Prison Guard Must Pay for Sex With an Inmate

     (CN) – A woman can keep the $73,700 award from a jury that found she was coerced into sex with a prison guard up to 100 times while serving time, a Boston federal judge ruled.



     Former South Middlesex Correctional Center guard Moises Ballista was convicted of sexual relations with an inmate, a crime under Massachusetts law.
     Though inmates had reported witnessing sexual misconduct between guards and inmates as early as May 2003, the prison did not make an effort to stop the misconduct until July 2004, at which point Ballista was suspended.
     He had 50 to 100 sexual encounters with Cristina Chao over the course of a year while she was incarcerated at the Framingham, Ma., facility, court records show.
     Chao brought a section 1983 civil rights suit against Ballista and prison officials after she was released from prison. A jury awarded her more than $73,000 in damages for Ballista’s intentional infliction of emotional distress and infliction of cruel and unusual punishment under both the federal and Massachusetts constitutions.
     It also held prison superintendent Kelly Ryan liable for violating Chao’s Eighth Amendment rights, but that the conduct was not willful.
     Ballista and Ryan moved for a directed verdict on the grounds that the evidence was insufficient, that consensual sex between a guard and an inmate is not a violation of the Eighth Amendment, and, in Ryan’s case, on the grounds of qualified immunity.
     U.S. District Judge Nancy Gertner rejected the motions last week, defending the jury’s finding that Chao had not consented.
     “Sex in prison is a complex and risky phenomenon,” Gertner wrote. “‘Consent’ is not easy to determine amidst the power dynamics between male captors and female inmates. The analysis is contextual – and for the fact finder.”
     The 40-page decision focuses on the sufficiency of the evidence at trial.
     “Where, as here, the ‘relationship’ between this inmate and her captor took place over the course of a year, where virtually every encounter was one sided female-on-male fellatio, where he sometimes woke her up the middle of the night to ‘service him, the jury could reasonably find that the conduct rose to the level required to constitute a violation of the Eighth Amendment,” Gertner wrote.
     Though “any intercourse or oral sex” will not necessarily violate the Eighth Amendment as a matter of law, Gertner said she neither found “that voluntary sex may never violate the Eighth Amendment.”
     “The case against Ballista could not have been more straightforward,” according to the ruling. “He confessed to her that he was abusing his authority and taking advantage of her. He knew of her personal background, and yet he engaged in this conduct anyway.”
     “Like many female inmates, Chao was a victim of sexual abuse both as a child and as an adult,” Gertner added. She also pointed out that Ryan testified that “upwards of sixty percent of female inmates are on psychotropic medication.”
     Ryan had claimed she is entitled to qualified immunity because the constitutionality of consensual sex between guards and inmates was not “clearly established” when the events occurred. Gertner was not convinced.
     “Ryan misconstrues the right at issue,” the judge wrote. “She is charged with violating Chao’s right to protection, and that right is unquestionably well-established.” (Italics in original).
     “A reasonable officer would have known that the conditions placed female inmates at significant risk of serious harm,” Gertner added. “There was not a single surveillance camera inside the premises; the officers’ watch schedules placed an unsupervised male officer on a floor of sleeping women in rooms to which he had access. Moreover, a reasonable warden would have known that the law required her to investigate the allegations of sexual misconduct when they first arose.”
     The decision recites a laundry list of the problems associated with guard-inmate sex, Massachusetts Corrections Department Commissioner Kathleen Dennehy has noted that such behavior “creates victims,” “compromises staff,” “brings complete disrespect and dishonor to a profession,” and “creates a sense and a perception of unfairness in the eyes of other offenders.” Dennehy was a named defendant in Chao’s lawsuit, but the jury did not hold her liable.
     In her written statement, Chao said of the relationship: “I wanted it to end. I didn’t know how to stop it. I wanted it to end because it was very clear to me I was being used. Like I said it was maybe five times that we had intercourse out of 100 times that I gave him oral sex. There’s nothing, that’s not a relationship, that’s being used. It’s being degraded. It’s dirty. It’s not what I wanted. I am very ashamed.”

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