The 'dirty little secret': why class actions have emerged as the only viable option for women inmates attempting to satisfy the subjective prong of the Eighth Amendment in suits for custodial sexual abuse.

• Author: Laderberg, Amy

Women [prisoners] complain of male corrections officers refusing

to leave their cells so they can dress, caressing their

breasts and other parts of their bodies, pulling down their

pants in front of them, touching themselves, making lewd

and offensive comments, following them around the facility,

assigning them to their offices as clerks, watching them use

the bathroom and shower, coming on to the unit without

warning of their presence, and frequently promising them

favors and presents for sexual activity.(1)

Despite a growing concern for the vast number of frivolous claims filed on behalf of prisoners, sexual abuse of women inmates by their male guards is a pervasive and legitimate problem in both state and federal prisons of the United States. The media and the legal profession have devoted increased attention to sexual abuse in prisons for several reasons, including the rapid increase in the number of incarcerated women guarded by men,(2) the unique perceptions of women inmates who often have a prior history of sexual abuse,(3) the disturbing lack of prosecutions for custodial sexual misconduct, and the ultimate failure of the lawsuits actually filed by women prisoners.(4)

The power dynamics inherent in the inmate/guard relationship and in the nature of confinement itself contribute to the problem of seeking a remedy for sexual abuse. "An inmate's word alone will not suffice as grounds for disciplining a staff member...."(5) Sexually abused female inmates are often reluctant to come forward to report incidents of abuse because they fear staff reprisal, worry that others will accuse them of lying, or want to avoid being labeled a snitch.(6) As a result, "prison officials, critics and inmates conclude that more sexual misconduct goes on than is reported."(7) The problems in calculating and remedying the frequency of sexual abuse in prisons mirror those in other areas of the law. As with sexual abuse of children and sexual harassment in both the workplace and the military, the physical environment and established power structures foster opportunities for sexual abuse in prisons:

[M]ost sexual harassment takes place without witnesses between

people of unequal power in a highly structured, hierarchical

organization. If there are no witnesses, the tendency of

most people in that organization, and in our society, will be

to believe the more highly-ranked and credentialed person in

any contest between the two as to what happened.(8)

The prison setting greatly magnifies this power disparity, and women prisoners have no ability to escape from the abuse.

Prisoners face yet another problem in attempting to remedy sexual abuse: custodial sexual abuse is a virtually invisible phenomenon.(9) Witnesses rarely observe the incidents, victims are hesitant to make complaints, and the departments of corrections often fail to record complaints or investigate them in an organized and centralized manner.(10) At the state and national level, the prevalent misconduct by male guards is not apparent outside of the prison system itself, and therefore is difficult to eradicate.(11) While suits under the Eighth Amendment against guards in their individual capacities(12) for monetary damages have occasionally prevailed, these types of lawsuits have neither acknowledged the problem of sexual abuse in America's prisons nor offered solutions. Eighth Amendment suits for injunctive relief against members of the prison administration in their official capacities(13) or against the penal institution itself would attract desperately needed visibility to custodial sexual abuse, but these suits rarely have been successful. Instead, class action suits under the Eighth Amendment have emerged as the best option for prisoners wishing to obtain injunctive relief from custodial abuse in American prisons.

Class action suits have many unique features that contribute to the plaintiffs' success in achieving relief from sexual abuse while incarcerated. For example, media coverage of such suits attracts significant publicity.(14) Wide-spread national exposure in turn creates pressure for internal investigations within the prison system and fosters external public awareness of the problem.(15) Under the weight of this intense scrutiny, the departments of correction have allowed the involved officers to resign or "retire" in order to end criticism of the prison and avoid public embarrassment.(16) In fact, female inmates may consider the removal or relocation of the "offending" officers as an additional aspect of "relief."(17) Defining the class bringing the suit as "all women prisoners who are [currently] incarcerated in the ... correctional system ... and all women prisoners who will hereafter be incarcerated in the ... correctional system"(18) enhances the inmate's credibility and reduces the chance that the officer's version will prevail over the inmate's version of events.(19) The vast number of inmates coming forward with comparable stories of sexual abuse makes it more difficult for the officers to claim that the plaintiffs fabricated the allegations(20) or consented to the sexual encounters.(21)

Another beneficial aspect of a class action suit is that the combined consideration of each female prisoner's complaint allows courts to characterize the abuses as occurring in a "sexualized environment"(22) within the prison system instead of simply isolated incidents happening on an individualized basis.(23) "[A] focus on `the combined acts or omissions' of the state's agents, rather than the search for a particular bad actor whose individual culpability could support liability"(24) also could lead to a greater perception of harm by the courts and the public. This Note suggests that the characterization of the harm as occurring in a "sexualized environment" makes it easier for a class of female prisoner plaintiffs to satisfy the subjective prong of the Eighth Amendment.(25)

The nature of the Eighth Amendment standard is the primary reason for the seemingly insurmountable challenge facing the inmate-plaintiff. The subjective prong of the Supreme Court's Eighth Amendment analysis requires an inquiry into the state of mind of the defendant-prison official, and the requisite state of mind differs depending on the type of challenged act.(26) Plaintiffs' claims of patterns of custodial sexual abuse constitute "conditions of confinement"(27) under the Court's Eighth Amendment analysis.(28) In "conditions of confinement" cases, acting with "deliberate indifference" satisfies the definition of "wanton"(29) and therefore embodies "cruel and unusual punishment in violation of the Eighth Amendment."(30) In a class action, once the plaintiffs establish a pattern of abuse, courts then may determine that the defendants acted with "deliberate indifference" to the women prisoners' endurance of the condition of sexual abuse. As this Note suggests, however, inmate-plaintiffs proceeding individually actually have little opportunity to gain injunctive relief under the Eighth Amendment.

This Note explores the implications of using the subjective prong of the Eighth Amendment to bring claims to remedy custodial sexual abuse. The first section analyzes the Eighth Amendment framework established in Farmer v. Brennan,(31) the Supreme Court decision resolving the dispute over the test for "deliberate indifference," and notes the harshness of this standard. The second section describes the pervasiveness of sexual abuse in U.S. prisons and offers first-hand perspectives on its nature and effects. The third section discusses several suits by individual women inmates and offers explanations for the failure of these actions. The fourth section explores Women Prisoners v. District of Columbia(32) and suggests why this particular class action suit was successful. The fifth section questions whether the existing Eighth Amendment standard poses an insurmountable obstacle to all inmate-plaintiffs except those involved in class action suits alleging custodial sexual abuse, and also offers possible solutions. This Note concludes that the level of proof required to satisfy the subjective "deliberate indifference" prong of the Eighth Amendment is too demanding for individual prisoners to meet when they are suing for injunctive relief against prison administrators in their official capacities or against the prison itself. This analysis ultimately determines that the present standard has deterred women from coming forward with allegations of abuse, and has created enormous obstacles for those who have pursued their claims on an individual basis.

FARMER V. BRENNAN AND THE EIGHTH AMENDMENT FRAMEWORK

The Eighth Amendment standard established by the Supreme Court in Farmer v. Brennan has left inmate-plaintiffs in general, and individual inmate-plaintiffs in particular, with little hope of obtaining relief from custodial sexual abuse. Farmer provided minimal support for future inmate-plaintiff cases because it involved the claim of a single inmate and was ambiguous in its exploration of the plaintiffs demand for injunctive relief.(33) Farmer did, however, establish the current definition of "deliberate indifference" as applied to "conditions of confinement" cases.(34) While the Supreme Court has upheld the view that "[b]eing violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses against society,"(35) Farmer and the preceding line of cases actually demonstrated a shift away from concern for prisoners' safety.

The Supreme Court's decision in Estelle v. Gamble(36) marked the first major departure from the "hands-off" approach to prison administration abuse issues arising from practices of incarceration.(37) The Court concluded that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain.'"(38) Mere negligence was not enough to make a valid claim under the Eighth...