What We Don't Know Might Hurt Us: Subjective Knowledge and the Eighth Amendment's Deliberate Indifference Standard for Sexual Abuse in Prisons
![handle is hein.journals/annam65 and id is 719 raw text is: WHAT WE DON'T KNOW MIGHT HURT US:
SUBJECTIVE KNOWLEDGE AND THE
EIGHTH AMENDMENT'S DELIBERATE
INDIFFERENCE STANDARD FOR SEXUAL
ABUSE IN PRISONS
KATHERINE ROBB *
I'm afraid to go to sleep, to shower orjust about anything else.
I am afraid that when I am doing these things, I might die at
any time. Please, sir, help me.'
-Rodney Bruntmyer
INTRODUCTION
At age sixteen, Rodney Bruntmyer was sentenced to eight years
in prison for setting a dumpster on fire.2 He was raped and then
removed from, and against his wishes returned to, the general pop-
ulation.3 There he was raped again and repeatedly forced to per-
form oral sex on other inmates.4 At age seventeen, Rodney hung
himself in his cell.5 His mother recalls that when she talked to the
warden regarding transferring her son to a safe place, she was told,
Rodney needs to grow up... this happens every day, learn to deal
with it. It's no big thing.'6
Prison rape is a big thing. Conservative estimates place the
rate of sexual abuse in prison at thirteen percent at least.7 In the
* J.D., University of California, Davis School of Law, 2006; B.A., Vassar
College, 2002. The author thanks Professor Tobias B. Wolff and the editorial staff
of the New York University Annual Survey of American Law for their valuable insights
and comments.
1. The Cost of Victimization: Why Our Nation Must Confront Rape-Personal Ac-
counts from Survivors of Prison Sexual Assaults: Hearing Before the Nat' Rape Elimination
Comm. (June 14, 2005) [hereinafter Hearing Before the Nat'l Rape Elimination Comm. ]
(statement of Linda Bruntmyer), available at http://www.cybercemetery.unt.edu/
archive/nprec/20090820160743/http://nprec.us/docs/PersonalAccounts_
Bruntmyer.pdf (last visited Feb. 7, 2010).
2. Id.
3. Id.
4. Id.
5. Id.
6. Id.
7. 42 U.S.C. § 15601(2) (2006); see also NAT'L PRISON RAPE ELIMINATION
COMM'N, NAT'L PRISON RAPE ELIMINATION COMM'N REPORT 3 (2009) [hereinafter
705
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