Common Sense about Common Decency: Promoting a New Standard for Guard-on-Inmate Sexual Abuse under the Eighth Amendment

Note — Volume 100, Issue 2

100 Va. L. Rev. 437
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When inmates claim they are sexually abused by their prison guards, many courts scrutinize their claims to determine, as a threshold inquiry, whether they allege objectively serious injury. Courts often hold that guard-on-inmate sexual abuse does not inflict that level of injury, and therefore does not violate the Eighth Amendment or impose cruel and unusual punishment.

The dominant body of law arrives at the wrong conclusion because it focuses on the wrong question.  It asks whether guard-on-inmate sexual abuse imposes a threshold level of physical or psychological harm on an inmate. Instead, Eighth Amendment case law should simply ask whether a guard’s sexual abuse of an inmate, as specifically defined in current federal law, can be justified by any legitimate prison-management purpose. If it cannot, the law should presume that guard-on-inmate conduct violates contemporary standards of decency, and thus violates the Eighth Amendment.

This Note will demonstrate that courts’ misdirected focus has negative ramifications beyond its maladjustment to our society’s contemporary standards of decency. First, courts are less likely to find that male inmates meet the injury threshold. Consequently, the dominant standard often results in male inmates receiving less recognition and relief than female or transgender inmates for psychological injuries suffered from sexual abuse. Second, this disparate treatment and certain language in the case law promote a discourse about gender that proves problematic for men, women, and transgender persons alike.

Through this Note, I offer two fairly simple solutions to eliminate this disparate treatment and adjust Eighth Amendment standards to more closely correspond with current sexual abuse law and societal norms. Using emerging case law and Supreme Court precedent, I enumerate specific standards that advocates and courts can use to properly redirect the focus of the Eighth Amendment inquiry from the injury threshold to whether contemporary standards of decency have been violated by guard-on-inmate sexual abuse. State and federal law show our current societal norms deeply condemn such abuse, and suggest courts should presume violations of contemporary standards of decency in specified circumstances of sexual abuse.

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  Volume 100 / Issue 2  

Shareholder Derivative Litigation and the Preclusion Problem

By George S. Geis
100 Va. L. Rev. 261

Market Efficiency after the Financial Crisis: It’s Still a Matter of Information Costs

By Ronald J. Gilson & Reinier Kraakman
100 Va. L. Rev. 313

Improving Rights

By Nancy Leong
100 Va. L. Rev. 377

Common Sense about Common Decency: Promoting a New Standard for Guard-on-Inmate Sexual Abuse under the Eighth Amendment

By Megan Coker
100 Va. L. Rev. 437