From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):
When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.
This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.