Sixth Circuit Reinstates Suit of Kentucky Jail Detainee Impregnated by Guard, Finds Genuine Factual Dispute Over Consent
by Matt Clarke
On November 18, 2021, the U.S. Court of Appeals for the Sixth Circuit reinstated a federal civil rights lawsuit brought by a former Kentucky jail prisoner who had sex with a transport guard, finding a genuine dispute of material fact as to whether she consented to the sexual encounters.
In 2017, Dustan Hale was held in the Marion County Detention Center, awaiting trial in neighboring Boyle County for failing a drug test while on pretrial diversion. Between January and April, Court Security Officer Thomas Pennington drove her at least six times to her monthly court hearings.
In the complaint she later filed, Hale recalled how Pennington made comments about her not getting “to see daylight very much” and it being “a sunny day,” offering to take the long way back to Marion County. During the trip, he bought her a soda. Putting her in the front seat and uncuffing her, he said: “You’re in control now.” She took that as an invitation for sex and said, “I’ll suck your dick if you’re cool with it.” Pennington then drove to a field, the two kissed, and Hale performed oral sex on him.
On later trips in the transport van, they repeatedly performed oral sex on each other, also engaging in unprotected vaginal sex. Hale then became pregnant and ultimately gave birth to their daughter in November 2017.
Before and after the sexual encounters, Pennington “showered Hale with perks,” according to her complaint. “[S]he rode cuffless in his van’s front seat, he bought her sodas, and he allowed her to smoke. He also offered to intervene in Hale’s pending criminal case.”
Pennington was caught after Sheriff Derek Robbins figured out it was taking the jailer way too long to make his intercounty trips. He suspended Pennington without pay and instigated a police investigation. When that concluded, Pennington was fired. Ultimately, he pleaded guilty to bribery of a public servant and sexual misconduct, in violation of Kentucky Revised Statutes § 521.020 and § 510.140, respectively.
In January 2018, Hale filed suit in federal court for the Western District of Kentucky against Pennington, Boyle County and Sheriff Robbins, accusing them of violating her Fourteenth Amendment protections from both excessive force and deliberate indifference to her serious risk of harm, as well as subjecting her to malicious and sadistic mistreatment sufficient to “shock the conscience,” as laid out in Guertin v. Michigan, 912 F.3d 907 (6th Cir. 2019).
Defendants agreed that Hale’s was an excessive-force claim, but they argued that she had consented to the sexual encounters and therefore Pennington’s behavior could not be forceful, much less excessively so, nor was it sufficiently malicious or sadistic to “shock the conscience.” The district court agreed and granted Defendants’ motion for summary judgment. Aided by attorney Aaron Bentley of Belzley, Bathurst & Bentley of Prospect, along with co-counsel Michele Henry of Craig Henry PLC in Louisville, Hale appealed.
At the Sixth Circuit, the three-judge panel found a similar case in Brown v. Flowers, 974 F.3d 1178 (10th Cir. 2020), which viewed a pretrial detainee’s claims of sexual abuse by a guard as an excessive-force claim to be evaluated under the wholly objective standard announced in Kingsley v. Hendrickson, 576 U.S. 389 (2015).
The Court then noted that Rafferty v. Trumbull Cty., 915 F.3d 1087 (6th Cir. 2019), created a presumption that sexual conduct between prison officials and prisoners was nonconsensual, though one that could be rebutted. Even without force, the Rafferty Court held, coercive factors could include “favors, privileges, or any type of exchange for sex.”
Applying that standard, the Court said that the lack of physical force in the instant case didn’t matter; the gifts, privileges and offer to intervene in her case which Hale received from Pennington were sufficient evidence of coercion to create a genuine issue of material fact for a jury to try. Therefore, the district court’s decision was reversed and the case remanded for further proceedings. See: Hale v. Boyle Cty., 18 F.4th 845 (6th Cir. 2021).
The case has now returned to the district court, and PLN will report further developments as they become available. See: Hale v. Boyle Cty., USDC (W.D. Ky.), Case No. 3:18-cv-00002.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Hale v. Boyle Cty
|Cite||USDC (W.D. Ky.), Case No. 3:18-cv-00002|