CA6: Sex with a court transport officer stated excessive force claim

Sexual intercourse with a court transport officer stated an excessive force claim. Plaintiff raised a factual dispute that the sex wasn’t consensual because of his control over her and a threat he made after he found out she talked about it to another inmate. Hale v. Boyle County, 2021 U.S. App. LEXIS 34249 (6th Cir. Nov. 18, 2021):

As in Rafferty, we conclude that a genuine issue of material fact remains as to whether Hale consented to the encounters with Pennington. Hale has attested that when Pennington discovered that she had told others about their sexual encounters and confronted her, he scared her. That is akin to the subjective “intimidation” that the incarcerated person felt in Rafferty and is evidence that the encounters were not consensual.

Most significantly, Hale asserted in an affidavit that Pennington offered to speak to the prosecutors in Hale’s case after Hale had performed oral sex on him. This proffer was a double-edged sword. By proposing to help Hale, Pennington also implied that he could harm her case. Hale was facing a decade in prison; she had a lot to lose. No doubt, Pennington’s telling Hale that he could assist her case was the most egregious example of coercion here.

Hale also asserted that Pennington exchanged privileges and favors in exchange for sex. Pennington provided Hale with sunshine, detours, cigarettes, sodas, and his mobile number. Each of these gifts, favors, and privileges is indicative of coercion. See Wood, 692 F.3d at 1047 (“Even if the prisoner concedes that the sexual relationship is ‘voluntary,’ because sex is often traded for favors (more phone privileges or increased contact with children) or ‘luxuries’ (shampoo, gum, cigarettes), it is difficult to characterize sexual relationships in prison as truly the product of free choice.”); see also Chao v. Ballista, 772 F. Supp. 2d 337, 350-51 (D. Mass. 2011) (citing perks such as cigarettes, candy, and food as evidence in rejecting the consent defense as a matter of law).

Defendants maintain that Hale voluntarily had sexual contact and intercourse with Pennington. See Pennington Br. at 1; Boyle Cnty. Br. at 2. Defendants argue in their briefs and asserted at oral argument that Pennington never intimidated or threatened Hale; that Pennington never forced her to have sex; and Hale enjoyed having sex with Pennington. See Pennington Br. at 14, 23; Boyle Cnty. Br. at 20-21; Oral Arg. at 14:20-28. In one sense, Defendants are correct. Per Hale’s testimony, all sexual contact was the product of Hale’s agreeing to have sex with Pennington. But as the Ninth Circuit recognized, coercion can make a purportedly “voluntary” act involuntary. See Wood, 692 F.3d at 1047. Defendants minimize the coercive aspects of Pennington’s gifts, privileges, and offer to intervene in Hale’s criminal case. Despite Hale’s testimony, the gifts, privileges, and statements by and from Pennington are sufficient evidence of coercion to create a genuine issue of material fact.

This entry was posted in Excessive force. Bookmark the permalink.

Comments are closed.