Sterling v. Cupp , 44 Or. App. 755 ( 1980 )

GILLETTE, J.

Plaintiffs are male inmates of the Oregon State Penitentiary (OSP). They sought to enjoin the defendant officials of the Corrections Division (Division) from assigning female correctional personnel "to duties which include frisking male prisoners, except in an emergency situation.” The trial court granted the relief sought. Defendants, and certain female corrections officers who are intervenors, appeal. We affirm.

Beginning relatively recently, at least in part out of concern about requirements of federal and state legislation prohibiting discrimination in employment because of sex, the Division assigned female guards to jobs at OSP which involve direct contact with male inmates. Among the duties which the jobs entail are frisks or body searches of clothed inmates. The searches are brief in duration — apparently lasting about 30 seconds — but involve some touching of genital and anal areas through clothing. They are carried out randomly and have the objectives of preserving security by locating contraband. "Probable cause” is not a prerequisite to the performance of a search, and plaintiffs do not contend that searches of this kind when conducted by male guards are unnecessary to prison security or are unreasonable. Their contention is that the physical contact by female guards violates their constitutional right to privacy.¹

In Pell v. Procunier, 417 US 817, 94 S Ct 2800, 41 L Ed 2d 495 (1974), the Supreme Court stated that the constitutional rights of inmates must be balanced against "legitimate penological objectives of the corrections system.” 417 US at 822. That statement is particularly opposite to privacy rights of inmates, who inherently and necessarily enjoy very little privacy and are subject to intrusive ongoing supervision by corrections personnel. In recent years, there have been several cases from other jurisdictions dealing with the privacy rights of inmates and with the role in the correctional setting of guards who are of a different sex from the prisoners. Those cases have been initiated either by inmates complaining of deprivations of privacy or by persons who have been refused employment or assignments at correctional facilities because they are of the opposite sex from the persons incarcerated and who contend that they have thereby been denied employment opportunities on the basis of sex.

We are not aware of any case in which the primary issue has been security frisks of clothed prisoners. The issue in some of the cases has been whether privacy rights are abridged by guards of the opposite sex being in a position of surveillance over inmates when the latter are unclothed or are engaged in activities which are not normally performed in the presence of members of the opposite sex {e.g., when the inmates are using the toilet, undressed, dressing or undressing, sleeping, and like situations).

In Forts v. Ward, 471 F Supp 1095 (SD NY 1979), female inmates of a maximum security facility brought suit for injunctive relief and damages arising out of surveillance by male guards while the inmates were in a state of undress, using toilet facilities, showering or sleeping. The court held that such surveillance violated the inmates’ right to privacy and directed prison officials to submit a plan for alleviating the offending conditions. The court did not hold that the inmates were entitled to total insulation from male surveillance, but only that certain accommodations were to be made to assure the inmates the ability to carry on private acts outside the view of the male personnel. The court also concluded in Forts that male guards were entitled to equal job opportunities at the female prison. However, the court stated:

"*** [0]n the facts before me equal job opportunity must in some measure give way to the right of privacy.” 471 F Supp at 1099.

In In re Long, 127 Cal Rptr 732 (DCA3 1976), the California District Court of Appeal reached essentially the same conclusions as the federal district court did in Forts. The petitioners were male inmates of a facility operated by the California Youth Authority. As summarized by the court, the petitioners

"*** allege that female employees supervise their showers, latrine use and the sleeping quarters in which they change clothes. They allege that female employees conduct 'skin searches.’ They also allege that female staff members have been present to supervise the dressing, shower and toilet areas of the school, the gymnasium and the swimming pool.” 127 Cal Rptr at 732-733.

Basing its decision on a California constitutional provision, but also relying on United States constitutional provisions and interpretations, the court concluded that the surveillance practices violated the inmates’ right of privacy. The justification the defendants in Long advanced for those practices (and which is also advanced as a justification by the defendants and intervenors in the present case) was that the presence of female supervisory personnel in the male facility was conducive to "normalization of environment attributable to a mixed male-female staff ***.” 127 Cal Rptr at 737. The California court concluded, however, that the proffered justification was unsatisfactory to explain the practices in question, because normal societal expectations outside of domestic relationships do not include visual contact between the sexes while the kinds of activities involved are taking place. The court directed the defendants to remove female staff members from the areas where such activities occurred.

The other cases we have found or which plaintiffs call to our attention were brought by persons who had sought and been denied employment by or assignments at facilities where members of the opposite sex were incarcerated. The holdings in these cases have been mixed and have turned on whether sex is a "bona fide occupational qualification” sufficient to justify sexual limitations on employment at correctional facilities under federal law or the law of various states. The privacy issue in the sex discrimination cases has generally been considered — if at all — in dicta. See, e.g., Gunther v. Iowa State Men’s Reformatory, 462 F Supp 952 (ND Iowa, 1979); Carey v. New York State H.R. Appeal Bd., 61 App Div 2d 804, 402 NYS 2d 207 (1978). Federal courts have consistently held that sex is not a bona fide occupational qualification for hiring of corrections personnel,² although some, including the United States District Court in Reynolds v. Wise, 375 F Supp 145, 151 (ND Tex 1974), have indicated that "selective work responsibilities” to "insure privacy of inmates” is permissible. The court in Reynolds implicitly recognized that there can be bona fide occupational qualifications for certain work assignments if the work would conflict with inmate privacy rights.

In the present case the female officers are not assigned to duties involving observation of inmates engaging in activities of the kinds the courts in Forts and Longheid constitutionally insulated from opposite sex surveillance. Nonetheless, plaintiffs argue that the physical contacts involved in the frisks which are conducted by female guards are at least as intrusive as the visual surveillance considered impermissible in those and other cases. We agree.

At the heart of the privacy analysis of cases like Forts and Long lies the assumption that the final bastion of privacy is to be found in the area of human procreation and excretion and the nudity which may accompany them. If a person is entitled to any shred of privacy, then it is to privacy as to these matters. And, it seems to us, if a prisoner is entitled — absent an emergency — to be free of visual inspection by prison personnel while in the nude, the prisoner is equally entitled to be free from the tactile equivalent of the nude inspection, viz., manual examination of the anal-genital area through clothing.

Finally, the intervenors here present a claim that to accord plaintiffs the privacy they assert, with the consequent limitations on employment opportunities for women, would violate Title VII of the Civil Rights Act of 1964, 78 stat 253, as amended 42 USC 2000e et seq. The short and complete answer to this contention is that the prisoner’s constitutional right prevails — as every constitutional right must — over any statute, state or federal. Forts v. Ward, supra, 471 F Supp at 1099.

None of the parties appear to believe that a prison inmate foregoes entirely the right of privacy recognized in Griswold v. Connecticut, 381 US 479, 85 S Ct 1678, 14 L Ed 2d 510 (1965). The issue is over how extensive the right is.³ This case lies very near the dividing line. We are persuaded, however, that the right extends so far as to limit the conducting of the searches under discussion here — absent emergencies — to prison guards of the same sex as the prisoner being searched. Such a ruling may create marginal inconvenience for the prison administration — the Constitution is not a document of convenience. But we are satisfied that the little that remains of a prisoner’s consititutional right to privacy is lost if the prisoner’s genital area may be searched — either visually or by touch — by a member of the opposite sex.

The judgment of the trial court is affirmed.⁴

1 The source of this right is not entirely clear, although no court appears to have denied that prisoners retain some right of privacy which is of constitutional dimension. See Forts v. Ward, 471 F Supp 1095 (SD NY 1979), where the existence of the right was acknowledged but not attributed to a specific constitutional provision; and City of Philadelphia v. Pennsylvania Hum. Rel. Com’n, 7 Pa Comwlth 500, 300 A2d 97, 103, n 8 (1973), where the right was apparently predicated on the penumbral freedom theory of Griswold v. Connecticut, 381 US 479, 85 S Ct 1678, 14 L Ed 2d 510 (1965). See also the discussion in In Re Long, 127 Cal Rptr 732, 734(DCA3, 1976).

2 In Dothard v. Rawlinson, 433 US 321, 97 S Ct 2720, 53 L Ed 2d 786 (1977), the court held that Alabama’s policy against employing female guards in contact positions at the state’s male maximum security prisons was supported by a bona fide occupational qualification. The bases for that decision were that the state’s prisons were characterized by rampant violence and that, according to expert testimony, sexual assaults of female guards would be extremely probable given prevailing conditions at the prisons. Dothard was decided on its facts, and later decisions have confined it to its facts. See, e.g., Gunther v. Iowa State Men’s Reformatory, 462 F Supp 952, 955 (ND Iowa, 1979).

3 Our recognition of the right of privacy draws particular fire from one of the dissenting opinions which, with flouishing hyperbole, states that

" * * * no one has ever been able to furnish a principled constitutional explanation of the supposed right.” (Dissenting opinion of Joseph, J., at 1).

Elsewhere, our utilization of the right of privacy is characterized as " * * * a constitutional principle picked out of the air.” (Id., at 5).

However much difficulty the dissent may have in finding this "supposed” right, we have no difficulty in perceiving it in Griswold v. Connecticut, supra; Eisenstadt v. Baird, 405 US 438, 31 L Ed 2d 349, 92 S Ct 1029 (1972); Loving v. Virginia, 388 US 1, 87 S Ct 1817, 18 L Ed 2d 1010 (1967); and Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973). The fact that the parameters of the right cannot be fully discerned from those cases does not excuse us from determining whether it is applicable in the context presented here. We hold that it is.

4 The trial court’s judgment in this case provided,

"IT IS HEREBY ORDERED that Defendants Hoyt C. Cupp and Robert J. Watson are enjoined from assigning female correctional officers to any position in which the job description or actual duties include frisks or pat-downs of male prisoners, except in emergency situations.”

We understand this order to require nothing more than that guards of the opposite sex may not — absent an emergency — conduct a through the clothing frisk of a prisoner’s anal — genital area. As so understood, it is affirmed.