Cruel and Unusual Sex

Elevating the quality of prisoner-initiated Constitutional claims, Boxer X claims that he was subjected to cruel and unusual punishment when he was “forced” by a female guard to masturbate in front of her.

The 11th Circuit denied rehearing en banc a review of the lower court’s decision that this did not constitute cruel and unusual punishment.



  • Does anyone know why he’s in jail? Because if this guy is some sex offender he has some nerve making a big deal about this.

  • Well, this “punishment” is definitely unusual. So it brings up the question: does a punishment need to be both cruel AND unusual to warrant protection under the constitution or is this an “either or” situation. Regardless, the main question is whether or not he can prove this actually happened. If it did happen, then I don’t see why it should necessarily be laughed at and waved off. Would you laugh at the exact opposite scenario of a female prisoner forced to masturbate in front of a male guard? I mean, do we actually have equal protection under the laws, or is that just a joke too? Don’t get me wrong, common sense says that this is no big deal, but the rule of law doesn’t and shouldn’t always go by common sense.

  • I think it would depend on what method of “force” was used.

    “Do it or I’ll tell you to again” would be a joke.

    “Do it or I’ll beat you into submission with a phonebook while you’re handcuffed to the table” would be a different story, of course.

  • Mr. Morin: Why did you put “forced” in quotes? Must someone have a gun to his or her head in order to be “forced” to do something? Based on the facts alleged, the prisoner would be denied food and would have false disciplinary reports filed against him if he didn’t obey the prison guard’s commands.

    Does this not amount to force? If someone tells you they will hack into this site unless you post a favorable about him, hasn’t the person forced you to post the favorable review?

  • Mike, perhaps it is that I have become jaded over the past twenty years reading legions of bogus “habe” cases in which everything from the softness of the toilet paper to the temperature of the shower have been claimed to constitute cruel and unusual punishment — cases frequently brought with no expectation of success but only for the purpose of getting a day out of the joint.

    Doug, you are one who apparently believes that “equal protection” means that men and women think and feel the same way. I put “force” in quotes because I, like many other men, am skeptical of one who claims that he was “forced” into a state of sexual arousal.

    This case can be compared with the cases of the female teachers who “molest” their teenage male students. We can all agree that taking advantage of one’s power in these situations is wrong, but that is a separate issue than what “harm” the victim suffered.

  • I, like many other men, am skeptical of one who claims that he was “forced” into a state of sexual arousal.

    I don’t want to take this beyond family-friendly, so I’ll try to avoid being overly graphic: In some rape cases, the rape victims produced natural lubricant – which is a sign of arousal. Does this mean they weren’t raped? Just because the prisoner was able to achieve an aroused state doesn’t mean he wasn’t forced to do so.

  • Doug, you are one who apparently believes that “equal protection” means that men and women think and feel the same way.

    Actually, I never said this or even implied it. First off, not all men think the same as all other men and not all woment think the same as all other women, so applying broad categories on the way people think is ridiculously simplistic and wrong right from the start.
    There is a basic constituional principle called “equal protection under the law”, meaning the laws apply to everyone the same way, regardless of you who are. If you accept the laws should apply to a particular group but the same laws should not apply to another, then you don’t agree with this constitutional principle and therefore don’t agree with the U.S. constitution. If you want to make an argument for something, you need to look beyond your own experience, and apply it evenly to everyone, otherwise you just come off as biased. It doesn’t matter than most of the time men exploit women sexually and not the other way around. Should this give a free ride to anyone “lucky” enough to be in a historically exploited group free license to do anything and everything they want with absolutely no consequences?
    Put another way: Women have been exploited in the past, does that mean if a woman walks into Wal-mart and guns down everyone she should not be arrested? Laws are meant to be applied fairly and uniformly, or not at all.

  • I think Peter would agree that we could save a lot of wasted money and effort by replacing our complex “legal system” with the following simple rule:

    If it’s a criminal case, the defendant should lose; if it’s a civil case, the defendant should win.

    It’s a nice bright-line rule that is easy to apply, and we all know that only judicial activists would disagree with the outcomes that would result under my proposed rule.

  • I suspect that Sam pegs me as a former prosecutor and so his sarcasm is predictable. I am not, and his commentary is way off the mark.

    Unfortunately, I am unable to access the lower court’s decision in this case, so if someone else can provide a link, perhaps we’ll be able to better assess what the lower court’s (upheld) ruling was based on.

    My point, Doug, is that the cause of action requires the showing of an “injury.” It doesn’t matter who the historically exploited “group” is — what matters is the individual plaintiff’s claim. My experience with the individuals in the federal prison system makes me skeptical of a prisoner’s claim that he suffered in this context.

    It is indeed conceivable that a man in this position could be humiliated and objectified by this experience. I am certain that Doug and Sam could construct a variety of scenarios here that would present a legitimate 4th Amendment case.

    A word about Doug’s comment that “if you accept the laws should apply to a particular group but the same laws should not apply to another, then you don’t agree with this constitutional principle and therefore don’t agree with the U.S. constitution:”

    This isn’t an EP case, but nonetheless, I believe that the EP clause applies to individuals, not groups.

  • As the Advisory Committee Notes twice
    remind us, those are intended to be “rigid standards.”

    Poor choice of words? Or possibly something more sinister …

  • There’s really not enough information to draw a conclusion of whether the court was correct. I’m sorry guys, but all you have is speculation until we can determine the method of “force” used.

  • Contrary to the inadvertent implication of the post, the Eleventh Circuit did rule on this case. While it found no “Eighth Amendment” violation, it did hold that the prisoner had stated a claim for relief under the Fourth Amendment, and for retaliation under the First Amendment. I don’t find that result problematic if the allegations are true; perhaps Peter does, but no poster here speaks for the other posters.

    Like Morin, I’m skeptical of prisoner claims of abuse; anyone who has spent time working at a federal court knows that, even after the PLRA, prisoners have a lot of free time to engage in pro se litigation to harass guards, and the blizzard of false claims overwhelms litigation over legitimate claims of prisoner abuse. It’s entirely possible that the prisoner is retaliating against a female guard who he harassed by exposing himself, and has concocted wild claims to further humiliate his guard and/or to try to get out of being punished for his behavior. But like many of the commenters, I agree that we don’t know enough to evaluate the merits of this case yet.

  • Then, Ted, maybe it’s premature to post a (not a little snarky) blog item on it?

  • Uh point of order there, Ron. I submit that I, as the (presumed) target of the alleged “snarkiness,” am the only one with standing to complain.

    I do not, and further submit that Ted’s comment is devoid of same.

  • Ron: it was Pete who posted the original “snarky” blog item. And he knew that his comment would engender some controversy – hence his admonition to “discuss” the point.

    I thought that it was interesting that all of the judges writing in this opinion danced around the facts. None of them were willing to describe the facts underlying the claim was, and that is fairly unusual at the higher appellate levels. (The original panel of course did describe them.)

  • yclipse, you are absolutely correct — and it is impressive that a set of quotation marks can induce such a response!

  • I think Ron was complaining about the snarkiness of the post rather than about my 8/14 comment.