NEW ORLEANS – A transgender inmate has filed a lawsuit in U.S. District Court for the Eastern District of Louisiana over allegations that negligence by prison officials allowed her to be sexually assaulted by another inmate.
The lawsuit, filed in U.S. District Court in New Orleans, alleges prison officials were negligent in their failure to separate violent from non-violent offenders and for not separating transgender inmates from the general population. It also claims the inmate, who was born male but lives as a woman, screamed for help several times over the course of nearly a half-hour before deputies came to her aid.
"As a result of the attack ... she suffered physical injury, emotional distress and pain and suffering," the lawsuit reads.
The attacker in the incident, McArthur Mackey Jr., was charged with second-degree rape but ultimately pleaded guilty to aggravated second-degree battery and misdemeanor sexual battery, criminal court records show. He was sentenced to 12 years in prison.
About 1:30 a.m. on Sept. 21, 2015, the transgender inmate was sleeping when Mackey attacked her, the lawsuit says. She screamed for help, but during several attempts a deputy was first not on duty, then when another deputy answered the intercom, Mackey thwarted her attempts to get help by telling the deputy everything was fine, the suit alleges, adding that it was not until the fourth attempt that deputies came to the cell.
“Transgender prisoners are protected by the Constitution," Pamela Newport, attorney and human rights advocate, told the Louisiana Record. "That principle was solidified by the 1994 case of Farmer v. Brennan. (The case) involved a transgender woman who was placed in an Indiana men's prison and subsequently raped. The court held that the prison officials' actions violated Farmer's Eighth Amendment right from cruel and unusual punishment.”
Various statutes exist to protect transgender prisoners, including the Prison Rape Elimination Act (PREA) passed in 2003. PREA standards state that prisons, jails and other covered facilities are supposed to screen prisoners within 72 hours of arrival to assess their risk for sexual abuse. “This screening should take into account whether the prisoner is, or is perceived to be, lesbian, gay, bisexual, transgender or queer (LGBTQ) or is otherwise gender-nonconforming. This screening should be considered when making housing arrangements,” Newport said.
She decried the circumstances of the incident as described in the lawsuit.
“It is deplorable that the staff refused to come to this prisoner's aid for 30 minutes," Newport said. "Anyone having anything to do with this incident should be fully investigated. If the allegations in the complaint are substantiated, this would be a clear constitutional violation, as well as a violation of the PREA standards.”
Newport said while PREA sets up good standards, one of the shortcomings is that there is no private right of action for a prisoner to sue the prison or prison officials for if a violation occurs. “However,” Newport said, “a violation of PREA could be used as evidence that there was also a violation of a prisoner's constitutional rights.”
Newport said the jail failed in screening the transgender inmate to identify her as a potential target of sexual assault and failed in its assignment of her to a cell with someone accused of armed robbery. “This young trans woman was arrested for failure to appear on misdemeanor charges and she ends up raped while the people who are supposed to protect her simply ignore her. That punishment hardly fits the crime and is a travesty to our justice system,” Newport said.