When is consent for sex not really consent? This question is the crux in the retrial of Enock Arvizo, a correctional officer charged with criminal sexual penetration of a Bernalillo County Metropolitan Detention Center inmate. Arvizo was acquitted on one charge in May, and the jury was split on a second charge. In this retrial for that second charge, the prosecutors have submitted documents arguing that inmates cannot consent to sex with correctional officers. In the first trial, Judge Zamora instructed the jurors to consider whether Arvizo’s sexual act was “done without consent.” The prosecution is asking that the jurors not be given this instruction in the retrial because it will confuse a jury.
At issue is the legitimacy of inmates to consent to sex. Is the power difference between inmates and guards so large that inmates are incapable of consenting to sexual advances by guards? The power difference between inmates and correctional officers is so extreme that it negates any ability for an inmate to consent to sex with a guard or other prison staff, the New Mexico Supreme Court stated in a 2016 ruling:
“[T]he control that a prison guard exerts over an inmate extends into virtually every facet of the inmate’s life … The prison guard-inmate relationship is an irreducibly unpleasant one, oriented around captivity and control. For two decades the New Mexico Legislature has recognized the potential for abuse inherent in this relationship, specifically in the form of sexual assault.”
The N.M. Supreme Court’s description of inmate/officer power dynamics is an apt one in our experience at the Rape Crisis Center. The very nature of incarceration is that inmates cannot make the minutest of decisions, like when or if to take a shower, what or when to eat, whether the lights are on or off, and when or whom they can call. If an inmate isn’t even allowed to make these basic decisions for him/herself, how can he/she possibly consent to sex with the persons in charge of making all these decisions?
The Supreme Court continues by quoting the specific statute and concluding: ” ‘Criminal sexual penetration in the second degree consists of all criminal sexual penetration perpetrated on an inmate confined in a correctional facility or jail when the perpetrator is in a position of authority over the inmate.’ The essential elements of [this law] are a legislative acknowledgment of the power disparity between the inmate and the corrections officer and a recognition that this disparity not only facilitates sexual assault of the vulnerable party but makes meaningful voluntary consent to sexual intercourse an unrealistic inquiry.”
Arvizo’s position is that there is no N.M. statute that specifically states that inmates cannot consent to sex. On the contrary, the New Mexico state law the Supreme Court quoted above makes it clear that a correctional officer having sex with an inmate is illegal, and that an inmate’s “consenting” to sex with an officer is invalid.
In the end, an inmate’s “consent” is a moot point. The 2003 Prison Rape Elimination Act (PREA), a civil law enacted unanimously in Congress and still in effect nationwide, defines sexual abuse of an inmate by staff member, contractor or volunteer as sexual acts with or without the consent of the inmate. If a correctional officer pursues sex with an inmate and the inmate “consents” to it, it is still considered sexual abuse under PREA. While sexual abuse under PREA may not meet the criteria for criminal sexual penetration, it does open up possibilities of civil liability, such as the $2.1 million Bernalillo County paid to three of Arvizo’s victims in November 2016. As long as we in New Mexico and in society as a whole continue to believe that an inmate can consent to sex with a guard and acquit the guard, we taxpayers will continue to pay for the perpetrator’s crime.