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Ninth Circuit Announces New Rule on Eighth Amendment Violation Due to Sexual Assault by Montana Prison Staffer

by Dale Chappell

The U.S. Court of Appeals for the Ninth Circuit announced a new rule on January 16, 2020 concerning what constitutes a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment when a prisoner alleges a sexual assault by prison staff.

The new rule was established after Dewayne Bearchild took his federal lawsuit to a jury trial, alleging that Montana State Prison Sergeant Larry Pasha sexually assaulted him during a pat-down search. He claimed that Pasha groped and touched his groin area, and made inappropriate comments about his body.

During the two-day trial before a six-member jury, the district court instructed the jury to use the Ninth Circuit Model Civil Jury Instruction dealing with excessive force claims. The court told the jury that Bearchild could establish an Eighth Amendment violation only if he could show: (1) that Pasha “used excessive and unnecessary force”; (2) that he “acted maliciously and sadistically for the purpose of causing harm”; and (3) Pasha’s actions “caused harm” to Bearchild.

Bearchild, who acted pro se throughout the entire trial, failed to object to the use of excessive force jury instruction to establish a sexual assault claim. Nevertheless, the Ninth Circuit ruled that it was “plain error” by the district court and that it impacted Bearchild’s “substantial rights.” The Court reiterated that a jury instruction error is a plain error if it adds a non-existent element to the plaintiff’s case.

The Court explained that it and the Supreme Court have both held that “sexual contact between a prisoner and a prison guard serves no legitimate role and is simply not part of the penalty that criminal offenders pay for their offenses against society.” The Court added that “any sexual assault is objectively repugnant to the conscience of mankind” and it is therefore an Eighth Amendment violation.

Indeed, the Court stressed that no showing of injury or harm is even needed to establish an Eighth Amendment violation from a sexual assault by prison staff.

Applying these standards, the Court concluded that the jury instruction given by the district court “misstated the elements” needed to establish an Eighth Amendment violation from a sexual assault. As such, the error was “plain error” requiring reversal of the jury’s verdict in favor of Pasha.

The Court took the moment to establish a new rule for sexual assault claims by prisoners against prison staff: “We now hold that a prisoner presents a viable Eighth Amendment claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.”

The Court found that the excessive force jury instruction did not satisfy this requirement in Bearchild’s case. Instead, he was erroneously required to show that Pasha’s touching of his genitals was both “excessive and unnecessary.” The jury was not told that “sexual assault is by definition both excessive and unnecessary,” the Court said.

Accordingly, the Court granted Bearchild a new trial under the new rule established in its decision. See: Bearchild v. Cobban, Case No. 17-35616 (9th Cir. 2020) 

Related legal case

Bearchild v. Cobban