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Congress Amends PLRA Physical Injury Requirement for Sexual Abuse Cases
The federal Violence Against Women Act (VAWA) was renewed and broadened in February 2013, after much controversy involving Republican opposition to provisions extending certain of the statute's protections to LGBT persons, Native Americans living on reservations and undocumented immigrants.
Lost in those debates was the fact that the broadened VAWA also included a significant amendment to the physical injury requirement of the Prison Litigation Reform Act (PLRA).
As initially enacted, the PLRA, 42 U.S.C. § 1997e(e), provided that "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."
Courts have held that this provision does not actually bar claims that do not involve physical injury, but prevents the plaintiff from recovering compensatory damages for those claims. See, e.g., Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) [PLN, May 2003, p.27]. A few courts have held that it bars both compensatory and punitive damages. See, e.g., Al-Amin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011).
The effect of the PLRA's physical injury requirement has been unclear in sexual assault cases, among many others, because the statute does not include a definition of "physical injury." The courts have not been much help, agreeing that physical injury must be more than de minimis but not otherwise defining the term. Since sexual assault may or may not result in actual damage to tissue, which is arguably the everyday understanding of what physical injury means, the question has remained open.
A majority of decisions has held that sexual assault does constitute physical injury. For example, the Second Circuit found that "alleged sexual assaults" by staff "qualify as physical injuries as a matter of common sense" and "would constitute more than de minimis injury." Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) [PLN, Dec. 2000, p.17]. The "assaults" in Liner were also described as "intrusive body searches."
A Florida district court addressed Congressional intent more explicitly, stating that sexual assault, "even if considered to be de minimis from a purely physical perspective, is plainly 'repugnant to the conscience of mankind.' Surely Congress intended the concept of 'physical injury' in § 1997e(e) to cover such a repugnant use of physical force." Kemner v. Hemphill, 199 F.Supp.2d 1264, 1270 (N.D.Fla. 2002) (citation omitted) [PLN, July 2003, p.16].
Nonetheless other cases have held sexual assault not to constitute physical injury, and therefore not to be compensable in federal civil actions. See, e.g., Hancock v. Payne, 2006 WL 21751, *1, 3 (S.D.Miss., Jan. 4, 2006) (holding prisoners who alleged they were "sexually battered ... by sodomy" did not satisfy § 1997e(e)). [See: PLN, July 2009, p.1].
The Violence Against Women Act has now largely resolved this question by declaring that § 1997e(e) "is amended by inserting before the period at the end the following: 'or the commission of a sexual act (as defined in section 2246 of title 18, United States Code).'" VAWA similarly amended 28 U.S.C. § 1346(b), the PLRA section imposing the physical injury requirement on the Federal Tort Claims Act for persons convicted of a felony and awaiting sentencing or serving a sentence. Pub.L. No. 113-12, 127 Stat. 54, § 1101 (Sexual Abuse in Custodial Settings).
Thus, for both PLRA provisions, the relevant phrase is now "without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18)." In cases involving such acts, it is no longer necessary to determine whether the plaintiff suffered physical injury.
So what is a "sexual act" as defined in 18 U.S.C. § 2246? The statute is quite specific, defining sexual act as:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; ...
Thus, under the VAWA amendment, questions about anal, vaginal and oral sex are resolved. Manual or other non-penetrative sexual touching of another person, compelled or otherwise, is not included except for intentional, unclothed touching of persons under 16 years old; nor are acts involving the touching of women's breasts. Nor does the amendment include cases in which prisoners are compelled or persuaded to perform sexual acts or displays for the titillation of others.
The amendment would therefore exclude some cases that previously have been decided favorably for prisoners. See, e.g., Duncan v. Magelessen, 2008 WL 2783487, *2, *4 (D.Colo., July 15, 2008) (stating "unwanted sexual contact, alone, is a physical injury for which there may be compensation" in a case where the plaintiff alleged an officer "played" with his penis repeatedly). Indeed, it is possible that the "intrusive body searches" referred to in Liner v. Goord would be excluded unless they involved actual vaginal or anal penetration, or the prisoner was under 16 years old.
Does the VAWA amendment mean that a sexual act that does not fall under the provisions of 18 U.S.C. § 2246 cannot be the basis for a damages award in federal litigation brought by a prisoner? In most cases, probably yes. However, sexual acts of any sort that inflict physical injury in the conventional sense of tissue damage certainly remain compensable, as, presumably, do other injuries inflicted in connection with a sexual act or assault.
It remains an open question whether acts that are merely painful – such as the practice reported in some prison systems of yanking men's underwear during searches to cause genital pain – inflict physical injury within the meaning of the PLRA, although some lower court decisions in other types of cases have held pain by itself to be non-compensable. See, e.g., Jones v. Cowens, 2010 WL 3239286, *2 (D.Colo., Aug. 12, 2010) ("Physical pain, standing alone, however, is deemed to be a de minimis injury...").
An important question that the VAWA amendment does not address is whether it applies to conduct pre-dating its enactment which is the subject of pending litigation or may become the subject of future litigation.
The standard rule when Congress does not spell out a statute's "temporal reach" is that "the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Defense counsel can be expected to argue that the amendment to the PLRA's physical injury requirement "increase[s] a party's liability for past conduct" by removing a rule that arguably would have barred recovery in certain lawsuits filed by prisoners prior to the amendment.
But there is a different way to view the question, in my view a correct one. As already noted, the majority rule in the courts before the enactment of the VAWA amendment was that serious sexual assault does constitute physical injury, so in most such cases the amendment will not in fact increase a defendant's liability. Rather, the amendment can be construed as confirming the majority view of the physical injury requirement and making clearer where the line is drawn between those sexual assaults that are deemed to inflict physical injury and those that are not.
There is substantial authority that clarification of the law, as opposed to a substantive change in the law, does not have retroactive effect within the meaning of the Landgraf rule. That means it can be applied to cases involving pre-enactment conduct. See, e.g., Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. 2004) ("when an amendment alters, even significantly alters, the original statutory language, this does not necessarily indicate that the amendment institutes a change in the law") (internal quotation marks omitted); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999) ("[C]oncerns about retroactive application are not implicated when an amendment that takes effect after the initiation of a lawsuit is deemed to clarify relevant law rather than effect a substantive change in the law"); "Statutes may be passed purely to make what was intended all along even more unmistakably clear." Brown v. Thompson, id. (citation omitted).
In view of decisions like Kemner v. Hemphill, holding that Congress never intended that the physical injury requirement bar recovery for serious sexual abuse, it can be argued that Congress has now made that point explicit and spelled out what kinds of sexual abuse should be unaffected by the physical injury requirement. That is, the amendment clarifies the PLRA rather than amending it. Plaintiffs can therefore plausibly contend in cases addressing pre-amendment conduct that the VAWA amendment ends any dispute over whether prisoners can recover damages for the kinds of sexual abuse specified in 18 U.S.C. § 2246.
Remember that the PLRA's physical injury provision, like most others, applies only to cases that are brought by a prisoner – that is, cases filed when the plaintiff was incarcerated. Once a prisoner is released, on parole or otherwise, he or she is no longer subject to most PLRA provisions. See, e.g., Harris v. Garner, 216 F.3d 970, 976-80 (11th Cir. 2000) (en banc) [PLN, July 2001, p.23]; Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) [PLN, Oct. 1998, p.14].
Therefore, if it is possible to wait to file a federal lawsuit, including one for sexual abuse, until after a prisoner is released, it may be wise to do so to avoid application of the physical injury requirement as well as other provisions of the PLRA – provided that the suit can still be filed within the applicable statute of limitations.
John Boston is director of the Prisoners' Rights Project of the New York City Legal Aid Society and co-author of the Prisoners' Self-Help Litigation Manual. He provided this article exclusively for PLN.
Lost in those debates was the fact that the broadened VAWA also included a significant amendment to the physical injury requirement of the Prison Litigation Reform Act (PLRA).
As initially enacted, the PLRA, 42 U.S.C. § 1997e(e), provided that "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury."
Courts have held that this provision does not actually bar claims that do not involve physical injury, but prevents the plaintiff from recovering compensatory damages for those claims. See, e.g., Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) [PLN, May 2003, p.27]. A few courts have held that it bars both compensatory and punitive damages. See, e.g., Al-Amin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011).
The effect of the PLRA's physical injury requirement has been unclear in sexual assault cases, among many others, because the statute does not include a definition of "physical injury." The courts have not been much help, agreeing that physical injury must be more than de minimis but not otherwise defining the term. Since sexual assault may or may not result in actual damage to tissue, which is arguably the everyday understanding of what physical injury means, the question has remained open.
A majority of decisions has held that sexual assault does constitute physical injury. For example, the Second Circuit found that "alleged sexual assaults" by staff "qualify as physical injuries as a matter of common sense" and "would constitute more than de minimis injury." Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999) [PLN, Dec. 2000, p.17]. The "assaults" in Liner were also described as "intrusive body searches."
A Florida district court addressed Congressional intent more explicitly, stating that sexual assault, "even if considered to be de minimis from a purely physical perspective, is plainly 'repugnant to the conscience of mankind.' Surely Congress intended the concept of 'physical injury' in § 1997e(e) to cover such a repugnant use of physical force." Kemner v. Hemphill, 199 F.Supp.2d 1264, 1270 (N.D.Fla. 2002) (citation omitted) [PLN, July 2003, p.16].
Nonetheless other cases have held sexual assault not to constitute physical injury, and therefore not to be compensable in federal civil actions. See, e.g., Hancock v. Payne, 2006 WL 21751, *1, 3 (S.D.Miss., Jan. 4, 2006) (holding prisoners who alleged they were "sexually battered ... by sodomy" did not satisfy § 1997e(e)). [See: PLN, July 2009, p.1].
The Violence Against Women Act has now largely resolved this question by declaring that § 1997e(e) "is amended by inserting before the period at the end the following: 'or the commission of a sexual act (as defined in section 2246 of title 18, United States Code).'" VAWA similarly amended 28 U.S.C. § 1346(b), the PLRA section imposing the physical injury requirement on the Federal Tort Claims Act for persons convicted of a felony and awaiting sentencing or serving a sentence. Pub.L. No. 113-12, 127 Stat. 54, § 1101 (Sexual Abuse in Custodial Settings).
Thus, for both PLRA provisions, the relevant phrase is now "without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18)." In cases involving such acts, it is no longer necessary to determine whether the plaintiff suffered physical injury.
So what is a "sexual act" as defined in 18 U.S.C. § 2246? The statute is quite specific, defining sexual act as:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; ...
Thus, under the VAWA amendment, questions about anal, vaginal and oral sex are resolved. Manual or other non-penetrative sexual touching of another person, compelled or otherwise, is not included except for intentional, unclothed touching of persons under 16 years old; nor are acts involving the touching of women's breasts. Nor does the amendment include cases in which prisoners are compelled or persuaded to perform sexual acts or displays for the titillation of others.
The amendment would therefore exclude some cases that previously have been decided favorably for prisoners. See, e.g., Duncan v. Magelessen, 2008 WL 2783487, *2, *4 (D.Colo., July 15, 2008) (stating "unwanted sexual contact, alone, is a physical injury for which there may be compensation" in a case where the plaintiff alleged an officer "played" with his penis repeatedly). Indeed, it is possible that the "intrusive body searches" referred to in Liner v. Goord would be excluded unless they involved actual vaginal or anal penetration, or the prisoner was under 16 years old.
Does the VAWA amendment mean that a sexual act that does not fall under the provisions of 18 U.S.C. § 2246 cannot be the basis for a damages award in federal litigation brought by a prisoner? In most cases, probably yes. However, sexual acts of any sort that inflict physical injury in the conventional sense of tissue damage certainly remain compensable, as, presumably, do other injuries inflicted in connection with a sexual act or assault.
It remains an open question whether acts that are merely painful – such as the practice reported in some prison systems of yanking men's underwear during searches to cause genital pain – inflict physical injury within the meaning of the PLRA, although some lower court decisions in other types of cases have held pain by itself to be non-compensable. See, e.g., Jones v. Cowens, 2010 WL 3239286, *2 (D.Colo., Aug. 12, 2010) ("Physical pain, standing alone, however, is deemed to be a de minimis injury...").
An important question that the VAWA amendment does not address is whether it applies to conduct pre-dating its enactment which is the subject of pending litigation or may become the subject of future litigation.
The standard rule when Congress does not spell out a statute's "temporal reach" is that "the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
Defense counsel can be expected to argue that the amendment to the PLRA's physical injury requirement "increase[s] a party's liability for past conduct" by removing a rule that arguably would have barred recovery in certain lawsuits filed by prisoners prior to the amendment.
But there is a different way to view the question, in my view a correct one. As already noted, the majority rule in the courts before the enactment of the VAWA amendment was that serious sexual assault does constitute physical injury, so in most such cases the amendment will not in fact increase a defendant's liability. Rather, the amendment can be construed as confirming the majority view of the physical injury requirement and making clearer where the line is drawn between those sexual assaults that are deemed to inflict physical injury and those that are not.
There is substantial authority that clarification of the law, as opposed to a substantive change in the law, does not have retroactive effect within the meaning of the Landgraf rule. That means it can be applied to cases involving pre-enactment conduct. See, e.g., Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. 2004) ("when an amendment alters, even significantly alters, the original statutory language, this does not necessarily indicate that the amendment institutes a change in the law") (internal quotation marks omitted); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1283 (11th Cir. 1999) ("[C]oncerns about retroactive application are not implicated when an amendment that takes effect after the initiation of a lawsuit is deemed to clarify relevant law rather than effect a substantive change in the law"); "Statutes may be passed purely to make what was intended all along even more unmistakably clear." Brown v. Thompson, id. (citation omitted).
In view of decisions like Kemner v. Hemphill, holding that Congress never intended that the physical injury requirement bar recovery for serious sexual abuse, it can be argued that Congress has now made that point explicit and spelled out what kinds of sexual abuse should be unaffected by the physical injury requirement. That is, the amendment clarifies the PLRA rather than amending it. Plaintiffs can therefore plausibly contend in cases addressing pre-amendment conduct that the VAWA amendment ends any dispute over whether prisoners can recover damages for the kinds of sexual abuse specified in 18 U.S.C. § 2246.
Remember that the PLRA's physical injury provision, like most others, applies only to cases that are brought by a prisoner – that is, cases filed when the plaintiff was incarcerated. Once a prisoner is released, on parole or otherwise, he or she is no longer subject to most PLRA provisions. See, e.g., Harris v. Garner, 216 F.3d 970, 976-80 (11th Cir. 2000) (en banc) [PLN, July 2001, p.23]; Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) [PLN, Oct. 1998, p.14].
Therefore, if it is possible to wait to file a federal lawsuit, including one for sexual abuse, until after a prisoner is released, it may be wise to do so to avoid application of the physical injury requirement as well as other provisions of the PLRA – provided that the suit can still be filed within the applicable statute of limitations.
John Boston is director of the Prisoners' Rights Project of the New York City Legal Aid Society and co-author of the Prisoners' Self-Help Litigation Manual. He provided this article exclusively for PLN.
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