RLUIPA and Prison Rape

Thu Sep 8 10:24:22 PDT 2005

One of my pet causes is the horrific injustice of prison rape, of prisoners being gang-raped and then often forced into sexual slavery. We need to stop prison rape, but the politcal process is slow to respond, because no one seems to care about prisoners. Here are a couple of embryonic thoughts of mine on the problem:

1. Gender discrimination under the EPC. Prisons are segregated by gender, and that should be permissible so long as they are separate but equal. Are men's prisons equal to women's with respect to the problem of prisoner on prisoner rape and violence? If not, then maybe the EPC requires prisons to make male prisons equally secure. No?

2. How about using RLUIPA to demand more  (not less) prison security. Suppose a religious prisoner argues that his religious liberty is being substantially burdened by forced sexual abuse by other prisoners. Admittedly, the govt is not doing the raping, but the govt has locked him up in an institution where rape is a common occurrence. Is this a substantial burden on his religious liberty, his right to not engage in sex outside of marriage? I know it is a stretch, but when I read the testimonies of victims of prison rape, I literally weep. I can not imagine what it must be like to be raped and then sentenced to live for years under the control of your rapist. It is a horror no civilized country should tolerate.

Rick Duncan  

"Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
Title VII and state antidiscrimination laws exempt certain
employer action from sex discrimination law -- most obviously, they
leave employers free to discriminate based on sex (1) where the employer
is small (presumably because applying the law to small employers would
interfere too much with their personal freedom of choosing whom to work
with, and might also impose too much of a recordkeeping and
administrative burden), (2) where there's a plausible privacy argument
(e.g., hiring attendants for a washroom), and (3) where the job requires
artistic verisimilitude (when one is hiring an actor or an actress).
They do not, however, provide exemptions to people who have religious
objections to the law (e.g., if they believe it's wrong to work closely
with people of the opposite sex, or to hire young mothers, or what have
you). In this respect, the laws value the associational, economic,
privacy, or artistic verisimilitude preferences of employers more than
the felt religious needs of other employers. Should we consider this to
be a problem? A problem that justifies a Free Exercise Clause defense
for employers who object to sex discrimination law on religious grounds?
A RFRA defense?

(Incidentally, to fend off arguments that the interests
protected by the exception are more important than mere "aesthetic
sensibilities," it seems to me that a woman's preference to wear her
hair longer than a male prisoner does is more than just aesthetic; it's
in the same ballpark of personal privacy, I'd think, as the preference
not to have a male washroom attendant in a women's restroom [outside the
toilet stalls, of course].)

Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of A.E. 
> Brownstein
> Sent: Thursday, September 08, 2005 9:13 AM
> To: jsbuck at post.harvard.edu; Law & Religion issues for Law Academics
> Subject: Re: Sixth Circuit decision
> 
> 
> One question that has always bothered me about these hair 
> length standards 
> in prisons is whether prisons require female inmates to wear 
> their hair as 
> short as males inmates. Presumably, hiding contraband isn't 
> something that 
> only male inmates do. If women prisoners are permitted to 
> wear their hair 
> as long as the Native American in this case is obliged to by 
> his faith, it 
> would seem that prisons value the aesthetic sensibilities of female 
> prisoners more than the religious needs of male prisoners.
> 
> Alan Brownstein
> 
> 
> At 10:24 AM 9/8/2005 -0500, you wrote:
> 
> >If it hasn't become verboten to mention something that is actually
> >relevant to the putative topic of this listserv:
> >
> >The Sixth Circuit just issued a decision under RLUIPA holding that a
> >prisoner did not have the right to grow his hair long even 
> though it was 
> >demanded by his Native American religion. The court gave 
> deference to the 
> >prison officials' views that long hair could be used to hide 
> contraband 
> >and would cause resentment among other prisoners. (The prisoner had 
> >requested to be able to grow his hair all of two inches 
> longer in the 
> >back; it is not clear what sort of contraband could be 
> hidden there; the 
> >only specific item mentioned was an "ice pick").
> >
> >The opinion is here: 
> >http://www.ca6.uscourts.gov/opinions.pdf/05a0382p-06.pdf
> >
> >Best,
> >Stuart Buck
> >
> >_________________________________________________________________
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner
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