Amicus Curiae Brief — Sharon Lynn Brown, Petitioner v. Polk County, Wisconsin, et al.

No. 20-982

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------SHARON LYNN BROWN,

Petitioner,

vs.

POLK COUNTY, WISCONSIN, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

---------------------------------♦--------------------------------BRIEF AMICI CURIAE NATIONAL ALLIANCE

TO END SEXUAL VIOLENCE, NATIONAL

INDIGENOUS WOMEN’S RESOURCE CENTER, INC.,

BATTERED WOMEN’S JUSTICE PROJECT,

WISCONSIN COALITION AGAINST SEXUAL

ASSAULT, MINNESOTA COALITION AGAINST

SEXUAL ASSAULT, COLUMBIA LAW SCHOOL

SEXUALITY AND GENDER LAW CLINIC,

MINNESOTA INDIAN WOMEN SEXUAL ASSAULT

COALITION, ALLIANCE OF TRIBAL COALITIONS

TO END VIOLENCE, MENDING THE SACRED

HOOP, STANDPOINT, GENDER JUSTICE,

AND OUR JUSTICE IN SUPPORT OF

PETITIONER SHARON LYNN BROWN

---------------------------------♦--------------------------------KATHERINE S. BARRETT WIIK

Counsel of Record

BEST & FLANAGAN LLP

60 South Sixth Street, Suite 2700

Minneapolis, MN 55402

Phone: 612-341-9710

kbarrettwiik@bestlaw.com

Counsel of Record for Amici National Alliance to

End Sexual Violence, National Indigenous Women’s

Resource Center, Inc., Battered Women’s Justice

Project, Wisconsin Coalition Against Sexual Assault,

Minnesota Coalition Against Sexual Assault,

Columbia Law School Sexuality and Gender

Law Clinic, Minnesota Indian Women Sexual

Assault Coalition, Alliance of Tribal Coalitions

to End Violence, Mending the Sacred Hoop,

Standpoint, Gender Justice, and Our Justice

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

ii

INTEREST OF THE AMICI CURIAE .................

1

SUMMARY OF THE ARGUMENT .....................

5

ARGUMENT ........................................................

8

I.

Non-consensual body cavity searches should

be lawful only under the rarest of

circumstances, because such searches are

state-ordered sexual assaults that violate

bodily autonomy and inflict trauma ............

8

II. Non-consensual body cavity searches

perpetuate racial and gender disparities as

well as individual and collective trauma .... 11

III.

The high rates of sexual violence

perpetrated by jail and prison authorities

demonstrates the dangers of having a

permissive standard for conducting nonconsensual body cavity searches ................ 15

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

Birchfield v. North Dakota, 136 S. Ct. 2160

(2016) ................................................................... 9, 10

Schmerber v. California, 384 U.S. 757 (1966) ..............8

State v. Brown, 932 N.W.2d 283 (Minn. 2020) ...........17

Turner v. Safley, 482 U.S. 78 (1987) .............................8

Washington v. Harper, 494 U.S. 210 (1990) .................8

CONSTITUTIONAL PROVISION

U.S. Const. amend. IV ............................... 7, 8, 9, 17, 18

STATUTES

Prison Rape Elimination Act, 34 U.S.C.A.

§ 30301 (West) ................................................... 15-16

Wis. Stat. Ann. § 940.225 (West 2020) .........................8

OTHER AUTHORITIES

Andre B. Rosay, Violence Against American

Indian and Alaska Native Women and Men,

National Institute of Justice (Sept. 2016),

https://www.ojp.gov/pdffiles1/nij/249822.pdf ..........14

Black Women and Sexual Assault, The National

Center on Violence Against Women in the

Black Community (Oct. 2018), https://

ujimacommunity.org/wp-content/uploads/2018/

12/Ujima-Womens-Violence-Stats-v7.4-1.pdf ........14

iii

TABLE OF AUTHORITIES—Continued

Page

Criminal Justice Fact Sheet, NAACP, https://

www.naacp.org/criminal-justice-fact-sheet/ (last

visited Feb. 22, 2021) ..............................................12

Jameta Nicole Barlow, Black Women, The

Forgotten Survivors of Sexual Assault,”

American Psychological Association, In the

Public Interest (Feb. 2020), https://www.apa.org/

pi/about/newsletter/2020/02/black-women-sexualassault ......................................................................14

Justice Denied: The Harmful and Lasting Effects

of Pretrial Detention, Vera Institute of Justice

(Apr. 2019), https://www.vera.org/downloads/

publications/Justice-Denied-Evidence-Brief.pdf ......12

Minnesota Indian Women’s Sexual Assault

Coalition, https://www.miwsac.org/ (last visited

Feb. 22, 2021)...........................................................14

National

Prison

Rape

Elimination

Commission Report, National Prison Rape

Elimination Commission, 3 (June 2009),

https://www.ojp.gov/pdffiles1/226680.pdf ......... 16, 17

Policy Research Update: Violence Against

American Indian and Alaska Native Women,

National Congress of American Indians,

Policy

Research

Center

(Feb. 2018),

https://www.ncai.org/policy-research-center/

research-data/prc-publications/VAWA_Data_

Brief_FINAL_2_1_2018.pdf ....................................14

iv

TABLE OF AUTHORITIES—Continued

Page

Roxanne Daniel, Since You Asked: What Data

Exists About Native American People in the

Criminal Justice System, Prison Policy

Initiative (Apr. 22, 2020), https://www.

prisonpolicy.org/blog/2020/04/22/native/ ...............13

Wisconsin Profile, Prison Policy Initiative,

https://www.prisonpolicy.org/profiles/WI.html

(last visited Feb. 22, 2021) ......................................12

1

INTEREST OF THE AMICI CURIAE1

Amici curiae are twelve non-profit and

educational organizations dedicated to the prevention

of gender and sexual violence, the advancement of

racial, gender, and reproductive justice, and support of

and advocacy for Native American tribal members and

communities.

National Alliance to End Sexual Violence is

the voice in Washington, D.C., for the 56 state and

territorial sexual assault coalitions and works to

educate the policy community about federal laws,

legislation, and appropriations impacting the fight to

end sexual violence. Its team of experts and advocates,

donating time away from their state and local groups,

publish written analysis, track legislation, provide

media interviews, and advise members of Congress

and the executive branch.

National Indigenous Women’s Resource

Center, Inc. (“NIWRC”) is a Native-led non-profit

organization dedicated to ending violence against

Native women and children. The NIWRC provides

national leadership in ending gender-based violence in

tribal communities by lifting up the collective voices of

grassroots advocates and offering culturally grounded

This amicus brief is filed with the consent of Petitioner and

Respondents. The parties received timely notice of this filing. No

counsel for a party authored this brief in whole or in part. No

person or entity, other than amici and their counsel, contributed

money intended to fund the preparation or submission of this

brief.

1

2

resources, technical assistance and training, and policy

development to strengthen tribal sovereignty.

Battered Women’s Justice Project (“BWJP”) is

a national technical assistance center that provides

training and resources for advocates, battered women,

legal system personnel, policymakers, and others

engaged in the justice system response to intimate

partner violence (“IPV”). The BWJP promotes systemic

change within the civil and criminal justice systems

to ensure an effective and just response to victims and

perpetrators of IPV, and the children exposed to this

violence. The BWJP is an affiliated member of the

Domestic Violence Resource Network, a group of

national resource centers funded by the Department

of Health and Human Services and other support

providers since 1993. The BWJP also serves as a

designated technical assistance provider for the Office

on Violence Against Women of the U.S. Department of

Justice.

Wisconsin Coalition Against Sexual Assault

(“WCASA”) is a hybrid organization; functioning both

to support member Sexual Assault Service Providers

(“SASPs”), while advancing the anti-sexual assault

movement in the state and nationally. WCASA works

towards creating a socially just world in which all

people value equity and healthy sexuality.

Minnesota Coalition Against Sexual Assault

(“MNCASA”) is a coalition of Minnesota’s rape crisis

centers and dual domestic/sexual violence victim

advocacy programs statewide. Its member programs

3

and allies also include health care agencies,

community groups, victims/survivors, attorneys, and

law enforcement agencies whose employees and

volunteers support victims of sexual assault. MNCASA

represents the interests of these stakeholders in

matters of public policy, media outreach, prevention

awareness, systems change, and community

organizing around issues of sexual violence.

Columbia Law School Sexuality and Gender

Law Clinic, founded in 2006, is the first such clinical

law program at an American law school. The Clinic

works on cutting-edge sexuality and gender law

issues and provides vital assistance to lawyers and

organizations throughout the country and the world

that advocate for the equality and safety of women

and lesbian, gay, bisexual, transgender, and queer

individuals. The Clinic regularly submits amicus briefs

on these matters to federal appellate courts and other

courts throughout the United States.

Minnesota Indian Women Sexual Assault

Coalition exists to support culturally-grounded,

grassroots advocacy; and to provide national

leadership and technical assistance to end genderbased violence. It supports the development of local

and national policy, and capacity building of

Indigenous communities to end all forms of violence

and oppression; including racism, sexism, classism,

heterosexism, ageism, and all other acts of violence

that impede the safety and wellness of all people.

4

Alliance of Tribal Coalitions to End Violence

(“ATCEV”) is a Native-led and operated non-profit

organization that works to advance tribal sovereignty

and safety of American Indian and Alaskan Native

women by providing support to tribal coalitions and

tribal communities in their efforts to address equal

justice for survivors of violence.

Mending the Sacred Hoop is a Native-owned

and operated non-profit organization that exists to

address violence against Native women and works to

end it. It organizes on issues surrounding violence

against American Indian/Alaska Native women in its

home community of Duluth, MN and throughout the

State of Minnesota. Mending the Sacred Hoop works

with Tribes and Native communities nationally that

are addressing the issues of domestic and sexual

violence, dating violence, sex trafficking and stalking

in their communities.

Standpoint (formerly the The Battered Women’s

Legal Advocacy Project, Inc.) is a private, non-profit

organization that serves as a statewide agency in

Minnesota, providing legal consultation, training, and

resources to domestic and sexual violence victims and

their advocates, attorneys, and law enforcement.

Standpoint consults yearly with thousands of domestic

and sexual violence victims, and has established a

statewide reputation as a premiere legal resource. It

strives to understand the world from the “standpoint”

of marginalized groups to better serve the statewide

community of survivors and the support networks

surrounding them.

5

Gender Justice is a non-profit legal and

advocacy organization working to create a world where

everyone can thrive no matter their gender, gender

identity or expression, or sexual orientation. Central

to this work is dismantling the legal, political, and

structural barriers to gender equity. Gender Justice

fights to push the law forward through work in the

courts, the legislature, and the community.

Our Justice, a non-profit reproductive justice

organization, works to ensure that all people and

communities have the power and resources to make

sexual and reproductive health decisions with selfdetermination. Founded in 1967 by a small group of

doctors, clergy, and community members to assist

Minnesota women in accessing abortion care, Our

Justice operates the largest abortion assistance fund

in the Midwest. Our Justice works to defend and

advance sexuality and reproductive choice as a human

right by providing resources and education.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

Amici advance three primary arguments. First,

Amici contend that body cavity searches of detainees

absent exigency or any safeguards constitute acts of

state-ordered sexual violence, which violate a person’s

fundamental rights of dignity and bodily integrity.

What Respondent Polk County did to Petitioner

Sharon Lynn Brown (“Brown”) was not a mere

inconvenience or unpleasantry—it amounts to an

6

overt, physical act of sexual assault by the

government, which forcibly overrode Brown’s own

right to bodily autonomy and in so doing, inflicted

violence and trauma on her and her community. The

lower courts failed to recognize the severity of the

intrusion to Brown, nor did they acknowledge the

broader societal context in which Brown’s search

occurred.

Second, Amici argue that this case and the core

constitutional question of what standard should apply

to a constitutionally-permissible, non-consensual body

cavity search must consider the societal context in

which the search is occurring. This requires

acknowledging the realities of certain sociological facts

and structural inequalities. Not all populations are

equally-likely to be detained or imprisoned, where they

may be subjected to forcible bodily cavity searches.

Given the racial disparities in the criminal justice

system, including the overrepresentation of Black,

indigenous, and people of color (“BIPOC”) individuals

in jails and prisons, these state violations of bodily

autonomy are disproportionately inflicted upon and

cause harm to marginalized communities. Amici thus

advocate that the Court address this case through a

lens centering on racial justice and focused upon the

many racial disparities within the criminal justice

system.

Non-consensual body cavity searches must also be

considered with a focus upon the realities of sexual and

gender-based violence, both in our society as a whole

but also in our nation’s prisons and jails. Here too, an

7

intersectional lens is critical, because women of color

and in particular Native American women like Brown

face dramatically higher rates of sexual assault in the

United States. Amici stress the common-sense but

important point that forcible body cavity searches

inflict trauma, both to the individual as well as their

communities.

Finally, Amici highlight the context of the endemic

sexual violence within our nation’s prisons and jails,

which is so rampant and serious that it motivated

Congress to pass the Prison Rape Elimination Act

(“PREA”). The realities that necessitated the passage

of PREA demonstrate that a permissive approach to

forcible body cavity searches only furthers the lack of

respect for bodily autonomy and human dignity in our

criminal detention facilities. A substantial proportion

of the sexual violence occurring within detention

facilities is committed by prison authorities

themselves—the same populations of prison officers

tasked with administering body cavity search policies.

For these reasons, Amici urge the Court to grant

the petition and conclude that Polk County’s invasive

treatment of Brown violated her Fourth Amendment

rights.

---------------------------------♦---------------------------------

8

ARGUMENT

I.

Non-consensual body cavity searches

should be lawful only under the rarest of

circumstances, because such searches are

state-ordered sexual assaults that violate

bodily autonomy and inflict trauma.

A non-consensual body cavity search directed or

conducted by a government actor is a state-ordered

sexual assault. This is not hyperbole.

Respondents’ probing of Brown’s vagina and anus

against her will in a search for drugs while she was

being held as a pretrial detainee suspected of

shoplifting meets the statutory definition of felony

sexual assault. See, e.g., Wis. Stat. Ann. § 940.225

(West 2020). This Court has recognized that “[t]he

integrity of an individual’s person is a cherished value

of our society.” Schmerber v. California, 384 U.S. 757,

772 (1966). “Prison walls do not form a barrier

separating prison inmates from the protections of the

Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987).

Detainees and inmates retain meaningful bodily

autonomy. They can make healthcare choices and

decline certain treatments or procedures. See

Washington v. Harper, 494 U.S. 210, 221 (1990)

(recognizing a prisoner’s “significant liberty interest in

avoiding the unwanted administration of antipsychotic

drugs”).

The Court should grant review in order to clarify

that forcible body cavity searches run afoul of the

Fourth Amendment absent a warrant, probable

9

cause, or exigent circumstances. These acts of statesponsored sexual violence ought to be rare. A

detainee’s right to bodily autonomy should not be

overridden by security interests except where those

interests are grave and urgent. There are far more

reasonable and humane methods of identifying and

mitigating a possible safety concern. One such method

might be temporarily isolating the detainee in order to

observe them and allow their bodies time to expel any

contraband. The Fourth Amendment is necessarily

violated by a non-consensual body cavity search where

less invasive alternatives exist.

In the instant case, the alleged security risk

presented by Brown, who was being held as a pretrial

detained after having been arrested for shoplifting,

was the notion that she might be concealing drugs

within her body. An ultrasound of Brown had already

revealed no indication that she was concealing drugs.

The Respondents know of and could have used less

intrusive alternatives, but instead violated the Fourth

Amendment by subjecting Brown to a non-consensual

body cavity search.

Respondents’ actions run afoul of the

constitutional guidance this Court provided in

Birchfield v. North Dakota, when comparing warrantless

breath tests incident to drunk driving arrest to

warrantless blood tests. 136 S. Ct. 2160, 2184 (2016).

Where drunk driving is involved, there is an exigency

to collect evidence while the suspect’s blood alcohol

content is still at or close to the level it was when the

suspect was operating a vehicle. Contrasting breath

10

tests to blood tests, the Court noted that “[b]lood tests

are significantly more intrusive, and their

reasonableness must be judged in light of the

availability of the less invasive alternative of a breath

test. Respondents have offered no satisfactory

justification for demanding the more intrusive

alternative without a warrant.” Id.

In Brown’s situation, there was no exigency to

obtain evidence as there was in Birchfield, and less

intrusive alternatives were available but not used. Any

concerns about the risks that concealed drugs could

present to Brown’s health could have been explained

to Brown by jail officials in order to obtain consent for

a search. If Brown still did not consent to a body cavity

search, she could have been asked to provide informed

consent to acknowledge the medical risks and to

release the county from liability should any harm

result from her decision to decline the search. Allowing

Brown to balance those risks to her safety and security

and decide for herself honors bodily autonomy, without

creating a security risk.

Drugs in such a small quantity that an ultrasound

cannot detect them presented a minimal safety risk,

both to Brown and others. Yet the panel’s consideration

of the “heft of the security interest at stake,” App. 11,

and “the weight of jail safety concerns,” was so

powerful to the panel that it held that as a matter of

law, they outweighed the violent intrusion to Brown.

App. 14. But upon whose safety and security was the

panel centering its analysis? The panel’s decision

ignores the autonomy and human dignity of detainees,

11

an already vulnerable population deprived of certain

liberties. One of the most effective ways of promoting

jail safety and security is to protect bodily autonomy

and human dignity whenever possible. Requiring an

extraordinarily high showing before a state actor can

forcibly probe a detainee’s body cavities promotes jail

safety and security far more than does the permissive

standard blessed by the panel.

II.

Non-consensual body cavity searches

perpetuate racial and gender disparities

as well as individual and collective

trauma.

Many significant material facts are absent from

the lower courts’ decisions. Neither the panel nor the

district court acknowledged Brown as a Native

American woman. More specifically, Petitioner Brown

is a member of the Fond du Lac Band of Lake Superior

Chippewa. Pet. at 14 (citing Dist. Ct. Dkt. 1 at 2; Dist.

Ct. Dkt. 17 at 17:9-25.). Nor does either court

acknowledge that through its forcible search of

Brown’s vagina and anus, Polk County inflicted

trauma upon her. These omissions are simultaneously

stunning and yet unsurprising.

Examples of the government controlling

indigenous, Black, brown, and female bodies is

utterly commonplace, as a matter of American

history and contemporary life. While frequent, such

state-sponsored violence is immoral and in many

circumstances, illegal. Each and every instance of state

12

violence inflicts not only trauma upon the individuals

impacted but also upon that person’s community.

Amici urge the Court to grant review so that it may

grapple with the constitutionality of the state violence

that Brown resisted (and continues to resist through

her civil rights lawsuit) in the context in which it

actually occurred—within a society struggling with

racial injustices and extremely high rates of sexual

violence perpetrated against Native women and

women of color.

There are far-reaching racial disparities in our

nation’s criminal justice system.2 This is also true in

Wisconsin, where Brown was arrested for shoplifting,

detained pretrial, and invasively searched. The Vera

Institute’s survey of research on pretrial detention and

race concludes that “in many jurisdictions, people of

color are unduly burdened by pretrial detention and

the imposition of monetary bail.”3 White people are

underrepresented in the incarcerated population in

Wisconsin, while BIPOC people are overrepresented.4

In Wisconsin, the disparities are most significant

within Black and indigenous communities.5

Criminal Justice Fact Sheet, NAACP, https://www.naacp.org/

criminal-justice-fact-sheet/ (last visited Feb. 22, 2021).

3

Justice Denied: The Harmful and Lasting Effects of Pretrial

Detention, Vera Institute of Justice (Apr. 2019), https://www.vera.org/

downloads/publications/Justice-Denied-Evidence-Brief.pdf.

4

Wisconsin Profile, Prison Policy Initiative, https://www.

prisonpolicy.org/profiles/WI.html (last visited Feb. 22, 2021).

5

Id. Obtaining a precise understanding of the scope of mass

incarceration of Native people is a challenge, due to data

2

13

Because

BIPOC

individuals

are

so

overrepresented in prisons and jails compared to their

overall population in our communities, the impact of

body cavity searches is not race-neutral. Policies and

practices about non-consensual body cavity searches

will disproportionately impact BIPOC people and

communities.

An understanding of gender-based, sexual

violence is also critical for accurately contextualizing

non-consensual body cavity searches. More than four

in five indigenous women report having experienced

violence in their lifetime, and more than half have

experienced sexual violence or intimate partner

collection issues and the tendency to group indigenous people

with other ethnic and racial groups in publicized data. Roxanne

Daniel, Since You Asked: What Data Exists About Native

American People in the Criminal Justice System, Prison Policy

Initiative (Apr. 22, 2020), https://www.prisonpolicy.org/blog/

2020/04/22/native/.

14

violence.6 Native women experience sexual violence at

higher rates than any other population in the United

States.7 Black women are also at a disproportionate

risk for sexual violence.8 Thirty-five percent of Black

women experience some form of contact sexual violence

within their lifetime.9 The overrepresentation of

BIPOC people within the criminal justice system as

well as within the population of survivors of prior

sexual and gender-based violence means that nonconsensual body cavity searches are more likely to

traumatize and retraumatize BIPOC people and

communities.

Amici also advocate a trauma-informed

perspective to non-consensual body cavity searches.

A trauma-informed approach benefits all detainees.

A non-consensual cavity search is traumatic for any

6

Policy Research Update: Violence Against American Indian

and Alaska Native Women, National Congress of American

Indians, Policy Research Center (Feb. 2018), https://www.ncai.org/

policy-research-center/research-data/prc-publications/VAWA_Data_

Brief__FINAL_2_1_2018.pdf; Andre B. Rosay, Violence Against

American Indian and Alaska Native Women and Men, National

Institute of Justice (Sept. 2016), https://www.ojp.gov/pdffiles1/

nij/249822.pdf.

7

Minnesota Indian Women’s Sexual Assault Coalition,

https://www.miwsac.org/ (last visited Feb. 22, 2021).

8

Jameta Nicole Barlow, Black Women, The Forgotten

Survivors of Sexual Assault,” American Psychological Association,

In the Public Interest (Feb. 2020), https://www.apa.org/pi/about/

newsletter/2020/02/black-women-sexual-assault.

9

Black Women and Sexual Assault, The National Center on

Violence Against Women in the Black Community (Oct. 2018),

https://ujimacommunity.org/wp-content/uploads/2018/12/UjimaWomens-Violence-Stats-v7.4-1.pdf.

15

person subjected to it and additionally traumatic

where the individual and their community has

experienced prior sexual and racial trauma. Survivors

of prior sexual violence are often retraumatized

when their bodily autonomy is not respected. Nonconsensual body cavity searches retraumatize

vulnerable populations and perpetuate historical

state-inflicted traumas, both upon individuals and

communities.

Brown’s case is the ideal opportunity for the

Court to address the standard for a constitutionallypermissive non-consensual body cavity search, and to

do so with an analysis informed by issues of racial

justice, sexual and gender-based violence, and the

social science of trauma.

III. The high rates of sexual violence

perpetrated by jail and prison authorities

demonstrates the dangers of having a

permissive standard for conducting

non-consensual body cavity searches.

Brown’s experience must also be considered in the

context of the widespread issue of rape and sexual

violence within prisons and jails. Non-consensual body

cavity searches must be rare, lest such searches

perpetuate the rampant sexual violence in detention

facilities. Congress was so disturbed by the prevalence

of sexual violence in our nation’s prisons and jails that

it enacted the Prison Rape Elimination Act (“PREA”),

which was signed into law by President George W.

16

Bush on September 3, 2003. In PREA’s legislative

findings, Congress stated that “[m]embers of the public

and government officials are largely unaware of the

epidemic character of prison rape and the day-to-day

horror experienced by victimized inmates,”10 and that

while research is insufficient, it is a conservative

estimate that at least 13% of inmates have been

sexually assaulted while in prison, many repeatedly.11

Through PREA, Congress created the National

Prison Rape Elimination Commission to examine

sexual abuse in correctional facilities and develop

national standards. In its 2009 report, the

Commission’s first finding is that “[p]rotecting

prisoners from sexual abuse remains a challenge in

correctional facilities across the country. Too often, in

what should be secure environments, men, women,

and children are raped or abused by other

incarcerated individuals and corrections staff.”12

The Commission reported several surveys in which

prisoners had reported higher rates of incidents

perpetrated by corrections staff than by other

prisoners.13 The report also described systemic sexual

assaults by corrections staff within the Michigan

34 U.S.C.A. § 30301 (West).

Id.

12

National Prison Rape Elimination Commission Report,

National Prison Rape Elimination Commission, 3 (June 2009),

https://www.ojp.gov/pdffiles1/226680.pdf (emphasis added).

13

Id. at 41.

10

11

17

Department of Corrections, which led to a Department

of Justice lawsuit and settlement.14

The PREA Commission’s findings demonstrate

that the population of state actors and agents who

will be administering and directing policies about

non-consensual body cavity searches often perpetrates

sexual violence against detainees. Polk County

corrections staff shackled Brown and took her without

explanation to a hospital, where they instructed a

physician to perform a body cavity search. Petition at

17-18. Brown was traumatized by the search, began

weeping at the hospital, and remained emotional for

hours after guards returned her to the jail, crying

herself to sleep. Id. at 18.

A physician performing a non-consensual cavity

search at the direction of guards is not meaningfully

different than guards performing the cavity search

themselves. Correction staff requesting that a medical

professional performs a cavity search introduces a

level clinical terror, particularly to members of

communities that have historical reasons to distrust

medical personnel. The Supreme Court of Minnesota

recently held that a body cavity search performed at

the instruction of law enforcement that involved a

physician searching a detainee’s anal cavity with a

speculum—just as the physician did to Brown—was an

unreasonable search under the Fourth Amendment.

State v. Brown, 932 N.W.2d 283, 292-93 (Minn. 2020).

14

Id. at 51.

18

Allowing non-consensual body cavity searches to

be performed pursuant to low or lax standards makes

such invasive searches more likely to be misused or

abused by some bad state actors as an additional

method of terrorizing detainees—whether performed

by guards themselves or by medical personnel under

the control or instruction of guards. Acknowledging the

context of widespread sexual violence within prisons

and jails lends additional support for adopting a high

standard for non-consensual body cavity searches of

detainees.

---------------------------------♦---------------------------------

CONCLUSION

The Court should grant review and hold that

forcible body cavity searches run afoul of the Fourth

Amendment absent a warrant, probable cause, or

exigent circumstances. These acts of state-sponsored

sexual violence ought to be exceedingly rare, and

constitutional only where no less intrusive

alternatives exist. A detainee’s right to bodily

autonomy should only be overridden by security

interests that are grave and urgent. A detainee’s right

to be safe from sexual assault is more critical to jail

safety and security than rooting out more minor

security risks, such as identifying small quantities of

drug contraband, particularly when the security risk

can be addressed through less-intrusive alternatives.

Amici further urge the Court to keep issues of racial

justice and disparities, sexual violence and trauma,

and the prevention and deterrence of sexual violence

19

within detention facilities at the heart of its

consideration of this case.

Dated: February 23, 2021

Respectfully submitted,

KATHERINE S. BARRETT WIIK

BEST & FLANAGAN LLP

60 South Sixth Street, Suite 2700

Minneapolis, MN 55402

Telephone: 612-341-9710

kbarrettwiik@bestlaw.com

Counsel of Record for Amici

National Alliance to End Sexual

Violence, National Indigenous

Women’s Resource Center, Inc.,

Battered Women’s Justice Project,

Wisconsin Coalition Against Sexual

Assault, Minnesota Coalition

Against Sexual Assault, Columbia

Law School Sexuality and Gender

Law Clinic, Minnesota Indian

Women Sexual Assault Coalition,

Alliance of Tribal Coalitions to

End Violence, Mending the

Sacred Hoop, Standpoint, Gender

Justice, and Our Justice