators and to the general public (e.g., juries). To further
dissuade a prisoner from reporting, if the administration determines that an allegation of sexual
assault is false (unfounded), prison investigators may issue a disciplinary ticketa sanction that can
extend the prisoners sentence by revoking good-conduct credits and the prisoner can receive up to one
year in segregation. These multiple forms of sexual abuse call for decisive and systematic action
from feminist antiviolence activists.
necessary to do a rape kit for forensic evidence.
Women in prisons have been systemically abused throughout

history
Zaitzow 4
Since women's crimes were predominantly restricted to sex offenses and drunkenness, a criminal
woman was considered disgraced, dishonored, and pathetic (Ciallombardo, 1966, p. 7). Those women
who men involved in criminal offenses were not considered dangerous, and often their male partners took
Ike total blame, than precluding their imprisonment (Chandler, 1973, p. 3). With the exception of a few
men and women prisoners were housed in the same

institutions until the 1870s in the United States. These prisons usually provided separate rooms for
women and men, though both sexes were under the supervision of male guards and wardens. While
most historical accounts of this practice suggest similar treatment, the differences that existed were
significant, particularly women's high risk of rape. When instances of sexual abuse of women
prisoners resulted in pregnancy, it was not uncommon for the woman to be beaten or flogged until
she died (Feinman, 1983). Moreover, services for incarcerated women were substantially limited
private and often religious experiments,
relative to those of incarcerated men. "Unlike men, they were not marched to workshops, mess halls, or
exercise yards. Food and needlework were brought In their quarters, where the women remained day in
and day out, for the years of their sentences (Rafter, 1985, p. ax). Interestingly, this black mark in the his-
A cloak of silence has

shrouded the abuses that imprisoned women have endured throughout history.
tory of corrections is rarely included in most introductory corrections texts.
The way the prison system functions institutionally abuses

women
Zaitzow 4
Today, women's facilities have changed little from those at the beginning of the twentieth century.
Females compose a small percentage of the total prison population ; hence, women's prisons appear
to be smaller and fewer in number (Pollock-Byrne, 1990, p. 97). The end result is that prisoners may be
housed at considerable distance from their families, friends, and legal support . Further, the
relatively small number of women in prison and jail is used to 'justify' low levels of specialization
in treatment and a failure to segregate the more serious and mentally ill offenders from the less
serious offenders" (Ibid). And the one commonality that institutions of the past share with modern
facilities are the traditional values, theories, and practices concerning a woman's role and place in
society...The
staffs, architectural design and programs reflected the culturally valued norms of
women's behavior" (Feinman, 1986, p. 38). Penal institutions built for women "established and
legitimated a tradition of deliberately providing for female prisoners treatment very different from
that of males" (Rafter, 1983, p. 148). The differential treatment of women prisonersalso known as the
"chivalry factor"meant that women should be treated more leniently than men. Yet, as noted by many
once a
woman enters the correctional facility, she has not necessarily benefited from the benevolence of
the criminal justice system. In fact, she may be treated worse than male prisoners.
criminologists (Belknap, 2001, pp. 63, 190; Van Wormer & Bartollas, 2000, p. 62; Owen, 1998),
Working outside of organizations like prisons is key to change

mainstream ideas and spill over to disrupt institutional norms
VanNatta 10
Schmitt and Martin (1999) discuss the importance of insider organizing to create social change, with
feminists working within mainstream institutions. Lebon (1996), in contrast, claims that successful
insider organizing only takes place when there is additional feminist activism outside mainstream
even in the absence of outsider organizing, feminists

inside mainstream institutions can change the mainstream. To the extent that this is true, RCCs can
play a role in protecting the human rights of prisoners. Tactics compatible with RCC capacities might
include: incorporating the concept of institutional sexual abuse into trainings, advocating with
legislators and prison administration for human rights protections in prisons to bring them in line
with international human rights standards,24 reconsidering alliances with the legal system, and
expanding prevention work beyond schools. RCCs can also re-center the voices of communities
targeted by the legal system to build analysis and develop organizing strategies (Bierria, 2007). This
institutions. Schmitt and Martin assert that
would require a radical revision of current RCC collective representations of sexual assault (Loseke, 1992);
frames for thinking about sexual assault (Goffman, 1974; Chasteen, 2001); institutional alliances with
other organizations and systems; everyday rules and routines (March and Olsen, 1989; Martin and Powell,
the most vigorous organizing

against prison sexual abuse must take place outside RCCs and the nonprofit industrial complex.
Bumiller (2008: 163) has asserted that sexual abuse prevention campaigns must focus chiefly on
1994); and funding and accountability structures (Bierria, 2007). Perhaps
promoting economic sustainability for womenso that women have sufficient emotional, material and
preventing the government from interfering with

womens full autonomy. As Incite notes (2007), this revolution will not be funded. Some degree
of outsider organizing, as Lebon asserts, will be necessary to promote such dramatic social
change.
communal support to sustain themselvesand on
Increasing surveillance in womens prisons will only

exacerbate the problemchanging prison regulations are the
only solution
VanNatta 10

Sexual abuse is not an inevitable feature of incarceration (National Prison Rape Elimination Commission Report, 2009: 5). Yet incarceration fundamentally involves coercion of human bodies,
including the sexuality of those bodies (Ristroph, 2006). Thus, it is critically necessary in the short term
to reform conditions in prisons that facilitate widespread and extreme forms of sexual violence against
prisoners. It is also necessary to question whether any prison structure can be free from sexual violation.
This research takes the position that prisons are inherently oppressive. The
constraints and abuses that

prisons inflict on the bodies of prisoners constitute forms of physical and sexual abuses that are
fundamental to the project of prison itself. Calling for prisons to reform their practices is an important
step in curbing flagrant human rights abuses. It is not a substitute for trying to end incarceration
altogether and seeking functional alternatives. Intensified surveillance in prisons, as the Prison Rape
Elimination Act advocates, is not an effective way to end prison sexual violence . According to Ristroph
(2006: 146), higher levels of prison surveillance and prosecutions of prison rapists are key aspects of
prison sexual violence is a product of institutions that discipline and punish;

we are unlikely to eliminate such coercion with still more discipline and still more punishment .
PREAs agenda, but
In the interest of antiviolence advocacy, feminist organizers must critique the prison as an oppressive
social institution rather than construct it as a resource in the struggle against violence against women.
Prison is an institution designed to impose state control on human bodies, and through discipline
and surveillance of the bodies of prisoners, it creates specific, perhaps unique, forms of sexual
coercion and violence.23 In Sexual Punishments, Alice Ristroph (2006: 144) argues that:
Incarceration is...pervasively corporalit involves state action against the body and state control of
the body to a degree unmatched in other political contexts . Consequently, it provides innumerable
opportunities for officials to observe and regulate the sexual existences of inmates, and for inmates to
observe, regulate, and interact with each other. Incarceration is also coercive, inegalitarian, and
hierarchical, not only in terms of the state-prisoner relationship, but also in terms of internal inmate
Most importantly, incarceration is total: It regulates prisoners existences so

the only way a prison could avoid reaching prisoner sexuality would be to render
prisoners nonsexual beings. In short, incarceration is (partly) sexual, and the sexuality of prison is
mostly if not entirely coerced.
relationships....
thoroughly that
Sexual abuse is normalized in the prison system something

because of what the USFG authorizes
Buchanan 5
Male correctional employees have vaginally, anally, and orally raped female prisoners and sexually
assaulted and abused them. We found that in the course of committing such gross misconduct, male
officers have not only used actual or threatened physical force, but have also used their near total
authority to provide or deny goods and privileges to female prisoners to compel them to have sex
or, in other cases, to reward them for having done so. In other cases, male officers have violated their
most basic professional duty and engaged in sexual contact with female prisoners absent the use or threat
male officers
have used mandatory pat- frisks or room searches to grope women's breasts, buttocks, and vaginal
areas and to view them inappropriately while in a state of undress in the housing or bathroom areas.
Male correctional officers and staff have also engaged in regular verbal degradation and
harassment of female prisoners, thus contributing to a custodial environment in the state prisons
for women which is often highly sexualized and excessively hostile.' As various correctional
of force or any material exchange. In addition to engaging in sexual relations with prisoners,
departments and human rights organizations have observed, an important factor contributing to custodial
sexual abuse in US women's prisons is that "the
United States, despite authoritative international

rules to the contrary, allows male correctional employees to hold contact positions over
prisoners."
Privacy in prisons is seen as illegitimate by the prisons

themselves
Buchanan 5
published in Marquette Law Review, 757-758 SR)
In Hudson v. Palmer, the Supreme Court held that prisoners have no reasonable expectation of
privacy with respect to searches of their cells and property. "Society," the majority held in Hudson, "is
not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner
might have in his prison cell. 3 8 Prisoners are disallowed any constitutional privacy right with
respect to their cells or property because recognition of such a right would inconvenience the prison
administration and limit its ability to keep prisoners under control. Justice Burger held in Hudson:
The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the
concept of incarceration and the needs and objectives of penal institutions.... [I]t would be literally
impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in
their cells.... A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with
the close and continual surveillance of inmates and their cells required to ensure institutional security and
prisoners' rights to privacy are not judicially recognized unless those rights
are consistent with the interests of the state. ' Indeed, the scope and very existence of prisoners' privacy
rights are determined from a majoritarian perspective: "[S]ociety would insist that the prisoner's
expectation of privacy always yield to what must be considered the paramount interest in
institutional security."" Normally, the very essence of individual rights is that they conflict with the
internal order.39 Thus,
interests of the state." As Ronald Dworkin contends, rights serve as "political trumps held by
individuals."43 Individual rights are intended to pose obstacles and impose burdens on governmental
The Supreme Court's determination that prisoners' privacy rights are limited by the
interests of the state, rather than the other way around, means that prisoners have no privacy
rights at all.
action."
Actions for change must be backed by an intersectional view of

the incarcerated individual
VanNatta 10
Rape crisis centers are the chief organizations in the United States devoted to fighting sexual assault, yet
they have largely failed to organize, provide advocacy, give services, or recognize the legitimate
needs of the incarcerated concerning sexual abuse . To address the sexual abuse of incarcerated
people, rape crisis centers must develop a more nuanced view of the prison-industrial complex. RCCs have
They must move beyond a white,

middle-class leadership that focuses on the forms of sexual abuse most common to white, middleclass women. They must begin to address forms of sexual abuse that target low-income women of
color, such as by law enforcement. Finally, their definition of sexual abuse must incorporate the
abuse inherent in unequal relations of power within institutions that control and act on the body
and sexuality of the survivor, creating physical, sexual, emotional, and spiritual harm. This
often regarded it chiefly as an ally in the fight against rapists.
conception of sexual abuse can translate into providing rape-counseling services at jails and prisons within
the organizations service area, creating outreach programs in prisons, and accepting collect calls from
becoming
involved in activism to promote human rights safeguards for incarcerated and criminalized
individuals,22 advocating for alternatives to the prison-industrial complex, and joining with community
prisoners. A more robust conceptualization of sexual abuse and antiviolence work could mean
groups to develop strategies outside the legal system for preventing sexual abuse and promoting healing
from sexual abuse. Next, I consider prospects for ending sexual abuse in prison.
Feminist movements have often ignored the issues present in

prisons
VanNatta 10
Mainstream feminist anti-rape organizing rhetoric frames sexual abuse as a social problem rooted
in patriarchal social structure (e.g., Buchwald, Fletcher. and Roth, 1993). Yet the evolving emphasis on services
to individual victims marginalizes activism aimed at changing broader social structures (Russo,
2001). Second-wave feminist organizing has often been dominated by white, middle-class women (Sandoval, 2000) and
has focused on forms of abuse perhaps most likely to affect such women: interpersonal abuse such as partner abuse and
rape by partners, dates, relatives, acquaintances, and strangers (Crenshaw, 1996; Smith, 2005; Davis, 1983; Ferree and
Mainstream feminist antiviolence groups have been less likely to focus

on institutionalized abuse that primarily af- fects low-income women of color (such as police
brutality), abuse by immigration agents, violence in prison, and systems of prostitution (Incite-Critical Resistance,
Hess, 2000; Matthews, 1989).
2005; Crenshaw, 1996; Russo, 2001). Furthermore, the alliance of RCCs with the state limits their potential to address
abuse and repression by the state institutions they rely on: police, prosecutors, courts, and prison (Bumiller, 2008).
Bumiller contends that the alliance of feminists with the state has advanced neoliberalism globally, increasing levels of
state surveillance over individuals and communities. This study advocates building on Andrea Smiths (2005)
conceptualizations of sexual abuse. She recognizes the role of state institutions in perpetrating and nor- malizing
systematic sexual abuse, particularly when deployed against marginalized communities of color. Recognizing these forms
of sexual abuse and demanding institutional accountability may broaden the possibilities for resistance and social
transformation. The current institutional practices of RCCs do not incorporate such understandings. RCC institutional
practices shape and limit conceptualizations of sexual abuse in several ways. As the institutional outgrowth of the feminist
anti-rape movement, the rape crisis center has framed the prototypical form of sexual abuse as an attack, often by one
individual against another, at a discrete point in time.19 In part, this is rooted in organizational practices and funding
streams that connect RCCs to the criminal legal system. RCC definitions of sexual abuse are often linked to criminal codes.
Especially when RCCs must prove their effectiveness to funders in terms of advocacy within the legal system, RCCs have
Sexual abuse becomes a

distinct moment in time between an individual victim and perpetrator(s), rather than a set of
sexually abusive, exploitative, and humiliating relations of power that manifest over time in
multiple forms of coercion, surveillance, degradation, violation, assault, and harm. Most mainstream
RCCs lack the tools, practices, vision, and community base to address or even to conceptualize ongoing
oppressive power deployed by the state against incarcerated people . When forms of sexual abuse
are limited to acts classified in the criminal law, RCCs are less able to recognize non-criminal forms
of abuse, or that are part of the daily business of prison management, such as strip-searching, sexualized
surveillance, and pervasive control over prisoners bodies and sexuality.
an incentive to view sexual abuse as crimes and cases that can be prosecuted.
Surveillance in female prisons diminishes the feminine psyche

Zaitzow 4
A woman inmate's feeling of inadequacy is heightened by the constant surveillance under which
she is kept. The prisoner is confronted daily with the fact that she has been stripped of her member
ship in society at large, and then stands condemned as an outcast and outlaw such that she must be
kept closely guarded and watched day and night . She loses the privilege of being trusted and her
every act is viewed with suspicion by the guards. The experience of being incarceratedof having one's
self-esteem stripped away, of being deprived of regular contact with the outside worldplays havoc on
one's mental and emotional well-being. Because of prior emotional problems or those induced by the
streams of incarceration, especially the separation from their children or loved ones, female inmates are
more likely to engage in self aggression, including suicide and self-mutilation (Pollock, 1998). The
reality of women's prisons is that they create just as much frustration and pain as male prisons.
A2 you provide a strict definition of identity

Turn: the lack of fourth amendment rights in womens prisons
actually exacerbates identity norms
Miller 2k
Many judges treat biological sex, sexual orientation, and gender as immutable characteristics, in
spite of the fluidity of sexual and gender identity in prisons and jail s. [FN9] This is most obvious in
the falla- cious assumption by judges that a societal nudity taboo is broken, and thus privacy is
violated only when guards and inmates from two biological categories of sex are involved: male
and female. Indeed, this assumption is implicitly criticized in Canedy v. Boardman. [FN10] The
treatment of biological sex, sexual orientation and gender as static categories is further evident in
the fact that privacy issues are not generally triggered in prisoner *295 search cases in the absence of
opposite sex contact between guards and inmates, even when the search conducted is highly invasive.
[FN11] Nevertheless across the board, judges more readily acknowledge the impact of sexuality upon
searches when male guards conduct invasive searches upon female prisoners. [FN12]
A2 gender binary bad

Our aff isnt about gender binarieswe talk about womens prisons specifically so
that we can highlight the gendered stereotypes they create
Buchanan 5
Stereotyping of Women as Victims The main insight of the modesty critique is that, in prison, privacy
has been interpreted as a form of feminine modesty that stereotypes women as sexual victims and
men as sexual aggressors. While this allegation is accurate, as far as it goes, it neglects the reality that
custodial sexual abuse is a severe and widespread problem in U.S. women's prisons . The victims of
this abuse are women, and the perpetrators are men. An adequate response to the shortcomings of
privacy law must take this reality into account . As Miller observes, "[gendered] stereotypes are
almost all that remain of privacy in prison. When these stereotypes are exploded, there is little
left with which to protect incarcerated women from sexualized abuse of power . ,155 The harm of
privacy doctrine, as the modesty critics describe it, is primarily symbolic. Kapczynski, for example,
that privacy doctrine "create[s] a world of gender meanings that have real and
discriminatory effects,' 56 creating legal subjects who "are defined by an essentialized bodily modesty,
contends
one that is gendered female. They also imagine women as constitutively vulnerable to sexualized assault
(again, from lower-class men-but not from women, or men higher up on the professionalism scale) and as
These stereotypes, Kapczynski argues, "tend[ ] to propertize women

and deny 18 them sexual agency. The modesty critics urge the abandonment of "gendered
stereotypes" that women are vulnerable to sexual abuse by male guards, and that male guards
might be sexual aggressors. In spite of all the modesty critics' recognition that it is common for male
guards to sexually abuse women in prison,'64 in skeptical quotation marks, Miller dismisses the gender
"stereotype" that sexual "'vulnerabilities' [are] associated with gender socialization."' 6
unable to protect themselves."1"'
The issues present in womens prisons just reify gender

binarieswe have to solve for the lack of privacy in order to
stop gendered stereotypes (also probably is an answer against
queer args)
Buchanan 5
published in Marquette Law Review, 780-781 SR)
The "stereotype" of male sexual aggressiveness and female sexual vulnerability in prisons, Miller
argues, is harmful because judges are "writing rules around the fact that 'boys will be boys' rather
than facilitating a culture change within prisons that requires male guards to conduct themselves
professionally, and in the process, to respect the basic human dignity of women prisoners."'95 Of
course, it might plausibly be argued as well that the courts ought not subject women prisoners to the
ongoing risk of sexual assault while they await the advent of the "culture change" whereby male guards
will learn to respect their human dignity. In the Fourth Amendment privacy analysis,
the heterosexuality
of both prisoners and guards tends to be assumed. 96 Miller criticizes the "judicial assumption" that,
"[i]n cross-gender search doctrine, the power dynamic is always gendered and (hetero)sexed (that
is to say, female prisoners are presumed to be at greater risk when male guards visually monitor
them in states of undress than when male prisoners are identically monitored by female guards )."'"
Jurado goes further, challenging the "stereotypical" notions that women prisoners will experience
physical body searches by male guards as sexually invasive ,' 9" and that "male guards cannot
the courts'
gendered interpretations of assault risks in prison are heterosexist: the courts "assume that its [sic]
experience such touching as merely professional." ' The modesty critics contend that
is degrading to be view[ed] unclothed by a stranger of the opposite sex only."'' "[O]nly the most egregious
The assumption is that

prisoners are safe when the guards who view or touch them are of the same sex. Kapczynski asks
"why it is less private to be seen in a state of undress by one sex rather than the othe r,'2' pointing
out that "in no other realm of law does the 'privacy' of an act depend upon not just who sees which
body under what conditions, but also upon what sex the viewer is 20' 3 In describing the harm
same-gender search procedures have been found to be unconstitutional."20'
resulting from the gender stereotypes of privacy law, the modesty critics express their deepest concern
about the effect of stereotyping on men. Miller is quite frank in expressing the primacy of men's interests
in confronting sex discrimination.
Cards from Setting the Record Straight

Setting the Record Straight: Girls, Sexuality, and the Juvenile Correctional
System
Lisa Pasko, Social Justice Vol. 37, No. 1 (20102011)
Cards from Impunity

Gender/racial hierarchies are present in prisons
Buchanan 7
For more than fifty years, the Supreme Court has condemned legal hierarchies based on race and,
more recently and less affirmatively, gender.20 Still, the two powerful examples of the
modernization of race and gender status hierarchies that Siegel deploys continue to account for
womens imprisonment today. Contemporary anti-drug laws sustain the disparate criminal surveillance
and punishment of the black and Latino poor; at the same time, the lack of domestic violence law
enforcement perpetuates the longstanding legal tradition of failing to protect women against family and
the convergence of contemporary

race and gender status regimes results in the imprisonment of low-income women of color who
are survivors of sexual abuse. Part I.B describes the gendered and racialized sexual abuse to which
these women are subjected once inside. The Constitution forbids the deployment of law to maintain
and perpetuate unjust social hierarchies,22 including the paradigmatic hierarchies of race and
gender. To determine whether the legal enforcement of a given social hierarchy is fair, we have to
relationship violence.21 Part I.A of this Article demonstrates how
examine the justice of a system of social meanings that create[s] and perpetuate[s] that status
hierarchy.23 Profes- sor Siegel invites us to consider how the reasonable and principled interpretation of
constitutional doctrine justiaed status-enforcing state action in the nineteenth century and to ask
whether it continues to do so in our own time.24
The War on Drugs led to an increase in female incarceration,

especially for marginal crimes
Buchanan 7
Since the advent of the war on drugs, imprisonment of women has increased even faster than the
imprisonment of men.35 Between 1986 and 2004, the number of women in prison for all crimes
increased 400%, while the number of African American women in prison increased 800%.36 Be- tween
1986 and 1996, the number of women serving time in state prisons for drug crimes increased
888%, compared to 522% for men.37 The war on drugs has racially targeted African American women and
Latinas as it has their male counterparts; in New York State, 82% of Latinas and 65% of black women
sentenced to prison were convicted of drug crimes, compared to only 40% of white women.38 Like their
women prisoners are demonized, impoverished, disenfranchised, and largely

drawn from the underclass.39 Each of these factors inform the indifference and hostility toward both
male and female prisoners within society and in the courts. Women prisoners are especially
vulnerable, however, because the overwhelming majority of them have been abused .40 This prior
male counterparts,
abuse is central not only to their revictimization in prison,41 but also to their likelihood of being incarcerated in the arst place.42 As teenagers and adults, these women are more likely to adopt maladaptive
coping strategies, such as prostitution and drug use and alcohol, to deal with the pain of untreated or
ongoing abuse.43 Racial stereotypes of black women as promiscuous, criminal, and prone to violence
make it more difacult for law and society to recognize their victimization and more likely that they will be
the lives of poor, working-class, and racially marginalized women [are] overdetermined by punishment. 45 Poor women, who are at
heightened risk of relationship violence,46 are vulnerable to many types of coercion by their
partners. Sometimes this coercion takes the form of pressure to engage in criminal acts. Battered women
scrutinized as sexual deviants and potential criminals.44 Thus
often are not in a position to refuse their partners direction that they use or sell drugs:47 In some cases,
abusive partners coerce women into using illegal substances as part of the pattern of violence, in an effort
to render women more dependent on them and exert greater control in the relationship. . . . [W]omen
who are battered by their drug abus- ing partners report that their partners abuse them less when they
women are incarcerated for marginal involvement in

their male partners drug sales.49 Increasingly broad deanitions of criminal com- plicity have
themselves begin using drugs.48 Typically,
resulted in women going to jail merely for living with men who use or sell drugs or for engaging
in normal dating behavior, such as letting men use their telephones .50 Thus gender violence and the
war on drugs intersect, resulting in the arrest and imprisonment of low-income women of color who are
survivors of abuse.51
Female prisoners are emotionally manipulated by cross-gender

policies
Buchanan 7

Inside prison, it is as though the clock has been turned back to the nineteenth century. Women,
especially women of color, are exposed to institutionalized sexual abuse, while a network of
legal rules prevents them from seeking protection or redress in the courts. 56 Guards know that
they can sexually exploit women prisoners without fear of institutional sanction or civil
liability.57 Journalist Cristina Rathbone, who interviewed hundreds of women prisoners in Massachusetts between 2000
and 2002, observes that while many male guards perform their work appropriately,58 [a] few . . . abuse their
power appallingly and literally rape at will.59 Although the contemporary prison is characterized by myriad
institutional rules,60 guards enforce them selectively or disregard them altogether. Guards often extend
unofacial accommodations to favored inmates and use illegal forms of intimidation and force on
others.61 In such a setting, the sticks and carrots guards may use to coerce sex from prisoners are plau- sible and
effective. Accordingly, although rape by guards is commonplace in U.S. womens prisons,62 most
custodial sexual abuse takes forms other than outright rape .63 Prison ofacials report that [m]ost allegations
involved verbal harassment, improper visual surveillance, improper touching , and/or consensual sex.64
More speciacally, women prisoners are subjected to sexual comments, groping, and threats of rape;
male guards watching them on the toilet or in the shower; physical searches by male guards;65
demands for sex in exchange for goods or privileges or under threat of sanction; and guards taking
advantage of their position to have consensual sex with prisoners without overt material exchange.66
Women prisoners history of abuse heightens their risk of revictimization .67 Egalitarian relationships
have not been the norm in their lives prior to imprisonment. Because most prisoners have been sexually and physically
abused in past family and romantic relationships, severe power imbalances may feel normal and familiar to a prisoner.
Many prisoners have previously engaged in sex work in order to obtain money, drugs, or a roof over their heads.68 Thus,
quite predictably, some women prisoners seek out relationships with guards.69 A prisoner may be lonely, or she might be
attracted to the guard or his power; she might just want to have sex.70 For some women, it seems as if sex is the only
thing that keeps time click- ing by.71 In an environment where there are no other men, some prisoners may even fall in
the attraction in a relationship with a guard, though, is that it brings

visits, phone calls, cigarettes, protection, favorable work assignments, freedom to break prison rules, and other treatment that might mitigate the hardship
and boredom of imprisonment.73 Critically, when these unequal relationships end, guards often
become abusive.74 Guard retaliation may range from loss of privileges to disciplinary action, threats,
and physical and sexual violence.75 When prisons fail to enforce prohibitions on sex between
guards and prisoners, they create considerable pressure on women who do not cooperate with
guards sexual demands. [I]t is not only actual physical and verbal sexual abuse but also the
potential for this abuse that makes it so powerful a form of control over women inmates .76 Solove with guards.72 A large part of
considerable beneats in the short term:
called protection from other predatory guards, for example, would be a meaningless incentive if sexual contact between
guards and prisoners were effectively prohibited.
The imbalance between guards and prisoners allows

guards to coerce sex through material inducements that are strikingly petty.77 One Framingham
prisoner was given a piece of contraband bubblegum by a oirtatious guard, only to and out he expected sex in return.78
a prisoner who is
propositioned by a guard, knowing that the guard will be able to rape or beat her if she refuses,
might well judge it wise to comply to see what she can reap from her association with a guard .80
In prison, as under slavery, such coercive purchase of consent reinforces preexisting racial and gender
stereotypes that classify black women and other women of color as prostitutes and prostitutes as fair game, thus unShe realized, belatedly, that she might just have sold herself for a piece of gum.79 Finally,
dermining public and judicial sympathy for abuse victims who are por- trayed as sexually loose.
Prisoners have virtually no rights

Buchanan 7

By the mid-twentieth century, the status-based notion of civil death had been gradually supplanted
by a hands-off doctrine, in which courts refused to review the constitutionality of prison conditions on
the basis that proper prison administration required complete immunity against prisoners claims.85
Unlike civil death, this doctrine did not expressly bar prisoners from court. However, under the hands-off
doctrine, all
that a court in effect determines is that the complainant is a legally convicted
prisoner. It then follows that his grievance is beyond the ken of judicial authority or competence.86 Of
course, to say that the vindication of prisoners rights is to be left to the discretion of the prison
officials . . . is tantamount to denying that such rights exist.87 As a result, prisoners were left
with virtually no enforceable legal rights until the late twentieth century.88
The issues with the grievance system further abuse

Buchanan 7
Prisoners distrust the prison grievance procedure, and for good reason :149 by failure or design[,]
grievance procedures are widely ineffective.150 Prisoners are reluctant to report sexual abuse or
harassment to prison authorities because aling a grievance [i]s a risky step more likely to lead to
harassment and retaliation than redress for a wrong done .151 Prison staff often fail to keep prisoner
grievances conadential: thus when a prisoner attempts to ale a grievance, she often faces
retaliatory harassment, discipline, or even assault by guards .152 Outside prison, women who are
raped often and that the experience of reporting their assault, or testifying at trial, is so humiliating that it
women who use the grievance system to report guards

sexual abuse have been subjected to real second rapes in retaliation . For example, in California, the
is akin to a second rape.153 Inside prison,
Bureau of Prisons placed women prisoners in a mens prison, where guards sexually harassed the women,
opened their cells at night, and let male prisoners into the cells to rape them.154 After a group of women
prisoners reported this abuse, the white women were transferred, while the black women remained in the
mens prison for an additional ten days.155 One of these women was beaten, raped and sodomized by
some prison
grievance procedures may effectively require that a prisoner endure an actual second (or
additional) rape. Ac- cording to the prisoner-plaintiffs in Amador v. Department of Correctional
Services,157 the policy of the New York correctional department is to take no action on a prisoner
allegation of sexual abuse by a guard unless the prisoner provides either physical proof or DNA
evidence.158 Unless her abuser is foolish enough to describe his activities in writing, this corroboration
requirement forces an abused prisoner to return to her abuser to un- dergo more sexual abuse until
she either manages to obtain a semen sam- ple or becomes pregnant. 159 Otherwise, she is told,
three men who told her the attack was in retaliation for her complaint.156 Furthermore,
nothing can be done.160 This corroboration requirement stems from many prison authorities and courts
blanket reluctance to accept a prisoners word over a guards.161 One grievance adjudicator testiaed,
[W]e dont just move inmates . . . based on allegations. If we did that, wed have inmates
moving all over the systemthey would just make up allegations.162 Like complainants at
traditional rape law,163 prisoners face an overt presumption of incredi- bility when they
attempt to litigate their claims.164 [W]omen ask, who would believe a felon?165 The experience of
abuse by a person in authority, such as a prison guard, deters reporting by teaching the victim that
complaint is . . . not only useless but dangerous.166 In prison, women are routinely placed in solitary
conanement for making abuse allegations that prison authorities deem false,167 for having broken the
Guards often tell their

victims that if they report the abuse, no one will believe them.170 Prisoners , knowing they are
stereotyped as liars and trouble makers,171 have every reason to believe them. Even in the outside
world, where the law has abolished formal corroboration requirements and formal skepticism toward
rules by having sex with a guard,168 or ostensibly for their own protection.169
womens testimony, women are not likely to report their abuse to police, much less pursue civil or
criminal proceedings.172 The reasons for underreporting of sexual assault on the outside173 are
concerns about
retaliation are very real,175 they feel that the process is stacked against them, and they continue
to be at the mercy of their abusers, with no opportunity for escape .176 Moreover, prisoners (and
redoubled in prison.174 Women cannot trust that their reports will remain conadential,
guards) are part of a prison culture whose code of silence177 frowns upon disclosure as weakness and
be- trayal and regards silence as strength and integrity.178 In addition, guards and prison ofacials
notoriously disregard institutional rules and procedures, often refusing to provide prisoners with the
required forms within the grievance time limit or claiming not to have received the complaint or to have
lost it.179 In such an environment, it is no wonder that many assaults go unreported. Furthermore, there
is little incentive for a woman to report abuse while a relationship with a guard is ongoing.180 The woman
may be receiving some beneats from the relationship or be emotionally attached to the guard.181
Indeed, Rathbone reports that a prisoner who had sex with guards told her the sex gave her a sense of
power; the prisoner warned Rathbone that if [she] wrote about any of this, [she] would only ruin it for
In prison, where your every minute is controlled by the state, even a choice
such as trading sex for favors is a precious commodity that many prisoners would not want to see
taken away.183 Thus many reports of sexual abuse arise only after a prisoner/guard relationship has gone
sour, when the guard turns violent or begins to retaliate against his prisoner-ex.184 At this point, since her
relationship with the guard was likely to have been public knowledge within the prison,185 a
prisoner may reasonably antici- pate that authorities will disbelieve her subsequent report of
abuse. Addi- tionally, prisoners know that the prison grievance process will often ex- onerate the guard if
the prisoner is deemed to have consented or sold herself to him.186 In one Massachusetts prison,
guards extorted womens consent to engage in sexual activity in exchange for cigarettes . The Deevery- body.182
partment of Corrections investigation deemed this sex consensual in spite of state laws that criminalized
The Department transferred the women to maximum

security for breaking a prison rule against smoking. The guard, who had had sex with prisoners
while on duty, kept his job.187
prisoner/guard sex regardless of consent.
Cross-gender policies erase any remnants of privacy in prisons

Buchanan 7
The courts have held that prisoners have no constitutional expectation of privacy regarding
searches of their cells or property305even if such searches are malicious or retaliatory .306
Furthermore, not all circuits agree that prisoners even retain any vestigial privacy right against guards
The Courts of Appeal for the First, Second, Sixth, Ninth, and Eleventh
Circuits have held that prisoners have a right of privacy that limits the right of opposite-sex guards
to view or touch their genitals;307 dicta in the Court of Appeals for the Seventh Cir- cuit suggests
that they do not.308 The Supreme Court has left this issue open.309 According to the Court, if
viewing or touching their genitals.
prisoners have any Fourth Amendment rights in this context, these rights exist only to the degree that they
can be reconciled with the concept of incarceration and the needs and objectives of penal
institutions.310 Thus, whatever privacy rights prisoners retain, they must always yield to what must be
considered the paramount interest in institutional security.311 Nonetheless, the Court assured litigants in
Hudson v. Palmer that its deferential Fourth Amendment jurisprudence does not leave prisoners entirely
at the mercy of their keepers: [t]he Eighth Amendment always stands as protection against cruel and
unusual punishments.312 This protection, however, is illusory. The Eighth Amendment guarantee against
cruel and unusual punishment arguably protects prisoners against abuse while they are in government
custody.313 The courts constraints on the scope of this protection, however, reoect the familiar theme
that courts must be protected against prisoners who are inclined to waste judicial time with complaints
about trivial harm. Accordingly, appellate courts have grafted a somewhat su- perouous de minimis harm
criterion onto the Eighth Amendment requirement that a prisoner prove that the impugned treatment has
deprived her of the minimal civilized measure of lifes necessities.314 Courts have found that violent
sexual
harassment, touching, threats, and coerced consensual sex have often been held to fall short of
the de minimis threshold.316 In Adkins v. Rodriguez,317 the prisoner feared that she would be
assaulted because the guard repeatedly commented on her body, boasted about his sexual
prowess, entered her bedroom while she was sleeping, and told her she had nice breasts .318 The
Court of Appeals for the Tenth Circuit found that these allegations did not meet the de minimis harm
threshold.319 Thus, as with the physical injury requirement of the PLRA and the physical- proof/DNAsexual assault is sufaciently serious to satisfy the Eighth Amendment threshold.315 However,
the judicial response to a prisoner

seeking protection against sexual threats is, Come back once youve been raped. A prisoner not
evidence requirement of the New York State womens prisons,
only must establish a deprivation of lifes necessities that exceeds a rather high de minimis threshold, but
also must prove that the defendant possessed a sufaciently capable state of mind: deliberate
indifference to inmate health or safety.320 Like the intent requirement for equal protection claims,321
Any abuse or oppression of prisoners, no matter how cruel or

unusual, is constitutionally permitted unless the prisoner can prove that the prison ofacial
engaged in deliberate unnecessary and wanton inoiction of pain ,322 or kn[e]w[ ] of and
this standard is akin to malice.
disregard[ed] an excessive risk to inmate health or safety.323 A purely objective showing of deliberate
indifferencenegligence or gross negligenceis not enough.324 A prison administrator can therefore
defend against a prisoners Eighth Amendment sexual abuse claim by pleading negligence or
incompetence. Even if she knew of facts that would give rise to an inference that a prisoner was highly
likely to be sexually assaulted by a guard or another prisoner, the administrator is not liable if she can
persuade the court that she failed to draw the obvious inference.325 By the same token ,
if a prison
guard testiaes that he thought the sex was consensual, it seems likely that he will escape liability
for an Eighth Amendment violation.326 Moreover, an appellate court has held that even if a prison
administrator is subjectively aware of a general risk that male guards may sexually abuse women
prisoners and nonetheless allows it to happen, an Eighth Amendment violation is not established unless
the administrator knew that that particular guard might assault women.327 Thus prison administrators
are essen- tially free to make the counterfactual assumption that they need not take precautions against
custodial sexual abuse because it is impossible to know in advance which guards might commit it. This
Eighth Amendment standard also creates institutional incentives for poor or nonexistent recording and
investigation of prisoner alle-gations of sexual abuse and for deterring prisoners from reporting their abuse
at all.328 It is no surprise, then, that departments of corrections often fail to record complaints or even to
investigate them in an organized and centralized manner.329 Without such records, it is almost
impossible for a prisoner to demonstrate that a particular male guard poses a risk of sexual abuse.330
Thus, the retaliation and negligent record keeping that typify prison grievance processes serve to
immunize prisons from liability for custodial sexual assault.331 To return to Professor Siegels challenge,
it is clear that reasonable and principled interpretation of prison law is rationalizing practices that
perpetuate historic forms of stratiacation.332 Two modern race and gender status regimes lead to the
imprisonment of low-income women of color who are survivors of abuse. Once inside they are treated, in
The race and

gender hierarchies that land women in prison then shape the legal rules that institutionalize
custodial abuse by conferring immunity for it. These hierarchies form a system of social
meanings333 that has prevented prison law impunity from being recognized as an unjust status
hierarchy and which, consequently, has led to systematic sexual abuse of women prisoners to
which the law is not obligated to respond. The analysis presented in this Article does not lead directly
law and in practice, as though the clock had been turned back to the nineteenth century.
to neat propositions for legal reform. There is no doctrinal magic bullet that will allow or force the courts to
respond to this problem. Certainly, the PLRA should be abolished. Common law and statutory barriers to
supervisory and institutional liability should be removed, at least with respect to prisoners claims. Courts
should accord the same robust protections to the constitutional rights of prisoners as to other litigants
whose rights are infringed by government action. But many of the institutional policies and practices that
construct impunity within prisons are already formally unlaw-ful under contemporary legal rules; the
impunity I discuss reoects a lack of political, institutional, and judicial will to do anything about it. In any
case, opening the courts to prisoners claims will not in itself resolve the problem of custodial sexual
abuse. Access to the courts has not eliminated sexual abuse of women or children outside prison and, on
its own, is unlikely to do so in prison. Such access would, however, expose prison conditions to outside
scrutiny and reafarm that the government is responsible for what its employees do to prisoners in its
custody. This, in turn, might create incentives for institutional reform. By reframing impunity as a
expose the discriminatory values and biased legal

frameworks that shape prisons boys-will-be-boys approach to custodial sex. I seek to alert
racialized and gendered status regime, I seek to
institutions, advocates, legislators, and judges to the dissonance between our constitutional ideals and the
realities of prison life and law. I hope to renew the legal, political, and especially the institutional will to
take womens safety seriously in prison. This Article situates impunity for sexual abuse not merely as a
set of rules unique to prisoners, but as part of a historical and contemporary pattern of legal enforcement
of race and gender hierarchy, connecting the struggle for prison law reform to broader struggles against
race and gender hierarchy in the outside world. Perhaps such connections may help galvanize the
political momentum that courts seem to require before they will consider the doctrinal changes that are
so sorely needed to challenge the legal enforcement of race and gender hierarchy,334 both inside and
I seek to open the kind of discussion that took place about sexual abuse in the
outside world during the 1970s, 1980s, and 1990s.335 These debates did not lead to the eradication
outside prison.
of sexual abuse. They did, however, yield substantial improvements in both legal doctrine and social
attitudes toward sexual assault in the outside world.
prison law.
A similar transformation is long overdue in
Impacts
Psychological harms
Cross-gender searches cause psychological harm to female
prisoners/inherency
Weiser 2

[U]se a flat hand and pushing motion across the [inmates] crotch area . . . . [P]ush inward and
upward when searching the crotch area and upper thighs of the inmate. All seams in the leg and the
crotch area are to be squeezed and kneaded. Using the back of the hand, the guard also is to search
the breast area in a sweeping motion, so that the breasts will be flattened.1 These were the
training instructions given to male prison guards at the Washington Corrections Center for Women
(WCCW) when, in February of 1989, the superintendent of the womens correctional facility instituted a
pat-frisk policy that permitted male guards to search the clothed bodies of female inmates.2 The
change from a same-gender to cross-gender random search policy was done in order to create an
unpredictable element within the institution so that inmates would always be on guard about
transporting contraband.3 Yet, no regard was paid to the psychological effect this procedure would
have on the female inmates eighty-five percent of whom had been victims of physical and/or sexual
abuse4 who would be subjected to this highly intrusive form of unwanted sexualized touching.5
Permitting male prison guards to touch the breasts and crotches of female prisoners in the context
of routine pat-frisks offends moral and ethical standards of human dignity.6 In addition, the
psychological consequences can be profound. Given the extreme power imbalance in prison, these
procedures have a clear psychological parallel to childhood sexual abuse or adult rape or sexual
assault, and can bring to mind devastating experiences of past violation.7 Nevertheless, courts have yet
to declare clothed body searches of females inmates by male corrections officers unconstitutional
under the Fourth Amendment.8 Whether and to what extent the Constitution protects prisoners bodily
privacy and integrity is unclear because the Supreme Court has never ruled on this issue.9 While most
federal appellate courts have recognized the retention of such a right, they differ in the extent to which
they have required prisoners privacy rights to yield to institutional concerns.10
Cards from Jyleesas article #1

The idea of cross-gender searches stemmed from attempting
to prevent contraband flow
Stollman 94
(David J. Stollman, 1994 Jordan v. Gardner: Female Prisoners' Rights to be
Free from Random, Cross-Gender Clothed Body Searches SR)
In January 1989, Eldon Vail became the new WCCW Superin- tendent. I 7 Because Vail believed that the
fixed checkpoints were ineffective in controlling the movement of contraband in the prison, he
instituted a random-search policy. 08 On February 26, 1989, Vail instituted another new policy that
permitted male guards to conduct random searches of clothed inmates ." The policy took effect on
July 5, 1989.110 The circuitjudges disputed the reasons why Vail implemented this second policy. The
majority opinion emphasized that the policy was a reaction to threatened legal action by the guards'
union." I ' The union threatened to bring a sex discrimination suit to eliminate the inequality
betweenmaleandfemaleguards.112 Thedissentemphasizedthesecurity objectives Superintendent Vail
Vail contended that

random searches performed only by female guards would be less effective than random crossgender searches, because, if only female guards could perform the searches, prisoners would
exploit the fact that male guards could not search them.114 Vail asserted that if an inmate knew that
hoped to achieve through the cross-gen- dersearches.113 Both the dissent and
there were only male guards in one area of the prison, then that inmate could freely move contraband
Vail testified that he implemented cross-gender random searches in order

to create an unpredictable element within the institution "so that inmates always ha[d] to be on
guard a bit about packing contraband."'"16
through that area." Thus,
Cards from Jyleesas article #2

Cross-gender searches bad
2004), 30(4) SR)
Beginning in the 1990s,reports of sexually degrading treatment of women prisoners by their male
guards, including sexual assaults, began to surface. Women described sexualized comments about
their bodies, molestation that was officially referred to as a security "patdown," and forced sex. Fears of
retaliation, some of which could prolong confinement, made any existing remedies ineffective.
Accordingly, this harassment and assault threatened to undermine the prior strides toward equal
Women dropped out of the prison-based

rehabilitation programs for fear that leaving their cells would expose them to more abuse. For
many women, prison became a particularly dangerous environment because of, among other
things, their unique perceptions based on prior experiences of abuse. Certainly, female survivors of
opportunity and parity for education and training.
rape and sexual molestation, overrepresented among female prisoners, are more keenly aware of and
Being confined in an
environment that has few physical and psychological escapes for women seeking to avoid either the
possibility of new assaults or triggering memories of past assaults forces women to find new strategies
to cope. Some of these strategies include destructive behaviors, which include not only withdrawal
from training and education programs, but also self-mutilation and suicide attempts . Consequently,
the sexualized environment and victimization (or more appropriately revictimization) resulted in
women being less prepared for release. In 1993, a group of women prisoners in Michigan challenged
sensitive to the possible or implied threat of sexual assault and abuse.
these degrading conditions, asserting their rights to equal, nondiscriminatory treatment while asserting
the reality of gender differences. The Nunn v. MDOC case sought to remove male officers from
assignments to female housing units and was met with a challenge from male officers who argued that
prohibiting them from being placed in the housing units in women's prisons amounted to gender
discrimination in violation of their equal protection rights afforded under Title VII. 4The
paradox of equal
opportunity meant that the gender parity that helped to secure women equal access to rehabilitation
and education programs also supported a gender blindness that allowed male guards to contend
their rights to nondiscrimination had been violated. In other words, gender blindness (as well as a
limited interpretation and implementation strategy by corrections ) contributed to the creation of
conditions of cruel and unusual punishment for women, obscuring the reality that female and
male prisoners are simultaneously the same and different.
Gender neutrality increases trauma and abuse (if this af wants

to be read as a K af this should be what the advocacy centers
aroundeliminating gender neutrality)
2004), 30(4) SR)
In reaching a decision, which subordinated the rights of women prisoners to equal treatment and
opportunity for rehabilitation, the trial court opted for gender blindness in the interest of furthering
one of the primary objectives of gender neutrality in the service of equal opportunity, that is, to
counter gender stereotyping. For the court, the particular vulnerability of the female inmates was
irrelevant. The court dismissed the significant trauma histories of these women and the impact of
male supervision on their privacy. Indeed, the court responded to expert testimony
that subjecting women with sexual abuse histories by males in
authority (including women assaulted during incarceration) to the supervision, touching,
and viewing by male guards would further traumatize these women by

suggesting that male super vision would allow women to get over their
past trauma and normalize their relationships with men . Moreover,

the court recognized the women's right to privacy-it advised an approach that would prohibit male officers
from performing certain tasks without excluding them from women's facilities. The court suggested that
the gender-specific tasks would apply to such actions as strip searches, but disregarded the impact of
objectification and sexualization of women prisoners by male officers. Rather, the court posited that the
number of proven assaults was limited to rogue officers and could be avoided by proper screening of males
who were demonstrably capable of either sexual assault or sexual harassment. The court also attributed
full agency to women prisoners in characterizing the numerous allegations of sexual contact between
women prisoners and male guards as representing consensual sex or denigrated their veracity by finding
large numbers of sexual assaults to be unsubstantiated allegations. The implications of the judges' ruling
gender neutrality translates into power neutrality and gender blindness. Certainly the
judges' assumption that sex between women prisoners and male guards is consensual not only
negates power differentials between women and men in the free world, but it also ignores the
absolute power staff have in closed institutional environments, which "involve the total control of
bodies of residents, including their sexuality, as people eat, sleep, work and play under a unified
organizational structure."9This power, combined with the officers' occupational roles and the women's
lack of autonomy, limits the possibility of women to consent in any real fashion. It may be that
are that
women make choices with regard to which punishment would be worse: extended time in prison, loss of
contact with their children and solitary confinement, or remaining silent about sexual assaults by their
The combination of social

authority of male gender and the factual reality of the authority of custodial officers over women
prisoners combines to create a super authority figure to which women prisoners lack the agency
to resist the sexually predatory balance of guards. Furthermore, the courts refused to acknowledge the
women's right to privacy or the sexualized nature of the male gaze . Differences in socialization lead
captor; this cannot be construed to be consent to a sexual relationship.
to differences in the experience of women and men to sexuality and the different way women experience
unwanted viewing and touch ing by male guards compared with the way men experience comparable acts
The socially constructed concept of privacy for women translates a viewing by

male strangers while in a state of undress as a sexualized gaze, which can carry with it a
perception of dangerous assault. "Men do not simply look; their gaze carries with it the power of
action and of possession which is lacking in the female gaze ."10 Most importantly, the ruling
negates the women's prior experience of trauma and how the current environment may be detrimental
to wom en. The added prevalence, prior to incarceration, of sexual and physical abuse suggests, not
by women guards.
surprisingly, that the greater the exposure to addi tional trauma, the more likely the incidence of mental
and physical health problems, including the re-experiencing symptoms associated with trauma survivors.
trauma does not merely trigger previous exposure, but rather psychologically transports
the individual back to the same emotional vulnerability present during the initial event. The indi
Each new
vidual response to trauma is related to the victim's perception of how life threatening the event is and
therefore a very personal experience that can only be judged subjectively and within a psychosocial
context. Moreover, because the socialization of women and men has been divergently differ ent, the
manifestation of stress is generally expressed according to gender role and cultural prescriptions.' The law
provides a limited framework to address the differences be tween women and men within the context of
Gender neutrality is not appro priate in

circumstances in which there are real differences in gender socialization and social conditions
and when a gender-specific policy rec ognizes those differences . It was Michel Foucault who reminds
providing equal rights without discrimination based on gender.
us that "everything is dangerous" and a poststructuralist analysis that decon structs differences between
and within gender offers an interpretive tool and historical critique rather than a theoretical framework for
wholesale adoption. 'We may always be situated in structures based on domination and subordination and
Eschew the rigidity of gender blindness to recognize the

value of privacy and safety for the concerned class. Privacy for women is impaired by male
strangers viewing them, without permission, in varying states of undress . For women in prison the
some will be organized around gender.
unwanted viewing is a deeper violation because the viewer has near complete control over the woman's
physical move ments, privileges, benefits, and in many cases the opportunity for free dom from
incarceration.
Topicality
Af
Searches are classified as surveillance
Cornell University no date
(Cornell University Law School, Legal Information Institute,
https://www.law.cornell.edu/wex/search_0)
Search: An inspection or surveillance that is conducted by certain agents of a state (ie. a police
officer) in order to obtain evidence that will be used in prosecuting a crime.
Searches are a subsection of surveillancethe Supreme Court

ruled on this
Yale University 3
(The Free Library, 2003, Yale University, School of Law "Leaving FISA behind:
the need to return to warrantless foreign intelligence surveillance..".
http://www.thefreelibrary.com/Leaving+FISA+behind
%3A+the+need+to+return+to+warrantless+foreign...-a0110405912 SR)
The Court did an about-face from Olmstead by holding that even noninvasive, noncompulsory
government surveillance could be presumed an unreasonable search. The Katz Court used privacy as
its hallmark for constitutional reasonableness, holding that "the Fourth Amendment protects people, not
places," and that "what
[an individual] seeks to preserve as private, even in an area accessible to

the public, may be constitutionally protected." (20) In the years between Olmstead and Katz, the
Court had strengthened its view of the warrant as a necessary constitutional protection for
reasonable searches.
Searches are surveillancetheres no fundamental distinction

Kurgan 13
(Laura Kurgan, 2013, author, Close Up at a Distance: Mapping, Technology,
and Politics p 99 SR)
Corona's images, it is said, were designed for searching, not for surveillance. Today the distinction
between search and surveillance has become somewhat less sharp . To inquire about the existence
of something and to investigate and watch over it can now happen simultaneously and from
enormous distances in striking detail. Increasing the resolution Implies erasing the distinction
between existence and iden-tity "high resolution" means that looking for things and looking
after them, search-ing and "bona fide surveillance," can Increasingly take place in the same
gesture.
Prisons and jails are functionally based around the idea of

constant surveillance
Purpura 97
(Philip P. Purpura, author, Criminal Justice: An Introduction published by
Elsevier, 1997, SR)
American jails fall into one of three management designs: intermittent surveillance (IS); remote
surveillance (RS); and direct supervision (DS). Each is illustrated in the accompanying figures. One of
the most successful designs, the direct supervision jail (see Figure 12-5), is based on research done in
hospitals and nursing homes, where it was found that a more open, communal living arrangement
increased positive interaction, and enabled limited staff to deliver more efficient care.
Police branch is surveillance

Olsen 8
(Bradley Olsen, June 2008, writer for the Baltimore Sun, Domestic spying
quietly goes on http://articles.baltimoresun.com/2008-0707/news/0807070001_1_surveillance-travel-patterns-central-intelligenceagency SR)
"There's virtually no branch of the U.S. government that isn't in some way involved in monitoring
or surveillance," said Matthew Aid, an intelligence historian and fellow at the National Security Archives
at The George Washington University. "We're operating in a brave new world."
Prisons are places of law enforcementunder USFG jurisdiction

United States Court of Appeals 95
(68 F.3d 475 Velda S. REED, Plaintiff-Appellant, v. Janet S. RENO, Attorney

General of the United States; Charles Stewart, Administrator, Federal
Medical Center--Lexington, Federal Bureau of Prisons, Defendants-Appellees.
No. 94-5727. United States Court of Appeals, Sixth Circuit. Oct. 11, 1995.
http://openjurist.org/68/f3d/475/reed-v-s-reno SR)
We are well-aware that the government's delinquency in producing these documents caused the plaintiff to
expend time and resources in presenting this case in a manner different from the way it would have been
presented had the documents been available. At the risk of providing unnecessary guidance, we offer a
few suggestions for the proceedings on remand. First, the district court should entertain any appropriate
motions for costs and attorney's fees. Furthermore, once the proceedings below illuminate
the DOJ's
determination that all in-prison jobs are law enforcement positions --if indeed the DOJ made that
determination--and if the parties again make cross-motions for summary judgment, the district court
should identify the nature of the agency action at issue and the quantum of deference due to the agency,
Friedrich v. Secretary of Health & Human Servs., 894 F.2d 829, 834 (6th Cir.), cert. denied, 498 U.S. 817
(1990). Finally, in assessing the defenses argued by the government's counsel, the district court might
keep in mind the "well-established rule that an agency's action may not be upheld on grounds other than
those relied on by the agency." National R.R. Passenger Corp. v. Boston & Maine Corp., 112 S.Ct. 1394,
1403 (1992) (citing SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)), a rule which precludes consideration of
counsel's "post hoc rationalizations for agency action," see Motor Vehicle Mfrs. Ass'n of the United States v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).
Law enforcement is domestic surveillanceDEA proves

Greenberg 15
(Andy Greenberg, 04.10.15, writer for WIRED, Want to See Domestic
Spyings Future? Follow the Drug War, http://www.wired.com/2015/04/wantsee-domestic-spyings-future-follow-drug-war/ SR)
To be clear, the DEA and local drug-fighting cops likely arent pushing the technological limits of
surveillance as much as the NSA, intercepting router shipments to plant bugs, or secretly rewriting the
hard drive firmware of their spying targets. But drug-related surveillance, which is far more domestic
in its focus, does push the legal limits of that spying. Again and again, says Electronic Frontier
Foundation defense attorney Hanni Fakhoury, its drug investigations that cross into the realm of
unconstitutional search and seizure, and its these cases that result in the judicial system setting new
legal precedents for Americans privacy protectionsboth for the better and for the worse.
There are multiple sections of surveillanceordinary crimes,

wiretaps, and FISA procedures
Swire 4
(Peter P. Swire, The System of Foreign Intelligence Surveillance Law, August
2004, The George Washington Law Review, 72(6) SR)
In FISA, Congress accepted in large measure the invitation in Keith to create a new judicial mechanism for
overseeing national security surveillance.97 The new statute used the terms "foreign power" and "agent
of a foreign power" employed by the Supreme Court in Keith, where the Court specifically said that its
Instead of
creating a special regime for domestic security, however, Congress decided to split surveillance
into only two parts-the procedures of Title III, which would apply to ordinary crimes and
holding applied to domestic security wiretaps rather than surveillance of "foreign powers. '98
domestic security wiretaps, and the special procedures of FISA, which would apply only to
"agents of a foreign power." 99
Neg
There are fundamental diferences between searches and
surveillance
Yale University 3
In addition to these constitutional concerns, some have argued that the surveillance mechanism is poorly
yet another fundamental

difference between searches and surveillance : Search warrants are executed in order to find
specific evidence of criminal activity. Surveillance casts a broad net that often yields information
that is much more mundane--information that is often voluntarily, if unknowingly, provided by
targets. (148) This is the very same distinction that the Supreme Court made in Olmstead v. United States,
when it distinguished wiretapping from forcible search and seizure. (149) Thus it is possible that the
suited to the warrant framework. Professor Akhil Amar has pointed out
Court got it right the first time it considered the issue of electronic surveillance, in Olmstead. The unique
nature of surveillance, as a nonadversarial element of an investigation, may make it inappropriate for the
judicial setting in the first place.
Searches are diferent than surveillance

Yale University 3
At the outset of the discussion of how to reconceptualize foreign intelligence surveillance, it is important
to note the fundamental differences between surveillance and garden-variety search and seizure .
While search warrants are ordinarily procured after a crime has been committed, surveillance is
intended to intercept and prevent crimes while they are in the planning (or even preplanning) stages.
Search warrants are initially ex parte, but ultimately discoverable once executed; not so for surveillance
orders, which by their very nature must be kept concealed until surveillance has ceased. (143) The special
nature of surveillance is relevant to the debate over the propriety of the USA PATRIOT Act amendments in
general: By breaking down the wall between intelligence and criminal investigations, Congress conflated
But the dichotomy
between surveillance and searches has greater implications . As Professor Telford Taylor has argued,
two very different processes that arguably should retain their own procedures.
perhaps surveillance applications should never be considered in any sort of Article III courts, as they are
nonadversary steps in the investigative process, inappropriate for judicial disposition. According to this
argument, since no case or controversy exists at this stage, courts have no business passing on the
legitimacy of surveillance operations until a genuine adversarial dispute is at hand. Taylor suggests that
until that point, "[t]he authorization of the judge ... is not an effective screen, and may serve as windowdressing, to relieve the law enforcement official of responsibility for a decision which should be his to
make." (144) Under this view, both FISA and Title III warrant procedures are illegitimate assertions of the
judicial power in a permanently nonadversarial context. They bury accountability for improper
investigations in judicial mystique, which is unconstitutionally applied in the surveillance context when no
case or controversy has yet arisen. This is especially true in the FISA setting, where the entire process
takes place in secret, and the probable cause standard is greatly attenuated.
Law enforcement AND intelligence are involved in

domestic surveillance
Hadley 13
(David Hadley, America's "Big Brother": A Century of U.S. Domestic
Surveillance, http://origins.osu.edu/article/americas-big-brother-century-usdomestic-surveillance/page/0/1, 7(3), SR)
Located on the sixth floor of the Robert F. Kennedy Justice Department building until 2009, the courts goal
was to clarify the divisions between foreign and domestic intelligence. It was meant to ensure that
various
agencies of the intelligence and law enforcement communities could cooperate in monitoring
potential threats to the United States while protecting civil liberties of Americans. The FISA Court is
only concerned with foreign intelligence gathering where it might intersect with domestic
activities. The court was to demand minimization procedures from the general counsel seeking a
surveillance warrant, meaning procedures to reduce the possible interception of the communications of
U.S. citizens. Once someone leaves the United States, they lose FISA protections. FISA represents a
compromise between Congress and the intelligence community; although, with the secretive procedures
of the FISA Court, it is not one that has much balance. Since 1978, according to the Electronic Privacy
Information Center, FISA has heard over 17,000 requests and denied a total of 11. Such lopsided numbers,
however, do not include times when the Court has demanded revision of a request before granting a
the FISA Court, and the issue of

domestic surveillance more generally, did not command much attention. That changed after the
attacks of September 11, 2001. Just as the threat of anarchists and communists had inspired earlier
warrant. From September 11 to Snowden In the 1980s and 1990s,
regimes of domestic surveillance, so too did the terrorist attacks on the Twin Towers and the Pentagon.
Passed shortly after the attacks, the USA PATRIOT Act granted wide legal authority to the intelligence
community. Among those new powers, included in Article 215, is the right to obtain business records, while
imposing a gag order on the party holding those records. This law remains the bedrock behind the current
NSA phone metadata collection campaign. In addition to these lawful actions, the NSA also began a
campaign of warrantless wiretaps, eventually revealed by the New York Times in 2005. Attorney General
John Ashcroft was skeptical about this program. When Ashcroft was hospitalized, White House Counsel
Alberto Gonzales went to his bedside and attempted to get a weakened Ashcroft to sign off on the
program. Ashcroft refused, though the warrantless wiretapping campaign did not end until 2007. Gonzales
became attorney general himself during George W. Bushs second term. What grew to replace the
warrantless wiretaps after 2007 was the series of programs revealed this summer by Edward Snowden.
The NSA began to run some of its operations through the FISA Court. Declassifications after Snowdens
revelations show that in 2011, the FISA Court found the NSA had acted illegally in intercepting U.S. digital
traffic through the Prism program in addition to foreign activity. Some 56,000 domestic communications
were collected each year in the three years Prism operated before 2011. In its collection of metadata,
however, declassified records have shown that not only has the Court generally supported the NSA, no
telecommunications company has challenged the order to hand over their records. As telephone service
has transformed and the internet has grown, the NSA has apparently proven adept at using those
telecommunications as an unprecedented intelligence gathering tool. Additionally, more recent
revelations indicate that at times the NSA circumvented the FISA Court entirely. In addition to its court
orders for telecommunications records, for example, the NSA, in conjunction with British intelligence, also
broke into the main communication links between Yahoo and Google data centers. Since many of these
centers are overseas, the NSA could potentially access the data of American citizens through foreign
surveillance, a consequence of the international nature of telecommunications infrastructure. Aside from
questions of their legality, however, the ultimate utility of these programs is unclear. The NSA claims its
programs have disrupted more than 50 terror attacks. However, the FBI reportedly calls the leads
generated by the NSA ghost-chasing. The FBIs current director, Robert Mueller, apparently complained
to NSA director Keith Alexander that the NSAs leads were a time suck for his agency. This observation
would suggest that, unlike previous domestic intelligence efforts, the FBI is not cooperating with the NSA in
an extralegal domestic campaign. The fact that this information is known through the FISA Court, and that
the FISA Court rejected as illegal some of the NSAs activities, is proof for some that the FISA system
works. Benjamin Wittes, recently writing in The New Republic, argues that, as all U.S. courts are not
investigative agencies, the fact that it ruled on NSA activities at all demonstrates that the NSA has been
keeping it informed. The Future of Domestic Surveillance That the NSA was found to have violated the
law at times is not surprising in the context of previous domestic surveillance programs. Under pressure
intelligence and
law enforcement agencies have pushed to the very limits of the law and beyond in pursuit of their
goals.
from existential threats both real and perceived, and under the control of the executive,
Prisons
PIC
PIC Text: The USFG should (do the plan to all prisons not just
womens prisons)
The af ignores prisons that do not contain female prisoners
they turn a blind eye to the issues in male prisons
Buchanan 5 (their author)
Meanwhile, Miller, who exhorts the courts to seriously examine the "sexualization of power in men's
prisons, 21' expresses more concern for the effect of cross-gender surveillance on male prisoners
than on women prisoners. She observes that male prisoners' society is divided into a hierarchy of
masculinity: "real men" at the top, who sexually exploit the "queens" (gay men) below them, and
sexually assault the "punks" (straight men who are deemed feminine or weak) at the bottom .2 She
contends that surveillance by a woman tends to feminize the man in the prison hierarchy of
masculinity: In an environment where manhood is defined as the ability to resist "feminization"-being
forced to submit to sexual penetration (like a woman)-within a larger sexist society that reinforces male
it is easy to understand how threatening it is for male prisoners to be

involuntarily subjected to the gaze-the visual surveillance-of female guards. Female surveillance is
unmanly in a culture where manliness is highly prized and is therefore degrading.' She criticizes the
courts for "fail[ing] to take into account the sexualization of power in men's prisons when
considering the propriety of female guards visually monitoring naked male prisoners. ' One can
only infer that her concern is that courts maintain the sexual and psychic privileges of "real men" in
the prison hierarchy by preventing their demotion to the status of "punks." This vision of privacy
offers no protection to low-status "queens" or "punks" who have been gender- demoted and who
are already at high risk of sexual abuse.
dominance over women,
Race K link
Giving privacy rights back to female prisoners doesnt solve for
the ingrained racism present in prisons
Buchanan 5 (their author)
The treatment of black women in prison has always reflected this degrading stereotype . Davis
observes that prisons have traditionally served to enforce racially stereotyped gender roles for
women.2 5 7 Women's prisons sought to "encourage and ingrain 'appropriate' gender roles, such as
vocational training in cooking, sewing, and cleaning,, 258 and women's "reformatory cottages were
usually designed with kitchens, living rooms, and even some nurseries for prisoners with infants., 259
"[Feminized
modes of punishment-the cottage system, domestic training, etc.-were designed,

to reform white women, relegating women of color, in large part, to realms of public
punishment that made no pretense of offering them femininity. ' 2 Black women were not
offered the more humane conditions offered for the refeminization of white women. If they were
ideologically,
admitted to women's reformatories, they were often segregated from white 21 women. ' Furthermore,
they were often incarcerated in men's prisons, where they "endured the cruelties of the convict lease
system unmitigated by the feminization of punishment; neither their sentences, nor the labor they were
compelled to do, were lessened by virtue of 262 their gender., Today,
neither prison nor society has
undergone any epiphany by which black prisoners have been transformed into stereotypically chaste,
modest ladies who require vigorous protection. For example, in Lucas v. White2,63 male guards were
alleged to have "committed, orchestrated and facilitated" sexual abuse of women prisoners at a
California detention facility.2' Although both white and African American women prisoners were
abused, the white women were transferred immediately after they reported their abuse to officials,
but the African American women were not moved for another three days.

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Prisons Af

In prison, surveillance is power and power is sexualized

Advantage One is Sexual Abuse

(Michelle VanNatta, Professor of Gender Studies, Sociology & Criminology,

In particular the employment of cross-gender body searches

some areas of the human

judges, refused to address the inmates

The trauma faced by prisoners due to the cross-gender policies

Women she counseled there had

I know clients who at eight and nine years

amid the abusiveness of per- sonnel at the jail and noted

The threat of punishment in exchange for reporting abuse

Cross-gender strip searches lead to both physical and mental

through overt or veiled threats; using inducements such as

The most obvious form of sexual abuse

Guards have total control over a

I view it very much like

Advantage Two is Dehumanization

The idea of pastel fascism is pushed upon female prisoners

(Barbara Zaitzow, professor of Criminology at Appalachian State University,

She soon loses all remaining dignity when

that the rules women must abide by are

Specifically, cross-gender pat-frisks in womens prisons allow

the courts must

Two diferent impacts:

the gross inequality in their education and

considerations constituted a doctrine of "parity of opportunity," thereby

corrections administrators. Instead they chose to

Second, the invasive nature of strip-searches traumatizes

some prisoners are so

harassment is pretty regular and pretty constant and

Cross-gender searches leave prisoners with no option but to be

after an- alyzing prison administrators' assertions that prison security

the ultimate determi- nation was "whether the prison's

an unknown number of female in- mates would suffer great harm

the cross-gender, clothed- body search policy failed the

Courts should explicitly recognize inmates' constitutional

inmates can assert their right to be free from cross-gender

Courts must rule cross-gender body searches unconstitutional. Inmates do not

that inmates do possess a limited right to privacy while

expectation of privacy in their bodily integrity ' Therefore, a

Assuming that iimates do possess a reasonable expectation of privacy in their

Courts key to defend inmates constitutional rights

Women and the Laws and Knowledge Management Counsel at Ogletree

Eighth Amendment right to remain free from sexual assault

whether this Fourteenth Amendment guarantee of bodily

Women and the Laws and Knowledge Management Counsel at Ogletree

prisoners can use this theory to challenge cross-gender

by its very nature a binary right, one that a prisoner either

proving the causal link between cross-gender supervision

Congress can overturn past SCOTUS decisions

(Leon Friedman, December 2001, Leon Friedman is a professor of

in the last 20 years, a

the Civil Rights

a broad, new Civil Rights Act that

of Law at Buffalo Law School, 7-16-2001 Cross-Gender Supervision in Prison

Amendment challenges to cross-gender searches are

confusion within the rules regulating crossgender searches

of Law at Buffalo Law School, 7-16-2001 Cross-Gender Supervision in Prison

from the impact of gendered dualisms21 (or opposing pairs of

men and women in society is magnified within the rigidly

Courts are necessary to recognize privacy rights of prisoners

of Law at Buffalo Law School, 7-16-2001 Cross-Gender Supervision in Prison

cross-gender searches presents difficulties for both men and