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.

Comments

[Chris]

I certainly hope so, but I'm afraid to hold my breath.

[Mahan Atma]

I agree the outcome is ludicrous, and there's nothing de minimis about this violation whatsover, but I'm not sure it's rape.

My recollection from law school is that the crime of rape requires some kind of penetration.

[Mike]

Hey Mahan: I took poetic license with "rape." Under Georgia law, it's not technically rape. Geo. Code. 16-6-1. But when writing the post, the following thought came to mind: "If a man broke into a woman's house and told her he'd hurt her unless she masturbated in front of him, does anyone think that a) the man would not be charged with a rape-like crime or b) if he was not charged with a rape-like crime, there would be a push to redefine rape to include said conduct?" So I don't think I took too much license.

[mythago]

At common law, rape not only required penetration, it could only be done by a man to a woman. The law's changed a bit in most places.

But yes, this is the sort of opinion that generates a "Your Honors, WTF? WTFF?!" response.

[Reader]

Absolutely no chance this will be reviewed in the Court. But it's a terrible decision nonetheless. Prisoners in America don't count for shit.

[steve]

I comment on the case at www.psychsound.com. Check the blog entry for August 14.