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Tenth Circuit Holds “Consensual” Sex Defeats Prisoner’s Eighth Amendment Claim

Tenth Circuit Holds “Consensual” Sex Defeats Prisoner’s Eighth Amendment Claim

by Mark Wilson

The Tenth Circuit Court of Appeals has held that a female prisoner’s “consensual” sex with two guards did not violate the Eighth Amendment.

Stacey Graham was housed in solitary confinement at a jail in Logan County, Oklahoma. Between July and October 2009, jail guard Rahmel Jefferies began talking to Graham over the intercom and their discussions soon became sexual. They also exchanged sexually explicit notes. “I look forward to fucking you,” Graham wrote in one note. “Damn, just the thought of that gets my nipples hard. I’m such a nympho!” She also flashed her breasts at Jefferies “for the hell of it.”

On October 7, 2009, another jailer, Alexander Mendez, called Graham over the intercom, “asked about her sexual fantasies” and told her about his. “She responded that her fantasy was to ‘be with two men at the same time.’... He asked who she would like him to bring. She said, ‘Bring Jefferies.’” Graham then agreed to allow Mendez to see her naked when he came by her cell.

During the early morning hours of October 9, 2009, Jefferies and Mendez entered Graham’s cell. She “was wearing just her T-shirt. Mendez took it off and Ms. Graham kissed Jefferies.... it was then ‘back and forth’ between the two men, and both had their hands on her. Jefferies began to have intercourse with Ms. Graham while she simultaneously performed oral sex on Mendez. The two men then switched positions....”

Another prisoner later alerted the assistant jail administrator that something was going on between Graham and the guards. Graham eventually admitted to having consensual sex with Mendez and Jefferies, but said she “didn’t really want Mendez there.”

Both guards were immediately terminated after they admitted to the sex acts. Graham was transferred to a different facility, where she told a psychologist that two guards had raped her. She “had a history of bipolar disorder and sexual abuse,” but neither Jefferies nor Mendez was aware of her mental health issues.

Graham filed suit in federal court, alleging that the sexual encounter with Mendez and Jefferies violated her rights under the Eighth Amendment. The district court granted summary judgment to the defendants, “holding that ‘in light of the consensual sexual activity at issue in this case,’ there was no Eighth Amendment violation.”

The Tenth Circuit affirmed on December 20, 2013, noting that Graham, unsurprisingly, focused “not on whether she consented as a factual matter but on whether a prisoner can legally consent to sex with one of her custodians.” The Court of Appeals declined to hold that consensual sex in this context violates the Eighth Amendment.

The Court observed that “it is a matter of first impression in this circuit whether consent can be a defense to an Eighth Amendment claim based on sexual acts.” It then noted that other courts had split on the issue, and the Ninth Circuit had recently “adopted a middle ground in Wood v. Beauclair, 692 F.3d 1041 (9th Cir. 2012),” creating “a rebuttable presumption of nonconsent.” [See: PLN, March 2014, p.54].

“Even were we to adopt the same presumption as the Ninth Circuit,” the appellate court wrote, in Graham’s case “the presumption against consent would be overcome by the overwhelming evidence of consent.” See: Graham v. Sheriff of Logan County,­ 741 F.3d 1118 (10th Cir. 2013).

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Related legal cases

Graham v. Sheriff of Logan County

Wood v. Beauclair


 

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