Federal Appeals Court Finds Cross-Gender Search of Male Detainee Unconstitutional

In an en banc opinion released yesterday, the U.S. Court of Appeals for the Ninth Circuit held that the search of a male jail inmate by a female cadet, who touched his thighs, buttocks, and genital areas while other officers watched, amounted to an unreasonable search in violation of the Fourth Amendment. Just Detention International (JDI) served as amicus curiae in the case, Byrd v. Maricopa County Sheriff’s Department.

“This is an important decision, as cross-gender searches of male detainees rarely are recognized as a serious problem even though they are directly linked to sexual abuse” said Melissa Rothstein, Senior Program Director of JDI. “As the Court notes, everyone has the right to personal dignity, regardless of gender and custody status.”

Recent studies by the Bureau of Justice Statistics have found that, in both adult and juvenile facilities, the majority of sexual abuse of male inmates is committed by female staff.

In reversing the ruling of the Arizona District Court, the Ninth Circuit acknowledged the link between cross-gender searches and sexual abuse committed by corrections staff. Among other sources, the Court cited the National Prison Rape Elimination Commission, which was established by federal law to develop standards addressing sexual abuse in detention. The Commission’s standards, which are currently under review by the U.S. Attorney General, prohibit cross-gender searches in non-emergency situations.

“The decision in Byrd underscores the need to limit intrusive cross-gender searches, particularly in non-emergency situations,” said Rothstein.