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Eleventh Circuit Holds that Just a Little Bit of Rape is Okay

A Georgia prison inmate alleged that Angela Harris, a prison guard, forced him to masturbate in front of her.  When he refused, she would refuse to serve him food and would file false disciplinary complaints against him.  When the inmate sued, here is what Eleventh Circuit Judges Birch and Hull, and Eighth Circuit Judge Bowman had to say of the inmate's harm:

However, under our circuit precedent about the nature of actionable injuries under the Eighth Amendment, an injury can be “objectively, sufficiently serious” only if there is more than de minimis injury. See Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002).

On the facts as alleged in the complaint, however, Boxer has failed to meet this standard. We conclude that a female prison guard’s solicitation of a male prisoner’s manual masturbation, even under the threat of reprisal, does not present more than de minimis injury. Accordingly, we affirm the dismissal of Boxer’s claim under the Eighth Amendment.

Boxer X v. Harris (here).  Today, over the powerful dissent of Judge Barkett (here), the Eleventh Circuit denied rehearing en banc.  (Hat tip: Overlawyered.) I'm tempted to say that I'll have more to write later in the day.  But what is there to say?  Three federal judges held that the rape (using your power to force  someone to masturbate for you is rape) of a prison inmate is an injury so small that it can't amount to cruel and unusual punishment.

Then the full Court held that the case was not so incorrect that it needed to be reviewed.  Really... What else is there to say?  I'm speechless.

I do think this case is a candidate for Supreme Court review - if not outright summary reversal.  As the good Chief Justice Roberts has made clear, the Supreme Court is watching.  And I can't imagine that Justice Alito, a truly professional prosecutor, has the stomach to let law enforcement abuses like this be ignored.