Hailing Supreme Court Decision

June 7, 1994

Supreme Court Hailed for “Historic Breakthrough” in Prison Rape Decision

The president of the national organization Stop Prisoner Rape (SPR) today hailed the U.S. Supreme Court’s unanimous decision yesterday in Farmer v. Brennan (argued January 12) as a “historic breakthrough” in attempts to end what it called “the widespread and institutionalized practice of rape of prisoners.” The 15-year-old group, which filed a “friend of the court” (amicus) brief in the case and is the only group focused on the rape of confined persons, estimates that 290,000 boys and men are sexually assaulted in American jails, prisons, and juvenile institutions every year. Most of these, according to SPR, are young, nonviolent, and inexperienced at confinement life. The estimate is an extrapolation from previously published surveys.

“It is fitting that this decision should be handed down on the 50th anniversary of D-Day, for it marks our first beachhead established on a continent of tyrannical brutality, and opens the way for armies of lawyers to follow,” said Stephen Donaldson, president of the New York-based organization. “The Court has given a green light to the legal invasion. The rest of this war will be protracted, and liberators will meet delays, local defeats, and counteroffensives, but ultimately we shall be victorious,” he said.

“This is the first time the Supreme Court has directly addressed prisoner rape,” Donaldson, who testified at a Massachusetts legislative hearing on prison rape on May 23, commented. Retiring Justice Blackmun noted in a concurring opinon: “The horrors experienced by many young inmates, particuarly those who…are convicted of nonviolent offenses, border on the unimaginable. 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.”

Donaldson also cited a May 17 Boston Globe poll of 400 registered voters in Massachusetts which found that 62% were concerned about prison rape, 59% agreed that being raped in prison is a violation of Eighth Amendment rights, 78% felt the state should make an effort to prevent prison rape, and 73% favored the distribution of condoms in prisons.

The SPR head, himself a survivor of jailhouse gang-rape following an arrest at a Quaker antiwar pray-in on the White House lawn, pointed to these significant developments in the Court’s decision, written by Justice Souter:

The Court’s focus shifted significantly from suits for damages following an actual rape to requests for injunctions by prisoners “incarcerated under conditions posing a substantial risk of serious harm” as a result of the indifference of confinement officials. The emphasis on “conditions” and especially the use of “substantial” rather than a stronger term were significant signposts, Donaldson said.

The Court explicitly recognized that particular groups of prisoners (“all prisoners in his situation”) could face a hightened risk of sexual assault and could sue for protective measures on that basis, rather than having to show vulnerability “for reasons personal to” the complainant.

The Court recognized the need for officials to take affirmative action rather than stand by and “let the state of nature take its course.” As Justice Blackmun characterized it in his concurring opinion, the Court “sends a clear message to prison officials that their affirmative duty…is not to be taken lightly.”

The Court explicitly linked its decision on prisoner rape to its 1993 decision in Helling v. McKinney affirming injunctive relief from risk of exposure to “infectious diseases” (a matter of the highest urgency for prisoner rapes in the age of AIDS), citing the Helling standard allowing injunctions even though the “possible infection might not affect all of those exposed” to the unconstitutional risk. “The National Prison Project, arguing for the petitioner in this case, did not discuss the fatal risk of AIDS to the victims of prisoner rape,” said Donaldson, “but we did.”

The Court let stand the naming of the director of the Federal Bureau of Prisons as a defendant in the case, thus encouraging future lawsuits to target system-wide policies responsible for prisoner rape.

The Court resolutely pronounced that prisoner rape “serves no `legitimate penological objective,’ cannot be squared with “evolving standards of decency” and “is simply not `part of the penalty.'”

The Court held the door open for juries to draw inferences as to the state of mind of confinement officials from the “obviousness” of a risk, circumstantial evidence, and patterns of “longstanding, pervasive,” or “well-documented” abuse. By allowing such evidence to be presented to a jury, the Court has made summary dismissals much more unlikely, aided the discovery process, and brought the darkest corners of administrative abuse and neglect into the disinfecting sunlight of a public trial.

The Court firmly rejected any absolute requirement of “advance notification” to prison officials of the danger.

“The Court disposed of the narrow legal arguments by both parties to the case and turned its attention to the systematic pattern of abuses documented in our amicus brief and the need for injunctive relief to combat them,” said Donaldson. The approach taken by the National Prison Project of the American Civil Liberties Union on behalf of the prisoner (urging the court to apply the Canton v. Harris civil law standard of “deliberate indifference” or a “should have known” test) did not convince the Court, he said, but our brief apparently did.

Donaldson said the Court seemed far more favorably disposed towards lawsuits seeking changes in institutional practices and policies through injunctions than it was towards those seeking money awards for past rapes. “The hurdles maintained by the Court for those who must prove the past states of knowledge of officials are not much of a problem for those seeking to change future behavior,” he said.

“One major flaw in this decision with respect to damages is sure to return the problem to the Court eventually,” Donaldson said. “There is a glaring contradiction between a problem which has been characterized by nearly universal denial, even a refusal by top prison officials to learn about it, on the one hand, and the Court’s emphasis on proving subjective knowledge of the risk by those same officials on the other. To some extent, the Court seems to be encouraging the typical ostrich-like behavior by officials, which by refusing to acknowledge it perpetuates this horror, and I am certain that will come back to haunt the Court. You do not solve a problem by rewarding those who refuse to learn anything about it.”

Another problem, he said, was the invitation to judges to require prisoners to first follow “adequate prison procedures to resolve inmate grievances.” This can take many months, he said, during which prisoners can be raped and infected with AIDS.

Donaldson called on lawyers and prisoners around the country to enlist in a “moral crusade” to end what he termed “institutionalized torture.” (Justice Blackmun also called the system of prison rape “nothing less than torture.”) He said SPR was forming a legal committee to inform and assist attorneys and prisoners working on prisoner rape suits, giving highest priority to those requesting systematic injunctive relief along the lines outlined in its amicus brief. He said that Annapolis attorney Frank Dunbaugh had done “an outstanding job” in presenting the organization’s “Brandeis”-type brief to the Court. A “Brandeis” brief generally seeks to outline widely accepted facts about a general situation to the court, avoiding the specific facts of the case, but providing a general factual background against which the Court can measure the effects of its decision.

In the specific case before the Court, Dee Farmer’s suit against the federal prison system, which had been dismissed out of hand by the lower courts, was sent back to the district court with instructions to proceed with discovery and to apply the Court’s new standards.

Update February 25, 1997 Copies of the SPR amicus brief are available, while supplies last, for $6. For further information contact: Don Collins, President SPR, 333 North Ave 61 #4 . Los Angeles, CA 90042 (213) 257-6164