Privacy Rights in PrisonNew 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.