by Matt Clarke
On February 15, 2019, the Sixth Circuit Court of Appeals upheld a district court’s denial of qualified immunity to an Ohio jail guard who allegedly ordered a prisoner to expose herself and masturbate for him.
Michele L. Rafferty and Katie L. Sherman were in the same housing area at the Trumbull County jail from 2013 to 2014. Charles E. Drennen was a guard who regularly patrolled the unit where the women were held.
During the last three months of Sherman’s incarceration, Drennen reportedly demanded that she expose her breasts for him on three or four occasions. She acquiesced. Once or twice, he asked her to masturbate for him and again she complied. Sherman did not claim that Drennen touched or explicitly threatened her, but said she was “deeply disturbed” by his demands and suffered worsening of her PTSD, night terrors and flashbacks. She did not report the incidents to jail officials because she was intimidated.
Rafferty corroborated Sherman’s claims, and said Drennen threatened her after she confronted him about his conduct and asked him not to engage in similar behavior with other female prisoners. During an investigation by Trumbull County officials, Drennen resigned.
Sherman and Rafferty filed a federal civil rights lawsuit pursuant to 42 U.S.C. § 1983 against Drennen, the county and county personnel, asserting an Eighth Amendment claim against Drennen and Fourth Amendment claims against the other defendants. The district court granted summary judgment to the defendants on all claims except Sherman’s Eighth Amendment claim against Drennen, and he appealed.
The Sixth Circuit noted that, for purposes of the interlocutory appeal, it must view the facts in the light most favorable to Sherman. Writing that federal courts “have long held that sexual abuse is sufficiently serious to violate the Eighth Amendment,” it held that Sherman’s allegations were sufficient to support her Eighth Amendment claim.
The appellate court rejected Drennen’s defense that he never touched Sherman, finding it had held three decades earlier that sexual abuse did not necessarily require physical touching. Other circuits had held likewise for sexual comments, homophobic epithets and forced stripteases. “Furthermore, the abuse alleged to have occurred in this case did not merely consist of words. It also entailed forced sexual acts. The fact that Drennen effectuated this sexual abuse by ordering Sherman to expose her breasts and masturbate, rather than by touching Sherman himself, does not change the fact that Sherman was required to repeatedly engage in sexual acts against her will.”
The Court of Appeals also rejected Drennen’s claim that Sherman had consented to his requests, noting that “inmates are generally regarded as unable to consent to sexual relations with prison staff.” Finally, the Court held that, in 2014, it was clearly established that sexual abuse of prisoners, even absent physical touching, could rise to the level of a constitutional violation.
“In sum, a reasonable officer in Drennen’s position would have known that repeatedly ordering Sherman to expose her breasts and masturbate in his presence could violate her Eighth Amendment rights,” the appellate court wrote.
The Sixth Circuit therefore affirmed the district court’s judgment, and the case remains pending on remand. See: Rafferty v. Trumbull County, 915 F.3d 1087 (6th Cir. 2019), rehearing en banc denied.
Additional source: cato.org
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Related legal case
Rafferty v. Trumbull County
|Cite||915 F.3d 1087 (6th Cir. 2019), rehearing en banc denied|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|