Friday, July 6, 2018
Hannah Belitz has posted A Right Without a Remedy: Sexual Abuse in Prison and the Prison Litigation Reform Act (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 53, No. 1, 2018) on SSRN. Here is the abstract:
The Prison Litigation Reform Act, codified at 42 U.S.C. § 1997e, greatly curtails the ability of inmates to file suit in federal court. It imposes numerous obstacles to litigation, including a requirement in § 1997e(e) that an inmate may only file suit “for mental or emotional injury” if he or she can demonstrate the existence of a “physical injury” or “commission of a sexual act.” The statute differentiates a “sexual act” from “sexual conduct,” narrowly defining the former, and does not permit an inmate to file suit “for mental or emotional injury” if he or she has suffered sexual conduct alone. However, to avoid finding that the provision unconstitutionally bars access to the federal courts, no circuit has interpreted § 1997e(e) to prohibit inmates who have not demonstrated a “physical injury” or “sexual act” from filing suit. Instead, many circuits have held only that an inmate may not recover compensatory damages in such instances.
This note argues that courts can and should interpret § 1997e(e) to allow inmates to file claims and recover compensatory damages for sexual abuse, as it is defined in 28 C.F.R. § 115.6 (2012), which includes actions that do not meet the statutory definition of a “sexual act.” When confronted with prisoner sexual abuse claims, courts can and should do one of the following: either construe § 1997e(e)’s “physical injury” requirement to encompass sexual abuse, or interpret § 1997e(e)’s limitation as not applying to constitutional violations, including sexual abuse.