Volume 56

The Fundamental Right to Sexual Autonomy in Prison

by Yaniv Kot

Incarcerated persons in America face countless restrictions on their behaviors and freedoms. Accepting for the purposes of this Note the tragic place of the carceral system in American society, some of these restrictions are a necessary part of punishment and order maintenance. Others are so arbitrary and cruel that they violate the Constitution. The draconian restrictions on individual sexual autonomy in many United States jurisdictions belong to the latter category. As it stands, millions of incarcerated persons face harsh punishments like solitary confinement for the simple act of private masturbation. This Note will argue masturbation bans are unconstitutional and immoral.

In Part I, I will explore the legal landscape surrounding masturbation in the correctional context. I will examine federal regulations, illustrative state and international regulations, and some anecdotal accounts of enforcement. In Part II, I will demonstrate that correctional masturbation bans are unconstitutional under the four-prong Turner v. Safley test. Finally, in Part III, I will argue that correctional masturbation bans are not only unconstitutional, but immoral because they are unrelated to any legitimate punishment rationale.

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