Thursday, June 28, 2012

Privacy Rights in Prison
New Regulations Increase Rights to Prevent Prison Rape

By Joel Sherman MD

A California Prison
A recent directive of the Dept. of Justice (DOJ) to prevent rape in prisons has gotten very little general publicity, but it represents a major change in prison standards, one which increases privacy rights.  These rights in prison are not directly related to privacy in general or medical privacy, but still and all there are ramifications that echo throughout society.  The courts have long held that prisoners have restricted privacy rights and that security in the prisons is paramount.  But over the last 40+ years, equal employment rights have often also been held to trump prisoners’ privacy rights.  Thus women guards are common in men’s prisons and men have always been present in women’s prisons.   Over the years there have been innumerable lawsuits over this with conflicting results.   Rules vary from state to state and prison to prison with separate rules governing federal prisons.   As a general rule, women prisoners are afforded more privacy from male guards than vice versa.   For both cross gender strip searches are generally only permitted in emergencies, though the interpretation of what’s an emergency can be very liberal.   But cross gender viewing in showers, bathrooms and cells is very common with once again women afforded more protection.  However the release on May 16, 2012 of new federal rules from the DOJ to prevent rape in prisons may change all of this.  These regulations immediately take effect in federal prisons, but can only be enforced in state and local lockups through loss of federal grants.  So these changes will take many years to percolate down through the nation.

The federal government has documented that there is an epidemic of rape in prisons.  One in ten prisoners have been raped, usually the weak, disabled, gay, lesbian or transgendered.   Half of prison rapes are prisoner on prisoner, but nearly half involve guards and prisoners.  Surprisingly more of the guard on prisoner rapes involve women guards and male prisoners.   For juveniles an astounding 95% of sexual encounters were with female guards;  40% of encounters were considered forced by the juveniles.  For adults nearly 75% of guard on prisoner sexual encounters were rated consensual by the prisoners, though legally they are all classified as assaults.  Consensual or not, all guard prisoner encounters are destructive to jail discipline.  The lengthy new federal regulations are primarily concerned with what administrative changes can be made to prevent rape with special protections needed for juveniles and the LGBT population.  Most pertinent to this blog are the recommendations they made that directly affect the privacy rights afforded prisoners:   

Cross-Gender Searches and Viewing. In a change from the proposed standards, the final standards include a phased-in ban on cross-gender pat-down searches of female inmates in adult prisons, jails, and community confinement facilities absent exigent circumstances—which is currently the policy in most State prison systems. However, female inmates’ access to programming and out-of-cell opportunities must not be restricted to comply with this provision.
For juvenile facilities, however, the final standards, like the proposed standards, prohibit cross-gender pat-down searches of both female and male residents. And for all facilities, the standards prohibit cross-gender strip searches and visual body cavity searches except in exigent circumstances or when performed by medical practitioners, in which case the searches must be documented.
The standards also require facilities to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. (Emphasis added)  In addition, facilities must require staff of the opposite gender to announce their presence when entering an inmate housing unit.”

Note that the only double standard now permitted, in a change from their preliminary guidelines put up for commentary, are that  cross gender pat downs searches (that is searches done through the prisoners clothing) are permitted for adult men but not for women.  I believe this change was done for practicality only, not because it wouldn’t afford men more protection.  There are so many women guards, in some jails, such as in the men’s city prison of New York where they are over half, that they’d have to fire women guards and hire more men.  All cross gender strip searches are forbidden except in emergencies.  What this tells us is that the Commission believed that cross gender intimate contact of all types greatly increased the risk of sexual assaults, whether consensual or not.

What is the relevance of all this to society in general, and healthcare in particular?  A new standard has been set that reverses over 30 years of preponderant court decisions in the US.  Up to now the courts have generally given preference to equal employment rights over privacy rights.  This applies to institutions other than prison such as healthcare.  There are exceptions (BFOQ, bona fide occupational qualifications) to the rules but they are applied sporadically without any uniformity creating lots of work for attorneys.  The new regulations adopted by the DOJ recognizes for the first time that unfettered equal employment rights can put people at risk of abuse.  To my mind, this is an important new precedent.

Unfortunately the federal government is a multi headed hydra.  I note that in recent news the Office of Civil Rights, part of the US Dept of Health and Human Services has asked to file a brief in support of women guards in Ohio in a case they claimed was employment discrimination  The Ohio prison defended their employment policies saying they could not use women guards in areas of men’s prisons where they needed to witness strip searches and showering.  That would seem to accord fully with DOJ regulations.  I don’t know how this will all play out; an accommodation could potentially be made to increase female employment in non sensitive areas.  I think our prisons would be safer for all though if no opposite gender guards were permitted in sensitive areas which are the majority of most prisons.  The US is the only country in the world which insists that male guards be in women’s prisons because of equal employment rights; it violates United Nation law.

To summarize, privacy rights are more than just a nice legal theory but are also important for safety.  The right to same gender intimate care and monitoring, both in prisons and throughout society should not be held hostage to equal employment rights.


Anonymous said...

Are these new rules in response to the Dept of Justice
findings that female prison guards are responsible for
raping more male inmates than their male guard
counterparts who rape female inmates.


StayingFit said...

This is great news, Dr. Sherman, and I thank you for taking the time to summarize these new regulations in this article. I think that your summary paragraph says it best:

“I think our prisons would be safer for all though if no opposite gender guards were permitted in sensitive areas which are the majority of most prisons.”

These new regulations don't go quite that far, as you state, but they are a step in the right direction.

You also say:

“The US is the only country in the world which insists that male guards be in women’s prisons because of equal employment rights; it violates United Nation law.”

I agree, as well, but female guards are allowed in men's prisons for the same reasons. That the latter does not also violate UN law simply shows the bias inherent in that law.

In addition, given this statement:

“Surprisingly more of the guard on prisoner rapes involve women guards and male prisoners”.

I find this to be extremely troubling:

“Note that the only double standard now permitted, in a change from their preliminary guidelines put up for commentary, are that cross gender pat downs searches (that is searches done through the prisoners clothing) are permitted for adult men but not for women. I believe this change was done for practicality only, not because it wouldn’t afford men more protection. There are so many women guards [sic] that they’d have to fire women guards and hire more men”.

Perhaps this is the reason, but it is an extremely flimsy one. These prisoners are not incarcerated so as to provide employment opportunities to women. Surely the right to privacy, dignified treatment, and protection from abuse trumps the career aspirations of these guards? Besides, there is no similar concern for the potential impact upon the jobs of male guards, who are present in women's prisons, and who will not be allowed to conduct pat downs of inmates. If this impact was used, as an argument against this prohibition, do you think that such an argument would be taken seriously?

I am also not convinced that this is merely a practical consideration. As you know, there is a bias against men, in matters of privacy, when it comes to prisons, among other things. For instance, here is an article, which describes the design of a new Naval Brig:

The designers have gone to great pains in order to make the facility more comfortable for women. For men, the design is somewhat better than current buildings, but not much.

Most striking is this quote from Bill Bashore, who is the co-coordinator of the project:

“Privacy was also a consideration in creating a normative environment, and privacy screens were installed in the showers and around cell toilets to shield women from view while still allowing correctional officers to keep an eye on them.”

“For males, privacy is not a big deal, but it is for women,” Bashore said. “There is a need for good observation by officers, but there is a need for women to have privacy,” added Hartman. “Privacy panels provide for both.”

This shows the mentality of the people within the corrections industry. What amazes me is that this man could make this statement. I have to wonder how important privacy would be to him, if he was the one who had to shower or defecate in full view of anyone, but especially of women?

I believe that this sort of bias is at least partly responsible for the double-standard that we see, even in these improved regulations.

Joel Sherman MD said...

PT, the rules are in response to a so called epidemic of rape in our prisons said to be over 200000 a year. The role of female guards may not have even been apparent when Congress commissioned the study to promulgate rules to prevent prison rape.

StayingFit, the double standard in pat down searches was permitted after a preliminary report outlawed it. My understanding, which may not be accurate, is that the preliminary report met with much opposition from wardens across the country who said they couldn't meet it. The commission was charged with coming out with practical solution which today's prisons could meet without undue cost or hassle. That means that by no means is it necessarily the fairest or safest solution.
What you relate from the Naval Brig is disturbing. I think that the information coming out of these studies of prison rape make it clear that there is no reason for a double standard; both men and women are at risk.

Doug Capra said...

Someone from this blog needs to contact this Bill Banshore, listed as command evaluator, and ask him to not only explain but also back up his inane comment with some evidence. Anyone willing to see if we can find his email address?
A reader did make a contact and get us in touch with a source related to one of our other articles on his blog, and we've been in touch with the institution. Dr. Sherman and I are working on a follow up article.
So -- contact these people does make a difference we think.

Suzy Furno-Maricle said...

Dr. Sherman:

This is such an excellant article. There are times when I read these thought provoking posts and think that society may be catching on to what it is doing to itself. Other times I wonder still: is it truely seeing the self-imposed damage.
We pride ourselves on the statistical updates of abuse. We know that 1 in 4 females face abusive sexual situations. We now know also that the new theory is that 1 in 5 males suffer this as well. We educate ourselves as to signs and signals..tell tale indications that this may be happening. Yet despite our efforts, we ironically break our very own rules and overlook the most obvious potential for abuses.
We continue to stupidly put each other in those vulnerable and dangerous situations. We make excuses: claim equality and equity over common sense and obvious outcome. Then later we shake our heads with our mouths open in surprise and wonder where all of this abuse is coming from.

Hopefully the changes you wrote about above means a few eyes are opening. We have so far to go to start protecting society from itself.

Well written.

Joel Sherman MD said...

Thanks Suzy. I appreciate your kind words.
Do you offhand know the reference for your 1 in 5 statement of male juvenile abuse? I am familiar only with a moderately lower estimate.

Anonymous said...

Not offhand, but I will go through my file of abuse stats. Was collecting info to see if male abuse and medical modesty had as much connection as the same theory of female abuse.


Anonymous said...

Dr Sherman

I do have a reference that a considerable number
of boys are being sexually abused while in detention
centers than ever realized previously. I will look for
the article and provide it here.


Doug Capra said...

Check out this article in the New York Review of Books. This is the 11th paragraph from the bottom:

"Other serious weaknesses in the standards will also need to be addressed. Although they ban pat searches of female inmates by male staff, for example, they do not prohibit female staff from pat searching male inmates, even though the BJS data indicate that most staff sexual abuse is committed by women against men.16 And although they say that termination should be the “presumptive sanction” for staff who sexually abuse inmates, they do not insist that staff abusers be fired. (Many, now, are not.)"

At least the scholarly/intellectual media is recognizing this.

Doug Capra said...

Forgot to leave the link to that article:

StayingFit said...

Sadly, in today's news we have more evidence that this statement from Dr. Sherman's article is correct: “Surprisingly more of the guard on prisoner rapes involve women guards and male prisoners”.

Here is a link to a disturbing story:

The article tells of a female prison guard who was impregnated by a male prisoner, whom she was entrusted to guard. The affair was discovered, not just because other inmates witnessed her involvement, but also because she confessed the relationship to her latest boyfriend. That boyfriend is also a prisoner under her care.

Oh, and by the way, the death sentence given to the father of her unborn baby, which he earned by killing two cops, is under review. The reason being that he is mentally disabled.

So, she has at least two illegal affairs, neither of which can possibly be considered consensual, due to the power dynamic between guard and prisoner. In addition, one of these inmates might be so mentally incapacitated that he cannot be held fully responsible for his actions, even after murdering two cops in cold blood.

How can we see stories like this, and yet be told that only female prisoners have any cause for concern when their guards are of the opposite sex? How can otherwise intelligent people deem it unacceptable to extend the same protections to male prisoners, as we do to females, simply because it might cause some staffing changes at these prisons?

I am not in the least troubled that the wardens would be inconvenienced by this. Nor is it a strong argument to say that they could not meet the same standards for men as for women immediately. All that means is we set a reasonable deadline for when the policies must be met, and we begin working toward them immediately.

Anonymous said...

In a 2008-2009 study by the Dept of Justice, of the 39,121 inmates who were subjected to sexual assault by prison staff, 69% were
by female prison staff on male inmates. That number is 90% in juvenile centers.