This week U.S. District Judge Alfred H. Bennett refused to dismiss a lawsuit against Texas Department of Criminal Justice Executive Director Brad Livingston filed by a transgender inmate who faced 12 years of near constant rape and assault in the Texas prison system. As Bennett wrote in his ruling, that's because Livingston hasn't yet demonstrated what exactly he's done to protect her and other vulnerable LGBT inmates from abuse.
In the lawsuit, an inmate named Passion Star alleges that she suffered years of abuse as a result of Livingston's failure to properly train guards and implement policies to prevent prison rape. She had requested at least a dozen times to be placed in safekeeping, where other inmates vulnerable to abuse are kept, but her requests were repeatedly denied. Lawyers for TDCJ tried to dismiss the case against Livingston entirely, on the basis of qualified immunity. But in a strongly worded ruling, Bennett said he would have to defer his decision until after the discovery process.
Which means Livingston will have to somehow prove that he either wasn't aware of the heightened risk of being raped that transgender inmates face, which Bennett said he finds hard to believe, or that he tried to take reasonable action to keep them safe, steps that clearly failed in Star's case.
“But sending an LGBT prisoner back to the general population to fight off attackers is not a reasonable response,” Bennett noted — which is exactly what Star alleges TDCJ did to her repeatedly.
Following Bennett's decision, Star's attorneys from Lambda Legal, which advocates for LGBT rights, said in a statement, "TDCJ’s willful decision to leave Passion Star unprotected resulted in horrific sexual abuse and violence, and we are grateful the court will allow us to prove this deliberate inaction started at the top. TDCJ, under Livingston’s leadership, needs to be held accountable."
Bennett gave four examples of the sexual abuse Star endured. He also noted that those examples were only a “fraction of a horrific series” of assaults and rapes — “they are enough to offend even the sternest of dispositions,” he wrote.
There was the time her cellmate held her down and raped her at knifepoint, then threw a fan at her head when he found out she reported the rape to a guard. There was the time an inmate called her a “snitching faggot" as he slashed a razor across her face, an injury requiring 36 sutures. The time a cellmate threatened to rape her and forced her to watch him masturbate, and the time another inmate demanded she perform sexual acts for him. Here's what prison guards allegedly told her when she reported the threats: “You can't rape someone who's gay.” Her request for safekeeping was, yet again, denied.
While Bennett notes that Livingston can't be held directly liable for the actions of a guard, the plaintiffs only need to show that the risk transgender inmates face in prison is “so obvious that the official must have known about it.” Which isn't a hard thing to prove in Texas: Bennett, citing numbers from the Bureau of Justice Statistics, noted that 34.6 percent of transgender inmates reported being victims of sexual assault — that's four times the rate for all prisoners. And Texas prisons, in particular, are home to some of the highest rates of sexual abuse in the country. Five of the ten prisons with the highest sexual assault rates are in Texas — and Star was housed at two of them. "It is difficult to believe that Defendant did not know about the problem," Bennett said.
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And it's only harder to believe when, as Bennett noted, the Department of Justice actually called on Livingston to account for the alarming sexual assault rates in his prisons, noting in its own report that “at Allred (a prison where Star was housed), there seems to be considerable sentiment that when you're gay, you can't be raped.”
To conclude his order, Bennett wrote, “Plaintiff was sentenced to serve time in prison. She was not sentenced to be raped and assaulted by her fellow inmates.”