Gay Ex-Prisoner Alleges Sex Slavery

Federal court in Houston allows a precedent-setting lawsuit to proceed

A gay former inmate who claims he was sexually abused while in prison will be allowed to sue prison officials for violating his constitutional rights, according to a unanimous September 8 ruling by the Houston federal appeals court.

The American Civil Liberties Union, which represents former prisoner Roderick Keith Johnson in his lawsuit against Texas prison officials, claims that this is the first time a federal appeals court has authorized claims of anti-gay discrimination in such a lawsuit.

Johnson’s complaint describes a chain of events that Chief Judge Carolyn Dineen King of the 5th Circuit Court of Appeals described in her opinion for the court as “horrific.”

After violating the terms of probation for a non-violent burglary, Johnson, a slightly built African American man, was taken into custody, and sent to the Texas prison system’s Allred Unit in September 2000. The prison officials knew he was gay and Johnson told them that he previously served time in “safekeeping” for prisoners at-risk of bodily harm, although it appears he was never officially classified as vulnerable.

Johnson claims that a prison official members said to him, “We don’t protect punks on this farm,” and he was put in the general population, where “he was raped by other inmates almost immediately.” According to Johnson, over the next 18 months at Allred, “a prison gang member named Hernandez asserted ownership” over him, forcing him into sexual slavery. Although Johnson alerted prison officials about his plight and begged to be taken out of the general population, he was denied emergency medical care and told to file written complaints. After complaining of a beating from Hernandez, medical personnel documented bruising and swelling on Johnson’s face. When he was moved around to different locations at Allred, he would be raped and “owned” by various different prison gangs, according to his complaint.

Several prison investigations found “no corroboration” for his stories, though Johnson claims that the investigators usually did not interview any of his alleged assailants. He also says that prison officials made remarks such as “You need to get down there and fight or get you a man,” and “There’s no reason why black punks can’t fight and survive in general population if they don’t want to fuck.” He also claims to have been told that since he was gay he was probably enjoying the sex.

Finally, Johnson was able to contact the American Civil Liberties Union, which alerted prison officials to transfer Johnson to a safe unit.

Johnson has sued a long list of prison officials, including his former warden and cell block guards who had, according to the suit, reacted with indifference to the gay man’s plight. He claimed to have been subjected to cruel and unusual punishment in violation of the 8th Amendment, and subjected to race and sexual orientation discrimination in violation of the 14th Amendment.

Lawsuits against prison officials are now governed by complex federal rules intended to cut down on frivolous and repetitious lawsuits to curtail “jailhouse lawyers” from filing frivolous suits. Now, plaintiffs must exhaust an assortment of internal penal appeal procedures before filing suit. In addition, an abbreviated statute of limitations is placed on these prison claims. As a result of these procedural complications, many of Johnsons claims had to be dismissed, because he did not pursue every one of his complaints to the last internal appeal stage and had allowed too much time to elapse. However, after sorting through all these procedural issues, the federal appelate court determined that Johnson could proceed with at least some of his 8th and 14th Amendment claims against some of the named defendants.

The defendants moved the court to dismiss all of Johnsons claims, arguing that the officials were immune from suit and, besides, that the legal theories Johnson advanced did not support his claims. The court rejected these arguments.

The claims of immunity turned on whether the particular officials who were sued were aware of the facts when they refused to transfer Johnson to a safe unit. In particular, the court found that Johnson’s claims, if they stood up at trial, could result in various prison officials beinmg found guilty of violating Johnson’s 8th Amendment rights. “An official may not simply send the inmate into general population to fight off attackers,” wrote King, summarizing relevant Supreme Court precedents. The alleged advice to Johnson that he must “learn to fuck or fight” was found to run directly counter to the Supreme Court’s directive as to what constitutes a “reasonable response” to such a situation.

The court was equally dismissive of the defendants’ arguments about Johnson’s sexual orientation discrimination claim. Some prison officials had argued that there was no clearly established law that gay prisoners cannot be discriminated against in making housing assignments or following up on sexual assault claims, and thus they were immune from individual liability.

The court ruled down this defense, saying that prison officials are shielded from liability if they have a “reasonable penological objective” for their actions. In this case, the prison officials were actually pleading ignorance, stating that they had not discriminated against Johnson because he was gay, and challenging him to come up with examples of more favorable treatment for non-gay prisoners. But the court found these arguments specious, stating that in deciding the motion to dismiss the claim, it had to accept Johnson’s version of the story, and that the prison officials had not articulated any legitimate penological interest in subjecting any prisoner to sexual slavery.

Johnson’s story is consistent with claims by many other gay prisoners about the conditions they have experienced in prisons, where guards have been known not only to turn a blind eye to sexual slavery, but even to join in oppressing and assaulting gay prisoners. Johnson’s lawsuit may have a wide impact if it actually goes to trial and results in prison officials being held liable for any sexual crimes.

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