14‐969‐cv
Crawford v. Cuomo, et al.
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2014
ARGUED: FEBRUARY 24, 2015
DECIDED: AUGUST 11, 2015
No. 14‐969
JAMES CRAWFORD and THADDEUS CORLEY,
Plaintiffs‐Appellants,
v.
ANDREW CUOMO as Governor of the State of New York, in his official
capacity; BRIAN FISCHER, Commissioner of Department of Corrections and
Community Supervision, in his official capacity; Superintendent WILLIAM P.
BROWN, in his personal and official capacities; Superintendent WILLIAM
LARKIN, in his official capacity; Corrections Officer SIMON PRINDLE; and
JOHN DOE CORRECTIONS OFFICERS 1‐8,
Defendants‐Appellees.1
________
Appeal from the United States District Court
for the Northern District of New York.
No. 13 Civ. 406 – Norman A. Mordue, Judge.
________
1 The Clerk of the Court is directed to amend the caption as set forth above.
2 No. 14‐969‐cv
Before: KATZMANN, Chief Judge, WALKER and LYNCH, Circuit Judges.
________
On March 5, 2014, the district court (Norman A. Mordue, J.)
dismissed a complaint filed by Thaddeus Corley, an inmate at the Eastern
Correctional Facility (“ECF”), and James Crawford, a former ECF inmate,
alleging that Corrections Officer Simon Prindle sexually abused them and,
in doing so, subjected them to cruel and unusual punishment in violation of
the Eighth Amendment. In dismissing the case, the district court concluded
that the complaint failed to state a claim under Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997), which set forth the standard for stating an Eighth
Amendment claim arising from sexual abuse in prison. Crawford and
Corley appealed, arguing that the district court construed our opinion in
Boddie too narrowly. We agree.
We write today to clarify the rule set forth in Boddie: A corrections
officer’s intentional contact with an inmate’s genitalia or other intimate area,
which serves no penological purpose and is undertaken with the intent to
gratify the officer’s sexual desire or to humiliate the inmate, violates the
Eighth Amendment. Moreover, we recognize that sexual abuse of
prisoners, once passively accepted by society, deeply offends today’s
3 No. 14‐969‐cv
standards of decency. The proper application of the rule in Boddie must
reflect these standards.
By alleging that Officer Prindle fondled their genitals for personal
gratification and without penological justification, Crawford and Corley
stated a cognizable Eighth Amendment claim. Accordingly, we REVERSE
the district court’s order dismissing the complaint and REMAND the case
for further proceedings consistent with this opinion.
________
ADAM D. PERLMUTTER, Law Offices of Adam D.
Perlmutter, P.C., New York, N.Y. (Daniel A. McGuinness,
Law Offices of Adam D. Perlmutter, P.C., New York,
N.Y.; Zachary Margulis‐Ohnuma, Law Office of Zachary
Margulis‐Ohnuma, New York, N.Y., on the brief), for
Plaintiffs‐Appellants.
FRANK BRADY, Assistant Solicitor General of Counsel
(Barbara D. Underwood, Solicitor General, Andrew
Ayers, Assistant Solicitor General of Counsel, on the brief),
for Eric T. Schneiderman, Attorney General of the State of
New York, Albany, N.Y., for Defendants‐Appellees.
________
JOHN M. WALKER, JR., Circuit Judge:
On March 5, 2014, the district court (Norman A. Mordue, J.)
dismissed a complaint filed by Thaddeus Corley, an inmate at the Eastern
4 No. 14‐969‐cv
Correctional Facility (“ECF”), and James Crawford, a former ECF inmate,
alleging that Corrections Officer Simon Prindle sexually abused them and,
in doing so, subjected them to cruel and unusual punishment in violation of
the Eighth Amendment. In dismissing the case, the district court concluded
that the complaint failed to state a claim under Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997), which set forth the standard for stating an Eighth
Amendment claim arising from sexual abuse in prison. Crawford and
Corley appealed, arguing that the district court construed our opinion in
Boddie too narrowly. We agree.
We write today to clarify the rule set forth in Boddie: A corrections
officer’s intentional contact with an inmate’s genitalia or other intimate area,
which serves no penological purpose and is undertaken with the intent to
gratify the officer’s sexual desire or to humiliate the inmate, violates the
Eighth Amendment. Moreover, we recognize that sexual abuse of
prisoners, once passively accepted by society, deeply offends today’s
standards of decency. The proper application of the rule in Boddie must
reflect these standards.
5 No. 14‐969‐cv
By alleging that Officer Prindle fondled their genitals for personal
gratification and without penological justification, Crawford and Corley
stated a cognizable Eighth Amendment claim. Accordingly, we REVERSE
the district court’s order dismissing the complaint and REMAND the case
for further proceedings consistent with this opinion.
BACKGROUND
The following facts are taken from the complaint and must be
accepted as true for the purposes of deciding this appeal. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 572 (2007) (“[A] judge ruling on a defendant’s
motion to dismiss a complaint must accept as true all of the factual
allegations contained in the complaint.” (internal quotation marks
omitted)).
I. The Alleged Incidents
On March 12, 2011, Thaddeus Corley, an ECF inmate, was visiting
with his wife when Corrections Officer Simon Prindle ordered him out of
the visiting room and sexually abused him. Prindle informed Corley that
“he was going to make sure Mr. Corley did not have an erection,” and after
ordering Corley to stand against the wall with his feet spread apart, Prindle
6 No. 14‐969‐cv
“paused to fondle and squeeze [his] penis.” App’x 9. When Corley
“jumped off the wall” in response, Prindle threatened him and told him to
“get back on the wall.” Id. at 10.
Four days later, Prindle abused a second ECF inmate, James
Crawford.2 As Crawford was leaving the mess hall, Prindle stopped him
and initiated a search. During the search, Prindle paused around
Crawford’s crotch, “grabbed” and “held” his penis and asked “what’s
that?” Id. Crawford responded: “That’s my penis, man.” Id. at 11. Prindle
pushed his knee into Crawford’s back, pinning him to the wall, tightened
his grip around the neck of Crawford’s sweatshirt, and told him to “stay on
the fucking wall” if he didn’t want Prindle to “ram [his] head into the
concrete.” Id. Prindle continued to “squeeze” and “fondle” the area around
Crawford’s penis and “roam” his hands down Crawford’s thigh. Id. 11‐12.
Throughout the search, Prindle told Crawford to “[s]tay on the fucking
wall” if he didn’t want to “go to the box,” which Crawford understood to
mean that Prindle would send him to solitary confinement if he resisted the
abuse. App’x 11. When Crawford told Prindle that the search was not in
2 Crawford has since been released on parole.
7 No. 14‐969‐cv
accordance with search and frisk procedures, Prindle responded: “You
don’t have any rights in here. . . . I’ll run my hands up the crack of your ass
if I want to.” Id. at 12. As a result of these incidents, Crawford and Corley
allege that they have suffered psychologically and sought help from mental
health professionals.
The complaint also alleged that at least 20 inmate grievances
complained of sexual abuse or harassment by Prindle. On certain occasions,
Prindle demeaned Crawford and other inmates by telling them that he had
“seen a little boy like [them] before on the internet” or that he had seen their
penises. Id. at 14. And on other occasions, Prindle claimed that inmates
were not properly complying with anal‐cavity search procedures and
ordered the inmates to repeatedly bend over and spread their buttocks for
him.
II. Procedural History
On April 12, 2013, Crawford and Corley filed a complaint in the
United States District Court for the Northern District of New York alleging
that Prindle’s sexual abuse violated their Eighth Amendment right to be
free from cruel and unusual punishment. In addition to Prindle, the
8 No. 14‐969‐cv
complaint named as defendants Superintendent William P. Brown,
Prindle’s supervisor, as well as others.3 The complaint alleged that Brown,
who failed to take action against Prindle despite receiving more than 20
inmate grievances alleging similar abuse, either intentionally allowed
Prindle to sexually abuse inmates as a means of controlling them or was
deliberately indifferent to Prindle’s abusive conduct. Crawford and Corley
sought monetary damages and an injunction prohibiting Prindle from
having contact with inmates.
Defendants filed a motion to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. In support of the
motion, Defendants cited our opinion in Boddie v. Schnieder, 105 F.3d 857 (2d
Cir. 1997), which set forth the standard for stating an Eighth Amendment
claim arising from sexual abuse in prison. Based on its understanding of
Boddie, the district court dismissed the Eighth Amendment cause of action
for failing to state a claim and dismissed the state law claims for lack of
jurisdiction. Crawford and Corley timely appealed.
The complaint named as defendants in their official capacities Governor Andrew
3
Cuomo; Brian Discher, the Commissioner of the State of New York Department of
Corrections and Community Supervision; Superintendent William Larkin, the current
superintendent of ECF; and John Does 1‐8, corrections officers who were present when
Prindle committed the sexual abuse and did not intervene.
9 No. 14‐969‐cv
DISCUSSION
We review de novo a district court’s decision to dismiss a complaint
pursuant to Rule 12(b)(6), accepting all factual allegations as true and
drawing all reasonable inferences in the plaintiff’s favor. Johnson v.
Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013). To survive a 12(b)(6)
motion, the complaint must contain factual allegations that plausibly give
rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Crawford and Corley argue that, in dismissing the complaint for
failing to stating an Eighth Amendment claim, the district court erred
because it too narrowly construed the standard established in Boddie. We
agree. Boddie recognized that a single act of sexual abuse may violate the
Eighth Amendment if, as in this case, it is entirely gratuitous and devoid of
penological purpose. Moreover, in the nearly two decades since Boddie was
decided, societal standards of decency regarding sexual abuse and its
harmful consequences have evolved. Without suggesting that Boddie was
wrongly decided in 1997, we conclude that the result in that case would
likely be different applying the same rule today.
10 No. 14‐969‐cv
I. Eighth Amendment Claims
The Eighth Amendment protects prisoners from cruel and unusual
punishment by prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991). To
state an Eighth Amendment claim, a prisoner must allege two elements, one
subjective and one objective. First, the prisoner must allege that the
defendant acted with a subjectively “sufficiently culpable state of mind.”
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal quotation marks omitted).
Second, he must allege that the conduct was objectively “harmful enough”
or “sufficiently serious” to reach constitutional dimensions. Id. at 8, 20.
Analysis of the objective prong is “context specific,” Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (internal quotation marks omitted), and
“depends upon the claim at issue,” Hudson, 503 U.S. at 8. Although not
“every malevolent touch by a prison guard gives rise to a federal cause of
action,” the Eighth Amendment is offended by conduct that is “repugnant
to the conscience of mankind.” Id. at 9‐10 (internal quotation marks
omitted). Actions are repugnant to the conscience of mankind if they are
“incompatible with evolving standards of decency” or involve “the
11 No. 14‐969‐cv
unnecessary and wanton infliction of pain.” Id. at 10 (quoting Estelle v.
Gamble, 429 U.S. 97, 102‐03 (1976)).
a. Boddie
In Boddie, we left no doubt that sexual abuse by a corrections officer
can give rise to an Eighth Amendment claim. 105 F.3d at 859. With respect
to the Eighth Amendment’s objective component, Boddie made clear that
“severe or repetitive sexual abuse of an inmate by a prison officer can be
‘objectively, sufficiently serious’ enough to constitute an Eighth
Amendment violation.”4 Id. at 861. We held, however, that Boddie failed to
state an Eighth Amendment claim after a female corrections officer made a
pass at an him, squeezed his hand, touched his penis, called him a “sexy
black devil,” and bumped into him “with her whole body vagina against
penis.” See id. at 859‐60. We concluded that no single incident was
sufficiently serious and that the series of incidents were not “cumulatively
egregious” enough to reach constitutional dimensions. Id. at 861.
Boddie also made clear that “[w]here no legitimate law enforcement or penological
4
purpose can be inferred from the defendant’s alleged conduct, the abuse itself may, in
some circumstances, be sufficient evidence of a culpable state of mind.” Id. at 861; see also
Hogan, 738 F.3d at 516. Here, the parties do not dispute that Crawford and Corley have
satisfied the subjective prong. Accordingly, we focus our analysis on the Eighth
Amendment’s objective component.
12 No. 14‐969‐cv
Applying Boddie and other district court cases interpreting Boddie, the
district court concluded that the isolated instances during which Prindle
fondled Crawford and Corley’s genitalia did not rise to the level of a
constitutional violation. The district court reasoned that, under Boddie,
sexual abuse only states a cognizable Eighth Amendment claim if it occurs
on more than one occasion, is “excessive in duration,” involves direct
contact with an inmate’s genitalia (rather than contact through an inmate’s
clothing, as was the case here), or causes “physical injury, penetration, or
pain.” App’x 28‐30.
Boddie does not support that narrow interpretation. Boddie held that
sexual abuse by a corrections officer may constitute cruel and unusual
punishment if it is “severe or repetitive.” 105 F.3d at 861 (emphasis added).
Thus, a single incident of sexual abuse, if sufficiently severe or serious, may
violate an inmate’s Eighth Amendment rights no less than repetitive
abusive conduct. Recurrences of abuse, while not a prerequisite for liability,
bear on the question of severity: Less severe but repetitive conduct may still
be “cumulatively egregious” enough to violate the Constitution. Id.
13 No. 14‐969‐cv
To show that an incident or series of incidents was serious enough to
implicate the Constitution, an inmate need not allege that there was
penetration, physical injury, or direct contact with uncovered genitalia. A
corrections officer’s intentional contact with an inmate’s genitalia or other
intimate area, which serves no penological purpose and is undertaken with
the intent to gratify the officer’s sexual desire or humiliate the inmate,
violates the Eighth Amendment. Similarly, if the situation is reversed and
the officer intentionally brings his or her genitalia into contact with the
inmate in order to arouse or gratify the officer’s sexual desire or humiliate
the inmate, a violation is self‐evident because there can be no penological
justification for such contact. And even if contact between an officer and an
inmate’s genitalia was initially justified, if the officer finds no contraband,
continued sexual contact may be actionable.
In determining whether an Eighth Amendment violation has
occurred, the principal inquiry is whether the contact is incidental to
legitimate official duties, such as a justifiable pat frisk or strip search, or by
contrast whether it is undertaken to arouse or gratify the officer or humiliate
the inmate. See Whitley v. Albers, 475 U.S. 312, 320‐21 (1986) (explaining that
14 No. 14‐969‐cv
the Eighth Amendment analysis turns on “whether force was applied in a
good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm” (internal quotation marks
omitted)); accord Hudson, 503 U.S. at 6‐7 (same).
To be sure, prison officials looking for contraband may subject
inmates to reasonable strip searches and cavity searches. Bell v. Wolfish, 441
U.S. 520, 560 (1979). Indeed prison security and safety may require frequent
searches of an intensely personal nature―and not every such search is
properly the subject of a lawsuit. Searches that do not uncover contraband
may be no less penologically justified than those that do. And even an
officer who is meticulous in conducting a search does not violate an
inmate’s constitutional rights as long as the officer had no intention of
humiliating the inmate or deriving sexual arousal or gratification from the
contact. But a search may not be undertaken maliciously or for the
purposes of sexually abusing an inmate. See Hudson v. Palmer, 468 U.S. 517,
528 (1984).
15 No. 14‐969‐cv
b. Application
The unjustified conduct alleged here is unquestionably “repugnant to
the conscience of mankind” and therefore violates the Eighth Amendment.
Whitley, 475 U.S. at 327 (quoting Estelle, 429 U.S. at 106); see also United States
v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (holding that a prison guard who
repeatedly stepped on a prisoner’s penis acted “contrary to contemporary
standards of decency” (internal quotation marks omitted)); Washington v.
Hively, 695 F.3d 641, 643 (7th Cir. 2012) (“An unwanted touching of a
person’s private parts, intended to humiliate the victim or gratify the
assailant’s sexual desires, can violate a prisoner’s constitutional rights
whether or not the force exerted by the assailant is significant.”); Schwenk v.
Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“A sexual assault on an inmate
by a guard―regardless of the gender of the guard or of the prisoner―is
deeply offensive to human dignity.” (internal quotation marks omitted)).
Accepting the facts alleged in the complaint as true, Prindle violated
Corley’s rights by “fondl[ing] and squeeze[ing] [his] penis” in order to
“make sure Mr. Corley did not have an erection.” App’x 9. There is no
penological justification for checking to see if an inmate has an erection, and
16 No. 14‐969‐cv
Prindle does not argue otherwise. Moreover, Prindle executed the frisk in
the middle of Corley’s visit with his wife, rather than at the beginning or
end of the visit. The timing, combined with Prindle’s stated reason for
initiating the frisk, suggests that the frisk was pretext for sexual abuse. Cf.
Wolfish, 441 U.S. at 559 (stating that the constitutionality of a prison body‐
cavity search turns on, among other things, “the manner in which it is
conducted, the justification for initiating it, and the place in which it is
conducted”). Under Boddie, no amount of gratuitous or sexually‐motivated
fondling of an inmate’s genitals―even if limited in duration or conducted
through the inmate’s clothes, as was the case here―is permitted by the
Constitution.
Similarly, Prindle violated Crawford’s rights when he allegedly
“squeezed” and “fondled” Crawford’s penis and “roamed” his hands down
Crawford’s thigh. App’x 11‐12. In the circumstances alleged, the extensive
search of Crawford’s genitalia was not incident to any legitimate duties. See
Whitley, 475 U.S. at 320‐21. Moreover, Prindle’s demeaning comments,
including the statements “[t]hat doesn’t feel like a penis to me,” App’x 11,
“I’ll run my hands up the crack of your ass if I want to,” id. at 12, and
17 No. 14‐969‐cv
subsequent taunts about having seen Crawford’s penis, id. at 14, suggest
that Prindle undertook the search in order to arouse himself, humiliate
Crawford, or both.
c. Contemporary Standards of Decency
The standard set forth in Boddie, which condemns Prindle’s alleged
conduct, remains the same today. But in determining the application of that
standard, the Eighth Amendment requires courts to “look beyond historical
conceptions to the evolving standards of decency that mark the progress of
a maturing society.” Graham v. Florida, 560 U.S. 48, 58 (2010) (internal
quotation marks omitted). We must therefore also recognize that particular
conduct that might not have risen to the level of an Eighth Amendment
violation 18 years ago may no longer accord with community standards,
and for that reason may state a claim today.
To ascertain contemporary standards of decency, courts begin by
reviewing “objective indicia of consensus, as expressed in particular by the
enactments of legislatures that have addressed the question.” Roper v.
Simmons, 543 U.S. 551, 564 (2005). Subsequent enactments by state and
federal legislatures show that standards of decency with regard to sexual
18 No. 14‐969‐cv
abuse in prisons have evolved since 1997. At the time Boddie was written, 18
states and the District of Columbia expressly criminalized corrections
officers’ sexual contact with inmates.5 Today, all but two states6 criminalize
sexual contact between inmates and corrections officers.7 Moreover, many
of the states that had enacted state laws proscribing officer‐inmate sexual
contact prior to Boddie have, in the intervening years, adopted additional
See Ariz. Rev. Stat. Ann. § 13‐1419; Cal. Penal Code § 289.6; Conn. Gen. Stat. § 53a‐
5
73a; D.C. Code § 22‐3014; Fla. Stat. § 794.011; Ga. Code Ann. § 16‐6‐5.1; Haw. Rev. Stat.
§ 707‐732(e); Idaho Code § 18‐6110; Iowa Code § 709.16; La. Stat. Ann. § 14:134.1; Mich.
Comp. Laws § 750.520c (criminalizing sexual contact where the actor has authority over
the victim); N.J. Stat. Ann. §§ 2C:14‐2, 2C:14‐3; N.M. Stat. Ann. § 30‐9‐11; N.Y. Penal Law
§ 130.05(3); N.D. Cent. Code § 12.1‐20‐07; R.I. Gen. Laws § 11‐25‐24; S.D. Codified Laws
§ 22‐22‐7.6; Tex. Penal Code Ann. § 39.04; Wis. Stat. § 940.225.
6 Since Boddie, 30 states criminalized sexual contact between corrections officers and
inmates. See Ala. Code § 14‐11‐31; Alaska Stat. § 11.41.427; Ark. Code Ann. § 5‐14‐
127(a)(2); Colo. Rev. Stat. § 18‐7‐701; 720 Ill. Comp. Stat. 5/11‐9.2; Ind. Code § 35‐44.1‐3‐10;
Kan. Stat. Ann. § 21‐5512; Ky. Rev. Stat. Ann. § 510.120; Me. Stat. Tit. 17‐A, § 255‐A; Md.
Code Ann. Crim. Law § 3‐314; Mass. Gen. Laws ch. 268, § 21A; Minn. Stat. § 609.345; Miss.
Code Ann. § 97‐3‐104; Mo. Rev. Stat. § 566.145; Mont. Code Ann. § 45‐5‐502; Neb. Rev.
Stat. §§ 28‐322; 28‐322.01; Nev. Rev. Stat. § 212.187; N.H. Rev. Stat. Ann. §§ 632‐A:3; 632‐
A:4; N.C. Gen. Stat. § 14‐27.7 (criminalizing sexual contact where the actor has custody
over the victim); Ohio Rev. Code Ann. § 2907.03; Or. Rev. Stat. § 163.454; 18 Pa. Cons. Stat.
§ 3124.2; S.C. Code Ann. § 44‐23‐1150(c)(2); Tenn. Code Ann. § 39‐16‐408; Utah Code Ann.
§ 76‐5‐412; Va. Code Ann. § 18.2‐67.4; Vt. Stat. Ann. tit. 13, § 3257; Wash. Rev. Code
§ 9A.44.170; W. Va. Code §§ 61‐8B‐2, 61‐8B‐7; Wyo. Stat. Ann. § 6‐2‐304. Delaware and
Oklahoma only criminalize sexual intercourse or penetration, rather than sexual contact
more broadly. See Del. Code Ann. tit. 11, § 1259; Okla. Stat. tit. 21, § 1111(A)(7).
7 Although the precise conduct prohibited varies by state, sexual contact is generally
defined as intentional contact, for the purpose of sexual arousal, gratification, or abuse, of
an inmate’s sexual or intimate areas by a corrections officer, or of an officer’s sexual or
intimate areas by an inmate, or of the clothing covering either the inmate or officer’s
sexual or intimate areas. See, e.g., Ala. Code § 14‐11‐30(3).
19 No. 14‐969‐cv
laws and policies to prevent sexual abuse in prison.8 And in 2003, Congress
unanimously passed the Prison Rape Elimination Act (“PREA”), 42 U.S.C.
§§ 15601‐15609―the first federal law to address the sexual abuse of
prisoners.9 These legislative enactments are the “clearest and most reliable
objective evidence of contemporary values.” Atkins v. Virginia, 536 U.S. 304,
315 (2002) (internal quotation marks omitted). It is not only the number of
state laws that is significant, but “the consistency of the direction of change”
in the law. Id. These laws and policies reflect the deep moral indignation
that has replaced what had been society’s passive acceptance of the problem
of sexual abuse in prison. They make it clear that the sexual abuse of
Some states have enacted laws further prohibiting sexual abuse. See, e.g., N.Y. Penal
8
Law § 130.52 (“A person is guilty of forcible touching when such person intentionally,
and for no legitimate purpose, forcibly touches the sexual or other intimate parts of
another person for the purpose of degrading or abusing such person; or for the purpose of
gratifying the actor’s sexual desire.”). Other states have adopted additional prison
policies and regulations. For example, the Michigan Department of Corrections “enacted
cutting‐edge policies to curb sexual assault” in prisons after Congress passed the PREA.
Maurice Chammah, Rape in the American Prison, The Atlantic (Feb. 25, 2015), available at
http://www.theatlantic.com/features/archive/2015/02/rape‐in‐the‐american‐prison/
385550/.
9 See Pat Nolan & Marguerite Telford, Indifferent No More: People of Faith Mobilize to End
Prison Rape, 32 J. Legis. 129, 138‐39 (2006) (noting that the PREA was a model of bipartisan
cooperation, which Congress passed unanimously). The PREA defines rape to include
not only penetration, but oral sodomy, sexual assault with an object, and fondling. 42
U.S.C. § 15609(9).
20 No. 14‐969‐cv
prisoners, once overlooked as a distasteful blight on the prison system,
offends our most basic principles of just punishment.
In light of this evolution, while the standard articulated in Boddie
remains the same, “its applicability must change as the basic mores of
society change.” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting
Furman v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C.J., dissenting)).
Accordingly, conduct that might not have been seen to rise to the severity of
an Eighth Amendment violation 18 years ago may now violate community
standards of decency, and for that reason, we believe that the officer’s
conduct in Boddie would flunk its own test today.10
Additionally, today―more so than 18 years ago―we recognize that a female
10
corrections officer is equally capable of sexually abusing a male inmate and the harm that
can result from such abuse. See, e.g., David Kaiser and Lovisa Stannow, The Shame of Our
Prisons: New Evidence, N.Y. Rev. of Books (Oct. 24, 2013), available at
http://www.nybooks.com/articles/archives/2013/oct/24/shame‐our‐prisons‐new‐evidence/
(noting that past experience has shown that “many people do not take sexual abuse
committed by women as seriously as abuse committed by men,” including “many
corrections officers”); see also Schwenk, 204 F.3d at 1197 (“A sexual assault on an inmate by
a guard―regardless of the gender of the guard or of the prisoner―is deeply offensive to
human dignity.” (internal quotation marks omitted)). There is also greater awareness of
not only the physical but psychological and economic harms caused by sexual assaults in
prisons. See, e.g., PREA, 42 U.S.C § 15601 (finding that sexual abuse in prison results in
higher rates of suicide, post‐traumatic stress disorder, depression, HIV, AIDS,
tuberculosis, recidivism, and violent crime, among other things); Sarah K. Wake, Note,
Not Part of the Penalty: The Prison Rape Elimination Act of 2003, 32 J. Legis. 220, 223 (2006)
(“[P]rison rape has a clear physical and economic impact upon everyone, not just those
who are victimized.”).
21 No. 14‐969‐cv
II. Qualified Immunity
Defendants argue that qualified immunity shields Prindle and Brown
from liability because it was objectively reasonable for them to believe that
Prindle’s alleged sexual abuse did not violate the Eighth Amendment.
Because the district court dismissed the complaint, it did not address
whether Prindle and Brown are entitled to qualified immunity, and the
parties did not thoroughly brief the issue on appeal. We therefore remand
the case to the district court to decide the qualified immunity question in the
first instance.
CONCLUSION
For the reasons stated above, we REVERSE the district court’s order
dismissing the complaint and REMAND for further proceedings consistent
with this opinion.