30-E-3. Harassment
(a) Sexual Harassment
Sexual harassment is common in prisons, and LGBT prisoners are often even more vulnerable to such harassment than are other prisoners.105 Federal courts have recognized that sexual harassment of prisoners by prison staff can be a constitutional "tort" (an action, usually for money damages that you can bring against a government or individual defendants if they violate your constitutional rights), violating prisoners' Eighth Amendment right to be free from cruel and unusual punishment.106 A prisoner can state an Eighth Amendment claim for sexual harassment only if the alleged harassment is so harmful that it could be considered a departure from "the evolving standards of decency that mark the progress of a maturing society," and only if the defendant acted with intent to harm the prisoner.107 As explained below, prisoners generally do not succeed in claims against prison staff for sexual harassment involving words alone. However, prisoners have succeeded in claims against prison staff for sexual harassment that did involve repeated physical touching or assault or that threatened the prisoner's safety.108
The 1996 passage of the PLRA made it much harder for a prisoner to succeed in a sexual harassment claim against prison staff. Again, while the PLRA does not explicitly state that prisoners cannot sue for sexual harassment, it does say they cannot recover damages "for mental or emotional injury ... without a prior showing of physical injury."109 Many courts have interpreted this to mean that you cannot receive money damages for sexual harassment unless the harasser physically hurt you.110 But other sorts of relief, like "injunctions" (where the court orders someone to stop or start some action other than the payment of money damages), may be available to you.111 For this reason it is important to learn about the PLRA, particularly its physical injury requirement, before you file a suit.112
Nevertheless, for administrative investigations (investigations done by prison officials) evidence of physical injury is not required to show sexual harassment.113
(b) Verbal Harassment
Prisoners who try to sue based on verbal harassment face two obstacles:
(1) an interpretation of the Eighth Amendment's prohibition of cruel and unusual punishment that exempts verbal harassment and
(2) the PLRA's physical injury requirement. Courts often find that words alone, no matter how abusive, do not violate the Eighth Amendment.114 So, claims by prisoners against prison staff for harassment consisting only of words generally do not succeed.115
Additionally, even where prisoners have alleged valid Eighth Amendment violations, courts have often determined that the PLRA bars the suits if there is not a physical injury.116 For instance, harassment by prison staff has been found to violate the Eighth Amendment when it includes threats of attack with a lethal weapon.117 But where no physical injury results, some courts have determined that these cases are barred by the PLRA's physical injury requirement.118 Also, some courts have held the PLRA blocks the recovery of money damages in cases where...
