41-d-1 Privacy

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

41-D-1. Privacy

This Section explains your right to be free from inappropriate pat-downs, involuntary exposure, and illegal body searches.

(a) Cross-gender Pat-downs

Under the Fourth Amendment of the Constitution, you are guaranteed the right to be free from unreasonable searches and seizures of your property.⁹⁶ A seizure is a capture of one's property by force or an interference with one's property by force. However, the Supreme Court has found that this right is severely limited in prison because of the security concerns of prison and incarceration.⁹⁷ Nonetheless, a few courts have recognized that random searches of women prisoners by male guards may violate the Eighth Amendment. For example, in Jordan v. Gardner, female prisoners protested the prison policy of random full-body pat-down searches by male guards. Many of these female prisoners had been severely sexually and physically abused by men in the past, and experienced severe trauma during these searches. As a result, the Court of Appeals for the Ninth Circuit found that these searches were "cruel and unusual" punishment in violation of the Eighth Amendment.⁹⁸ However, following the lead of the Supreme Court, all courts recognize limitations on female prisoners' right to privacy when it involves an emergency or another important prison security issue.⁹⁹ In New York, the DOCCS policy requires that, "whenever possible," female guards-not male guards-should pat down female prisoners.¹⁰⁰

In June 2012, as part of the Prison Rape Elimination Act (PREA), the Department of Justice issued National Standards to help prevent, reduce and punish prison rape, and inmate-on-inmate and staff-on-inmate sexual abuse. The National Standards include a ban on cross-gender pat-down searches of female inmates.¹⁰¹ As of August 20, 2015 (or August 21, 2017 for a facility with fewer than 50 inmates), the National Standards prohibit adult prisons, jails, and community confinement facilities from permitting cross-gender pat-down searches of female inmates, absent exigent (urgent) circumstances.¹⁰² Facilities are also banned from restricting female inmates' access to regularly available programming or other out-of-cell opportunities in order to comply with this provision.¹⁰³ For more information, please read JLM, Chapter 25, "Your Right to Be Free from Illegal Body Searches," Part B.

(b) Involuntary Exposure

"Involuntary exposure" is when your naked (or partly naked) body is seen by guards of the opposite sex, such as when you are using showers or toilets. The Supreme Court in Turner v. Safley stated that prison regulations that restrict the rights of prisoners must be substantially related to some legitimate (justified) concern of the prison.¹⁰⁴ Thus, your privacy rights can be limited if the prison gives a reason that is substantially related to a legitimate prison policy.

One important prison policy is to treat male and female prison officials the same, as required by federal employment discrimination laws. ¹⁰⁵ This can make it difficult to challenge involuntary exposure situations because prisons cannot treat male and female employees differently. Prisons cannot be required to assign only female workers to a position unless there is a legally recognized need for the position to be filled by a woman.¹⁰⁶ Courts have occasionally upheld the designation of certain jobs as female-only jobs, usually where there is a strong privacy concern¹⁰⁷ or where there has been a long, well-recorded history of abuse by male officers and other efforts to address the problem have failed.¹⁰⁸ Some courts have recognized that all prisoners have a right to be free from unnecessary viewing in the nude or while performing private bodily functions by guards of the opposite sex, and a few courts have been particularly sensitive to the privacy interests of women prisoners, requiring that they be able to cover their windows when undressing or using the toilet.¹⁰⁹ But if these factors are not present, courts may decide that the prisoner's interest in protecting bodily privacy is not as strong as the state's interest in offering equal employment opportunities for correctional officers.¹¹⁰ For more information on your right to be free from involuntary exposure, see JLM, Chapter 25, "Your Right to Be Free From Illegal Body Searches."

(c) Body Searches

In deciding whether a prison search violates your right to be free from unreasonable searches, courts weigh the need for prison security against the privacy interests of the prisoners.¹¹¹ Then they decide which of these interests is more important in the particular case.¹¹² For example, one court held that when a prisoner is being moved from...