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Inmate-guard sex presumed to be harassment, court says

September 4, 2012 |  2:00 pm

A federal appeals court ruled Tuesday that any sexual contact between a prison guard and an inmate should be presumed to be coercive.

A three-judge panel of the 9th Circuit U.S. Court of Appeals reinstated a claim by an Idaho male prison inmate who said a female guard groped him sexually after he tried to break off a romantic, but non-sexual, relationship with her.

A district court had ruled that two incidents in which the guard allegedly groped the prisoner were consensual in nature because the romantic relationship had not clearly ended. But the 9th Circuit said the imbalance in power between a prisoner and guard makes “it difficult to discern consent from coercion.” Courts should assume that sexual activity between guards and prisoners is not consensual unless proven otherwise, the panel ruled.

“Because of the enormous power imbalance between prisoners and prison guards, labeling a prisoner’s decision to engage in sexual conduct in prison as ‘consent’ is a dubious proposition,” Judge Betty B. Fletcher, a Jimmy Carter appointee, wrote for the court.

The appeals court said that sexual abuse in prisons was rampant and should be viewed as akin to sexual activity between adults and minors, even if inmates say the contact was voluntary.

Although the Idaho prisoner insisted he never consented to the groping, other inmates sometimes trade sexual favors for privileges, such as more phone time or longer visits with children, or for products such as gum or cigarettes, the court said. Intimate contact under such conditions should not be viewed as voluntary, the court said.

The court’s ruling affects California and other Western states.

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