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Virginia Federal Court Invalidates DOC Ban on Sexually Explicit Books
by David M. Reutter
A U.S. District Court has held that a Virginia Department of Corrections (VDOC) policy which prohibits “works of literature which include an explicit description of a sexual act or intercourse” is unconstitutional, both facially and as applied.
The court’s ruling was entered on cross-motions for summary judgment filed in a lawsuit brought by VDOC prisoner William R. Couch. Couch claimed that VDOC operating policy 803.2, which was used to exclude Ulysses and Lady Chatterley’s Lover from the prison library and prevented him from ordering those books from a private vender, violated his rights under the First and Fourteenth Amendments.
A publication can be banned under VDOC’s “specific criteria for publication disapproval” if it contains “...explicit or graphic depictions or descriptions of sexual acts, including but not limited to: a. Actual sexual intercourse, normal or perverted, anal or oral; b. Secretion or excretion of bodily fluids or substances in the context of sexual activity; c. Lewd exhibitions of uncovered genitals in the context of sexual activity; d. Bondage, sadistic, masochistic or other violent acts in the context of sexual activity; e. Any sexual acts in violation of state or federal law.”
The district court noted that the “violation of state or federal law” provision “would ban any book describing rape, statutory rape, attempted rape, incest, adultery, polygamy, sexual abuse, and prostitution.”
Without providing scientific or expert testimony, the VDOC contended its policy was constitutional because it had a logical connection to the penological goals of rehabilitation and protecting the security, discipline and good order of the prison system. In so doing, the VDOC listed the usual panoply of goals that prison officials use to support such regulations. That list included stopping bartering or disputes over sexually explicit material, protecting prisoners and staff from the violence or harassment such material would cause if allowed, and ensuring that rehabilitation efforts were not undermined.
The court flatly rejected the VDOC’s arguments. “It strains credulity to believe that limiting a prisoner’s access to Lady Chatterley’s Lover could have any effect on the security, discipline, and good order of the prison,” wrote the district court. “Likewise, it would be patently incredible to assert [James] Joyce’s Ulysses will somehow threaten the rehabilitation of a prisoner.”
The court held it “would be irrational, if not utterly incomprehensible” that such books and a list of dozens of “highly regarded works of literature which include an explicit description of a sexual act or intercourse” could be banned by prison officials, “while permitting Playboy.”
The VDOC was aware that the Holy Bible has descriptions of incest yet is not banned.
“When regulations are not strictly enforced in prison contexts, the regulations can rightly be subjected to criticism as arbitrary,” the court noted. “The broad reach of the regulation merely provides an opportunity for arbitrary enforcement of this regulation on the basis of the VDOC chaplain’s moral judgment.”
As such, the district court held the “regulation does not possess the constitutionally required rational connection between the regulation and the legitimate governmental objective.” Further, the court found the regulation was not reasonable but was an exaggerated response to the concerns of prison officials. As the policy was unconstitutional, the district court held that injunctive relief was appropriate but declined to award punitive damages.
The VDOC was enjoined from enforcing and applying Operating Procedure 803.2, while the court afforded Virginia prison officials “an opportunity to amend, revise, or modify” the regulation, or to draft a constitutional policy. The court granted Couch’s motion for costs and expenses on November 18, 2010, taxing Couch’s $350 filing fee to the defendants. Couch represented himself pro se. See: Couch v. Jabe, U.S.D.C. (W.D. Vir.), Case No. 7:09-cv-00434-jct-mfu; 2010 WL 3433630.
A U.S. District Court has held that a Virginia Department of Corrections (VDOC) policy which prohibits “works of literature which include an explicit description of a sexual act or intercourse” is unconstitutional, both facially and as applied.
The court’s ruling was entered on cross-motions for summary judgment filed in a lawsuit brought by VDOC prisoner William R. Couch. Couch claimed that VDOC operating policy 803.2, which was used to exclude Ulysses and Lady Chatterley’s Lover from the prison library and prevented him from ordering those books from a private vender, violated his rights under the First and Fourteenth Amendments.
A publication can be banned under VDOC’s “specific criteria for publication disapproval” if it contains “...explicit or graphic depictions or descriptions of sexual acts, including but not limited to: a. Actual sexual intercourse, normal or perverted, anal or oral; b. Secretion or excretion of bodily fluids or substances in the context of sexual activity; c. Lewd exhibitions of uncovered genitals in the context of sexual activity; d. Bondage, sadistic, masochistic or other violent acts in the context of sexual activity; e. Any sexual acts in violation of state or federal law.”
The district court noted that the “violation of state or federal law” provision “would ban any book describing rape, statutory rape, attempted rape, incest, adultery, polygamy, sexual abuse, and prostitution.”
Without providing scientific or expert testimony, the VDOC contended its policy was constitutional because it had a logical connection to the penological goals of rehabilitation and protecting the security, discipline and good order of the prison system. In so doing, the VDOC listed the usual panoply of goals that prison officials use to support such regulations. That list included stopping bartering or disputes over sexually explicit material, protecting prisoners and staff from the violence or harassment such material would cause if allowed, and ensuring that rehabilitation efforts were not undermined.
The court flatly rejected the VDOC’s arguments. “It strains credulity to believe that limiting a prisoner’s access to Lady Chatterley’s Lover could have any effect on the security, discipline, and good order of the prison,” wrote the district court. “Likewise, it would be patently incredible to assert [James] Joyce’s Ulysses will somehow threaten the rehabilitation of a prisoner.”
The court held it “would be irrational, if not utterly incomprehensible” that such books and a list of dozens of “highly regarded works of literature which include an explicit description of a sexual act or intercourse” could be banned by prison officials, “while permitting Playboy.”
The VDOC was aware that the Holy Bible has descriptions of incest yet is not banned.
“When regulations are not strictly enforced in prison contexts, the regulations can rightly be subjected to criticism as arbitrary,” the court noted. “The broad reach of the regulation merely provides an opportunity for arbitrary enforcement of this regulation on the basis of the VDOC chaplain’s moral judgment.”
As such, the district court held the “regulation does not possess the constitutionally required rational connection between the regulation and the legitimate governmental objective.” Further, the court found the regulation was not reasonable but was an exaggerated response to the concerns of prison officials. As the policy was unconstitutional, the district court held that injunctive relief was appropriate but declined to award punitive damages.
The VDOC was enjoined from enforcing and applying Operating Procedure 803.2, while the court afforded Virginia prison officials “an opportunity to amend, revise, or modify” the regulation, or to draft a constitutional policy. The court granted Couch’s motion for costs and expenses on November 18, 2010, taxing Couch’s $350 filing fee to the defendants. Couch represented himself pro se. See: Couch v. Jabe, U.S.D.C. (W.D. Vir.), Case No. 7:09-cv-00434-jct-mfu; 2010 WL 3433630.
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Related legal case
Couch v. Jabe
| Year | 2010 |
|---|---|
| Cite | U.S.D.C. (W.D. Vir.), Case No. 7:09-cv-00434-jct-mfu; 2010 WL 3433630 |
| Level | District Court |
| Injunction Status | N/A |