The Eighth Amendment and Prison Staff-to-Sentenced Prisoner Sexual Violence

Introduction

U.S. prisons have undergone seismic changes since their genesis in Pennsylvania.^[1] From the centrality of solitary confinement in Eastern State Penitentiary to the centrality of exploiting convict labor in Auburn Prison.^[2] From the regional dominance of convict leasing in the postbellum South to the supplantation of leasing for chain gangs, penal farms, and road work during the Progressive Era.^[3] From supermax prisons to trusty systems.^[4] Different institutional logics have governed different iterations of this peculiar institution.^[5] Yet, despite its changes, overcrowding, dilapidated facilities, and violence have defined each manifestation of the prison. Justice Harry Blackmun correctly noted that the “atrocities and inhuman conditions of prison life in America are almost unbelievable.”^[6] Lamentably, the atrocities and inhumane conditions that sentenced prisoners have experienced has historically involved sexual abuse.^[7] It has long been a constitutive feature of incarceration that prisoners live in daily fear of being victim to sexual victimization by prison officials and their fellow prisoners. This violence is both staggering and unacceptable. Equally concerning is the constitutional law governing prison sexual abuse.

In this Article, I offer the first comprehensive account of lower federal courts’ Eighth Amendment jurisprudence regarding prison staff-to-sentenced prisoner sexual violence.^[8] In doing so, I illustrate that one reason why this kind of sexual abuse is so rampant and unchecked is precisely because of this jurisprudence. Specifically, the substantive Eighth Amendment standards that lower courts require incarcerated plaintiffs to meet are not only unique to sexual violence claims, but also uniquely burdensome. In fact, these doctrinal standards are far more burdensome on incarcerated plaintiffs than the standards developed by the Supreme Court.

I argue that lower federal courts should faithfully follow the Supreme Court’s Eighth Amendment prison conditions jurisprudence by applying the excessive force standard—which requires showing that the guard acted maliciously and sadistically for the very purpose of causing harm and that the force used was either non-trivial or trivial but repugnant to the conscience of mankind—to sexual assault claims and the conditions of confinement standard—which requires showing that the guard was deliberately indifferent to a substantial risk of serious harm—to sexual harassment claims. However, in neither instance does the incarcerated plaintiff need to directly prove that the prongs of these standards are satisfied. Rather, the plaintiff presumptively satisfies the standards by showing that the alleged sexual abuse in fact occurred. The burden then shifts to the defendant official to rebut the presumption. I surmise the defendant will almost never be able to rebut the presumption because sexual abuse never serves any legitimate penological interest. As such, an incarcerated plaintiff proves they were cruelly and unusually punished by proving they were sexually abused by a prison guard. This burden-shifting approach comports with the Supreme Court’s Eighth Amendment prison-conditions jurisprudence and marginally lowers the evidentiary burden on sexually victimized prisoners.

A few remarks are in order. First, this Article’s doctrinal recommendation is self-consciously marginal. I am not advocating for a seismic overhaul of the Supreme Court’s Eighth Amendment prison-conditions jurisprudence. Of course, that jurisprudence should be overhauled. While not sufficient, it is certainly necessary that the Supreme Court fundamentally rethink its prison-conditions jurisprudence if prison sexual violence is to be substantially mitigated. But that rethinking does not occur here. My central goal is far more modest. I simply point to a minor adjustment in lower federal courts’ Eighth Amendment jurisprudence which promotes the value of judicial harmony and marginally empowers sexually victimized prisoners. Many instances of prison staff-to-sentenced prisoner sexual victimization are cognizable under the Supreme Court’s jurisprudence, but not that of many lower federal courts, precisely because of how the latter deviates from the former. If lower federal courts were to follow the Supreme Court’s jurisprudence, then sexually victimized prisoners would actually be better off. This minute doctrinal recommendation is grounded in the conviction that effective legal advocacy need not always involve grand reconceptualizations of prevailing case law. Sometimes it may involve recommending small doctrinal shifts that would minutely improve the lives of the relevant target group, even if such shifts would not completely eradicate the systematic subjugation they experience.

Second, the preoccupation of this piece is the Cruel and Unusual Punishment Clause of the Eighth Amendment^[9] and how it applies to prison staff-to-sentenced prisoner sexual misconduct. Hence, this Article is primarily focused on constitutional law. Of course, nonconstitutional legal provisions, such as the Prison Litigation Reform Act, are significantly relevant to the likelihood of an incarcerated plaintiff holding an official liable for sexual violence. However, the gravamen of this Article is the nature of a specific corner of constitutional jurisprudence. My posture conveys my belief that how courts construct constitutional provisions is uniquely important within our constitutional democracy.

One reason for this importance is that state and federal regulation of carceral sexual abuse must respect the boundaries, often the legal floor, set by federal courts’ interpretation of constitutional provisions. Thus, constitutional jurisprudence plays a significant role in shaping what legislation regarding carceral sexual abuse could possibly be like. Another reason is that how our Constitution is interpreted by the federal judiciary provides insight into the governing values of our political society. Plausibly, one function of democratic law is to communicate the collective moral values of a political community.^[10] What our Constitution is interpreted to mean poignantly establishes, reveals, and even changes the kind of relationship citizens have with our political community. For example, while it was desirable that states and the federal legislature adopt anti-Jim Crow legislation in Jim Crow America, the fact that our federal Constitution was interpreted to permit Jim Crow expressed something about the values of Jim Crow America and the place Black people occupied in it. Similarly, while it is desirable to have a federal bill protecting a woman’s right to abortion, the fact that our Constitution is interpreted to not secure women that right provides a strikingly clear picture of the values of America and the place of women in it.^[11]

These remarks especially apply to the Eighth Amendment right to be free from cruel and unusual punishment. Judicial construction of this right efficaciously expresses the place that our convicted lawbreakers occupy within our polity and who we are as a people. One abiding intuition that I have is that how a society treats its wrongdoers efficaciously expresses the animating values of that society. How do we treat our sinners, or alleged sinners? Our answer to that question illuminates our moral, political, and theological convictions. In a similar vein, Caleb Smith, in commenting on William Faulkner’s The Jail, remarks:

At the same time, the prison bears more than the marks of the several souls it has confined; the “overlapping . . . history of a community,” the secret life of the society that builds this holding chamber for its outcasts and offenders, is buried here, awaiting excavation. Those who wish to understand the community are invited to look into its carceral spaces and practices.^[12]

By evaluating Eighth Amendment law related to prison staff-to-sentenced-prisoner sexual violence, I illuminate the depth of our collective apathy for incarcerated folks.

Lastly, this Article will likely be as hard to read as it was to write, in that it contains graphic descriptions of sexual violence. The reader should be aware up front that this Article could be triggering. When describing the facts of a case does not advance my argument, I abstain from doing so. However, it is important to paint an accurate picture of the sexual abuse that prisoners suffer because such a picture is rarely painted in legal scholarship or popular discourse. What is constitutionally permitted to occur in our nation’s prisons is deplorable. While I do not want to gratuitously describe how deplorable it is, I do want the reader to understand the lawful, inhumane ways incarcerated folks can be treated by those we entrust to care for them.

In Part I, I delineate the two primary doctrinal standards within the Supreme Court’s Eighth Amendment prison-conditions jurisprudence: the conditions-of-confinement and excessive-force standards. In Part II, I provide an overview of prison staff-to-sentenced-prisoner sexual violence. In Part III, I unpack how lower federal courts misunderstand and misapply the Supreme Court’s Eighth Amendment prison conditions jurisprudence to prison staff-to-sentenced-prisoner sexual abuse claims. This Part contains my central doctrinal recommendation: if lower courts are to faithfully follow the Supreme Court’s case law, they should apply the excessive-force standard to sexual assault claims and the conditions-of-confinement standard to sexual harassment claims. I then offer concluding remarks.

I. Eighth Amendment Prison Conditions Jurisprudence

The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits federal and state governments from cruelly and unusually punishing convicted lawbreakers.^[13] There are at least three kinds of cruel and unusual punishment claims someone can bring: challenges to the imposition and manner of the death penalty; the proportionality of punishment; and the nature of prison conditions. While our focus is exclusively on the latter, court opinions dealing with the former two will be relevant. Within the Supreme Court’s Eighth Amendment prison-conditions jurisprudence, there are two kinds of claims a sentenced prisoner can make: conditions-of-confinement and excessive-force. I will consider these in turn.

A. Conditions of Confinement

The Supreme Court’s first major decision involving an Eighth Amendment challenge to prison conditions occurred in Estelle v. Gamble.^[14] In this case, a sentenced prisoner brought a § 1983 claim alleging that he was denied adequate medical care after suffering an injury on a prison work assignment. In remanding the case to the court of appeals, the Supreme Court noted that the primary concern of the drafters of the Eighth Amendment was to proscribe torture and other barbarous methods of punishment.^[15] However, the Court emphasized that the Amendment proscribes more than this, in that it also “embodies broad and idealistic concepts of dignity and civilized standards, humanity, and decency.”^[16] Accordingly, legal punishment violates the provision when it is “incompatible with the evolving standards of decency that mark the progress of a maturing society” or “involve[s] the unnecessary and wanton infliction of pain.”^[17] The Supreme Court explained that it had “early recognized that a principle to be vital must be capable of wider application than the mischief which gave it birth.”^[18] Hence, the Cruel and Unusual Punishment Clause is “progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”^[19]

According to the Court, a sentenced prisoner suffers the unnecessary and wanton infliction of pain when prison officials are deliberately indifferent to their objectively serious medical needs and/or to substandard prison medical care.^[20] We know from Farmer v. Brennan, a case we will consider shortly—deliberate indifference is just conscious disregard.^[21] Accordingly, to prove that substandard prison medical care amounts to cruel and unusual punishment, a plaintiff must show that an identifiable prison official was aware of but consciously disregarded the substandardness of the medical care. The Court justified its mental state requirement—instead of just requiring a showing of objectively substandard medical care—by explaining that the “inadvertent [or accidental] failure to provide adequate medical care cannot be said to constitute the unnecessary and wanton infliction of pain.”^[22] Thus, the Court holds that for prison conditions to count as cruel, they must at least be intended by a prison official.

While the Supreme Court appeared to back off the intention-based mental state requirement for Eighth Amendment prison condition claims in Rhodes v. Chapman^[23] and Hutto v. Finney,^[24] the Court emphatically affirmed and extended the holding of Estelle in Wilson v. Seiter.^[25] In Wilson, the incarcerated plaintiff alleged that their prison conditions—overcrowding, excessive noise, insufficient locker storage space, inadequate heating and cooling, improper ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food preparation, and housing with mentally and physically ill prisoners—collectively amounted to cruel and unusual punishment.^[26] The Court ultimately remanded the case to the Sixth Circuit. In doing so, the Court, with Justice Antonin Scalia writing for the majority, clarified that the Estelle standard applies to all conditions of confinement claims, not just to challenges to prison medical care.^[27] Accordingly, for a sentenced prisoner to show that their conditions of confinement violate the Eighth Amendment, they must show that there was an identifiable prison official who was deliberately indifferent to those objectively serious prison conditions.

Justice Scalia then clarified that with respect to Eighth Amendment prison conditions claims, legal punishment is defined as “a deliberate act intended to chastise or deter.”^[28] As such, prison conditions must have been intended by a prison official for them to be considered a part of the plaintiff’s legal punishment at all. Justice Scalia further claims that “this is what the word means today; it is what it meant in the eighteenth century . . . . [I]f [a] guard accidentally stepped on [a] prisoner’s toe and broke it, this would not be punishment in anything remotely like the accepted meaning of the word, whether we consult the usage of 1791, or 1868, or 1985.”^[29] He further argued that “the source of the intent requirement is not the predilections of th[e] Court, but the Eighth Amendment itself, which bans only cruel and unusual punishment.”^[30] If challenged prison conditions were not “formally meted out as punishment by the statute or the sentencing judge, some mental element must be attributed to the inflicting officer.”^[31] In short, intentionality was baked into the very definition of legal punishment in Wilson. As such, when a sentenced prisoner brings an Eighth Amendment claim challenging carceral conditions, they must prove an identifiable prison official intended those conditions for them to even count as punishment.

The Supreme Court in Helling v. McKinney^[32] importantly altered the objective prong of the conditions-of-confinement test, at least when the plaintiff seeks injunctive relief. In this case, the plaintiff claimed that prison officials violated his Eighth Amendment rights when they forced him to share a cell with another prisoner who smoked five packs of cigarettes a day.^[33] While the plaintiff could not prove that the smoking caused him serious injury, he could prove that the smoking and the guard’s deliberate indifference to the smoking put him at substantial risk of being harmed. In its ruling, the Supreme Court claimed that the plaintiff made out a viable Eighth Amendment claim.^[34] On the matter of the plaintiff not demonstrating injury, the Court said that “it would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event.”^[35] The Eighth Amendment “requires that inmates be furnished with the basic human needs, one of which is reasonable safety . . . it is cruel and unusual to hold convicted criminals in unsafe conditions.”^[36] Therefore, an incarcerated plaintiff making an Eighth Amendment conditions of confinement claim and seeking an injunction need not show that the complained of conditions inflicted actual injury. They need only show that the challenged conditions put them at a substantial risk of serious harm.

Farmer v. Brennan rounds out the Supreme Court’s Eighth Amendment conditions of confinement jurisprudence and importantly extends the holding in Helling.^[37] Farmer, a transgender woman, was convicted of credit card fraud and initially imprisoned in a minimum-security federal prison in Wisconsin.^[38] For disciplinary reasons, Farmer was transferred to a high security federal prison in Indiana that housed “more troublesome” prisoners.^[39] The prison officials who transferred Farmer knew that the transferee prison had a sexually violent environment and that Farmer’s status as a feminine presenting transgender individual placed them at a heightened risk of sexual violence.^[40] Within two weeks of being transferred, Farmer was beaten and raped in their cell by another prisoner.^[41] Farmer brought a Bivens action seeking both damages and injunctive relief and alleged that prison officials violated their Eighth Amendment rights when they transferred Farmer to the federal prison in Indiana because that transfer demonstrated a deliberate indifference to Farmer’s safety.^[42] The district court granted summary judgement to prison officials and the Seventh Circuit affirmed.^[43]

The Supreme Court ultimately remanded the case to the circuit court with instructions on what the proper standard is for conditions of confinement Eighth Amendment claims.^[44] Regarding the mental state prong, the Court explained that the plaintiff must prove that the prison official was deliberately indifferent to the challenged prison condition and that deliberate indifference is just conscious disregard. Accordingly, the plaintiff must show that the official knew about and consciously disregarded harm posed by the challenged prison condition.

Regarding the objective harm prong, the Supreme Court explained that not every injury suffered by a prisoner translates into constitutional liability for prison officials.^[45] Rather, the violation must be sufficiently serious in that it results in the denial of the minimal civilized measure of life’s necessities. And that “for a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”^[46] That is, “Eighth Amendment liability requires [a showing of] consciousness of a risk” on the part of defendants. The Court further explained:

[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.^[47]

In short, Farmer importantly extends the holding of Helling, which seemed to apply only to Eighth Amendment claims seeking an injunction. Farmer clarifies that regardless of the remedy sought by the incarcerated plaintiff, if they bring a condition of confinement Eighth Amendment claim, then they must prove that an identifiable prison official was deliberately indifferent to a substantial risk of serious harm.

B. Excessive Force

Let’s now turn to excessive force claims. These involve a sentenced prisoner alleging that a prison official used force amounting to cruel and unusual punishment. The Supreme Court first developed its force test in Whitley v. Albers.^[48] In this case, a non-rioting prisoner sued various prison officials for being shot in the leg during a prison riot which was subsiding.^[49] In reversing the lower circuit court’s decision and denying liability to the plaintiff, the Supreme Court held that the plaintiff’s Eighth Amendment rights were not violated. I quote the Court at length:

The general requirement that an Eighth Amendment claimant allege and prove the unnecessary and wanton infliction of pain should also be applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged. The deliberate indifference standard articulated in Estelle was appropriate in the context presented in that case because the State’s responsibility to attend to the medical needs of prisoners does not ordinarily clash with other equally important governmental responsibilities. Consequently, “deliberate indifference to a prisoner’s serious illness or injury,” can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff or other inmates. But, in making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used . . . prison administrators are charged with the responsibility of ensuring the safety of the prison staff, administrative personnel, and visitors, as well as the “obligation to take reasonable measures to guarantee the safety of the inmates themselves.” In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance. Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.^[50]

In other words, when an incarcerated plaintiff brings an Eighth Amendment excessive force claim against a prison official, the Supreme Court assumes that the prison official was acting under haste and with little opportunity for second thoughts. The Court also assumes that it ought to be constitutionally permissible for prison officials to sometimes use force against prisoners. It is because a guard’s force ought to be sometimes constitutionally permissible that the conditions test can’t be the appropriate test for these claims. This test does not take into sufficient consideration the legitimate security concerns that a guard is assumed to be responding to when they typically use force and thus it would almost always prohibit that force. That is, a prison official’s use of force almost always involves a conscious disregard to a substantial risk of serious harm.

For these reasons, a test other than the condition test is needed, one that affords prison officials sufficient legal breathing room to use force against prisoners during disturbances. The Court believes that whatever force test it develops must be more deferential to prison officials than the conditions test: “When the “ever-present potential for violent confrontation and conflagration,” ripens into actual unrest and conflict, the admonition that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators,” carries special weight.”^[51] The majority suggests that this, “deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline.”^[52]

Accordingly, the Court crafted the excessive force standard whose mental state requirement is maliciously and sadistically for the very purpose of causing harm. A litigating prisoner must prove that it was the singular purpose of an identifiable guard to cause harm to the prisoner at the time they used force. Proving that the force was merely unreasonable is not enough. So long as a prison guard can cite any legitimate security concern as a justification for their use of force, their actions do not meet this demanding standard.

The Supreme Court delineated the objective prong of the force standard in Hudson v. McMillian.^[53] At the time of the incident, Hudson was a sentenced prisoner held in Louisiana State Penitentiary, commonly known as Angola. He claimed that he was shackled by officers McMillian and Woods as they took him to administrative isolation.^[54] During the transport, Hudson and the two officers began to argue which escalated into the officers beating Hudson: McMillian punched him in the face, chest, and stomach, while Woods held Hudson from the back and repeatedly kicked him.^[55] Mezo, the supervising officer, witnessed the entire interaction and told the other two officers “not [to] have too much fun.”^[56] Hudson suffered minor bruising, swelling, and a loose tooth.^[57] He sued alleging that the prison officials cruelly and unusually punished him.^[58]

The Fifth Circuit Court of Appeals found in favor of the prison officials because Hudson had not suffered any significant injury, which they held was required to meet the excessive force standard. In reversing that decision, the Supreme Court made two notable doctrinal moves.^[59] First, the Supreme Court extended the malicious and sadistic for the very purpose of causing harm requirement to all uses of force.^[60] In line with the majority’s remarks in Whitley, the Court noted that “many of the concerns underlying [its] holding in Whitley arise whenever guards use force to keep order.”^[61] During minor disturbances, just as during major disturbances, “corrections officers must balance the need to maintain or restore discipline through force against the risk of injury to prisoners. Both situations may require prison officials to act quickly and decisively. Likewise, both implicate the [deference] principle that [prison staff] should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”^[62] Thus whenever a sentenced prisoner alleges a prison staff’s use of force violated their Eighth Amendment rights, they must show that the force was used maliciously and sadistically for the very purpose of causing harm.

Second, the majority novelly claimed that when alleging excessive force, a prisoner need not show injury at all. Rather, they need only show that the force used was either non-trivial or trivial but repugnant to the conscience of mankind.^[63] While the extent of an injury is relevant to the constitutionality of the force, injury and force are not coextensive and it is the latter that ultimately matters.^[64] Ultimately, whether force is non-trivial or repugnant to the conscience of mankind is a contextual inquiry that is responsive to contemporary societal standards of decency.^[65] The majority cautioned, however, that not “every malevolent touch by a prison guard gives rise to a federal cause of action.”^[66]

Justice Harry Blackmun in his concurrence cautioned against conflating physical injury and force.^[67] He clarified that the prohibition of unnecessary and wanton infliction of pain applies to psychological pain, not just physical pain. Of course, the psychological pain must be non-trivial, but nothing in the Supreme Court’s Eighth Amendment jurisprudence disqualifies psychological pain from constituting cognizable harm sufficient to meet this standard. Justice Blackmun goes far to say that, “to read a ‘physical pain’ or ‘physical injury’ requirement into the Eighth Amendment [use of force standard] would be no less pernicious and without foundation than the ‘significant [physical] injury’ requirement we reject today.”^[68] For example, a guard placing a revolver in the mouth of a prisoner and threatening to blow his head off causes no physical injury but it does cause significant psychological pain sufficient to meet the objective prong of the force test.^[69]

The Supreme Court has backed Justice Blackmun’s remarks. In Furman v. Georgia, the Court explained that “the Framers [of the Eighth Amendment] also knew that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.”^[70] While “‘[t]here may be involved no physical mistreatment, no primitive torture,’ severe mental pain may be inherent in the infliction of a particular punishment.”^[71] Taking their cues from the Supreme Court, many circuit courts recognize that proving psychological pain without corresponding physical injury is enough to satisfy the objective prong of the force test.^[72]

Wilkins v. Gaddy reinforced the Court’s reasoning in Hudson.^[73] In this case, Gaddy, a North Carolina prison guard, was angered by Wilkins’s request for a grievance form and proceeded to “snatch [him] off the ground and slam[] him onto the concrete floor.”^[74] Gaddy “punch[ed], kick[ed], knee[ed], and choke[d]” Wilkins until “another officer had to physically remove Gaddy from [Wilkins.]”^[75] Wilkins claimed that as a result of the force, he sustained multiple physical and psychological injuries.^[76] The district court below dismissed Wilkins’s claim for failure to state a claim, arguing that his injuries were trivial and thus did not satisfy the objective prong of the excessive force test. The Supreme Court reversed and remanded, claiming that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he had the good fortune to escape without serious injury.”^[77] In the excessive force context, the Supreme Court noted that the “core judicial inquiry” shifts from the nature of the injury to the nature of the force.^[78] And to conclude “that the absence of some arbitrary quantity of injury requires automatic dismissal of an excessive force claim improperly bypasses this core inquiry.”^[79] Further, the Court refused to take a bright line rule on what constitutes non-trivial force. Instead, the Court instructed that courts must look to the evolving standards of decency in order to determine if the force used is trivial or non-trivial.^[80] However, the Supreme Court has noted that an “inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim."^[81]

While in many ways Wilkins simply clarifies the excessive force test from Hudson and Whitley, it also illuminates two persistent tensions in the Supreme Court’s excessive force jurisprudence. The first is that whereas force must be non-trivial or trivial but repugnant to be constitutionally offensive, it need not be severe. There is a space of constitutional impermissible force falling between non-trivial/trivial but repugnant and less than severe, a space that courts often have to decide whether a given force claim falls within. The second is that force, not physical injury, is the relevant category. While injury and force are often coextensive, they “are only imperfectly correlated, and it is the latter that ultimately counts.”^[82] It is possible for a prison official to use unconstitutional force without physically injuring the prisoner, though the presence of such an injury tends to demonstrate that the force was excessive.

What the Supreme Court does not directly address but is strongly implied by its precedent is that unconstitutional uses of force need not involve physical contact. As Justice Blackmun explained in Hudson, psychological pain without any corresponding physical pain could be enough to meet the force prong.^[83] And psychological pain often can arise without physical contact, not just without physical injury. Use of force need not involve the unlawful touching of another for it to have a chance of meeting the objective prong of the force test. It could involve causing another person to fear violence. Justice Blackmun’s example of an officer putting a revolver in a prisoner’s mouth showcases this fact. The officer’s actions would still constitute unconstitutional force if the revolver was five inches from the prisoner’s head. Therefore, while the Supreme Court has not directly addressed the matter, the best reading of its precedent is that a litigating prisoner need not show physical contact to show excessive force.

Allow me to summarize the Supreme Court’s Eighth Amendment prison-conditions jurisprudence. Legal punishment in the Eighth Amendment prison conditions context is a deliberate act intended to chastise or deter. As such, a sentenced prisoner challenging prison conditions under the Eighth Amendment must show that the conditions were intentionally caused by an identifiable prison official in order for that condition to even be considered legal punishment. When conditions of confinement are challenged, the litigant must show that a prison official was deliberately indifferent to a substantial risk of serious harm that the condition posed. When a guard’s use of force is challenged, the litigant must show that the guard used the force maliciously and sadistically for the very purpose of causing harm and the force used was non-trivial or trivial but repugnant to the conscience of mankind. While the Court has sometimes paid lip service to the state having an Eighth Amendment affirmative duty to care for its incarcerated folks, its substantive doctrinal standards tacitly deny that such a duty exists. Instead, the state is only legally responsible for known and intended dangers.

I aver that prison sexual violence will never be eradicated so long as this jurisprudence exists, and a part of why prison sexual violence persists is because of this jurisprudence. This misguided jurisprudence stabilizes and reproduces carceral sexual violence. However, I set these concerns aside in this Article. Instead, I take the Supreme Court’s jurisprudence as given and argue that lower federal courts misunderstand and misapply it to prison staff-to-sentenced prisoner sexual violence claims. The result is that prisoners raising such claims have to meet extremely burdensome and deferential doctrinal standards that are unique to sexual violence claims. Shockingly, sentenced prisoners would actually be better off if lower federal courts just followed Supreme Court precedent which requires applying the excessive force standard to sexual assault claims and conditions of confinement standard to sexual harassment claims. In the next Part, I provide an overview of sexual violence in correctional facilities then turn to lower federal court case law in Part III.

II. Overview of Carceral Sexual Violence

Sexual violence in jails and prisons is both staggering and unacceptable. Living in daily fear of sexual violence is, and always has been, a constitutive feature of someone’s time in a correctional facility. Justice Blackmun could have been speaking about today’s facilities when he said:

Prison rape not only threatens the lives of those who fall prey to their aggressors, but is potentially devastating to the human spirit. Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim thereafter must endure. . . . Unable to fend for himself without the protection of prison officials, the victim finds himself at the mercy of larger, stronger, and ruthless inmates. Although formally sentenced to a term of incarceration, many inmates discover that their punishment, even for nonviolent offenses like credit card fraud or tax evasion, degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.^[84]

Government provided numbers confirm Justice Blackmun’s remarks. The Bureau of Justice Statistics, the primary governmental body charged with releasing statistics on carceral sexual violence, reported that in the year 2019–2020 correctional administrators reported 36,264 allegations of sexual victimization in prisons, jails, and other adult correctional facilities.^[85] Of these, 2,351 were substantiated after investigation, which accounts for only 6% of the total number of allegations.^[86] In 2020, there were 9,321 allegations of prisoner-on-prisoner sexual harassment, 8,628 of staff sexual misconduct, 7,449 of staff sexual harassment, 6,370 of nonconsensual sexual acts, and 4,496 of abusive sexual contact.^[87] Only 45% of the time were victims offered counseling or mental health treatment after being sexually victimized.^[88]

Research shows that staff perpetrators of substantiated sexual victimization were more likely to be disciplined for incidents in jails (24%) than in prisons (15%).^[89] That is, nearly 85% of staff perpetrators of prison sexual violence were not disciplined. Further, as of 2022 the Federal Bureau of Prisons (“BOP”) had a backlog of 8,000 internal affair cases which led to a failure to “hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result.”^[90] This is even more appalling considering a Senate report revealed that BOP employees sexually abused female prisoners at two-thirds of federal women’s prisons over the last decade.^[91]

During 2019–2020, legal action was ultimately taken against staff perpetrators of sexual violence in 53% of jail incidents and 45% of prison incidents.^[92] That is, in less than half of the times did prison staff face legal repercussions for their sexual violence. However, these numbers do not tell the whole story of what usually happens to suits brought by sexually victimized prisoners in federal court. In 95% of these cases, incarcerated people represented themselves.^[93] Further:

About 80% of [these] cases [are] dismissed before trial. Most of these pretrial dismissals occur[] before discovery beg[ins]. Somewhere between 6% and 13% of cases settle[]. Only 0.5% of cases actually s[ee] trial, and of that tiny sum, incarcerated plaintiffs [win] trials only 12% of the time—about one-third of a typical plaintiff’s win rate in federal court.^[94]

Thus, even if sentenced prisoners file legal action 45% of the time when they are sexually victimized by prison staff, the likelihood of them having their claims heard before a judge/jury or winning is extraordinarily slim. As Professor Sharon Dolovich explains, “for incarcerated plaintiffs to prevail on the merits typically requires glaringly indefensible treatment, highly questionable official justifications, dedicated and adept lawyers committed to pressing plaintiffs’ claims, and courts open to taking those claims seriously.”^[95]

Further, these statistics fail to capture the fact that incarcerated individuals often do not report their sexual victimization to correctional staff who are often the ones sexually abusing prisoners. Speaking out too can entail further sexual violence, torture, or even death.^[96] Reporting requires faith in a correctional administrative system which systematically fails victims. Sexual violence in correctional settings is much like sexual violence in the free world in that regard. In 2022, only 21% of sexual assaults in the free world were reported to the police.^[97] Much like prison officials, police officers have a lamentably long history of sexual violence, with one study showing that police sexual misconduct is the second most reported form of police misconduct after excessive force.^[98] Finally, government provided statistics do not capture the depth of sexual terror sexually victimized prisoners experience.

For example, historically, some U.S. correctional facilities had entire sex slave markets where younger, weaker prisoners were sold as sex slaves to older, stronger prisoners or to prison gangs.^[99] As a “slave,” a prisoner’s “body and services could be bought and sold within an internal slave market.”^[100] They are forced to be the “domestic servant[s]” where their “master” can sexually assault them at will and the “slave” is effectively the “housewife” of the “master.”^[101] As one individual remarked, they are expected to be good housewives and “take off [their] old man’s clothing, fix the beds, prepare meals, bust pimples in [their] face and give massages.”^[102] This form of sex slavery was poignantly described by Justice Blackmun:

A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well. Even more appalling is the fact that guards frequently participate in the brutalization of inmates. The classic example is the beating or other punishment in retaliation for prisoner complaints or court actions.^[103]

Paul Phelps, a former correctional officer in Louisiana, explained:

Sex and power go hand in hand in prison. Deprived of the normal avenues, there are few ways in prison for a man to show how powerful he is and the best to do so is for one to have a slave, another who is in total submission to him.^[104]

If a victim tries to report their abuser, they will often be tortured or killed. The only way for them to free themselves from being enslaved is through lethal force.^[105] “Fight or fuck” are usually the only options.^[106]

Even when correctional facilities are not characterized by sex slave networks, sexual violence could still be epidemic. For example, on January 15, 2025, the Department of Justice released its findings of their investigation into Alvin S. Glenn Detention Center in Columbia, South Carolina (“ASGDC”).^[107] The investigation concluded that conditions at ASDGC violated the Eighth and Fourteenth Amendment rights of the incarcerated. It revealed a breathtaking level of violence between incarcerated folks worsened by overcrowding, official neglect, and understaffing.^[108] In one incident, the nurse at the facility learned about a detainee being killed only after a friend of the nurse’s on the outside notified them of a Facebook Live video of other detainees reporting the murder.^[109] The report also uncovered a pervasive culture of unaddressed detainee-on-detainee sexual violence.^[110] Because of the chronic understaffing—where ASDGC has more job postings for guards than employed guards—there is often no staff on cell blocks when sexual assaults occur. ASGDC staff also failed to follow the screening practices, involving assessment of sexual risk, mandated by federal law.^[111] One case is instructive: upon admission to the facility, someone requested protective custody and ASGDC’s initial screening identified six “victim factors” for them, three more than necessary to deem them a “Potential Victim” for classification purposes.^[112] ASGDC negated his potential victim status without explanation.^[113] Shortly after, the individual’s cell mate forcibly raped him three times over a two-day period. ASGDC records noted that the victim attempted to tell staff about the rapes but “no one listened to him.”^[114] The victim cut himself in order to be placed on suicide watch, in a unit away from his attacker.^[115] Less than a week after being treated for injuries sustained during the first rape, the victim was raped again.^[116] This time, he was assaulted after he failed to have his mom send him $200, a demand made by two knife wielding individuals.^[117] The victim reportedly told an officer the day after the attack, but the officer did not respond.^[118] The victim again resorted to telling an officer he was suicidal in order to be placed on suicide watch, where he reported the rape.^[119]

The DOJ’s report on ASGDC is strikingly similar to its 2024 report on Georgia Department of Corrections. According to Assistant Attorney General Kristen Clarke, the report revealed:

[L]ong-standing, systemic [legal] violations stemming from complete indifference and disregard to the safety and security of people Georgia holds in its prisons. People are assaulted stabbed, raped and killed or left to languish inside facilities that are woefully understaffed. Prisoners are maimed and tortured, relegated to an existence of fear, filth and not so benign neglect.^[120]

Georgia did not make timely or accurate classification assignments, leaving housing assignments to be made by violent prison gangs.^[121] Likewise, a 2022 DOJ report on prison conditions at three Mississippi prisons revealed systematic Eighth and Fourteenth Amendment violations.^[122] Like Georgia, Mississippi prison gangs effectively co-ran the prisons, including making housing assignments and inflicting “significant sexual violence” on other prisoners, but its true extent cannot be ascertained because “most of the sexual assaults occurring . . . are not reported.”^[123] In one incident, an individual was transferred to South Mississippi after gang members stabbed him multiple times, raped him with a piece of pipe, and put a “kill on site” order on him.^[124] Despite requesting protective custody upon arriving at South Mississippi, he was placed in general population with known gang members.^[125] Shortly after, while “using the bathroom, someone held a lock-blade knife to his neck, escorted him into the shower, and raped him.”^[126] The victim believed that the attack was planned “because gang members lined up around the bathroom to stop anyone from coming in while he was being assaulted.”^[127]

While female correctional staff have a long history of sexually abusing incarcerated males (as the cases discussed below will reveal), male correctional staff also have a long history of sexually abusing incarcerated women. In 2019, a bipartisan investigation of staff sexual abuse against incarcerated women revealed that four facilities in particular had an egregious pattern of violence.^[128] One of these facilities was FCI Dublin, a federal prison in California known as the “rape club” because of how constitutive staff rape was to the very culture of the institution. The report found that allegations against members of the mostly male staff at the rape club were ignored.^[129] In fact, officials who were supposed to prevent and investigate sexual misconduct, including Prison Rape Elimination Act compliance officers, were themselves sexually abusing women.^[130] The warden, too, “kept nude photos on his government-issued cell phone” of a woman he was accused of assaulting.^[131] Even the chaplain at the rape club sexually abused women for which he received a mere eighty-four month sentence and five years of supervised release.^[132] In response to this federal investigation, Senator Jon Ossoff lamented that the findings were “deeply disturbing and demonstrate, in [his] view, that the BOP is failing systemically to prevent, detect, and address sexual abuse of prisoners by its own employees.”^[133]

At a Senate hearing on the report, Briane Moore testified about her abuse at FCP Alderson, a federal prison in West Virginia. She explained:

The captain had total power over me, and he knew that. He knew I had no control and could not say no. The captain made sure I knew that and made sure I knew he could make things worse for me. Even before his threat, I knew that if I reported him, I could be placed in solitary or shipped out to another prison even further away from my family. The prison system calls this ‘protection’ because it separates us from the abuser. But it is a punishment. It is retaliation. I saw it happen to other women in prison, and I knew that I would be punished unless I endured sexual abuse. I had to not help myself to help myself.^[134]

Moore is right: prison staff often place victims in solitary confinement or transfer them to another facility in the name of protection, but this often has the opposite effect. For one, placement in solitary and prison transfers burden the communication between victims and their attorney, jeopardizing any legal action the victim may want to take against the sexually abusive guard. For another, solitary and transfer can cause acute psychological and physical suffering. Obviously, isolation does this, but so can transfers. A prisoner can constitutionally be transferred to any jail/prison facility (save supermax) no matter how relatively violent or remote the prison is without a prior procedural due process hearing.^[135] When incarcerated folks are sent far from their home jurisdiction, there, often poor, families cannot see them. Additionally, not all correctional facilities have the same programming or services, both of which are critical to early release. A prisoner has no constitutional right to remain at a facility with robust early release programming and thus can lose whatever hope they had for early release if they are transferred. This is not to even mention the wide variation in mental health and substance abuse treatment in facilities and how transfers can impact someone’s access to that treatment. Lastly, correctional staff are usually close-knit communities such that the correctional officer supervising the isolated prisoner could know about the allegations the prisoner made against one of their fellow staff members. This could lead to retaliation, especially considering isolated prisoners sometimes rely on their supervising guards to facilitate interactions with grievance administrators.^[136]

Women in California Central Women’s Facility (“CCWF”), the second largest women’s prison in the United States, were also being sexually victimized at the same time Briane Moore was. Gregory Rodriguez, a correctional officer at CCWF since 1995, was suspected of sexually abusing twenty-two women during his tenure.^[137] His abuse had a pattern: first, he would verbally sexually harass the woman, then summon her to isolated areas without cameras, often falsely claiming they had appointments or work assignments.^[138] He would then rape them. Sometimes he would offer tobacco or gum in exchange for sex and other times he threatened to discipline or transfer them if they did not comply.^[139] In 2014, an incarcerated woman filed a complaint against Rodriguez—one of the hundreds of complaints that women incarcerated in California filed between 2014–2023 which resulted in only four terminations—but she was ultimately placed in solitary and transferred to another prison.^[140] Facing ninety-seven counts of sexual abuse charges, Rodriguez was ultimately convicted of sixty-four.^[141] His victims, many of whom are still incarcerated, had to testify in chains.^[142]

In 2019, fourteen women incarcerated at Coleman Federal Correctional Institution in Sumpter County, Florida, filed a lawsuit claiming they were subject to “unending sexual abuse and threats.”^[143] They claimed that several officers, who were known sexual predators, were given unrestricted and unsupervised access to female prisoners, resulting in rampant and unchecked sexual abuse.^[144] Officers would sexually violate women after taking them to secluded woods near the facility.^[145] Officers monitored their phone calls and emails, telling them they knew where their families lived and tried to force several women to take birth control pills.^[146] One officer said, “you know they accused me of rape before, but they’re never going to believe you.”^[147] The offending officers even monitored the plaintiffs’ conversations with attorneys.^[148] One woman had been “raped punctually every Wednesday for six months.”^[149] Officers even admitted under sworn testimony to raping women at Coleman but were given the opportunity to retire and resign, and some continued to receive benefits after.^[150] One plaintiff, Kara Guggino, claimed that during her eight-year term of incarceration, she was at six different facilities and witnessed rampant sexual abuse at every single one.^[151] She was repeatedly put in solitary confinement for reporting sexual abuse by staff.^[152] She initially refused to cooperate with the Department of Justice during their investigation of Coleman out of fear of retaliation: a guard showed her her family’s home on a map, suggesting he would hurt her family should she talk to the investigators.^[153] After the investigators threatened to keep her in solitary confinement for the rest of her sentence (five years) unless she cooperated, she finally acquiesced.^[154]

One common way Coleman officers kept women quiet was transferring them to Sumter County Detention Center which had a devastating impact on the women:

None of their possessions and none of their commissary funds transferred with them, stranding them without any money. They couldn’t participate in programs that shaved time off their sentences. They also disappeared from the BOP website, since they were technically not in BOP custody, leaving their families with no idea where they were.^[155]

This is what happened to Carleane Berman, another woman sexually abused at Coleman. Sentenced to two-and-a-half years for her involvement in a drug ring in Miami, her fellow incarcerated women warned her shortly after her arrival: “if [she saw] anything, hear[d] anything, something happens to [her], then not to speak, don’t tell, don’t say anything, don’t ask questions, because [she will] end up in a worse situation than what [she] was already in.”^[156] Ultimately she was raped several times by various guards, sometimes by several guards at the same time.^[157] When PREA compliance auditors showed up to inspect the facility, Berman and other victims were transferred to Sumter Detention Center, preventing them from being interviewed by the auditors. The auditor noted that “many of the offenders who reported abuse over the applicable audit period were no longer housed at [Coleman].”^[158]

Congress, for its part, passed the Prison Rape Elimination Act (“PREA”) in 2003 with the express purpose of eliminating sexual violence in correctional facilities.^[159] This grant program uses a variety of mechanisms to create zero tolerance for sexual victimization in prisons, including: data collection; grants to states conditioned on compliance and the diminution of federal criminal justice assistance for noncompliance; technical assistance to states to improve their penal practices; and the development of national standards.^[160] Particularly, PREA requires states to train correctional staff on identifying and responding to sexual abuse allegations; screen prisoners upon intake for their risk of sexual victimization and reassess risk assessment usually within thirty days; eliminate any time restraints on filing a sexual abuse related grievance; and employ a PREA compliance officer at each correctional facility. Note, as a grant program, states are not required to comply with PREA. In 2025, only twenty-five states and the District of Columbia were in full compliance with PREA.^[161]

As one journalist notes, PREA is “mostly toothless” and often a “bad joke.”^[162] While rampant corruption and wholesale disregard for the statute contributes to its being a bad joke, its toothlessness is grounded in it not affording prisoners a private cause of action.^[163] The mere fact that prison officials fail to comply with PREA standards cannot itself form the basis of a prisoner’s federal cause of action because PREA does not confer on prisoners any rights. So, when a prisoner experiences sexual violence because they were inappropriately screened per PREA standards, the mere fact that officials violated PREA cannot serve as a basis for the prisoner’s claim. Plaintiffs must show that officials violated some other legal provision (e.g. Eighth Amendment) to bring suit in court. Sometimes, non-compliance with PREA could serve as evidence demonstrating the alleged underlying constitutional or tort violation.^[164]

III. Prison Staff-to-Sentenced Prisoner Sexual Violence

To understand why there is so much sexual violence in prisons and why it often goes unchecked, one must understand the constitutional landscape on which sexually victimized prisoners tread. In federal court this landscape is principally shaped by the Eighth Amendment. Thus, I delineate the Eighth Amendment doctrinal standards that lower federal courts apply to Eighth Amendment prison staff-to-sentenced prisoner sexual violence claims, showing the plethora of splits, inconsistencies, and downright confusions that abound.

Two notes are in order. First, the following is the definition of prison sexual abuse I use throughout the Article: a prison official sexually abuses, sexually victimizes, and/or sexually violates a sentenced prisoner when the official engages in conduct with the intent to sexually gratify themselves, coerce the prisoner to submit to or participate in a sexual act and/or sexually humiliate, degrade, or demean the sentenced prisoner. Notice, the definition adopted here is an intentionalist one whereby the intent of the perpetrator matters to whether their actions constitute sexual violence. This may seem misguided given that, intuitively, a guard can sexually victimize a prisoner without intending to do so. The idea is that official conduct could count as sexual violence either because of the intent of the perpetrator or the impact of the conduct on the prisoner. There is more than a kernel of truth in this understanding of sexual violence. It captures the irreducible importance of the victim’s lived experience on what happened to them when determining whether they were sexually violated (e.g., that the victim did not consent to the sexual interaction may be reason enough to categorize it as sexual abuse regardless of the intent of the perpetrator). However, for the purposes of this Article, I adopt the cramped intentionalist definition for the simple reason that I want to hew as closely as possible to the Supreme Court’s Eighth Amendment prison conditions jurisprudence.

Here is the idea. From Wilson, we know that the Supreme Court considers only those prison conditions which were intended by a prison official to be part of prisoners’ legal punishment.^[165] The impact of prison conditions, including official misconduct, on the sentenced prisoner does not matter at all as to whether it is legal punishment, though it does matter as to whether it is cruel and unusual punishment. Thus, adopting a definition of sexual abuse which categorizes official misconduct without problematic intent as sexual abuse would effectively mandate a reimagining of the Supreme Court’s definition of legal punishment. Unless that reimagining happened, sexually victimized prisoners would not be able to challenge “intention-less-but-impactful” official sexual misconduct under the Eighth Amendment. It would not even count as punishment. Of course, as I mentioned in the introduction, reimagining the Court’s Eighth Amendment case law should happen. The Supreme Court is simply incorrect in how it understands legal punishment and cruel legal punishment. Prison sexual violence will never be eradicated under the Supreme Court’s prevailing prison conditions jurisprudence. Nonetheless, my purpose in this Article is not to radically reimagine this jurisprudence. It is rather to show that lower federal courts depart from that jurisprudence in ways disempowering to incarcerated individuals. As such, the project here necessitates an intention-based definition of sexual abuse.

Prison staff-to-sentenced prisoner sexual abuse encompasses at least two distinct kinds of sexual abuse: sexual assault and non-assaultive sexual harassment.^[166] Both kinds of abuse consist of conduct intended to sexually gratify the prison official, coerce the prisoner to submit to a sexual act, and/or sexually demean the prisoner. Sexual assault is distinguished for involving physical contact or the threat of imminent adverse actions against the victim prisoner unless they acquiesce to the advances of the prison guard. Non-assaultive sexual harassment occurs when the sexual misconduct does not involve physical contact or the threat of imminent adverse action against the victim prisoner. For example, suppose a guard verbally berates a prisoner by commenting on their penis size, but the guard’s conduct does not include physical contact, nor the threat of imminent adverse action against the victim prisoner. Under the definitions here, the guard’s conduct constitutes non-assaultive sexual harassment. However, suppose the guard beckons the prisoner to a remote part of the prison under the pretense of a work assignment. Once there, the guard threatens to transfer the prisoner to another facility unless they have sex with the guard. Under the definitions here, this would be sexual assault.

Admittedly, the distinction between sexual assault and non-assaultive sexual harassment is not analytically airtight and a given instance of sexual victimization will often contain both forms of misconduct, problematizing any effort to tease them apart. This is especially true in the prison context where sexual violence is usually a mix of both sexual assault and sexual harassment, and as a result, plaintiffs sometimes allege both when bringing an Eighth Amendment sexual abuse claim. For example, voyeurism by prison staff, which is a particularly persistent problem in correctional facilities, can contain sexual harassment and sexual assault. This is because voyeurism can involve behavior which the prisoner may perceive as involving a threat of imminent adverse actions unless they acquiesce (e.g., do not raise issue with it). In these difficult cases, it will be up to the factfinder to determine how to characterize the sexual misconduct. At any rate, I distinguish sexual harassment and sexual assault only because it helps elucidate the case law and many courts make a similar distinction. For the purposes of this Article, all references to prison sexual abuse, sexual violence, and/or sexual victimization refer to only these two kinds of abuse.

The second preliminary note is that, while I will at times discuss sentenced prisoner-to-sentenced prisoner, sentenced prisoner-to-detainee, detainee-to-detainee, and staff-to-detainee sexual abuse, none of these are the focus of this Article. Rather, the focus is on prison staff-to-sentenced prisoner sexual abuse. Of course, the absence of discussion of the other kinds of prison sexual abuse should not be interpreted as a devaluation of them. Pretrial detainees are often incarcerated alongside sentenced prisoners^[167] and sexually victimized by the very same guards that victimize the latter (though detainees are subject to differing constitutional standards than sentenced prisoners).^[168] Moreover, sentenced prisoner-to-sentenced prisoner sexual violence is a persistent, serious issue in carceral facilities, greatly contributing to the ever-present sexual vulnerability that prisoners find themselves in. Any form of sexual violence in carceral facilities is reprehensible and offends the basic dictates of justice. Ultimately, the absence of discussions of these kinds of sexual violence is grounded in the desire to deeply excavate the perilous Eighth Amendment landscape faced by sentenced prisoners and the way our state officials routinely violate their dignity. Depth is a guiding value of this Article, even if it comes at the cost of breadth.

A. Prison Staff-to-Sentenced Prisoner Sexual Assault

The Supreme Court has never resolved an Eighth Amendment prison staff-to-sentenced prisoner sexual assault claim. Circuit courts have and the best summary of the case law is that it is downright confused.

The Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits apply the Supreme Court’s excessive force standard: malicious and sadistic for the very purpose of causing harm and non-trivial force and/or trivial force which is repugnant to the conscience of mankind.^[169] The Sixth Circuit applies the non-trivial force prong of the force standard but has not specified the mental state requirement.^[170] For these circuits, the sexual assault need not involve intentional sexual contact to be unconstitutional. Rather, even the threat of physical contact or conduct which threatens imminent adverse actions unless the prisoner acquiesces to the guard’s advances could constitute unconstitutional sexual assault.

The Second Circuit, in Boddie v. Schnieder^[171] and Crawford v. Cuomo,^[172] developed an influential heightened excessive force standard specifically for sexual abuse, including sexual assault, claims. This standard holds that prison staff-to-sentenced prisoner sexual abuse is cruel and unusual punishment only when the guard acted maliciously and sadistically and the conduct involved severe or repetitive sexual injury and/or contact. Importantly, the Second Circuit suggests that this standard applies to all allegations of prison staff-to-sentenced prisoner sexual abuse, including sexual harassment. Accordingly, in the Second Circuit, the only kind of sexual abuse which violates the Eighth Amendment is abuse which the prisoner can prove caused severe or repetitive sexual injury and/or contact.

The Third Circuit has adopted the Boddie/Crawford standard in full.^[173] The Fifth Circuit has adopted a modified Boddie/Crawford standard, requiring a showing of deliberate indifference to severe or repetitive physical injury/contact.^[174] The First Circuit has not squarely addressed the issue, but some district courts apply a deliberate indifference to severe or repetitive sexual contact/injury standard in line with the Fifth Circuit^[175] while others apply the malicious and sadistic and severe or repetitive sexual contact/injury in line with Boddie/Crawford.^[176] The Fourth Circuit has not squarely adopted the Boddie/Crawford standard but it has adopted the Second Circuit’s restrictive definition of unconstitutional sexual abuse which requires sexual contact.^[177] In what follows, I unpack Boddie and Crawford; critique the standards these cases establish; and argue that the Ninth Circuit and Tenth Circuit are properly applying the Supreme Court’s excessive force standard to sexual assault claims.

Boddie was incarcerated at Green Haven Correctional Facility in New York when the incidents underlying his Eighth Amendment claim occurred.^[178] Boddie maintained that Schnieder, a female officer, flirted with him, squeezed his hand, grabbed his penis and said “You know your [sic] sexy black devil, I like you.”^[179] Boddie also alleged that Schnieder told him to take off an orange sweatshirt that he was wearing to which Boddie resisted, stating that he was a cardiac patient; the hallway was cold; and that he would give the sweatshirt to her when he returned to his cell.^[180] As Boddie walked past Schnieder, she stopped him and pressed her breasts against his chest.^[181] Boddie claimed that Schnieder did this twice and that on the second time she bumped into him intentionally putting her genitals against his.^[182] Boddie alleged that Schnieder and another officer falsely wrote Boddie up for his refusal to take off his orange sweatshirt out of retaliation for his refusing Schnieder’s passes on him.^[183] Lastly, Boddie contended that another officer, Robertson, grabbed him, pushed him in the chest, and aggressively elbowed him several times.^[184]

Boddie sued alleging that Schnieder and Robertson used excessive force when they sexually and physically assaulted him, respectively, thereby violating his Eighth Amendment rights.^[185] He also alleged his constitutional rights were violated when the prison officials submitted a false behavior report. The Second Circuit affirmed the district court’s dismissal of all claims.^[186] First, regarding the latter claim, the Second Circuit noted that prisoners do not have a constitutional right to be free from false accusations in a correctional misbehavior report.^[187] Second, in affirming the district court’s ruling on the sexual abuse Eighth Amendment claim, the circuit court adopted a strict excessive force standard.^[188] While the court adopted the malicious and sadistic standard for the mental state requirement, it also claimed that the prisoner must show that they suffered severe injury, either because the singular sexual injury or multiplicity of sexual injuries were severe.^[189]

Boddie’s severe injury requirement was dispositive in the case. The Second Circuit claimed that no single injury, nor the injuries taken together, were severe enough to meet the standard.^[190] While “the isolated episodes of harassment and touching alleged by Boddie are despicable and, if true, they may potentially be the basis of state tort actions . . . they do not involve a harm of federal constitutional proportions as defined by the Supreme Court.”^[191] Similarly, the Second Circuit ruled that Boddie’s Eighth Amendment claim against Robertson was properly dismissed in the court below because he did not show that the guard acted maliciously and sadistically for the very purpose of causing harm.^[192]

The heightened standard articulated in Boddie was softened in Crawford v. Cuomo.^[193] In that case, a male prison guard, Simon Prindle, was accused of sexually violating several prisoners. On one occasion, while Mr. Corley, one of the plaintiffs, was visiting with his wife, Prindle ordered him out of the visiting room and proceeded to search him. During the search, Prindle said that “he was going to make sure Mr. Corley did not have an erection.”^[194] Prindle proceeded to fondle his penis and when Mr. Corley jumped off the wall, Prindle threatened him and forced him back on it.^[195] Four days after this incident, Prindle fondled James Crawford, another plaintiff, during a search. When Crawford jumped off the wall, Prindle pushed his “knee into Crawford’s back, pinning him to the wall” and told him to “stay on the fucking wall” if Crawford did not want Prindle to “ram his head into the concrete.”^[196] Prindle threatened to put Crawford in isolation should he resist the search, even saying that “you don’t have any rights in here. . . . I’ll run my hands up the crack of your ass if I want to.”^[197] There were also at least twenty other grievances against Prindle, one of which claimed that he told one prisoner that he had “seen a little boy like [them] before on the internet” or that he had seen their penis.^[198]

Several individuals sued alleging that Prindle, the Superintendent William P. Brown, and other prison staff violated their Eighth Amendment rights. While the district court dismissed their claims on the basis of Boddie’s severe injury requirement, the Second Circuit reversed and remanded.^[199] The court claimed that while the harm suffered by a prisoner alleging sexual assault must be severe or repetitive, it need not involve “physical injury, penetration, or direct contact with uncovered genitalia.”^[200] Rather, “[a] corrections officer’s intentional contact with an inmate’s genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth Amendment.”^[201] Accordingly, “a single incident of sexual abuse, if sufficiently severe or serious, may violate an inmate’s Eighth Amendment rights no less than repetitive abusive conduct.”^[202]

The Second Circuit clarified that Boddie was still good law but that “its applicability must change as the basic mores of society changes.”^[203] Courts must “look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society” when determining whether the alleged contact was sufficiently severe.^[204] Borrowing from the Supreme Court’s death penalty jurisprudence, the Second Circuit explained that determining contemporary standards of decency involves assessing “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.”^[205] For example, when the Supreme Court implemented a death penalty moratorium in Furman v. Georgia and when it reversed that moratorium four years later in Gregg v. Georgia, the Court in both instances based its decision on its assessment of contemporary standards of decency which, in turn, was based on legislative enactments.^[206] When the Court outlawed state execution of the mentally disabled,^[207] juveniles,^[208] and the imposition of life without the possibility of parole on juveniles,^[209] it did so explicitly on the basis of its assessment of the national consensus on such matters. Similarly, the Crawford court concluded that severe or repetitive sexual contact between staff and prisoners offends evolving standards of decency partially because of the sizable number of states which criminalized such contact.^[210]

Nevermind how the Supreme Court’s, and Crawford’s, way of measuring the cruelty of punishments betrays the original meaning of the Eighth Amendment.^[211] It certainly betrays at least one reason the Amendment was included in the Bill of Rights: to be a bulwark against the excesses of the majority. Affording the criminally convicted constitutional protection against a vengeful majority who may desire to enact indescribable punishment on the convicted is arguably one purpose of the Amendment. That purpose seems markedly at odds with the Supreme Court’s and Crawford’s practice of determining whether a punishment is cruel based on the consensus opinion of that very vengeful majority.^[212]

Be that as it may, Crawford makes clear that while injury or direct contact with genitalia is not required to make out an Eighth Amendment sexual assault claim, contact of some kind is. And this contact must be either severe or repetitive to be unconstitutional. In fact, the language of Crawford suggests that severe or repetitive sexual contact is required for official conduct to count as sexual abuse at all.^[213] So, while Crawford softened the blow of Boddie by backing off the necessity of injury and direct contact with genitalia in defining sexual abuse and when making out an Eighth Amendment claim, it kept Boddie’s emphasis on the severity or repetitiveness of the offensive contact.

Before critiquing Crawford, I want to note that the decision is not completely off the mark from how federal courts should be applying the Supreme Court’s excessive force standard. In fact, Crawford comes close to getting it right. For one, Crawford suggests that plaintiffs presumptively meet the malicious and sadistic mental state requirement of the force standard by showing that the guard contacted the plaintiff with intent to sexually gratify themselves.^[214]

For another, Crawford at times suggests that the entire analysis of whether a defendant guard violated the Eighth Amendment in sexual assault cases—and not just whether they met one prong of the excessive force standard—turns on “whether the [alleged] contact is incidental to legitimate official duties . . . [or] whether it is undertaken to arouse or gratify the officer or humiliate the inmate.”^[215] This assertion is followed by a cite to Whitley, the paradigmatic excessive force case, which says that Eighth Amendment analysis turns on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”^[216] As I will argue later, this is ultimately the correct posture federal courts should take when evaluating Eighth Amendment staff-to-prisoner sexual violence claims: the plaintiff presumptively meets the relevant standard by proving the guard acted with intent to sexually gratify themselves.

However, where Crawford goes off the rails is in its misunderstanding of the Supreme Court’s excessive force standard and its definition of sexual abuse. By requiring incarcerated plaintiffs alleging sexual assault by prison staff to show that the assault consisted of severe or repetitive sexual physical contact, Crawford notably heightens the burden carried by plaintiffs. The Supreme Court’s excessive force standard, the standard that should be applied to these claims, requires a showing of non-trivial force or trivial force that is repugnant to the conscience of mankind. Accordingly, staff-to-prisoner sexual assault need not be severe, repetitive or involve physical contact to meet this standard. As the Seventh Circuit has explained:

An unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the force exerted by the assailant is significant. (citations omitted). Indeed, sexual offenses need not involve any touching—think of indecent exposure, voyeurism, and child pornography that does not depict sex acts.^[217]

A guard’s attempted rape of a sentenced prisoner which involves no physical contact would presumably not meet the Crawford standard, but would meet the non-trivial force prong of the Supreme Court’s excessive force test. Or, when a guard threatens harm to a prisoner unless they perform a sexual act but where the threat does not involve physical contact that action violates the Court’s force test but presumably not Crawford. Crawford also misunderstands the definition of sexual abuse. By defining sexual abuse in terms of severe or repetitive sexual contact, the Second Circuit disqualifies a significant subset of sexual abuse, notably non-assaultive sexual harassment, from even being capable of counting as cruel punishment.

Circuit courts should follow the Ninth and Tenth Circuits for they accurately apply the Supreme Court’s excessive force standard to sexual assault claims.^[218] These circuits recognize that the Supreme Court’s reasons for developing the excessive force standard as articulated in Whitley—that a prison guard’s typical use of force responds to a potentially life threatening disturbance requiring them to act with haste while balancing legitimate penological interests such as safety and security—do not apply to prison staff-to-sentenced prisoner sexual assault claims.^[219] As the Ninth Circuit has explained: “[t]he same concerns [justifying the creation of the excessive force standard] are not present when officers are accused of engaging in conduct for their own sexual gratification or to humiliate or degrade inmates.”^[220] As such, the degree of deference towards prison staff baked into the Court’s disturbance-orientated excessive force standard does not apply to prison staff-to-sentenced prisoner sexual assault claims. No judicial deference is owed to prison officials when their conduct serves no legitimate penological interest. And the Supreme Court, particularly Justice Harry Blackmun, has been emphatically clear: “[prison sexual violence] serves absolutely no penological purpose”^[221] and “is simply not ‘part of the penalty that criminal offenders pay for their offenses against society.’”^[222]

In light of this distinction between sexual assault excessive force claims and disturbance-orientated excessive force claims, the Ninth and Tenth Circuits have adopted the following rule. While the excessive force standard applies to sexual assault claims, a plaintiff presumptively meets the standard by showing that the alleged sexual assault in fact occurred. That is, there is a presumption the defendant acted maliciously and sadistically, and the force used was non-trivial when the plaintiff proves that the underlying sexual assault occurred.^[223] The burden then shifts to the defendant to show that the conduct was not coercive and actually served legitimate penological interests. The requirements of the excessive force standard do not so much evaporate as they are presumed satisfied by proof of the sexual assault. As the Ninth Circuit explains, “where an inmate can prove that a prison guard committed a sexual assault, we presume the guard acted maliciously and sadistically for the very purpose of causing harm, and the subjective component of the Eighth Amendment claim is satisfied . . . [a]ny sexual assault is objectively ‘repugnant to the conscience of mankind’ and therefore not de minimis for Eighth Amendment purposes.”^[224] The defendant will almost never be able to carry its burden because sexual assault never serves any legitimate penological interest. As such, in the vast majority of cases by proving sexual assault occurred, an incarcerated plaintiff thereby proves they were cruelly and unusually punished.

Importantly, the Ninth Circuit has adopted a more accurate definition of sexual abuse than the Second Circuit, thereby capturing a host of sexual assault claims that the latter leaves out. The Ninth Circuit claims that “a prisoner presents a viable Eighth Amendment claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.”^[225] Notice, unlike Crawford, there is no requirement that the alleged sexual abuse/assault involve physical sexual contact nor be severe or repetitive. Similarly, the Tenth Circuit explains that, “absent contrary guidance from the Supreme Court, we think it proper to treat sexual abuse of prisoners as a species of excessive-force claim, requiring at least some form of coercion (not necessarily physical) by the prisoner’s custodians.”^[226] While I disagree with the Tenth Circuit that sexual abuse must involve coercion to be unconstitutional (e.g., verbal sexual harassment need not involve coercion to be unconstitutional and should be adjudicated under the conditions standard), I agree that sexual assault must involve some form of coercion but the coercion need not involve physical contact or be severe or repetitive.

There is then a rarity in incarceration law: if lower federal courts just faithfully applied the Supreme Court’s Eighth Amendment prison conditions jurisprudence—which involves applying the excessive force standard in the burden-shifting way described above to staff-to-prisoner sexual assault claims—sentenced prisoners would actually be marginally better off. Proving sexual assault is still an arduous undertaking thus there is no mistaking that incarcerated plaintiffs still bear a difficult evidentiary burden. Nonetheless, it is marginally easier for plaintiffs to prove that a sexual assault occurred than it is for them to directly prove the prongs of the excessive force standard.

B. Prison Staff-to-Sentenced Prisoner Sexual Harassment Claims

Similar to prison staff-to-sentenced prisoner sexual assault claims, the Supreme Court has never decided an Eighth Amendment claim involving prison staff-to-sentenced prisoner non-assaultive sexual harassment—verbal expressions, gestures, taunts, etc. Lower federal courts have, and their jurisprudence is similarly misguided. The general rule is that non-assaultive sexual harassment almost never by itself constitutes cruel and unusual punishment.^[227] One court went so far to say that it trivializes the Cruel and Unusual Punishment Clause to believe that sexual harassment of any kind constitutes a constitutional wrong.^[228] The result of this near consensus at the lower federal court level is that generally prison officials can say almost anything to any prisoner at any time for any reason at any frequency and the prisoner is not cruelly and unusually punished. Similarly, prison officials can generally expose any part of their body, or make any kind of gesture they want, to any prisoner at any time for any reason and it likely does not constitute cruel and unusual punishment. Should the victim bring an Eighth Amendment claim, it probably would not even survive a motion to dismiss. The reason for this consensus is that lower federal courts ordinarily do not think that non-assaultive sexual harassment satisfies the conditions of confinement standard, particularly the substantial risk of serious harm prong. Notably, in rare circumstances, some courts have held that extreme non-assaultive sexual harassment violates the Eighth Amendment, but in those cases the harassment usually caused some kind of physical injury.^[229]

I want to draw attention to case law in the Ninth Circuit and District Court for the District of Columbia. The former applies a unique but unconstitutional standard to sexual harassment claims, while the latter is on the right track on how it applies Supreme Court case law.

The Ninth Circuit has two lines of precedent. One holds that sexual harassment cannot, by itself, constitute cruel and unusual punishment,^[230] while another holds that it can when it is calculated to, and in fact does, cause psychological suffering and is unusually gross even for a prison setting.^[231] It seems that Keenan v. Hall, the Ninth Circuit case explicitly adopting the latter standard, implicitly softened Oltrazewski v. Ruggiero, the Ninth Circuit case adopting the former standard. While the Oltrazewski court clearly stated vulgar language is not actionable under 42 U.S.C. § 1983, the Keenan court interpreted Oltrazewski to have held that generally vulgar language is not actionable. This, I surmise, is a tacit softening of Oltrazewski.

Be that as it may, neither district courts within the Ninth Court nor the Ninth Circuit itself consistently apply the Keenan standard.^[232] Consider Austin v. Terhune.^[233] Austin, who was held in a California state prison at the time of the incident, alleged, and the court took as true, that a prison official called him a “punk bitch,” “mother fucker,” and threatened to “come down out of [the] control booth and kick Austin’s ass.”^[234] While still in the security booth, the official “exposed his penis to Austin who is Black, and said, ‘come suck this white dick, boy,’ while shaking his exposed penis to Austin.”^[235] The guard had exposed himself for thirty to fourty seconds.^[236] While Austin submitted numerous grievances to prison staff, they were ignored and Austin was ultimately placed in solitary confinement for six weeks after being accused of lying about the incident by the guard who exposed himself. Eventually, prison staff learned that the guard did in fact expose himself and suspended the officer without pay for thirty days.^[237] While the Ninth Circuit reversed the district court’s grant of summary judgement to the prison official on the retaliation claim, it affirmed the court’s grant of summary judgment to the guard on the Eighth Amendment sexual harassment claim. In doing so, the Ninth Circuit inexplicably did not cite Keenan at all but rather cited Blueford v. Prunty.^[238] Falling in the Oltrazewski line of cases, Blueford held that a prison guard who engaged in vulgar same-sex trash talk with prisoners was entitled to qualified immunity.^[239] Had the Keenan test been applied in Terhune it seems obvious that the guard would have been found liable for violating Austin’s constitutional rights: clearly the guard’s actions were calculated to, and in fact did, cause psychological suffering and were unusually gross even for a prison setting.

So, Ninth Circuit case law regarding the constitutionality of prison staff-to-sentenced prisoner sexual harassment is anything but clear. Nonetheless, the Keenan test is important to explore for it is often relied on by district courts within the Ninth Circuit, a circuit court which adjudicates a substantial amount of prisoners’ rights Eighth Amendment claims. That test is stricter than the Supreme Court’s conditions and force tests. With respect to the conditions test, calculated to cause psychological suffering is more akin to malicious and sadistic for the very purpose of causing harm than to conscious disregard. Further, the Keenan test requires the plaintiff to show that the harassment in fact caused suffering. The conditions test notably does not require a showing of actual injury. Rather, it requires a showing of a substantial risk of serious harm. With respect to the force test, trivial force that is repugnant to the conscience of mankind and non-trivial force are lower standards than unusually gross even for a prison setting. This is because societal standards of decency are brought to bear on how grave the force is in the force standard whereas prison standards of decency are brought to bear on whether something is unusually gross even for a prison setting in the Keenan standard. Assuming that non-prison, free society has a lower tolerance for sexual harassment than prisons, starting with the baseline grossness of the prison puts the Keenan test’s evidentiary burden above that of the force test.

Notice too that the Keenan test assumes that sentenced prisoners will suffer some sexual harassment while incarcerated. The test reflects the Ninth Circuit’s mindfulness “of the realities of prison life, and while [the court does] not approve, [the court is] ‘fully aware that the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation’s prisons.’”^[240] While prisons are, generally speaking, grosser places than free society, it seems altogether odd for courts to take the grossness of prisons as a fundamental fact about our social world and construct substantive constitutional doctrine partially on the basis of it. In this regard, the Keenan test resembles the procedural due process standard from Sandin v. Connor.^[241] In that case, the Supreme Court held that a sentenced prisoner is owed procedural due process protections when the liberty deprivation forced upon them (e.g. solitary confinement, prison transfer) imposes an atypical and significant hardship compared to the ordinary incidents of prison life. The liberty deprivations which typically attend incarceration are the baseline against which the challenged deprivations are measured. As the Ninth Circuit did in Keenan, the Supreme Court takes the reality of extant prisons as a floor from which to build sentenced prisoners’ substantive constitutional rights. If prisons were to become far more brutal environments and if prisoners experienced more severe curtailments of their liberty, they would presumably receive less Fourteenth Amendment procedural due process protection and less Eighth Amendment protection from sexual harassment.

Additionally, the Keenan test is not even concerned with what the particular prison that the complaining prisoner is in is like. It is not what is unusually gross for the complaining prisoner’s prison. Instead, it is what is unusually gross even for a prison setting. The test case is some amorphous conception of American prisons which are lamentably gross places. Consequently, even if a guard’s sexual harassment of a prisoner is unusually gross for the particular prison they are in, it may not be unusually gross for prisons generally and thus would not satisfy the objective prong of the Keenan test. On the flip side, if prisons became far more sexually hostile, prison officials would presumably have far more constitutional leeway as to how they can sexually harass prisoners. Far more horrific sexual harassment falls out of Eighth Amendment purview the more sexually egregious prisons become.

I want to move away from the Keenan standard and consider the broader theme of how federal courts handle non-assaultive sexual harassment claims. They tend to hold that this form of sexual misconduct generally does not violate the conditions of confinement standard because it does not pose a substantial risk of serious harm to the prisoner. I argue that this is incorrect for several reasons. First, prison staff-to-sentenced prisoner sexual harassment does put incarcerated folks at a heightened risk of physical sexual violence and psychological harm. Women Prisoners v. District of Columbia, a case from the District Court for the District of Columbia, recognized this.^[242]

Several incarcerated women within the D.C. correctional system (Central Treatment Facility, Central Detention Facility, and the now closed Lorton Prison) sought declaratory and injunctive relief for, amongst other things, violations of their Eighth Amendment rights by being physically and verbally sexually victimized by jail/prison officials.^[243] The women alleged that jail/prison officials physically sexually assaulted them including groping, fondling, and raping them.^[244] They also alleged that officials would stalk them as they showered and undressed in their cell and that their cells were in view of the male detainees/prisoners who were in the recreational yard.^[245] The women claimed that they were subject to frequent verbal sexual harassment by officials including threats of rape.^[246] It was well known amongst prisoners and prison officials that sexual victimization of prisoners by officials went unaddressed.^[247] Indeed, any formal complaints about sexual misconduct often became public knowledge and the topic of gossip amongst individuals in the facilities. Mr. James Derr, a staff assistant at Lorton, said that because there were so many corrupt people in the system “you almost have to be careful as to who you give your information to, . . . whether they be higher-ups or superior to you or not . . . I’m reluctant to give much information to anyone in our system.”^[248]

The district court held that the women’s Eighth Amendment rights were violated. The court explained that “[i]n combination, vulgar sexual remarks of prison officers, the lack of privacy within CTF cells and the refusal of some male guards to announce their presence in the living areas of women prisoners constitute a violation of the Eighth Amendment since they mutually heighten the psychological injury of women prisoners.”^[249] The court continued:

There is a substantial risk of injury when officers make sexual remarks in an environment where sexual assaults of women prisoners by officers are well-known and inadequately addressed. In free society, a woman who experiences harassment may seek the protection of police officers, friends, coworkers or relevant social service agencies. She may also have the option of moving to locations where the harassment would no longer occur. In sharp contrast, the safety of women prisoners is entrusted to prison officials, some of whom harass women prisoners and many of whom tolerate the harassment. Furthermore, the women are tightly confined, making their escape from harassment as unlikely as escape from the jail itself. Routine invasions of bodily privacy, such as men peering into women’s cells at CTF or the unannounced presence of male guards in female living areas provide a reminder to women prisoners that their exposure to abuse is almost endless. . . . The exposure of prisoners’ bodies without any justification is unacceptable and increases the level of anxiety experienced by women prisoners.^[250]

In other words, incarcerated women literally have nowhere to go and nowhere to hide from abusive guards. There is no calling the cops; there is no lawful fighting back; there is no hiding; they can scream but no one will listen. Incarcerated women are legally forced to rely on their abusers to meet their basic needs. They are placed in a position of extreme vulnerability wherein sexual precarity haunts their very existence. When it is well known within an environment like that that jail/prison staff sexually violate detainees/prisoners with impunity, then sexual harassment itself puts women at a substantial risk of serious physical and psychological harm and thus violates the Eighth Amendment.

This reasoning is largely correct. It seemed important to the district court that that particular jail/prison had a reputation for unaddressed sexual violence. When sexual harassment occurs in a jail/prison which has a history of leaving said harassment unaddressed, then harassed incarcerated folks in that jail/prison are put at substantial risk of serious harm. When guards are deliberately indifferent to that harassment, the conditions standard is satisfied. Nonetheless, a more expansive principle also holds true: when sexual harassment in any jail/prison which is a part of a prison system where official-to-detainee/prisoner sexual violence is systematically unaddressed; where it historically has been unaddressed; and where those facts are well known then that sexual harassment violates the Eighth Amendment. When the entire system is known for unaddressed sexual violence, that puts all incarcerated individuals experiencing sexual harassment at any given prison within that system at a substantial risk of serious physical and psychological harm. This principle is buttressed by the reality that jail/prison settings are porous spaces with jail/prison officials and incarcerated individuals traveling throughout many correctional institutions throughout their tenure in the carceral system.^[251]

Further, correctional guards are ostensibly symbols of law and order. They wear state insignia; are empowered by the state to effectuate state punishment; and are charged with ensuring the rehabilitation of the confined. When these individuals sexually harass incarcerated folks, that effectively expresses to others within the facility, and outside it, that that is the proper way for the state to punish the criminally convicted. Carceral sexual violence does not merely express condemnation of a criminal act, which is perhaps constitutive of legal punishment. Rather, it also expresses the judgement of the state, and those in whose name the state punishes, that the incarcerated are devoid of dignity; that their crimes and alleged crimes took them outside the universe of moral subjects; and that unspeakable violence against their souls and bodies is permissible, necessary, and good. These expressions emanating from carceral sexual violence are inconsistent with the normative ideals set forth in the Declaration of Independence and the Constitution.

There is another way in which many lower federal courts misapply the Supreme Court’s conditions jurisprudence to sexual harassment claims. Similar to the above remarks on sexual assault, if an incarcerated plaintiff shows they were sexually harassed by a guard in a prison system that does not have a legacy of sexual violence, they would still presumptively meet the conditions of confinement standard. The reason for this is simple: prison staff-to-sentenced prisoner sexual abuse, regardless of what kind of prison it occurs in, never serves any legitimate penological interest. This is true for egregious sexual assaults like rape which occur in prisons known for sexual violence and for verbal sexual harassment which occurs in prisons not known for sexual violence. In both instances the well-being and inherent moral dignity of the incarcerated victim is disregarded. As such, in both instances abusive prison officials offend evolving standards of decency that mark the progress of a maturing society and thus violate the Eighth Amendment. Once sexual harassment is proven, the burden shifts to the official to justify their conduct which I surmise they will almost never be able to do. Therefore, the vast majority of lower federal courts are categorically wrong in how they apply Supreme Court Eighth Amendment jurisprudence to non-assaultive sexual harassment.

Lastly, not only is sexual harassment in any prison squarely prohibited by the conditions of confinement test but when a plaintiff shows that sexual harassment occurred, even once, they have created a rebuttable presumption that they were cruelly and unusually punished. This point bears emphasis: even one instance of prison staff-to-sentenced prisoner sexual harassment constitutes cruel and unusual punishment because it meets the conditions of confinement standard. Even one instance demonstrates the guard’s deliberate indifference to a substantial risk of serious harm that their sexual harassment poses to the well-being of the incarcerated victim.

This may seem an especially strict reading of the Supreme Court’s prison-conditions jurisprudence considering that the Court has said that a push or shove without any discernible injury surely fails to violate the Constitution, and the resulting unconstitutional harm must be sufficiently serious.^[252] It has also said that not every malevolent touch rises to a constitutional concern.^[253] However, the Supreme Court was not speaking of sexual conduct when it expressed those sentiments. When the Court, and justice therein, have had occasion to speak on sexual violence, they have been emphatically clear: it never serves any legitimate penological interest and “such brutality is the equivalent of torture and is offensive to any modern standard of human dignity.”^[254] As such, a plaintiff presumptively satisfies the conditions of confinement standard by proving their one-off alleged non-assaultive sexual harassment in fact occurred.

Conclusion

In this Article I provided the first comprehensive account of lower federal courts’ Eighth Amendment jurisprudence involving prison staff-to-sentenced prisoner sexual abuse. I showed that many lower federal courts are systematically misapplying Supreme Court precedent to these claims, rendering it more difficult for sexually abused prisoners to hold guards responsible under the Eighth Amendment. Prisoners would actually be better off if lower federal courts just faithfully followed the Supreme Court’s, admittedly deplorable, Eighth Amendment jurisprudence which requires applying the conditions of confinement test to sexual harassment claims and the excessive force test to sexual assault claims. However, a faithful application of Supreme Court precedent does not require the incarcerated plaintiff to directly prove that the guard’s actions satisfy the relevant standard. Rather, it requires that the plaintiff prove the alleged sexual abuse in fact occurred, for in doing so, they presumptively satisfy the relevant standard. The burden then shifts to the defendant to justify the guard’s actions. The state will almost never be able to carry its burden because sexual abuse never serves any legitimate penological interest. As such, in almost all circumstances, by proving the alleged sexual abuse occurred the plaintiff has thereby proven they were cruelly and unusually punished. This burden-shifting approach to Eighth Amendment sexual violence claims comports with Supreme Court precedent and marginally lowers the evidentiary burden faced by sexually victimized prisoners. While not a panacea for carceral sexual violence, this minute doctrinal shift will marginally empower sexually victimized prisoners.

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1. See Ashley T. Rubin, The Deviant Prison: Philadelphia’s Eastern State Penitentiary and the Origins of the Modern Penal System 1829–1913, at xxiii (Cambridge Univ. Press 2021).

2. Id.; see also Rebecca McLennan, Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State 53–54 (Cambridge Univ. Press 2008).

3. See Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South 21 (Verso 1996); David Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice 1 (Free Press 1997); Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Have Reformed America’s Prisons 36 (Cambridge Univ. Press 2000); Alex Lichtenstein, Good Roads and Chain Gangs in the Progressive South: “The Negro Convict is a Slave”, 59 J. S. Hist. 85, 85 (1993); Jane Zimmerman, The Penal Reform Movement in the South During the Progressive Era, 1890–1917, 17 J. S. Hist. 462, 462 (1951).

4. See McLennan, supra note 2, at 340; see also Keramet Reiter, Supermax Administration and the Eighth Amendment: Deference, Discretion, and Double Bunking, 1986–2010, 5 U.C. Irvine L. Rev. 89, 90 (2015).

5. See Ashley Rubin, Punishment’s Legal Templates: A Theory of Formal Penal Change, Law & Soc’y Rev.1, 12 (2019) (discussing the various prison templates that have arisen in American penological history).

6. United States v. Bailey, 444 U.S. 394, 421 (1980) (Blackmun, J., dissenting).

7. See Talitha L. LeFlouria, “Under the Sting of the Lash”: Gendered Violence, Terror, and Resistance in the South’s Convict Camps, 100 J. Afr. Am. Hist. 366, 372 (2015) (explaining how sexual abuse and rape was a potent weapon to terrorize, punish, torture and demoralize Black women in convict lease camps); Robert T. Chase, We Are Not Slaves: State Violence, Coerced Labor, and Prisoner’s Rights in Postwar America 103 (Univ. N.C. Press 2020) (examining how the trust systems in post-World War II Texas prisons facilitated prisoner sex slave trades); Nikki Brown, Keeping Black Motherhood Out of Prison: Prison Reform and Woman Saving in the Progressive Era, 104 J. Afr. Am. Hist. 6, 20 (2019) (“Soon after the founding of the NACW [National Association of Colored Women] in 1896, three African American clubwomen rose to the forefront of the movement to abolish convict leasing and the chain gang—Selena Sloan Butler, Victoria Earle Matthews, and Mary Church Terrell. In public lectures and in writing, they chronicled physical and sexual abuse [on the leases and chain gangs] in graphic detail.”); McLennan, supra note 2, at 302 n.72 (“Fragments of evidence from the records of prison disciplinary hearings in 1914 and 1915 [from Sing Sing Prison] confirm that sex among prisoners was happening, that in some cases it was physically coercive, and that in others it was not. In many instances, sex was traded for food or money. The records also suggest that in the case of coerced sex, any prisoner who complained to the warden or sought protection was likely to be severely disciplined, while the alleged attacker—or attackers—would probably not be disciplined at all. Investigator James W. White noted that in 1912 and 1913, Warden Kennedy had sometimes sent the complainants, not the alleged attackers, to New York’s most feared prison—Clinton.”).

8. Throughout the Article I use the terms “prisoner” and “sentenced prisoner” with the understanding that those terms are contentious. On the one hand, I sympathize with Paul Wright that deodorizing our language conceals the “daily brutality and dehumanization of the police state, just as enhanced interrogation becomes a euphemism for torture, collateral damage a euphemism for killing innocent civilians, etc. We should make no mistake about it: people are forced into cages at gunpoint and kept there upon pain of death should they try to leave. What are they if not prisoners? They did not somehow magically appear there, and they stay there based on violence and fear of violence, not some invisible force field. Free will is critical, yet it doesn’t exist in the prison context.” See Paul Wright, Language Matters: Why We Use the Words We Do, Prison Legal News (Nov. 1, 2021), https://www.prisonlegalnews.org/news/2021/nov/1/language-matters-why-we-use-words-we-do/ [https://perma.cc/4HHN-5XCG]. On the other hand, I also sympathize with many of the individuals I met as a volunteer chaplain at the Washington D.C. Jail who expressed that terms like “prisoner” and “inmate” revoke their agency and deny them of their inherent dignity. I settled on using the terms “prisoner” and “sentenced prisoner” because they are the most precise terms for what I discuss in the Article: sexual violence between prison staff and individuals serving criminal sentences in prison. However, because I recognize the repetition of “prisoner” and “sentenced prisoner” could weigh on the reader (as it did me when writing this Article), I often use the term “incarcerated plaintiff” to refer only to sentenced prisoners bringing claims in court. I do not use the term “inmate” and any reference to that term will be while quoting others.

9. U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

10. See Seana Valentine Shiffrin, Democratic Law 26–33 (Hannah Ginsborg ed., Oxford Univ. Press 2021).

11. Some may argue that legislation is a clearer statement of our collective values because it is drafted and passed by elected officials who are more responsive to the needs of the electorate whereas unelected judges construct substantive constitutional standards. While there is merit to this argument, I want to side-step tricky philosophical issues about the communicative efficacy of various kinds of democratic law. I simply note that what our Constitution is interpreted to mean by federal courts plays a uniquely important role in producing and reproducing our social, political and legal culture.

12. Caleb Smith, The Prison and the American Imagination 153 (Yale Univ. Press 2009).

13. See Robinson v. California, 370 U.S. 660, 675 (1962) (discussing incorporation of the Eighth Amendment’s Cruel and Unusual Punishment Clause against the states).

14. 429 U.S. 97, 97 (1976).

15. See id. at 102; see also Wilkerson v. Utah, 99 U.S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment”); In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death”); For scholarly treatments of the original meaning of the Cruel and Unusual Punishment Clause, see John F. Stinneford, The Original Meaning of “Cruel”, 105 Geo. L.J. 441, 444 (2017); see also John F. Stinneford, The Original Meaning of “Unusual”: the Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739–40 (2008).

16. Estelle, 429 U.S. at 102 (citing Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)).

17. Id. at 102–03 (citing Tropes v. Dulles, 356 U.S. 86, 101 (1958)).

18. Weems v. United States, 217 U.S. 349, 373 (1910).

19. Id.

20. Estelle, 429 U.S. at 103–04.

21. 511 U.S. 825, 839 (1994).

22. See Estelle, 429 U.S. at 105; see also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (“The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There is no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. The situation of the unfortunate victim of this accident is just as though he had suffered the identical amount of mental anguish and physical pain in any other occurrence, such as, for example, a fire in the cell block.”).

23. 452 U.S. 337, 337 (1981).

24. 437 U.S. 678, 678 (1978).

25. 501 U.S. 294, 294 (1991).

26. Id. at 296.

27. Id. at 303 (“Whether one characterizes the treatment received by [the prisoner] as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to apply the ‘deliberate indifference’ standard articulated in Estelle.”) (citing LaFaut v. Smith, 834 F.2d 389, 391–92 (4th Cir. 1987)).

28. Id. at 300.

29. Id. (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)) (alteration in original).

30. Id.

31. Id.

32. 509 U.S. 25, 25 (1993).

33. Id. at 28.

34. Id. at 33–34.

35. Id. at 33.

36. Id.

37. Farmer, 511 U.S. at 839, 831.

38. Id. at 830.

39. Id.

40. Id. at 831.

41. Id. at 830.

42. Id. at 831.

43. Id.

44. Id. at 851.

45. Id. at 834.

46. Id.

47. Id. at 837.

48. 475 U.S. 312, 312 (1986).

49. Id.

50. Id. at 320 (citing Estelle, 429 U.S. at 105; Hudson v. Palmer, 469 U.S. 517, 526–27 (1984); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

51. Whitley, 475 U.S. at 321 (citing Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 132 (1977); Rhodes, 452 U.S. at 349 n.14).

52. Id. at 322.

53. 503 U.S. 1, 8–10 (1992).

54. Id. at 4.

55. Id.

56. Id.

57. Id.

58. Id.

59. Id. at 5.

60. Id.

61. Id. at 6.

62. Id. (citing Bell v. Wolfish, 441 U.S. 520, 547 (1979)). For discussion of courts’ deferential posture towards carceral officials, see Sharon Dolovich, The Coherence of Prison Law, 135 Harv. L. Rev. F. 302, 302–03 (2022); Danielle Jefferies, Carceral Deference: Courts and Their Pro-Prison Propensities, 92 Fordham L. Rev. 983 (2023); David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84 Geo. Wash. L. Rev. 972 (2016); David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison, 93 Notre Dame L. Rev. 2021 (2018).

63. Hudson, 503 U.S. at 10.

64. Id.

65. Id. at 9.

66. Id.; see also Johnson, 481 F.2d at 1033 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights[.]”).

67. Hudson, 503 U.S. at 17.

68. Id.

69. Id.

70. 408 U.S. 238, 271 (1972) (internal quotations omitted).

71. Id. (quoting Trop, 356 U.S. at 101).

72. See, e.g., Richardson v. Duncan, 117 F.4th 1025, 1029 (8th Cir. 2024) (claiming that “physical or psychological harm resulting from sexual abuse can satisfy the objective component of an Eighth Amendment claim.”); Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001) (“The defendants also are wrong in concluding that only a showing of physical injury can satisfy an Eighth Amendment claim.”); Alexander v. City of Round Rock, 854 F.3d 298, 309 (5th Cir. 2017) (“In short, as long as a plaintiff has suffered some injury, even relatively insignificant injuries and purely psychological injuries, will prove cognizable when resulting from an officer’s unreasonably excessive force.”) (citing Brown v. Lynch, 524 F. App’x 69, 79 (5th Cir. 2013)); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The alleged pain may be physical or psychological. Nevertheless, the inmate must objectively show that he was deprived of something sufficiently serious.”).

73. 559 U.S. 34 (2010).

74. Id. at 35.

75. Id.

76. Id.

77. Id.

78. Id. at 39.

79. Id. (internal quotations omitted).

80. See id. at 37.

81. Id. at 38 (quoting Johnson, 481 F.2d at 1033).

82. Id.

83. Hudson, 503 U.S. at 16–17.

84. Farmer, 511 U.S. at 853.

85. Emily D. Buehler & Shelby Kotte-Weaver, Sexual Victimization Reported by Adult Correctional Authorities, 2019–2020 – Statistical Tables, U.S. Dep’t of Just. (2024) https://bjs.ojp.gov/library/publications/sexual-victimization-reported-adult-correctional-authorities-2019-2020#:~:text=Correctional administrators reported 36%2C264 allegations,for any year since 2014 [https://perma.cc/8PR7-3SHS].

86. Id. at 7.

87. Id. at 1.

88. Id. at 11.

89. Id.

90. C.J. Ciaramella, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes, Reason (Dec. 13, 2022, at 05:00 ET), https://reason.com/2022/12/13/senate-investigation-finds-federal-prisons-fail-to-prevent-or-investigate-rapes/ [https://perma.cc/54G7-AAZH].

91. Id.

92. Buehler & Kotte-Weaver, supra note 85, at 1.

93. James Stone, The Prison Discovery Crisis, 134 Yale L.J. 2751, 2768 (2025).

94. Id.

95. Dolovich, supra note 62, at 304.

96. See Hanna Belitz, A Right Without a Remedy: Sexual Abuse in Prison and the Prison Litigation Reform Act, 53 Harv. C.R.- C.L. L. Rev. 291, 296–97 (2018) (“These numbers alone give cause for concern, but they may fail to capture the full extent of sexual abuse in prison: it is likely that a large number of inmates who have been sexually abused in prison never report it.”).

97. U.S. Dep’t of Just., Investigation of Georgia Prisons 60 (2024), https://www.justice.gov/opa/pr/justice-department-finds-unconstitutional-conditions-georgia-prisons [https://perma.cc/74DG-RGHZ] (“The actual number of sexual assaults and other incidents of sexual abuse may be significantly higher. In general, survivors of sexual abuse are less likely to report their abuse to the authorities than victims of other violent crimes. Only 21% of sexual assaults in the United States were reported to the police as of 2022. Systemic deficiencies allow sexual violence among the incarcerated population to occur unchecked in the prisons.”).

98. The Cato Institute’s National Police Misconduct Reporting Project 2010 Annual Report 1 https://www.leg.state.nv.us/Session/77th2013/Exhibits/Assembly/JUD/AJUD338L.pdf [https://perma.cc/2567-BDR4].

99. See Chase, supra note 7, at 102–56.

100. Id. at 134–35.

101. Id.

102. Id. at 134.

103. Bailey, 444 U.S. at 421–22.

104. Chase, supra note 7, at 135; see also Texas Officials Complicit in Gang Rape and Sexual Slavery of Gay Black Man, ACLU Charges, ACLU (Apr. 17, 2002, at 12:00 ET), https://www.aclu.org/press-releases/texas-officials-complicit-gang-rape-and-sexual-slavery-gay-black-man-aclu-charges [https://perma.cc/MMS8-89Y9].

105. See Chase, supra note 7, at 102–56.

106. Id.

107. U.S. Dep’t of Just., Investigation of the Alvin S. Glenn Detention Center (Columbia, South Carolina) (2025), https://www.justice.gov/crt/media/1384121/dl [https://perma.cc/JHP6-A39A].

108. See id. at 1.

109. Id. at 10.

110. See id. at 8.

111. See id.

112. Id.

113. Id.

114. Id.

115. Self-mutilation has been a frequent technique incarcerated folks have historically used to escape brutality in correctional facilities. Today, it is not uncommon to hear stories of incarcerated folks cutting themselves or claiming to be suicidal in order to be placed in solitary, away from prison gangs and sexual assaulters. In times past, incarcerated folks would slice their Achilles heel or break their leg to escape the brutal convict lease camp or chain gangs. See Chase, supra note 7, at 50–51.

116. U.S. Dep’t of Just., supra note 107, at 8.

117. Id.

118. Id.

119. Id.

120. Press Release, Just. Dep’t Finds Unconstitutional Conditions in Georgia Prisons (Oct. 1, 2024), https://www.justice.gov/opa/pr/justice-department-finds-unconstitutional-conditions-georgia-prisons [https://perma.cc/DM3X-CEGW].

121. U.S. Dep’t of Just., Investigation of Georgia Prisons 38 (2024), https://www.justice.gov/crt/media/1371406/dl [https://perma.cc/JMN5-9F46].

122. See U.S. Dep’t of Just., Miss. Dep’t of Corr. Findings Rep. 9 (2024), https://www.justice.gov/opa/pr/justice-department-finds-conditions-three-mississippi-prisons-violate-constitution [https://perma.cc/52EF-TDZU].

123. See id. (“Gangs maintain order in the housing units, make bed assignments, control the flow of contraband, and use violence as punishment. . . . The strength of prison gangs inside the MDOC facilities that we investigated is so great that even some staff members have gang affiliations and are on the gangs’ payroll.”); see also id. at 8.

124. Id.

125. Id.

126. Id.

127. Id.

128. See Michael Balsamo & Michael Sisak, AP investigation: Women’s prison fostered culture of abuse, Associated Press (Feb. 6, 2022), https://apnews.com/article/coronavirus-pandemic-health-california-united-states-prisons-00a711766f5f3d2bd3fe6402af1e0ff8 [https://perma.cc/H2A8-MF4J].

129. Id.

130. Id.

131. Id.

132. U.S. Dep’t of Just., Federal Prison Chaplain Sentenced for Sexual Assault and Lying to Federal Agents (2022), https://www.justice.gov/archives/opa/pr/federal-prison-chaplain-sentenced-sexual-assault-and-lying-federal-agents [https://perma.cc/D6TL-8Q3V].

133. Cheyanne M. Daniels, Sexual abuse rampant in federal prisons, bipartisan investigation finds, The Hill (Dec. 13, 2022, at 01:07 ET), https://thehill.com/homenews/house/3773579-sexual-abuse-rampant-in-federal-prisons-bipartisan-investigation-finds/ [https://perma.cc/2BES-8C8N].

134. C.J. Ciaramella, Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes, Reason (Dec. 13, 2022), https://reason.com/2022/12/13/senate-investigation-finds-federal-prisons-fail-to-prevent-or-investigate-rapes/ [https://perma.cc/3YLN-KX8J].

135. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976); see also Wilkinson v. Austin, 545 U.S. 209 (2005); Sandin v. Connor, 515 U.S. 472 (1995).

136. See Williams v. Priatno, 829 F.3d 118 (2nd Cir. 2016) (describing a grievance policy at a facility which required prisoners in the SHU to give their grievance to the prison guard for them to forward to the grievance clerk).

137. Sam Levin, California ex-prison guard found guilty of 64 charges of sexual abuse of women, The Guardian (Jan. 14, 2025, at 07:22 ET), https://www.theguardian.com/us-news/2025/jan/14/california-womens-prison-officer-convicted-sexual-abuse [https://perma.cc/4KNJ-BRDQ].

138. Id. The Associated Press recently revealed the findings of its investigation into sexual abuse in female prisons. Those findings confirmed that a common technique prison guards use to sexually victimize prisoners without being monitored is through work assignments which are usually in remote parts of the facility without video camera. See Margie Mason & Robin McDowell, Prison work assignments used to lure and rape female inmates. Guards sometimes walk free, Associated Press (Oct. 31, 2024, at 11:36 ET), https://apnews.com/article/prison-rape-women-inmates-guards-001a816334d8745fd29557f02b2f0e5a [https://perma.cc/58DW-5R4D].

139. Id.

140. Id.

141. Id.

142. Id.

143. C.J. Ciaramella, Lawsuit Alleges ‘Rampant’ Sexual Abuse at Federal Prison, Reason (Dec. 6, 2019), https://reason.com/2019/12/06/lawsuit-alleges-rampant-sexual-abuse-at-federal-prison/ [https://perma.cc/39ET-DT7Y].

144. Complaint at 9–10, Beaubrun v. United States, No. 5:19-cv-00615, (M.D. Fla. Ocala Div. Dec. 3, 2019).

145. Ciaramella, supra note 143.

146. Id.

147. Id.

148. Id.

149. C.J. Ciaramella, Federal Prison Guards Confessed to Rape and Got Away With It, Reason (Oct. 2023), https://reason.com/2023/09/03/i-knew-they-were-scumbags/ [https://perma.cc/V6XZ-WJSL].

150. Ciaramella, supra note 143.

151. Id.

152. Id.

153. Id.

154. Id.

155. Ciaramella, supra note 149.

156. Id.

157. Id.

158. Id.

159. 34 U.S.C. § 30302.

160. Id.; see also Gabriel Arklas, Prison Rape Elimination Act Litigation and the Perpetuation of Sexual Harm, 17 N.Y.U. J. Legis. & Pub. Pol’y 801 (2019).

161. Assistance, FY List of Certification and Emergency Assurance Submissions for Audit Year 2 of Cycle 4 August 20, 2023 - August 19, 2024, Bureau of Just., https://bja.ojp.gov/doc/fy25-prea-certification-assurance-submissions.pdf [https://perma.cc/5DX2-5EHM].

162. C.J. Ciaramella, New Data Show Prison Staff Are Rarely Held Accountable for Sexual Misconduct, Reason (Feb. 3, 2023), https://reason.com/2023/02/03/new-data-show-prison-staff-are-rarely-held-accountable-for-sexual-misconduct/ [https://perma.cc/8KMS-Z795].

163. See, e.g., Jones v. Schofield, No. 1:08–CV–7, 2009 U.S. Dist. LEXIS 133348, at *3 (M.D. Ga. Feb. 27, 2009) (“A reading of the Prison Rape Elimination Act makes clear that its goal is to lessen the occurrence of rapes in prisons across this Country. Its focus concentrates on statistics, standards, developing information, and regulating federal funding in an effort to lessen prison rapes.”); Money v. Isom, No. 5:23-cv-00377, 2024 U.S. Dist. LEXIS 72278, at *10 (M.D. Ga. Apr. 19, 2024) (holding that PREA did not create a private cause of action); Mosley v. Medlin, No. CV 313–086, 2014 U.S. Dist. LEXIS 92922, at *18 (S.D. Ga. May 27, 2014) (“PREA seeks to compile data and statistics concerning incidences of prison rape and to adopt standards to combat the same, and does not confer upon Plaintiff any extra rights outside of the normal prison grievance system.”).

164. See, e.g., Doe v. District of Columbia, 215 F. Supp. 3d 62 (D.D.C. Oct. 18, 2016) (denying defendant prison official’s motion for summary judgment partially because the guards who housed a transgender prisoner with a known rapist who then raped the prisoner received training in PREA compliance and thus could have been deliberately indifference to a substantial risk of serious harm).

165. 501 U.S. at 303.

166. I refrain from taking a position on whether prison staff-to-sentenced prisoner consensual sexual relations are per se unconstitutional. This issue usually arises when prison officials use consent as a defense to a prisoner’s accusation of sexual abuse. While the Supreme Court has never decided such a case, circuit courts have and they are trending in the direction of allowing consent as a defense. See, e.g., Graham v. Sheriff of Logan Cnty., 741 F.3d 1118 (10th Cir. 2013) (holding that where two prison guards had sexual intercourse with a prisoner while she was in solitary confinement, the prisoner’s rights under the Eighth Amendment were not violated, because there was no genuine dispute that the guards did not force her to have sex, she stated repeatedly and consistently that almost all the sexual acts that occurred were consensual, and she never explained how her mental-health issues would negate her consent or how they were relevant when the guards had no knowledge of them); Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997) (“Without deciding at what point unwelcome sexual advances become serious enough to constitute ‘pain’, we hold that, at the very least, welcome and voluntary sexual interactions, no matter how inappropriate, cannot as matter of law constitute ‘pain’ as contemplated by the Eighth Amendment.”); Dejesus v. Lewis, 14 F.4th 1182, 1211 (11th Cir. 2021) (“While consensual sexual acts between prisoners and prison officials are never appropriate, it isn’t clear that they necessarily violate the Eighth Amendment’s prohibition on the infliction of cruel and unusual punishments.”); Wood v. Beauclair, 692 F.3d 1041, 1048 (9th Cir. 2012) (“While we understand the reasons behind a per se rule that would make prisoners incapable of legally consenting to sexual relationships with prison officials, we are concerned about the implications of removing consent as a defense for Eighth Amendment claims . . . when a prisoner alleges sexual abuse by a prison guard, we believe the prisoner is entitled to a presumption that the conduct was not consensual.”).

167. Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 Cornell L. Rev. 357, 425 (2018) (“It is worth noting, practically, that of the nearly 750,000 people housed in American jails, over a third are sentenced prisoners. Post-conviction prisoners may be confined in a jail while they await sentencing, if they are convicted of a misdemeanor, or when their felony sentence is less than some length chosen by the state for prison incarceration. (This is often less than one year, but in some states can be far longer.) In addition, over 80,000 “state prisoners” are, in fact, housed in county jails. Moreover, in many states, jails do not systematically separate pretrial detainees from sentenced prisoners; housing assignments are made on the basis of more individualized risk and supervision factors. That is, operationally, jail classification experts find that it is safer to mix pretrial and post-conviction populations, separating people based on risk and need rather than status. So if the Constitution imposes different liability standards for pretrial detainees and sentenced prisoners, those differences cannot, practically, be reflected in different policy, training, or treatment.”).

168. See Bell v. Wolfish, 441 U.S. 520 (1979); Kingsley v. Hendrickson, 576 U.S. 389 (2015).

169. See Washington v. Hively, 695 F.3d 641 (7th Cir. 2012) (applying the excessive force standard to sexual assault claims, explaining that sexual offenses need not involve any sexual touching so long as the force used is repugnant to the conscience of mankind); Richardson, 117 F.4th at 1029–30 (drawing from Hudson and Wilkins in clarifying the excessive force standard applies to nonconsensual coercive sexual abuse); Bearchild v. Cobban, 947 F.3d 1130, 1140 (“We have consistently placed prisoner sexual assault claims within the same legal framework as excessive force claims.”); Graham, 741 F.3d at 1123 (applying the excessive force standard to sexual assault claims); Sconiers v. Lockhart, 946 F.3d 1256, 1265, 67 (11th Cir. 2020) (“Since Sconiers asserts excessive-force and sexual-assault claims, “the core judicial inquiry” requires us to consider “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”” (citing Wilkins, 559 U.S. at 37). And moreover, “[t]he lack of serious physical injury, considered in a vacuum, cannot snuff out Eighth Amendment sexual-assault claims.”).

170. See Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1096 (6th Cir. 2019) (adopting the repugnant to the conscience of mankind prong but also specifying that the “Court has not determined whether deliberate indifference or the heightened malice standard is required to satisfy the subjective component of an Eighth Amendment claim alleging sexual abuse by a prison guard.”).

171. 105 F.3d 857 (2d Cir. 1997).

172. 796 F.3d. 252 (2d Cir. 2015).

173. See Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2018) (adopting explicitly the Boddie/Crawford severe or repetitive standard and the Second Circuit’s cramped definition of sexual abuse).

174. See Allen v. Johnson, No. 02–31019, 2003 U.S. App. LEXIS 27970, at *2 (5th Cir. 2003) (per curiam) (“Allen’s claim of sexual abuse was properly dismissed because, even if it is assumed that Theodore Johnson, [the prison official], touched him in a sexual manner during routine pat-down searches, Allen has not alleged sufficiently serious assaultive behavior or resulting injury to show a constitutional deprivation.”); Schofield v. Caldwell Corr. Ctr., No. 3:17–CV–00241, 2017 U.S. Dist. LEXIS 66944, at *4 (W.D. La. Apr. 12, 2017) (claiming that only deliberate indifference to severe or repetitive sexual contact could violate the Eighth Amendment); Wright v. Thompson, No. 3:09–CV–1544, 2010 U.S. Dist. LEXIS 84698, at *13 (W.D. La. June 30, 2010) (“prison officials must have acted with deliberate indifference . . . only severe or repetitive sexual abuse rises to the level of an Eighth Amendment violation.”) (citing Boddie, 105 F.3d at 861); Redd v. Harvey, No. 10–622, 2010 U.S. Dist. LEXIS 89050, at *3 (W.D. La. Aug. 4, 2010) (same); Hayes v. Kroll, No. H–20–2572, 2021 U.S. Dist. LEXIS 226164 (S.D. Tex. Nov. 20, 2021) (same).

175. Chao v. Ballista, 772 F. Supp. 2d 337 (D. Mass. 2011) (claiming deliberate indifference to severe or repetitive sexual contact is the appropriate standard for staff-to-sentenced prisoner sexual assault claims).

176. Marino v. Comm’r, Me. Dep’t of Corr., No. 8–326–B–S, 2009 U.S. Dist. LEXIS 38519, at *8 (D. Me. Apr. 28, 2009) (applying the malicious and sadistic to severe or repetitive sexual injury standard and, on the basis of it, denying that the exposure of genitalia or attempted sexual contact constitute constitutional wrongs).

177. See generally Johnson v. Robinette, 105 F.4th 99 (4th Cir. 2024) (adopting Crawford’s and the Prison Litigation Reform Act’s definition of sexual abuse which involves intentional contact). In another case, the Fourth Circuit appeared to apply the excessive force standard to both sexual assault and sexual harassment claims. See Jackson v. Holley, 666 F. App’x 242, 244–45 (4th Cir. 2016).

178. Boddie, 105 F.3d. at 860–61.

179. Id.

180. Id.

181. Id.

182. Id.

183. Id.

184. Id.

185. Id.

186. Id. at 862.

187. Id.

188. Id.

189. Id at 861.

190. Id.

191. Id.

192. Id. at 862.

193. 796 F.3d. at 259–60.

194. Id. at 255.

195. Id.

196. Id.

197. Id.

198. Id.

199. Id. at 261.

200. Id. at 257.

201. Id.

202. Id.

203. Id. at 260.

204. Id. at 259 (quoting Graham v. Florida, 560 U.S. 48, 58 (2010)).

205. Id.

206. 408 U.S. at 239–40; 428 U.S. 153, 168–69 (1976).

207. Atkins v. Virginia, 536 U.S. 304, 318–19 (2002).

208. Roper v. Simmons, 543 U.S. 551, 564 (2005).

209. Miller v. Alabama, 567 U.S. 460, 465 (2012).

210. Crawford, 796 F.3d at 261 nn.5–6.

211. See Estelle, 429 U.S. at 102; see also Wilkerson v. Utah, 99 U.S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that emendment to the Constituion.”); In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve torture or a lingering death . . . .”); For scholarly treatments of the original meaning of the Cruel and Unusual Punishment Clause, see generally John F. Stinneford, The Original Meaning of ‘Cruel’, 105 Geo. L.J. 441, 444 (2017); John F. Stinneford, Original Meaning of ‘Unusual’: the Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1740 (2008).

212. See Corinna Barrett Lain, The Power, Problems, and Potential of “Evolving Standards of Decency”, in The Eighth Amendment and Its Future in a New Age of Punishment 76–88 (Meghan J. Ryan & William W. Berry III eds., 2020).

213. This seems to be how circuit court judges understand Crawford’s definition of sexual abuse. Judge Robin Rosenbaum cites Crawford when defining sexual abuse as “coerced sexual contact that is engaged in by a correctional official to humiliate a prisoner, to maliciously and sadistically harm a prisoner, or to sexually gratify a correctional official (or some combination of these reasons).” See Sconiers, 946 F.3d at 1270 (11th Cir. 2020) (Rosenbaum, J., concurring).

214. 796 F.3d at 257.

215. Id. at 257–58.

216. 475 U.S. at 320–21.

217. Washington, 695 F.3d at 643.

218. Bearchild, 947 F.3d at 1144; Graham, 741 F.3d at 1123.

219. Bearchild, 947 F.3d at 1144.

220. Id.

221. Farmer, 511 U.S. at 852.

222. Wood, 692 F.3d at 1050.

223. Id. (“Where there is no legitimate penological purpose for a prison official’s conduct, courts have ‘presum[ed] malicious and sadistic intent.’”) (citing Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999)); Graham, 741 F. 3d. at 1123 (“Particularly relevant to this case, ‘[w]here no legitimate penological purpose can be inferred from a prison employee’s alleged conduct, including but not limited to sexual abuse or rape, the conduct itself constitutes sufficient evidence that force was used “maliciously and sadistically for the very purpose of causing harm.”’ (citations removed). Thus, when a prisoner alleges rape by a prison guard, the prisoner need prove only that the guard forced sex in order to show an Eighth Amendment violation.”) (citing Giron, 191 F.3d at 1290; Whitley, 475 U.S. at 320–21).

224. Bearchild, 947 F.3d at 1144 (citing Hudson, 503 U.S. at 10).

225. Id.

226. Graham, 741 F.3d at 1126.

227. See e.g., Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) (“Fear or emotional injury which results solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty interest.”); Robinson v. Taylor, 204 F. App’x 155, *156 (3d Cir. 2006) (holding that verbal abuse alone is insufficient to violate the Eighth Amendment); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985) (“Verbal threats do not constitute a constitutional violation.”); Cole v. Fischer, 379 F. App’x 40, *43 (2nd. Cir. 2010) (“Verbal harassment, standing alone, does not amount to a constitutional deprivation.”); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“The claim that a prison guard called Purcell names also did not allege any appreciable injury and was properly dismissed.”); Mimms v. U.N.I.C.O.R., 386 F. App’x 32, *35 (3d Cir. 2010) (claiming that verbal harassment of a prisoner, without more, does not violate the Eighth Amendment); Larson v. Westbrook, 799 F. App’x 263, 264 (5th Cir. 2020) (per curiam) (holding that “verbal threats and threatening gestures, standing alone, do not amount to a constitutional violation.”); Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (“We have held that harassment and verbal abuse, such as Johnson has described, do not constitute the type of infliction of pain that the Eighth Amendment prohibits.”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.”); Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (“Simple or complex, most verbal harassment by jail or prison guards does not rise to the level of cruel and unusual punishment.”); Barney v. Pulsipher, 143 F.3d 1299, 1313 n.11 (10th Cir. 1998) (“Although plaintiffs allege Mr. Pulsipher subjected them to severe verbal sexual harassment and intimidation, these acts of verbal harassment alone are not sufficient to state a claim under the Eighth Amendment.”); In re Eric Watkins Litig., 829 F. App’x 428, 431 (11th Cir. 2020) (holding that mere verbal sexual taunts do not violate the Eighth Amendment); Shabazz v. Cole, 69 F. Supp. 2d 177, 199 (D. Mass. 1999) (“Although this court does not condone the verbal abuse with the racial epithets that Shabazz received from Cole, verbal threats and insults between inmates and prison officials are a ‘constant daily ritual observed in this nation’s prisons.’”); Joyner v. Snyder, No. 06-3062, 2007 U.S. Dist. LEXIS 7214, at 6 (C.D. Ill. Feb. 1, 2007) (“[T]o the extent that Plaintiff alleges that his constitutional rights were violated simply because Defendant Cripe harassed him with derogatory comments regarding his homosexuality, the Court finds that those allegations are not enough to state a viable claim upon which relief can be granted.”); Kirk v. Roan, No. 1:04-CV-1990, 2006 U.S. Dist. LEXIS 65676, at 12 (M.D. Pa. Sep. 14, 2006) (“Even in the context of sexual harassment directed at an inmate by a prison guard, words, without more, are not enough to state a claim for a violation of the Eighth Amendment.”); Doe v. Magnusson, No. 04-130-B-W, 2005 U.S. Dist. LEXIS 6143, at 47 (D. Me. Mar. 21, 2005) (“As a general rule threats and harassment alone, even when they come directly from the mouth of a correctional officer, will not constitute cruel and unusual punishment under Farmer.”); Ferguson v. Pagati, No. CV 12-0653-VBF, 2013 U.S. Dist. LEXIS 109853, at 10 (C.D. Cal. Mar. 15, 2013) (finding no Eighth Amendment violation when a guard yelled general threats of physical violence at plaintiff while plaintiff was in a serious medical crisis); Williamson v. Wertz, No. 1:24-CV-482, 2024 U.S. Dist. LEXIS 94040, at 4 (M.D. Pa. May 28, 2024) (“Verbal threats and harassment do not violate the Eighth Amendment.”); Cox v. Ross, No. 2:24-cv-11506, 2024 U.S. Dist. LEXIS 109067, at 3 (E.D. Mich. June 20, 2024) (“It is well-settled that allegations of verbal harassment and threats are insufficient to state a civil rights claim under § 1983.”); McClure v. Noland, No. 2:23-CV-702-RAH-KFP, 2024 U.S. Dist. LEXIS 23650, at 5 (M.D. Ala. Feb. 12, 2024) (“Verbal taunts or derogatory comments made by an officer to an inmate, without more, do not rise to the level of a constitutional violation.”).

228. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

229. See Freitas, 109 F.3d at 1338 (“[B]ecause the sexual harassment or abuse of an inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, such abuse can, in certain circumstances, constitute the ‘unnecessary and wanton infliction of pain’” that is forbidden by the Eighth Amendment.); Willey v. Kirkpatrick, 801 F.3d 51, 70 (2d Cir. 2015) (Even an incident of verbal sexual harassment can be actionable if it caused the inmate to suffer an appreciable injury.); Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991) (holding that except in circumstances giving rise to unnecessary and wanton infliction of pain, verbal and sexual harassment does not give rise to § 1983 liability in the prison context).

230. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”) (citing Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (clarifying that in Blueford the court properly affirmed the district court’s dismissal of the prisoner’s Eighth Amendment claim because it contained allegations of mere verbal sexual harassment) (citing Blueford v. Prunty, 108 F.3d 251 (9th Cir. 1997)); Somers v. Thurman, No. 96-55534, 1997 U.S. App. LEXIS 12272, at *26 (9th Cir. Mar. 25, 1997) (“Nor do [the plaintiffs] contentions establish conduct objectively harmful enough to establish a constitutional violation. We are mindful of the realities of prison life, and while we do not approve, we are ‘fully aware that the exchange of verbal insults between inmates and guards is a constant, daily ritual observed in this nation’s prisons.’ (citation removed). Therefore, even if we take Somers’s allegations as true, they do not rise to the level of an Eighth Amendment violation.”) (quoting Morgan v. Ward, 699 F. Supp. 1025, 1055 (N.D.N.Y. 1988)).

231. See, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (amended by 135 F.3d 1318 (9th Cir. 1998)) (“[Plaintiff] has not presented evidence that these comments were unusually gross even for a prison setting and were calculated to and did cause him psychological damage.”); McGhee v. Kushner, No. 2:17-CV-2059-JAM-DMC-P, 2019 U.S. Dist. LEXIS 103742, at *5 (E.D. Cal. June 20, 2019) (“While plaintiff has now alleged defendants’ conduct was unusually gross and calculated to cause psychological harm, these assertions are insufficient because they are no more than conclusory and formulaic recitations of the applicable law.”); Jacques v. Jung, No. 2:24-cv-0477 DB P, 2024 U.S. Dist. LEXIS 111797, at *5–6 (E.D. Cal. June 25, 2024) (“The Ninth Circuit has indicated that verbal harassment alone may rise to the level of an Eighth Amendment violation if that harassment was ‘unusually gross even for a prison setting and [was] calculated to and did cause [plaintiff] psychological damage.’”); Moore v. Calderon, No. 1:20-cv-00397-BAM (PC), 2020 U.S. Dist. LEXIS 154304, at *6 (E.D. Cal. Aug. 25, 2020) (“Verbal harassment may violate the Constitution when it is ‘unusually gross even for a prison setting and [is] calculated to and [does] cause [plaintiff] psychological damage.’”); Thompson v. Cagle, No. 1:18-cv-01020-LJO-EPG (PC), 2019 U.S. Dist. LEXIS 157038, at *6 (E.D. Cal. Sep. 13, 2019) (“However, verbal harassment may violate the Constitution when it is ‘unusually gross even for a prison setting and [is] calculated to and [does] cause psychological damage.’”); Russo v. Johnson, No. 1:23-cv-0639-BAM (PC), 2023 U.S. Dist. LEXIS 119816, at *5 (E.D. Cal. July 12, 2023) (citing Keenan that unusually gross verbal harassment that is calculated to cause suffering violates the Eighth Amendment); Horton v. Billingsley, No. 5:18-cv-1951-RGK (GJS), 2019 U.S. Dist. LEXIS 225558, at *9 (C.D. Cal. Dec. 3, 2019) ("Purely verbal harassment, on the other hand, may violate the Constitution when it is “unusually gross even for a prison setting and is calculated to and does cause plaintiff psychological damage.”); see also Nañez v. Creswell, No. 3:17-cv-05923-RJB-DWC, 2018 U.S. Dist. LEXIS 119243, at *5 (W.D. Wash. June 26, 2018) (“Further, even if the Court makes the leap and attributes Plaintiff’s injuries to Defendant’s words, verbal harassment may only rise to the level of a constitutional violation if it was ‘unusually gross even for a prison setting’ or ‘calculated to and did cause [the prisoner] psychological damage.’”); Martinez v. De La Torre, No. 5:23-cv-05707 EJD (PR), 2025 U.S. Dist. LEXIS 87601, at *5 (N.D. Cal. May 7, 2025) (denying prisoners verbal sexual harassment claim on the basis of it not meeting the Keenan test).

232. See, e.g., McCardie v. Pendleton, No. 5:23-cv-05797 EJD (PR), 2024 U.S. Dist. LEXIS 209131, at *7–8 (E.D. Cal. Nov. 15, 2024) (“While ‘the Ninth Circuit has recognized that sexual harassment may constitute a cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated between sexual harassment that involves verbal abuse and that which involves allegations of physical assault, finding the latter to be in violation of the constitution.’” and “Verbal harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”) (citing Minifield v. Butikofer, 298 F. Supp. 2d 900, 904 (N.D. Cal. 2004)); Schwenk v. Hartford, 204 F.3d 1187, 1198 (9th Cir. 2000)); Martinez v. De La Torre, No. 5:23-cv-05707 EJD (PR), 2025 U.S. Dist. LEXIS 87601, at *5 (N.D. Cal. May 7, 2025) (“Furthermore, the Eighth Amendment is not violated even where the verbal harassment is of a sexual nature.”); Bennett v. Palares, No. 1:24-cv-00591-JLT-BAM (PC), 2025 U.S. Dist. LEXIS 20869, at *9 (E.D Cal. Feb. 5, 2025) (“Allegations of sexual harassment that do not involve touching have routinely been found ‘not sufficiently serious’ to sustain an Eighth Amendment claim.”).

233. See generally 367 F.3d 1167, 1172–73 (9th Cir. 2004) (reversing and remanding the dismissal of plaintiff’s motion for summary judgment on First Amendment grounds and affirming the lower court’s judgment on Eighth Amendment grounds).

234. Id. at 1169.

235. Id.

236. Id.

237. Id. at 1169–70.

238. Id. at 1171 (citing Blueford, 108 F.3d at 254–55).

239. Blueford, 108 F.3d at 255.

240. Somers, 1997 U.S. App. LEXIS 12272, at *26.

241. 515 U.S. 472, 484 (1995) (“But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, (citations omitted) nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”); See Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015) (“The Supreme Court has noted that ‘in Sandin’s wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. This divergence indicates the difficulty of locating the appropriate baseline.’”) (citing Wilkinson, 545 U.S. at 223).

242. Women Prisoners of the District of Columbia Dep’t of Corr. v. District of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994).

243. Id.

244. Id. at 639–42.

245. Id. at 640.

246. Id. at 639–40.

247. Id. at 639–42.

248. Id. at 641.

249. Id. at 665.

250. Id.; see also Chandler v. District of Columbia Dep’t of Corr., 145 F.3d 1355, 1360 (D.C. Cir. 1998) (“We note at the outset that verbal threats, without more, may be sufficient to state a cause of action under the Eighth Amendment.”).

251. See generally Emma Kaufman, The Prisoner Trade, 133 Harv. L. Rev. 1815 (2020) (explaining the routine transfer of prisoners to different states and the disempowering Fourteenth Amendment procedural due process case law facilitating that practice).

252. Wilkins, 559 U.S. at 38.

253. Hudson, 503 U.S. at 9.

254. Farmer, 511 U.S. at 852.