Female guards in male prisons in the US - a comparison with detainee conditions?

One of the scenarios, commentaries have said, in the military tribunal negotiations that caused McCain, Warner, and Graham to back off of certain demands was the concern that a judge might decide that the mere fact of a female interrogator interrogating a Muslim male detainee constituted "degrading treatment" or some other vague standard that carries severe criminal penalties as a war crime under the War Crimes Act. Human rights organizations have indeed taken this position and others similar under human rights standards and laws of war. As Byron York put it at NRO, quoting conversations with a source present at the negotiations:

The McCain/Graham/Warner camp realized that the White House had a point when it raised the possibility that "a liberal jurist would say that a female interrogator of a Muslim male is a 'grave breach.'"

In light of the fact, also, that, at least at some points in the negotiations over the detainee legislation, the McCain Amendment, with its references to standards in various Constitutional provisions as a "floor" for treatment, I was curious as to how US domestic law views these questions of privacy, dignity, and so on in the context of cross-gender prison supervision.

I am not, of course, suggesting that there is a direct relationship. Insofar as one relies on human rights conventions and laws of war for standards such as "degrading" treatment, and insofar as one is dealing with detainees and not prisoners convicted in a US court and remanded to the US prison system, then there is no legal link between the standards. There are many reasons why the international standard, once taken beyond the vagaries of "degrading" treatment, might be higher than that of US prisons, and of course the standard in US prisons might simply be too low. For that matter, many people - particularly foreigners, I think - are quite astonished and repelled on privacy and dignity grounds that US law permits cross gender supervision in prisons - and particularly at the idea that employment rights, especially those of women seeking to work in male prisons, can trump prisoner privacy and dignity concerns.

So, while not asserting in the least any direct legal link, I asked my able research assistant Lisa Radigan to do a little research for me on the question of US prison standards, and the clash of privacy and employment civil rights. I recalled that one of my WCL colleagues, Professor Brenda Smith, has done extensive work, both scholarly and practical, in this area. She has written the definitive paper on the subject (and which argues that US standards in this area are in violation of human rights law) (see notes below). I am posting below the text of Lisa's short research memo to me, in case anyone is interested in how these gender issues are currently viewed in US prison conditions litigation (thanks Lisa!):

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The short answer is that cross-gender supervision of prison inmates is allowed in U.S. prisons under U.S. law. Inmates typically raise § 1983 claims alleging violations of either the Fourth or Eighth Amendments. Courts are much less likely to find civil rights, constitutional, or other violations if the situation is female guard/male inmate. Under the Fourth Amendment, both male and female inmates challenge actions by opposite-sex guards as either unreasonable searches or under the more general right to privacy. Courts, however, are extremely deferential to the needs of prison administrators and most Fourth Amendment challenges by male inmates have failed.[1] Female inmates are much more likely to bring ( and win) Eighth Amendment claims arguing that male guards can exacerbate past traumatic experiences that causes the conduct to rise to the level of cruel and unusual punishment.

Professor Brenda Smith’s article outlines three separate areas of litigation arising under the Fourth Amendment: (1) infrequent and irregular cross-gender viewing; (2) frequent and direct cross-gender viewing; and (3) cross-gender pat searches. Generally, courts have upheld infrequent and irregular cross-gender viewing as reasonable under the Fourth Amendment.[2] Additionally, the vast majority of U.S. courts have held that clothed pat searches by female guards of male inmates do not violate the Fourth Amendment.[3]

Her article notes that there is considerable disagreement among the circuits about the constitutionality of cross-gender guards viewing inmates while naked (or nearly naked) and when there was prolonged viewing of genitalia. For example, the Ninth Circuit held that female guards observing male inmates while they showered, used the toilet, or were strip-searched did not violate the Fourth or Fourteenth Amendments.[4] In contrast, when male inmates were detained overnight without clothes in the presence of female guards, a federal court in Michigan held that this violated the inmates’ Fourth Amendment right to bodily privacy because of the extended period of time and full nudity of the inmates.[5]

Courts generally choose to resolve most female inmate initiated claims against male guards under the Eighth Amendment. In order to uphold an Eighth Amendment claim the court uses a two-prong test: (1) the conditions of confinement must be sufficiently serious; and (2) the defendant must have acted with deliberate indifference to inmate health or safety.[6] Courts are generally less favorable to male inmates’ Eighth Amendment claims against female guards than female inmates against male guards.[7]

Title VII also plays a major role in courts’ treatment of cross-gender supervision. Under Title VII employers may not discriminate based on sex unless there is a bona fide occupational qualification (BFOQ). In the non-prison setting (for example, male nurses and female patients), privacy trumps employment rights. This is not the case, however, in the prison setting because, courts argue, there is a diminished expectation of privacy in the prison context. These arguments are also up against the backdrop of women’s historical exclusion from entry into the prison guard system and the overarching governmental interest in remedying this past wrong. Similar to the constitutional claims above, courts have been inconsistent in applying Title VII to male versus female prison guards. Thus, male inmates privacy rights generally give way to women’s employment rights.[8]

The bottom line is that there is considerable jurisprudence upholding cross-gender supervision of inmates. Professor Smith’s article, however, does argue that cross-gender supervision is not in line with international law.[9] She points to international law focusing on the dignity of each person (citing the UDHR, ICCPR, and UN Convention Against Torture). She also notes that limiting, but not excluding, women (or men) to positions that do not abridge basic privacy rights can solve Title VII problems.

Secondary Materials:

Brenda V. Smith, Watching You, Watching Me, 15 Yale J.L. & Feminism 225 (2003).

Teresa A. Miller, Sex and Surveillance: Gender, Privacy & the Sexualization of Power in Prison, 10 Geo. Mason U. Civ. Rts. L.J. 291 (2000).

Human Rights Watch Report, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, 1996, available at http://hrw.org/reports/1996/Us1.htm.

Amnesty International Report, Not Part of My Sentence: Violations of the Human Rights of Women in Custody, 1999, available at http://www.amnestyusa.org/us/document.do?id=D0F5C2222D1AABEA8025690000692FC4.

Department of Justice, Bureau of Justice Statistics Special Report, Sexual Violence Reported by Correctional Authorities, July 2006 available at http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca05.pdf.

Notes:

[1] See, e.g., Somers v. Thurman, 109 F.3d 614 (9th Cir. 1997) (finding there was no Fourth Amendment privacy protection for male inmates against female guards performing body cavity searches on male inmates); Johnson v. City of Kalamazoo, 124 F.Supp.2d 1099 (W.D. Mich. 2000) (holding that stripping detainees to their underwear and holding them for a period of time in the presence of female officers did not violate a male detainee’s Fourth Amendment privacy expectation). But see Forts v. Ward, 621 F.2d 1210 (2nd Cir. 1980) (holding that no Fourth Amendment violation existed when male guards were allowed to view sleeping female inmates so long as the female inmates were clothed).

[2] See e.g., Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982) (holding that limited frisk searches by female staff of male inmates was allowable).

[3] See Rice v. King County, 243 F.3d 549 (9th Cir. 2000) (concluding that clothed pat downs of males inmates by female guards is generally permissible).

[4] Grummet v. Rushen, 779 F.2d 491 (9th Cir. 1985).

[5] Wilson v. City of Kalamazoo, 127 F.Supp. 2d 855 (W.D. Mich. 200).

[6] Farmer v. Brennan, 511 U.S. 825 (1994).

[7] See e.g. Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997), cert. denied, 522 U.S. 852 (1997) (holding that Eighth Amendment claim met neither prong of the Eighth Amendment test where the inmate alleged cruel and unusual punishment based on repeated visual body cavity searches during which female officers "pointed at" him and "joked among themselves" at his expense, and where female staff joked and pointed at Somers while he showered); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (finding no Eighth Amendment violation in female correctional officer's comments to a male inmate regarding the nudity of male inmates).

[8] See, e.g., Griffin v. Michigan Dep't of Corr., 654 F. Supp. 690, 703 (E.D. Mich. 1982) (disposing of male inmate privacy noting that "[a]ny contention by Defendants that they are entitled to the Title VII BFOQ exception on the basis of the inmates' right to privacy argument is without merit. Inmates do not possess any protected right under the Constitution against being viewed while naked by correctional officers of the opposite sex”); Harden v. Dayton Human Rehabilitation Center, 520 F. Supp. 769, 774 (S.D. Ohio 1981) (concluding that female plaintiff had right to work as Rehabilitation Specialist in all male corrections institutions).

[9] U.N. Standard Minimum Rules for Treatment of Prisoners, Rule 53(B)(2), U.N. Doc/A/CONF/6/1annex I A (1956), amended by E.S.C. Res. 2076, 62 U.N. ESCOR, Supp. No. 1, at 35, U.N. Doc. E/5988 (1977).