Let's say you're an inmate, and a corrections officer forces you to masturbate in her presence. Of course, you don't want to do this, but you have no choice because the officer has authority over you and who knows what will happen if you defy her orders? So you comply and humiliate yourself. Then you bring a lawsuit to hold the corrections officer accountable. One of your claims is that the humiliation violated the constitutional protection against cruel and unusual punishment, which covers jailhouse abuses by corrections officers. Easy case, right? I mean, the least that corrections officers can do while you're in custody is to avoid forcing you to masturbate. Right? Wrong.

In a court ruling that has astounded some legal observers, a court in Atlanta has ruled that the forced masturbation does not violate the prohibition against cruel and unusual punishment. The court ruled that being forced to masturbate in front of a corrections officer is not a significant injury that's worth suing over: "a female prison guard's solicitation of a male prisoner's manual masturbation, even under the threat of reprisal, does not present more than de minimis injury."

De mininus is Latin for minimal, or trivial. Inmates can sue over any number of things, like getting beaten by officers or being denied necessary medical care. But public humiliation is not enough. While the court said that severe sexual abuse can support a lawsuit, forced masturbation is not "sufficiently serious."

Here were the facts as alleged by the inmate: Between July and November 2003 in Smith State Prison in Glennville, Georgia, [officer] Harris repeatedly approached [inmate] Boxer's jail cell and demanded that he strip naked and perform sexual acts of self-gratification. On 5 July 2003, Boxer complained that his food was cold and that his tray was dirty. Harris stated that she would get him a new dinner if he did her a "favor": "to show her [his] penis" while she watched through the flap in the prison door. Boxer declined, and Harris promised retribution. Incidents of this nature continued for the next several months.

The court did say this violated the inmate's right to privacy, but that he could not sue under the broader protections generally afforded inmates under the Eighth Amendment, which governs prison conditions. Privacy claims are esoteric but Eighth Amendments are not. The Eighth Amendment is the provision under the Constitution which most inmates invoke when they sue the jail or its corrections officers.

One judge on the court was outraged over the claim that the inmate "suffered a 'little' sexual abuse. This judge said that "here is no meaningful debate in our society--nor has there ever been--about whether forced masturbation is 'part of the penalty that criminal offenders pay for their offenses against society.'"

This judge added, "the . . . opinion holds that there is no Eighth Amendment violation because the harm inflicted was de minimis. It is unclear to me what rationale the panel uses to support its position. Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion suggesting that the Constitution permits a 'little' sexual abuse? The [court] 'join[s] other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment.' Yet, the [court] fails to explain why forced masturbation is not severe sexual abuse or how such mistreatment is to be distinguished from other forms of sexual abuse prohibited by the Eighth Amendment."

Most people don't give a damn what happens in the prisons, assuming that the inmate deserves whatever abuse the officers heap on them. They feel this way until a friend or loved one, usually some errant cousin or nephew winds up in jail. Then you see the grey areas, particularly since not all inmates were murderers or child molesters. Notice how may death row inmates walk free because DNA testing shows that someone else committed the crime. Now imagine how many people are in jail for lesser crimes which do not attract the scrutiny necessary for second-guessing an inmate's guilt.

In a less enlightened time, our society actually conducted experiments on inmates. Society probably figured the inmates were low-lives whose functioning bodies made them perfect for guinea-pigging. At some point, we stopped that practice because it was seen as unethical. Guess what? There is talk of reviving these experiments. As the New York Times reported over the weekend:

An influential federal panel of medical advisers has recommended that the government loosen regulations that severely limit the testing of pharmaceuticals on prison inmates, a practice that was all but stopped three decades ago after revelations of abuse.

The proposed change includes provisions intended to prevent problems that plagued earlier programs. Nevertheless, it has dredged up a painful history of medical mistreatment and incited debate among prison rights advocates and researchers about whether prisoners can truly make uncoerced decisions, given the environment they live in.