You Can Make a Difference by Doug Capra and Joel Sherman

Saturday, July 21, 2012

(This article crashed and had to be reposted so it is out of order and comments were lost.)

A Follow Up on ‘Juicy Nurse’

         Activism works. Especially in patient modesty and privacy violation where most people are passive and don’t complain.

         Why? Perhaps because offenders are not used to people complaining and are caught by surprise. Some may not even realize the seriousness of their insensitivity. Others certainly know these kinds of violations exist but, over the years, have convinced themselves that the events are not that important because – after all – no one seems to care.  No one complains.

            In January 2011, we published an article that described blatant patient privacy and modesty violations written by two nurses in their separate blogs. In essence, we chastised the nurses for what we consider their immaturity, insensitivity and lack of ethics regarding respecting the dignity of their patients and their profession. Before readers go any further with this article, we would ask that you read the above article we wrote and the excerpts from the now deleted blog of ‘juicynurse’ which are appended at the end of this article. 

            As we mentioned in our article, we did not know the identity of the apparent nurses authoring these blogs.  Fortunately, one of our readers, who prefers to stay anonymous on this blog read our article and was able to positively identify the nurse involved by the email address she provided on her site.  The nurse also gave her name in another section of the blog for a poem she wanted credit for.  With this information he was able to find her present site of employment where she has worked for years , nearly all of her professional career, as that of a large Miami hospital which we have previously identified.  He then wrote to the hospital informing them of this nurse’s online activities.  A few days later the blog was deleted.  The hospital through their public relations department thanked our reader and assured him that the problem was being taken care of, but would give no details claiming that all employment information was confidential.  We do not know the legal status of that claim, but it is commonly made.    With our reader’s permission, I also wrote the hospital and received a similar response.  They guarantee that action has and will be taken, but give no specifics.  In short, ‘juicy nurse’ has been identified and likely chastised by her employer, though we have no assurance that she is not still involved in patient care cataloging all the intimate details she has seen.  If we were patients at the hospital, we would refuse care from this nurse.   In our opinion a nurse so obsessed with the sordid and intimate details of patient care should not be involved with patients, probably not with nursing at all. 

                  We went beyond this by also sending a complaint to the Florida Department of Health.  We ultimately received a reply that the conduct of juicy nurse was not covered by their regulations and they would take no action.  They based this on the fact that no names are given in the article and thus no violations of privacy in their point of view.  This is surprising to us as enough detail is given that several patients the nurse describes could recognize themselves by her description.  A particularly horrible anecdote concerns a fully described disabled obese elderly woman who ‘juicynurse’ discusses in the crudest terms possible.    We believe revealing potentially identifiable data is prohibited under HIPAA.

                                   In a recent KevinMD article, Dr. Chris Gibbons, associate director of the John Hopkins Urban Health Institute and director of the John Hopkins Center for Community Health, wrote:
     "If you are serious about change you must be willing to endure a lot of discomfort. While this is no doubt true, I would take things one or maybe two steps further and say, 'Disruptive change will only happen when you become uncomfortable with being comfortable!'”

     He's speaking from inside the health care community, talking about making changes from within. The same may also be true for patients working from the outside. But not always.  In the case we've described, neither we nor our activist poster had to go through discomfort to get the attention of this hospital and this blog removed.

     Dr. Gibbons also wrote:
     "Whether the goal is personal weight loss, professional achievement, disparities elimination, patient access to personal health data, societal health improvement, or global peace, resist the logical, evidence based tendency to be satisfied with “change,” and release yourself to achieve what others think impossible by first becoming uncomfortable with being comfortable."

     We urge our readers to get involved. Be proactive. Don't be afraid to make civil complaints and provide solutions. And if you are ignored, don't give up. Resend those letters with copies to the media, if necessary.  As Dr. Gibbons suggests, don't be comfortable with an unfair status quo. Be uncomfortable with it. And do something.

The following are copied from juicynurse.blogspot.com which was deleted several days after our astute reader filed a complaint with BHSF.  There were also other posts which in my opinion are worse than the ones we’ve reprinted in that they are so graphic patients could likely identify themselves:

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NO JUDGEMENTS HERE! ENJOY!
Monday, September 7, 2009
PENIS!
BACK BY POPULAR DEMAND.......THE PENIS!

I have to talk about this! I know the men followers will probably not enjoy this, but it needs to be discussed. I have seen so much PENIS in the last 8 years! I did not realize in nursing school the variety of PENIS that I would be exposed to, I mean in the text books......a penis is a penis, but in the real word the PENIS is always an interesting surprise!

I have seen big penis, small penis, hidden by huge bush penis, "that's it?" penis, peek-a-boo penis, smelly penis, dirty penis,oozing penis, uncircumcised penis, young penis, old penis, swollen penis, uncomfortably hard every time I walk in the room penis, paralyzed penis, white penis, Jewish penis, Asian penis (not good), I can't find your penis because you are tooo fat penis, famous penis, HOLY SHIT that's a large penis, penis, and the SURPRISE, I am a white man from the waist up and a black man from the waste down penis!

It is true what they say about the black man.  I have seen A LOT of black man penis and it is NEVER small.  From the time these penis's enter the world they are HUGE.  It is UNBELIEVABLE!  The little black babies have penis's that actually flop up over their belly buttons. When I worked in pediatrics, I was shocked at the head start that these little black babies get....they are ahead of the game from day 1!

I once had to take care of a famous Miami coach.  In between juggling his girlfriend and wife, we would chat here and there.  He asked me to get him some pain medicine and when I did and came back to the room, I opened the door and I saw him standing up with the urinal in between his knees.  I quickly thought to myself, "that's weird....why is he holding the urinal in between his knees?"  Then I realized, "HOLY SHIT THAT IS HIS PENIS ALL THE WAY DOWN THERE"  It is TRULY AMAZING!  I have never seen anything like it and instead of quickly closing the curtain or running out of the room, I stood there like a little girl seeing a penis for the first time.  I was truly shocked and I eventually stuttered my way out of the room, dropping the medicine, staring at the penis and walking out of the room backwards like an AWKWARD mess!

I guess in nursing school they just figure that a penis is a penis!  They do not warn us of all of the interesting penis that we will encounter in our careers for fear that we will giggle our way through nursing school.  Sometimes we find a nice surprise, sometimes it is small, sometimes it is smelly and sometimes it is truly freakishly large......they all work the same way but at the end of the day.....NURSE'S LOVE A GREAT PENIS STORY!

Posted by www.juicynurse.net at 8:34 AM

Sunday, June 14, 2009

All The Ladies!

Well, I guess I can not leave the women out! After the Penis post.....that would not be fair!

Ladies......your junk is disgusting! For god sakes.....TAKE CARE OF YOURSELF!

I am up in everyone's business ALL of the time and I have to tell you, it is AWFUL! I have actually offered to PAY someone to put a Foley catheter in a women for me! I HATE IT!   Where is the freaking hole man?.....no wonder men are so confused! Don't get me wrong, I KNOW anatomy! I know where things are SUPPOSED to be.......but the older and fatter you get the more FREAKING CONFUSING it is! There is NO text book urethra for a women! "Why isn't any urine coming out?", we wonder......."oh, i know......BECAUSE YOUR IN THE FING VAGINA!"


It is the most disgusting.........I don't mean to offend anyone, but the thinner you are the easier it is, not much, but a bit easier. We do not have stirrups when we(nurses) do this.......we HAVE to be able to hold the legs back, maintain sterile technique and insert the Foley catheter........if you are not able to help us at all, it makes it very difficult.......smelly.......and sweaty......!

Like I said, I would rather pay someone.......does that mean I am prostituting my services?
JUST DO US ALL A FAVOR AND TAKE CARE OF YOURSELF!

Wasn't it the grandmothers of the world that said, "make sure you have clean underwear on when you leave the house because you never know!"

Posted by www.juicynurse.net at 5:41 PM 3 comments Links to this post

 

Illustration from another article from juicynurse.blog about a fat woman blowing farts

Hospital Gowns and Other Embarrassments A book review

Hospital Gowns and Other Embarrassments

author Michael W. Perry

A Book Review by Doug Capra and Joel Sherman, M.D.

Finally.  Finally a book from a medical insider that directly discusses patient modesty concerns.   If you imagine a large target in the distance, this book hits the target at different circles with an occasional arrow in the center. It also misses the target completely in some areas, and we’ll point out why – but we do recommend it be read by anyone interested in this topic.   It’s a brave book. But it’s also an extremely disturbing book.  As background, this book relates the experience of a male nurse’s aide on a pediatric floor, a rare combination, and his attempt to make his teenage female patients as comfortable with him as possible by respecting their modesty.  Many of the patients are cancer patients and are facing potentially terminal illnesses.

The focus of the book on teen girls only may put off some who follow this topic.  Written by former nurse’s aide Michael W. Perry who worked in a major pediatric hospital, the title is directed solely to girls.   Now, I can hear howls already from some readers: “Why a “teen girl’s guide? Why not for boys, too?” And that is the first criticism we have with this book. The author gives us an answer in a very disturbing section titled “Beleaguered Guys.” Talking about the male teens, Perry writes: “If a guy had any sense of modesty when he arrived, he had to get over it quickly. Most of their care was done by nurses, all of whom were women and many only a little older than they.”

He says that, looking back, he finds that “amusing.” At any time, he writes, “a female nurse or aide might dart up their bed insisting that they do something they’d rather not do.”  I wondered why Perry didn’t write a book for teen boys as well as teen girls.  He answers that question: “If I wrote one, it’d be entitled Hospital Nurses and Other Embarrassments and would consist of two short sentences. ‘Give up. It’s hopeless.’” At least the author adds the following sentence: “Poor guys! I only hope that, by helping teen girls like you, this book also eases their plight.”  But the book is nearly 98% about girls and his empathy for boys is half hearted at best. 

So – assuming this book is accurate and we truly are getting an inside view of the gender care culture within some or many hospitals, Perry is essentially confirming some of the worst stories and anecdotes we’ve been reading on this blog and others like Dr. Maurice Bernstein’s thread on modesty. We see blatant gender discrimination.  Boys just have no rights when it comes to protecting their modesty. They are second-class citizens.  Perry writes: “The girl’s situation could not have been more different. Their privacy was almost complete. Their rooms were the domain of a nearly all-female staff. That meant that they could be much more casual about their undress.  Their situation was nothing like that for the guys.”  How did it affect they teen boys? The one’s he cared for “seemed so sullen and withdrawn that all my efforts to get to know them came to naught.” One wonders if this might be a sign of depression – just what seriously ill teens, some in the process of dying, need at this time in their short lives.

In fairness to the author, he’s giving us a rare inside view of the female-dominated, “gender-neutral” culture within hospital. So, in spite of these disturbing passages, they are at least honest. This is a brave book. And, being one of the only male aides on these wards, he shares with us his most challenging experiences, working with teen age girls.  With revision, the book could be for adults as well.  In fact, we see this book as actually being more valuable for adults than it is for teens. That’s why we’re recommending you read it.  More importantly, it should be required reading for doctors, nurses, CNA’s, medical assistants, and patient techs – indeed, all those who have contact with patients in potential embarrassing situations.   And this book should be required reading for parents of teen boys so they can help advocate for their child.  If what this author observes is accurate, young teen boys need a patient advocate.

So – before we present our critiques, we want to first say that this is a brave book.  A courageous book.  A book that finally acknowledges the issue of modesty quite openly.  Perry is brave enough to admit that hospitals need to “rethink their obsession with single, overly efficient, unisex procedures.  Hospitals need to make practical adjustments for men caring for teen girls and perhaps women caring for teen boys.” Of course, the italics is ours. The author still tends to perpetuate the myth that boys just don’t deserve the same protection from modesty that girls deserve.

But Perry also writes: “Kindness about embarrassment should be such a core value in hospitals, that everyone thinks about it and no one gets berated for acting on. There are more important things than bed sheets and efficiency, particularly for someone facing the serious possibility of dying…We should be gentler with teens facing terrible illnesses and not add to their already heavy burdens.”

            More importantly, Perry admits in print what many of us have been claiming for years but what few within the health care system are willing to admit. The author writes: “I fear that, in all too many cases, problems arose because all talk about modesty, embarrassment, and even feelings of violation were taboo.  Nursing staff, including me, seemed afraid to bring them up and expose their supposed lack of professionalism and insufficient desensitization. On their part, administrators seemed to fear that any lessening of the ‘staff that are neither male nor female’ rule would complicate their work and lower efficiency. I doubt that’s true.”

 Read that paragraph again. That’s why we call this a brave book.  Perry admits a culture that’s all too prevalent in American medicine today – the “gender-neutral” world view.   It’s a view that tends to ignore the importance of the gender of the to patients, especially for intimate exams and procedures.  In that paragraph, Perry also acknowledges the tendency to place efficiency above modesty --  the attitude that says let’s get this job done and over with as quickly as possible so we can move on to the next job.  The patient may be embarrassed, even humiliated, but he/she will get over it.  A third element Perry raises in that paragraph is what he considers the discomfort of the provider in these kinds of situations – this tendency, he writes, of the caregiver to  fear “their supposed lack of professionalism and insufficient desensitization.” Frankly, it’s like pulling teeth to get most medical professionals to talk in public about these issues.

            But let’s get our second criticism out in the open so it won’t surprise you.  Perry comes down hard on young male doctors and young residents. Unfortunately, he seems to perpetuate the stereotype of gawking, sex-starved men seeking out opportunities to seek naked, vulnerable young girls.  In fairness, he does acknowledge that these men represent a minority, but we think his analysis is unfair.  He uses a blatant double standard.  Nurses routinely expose their patients, both boys and girls to embarrassment, but they only do so because in his opinion they are so completely jaded to nudity that they are unconcerned and unaffected by it.  Men on the other hand do so because they are ‘creepy’ or ‘perverted.’  Perry never admits that male providers can unconsciously expose kids as well with no other intent.  He also comments on gawking young teen boys on the ward.  Interestingly, Perry comments about how most female nurses openly protect the young teen girl patients from these gawking boys .   They definitely did not protect them from older men to our surprise.  We’re not suggesting this behavior doesn’t happen. But we are suggesting that it’s not only some men who seek out this opportunity. We’ve had many posts by males about young female nurses and aides who take opportunities to gawk as well.

So in summary this a rare book that actually discusses patient modesty in a hospital setting with the emphasis on gender conflicts and interactions, a subject which is nearly taboo in our gender neutral present day health care system.   We are not aware of another book that focuses on this subject.  Anyone interested in this subject should read this book.  We’re not sure though that the author’s intended audience, all adolescent girls, should read this book unless they are hospitalized and having difficulties coping.  It could scare them for no purpose, and if they are like the cancer stricken kids described, they start out with much more serious concerns.  The book would be helpful though for parents of kids, especially girls, who are facing chronic illness and hospitalization.

This book is available from multiple online sellers.

           

Elderly Patients and Modesty by Misty Roberts

In Nursing Homes and Hospitals

The elderly patient presents a unique problem when dealing with the modesty issues they may face.  An elderly patient’s modesty is often compromised because they are unable to speak up on their own behalf, making them vulnerable.  Dementia at any level in an aged patient also poses problems because medical professionals assume that their modesty does not matter if they are not 100% cognizant of what is going on.  

Nursing homes and hospitals have become gender neutral. It is common for male nurses / aides to bathe, perform intimate procedures (changing diapers, urinary catheterizations, shaving their genitals for procedures, etc), and assist with in the bathroom, female patients they have been assigned to. Many families have been shocked and outraged to discover that their family members were bathed by opposite sex nurses or aides without their consent. Nursing homes and hospitals need to work to accommodate elderly patients’ wishes for privacy. 

I personally think it is risky for nursing homes to assign male nurses or assistants to female patients for intimate care tasks (bathing, changing diapers, dressing, cleaning women’s private parts after bowel movements, etc) due to the potential for sexual abuse. Cases of sexual abuse by male nurses and assistants at nursing homes are in the news frequently. The false assumption exists that the elderly do not care about their modesty. This could not be farther from the truth. Many female nursing home residents will not even allow their sons, grandsons, or male relatives help them with intimate care tasks. Why should they have to give up their boundaries about men not helping them with intimate care in nursing home and hospital settings?  I personally believe that male nurses and assistants can certainly work with female patients, but they should have no contact with female patients’ private parts.  This will not only honor their wishes but also help to ensure that sexual abuse does not happen. “Elderly nursing home residents are easy prey for sexual predators, because they are often weak and defenseless. They may also fall victim to sexual abuse because they had a stroke or other medical condition that caused them to lose their speech or motor skills. When a nursing home resident is unable to protect themselves or speak, the likelihood of becoming a victim of sexual abuse increases” according to Sexual Abuse in Nursing Homes – Edgar Synder & Associates.

Nursing homes and hospitals may use this excuse: a male nurse has to assist in bathing some women for the purpose of lifting them and ensuring that they are not dropped. This is not true.  Due to the potential of sexual abuse, this is very risky. It is my opinion that a female nurse or assistant should always bathe a woman. A male nurse or assistant could help to lift a clothed woman in the bathtub if necessary and leave while a female nurse or assistant bathes her. Then the female nurse could call for the male assistant to come back to get her out of the bathtub after the woman has been dressed.  Sponge baths can be given to very frail patients in their beds, requiring no lifting or male assistance whatsoever.

A number of relatives of elderly female nursing home residents have expressed how upset they were to find male nurses / assistants handling their loved ones’ intimate care issues.  Here are a few examples:

1.)    A very painful incident for me involved my mother, who in the advanced stages of Alzheimer’s, was hospitalized with a broken hip. I visited her room one day and found a male nurse cleaning her up after a bowel movement.  She was highly agitated and terrified.  My Dad, who was present, had not protested, so I didn't say anything.  I cannot believe that I was such a coward.  Mother passed away five years ago, and I have not gotten over the regret of not speaking up for her.    Given the opportunity again, I would have insisted on female nurses and aides ONLY!
– Man from South Carolina 

2.)    I have a grandmother in a nursing home that requires assistance in the restroom, help bathing and changing. She is also not completely there in her mind. She can easily be taken advantage of and cared for by a male. The position my grandmother's in is already degrading enough, but to have a male nurse taking care of her and seeing her exposed is wrong in many ways. My family does not want to have a male nurse taking care of her because of the degrading and immoral nature of the situation.”
– A young lady from Durham, NC 

Modesty issues are not reserved for only elderly female patients, elderly male patients also struggle with them.  Years ago, male nurses were very rare. It’s wonderful that we are seeing more male nurses / aides for elderly male patients who are not comfortable with female nurses / assistants. Some nursing homes hardly have any male nurses or aides to help with male patients who are modest. A nurse / aide actually swore at an elderly man who asked her to leave the room for a few minutes so he could use the bathroom. She thought he was crazy for asking her to leave the room.

A pastor shared this with Medical Patient Modesty: A very pleasant, likeable, and religious congregant found himself in the hospital for a prolonged period, prior to his death. His recurring conversation with me, over the course of my many pastoral visits was his resistances to female nurses inserting Foley catheters, giving him complete body baths, and dressing him. Disclosing that he could accept the immense physical pain foisted on him and that he was prepared for death, this sheep of my flock related that the most difficult problem of his entire life was this issue of frontal nudity before strange women! It was foreign to his life experience. "It's not right!" was his plea. His tearful eyes looked to me for counsel. The only consolation this veteran clergy provided him was that if I were in his shoes my feelings would be identical to his own! The female nurses told this suffering, dying patient, "You don't have anything we've never seen before!" "Don't worry about it, we do this all the time!" and "You'll get over it!"

If you have to place a loved one in a nursing home, take time to meet with the nursing home administrator, supervisors and other staff members to discuss how you want the loved one’s modesty to be protected. Ask questions about how they can ensure the protection of your loved one’s modesty.  Make sure that all of your directives are put in writing and be succinct with what you want.  For example, state that no male nurses or aides are allowed to bathe your elderly mother.

Adolescent Boys and Genital Exams Reducing Embarrassment

              by Joel Sherman MD

Here is an unusual post that actually discusses the most embarrassing part of the male physical exam.  Every practitioner who does male genital exams is certainly aware of this problem yet it is rarely discussed.  I quote from this anonymous nurse practitioner's (NP) blog:

It is a hard fact of practice that there will be a time in a clinician's life when he or she will be confronted with an erect penis.  … In newFNP's experience, these awkward moments tend to occur with teenage boys who will pitch a tent upon sensing a sideways glance at the penis. … In general, newFNP really feels sorry for her male patients who have an itchy trigger penis. She knows that they know that they have an erection at an inappropriate time. She knows that they are uncomfortable and assumes that they might like to sink into a crack in the floor. 

I showed this blog to a NP I know who does sports physicals.  She confirmed all the main points:  Yes, this occasionally happens and the boys are generally incredibly embarrassed.  This has been posted about a few times by other practitioners as well although the articles have since been deleted.  I asked the NP whether she was trained to deal with this situation.  The answer was no, the subject was never mentioned in her NP training.  My medical training was decades ago, and that was certainly true then; the subject was never mentioned.  I tried to find out if it is any different now.  A medical educator and physical exam instructor of 2^nd year medical students, Dr. Maurice Bernstein  says that his students are told to reassure men that it is a normal physiologic reaction.  It’s hard to know what else to say, but the response can beg the question.  It is a normal reaction for the practitioner.  -But not for the patient.  Adolescents are not used to having their genitals seen and touched, especially in a non sexual situation, and may respond sexually.  Despite reassurances to the contrary, as seen in the above quote from the blog, the encounter can be a source of amusement to others.    

Standard textbooks on adolescents and physical exams have almost nothing to say about this.  Mosby’s Guide to Physical Examination (4^th edition) was the only text I came across that actually mentioned that young patients especially may be fearful of having erections.  But it doesn’t make any recommendations as to how to avoid the problem or what to do when it occurs.  Two textbooks (Swartz, Textbook of Physical Diagnosis  (6^th ed.) and Bickley, Guide to Physical Examination, (10^th ed.) had brief articles on how to reassure girls for their first pelvic exams.  Incredibly though when it came to the male genital exam, these 2 books only discussed how to reassure the medical student doing them.  The patient’s embarrassment was not mentioned.  Yes the exams are embarrassing for new physicians as well, but concern for the patient should remain primary. Two texts I viewed on adolescents said nothing about the subject.

So it is well recognized by practitioners that genital exams are embarrassing for boys as well as for girls. It is also documented that the gender of the provider is one factor.   (Adolescent Girls and Boys Preferences for Provider Gender & Confidentiality in Their Health Care, Journal of Adolescent Medicine 1999;25:131-142. &  Patient Preferences for Physician Gender in the Male Genital/Rectal Exam, Family Practice Research Journal, Vol 10 No 2, 1990.)   There is evidence for both boys and girls that the exams are more embarrassing when done by opposite gender providers (for further references see link).    The American Academy of Pediatrics (AAP) has published extensive guidelines for both male and female genital exams.  For girls it states: Clinicians should always be sensitive to the possibility of past or current sexual abuse, which can affect the patient's comfort with the examination and her preference regarding the gender of the examiner.  For boys it states:  Trust and relationship-building are also critical elements of the male adolescent's visit that help him to feel comfortable regardless of a physician's gender and/or background.  In other words for girls one should respect their gender preferences for the exam.  For boys it makes no difference if the exam is done properly.  And they don’t appear to recognize that sexual abuse of boys is very common as well, about half the incidence of girls.  The conclusion from the AAP appears to be that girls should be given a gender preference and boys should not.  Given the clear embarrassment that both boys and girls can suffer, there is no justification for the different treatment.  

Likely this difference is a reflection of the varying importance Western society has put on modesty for women vs. men.   And it probably also reflects the genuine difference in the complexity of the exams, a woman’s gynecologic exam taking up to 15-20 minutes with specialized equipment and the patient in an unfamiliar embarrassing position vs. a few minutes for the average male exam with no unusual equipment or positions needed.   But clearly the embarrassment that boys feel during these exams can be comparable to what girls go thru, especially if an erection develops.  Indeed many men as well as adolescents can’t help but feel that someone handling their genitals is a sexual experience, usually more intense with an opposite gender provider.

Adolescents in particular deserve utmost sensitivity for genital exams, especially for their first thorough one.  While this is recognized for girls, it is rarely mentioned for boys even though every practitioner must be aware of boys’ embarrassment.  Parents will often accede to their daughters wishes for gender preference and will prepare their daughters for what to expect; boys are rarely accorded the same consideration which is now much more of a problem than it was years ago when female pediatricians were a small minority.  It is easy to find texts and manuals as to how to handle pelvic exams in the least stressful and embarrassing way possible.  For boys a similar discussion is rare.   Most practitioners must know how to reduce embarrassment by keeping the boys covered as much as possible and keeping tactile stimulation to a minimum through brief exams and the use of gloves.  It is time that medical teaching and parents caught up with the fact both boys and girls need equal consideration including offering them a preference for the gender for the provider.

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.