The power of privacy is diminishing in the prison setting, and yet privacy is the legal theory prisoners rely upon most to resist searches by correctional officers. Incarcerated women in particular rely upon privacy to shield them from the kind of physical contact that male guards have been known to abuse. The kind of privacy that protects prisoners from searches by guards of the opposite sex derives from several sources, depending on the factual circumstances. Although some form of bodily privacy is embodied in the First, Fourth, Eighth, and Fourteenth Amendments, prisoners challenging the constitutionality of cross-gender searches most commonly allege privacy violations under the Fourth Amendment proscription against "unreasonable” searches by the government. Increasingly, however, Eighth Amendment challenges to cross-gender searches are becoming more common in the wake of Hudson v. Palmer and Turner v. Safley.
Buffalo Criminal Law Review
Teresa A. Miller,
Keeping the Government's Hands Off Our Bodies: Mapping a Feminist Legal Theory Approach to Privacy in Cross-Gender Prison Searches,
Buff. Crim. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/articles/409