A federal appeals court ruling may have significant impact on civil rights lawsuits filed by Oklahoma inmates who have sex with Corrections employees.
Under Oklahoma state law, consent is no defense to criminal charges that arise from inmate-employee sexual activity. Such contact is strictly prohibited under the state's sexual battery, forcible sodomy, and rape statutes. For example, 21 O.S. 1111, which contains Oklahoma's definition for rape, reads in part:
"Rape is an act of sexual intercourse . . . where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim."
Because a prison guard clearly has power or authority over an inmate, sexual contact between the two is strictly prohibited. Even if the inmate initiates the contact or willingly consents, the employee may be convicted of second degree rape, forcible sodomy, or sexual battery-all felony sex offenses which mandate Oklahoma Sex Offender Registration.
Recently, prison sex in Oklahoma came under intense scrutiny as a Bureau of Justice Statistics report, Sexual Victimization in Prisons and Jails Reported by Inmates 2011-12, indicated that Mabel Bassett Correctional Center in McCloud was the only all-female prison to be listed as having a "high-rate" of inmate-on-inmate sexual victimization. The report also noted that the rate of staff-on-inmate victimization was slightly higher than the national average-3.4 percent compared to 2.4 percent.
While the facility staff members and corrections employees are subject to criminal prosecution in these cases, the victims may also pursue civil claims through a civil rights violation lawsuit. The ruling of the United States 10th Circuit Court of Appeals late last year could limit a "victim's" chance of recovery by allowing consent as a defense against civil rights claims.
In the case, Logan County jail inmate Stacy Graham had consensual sex with two guards while in solitary confinement awaiting transfer to prison following a drug possession conviction. According to court documents, Graham admitted to not only consenting to the act, but also encouraging it. She did not deny having sexually explicit conversations and passing graphic notes to guards Rahmel Jeffries and Alexander Mendez, as well as "flashing" her breasts at Jeffries "for the hell of it." She admitted to telling Mendez that her sexual fantasy was to be with two men, and told him to bring Jeffries for a threesome. Two days later, the two guards showed up in Graham's cell, and the threesome took place.
Both Jeffries and Mendez were convicted of crimes as a result. Jeffries was convicted of rape and forcible sodomy, and Mendez was convicted of aggravated assault and battery.
Despite both encouragement and consent, Graham filed a civil rights lawsuit under 42 U.S.C. § 1983 claiming that her Eighth Amendment right to be free from cruel and unusual punishment was violated as a result of the sexual encounter. She argued that her consent to the act was not a defense, because the men were in a position of authority over her.
On December 20, 2013, the Tenth Circuit Court of Appeals published its decision in Graham v. Sheriff of Logan County. The federal appeals court ruled that Graham's Eighth Amendment Rights were not violated because her consent was clear:
"Defendants are entitled to summary judgment if 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' Fed. R. Civ. P. 56(a). That standard has been satisfied here because there is no genuine dispute that Jefferies and Mendez did not force Ms. Graham to have sex, making all other issues irrelevant."
Critics of the decision say that the impact of the ruling could negatively affect the recovery of victims whose consent is coerced by the authority of a facility staff member, law enforcement officer, or corrections employee. Others say that the ruling may serve to balance degree of consent against the authority of an employee, preventing litigation from inmates who initiate sex and then cry foul.
The ruling deals with civil rights violations only, and does not affect the criminal prosecution of a law enforcement agent or corrections worker who engages in sexual activity with someone in custody.