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Jamie Huffman Jones
Sex and Section 1983: Consent and the #MeToo Movement1
By Jamie Huffman Jones
The #MeToo Social Media Movement has placed the concept of “consent” centerstage in popular culture. While the impact of #MeToo continues to be debated in gossip rags and academia alike, researchers have determined that reporting of sex crimes increased by 10%2. However, “prison inmates [have been] largely left out of the #MeToo discussion, particularly women and gender minorities.3” While the popular discourse may not include prison inmates, the topic of consent arises when there is a claim of sexual assault by a law enforcement officer (often in detention cases) as a violation of constitutional rights pursuant to 42 U.S.C. Section 1983. When such allegations occur, the question becomes whether consent is a defense under Section 1983.
Under most criminal statutes, consent cannot be a defense because of the superior relationship of the prison official and the cases are treated as statutory rape. Some circuits have adopted this reasoning into the civil scheme. Lobozzo v. Colorado Dep’t of Corr., 429 F. App’x 707, 711 (10th Cir. 2011) (“[i]t is uncontested that Lobozzo, an inmate, could not legally consent to sexual activity with Martinez, a guard.”). This is a minority rule.
Under the civil scheme of Section 1983, however, consent is available as a complete defense in some circuits. Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997). In the last ten years, this was the majority rule, but it has become eroded into a rebuttable presumption. Under that presumption:
the prisoner is entitled to a presumption that the conduct was not consensual. The state may rebut this presumption by showing that the conduct involved no coercive factors... explicit assertions or manifestations of non-consent indicate coercion, but so too may factors, privileges, or any type of exchange for sex. Unless the state carries its burden, the prisoner is deemed to have established the fact of non-consent.
1 Thank you to Chris Stevens, Fuqua, Campbell, P.A. for assistance in a previous version of this article.
2 Levy, Ro’ee and Mattson, Martin, The Effects of Social Movements: Evidence from #MeToo (March 16, 2022). Available at SSRN: https://ssrn.com/abstract=3496903 or http://dx.doi. org/10.2139/ssrn.3496903)
3 Nika Arzoumanian, Consent Behind Bars: Should it be a Defense Against Inmates’ Claims of Sexual Assault, University of Chicago Legal Forum, Article 11 (2019).
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Civil Rights and Public Entity Law
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