The South Florida Sun-Sentinel reports:
Terry Lee Alexander ... was sitting on his bunk alone in his cell masturbating when a female deputy, monitoring his cell from a nearby control room, took offense.
Today he's scheduled to go to trial to fight a misdemeanor indecent exposure charge and the maximum one-year jail sentence that would go with a conviction. The incident occurred in November.
Although masturbation, a common jailhouse occurrence, violates most jail and prison rules, it doesn't often result in criminal charges. It is generally dealt with internally with a disciplinary write-up and temporary loss of phone or recreation privileges, Florida jail and prison officials said....
Deputy Coryus Veal ... has brought similar charges against seven other inmates in six months.
Seems to me that this sort of restriction is guaranteed to be flouted, and is needlessly cruel. If a prison wants to limit the more visible forms of masturbation, that's fine, so long as it informs inmates what they may and may not do. But a total ban on masturbation strikes me as a very bad idea.
The story suggests that the policy in practice turns on the visibility of the masturbation — "Generally, we prosecute such cases in which the inmate exposes himself in such plain view of the detention staff or other persons," said a prosecutor's office spokesman. But there's no evidence that inmates know what is and is not allowed. And while most of us would know enough, even without being told, not to visibly masturbate in front of strangers, I take it that many inmates aren't constantly conscious of being observed by video, or aware that it's OK to masturbate if they do so under a blanket but not otherwise.
Such prosecutions also lead to situations such as this (thanks to How Appealing for the pointer):
[D]efense attorney Kathleen McHugh ... faced 17 prospective jurors and asked point-blank who among them had never masturbated.
No hands went up.
Then, she went one-by-one, asking each prospective juror if he or she had ever masturbated.
All nine men said yes, two of the 10 women said no.
At least I appreciate the honesty of south Florida male jurors.
UPDATE: The prisoner has been convicted.
What about the poor women who had to admit upon further harassment that they had never been intimate with themselves?
Mind you, we'd need more details to evaluate the merits of this particular charge. Was he in under video observation, or could she see directly into his cell easily from where she was? Did she intentionally look more closely into his cell for some reason, or did he go out of his way to wag it at her?
Men generally behave much less aggressively after sexual release (even when self-induced), so you'd think prisons would encourage such behavior.
Most likely they were lying to look cool in front of the court, right?
Thanks G*d they didn't enforce rules like this when I was in the military. We would have all gone [more] crazy.
Under this theory, production of urine and feces could be punished.
I would.
I simply don't think it makes much sense to assume that either the men or the women were more likely to have been honest.
For example, what if one of the men had a chronic condition since childhood that could not be treated with Viagra, and he was unable to please himself - wouldn't he be likely to be embarrassed by it and lie? Or perhaps one of the men was just a somewhat asexual kind of excessively reserved personality, or was raised in a very formal manner, and had problems opening up and letting go, even when alone-- he may also not want to admit it.
As much as people think that women are embarrassed to admit that they such things, I think men are probably horrified by the idea of admitting publicly that they don't.
It is not dis-similar to sex with others: men are supposed to do it, women aren't.
And Ninth Amendment. How does this law survive after Lawrence? Doesn't seem like a compelling state interest to me.
That's a pretty easy one-- Lawrence, as ridiculous as it was, concerned private conduct in a person's home. Prisoners have by their actions demonstrated that they can't be trusted to either live in their own homes or with privacy in their cells. They have neither, and so Lawrence doesn't apply.
"Under this theory, production of urine and feces could be punished."
There are a lot of easy distinctions, but the most obvious one is that urination and defecation by prisoners is simply unavoidable. Masturbation is not.
a) There is probably a valid debate on this issue
b) Even if it were technically avoidable, it might not be in the interests of the state to force prisoners to restrain themselves in this way.
Did you miss the fact that we *know* that at least two of the women were dishonest, even if we don't know which time they lied?
Assumedly, the Defense struck the two non-onanistic (or lying) women. One wonders whether such a decision violates equal protection, as it would correlate fairly closely to only eliminating women.
Yeah, I guess I missed that. What, you saw them masturbating?
Or, do you just mean that when asked in front of a courtroom full of strangers to single themselves out as people incapable or unwilling to be intimate with themselves, that they as jurors of the court did not feel right away that they wanted to, or that they would be in contempt of court to not, open up their own sex lives for the public and admit to being different from everyone else in this way?
Because, if you simply mean the latter, then I would not classify that as "lying."
waiting...
waiting...
Wait, last I checked (some time during my Ph.D. studies in math at Yale) 9 plus 10 is 19, which is more than 17.
Recap: EV admires the men's honesty, debate ensues as to the likelihoods of each group's honesty or dishonesty.
I claim that two women are known to be dishonest, and therefore that their dishonesty (a certainty) is more likely than the men's.
You do not grant that they should have raised their hands the first time. Fine. I still think it's likely that the men were, on the whole, more honest. Dan Savage would be the one to go to for the best figures, but I believe that the American male masturbation rate is closer to 100% than the female rate is to 33%
Speak for yourself!
Semen isn't by itself a deadly weapon. How could it be? The only possible case would be if it contained the HIV virus. In which case, even blood or saliva is potentially a deadly weapon.
But it isn't, as the HIV virus dies quite soon after it leaves a body. It simply can't survive outside of a warm wet environment for more than a few minutes at best.
If the prisoner was masturbating as a show of disrespect to the deputy or a repudiation of the prison's ability to control him (which is not completely implausible), then punishment of some form seems more appropriate. The masturbation-as-defiance angle is more plausible if this guard has garnered a reputation for being strict about this issue, and so the prison might consider prisoners openly masturbating in front of her (including in front of a camera they think she is or may be watching) to be more of an offensive that masturbating otherwise would be.
Also, if this deputy has only brought eight charges in half a year, 1 - she is not prosecuting everyone she catches, 2 - she is not actively trying to catch the inmates, and/or 3 - other inmates know how to masturbate discreetly (potentially such that this inmate knows but refuses to do so).
Prison can be an intense, intense environment, and prisoners' modes of expression are rather limited (especially modes of expressing criticism or disdain regarding the prison and its staff). Creativity in that regard, therefore, is more the norm than the exception.
PS - To clarify any doubts, my thoughts are based on the vicarious experience of prison through appellate records.
As an aside, there was a Park &Rec guy here who got quoted in the newspaper every once in a while. His name....Randy Virgin. I've always wondered if his parents were clueless or clever...
Easy. We defer to the prison's judgnent that this is a compelling state interest. See Grutter.
As to the risk of infection, I'm no medical expert, but my understanding is that bodily fluids can transmit a multitude of viruses and bacterial infections for hours after release, as long as the fluids remain moist. Relatively small changes in temperature would probably have no effect (think of the example of AIDS and hypodermic needles).
Cells in a prison are deliberately designed to not afford privacy to the inmate. This cell apparently had a camera in it.
As to whether some kind of exception has to be made for prisoners to create a legal fiction of privacy, well, I don't see that happening. It would certainly be a big leap from the few "privacy" rights of prisoners that are recognized and protected at this time. After all, a prisoner may have the right to get married, but he doesn't have to be afforded the privilege to consummate it.
Keep in mind that these inmates are in prison for a reason and there are good reasons to keep them from masturbating while in custody. But your necessity argument sounds even more absurd when applied to less blameworthy actors: we don't recognize some exception to laws prohibiting public sexuality for others who may not be at fault like the homeless, or teenagers in a car, whose parents won't give them a place to fool around at home... why extend it to incarcerated criminals except where absolutely necessary?
The whole notion of right to privacy sprang from "penumbras and emanations" formed in part by the Fourth, Fifth, and Sixth Amendments. If there is absolutely no privacy of any kind in prison, then isn't the next logical conclusion that the prison officials may listen in on atty-client conversations and read atty-client correspondance? And if that is NOT the case, then we must admit that there are some privacy rights that remain even in prison. And if that is so, it seems to me that prison officials would have to come up with a better excuse to "no masturbation" policy then simply "the prisoners lost their privacy."
Please describe the "good reasons" why masturbating privately in a cell should be criminalized.
Ever see Silence of the Lambs?
May I also say, with all due respect, and in view of his mug shot on The Smoking Gun, that one would indeed be foolish to invite the prisoner to a cocaine-sniffing party.
Putting people on the spot like that to find out something you already know is stupid and can (and probably did) destroy any rapport or sympathy the defense could expect.
And if a female guard can't handle life in the "big house" then too bad. Either women can handle it or they can't. Stop asking the world to change so that we can have "gender equality".
In Massachusetts those who void where prohibited may be charged with "open and gross lewdness" (aka indecent exposure.) That same charge has been leveled against men having sex in the men's room. I still haven't figured this out: if urinating is gross lewdness, and being in the men's room isn't enough to make something not open, why isn't urinating in the bathroom open and gross lewdness?
A waste of money indeed.
The only practical consequence might be in affecting a parole decision.
1) Was he waving it at the camera? Points to Veal for pointing out disruptive activity tending to reduce the authority of the guards
2) Was he not? Re-assing Veal to work for which she is suited.
Did you hold the position of Miss Manners in high school?
I mean, this sounds like a transcript for a 1950s movie about what happens when you are convicted of smoking a cigarette on campus. Reread it again, and you'll see what I mean.
Is the jail willing to accept liability for health problems that will arise if they somehow manage to stop prisoners from masturbating? (Which seems damned unlikely to me.)
As for an earlier poster who asked about a case involving a female inmate and a male guard, obviously not, as the male guard would be masturbating also. (Presumably behind a locked door.)
Despite the all-too expected raucous laughs such a position might elicit, you must realize the difficult practical problems this will, well, raise for those (mostly, anyway) behind bars.
Do you volunteer to clear all cells then, of, say, the weekly Bundt cake package from mama? Or the growing cache of pilfered peanut butter cups from the cafeteria?
Now when inmates are caught digging a hole behind the life-sized poster of Raquel Welch (look her up)we'll know it isn't a sign of an escape attempt, eh?
This hands-off approach, Volokh, is,is it not, taking the modern move away from manual labor in prisons a foot too far.
amuzed: I'm going to say that to the next guy I encounter who complains about gender inequity in custody and support cases.
Also: I can't used the cite tag on the VC? Bah.
I so wish I was a teenager again.
I suspect that the jurors might have complained, as relatives and friends might have been quite interested to see the copious number of self-copulators.
Notably, the deputy was in what appears to be a panopticon configuration. The inmate sat at the foot of his bunk alone in his cell. The deputy could see him from a glassed-in, centrally located control room with a direct view of inmates' cells. "He was staring directly at me," she said. "I observed him long enough to recognize what he was doing and I looked away."
A jail cell is not a private place. But even if it arguably could be, that's an issue for the jury to decide.
State v. Kees, 919 So.2d 504 (Fla. 5th DCA 2005) is instructive and explains why he would indeed, under FL law, be guilty of the crime charged.
The court also explains why Schmitt isn't applicable.
But the most on-point Florida appellate case would be State v. Cromartie, 2006 WL 2771869 (Fla. 4th DCA 2006) (holding that defendant's alleged exposure while masturbating in a jail cell was "in public" within meaning of exposure statute).
Masturbation often works better with inspiration.
Thanks for the link to a much better article, which begins:
I still don't see why this wasn't dealt with by prison discipline procedures, unless the authorities wanted some kind of sex offender offense tagged on him.
This trial was performance art -- a sublime act of the purest sexual sadism.
men admit to masturbating .. just don't expect an honest answer on how often .
While "flouted" is used correctly in that sentence, wasn't Deputy Veal saying in effect that it appeared to her that Mr. Alexander "flaunted" it?
Interesting question . . .
There is no state law in Florida which expressly or directly addresses the act of urinating in public, and these cases explain why public urination doesn't violate indecent exposure laws: Payne v. State, 463 So.2d 271 (Fla. 2d DCA 1984) (act of urinating on a public parking lot did not as a matter of law constitute a violation of indecent exposure statute); Durant v. State, 647 So.2d 163 (Fla. 2d DCA 1994) (act of urinating in public does not by itself constitute lewd or lascivious act).
As for local laws prohibiting urinating in public, Section 16-75(a)(5) of the Code of Ordinances for the City of Ft. Lauderdale (where the Broward County Jail is located) states that it's a crime only if a person urinates or defecates in some place other than a toilet or washroom.
One of the more hilarious statements seen on the VC.