9th Circuit Revives Inmate’s Claims of Sexual-Shame Therapy

HONOLULU (CN) – A Ninth Circuit panel on Tuesday revived claims brought by a former Hawaii inmate who says she was psychologically traumatized by forced sexual-shame therapy at a Hawaii correctional facility.

A federal judge dismissed Alexandria Gregg’s class action against Hawaii and its public safety department in 2014, finding that because Gregg’s feelings of humiliation occurred during her therapy sessions, her claims accrued on the last date that the sessions occurred. Since the sessions ended in 2011, the judge dismissed without leave to amend Gregg’s Eighth Amendment action, filed in January 2014, as falling outside the two-year statute of limitations.

But the Ninth Circuit panel revived Gregg’s action, finding that under 30-year-old precedent in Simmons v. United States, Gregg should have been given the opportunity to show that it was not until later, in January 2012, that she became aware of her injuries.

The panel held it may be reasonable for an incarcerated individual who is told she must resurface past sexual traumas to view associated feelings of emotional distress as normal, constructive responses incidental to the healing process.

Like the plaintiff in Simmons, it is plausible that Gregg didn’t know and couldn’t have known she was injured by the program for some time after she stopped participating in the sessions, the panel concluded.

In her complaint, Gregg accused the Hawaii Department of Public Safety, its director Ted Sakai, and Kauai Community Correctional Center warden Neal Wagatsuma of publicly shaming detainees.

“Defendant Wagatsuma’s public sexual shamings of female detainees at KCCC involved a myriad of improper, intolerable, and illegal acts. For example, defendant Wagatsuma belittled and derided female detainees in front of other male detainees and required the female detainees to hold up provocative, sexual photographs of themselves as he called them ‘whores,’” Gregg says in her complaint.

She continues: “During these public sessions, defendant Wagatsuma would demand that female detainees disclose their private sexual histories, which included rape, childhood sexual abuse, and drug-induced sex. Defendant Wagatsuma would go further and extensively question the female detainees about their sexual histories, sexual preferences, sexual deviations, and sexual pleasures. For example, female detainees were asked about what they thought about when they masturbated.

“Defendant Wagatsuma would often film these public sexual shamings. Typically, the detainees selected for filming were young attractive women,” Gregg says in the complaint.

She adds that after being for 3 months, she returned to the jail pregnant gave birth while incarcerated there. She says the warden targeted her again, and when she asked him to return the videotapes of her “sessions” he claimed they had been destroyed.

Gregg sought class certification, declaratory judgment, an injunction and punitive damages for cruel and unusual punishment, sexual abuse, other constitutional violations, civil rights violations, privacy invasion and reckless indifference.

The Ninth Circuit panel, which included Circuit Judges Raymond Fisher, Richard Paez and Jacqueline Nguyen, vacated the trial court’s dismissal without leave to amend in order to give Gregg an opportunity to show her awareness of her injuries had been delayed.

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