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Abstract
Excerpted From: I. India Thusi, Girls, Assaulted, 116 Northwestern University Law Review 911 (2022) (327 Footnotes) (Full Document)
Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed the pervasiveness of sexual violence and sexual exploitation by powerful actors. We have learned of Hollywood producers, famous actors, and corporate executives who abused their power to sexually exploit people. However, one of the critiques of the movement is that it has focused on spaces occupied by upper-and middle-class women while ignoring the sexual exploitation of working-class and poor women and girls. This oversight is pronounced in the failure to mobilize around sexual violence perpetuated by the criminal and juvenile legal systems. These systems exercise total dominion over the bodies of those they subordinate and have managed to normalize pervasive sexual violence and exploitation. There is a growing awareness that mass criminalization and mass incarceration are harmful, and this Article provides a visceral account of the nature of state violence against girls in particular. It focuses on incarcerated girls and argues that the state has routinely sexually assaulted girls by mandating regular, nonconsensual touching and searches of the most intimate parts of girls' bodies. This Article provides a constitutional basis for challenging these searches.
Unwanted touching and display of private parts tend to be common features of life before and after incarceration--from the sexual abuse many girls experienced at home to the nonconsensual touching of their bodies they experience when they enter detention facilities. These practices are especially troubling when you consider that Black and Indigenous girls are disproportionately represented in juvenile detention facilities. Mandating invasive searches is a particularly gendered form of traumatization that enacts (for all incarcerated girls) and reenacts (for many incarcerated girls) sexual trauma. “The routine use of strip searches against prisoners, particularly female prisoners, means that '[s]exual abuse is surreptitiously incorporated into the most habitual aspects of women's imprisonment.”’ The repeated touching that marks their everyday lives raises the question whether incarceration is the appropriate response for girls, because touching and frisking are a routine part of life in detention.
After all, the state is supposed to be acting in the “best interests” of these girls, and rehabilitation is the primary goal of the juvenile system, unlike the adult system, which focuses on deterrence and retribution. Courts recognize that children cannot be reduced to their worst decisions, so there is a deliberate focus on rehabilitating rather than punishing children who make mistakes. Children are impressionable, and their experiences within the system will likely impact them for the rest of their lives. Ideally, governmental intervention should rehabilitate them from the trauma that led them into the system, not exacerbate it.
However, routine practices within the system often ignore the age and characteristics of children, particularly young girls. Girls are often incarcerated for survival offenses, such as prostitution and petty theft, after fleeing abusive home lives. Yet detention facilities subject adjudicated girls to routine and invasive searches that are traumatizing and anything but restorative. These searches include blanket strip-search policies for all girls when they are admitted into facilities, frisk searches at the discretion of correctional officials while they are in the facilities, and strip searches when they have visits with their families and attorneys. These searches are insensitive to the sexual exploitation and re-traumatization that many girls experience during these searches. “The frequency of strip searching combined with its sexually coercive nature has profoundly negative consequences for ... [those who] have suffered extensive histories of physical and sexual abuse outside prison.” Some girls describe invasive searches as triggering memories of past sexual abuse.
Under any other circumstance, forcefully stripping children to nudity and requiring that they submit themselves to routine physical touching against their will would be sexual assault or rape. However, when perpetuated by the state, courts examine whether the searches advance “penological interests.” Government officials claim that the unwanted touching is necessary to maintain the safety of juvenile detention facilities. As a result of these practices, girls--a low-risk population based on offenses routine touching and bodily exposure, despite being high-risk for sexual exploitation. This outcome is perverse. One girl who was routinely strip searched at a Sacramento facility after running away from home described the experience: “I'd have to bend over and squat, and cough .... It was humiliating. That's my body I'm showing to other human beings.”
There are compelling reasons to conclude that these invasive searches violate the Fourth, Thirteenth, and Eighth Amendment rights of incarcerated girls. Supreme Court decisions balancing criminal defendants' and prisoners' rights against penological interests offer guidance for courts that have considered the constitutionality of invasive searches. And the Court has generally upheld strip searches as constitutional in light of the penological interests in preserving safety in detention centers. However, these cases fail to consider the unique backgrounds of adjudicated girls that make blanket and routine invasive touching different and unreasonable as compared to strip searches of incarcerated adults. Strangely, courts justify search practices that trigger in children posttraumatic stress disorder (PTSD) and memories of sexual abuse in the name of these children's own safety, although the state has a duty to act in the best interests of these children. Is it not child abuse when a parent routinely peers at their teenager's nude body and rubs it to search for contraband? But when the state is the parent, courts have ignored the perverse nature of peering at children's naked bodies on a regular schedule; the current Fourth Amendment jurisprudence on strip searches of incarcerated children would suggest that such actions are perfectly reasonable. But this case law is deficient and would benefit from serious consideration of the unique circumstances of incarcerated girls. This Article attempts to fill that gap.
Courts should consider the empirical data about incarcerated girls in evaluating the constitutionality of invasive practices that occur while girls are incarcerated. Studies have shown that incarcerated girls have often experienced sexual and physical trauma prior to their incarceration. Many are incarcerated for status offenses and survival offenses to flee abuse at home by running away or engaging in truancy. Girls experience many bodily changes as they go through adolescence, which may prompt insecurity and feelings of inadequacy. Requiring them to reveal their developing bodies to strangers and to allow these strangers to pat down their bodies is abusive. Forcing them to expose their naked bodies to strangers on a regular basis, after fleeing from sexual abuse at home, and endure what amounts to sexual abuse while incarcerated, is an unreasonable practice. In other contexts, forcing children to touch themselves and expose themselves would be sexual abuse.
This Article adopts the novel approach of framing state action as sexual assault. This critique about the experience of girls within the system may extend to the experience of incarcerated women as well. Incarcerated women often have prior histories of sexual assault. They have often been arrested for low-level offenses, including prostitution, curfew violations, and truancy. Incarcerated women are subject to routine strip and body-cavity searches that one Supreme Court Justice has described as humiliating and degrading. They are also subject to high rates of sexual assault by correctional staff while incarcerated. In her groundbreaking book Are Prisons Obsolete?, Professor Angela Davis wrote about Assata Shakur's experience with strip searches. Davis states that Shakur described her strip searches while incarcerated as “humiliating” and “disgusting.” Reflecting on her own incarceration and that of Shakur, Davis notes that the “everyday routine in women's prisons ... verges on sexual assault.” Although many of the claims in this Article apply to incarcerated women, this Article focuses on girls because the juvenile system is explicitly concerned with the well-being and rehabilitation of incarcerated girls. The purpose is to repair and rehabilitate. Arguably, the high levels of sexual assault within adult detention facilities make the incarceration of women questionable, even under a retributivist model of punishment. But the logics of the systems are sufficiently different to warrant separate treatment of girls ... for now.
More fundamentally, the unique circumstances of incarcerated girls suggest that the very use of detention for them violates the Thirteenth Amendment's bar on involuntary servitude and it subjects girls to cruel and unusual punishment under the Eighth Amendment. Repeatedly forcing children to experience practices that feel like sexual assaults effectively means that they are sexual assaults. This is cruel and should not be usual. It is an act of domination over their bodies and subjects them to routine humiliation. Girls' interactions with the juvenile system should center their best interests and future development. Instead, the incarceration of girls is a barrier to ensuring that they are able to land on their feet and lead productive lives, the presumed goal of the juvenile justice system.
Part I of this Article outlines the empirical research on incarcerated girls and argues that they are especially vulnerable to the violence of invasive searches. Part II argues that sexual assault is an appropriate lens for examining the invasive-search policies at girls' detention facilities. Part III embraces the vision for a new abolition constitutionalism and argues that blanket and routine invasive searches violate the Fourth Amendment, Thirteenth Amendment, and Eighth Amendment constitutional rights of incarcerated girls. While focused on intrusive search practices, this Part also casts doubt on the use of incarceration for any girls, provides a pathway for making similar arguments for all children, and provides an abolitionist argument against girls' incarceration that is rooted in the Constitution. This Article contemplates a world where the routine denuding and sexual assault of children, particularly young girls, receives the shock that it deserves.
[. . .]
Blanket strip-search and invasive-search policies are fundamentally at odds with the state's role in acting in the best interests of children. Given the trauma that often leads to girls' incarceration, practices that are obviously re-traumatizing should be eliminated. The empirical research on girls demonstrates that they are especially vulnerable to government excesses because they are more likely to have a history of sexual abuse, are more likely to attempt suicide, and more likely to be incarcerated for minor offenses because they deviate from social norms to be a “good girl.” Girls must endure regular body-cavity searches, strip searches, and invasive pat downs while incarcerated when they go to the doctor, go to the library, visit their attorneys, or go to the dentist. These unwanted searches are sexual assaults that are unreasonable under the Fourth Amendment, involuntary servitude under the Thirteenth Amendment, and cruel and unusual punishment under the Eighth Amendment. It is time to abolish a system that enacts such violence on children.
This Article refers to nonconsensual touching of intimate body parts, such as nonconsensual pat-down frisk searches, as sexual assault. Sexual abuse refers to nonconsensual sexual conduct that does not involve touching, which may include the forced exposure of sexual body parts.
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