On Tuesday, June 13, 2023, attorney Jaehyun Oh filed a lawsuit on behalf of a trans woman who was sexually assaulted by a correctional officer while incarcerated in an all-men’s facility. The lawsuit alleges that prison officials deliberately ignored numerous warning signs, which should have indicated she was at a high risk of sexual assault. In honor of Pride Month, it is important to highlight the unique forms of gendered violence that incarcerated trans women face, and we hope to provide insight to how an attorney can help hold abusers accountable.
Our Client's Story
Our client is a transgender who has received gender-affirming surgery and presents as a woman, but despite this, she has been placed in all-men’s prison. Prior to the most recent sexually assault, she had been sexually abused by another correctional officer as well as a male inmate, and those instances was documented in her record in accordance with the Prison Rape Elimination Act (PREA). Thus, prison officials were made aware that she had a prior history of sexual victimization while incarcerated and that she has a high risk of sexual victimization due to her gender identity.
In 2019, she was transferred to another facility where she was the only trans woman. Correctional officers at her new facility were aware that she was vulnerable to sexual abuse since it was on her record, but they failed to provide proper accommodations and protections to ensure that she would be safe. Our client tried her best to protect herself from sexual harassment by doing things like covering her window so people wouldn’t see her change, but the correctional officer who later assaulted her insisted that she remove the cover and expose herself to him. The correctional officer began visiting her cell numerous times each week to make vulgar comments and to demand that she exposes herself or perform sexual acts.
In 2020, the same correctional officer went out of his way to escort our client to skype calls. He was the only officer in the room with her and kept her longer than the allotted time, which should have been flagged as irregular behavior. However, due to the prison’s failure to properly supervise him, he sexually assaulted her in the skype room on repeat occasions.
Our client’s mother reported the abuse to the prison, but guards dismissed the claim and retaliated against her. As a result of the abuse she experienced, the client currently suffers from severe PTSD and other mental health conditions that are expected to be permanent.
The lawsuit alleges that the prison failed to adequately train, investigate, and report staff-on-inmate sexual abuse, and failed to establish policies and procedures to ensure that officers wouldn’t engage in sexual abuse. The suit is brought in pursuant of 42 U.S. Code § 1983 for sexual abuse, officers’ deliberate indifference towards the threat posed to the client, as well as the known dangers of housing a female-presenting inmate in institutions designed for men. We are also seeking injunctive relief to ensure that the client is finally placed in a facility that conforms with her gender identity for the remainder of her sentence.
Anti-Trans Violence in Prisons Today
Unfortunately, our client’s story is a common experience for incarcerated trans women who are 13 times more likely to be sexually assaulted and five times more likely to be abused by correctional staff.
The Prison Rape Elimination Act (PREA) requires prison officials to consider housing on a case-by-case basis especially when someone’s safety is at risk. However, in 2018, the Trump administration rolled back protections in the Transgender Offender Manual, which is a Bureau of Prison (BOP) document that outlines the services provided to trans prison populations. Notably, the Trump administration struck the sentence that used to require officials to consider trans inmates’ gender identity, and instead mandates officials to “use biological sex as the initial determination,” despite the overwhelming amount of evidence in opposition.
As a result, many trans people are housed in facilities that are inconsistent with their gender identity despite the fact that trans women are at a much higher risk of abuse than the general population. According to a 2020 NBC investigation, out of the 4890 incarcerated trans prisoners, only 15 were housed according to their gender identity rather than the sex assigned at birth.
For trans inmates, housing decisions have dire consequences as 35% of incarcerated trans people reported being sexually assaulted by staff or fellow prisoners. Women, girls, and members of the LGBTQ community have a significantly higher risk of sexual victimization in prison, and inmates who do not conform with the gender norms of their institutions are afforded less respect by other inmates and prison guards, making them extremely vulnerable to abuse.
Legal Spotlight: Farmer v. Brennan, 511 U.S. 825 (1994)
The first time the Supreme Court directly addressed sexual assault in prisons was in Farmer v. Brennan, 511 U.S. 825 (1994), which was a lawsuit filed by a Black trans woman, Dee Farmer who was beaten and raped by another inmate after being placed in the general population of an all-men’s low security prison. The 1994 suit alleged that defendants acted with deliberate indifference to her safety in violation of her Eighth Amendment rights.
In a historic decision, the court held that a prison may be held liable under the Eighth Amendment for acting with “deliberate indifference” to inmate health or safety only if he knows that the inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. The decision brought awareness to sexual assault in prison and influenced the passage of the Prison Rape Elimination Act of 2003.
The plaintiff, Dee Farmer was also the first transgender plaintiff to bring a case before the United States Supreme Court. To this day, Dee Farmer continues to be involved in trans rights and is a legal expert and consultant for the National Center for Lesbian Rights.
This case is a powerful piece of LGBTQ History as it advanced civil rights protections and has been cited in tens of thousands of subsequent court decisions. In honor of pride month, it is important to recognize and give credit to the LGBTQ activists who paved the way for the numerous civil rights protections that we have today. U.S. history would be incomplete without honoring their work.
Speak with a Civil Rights Attorney Today
Sexual abuse committed by prison staff against inmates creates a violent and dangerous environment, and institutional failures often prevent the perpetrators of abuse from being held accountable.
There are many barriers to reporting prison sexual assault due to threats of retaliation from staff members who have fostered or acquiesced to a violent environment, making it impossible for incarcerated victims to seek assistance.
At the Jacob Fuchsberg Law Firm, we can help you take legal action against the prison staff who were responsible for and complicit in causing your abuse. Our experienced team of prison sexual assault attorneys can help survivors process their trauma and seek justice, in a way that feels comfortable and validating for an individual survivor.
The Jacob Fuchsberg law firm has over 40 years of experience holding and intuitions accountable for civil rights violations. In 2022, Attorney Jaehyun Oh obtained a precedent setting settlement on behalf of three inmates who were sexually assaulted by a correction officer at the now-closed Metropolitan Correctional Center in New York. Since then, the firm has become active in nation-wide reform efforts to ensure that prisons protect inmates from sexual assault.
If you, or someone you love, have suffered sexual abuse while incarcerated, reach out to Attorney Jaehyun Oh for a confidential initial consultation at (212) 869-3500.
We can help when the unimaginable happens.