Privacy Should Be a Right—Regardless of Who You Are

Victoria Law
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Victoria Law is a voracious reader and freelance writer who frequently writes about gender, incarceration and resistance. She is also the author of Resistance Behind Bars: The Struggles of Incarcerated Women

a woman looks nervous to be strip-searched in the movie Compliance

In the movie "Compliance," a woman is detained for suspicious reasons and secretly filmed being strip searched. 

"Privacy is a privilege," Roxane Gay reminded us in her recent essay about the leak of naked photos of several young, famous women. "It is rarely enjoyed by women or transgender men and women, queer people or people of color. When you are an Other, you are always in danger of having your body or some other intimate part of yourself exposed in one way or another." 

It's not just celebrity women who aren't seen as having the right to bodily autonomy and privacy.

While there is, rightly, outcry over last weekend's leak of celebrities' private photos onto the internet, defending the privacy of people who are out of the limelight is an ongoing challenge.  it actually took a class-action lawsuit to figure out men should not be allowed to videotape women's strip searches in jail. That's right—just last week, a federal judge ruled that it is unconstitutional for male guards to videotape the strip searches. This is a description of how the strip searches took place in the Western Massachusetts Regional Women’s Correctional Center:

“When women are moved to the Segregation Unit for mental health or disciplinary reasons, they are strip searched. With four or more officers present, the inmate must: take off all her clothes, lift her breasts and, if large, her stomach, turn around, bend over, spread her buttocks with her hands and cough, and stand up and face the wall. If the woman is menstruating, she must remove her tampon or pad and hand it to a guard. An officer with a video camera stands a few feet away and records the entire strip search. This officer is almost always male.”

Since September 2008, the male staff have videotaped 274 strip searches. In 2009, Debra Baggett, who was held in that jail between 2008 and 2010, wrote a letter complaining about the practice to the law office of Howard Friedman. The lawyer's office investigated her complaints and learned that the jail had a written policy allowing men to videotape women's strip searches.

When the jail refused to change its policy, Baggett and other women who had been subject to this practice filed suit. In April, a judge heard arguments in Baggett v. Ashe, the class-action lawsuit which grew to include the 178 women who had been videotaped while in jail.

prisons are a feminist issue graphic

Lawyers from both sides noted the lack of case law as to whether cross-gender videotaping of strip searches violates a person's constitutional rights. When I learned about the case and wrote about it for Solitary Watch earlier this year, I asked currently and formerly incarcerated women if they'd ever experienced such a practice. Weeks and months after my piece was published, I was still receiving responses ranging from "No, this doesn't happen here" to the more emphatic "Hell no! That would make me want to vomit if that ever happened to me." From Alaska to Texas to Florida to California, women were horrified to hear about this practice.

But just because videotaping women's naked bodies seems confined to this one jail doesn't mean that women in other jails and prisons have the right to bodily autonomy and privacy. Every jail and prison allows strip searches, a way that staff can--and do--sexually humiliate and abuse the people that they guard. Strip searches are not covered by legislation designed to prevent sexual abuse, such as the Prison Rape Elimination Act, which criminalizes sexual harassment, abuse and assault behind bars. While some systems have policies that prohibit cross-gender searching in an attempt to limit the potential for sexual abuse, even these fall short in systems that fail to respect the bodies and the dignity of the people inside. 

Andrea James, who was incarcerated in the federal prison in Danbury (where Orange is the New Black takes place) and is a founding member of advocacy group Families for Justice as Healing, had never heard stories of videotaping strip searches. But she did have stories about sexual abuse by staff. According to policy in Danbury and all other federal prisons, staff members of the opposite gender are not permitted to be in the shower area or in a position to view women's breasts, buttocks or genitalia (except in exigent circumstances). However, these policies seemed to be rarely enforced and, when breached, even more rarely addressed. In an email, James told me: 

It was not unusual for men to walk freely and unannounced throughout our living quarters and bathroom/shower areas. It was an everyday, all day thing. One time when I was showering a male officer walked through the shower area unannounced and when I screamed an obscenity at him he reported me to Keisha Perkins (the federal camp counselor at Danbury, the same woman who was just arrested and charged with accepting bribes to make early release recommendations). After questioning me about whether I called the officer the obscenity, Perkins told me that the male guards could walk anywhere they wanted to at any time, so long as they don't walk up to my shower stall and throw back the curtain, they can go anywhere at any time, unannounced.

After Baggett v. Ashe was filed, the jail all but eliminated allowing male guards to videotape strip searches. "Now it happens less than one percent of the time," attorney David Milton, who represented the 178 women, stated in May while awaiting the court's decision. "If we're successful, we hope that the success of this lawsuit will send a message that women prisoners retain a core of human dignity and privacy that cannot be violated."

Last week, on August 26, 2014, a federal judge did send that message, stating, "In sum, no legitimate penological interest justified the regular practice of using male officers to videotape female inmates while they were being strip searched."

Who do we think is entitled to privacy? Is it a right that gets taken away if you get arrested? What about if you become famous? Privacy shouldn't be seen as a privilege; it should be a right that is respected for all people, regardless of gender, fame or circumstances.

Related Reading: We Need to Face America's Dark History of Sterilizing People Behind Bars. 

Victoria Law is a freelance editor and writer. She frequently writes about intersections of incarceration, gender and resistance. She enjoys reading dystopic fiction to escape the realities of the U.S. prison system. 

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