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Authors

Flyn L. Flesher

Abstract

A variety of state, federal, and international laws theoretically prohibit sexual abuse of prisoners by the guards hired by the state to oversee them. Nevertheless, sexual abuse of female prisoners by male prison guards is a rampant phenomenon that the law has thus far failed to remedy. Cross-gender supervision policies exacerbate the problem by placing women in situations in which they have no escape from their attackers. These policies, which are as dangerous for some prisoners as they are humiliating to all prisoners, have generally withstood scrutiny in courts.

This note attempts to reframe the arguments challenging crossgender supervision policies and proposes a more narrowly tailored constitutional claim against them. Clearly establishing the causal link between cross-gender supervision policies and custodial sexual abuse could convince courts to enjoin prisons from hiring male guards to oversee female prisoners in contact positions. Such a result would hopefully both stem the tide of sexual abuse in prisons while simultaneously improving conditions of confinement for female prisoners by restricting prisons from adopting these degrading policies.

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