IN RE: Gary LONG and Robert Jones

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Court of Appeal, Third District, California.

IN RE: Gary LONG and Robert Jones, on habeas corpus.

Cr. 8454.

Decided: February 25, 1976

Weldon Ray Reeves, Sacramento, for petitioners. Evelle J. Younger, Atty. Gen., by Monte B. Lake, Deputy Atty. Gen., Sacramento, for respondent.

The two petitioners are male wards or ‘trainees' at the DeWitt Nelson Training Center, an institution of the California Youth Authority. Their petition for habeas corpus charges invasion of their constitutional right of privacy because female staff personnel are assigned to observe inmate conduct in dormitory bedrooms and bathrooms. They allege that female employees supervise their showers, latrine use and the sleeping quarters in which they change clothes. They allege that female employees conduct ‘skin searches.’ They also allege that female staff members have been present to supervise the dressing, shower and toilet areas of the school, the gymnasium and the swimming pool.

We issued an order to show cause, to which the state has filed a return. According to the return the DeWitt Nelson Training Center has an all-male population of approximately 400 trainees, whose average age is 19.8 years. Robbery and burglary form the basis for over half the commitments; substantial proportions of the commitments stem from violations such as theft, assault, homicide and sex offenses.

The return includes a declaration of the Director of the Department of the Youth Authority. The director declares that considerations of safety within Youth Authority institutions demand 24-hour observation and surveillance of all wards; that the surveillance need causes a diminution of wards' privacy; that in order to approximate a normal social environment the department attempts to staff its institutions with trained employees of both sexes; that the department has been employing female staff persons in male living units for about 10 years; that the complaint of the two petitioners is the first of its sort known to the department.

Included with the return is a declaration of the superintendent of the training center. He states that there are presently 24 women employed at the center. The institution contains a total of eight dormitory or living units. Seven male and two female staff members are assigned to duty in the living unit of the two petitioners. Employees designated as youth counselors and group supervisors oversee the conduct of wards in the living units and school areas; they maintain housekeeping, security and safety standards as well as adherence to personal hygiene and grooming standards. Both males and females are employed as group supervisors and youth counselors.

In each living unit are three sleeping rooms and a bathroom containing urinals, commodes and showers. A central observation station in each living unit provides an unimpeded view of the three sleeping rooms and a partial view of the bathroom. The latter is separated from the sleeping rooms by a windowed partition, whose glass portion is frosted to a height of 56 inches, allowing the employee in the central observation station to see only the upper parts of the bodies of wards using the showers and urinals. Partitions between the commodes provide additional privacy. The staff person in the observation station can see any trainee who chooses to undress in the sleeping rooms. Trainees seldom strip completely in this area; they are expected to enter the shower area clad in a towel or in boxer-type shorts. Currently the institution has received approval for the installation of additional dividers between the commodes and between the urinals and shower stalls.

According to the superintendent, female staff personnel do not customarily enter the bathroom and shower area when it is in use by male wards, but may do so in an emergency or unusual situation. The superintendent declares that ‘skin searches' are performed only by male personnel, who conduct this function in pairs.

The superintendent states that each school classroom has an adjoining bathroom equipped with a window for security purposes; the window permits observation of the upper part of the user's body. The gymnasium does have an exposed shower area without frosted glass, but many wards prefer to shower in the comparative privacy of the dwelling unit showers.

The state's return is accompanied by photographs displaying view of the bedrooms and bathroom from the central observation station in petitioners' living unit.

Declarations have been filed by the two female staff members who work in the living unit occupied by the two petitioners. One is a youth counselor, the other a program assistant. The duties of both include sustained surveillance of the wards for the purpose of maintaining security and preventing misconduct. In general, their declarations confirm the superintendent's description of the restricted view of the bathroom and shower areas available from the central observation station. One declarant accompanies wards to the gymnasium where the toilet and shower facilities are not protected by frosted glass; there, she leaves surveillance in the hands of male athletic coaches when wards are using the toilets or showers. Neither declarant has been assaulted and neither is aware of any assaultive behavior resulting from the presence of female staff persons.

Another exhibit attached to the return is a copy of a letter signed by 41 trainees at the DeWitt Nelson Tranining Center, declaring their satisfaction with the presence of feminine staff members and stating that wards ‘should be more than happy to have women around them.’

A somewhat related problem was before this court in Long v. State Personnel Board (1974) 41 Cal.App.3d 1000, 116 Cal.Rptr. 562. There we sustained a ‘male only’ restriction upon candidates for employment as Protestant chaplain at the DeWitt Nelson institution. The predominant consideration, according to the opinion, was the frequency of the occasions when the chaplain would be alone with a ward and the possibility of physical attack during those occasions. We also cited interference with the privacy of wards during chaplains' visits to the dwelling units. At that point we referred to the testimony of a prior superintendent, who declared that wards would feel ‘very embarrassed and very awkward’ if female staff were employed in the living units of the DeWitt Nelson institution. (41 Cal.App.3d at pp. 1010–1011, fn. 4, 116 Cal.Rptr. 562.)

The California Constitution was amended in 1972 to add privacy to the panoply of constitutionally protected rights.1 Earlier, the federal and California supreme courts had recognized a penumbra of unenumerated rights arising from the federal Constitution, among them a right of privacy. (Roe v. Wade (1973) 410 U.S. 113; 152–153, 93 S.Ct. 705, 35 L.Ed.2d 147; Griswold v. Connecticut (1965) 381 U.S. 479, 484–485, 85 S.Ct. 1678, 14 L.Ed.2d 510; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 266–267, 85 Cal.Rptr. 1, 466 P.2d 225.) The right of privacy, in a constitutional sense, encompasses a complex of claims described as a privilege to be ‘let alone’ or to be ‘free . . . from unwanted governmental intrusions . . ..’ (See Stanley v. Georgia (1969) 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542; Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Triggs (1973) 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232.)

Traditionally, the California courts have held that the generally available right of privacy may not be asserted by inmates of correctional institutions. (North v. Superior Court (1972) 8 Cal.3d 301, 308–309, 104 Cal.Rptr. 833, 502 P.2d 1305; Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, fn. 21, 101 Cal.Rptr. 375, 495 P.2d 1295.) Exceptions to this rule have been found, nevertheless, in attorney-client communications and in other special situations where the institutional authorities have created expectations of privacy. (North v. Superior Court, suprs, 8 Cal.3d at pp. 309–311, 104 Cal.Rptr. 833, 502 P.2d 1305; cf. People v. Hill (1974) 12 Cal.3d 731, 764–765, 117 Cal.Rptr. 393, 528 P.2d 1; Yarish v. Nelson (1972) 27 Cal.App.3d 893, 898, 104 Cal.Rptr. 205.)

The broad California rule is doubtless subject to additional exceptions, whose outlines may be penciled in by future decisions. In the context of First Amendment claims, the Federal Supreme Court has developed a different concept, holding that correctional inmates retain communicative rights which are not inconsistent with prisoner status or with governmental interests in institutional security and rehabilitation. (Pell v. Procunier (1974) 417 U.S. 817; 822–823, 94 S.Ct. 2800, 41 L.Ed.2d 495; Procunier v. Martinez (1974) 416 U.S. 396, 413–414, 94 S.Ct. 1800, 40 L.Ed.2d 224; cf. In re Ferguson (1961) 55 Cal.2d 663, 670–671, 12 Cal.Rptr. 753, 361 P.2d 417; In re Jordan (1972) 7 Cal.3d 930, 934–935, 103 Cal.Rptr. 849, 500 P.2d 873.)

By analogy to the First Amendment decisions, petitioners argue that correctional inmates have a constitutional right of privacy which prevents demeaning practices not justified by legitimate institutional needs. Petitioners assert that institutional necessities do not justify the embarrassment and loss of personal dignity thrust upon them by forced exposure of nude bodies and excretory functions to the view of female staff.

There is at least a verbal inconsistency between the general California rule, denying prisoners privacy, and the later decisions of the Federal Supreme Court affirming their qualified retention of constitutional protections. (E. g., Pell v. Procunier, supra; Procunier v. Martinez, supra; see Singer, Privacy in Prison, 21 Buffalo L.Rev. 669 (1972).) With all deference to higher tribunals, one suggests a greater realism in viewing inmate privacy in terms of subspecies and degrees, not as an absolute, unitary concept upon which the law engrafts qualifications. A denial of inmate privacy but with qualifications is hardly different than its affirmation but with qualifications. To articulate the constitutional standard one way or the other only defers the ultimate necessity of ascertaining the real nature of the injury, than balancing it against the institution's need to inflict it.

The general California rule rejecting prisoners' privacy has not been reevaluated in the light of the 1972 constitutional amendment (fn. 1, supra). In general, the California decisions flatly rejecting in-prison privacy involve official access to communications, oral or written. (See North v. Superior Court, supra, and cases cited, 8 Cal.3d at pp. 308–309, 104 Cal.Rptr. 833, 502 P.2d 1305; see also, Halpin v. Superior Court, supra, 6 Cal.3d at p. 900, fn. 21, 101 Cal.Rptr. 375, 495 P.2d 1295.) In People v. Hernandez (1964) 229 Cal.App.2d 143, 149, 40 Cal.Rptr. 100, 103, this court considered a noncommunicative aspect of prisoner privacy, saying: ‘Prison authorities may subject inmates to intense surveillance and search unimpeded by Fourth Amendment barriers.’

Here too, we confront a noncommunicative variety of the multifarious assertions within the privacy rubric. Here the claim is one of injured self-esteem, humiliation and embarrassment arising out of enforced nudity and conduct of bodily functions within the perceptive range of members of the opposite sex.

The California constitutional amendment of 1972 was preceded by two historic developments, one a tort concept of privacy, the other a constitutional concept. The evolution of the tort concept is authoritatively annotated in Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 533–536, 93 Cal.Rptr. 866, 483 P.2d 34. (See 4 Witkin, Summary of Cal.Law, Torts, §§ 334–339.) The constitutional concept, voiced originally in decisions involving the First and Fourth Amendments2 received new impetus in federal Supreme Court decisions such as Griswold v. Connecticut and Stanley v. Georgia, supra.

Whatever the parallels and divergences between the tort and constitutional concepts, a number of common elements emerge. In a tort case the California Supreme Court described the right of privacy as a barrier against revelation of a person's ‘most intimate activities' and of ‘his most personal characteristics;’ as a protection against ‘exposure’ to persons outside a chosen circle of intimacy; as a protection against that which ‘is humiliating beneath the gaze of those those curiosity treats a human being as an object.’ (Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d at pp. 533–534, 93 Cal.Rptr. at p. 869, 483 P.2d at p. 37.) In other tort cases, involuntary exposure of the nude body has been equated with injured privacy. (Daily Times Democrat v. Graham (1964) 276 Ala. 380, 162 So.2d 474; Myers v. United States Camera Pub. Corp. (1957) 9 Misc.2d 765, 167 N.Y.S.2d 771; Commonwealth v. Wiseman (1969) 356 Mass. 251, 249 N.E.2d 610.)

Like its tort counterpart, the constitutional concept has been asserted as a barrier against enforced exposure of the body and its functions. The California Supreme Court has condemned police surveillance of toilet stalls in public restrooms as an invasion of personal privacy. (People v. Triggs, supra, 8 Cal.3d pp. 890–891, 106 Cal.Rptr. 408, 506 P.2d 232; Britt v. Superior Court (1962) 58 Cal.2d 469, 472, 24 Cal.Rptr. 849, 374 P.2d 817; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 609, 21 Cal.Rptr. 552, 371 P.2d 288.) A federal court has equated forced nudity with an invasion of the liberty protected by due process, declaring: ‘We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figured [sic] from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.’ (York v. Story (9th Cir. 1963) 324 F.2d 450, 455.)

Thus an accretion of decisional law recognizes that privacy, in both its tort and constitutional manifestations, encompasses the individual's regard for his own dignity; his resistence to humiliation and embarrassment; his privilege against unwanted exposure of his nude body and bodily functions. The latter kind of exposure assumes particular poignance when it occurs within the perceptive range of strangers of the opposite sex. At that point the exposure clashes with a deeply held social, moral and emotional bias pervading Western culture.

The social, moral and emotional bias against nudity and the display of bodily functions exists as a generalization. Islands of unconventionality exist, as do individuals of unusually low or unusually high thresholds of sensibility. In the tort field, it is said that the law's protection is confined to persons of ordinary sensibility and does not extend to supersensitiveness. (Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748, 20 Cal.Rptr. 405; 62 Am.Jur.2d, Privacy, § 13, p. 696.) In general, correctional inmates possess sensibilities to exposure of the body and its functions approximating persons in free society. (See Schwartz, Deprivation of Privacy as a ‘Functional Prerequisite’: The Case of the Prison, 63 J.Crim.L.C. & P.S. 229 (1972).) As in free society, the assault upon the sensibilities is exacerbated when the exposure occurs within the perceptive range of strangers of the opposite sex.

The human and social considerations infusing petitioners' claim of injured privacy differ widely from those involved in official access to inmate communications. It is doubtful that the California Supreme Court would apply here the broad animadversion against inmate privacy expressed in the communications decisions. Moreover, in applying the California Constitution's new privacy guaranty, the State Supreme Court may be persuaded by the rationale of the Federal Supreme Court—that correctional inmates are endowed with such constitutional rights as are consistent with inmate status, with institutional security, order and correctional goals. For the purpose of this decision, we shall pursue that set of assumptions. Status as a correctional inmate entails an immediate loss of solitude. It does not necessarily destroy the other emotional stances and restraints forming the compound called privacy. At this point we turn to the governmental or institutional interests offered in justification of the charged invasion.

The governmental interest put forward by the Department of the Youth Authority is the normalization of environment attributable to a mixed male-female staff and the inclusion of parental figures of both sexes within the institution. It seems fair to assume that an additional impetus is the current social and legal pressure toward eliminating gender qualifications in employment. (42 U.S.C. § 2000e–2(a); but see Long v. State Personnel Board, supra, 41 Cal.App.3d at pp. 1015–1018, 116 Cal.Rptr. 562; City of Philadelphia v. Pa. Human Relations Com. (1973) 7 Pa. Cmwlth. 500, 300 A.2d 97.)

Relative to female participation in staff functions generally, the department's described aim is consistent with the rehabilitational purposes declared by the Youth Authority Act (Welf. & Inst.Code, §§ 1700, 1760) and represents a management decision beyond judicial concern. As a justification for female observers in the living units and in the toilet and shower areas of the gymnasium, it fails completely. In a normal social setting young men of 19 do not undress, bathe, void or excrete in the maternal presence. They are not forced to disrobe in the bathroom to escape female surveillance. Far from normalizing the environment, the presence of female observers in these areas of the institution violates the norms of privacy prevailing in free society. The department has offered no justification for the violation.

True, the institutional authorities have been at some pains to ameliorate the exposure by installing frosted glass and partitions. The institution's necessities, however, call for unceasing staff surveillance of wards. That need belies the feasibility of supplying wards with places of concealment. When undressing in the bedrooms, when bathing, urinating or defecating, the wards must be either visible to the observer, partly visible or available for visibility. When the observer is a female, an invasion of privacy occurs which is not justified by institutional needs.

The letter from 41 wards expressing satisfaction with the presence of female staff is interesting but not significant. It does not include dissenting votes. At any rate, the occasion does not evoke a numbers game, but rather a constitutional view founded upon undebatable expectations of privacy, which in turn reflect prevalent social norms and emotional attitudes.

Let a writ of habeas corpus issue. The writ will direct the Department of the Youth Authority within 60 days from its issuance to remove female staff members as supervisors and observers of wards within the living units and in the area of the gymnasium sanitary facilities of the DeWitt Nelson Training Center.

FOOTNOTES

1.  The 1972 amendment was later incorporated in article I, section 1, of the California Constitution, which declares: ‘All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possession, and protecting property, and pursuing and obtaining safety, happiness, and privacy.’

2.  Constitutional recognition of privacy is usually traced to Justice Brandeis' famous dissent in Olmstead v. United States (1928) 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944. (‘The makers of our Constitution * * * conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.’) In actuality, Brandeis had been preceded by Mr. Justice Bradley, who put forward ‘the privacies of life’ among the values protected against governmental intrusion by the Fourth and Fifth Amendments. (Boyd v. United States (1886) 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746.)

FRIEDMAN, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.