Sex and the Prison: Custodial Sexual Abuse in Women's Prisons and Civil Liability: An Analysis of Legal Issues Under 42 U.S.C. Section 1983

Deanna L. Diamond, Sam Houston State University

Historically, female inmates have constituted a small minority of the total incarcerated population, and they have not been a major consideration or force in prison reform or inmate litigation. In comparison to their male counterparts, female prisoners have consistently filed fewer lawsuits addressing the conditions of their confinement, including sexual abuse perpetrated by correctional staff. Even with the decline of the "hands off" era in the 1960s and the subsequent rise in judicial oversight of prisons and jails, custodial sexual misconduct did not become a reform issue, largely due to the fact that female inmates were reluctant to file litigation addressing this type of abuse. However, that trend has changed within the past decade, as women prisoners have been more willing to engage in legal action. Although the overall number of cases filed by inmates has declined in recent years, the number filed by women prisoners had risen steadily and will most likely continue to rise in the coming years. Unfortunately, the number of female inmates is also rising in conjunction with the amount of litigation initiated by them. At the present time, there are more than 122,000 women incarcerated in America's jails and prisons (Bureau of Justice Statistics, 1999). Currently, women comprise over 6.4% percent of the state and federal inmate population, and they are the fastest growing segment of the incarcerated populace (Bureau of Justice Statistics, 1999). Given these figures, it is surprising that very little research has been conducted into the prison experience of female inmates, particularly in the area of custodial sexual abuse. Although reports of sexual misconduct and assault in the nation's prisons have been made, the government, the media, and the public have largely ignored the plight of female inmates subjected to this treatment. Though the existing research is limited, current statistics indicate that sexual violence is a reality in the daily lives of many imprisoned women (Amnesty International, 1999; General Accounting Office, 1999, Human Rights Watch, 1996). In addition, a growing body of case law also indicates that custodial sexual abuse is a very real problem within American correctional facilities for women. However, despite this growing trend towards litigation among female inmates, cases alleging custodial sexual abuse in violation of the Eighth Amendment protections against cruel and unusual punishment are difficult to win, particularly when filed by individual plaintiffs. Even more difficult to win are cases alleging employer liability for the acts of sexual abuse perpetrated against female inmates by correctional staff.

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Updated 05/20/2006