A Right without a Remedy: Sexual Abuse in Prison and the Prison Litigation Reform Act
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A Right Without a Remedy: Sexual Abuse in
Prison and the Prison Litigation Reform Act
Hannah Belitz*
ABSTRACT
The Prison Litigation Reform Act, codified at 42 U.S.C. § 1997e, greatly
curtails the ability of inmates to file suit in federal court. It imposes numerous
obstacles to litigation, including a requirement in § 1997e(e) that an inmate may
only file suit 'for mental or emotional injury if he or she can demonstrate the
existence of a physical injury or commission of a sexual act. The statute
differentiates a sexual act from sexual conduct, narrowly defining the for-
mer, and does not permit an inmate to file suit 'for mental or emotional injury
if he or she has suffered sexual conduct alone. However, to avoid finding that
the provision unconstitutionally bars access to the federal courts, no circuit has
interpreted § 1997e(e) to prohibit inmates who have not demonstrated a physi-
cal injury or sexual actfrom filing suit. Instead, many circuits have held only
that an inmate may not recover compensatory damages in such instances. This
note argues that courts can and should interpret § 1997e(e) to allow inmates to
file claims and recover compensatory damages for sexual abuse, as it is defined
in 28 C.F.R. § 115.6 (2012), which includes actions that do not meet the statu-
tory definition of a sexual act. When confronted with prisoner sexual abuse
claims, courts can and should do one of the following: either construe
§ 1997e(e)'s physical injury requirement to encompass sexual abuse, or inter-
pret § 1997e(e)'s limitation as not applying to constitutional violations, includ-
ing sexual abuse.
INTRODUCTION
Because a prisoner ordinarily is divested of the privilege to vote, the
right to file a court action might be said to be his remaining most
'fundamental political right, because preservative of all rights.'
- McCarthy v. Madigan'
In 1996, Congress passed the Prison Litigation Reform Act (PLRA).
At the time, news media had documented the perceived excess of frivolous
prisoner lawsuits.2 The PLRA was designed to put an end to such suits.3 It
* J.D., Harvard Law School, 2017; B.A., Stanford University, 2013. The author would like
to thank Professor Martha Minow for her guidance and feedback on this piece, as well as the
editors of the Harvard Civil Rights-Civil Liberties Law Review.
'McCarthy v. Madigan, 503 U.S. 140, 153 (1992) (quoting Yick Wo v. Hopkins, 118 U.S.
356, 370 (1886)).
2See Ashley Dunn, Flood of Prisoner Rights Suits Brings Effort To Limit Filings, N.Y.
TnAEs, Mar. 21, 1994, http://www.nytimes.com/1994/03/21/nyregion/flood-of-prisoner-rights-
suits-brings-effort-to-limit-filings.html?pagewanted = all [http://perma.cc/S5AJ-HJ7G]
(describing various frivolous prisoner lawsuits, including suits filed over melted ice cream and
the type of peanut butter sold at the prison canteen).](ViewImageLocal?handle=hein.journals/hcrcl53&div=11&collection=&method=preview&ext=.png&size=3)
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A Right without a Remedy: Sexual Abuse in Prison and the Prison Litigation Reform Act
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