Legal Commentary

This morning I am taking a break from googling various questions relating to the Kagan nomination to post the final installment of my three-part series on national developments regarding custodial sex abuse and prison sexual violence.

If Solicitor General Kagan is confirmed, one of the cases awaiting her at the SCOTUS next term will be Ortiz v. Jordan (09-737), involving alleged custodial sex abuse of a woman prisoner in an Ohio state facility (in which I am tangentially involved in amicus efforts in support of the prisoner). 

The plaintiff alleged Eighth Amendment failure to protect and due process violations.  She claimed that staff failed to respond to her requests for help after an initial incident with the officer, when the most serious alleged assault could have been averted, and then placed her in segregation following her report of abuse.  A jury awarded Ms. Ortiz damages totaling $625,000, but the 6CA overturned the award, reversing the trial court's pretrial denial of summary judgment, and concluding no constitutional violations.  Judge Martha Craig Daughtrey dissented, writing "I view this result as a legal travesty."  Ortiz v. Jordan et al., 316 Fed. Appx. 449 (6th Cir. 2009).  SCOTUS granted cert April 26th.  You can read more about the case and access filings at scotusblog, http://scotuswiki.com/index.php?title=Ortiz_v._Jordan.

The certified question in Ortiz really has nothing to do with custodial sex abuse, but will provide fodder for civil procedure teachers.  It is: "May a party appeal an order denying summary judgment after a full trial on the merits if the party chose not to appeal the order before trial?"

So all three branches of government are now engaged with issues relating to prison sexual violence and custodial sex abuse: the SCOTUS is hearing Ortiz; Congress is considering the proposed Prison Abuse Remedies Act of 2009; and the DOJ is working on promulgating National Standards to Prevent, Detect, and Respond to Prison Rape. 

Obviously, we don't know the final shape of any government action.  But, to me, an even more interesting question is, no matter what decisions are taken, what if anything will change on the ground?  That is a fascinating question involving the interaction of law and social change.  And the effort to end prison sexual violence presents a case study involving institutional settings with very particular cultures, ostensibly "closed" facilities that are interconnected with free communities and the broader culture.  Only time will tell.