Voluntary Exposure in Jails & Prisons–Do your policies protect you?
By Expert : Tate McCotter
If you know the nicknames “gun slinger” or “mule skinner” you will likely understand the need for the writing of this article. Correctional officers regularly deal with inmates who voluntarily disrobe – actions which can lead to compromising situations that can adversely affect the safety, security, order and discipline of the jail. Voluntary exposure by an inmate is connected to a variety of key issues that present serious liability and administrative issues which are critical for administrators and officers to know and understand. While a daily occurrence witnessed by many officers, and often one reported and complained about, especially by female staff, NIJO polls reflect many jail administrations do not have policies which addresses voluntary exposure.1 Rather, staff just “deals with it” in their own operational ways.
Inmates may disrobe in front of staff for a variety of reasons. This can be in part as an act of defiance or intimidation against staff or other inmates. Such actions may also be due to intoxication, drug use, or mental disorder. Inmates may also intentionally disrobe in an attempt to prevent staff members of the opposite gender from being able to perform duties in the proximity of the disrobed prisoner. Gang tattoos may appear which are otherwise hidden to the general population. Inmates can trigger unwelcomed or uninvited sexual activity with other inmates, compromising the safety, security and order of the jail. Transgender issues, inmates serving with severe sexual addictions and other disorders may be induced by the exposure. All of the above represent serious issues and the potential liability risks, and no, the DOJ PREA standards do not address this topic adequately or from a legal-based perspective.
Consider what happens when an inmate disrobes voluntarily.
How do these actions relate to privacy issues, officers performing their duties, or disciplinary measures?
Inmate handbooks often state that inmates are required to wear standard issue at all times, yet few handbooks discuss the consequences of actions if that requirement is violated. How often do you hear callouts from the control room demanding an inmate to put back on the shirt or pants only to have no compliance or have the same request repeated 30 minutes later? What about officers doing regular checks that have to deal with inmates who purposely masturbate in front of them or other inmates? And what of cross gender viewing and how the courts will take to those situations when officers are merely trying to do their job and witness voluntary exposures. Does the right to privacy exist? Can disciplinary or criminal action be taken? If so, what is appropriate?
Of equal concern to administrators is the potentiality for staff to file hostile work environment lawsuits when voluntary exposure incidents are repeatedly reported, ignored and continue without being addressed by the administration. Likewise, PREA and other legislative and court rulings have garnered more attention than ever emphasizing the appropriate interaction of officers and inmates and duty to protect requirements, increasing deliberate indifference claims.
The highest courts in the land have given administrative officials deference in setting policies and procedures.2 Considering the various challenges, penological interests of safety, security, order and discipline, and liability risks to officers and administrators, administrations may want to consider the following factors in developing constitutionally sound policies, procedures and operational practices that work best for their own institution.
- Adopt and implement policies and procedures governing handling of inmates who voluntarily disrobe, thus exposing their private areas. Policies are essential in order for the administration to define what is considered to be inappropriate exposure and the consequences of noncompliance. In order to discipline an inmate, the inmate needs to know the expectations and rules. Courts have ruled that inmates should not be punished for violation of rules of which the inmate had not received fair notice3 nor for conduct of an innocuous or trivial nature under vague and uncertain regulations.4 Likewise, staff cannot enforce rules if they are not clearly defined and procedures are not connected with the policies. Inmate handbooks and administrative policies reflect sound establishment rules which can then be enforced and successfully defended as needed.
- Clothing/ dress required. It is not unreasonable for an administration to require inmates to be clothed. Exceptions may include inmates who are taking a shower, in bed, engaging in recreation (inmate may wear approved exercise clothing) or specifically authorized to remove clothing for other legitimate purposes.
- Define voluntary exposure. It is generally considered as any circumstance in which an inmate intentionally disrobes, partially disrobes, or otherwise displays his or her private areas to jail officers or other persons (administrators may wish to be more or less detailed in defining specific body parts, etc.)
- Staff members, including volunteers, are prohibited from gratuitous or unnecessary viewing of inmates of the opposite sex while they are showering, using the toilet or undressed.
- Inmates can take steps to protect their modesty.5
- No constitutional violations. Some inmates may voluntarily take off their clothing or expose their private areas to staff for the purpose of intimidating, embarrassing, or preventing them from completing their assigned duties; however, inmates’ “voluntary disregard for their own modesty” does not create a constitutional violation.6
- When such actions occur, staff members are not required to retreat or leave the area.
- Such exposure is voluntary and waives, for that point in time, the inmate’s expectation of sexual privacy. Inmates may, as a result of their own actions, waive their sexual privacy. “If [inmates] are responsible for their own exposure, arguably the conduct of guards cannot be characterized as invading privacy rights.”7
- Cross gender searches and supervision by staff should be written into policies and procedures including the degree of sexual privacy required for inmates balanced the legitimate safety and security needs of the jail and legal requirements of Title VII of the 1964 Civil Rights Act.8
- Disciplinary Action. Inmates who violate dress code and intentionally expose their genitals and/or masturbate in the presence of staff are subject to disciplinary action and depending on the facts surrounding the exposure, may be subject to criminal prosecution. Inmates are not insulated against prosecution for violations of the law simply because they are already in jail or because the offense is committed against another inmate. Criminal acts committed by inmates in a jail should be prosecuted whenever feasible.9 Aggressive prosecution of crimes committed by incarcerated persons sends a message to inmates that such conduct will not be tolerated and that there will be a price to pay for such violations. (NOTE: One such jail reported to us they call sex crime detectives and charge inmates criminally for such violations. In doing so, they reported their incidents have dropped to almost non-existent. They believe the success is due to the fact that, if found guilty, the inmate will have to register as a sex offender, which many inmates who may be transferred to state prison, do not want to have that label on the rap sheet.)
- See National Institute for Jail Operations. www.jailtraining.org . Online polls 2015-2016.
- Turner v. Safley, 482 U.S. 78 (1987); see also Florence v. Board of Chosen Freeholders of Burlington County, 132 S.Ct. 1510 (2012)
- Reeves v. Pettcox, 19 F.3d 1060 (CA2 1994); Giano v. Senkowski, 54 F.3d 1050 (CA2 1995) (rule approved because it was not unconstitutionally vague); Seehausen v. Van Buren, 243 F.Supp.2d 1165 (D. Ore. 2002).
- Aiello v. Litscher, 104 F.Supp.2d 1068 (W.D. Wisc. 2000).
- Grummett v. Rushen, 779 F.2d 491 (CA9 1985) (prisoner can cover himself while sitting on toilet); Johnson v. Pennsylvania Department of Corrections, 661 F.Supp. 425, (W.D. Pa. 1987) (prisoners may control light; if using toilet, can drape towel over lap); Bagley v. Watson, 579 F.Supp. 1099 (D. Ore. 1983) (prisoners may reduce intrusion by adjusting their own habits).
- Torres v. Wisconsin Department of Health and Social Services, 838 F.2d 944, 953 (CA7 1988) (Prisoners waive their sexual privacy protections “where the inmate voluntarily displays her unclothed self or fails to avail herself of procedures designed to protect her privacy.”); Lee v. Downs, 641 F.2d 1117 (CA4 1981) (“[S]he had thus exposed herself. Since her genital area was already in full view of the two male guards, it was not an horrendous additional invasion of her right of privacy . . . .”); Casaias v. Utah, No 87-C-0871-W (C.D. Utah 1988) (where “inmate disregard[ed] his own opportunity for privacy [during strip search] he may not be heard to complain”).
- Forts v. Ward, 566 F.2d 849, 853, n. 17 (CA2 1977)
- NIJO Legal-Based Jail Guidelines N02 Gender Issues
- NIJO Legal-Based Jail Guidelines D06.03.07 Criminal Violations: Process
This material was written and authored by Tate McCotter referencing copyrighted Legal-Based Jail Guidelines, modified to specific states by NIJO and DeLand & Associates. Materials herein may not to be distributed otherwise without written permission by NIJO. The information contained herein is to be used solely for training purposes and shall not be construed as legal advice. Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.