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Peeping Toms

Do prison inmates have a right to privacy?

The United States is one of the few developed countries in the world that allow men to guard women and women to guard men in prison living quarters. And over the decades states have created a patchwork of policies governing privacy when inmates are using the bathroom or sleeping, and when they are patted down for security. There are no national rules for cross-gender supervision, so when a state or a county has overhauled its practices it has usually been a result of “litigation and scandal,” said Brenda Smith, a member of the National Prison Rape Elimination Commission.

That is supposed to change in August, when the cross-gender rules of the Prison Rape Elimination Act are to take effect1. The law, which sets standards for preventing and responding to sexual abuse, mandates that inmates must be able to shower and go to the bathroom without being watched by non-medical staff of another gender. In addition, male officers will be prohibited from patting down female inmates except in emergency situations.

take effect1For facilities with more than 50 inmates.

Two facilities 190 miles apart illustrate the extremes -- one falling far short of the impending rules, and one that goes beyond them.

At the Muskegon County Jail in Michigan, according to a federal lawsuit filed this month, male officers and some male inmates can see women naked, because many of the toilets and showers inside the cells are visible from hallways. According to the inmates’ attorneys, this lack of privacy is a violation of their right to privacy.

A three-hour drive away, at the Huron Valley Correctional Facility—Michigan’s only women’s state prison—the rules are much more strict. In 2005, male officers were completely removed from women's living quarters. The change was part of a settlement with the U.S. Justice Department, based on a federal investigation into sexual abuse of female prisoners. Later, the state agreed to pay $100 million to settle a class-action lawsuit by more than 500 female prisoners who said they were sexually assaulted by prison guards. According to the lawsuit, most of the abuse occurred where the women slept and bathed.

The attorneys for the women at the Muskegon County Jail are seeking an overhaul of the jail’s cross-gender viewing policies. “When women are being observed naked on a routine basis by guards of the opposite sex, you run a great risk with respect to sexual assault,” said Miriam Aukerman, counsel for the plaintiffs and an attorney with the American Civil Liberties Union. Neither the Muskegon County Sheriff’s office nor an attorney representing the jail responded to interview requests.

Cross-gender supervision in U.S. prisons has only become the norm since the 1970’s. Before that, prison employees almost exclusively supervised inmates of the same sex. But after equal employment rights legislation took hold, women began demanding equal career opportunities in corrections. The overwhelming majority of inmates -- and of prisons -- are male, so that is where the jobs are.

Once men and women entered employment at prisons housing inmates of the opposite sex, problems began almost immediately. In 1977, male corrections officers at Bedford Hills, a women’s prison in upstate New York, were assigned to supervise living and sleeping corridors for the first time. Months after the change, female prisoners filed suit asserting that male officers often viewed them in various stages of undress, in violation of their constitutional right to privacy.

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In a widely cited ruling, the court ultimately decided that certain measures, such as five-minute warnings and the ability to cover cell windows for fifteen minutes while changing, provided sufficient privacy protection without the need to preclude men from employment at Bedford. (Despite the changes, sexual abuse at Bedford has continued. In just the past six months, three male officers at Bedford were arrested on rape charges.)

As cases concerning both male and female inmate privacy have come before courts, judges have ruled more sympathetically towards claims brought by women prisoners. The courts have been less sympathetic to similar suits filed by men. Judges have reasoned that women are more vulnerable than men and frequently come into prison already the victims of previous sexual abuse. The latest Justice Department study of prisons and jails shows allegations of sexual abuse are increasing, and half the claims about abuse were lodged against correctional officers. Women represent 7 percent of all inmates, yet accounted for 33 percent of staff-on-inmate victims.

In a 2013 investigation of the Julia Tutwiler Prison for Women in Alabama, Department of Justice investigators found “deliberate cross-gender viewing of prisoners showering, urinating, and defecating.” And that wasn’t the worst of it. The DOJ report outlined allegations of prison guards harassing and sexually abusing inmates for nearly two decades, condemning the facility as a “toxic, sexualized environment” that is unconstitutional. Among many recommendations for reform, the department called on officials at the Tutwiler Prison to adjust procedures and prison architecture so that women could perform bodily functions privately. Alabama corrections spokesperson Kristi Gates said shower curtains, toilet partitions and privacy curtains have now been installed in all dorms.

Litigation has prompted some prisons to protect sight lines where women undress. After a class-action lawsuit was filed by female inmates against Washington State’s corrections department in 2007, officials made numerous changes at the women’s prisons, including installing solid curtains and obscured glass in the showers. In Oregon, Brian Lathen, who has litigated over a dozen cases involving abuse of women prisoners, said his plaintiffs would tell him that despite privacy barriers, the men “were looking at them by the reflection in the puddle.” Oregon corrections spokesperson Betty Bernt said the department “continues to take steps” to ensure opposite-gender staff can’t see inmates showering. “We utilize privacy screening/barriers where we are able, and if that is not feasible, same-gender staff are assigned to areas that directly view such locations.”

Almost all of the new PREA rules about cross-gender supervision apply to both male and female facilities, except pat downs. The PREA commission that established the standards had originally pushed for a restriction on both male and female officers frisking inmates of the opposite sex, but the rule’s application to male inmates was rejected by the Justice Department. “I felt like there needed to be equality and parity in treatment,” said Smith, the PREA commission member, but one of the major concerns was that this would limit women’s career opportunities.

In the end, policies can only go so far, said Smith. “Rules are only as good as the people who enforce them.”