NCJ Number
66902
Journal
Columbia Human Rights Law Review Volume: 10 Dated: (FALL/WINTER 1978-1979) Pages: 643-669
Date Published
1979
Length
28 pages
Annotation
CASE LAW, INSTITUTIONAL PROGRAMS, PUBLIC OPINION, AND THE U.S. CONSTITUTION ARE ALL INVOKED IN THE FIGHT FOR PRISONERS' RIGHT TO HAVE CONJUGAL VISITS.
Abstract
STUDIES ILLUSTRATE THE SEVERE IMPACT PROLONGED DEPRIVATION OF INTIMATE AND SEXUAL CONTACT CAN HAVE ON THE PERSONALITY STRUCTURE OF THE INMATE, INFLICTING CONSIDERABLE PSYCHOLOGICAL PAIN AND RESULTING IN A POTENTIALLY CRIPPLING DISABILITY UPON RELEASE FROM INCARCERATION. PROGRAMS FOR CONJUGAL VISITS IN MISSISSIPPI, CALIFORNIA, AND NEW YORK SHOW PRISON ADMINISTRATORS' FEARS CONCERNING CONJUGAL VISITS TO BE LARGELY UNFOUNDED AND BASED MORE UPON ADMINISTRATIVE INERTIA THAN ON WELL-FOUNDED PENOLOGICAL OBJECTIVES. THE CASE FOR CONJUGAL VISITS HAS BEEN BASED ON THE EQUAL PROTECTION CLAIM, WHICH DISTINGUISHES BETWEEN MARRIED PERSONS WHO ARE INCARCERATED AND PRISONERS WHO ARE UNMARRIED, WITH AUTHORITY FOR ARGUING THAT THE RIGHT TO MARITAL INTIMACY IS A FUNDAMENTAL, PROTECTED RIGHT RAISING A STRICTER EQUAL PROTECTION SCRUTINY. THE MOST COMMON ARGUMENT AGAINST DENIAL OF CONJUGAL VISITATION IS THAT FOUNDED UPON THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT. STUDIES AND EXPERT TESTIMONY TO THE PHYSICAL AND PYSCHOLOGICAL EFFECTS OF SEXUAL DEPRIVATION ARE ESPECIALLY RELEVANT. IT IS LIKELY TO BE DIFFICULT, ONCE THE EFFECTS OF SEXUAL DEPRIVATION ARE ESTABLISHED, FOR THE STATES TO SUCCESSFULLY ASSERT INTERESTS THAT OUTWEIGH THE RIGHTS AND INTERESTS OF THE PRISONERS. PROPONENTS OF CONJUGAL VISITATIONS HAVE EMPHASIZED PUBLIC EDUCATION CONCERNING THE EFFECTS OF DENYING SUCH VISITATIONS. THEY ALSO NEED TO CONVINCE PENAL ADMINISTRATORS THAT THEIR FEARS OF PUBLIC OPPOSITION ARE MISTAKEN SO THAT COURTS WILL FIND IT EASIER TO RECOGNIZE A LEGAL RESPONSIBILITY IN THE PRISON SYSTEMS TO PROVIDE CONJUGAL VISITS. LITIGATION REMAINS MINOR BUT IS INCREASING AND WITH NEW AND CONVINCING EXPERT TESTIMONY, RIGHTS TO CONJUGAL VISITS IN PRISON MAY BE ESTABLISHED. CASE LAW IS CITED, AND FOOTNOTES ARE PROVIDED. (AUTHOR ABSTRACT MODIFIED).