Document Type

Article

Publication Date

Summer 2000

Rights

In Copyright

Abstract

In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.

The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually predacious prisoner subculture that frames the issue of cross-gender searches and demonstrates how the current doctrine participates in the allocation of power within prison without admitting it. Part Three presents the doctrinal background for cross-gender search cases. It traces the precedents that eroded the basic notion of prisoner privacy and charts the parallel ascendance of sex-based concerns in the regulation of prisons. It also demonstrates that the constitutional doctrine of cross-gender searches is in disarray and that the confusion within the doctrine centers on visual surveillance of male prisoners by female guards in “contact” positions. Part Four examines Johnson v. Phelan, one of the few judicial opinions to draw attention to the realities of prison life in its discussion of visual surveillance. This section credits Judge Richard Posner''s dissent for recognizing the limitations of privacy-based judicial approaches to cross-gender search cases, but criticizes it for blaming the doctrinal inadequacies on those who promote the entry of women into the field of corrections. Finally, this article concludes that judges need to take a new approach to prisoner privacy claims and look beyond traditional sex and power stereotypes.

Publication Title

George Mason University Civil Rights Law Journal

First Page

291

Last Page

356

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