David Walton v. Ashley Nehls

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1207 DAVID C.L. WALTON, Plaintiff-Appellant, v.

ASHLEY NEHLS, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:22-cv-00007-WCG — William C. Griesbach, Judge. ____________________

ARGUED OCTOBER 21, 2024 — DECIDED MAY 2, 2025 ____________________

Before ROVNER, SCUDDER, and LEE, Circuit Judges. SCUDDER, Circuit Judge. This appeal presents an issue of first impression for our court: whether, as a matter of Eighth Amendment law, a prisoner can consent to sexual activity with a prison official. David Walton, a Wisconsin prisoner, in- voked 42 U.S.C. § 1983 and sued Ashley Nehls, a prison nurse, alleging that she violated his Eighth Amendment rights by en- gaging in a sexual relationship with him. But Walton also 2 No. 23-1207

testified in his deposition that the relationship was consen- sual. Reyling on that testimony, the district court entered summary judgment for Nehls, reasoning that a consensual sexual relationship cannot constitute a cruel or unusual pun- ishment under the Eighth Amendment. On appeal Walton urges us to join the Sixth and Ninth Cir- cuits and adopt a legal presumption that any sexual activity between a prisoner and prison official is nonconsensual and, by extension, violates the Constitution unless the prison offi- cial can show an absence of coercion. That position has much to say for itself, given the power and control prison officials have over inmates and considering today’s standards of de- cency, as all 50 states have made a prison official’s sexual con- duct with a prisoner a crime. But even if we applied the pre- sumption, the evidence in the record establishes that the al- leged sexual relationship between Walton and Nehls lacked any coercive factors. We therefore AFFIRM the district court’s entry of summary judgment for Nehls, saving for another day the question whether to adopt a presumption of nonconsent. I Walton alleges that he began a romantic and sexual rela- tionship with Nehls in June 2021. He has always described the relationship as “consensual.” Within three months, however, other officials at the prison learned of the relationship and im- mediately transferred Walton to a new institution. Walton, no longer in contact with Nehls, then brought the § 1983 action against her in federal court in Wisconsin. Walton’s lawsuit requires us to determine whether a rela- tionship that he considered consensual nonetheless deprived him of his Eighth Amendment rights. That is no easy task, for No. 23-1207 3

neither Supreme Court precedent nor our own case law squarely answers the question, and the circuits that have weighed in have taken differing approaches. We think the Sixth and Ninth Circuit’s approach—presuming nonconsent and shifting the burden of establishing consent onto the de- fendant—very well could be the best answer. But we ulti- mately need not decide whether to adopt such an approach to resolve Walton’s appeal. A A prison official’s conduct does not constitute cruel and unusual punishment in violation of the Eighth Amendment, the Supreme Court has explained, unless “two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the conduct “must be, objectively, ‘sufficiently serious.’” Id. (quot- ing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Conduct is suffi- ciently serious—or objectively harmful—if it is “incompatible with the evolving standards of decency that mark the pro- gress of a maturing society” or “involve[es] the unnecessary and wanton infliction of pain.” Hudson v. McMillian, 503 U.S. 1, 10 (1992) (quoting Estelle v. Gamble, 428 U.S. 97, 102–03 (1976)). Second, the “prison official must have a ‘sufficiently culpable state of mind.’” Farmer, 511 U.S. at 834 (quoting Wil- son, 501 U.S. at 297). The official must act with “‘deliberate in- difference’ to a substantial risk of serious harm” of which they are “subjectively aware.” Id. at 828. We first had occasion to apply those principles to allega- tions of prison sexual abuse in Washington v. Hively, 695 F.3d 641 (7th Cir. 2012). James Washington, a Wisconsin pretrial detainee, claimed that a guard had violated his Eighth Amendment rights by “gratuitously fondling” his genitals when conducting a pat down and strip search. Id. at 642. We 4 No. 23-1207

recognize, of course, that today we would analyze Washing- ton’s claim under the Fourteenth Amendment’s Due Process Clause rather than the Eighth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). But the distinction is of no moment for present purposes, since the Fourteenth Amendment similarly protects pretrial detainees from “abu- sive conditions.” Miranda v. County of Lake, 900 F.3d 335, 350 (7th Cir. 2018). In Hively, the district court had entered summary judg- ment against Washington on the ground that he had “pre- sented evidence of only de minimis injury.” 695 F.3d at 642. But we reversed, explaining that “[s]exual offenses forcible or not are unlikely to cause so little harm as to be adjudged de minimis.” Id. at 643. Put differently, unwanted sexual contact, regardless of whether it involves force, is objectively harmful under the Eighth Amendment in light of the “significant dis- tress and often lasting psychological harm” that it tends to cause. Id. We also took care in Hively to emphasize the importance of the subjective intent inquiry. See id. at 643–44. We acknowl- edged that objectively harmful sexual conduct will not give rise to an Eighth Amendment violation when the defendant lacks the requisite subjective intent. See id. If, for instance, the defendant “had no intention of humiliating” the prisoner or “deriving sexual pleasure,” but “was merely overzealous in conducting the pat down and strip search,” there would be “no deliberate violation of a constitutional right and so no ba- sis for the suit.” Id. at 643. Still, we recognized that subjective intent, “unless admitted, has to be inferred rather than ob- served.” Id. And we concluded that a reasonable jury could infer the guard’s requisite intent based on the prisoner’s No. 23-1207 5

allegation that “he complained vociferously … to no avail.” Id. at 644. After all, such conduct, “if correctly described,” could not “be thought a proper incident of a pat down or search.” Id. More recently, in J.K.J. v. Polk County, we upheld a jury’s award of damages against a prison guard who repeatedly sex- ually assaulted two prisoners. See 960 F.3d 367, 376 (7th Cir. 2020) (en banc). We explained that, based on the evidence at trial, it “was more than reasonable for the jury to conclude” that the guard “acted with deliberate indifference to an exces- sive risk” to the health and safety of the two prisoners. Id. We also rejected the guard’s contention that the trial court “erred in not giving a special instruction on his consent defense.” Id. No such instruction was necessary, we reasoned, because had “the jury bought” the guard’s story that the prisoners “were willing participants (and, for that matter, even capable of be- ing willing participants under the circumstances),” it would not have found that the guard “acted with deliberate indiffer- ence to their safety and well-being.” Id. Hively and J.K.J. supply a few takeaways. For one, it is of no legal moment that Walton did not allege that Nehls used force against him. Force or no force, unwanted sexual contact between a prison official and prisoner is objectively harmful under the Eighth Amendment. Nehls’s subjective intent, though, remains relevant. As in any other Eighth Amendment sexual abuse case, Walton (the prisoner) must establish that Nehls (the prison official) acted with deliberate indifference to an excessive risk of harm to his safety or well-being. Yet we have not encountered the particulars of the sce- nario before us here. Unlike the inmates in Hively and J.K.J., Walton admits that he consented to a sexual relationship with 6 No. 23-1207

Nehls. But given the inherent coerciveness present in a prison environment, Walton’s argument goes, the relationship was nevertheless legally nonconsensual. It is on those allegations that we must decide whether a reasonable jury could con- clude that Nehls’s conduct was objectively harmful and that she acted with deliberate indifference to an excessive risk to Walton’s well-being. B Other circuits have faced similar factual allegations in Eighth Amendment cases, but they have not reached a uni- form conclusion. In Wood v. Beauclair, a district court entered summary judgment against a prisoner on the basis that the prisoner’s “romantic relationship” with a prison guard “was consensual.” 692 F.3d 1041, 1043 (9th Cir. 2012). The Ninth Circuit reversed, emphasizing “[t]he power dynamics be- tween prisoners and guards” and questioning whether “sex- ual relationships in prison” are “truly the product of free choice.” Id. at 1047. At the same time, the court expressed “concern[] about the implications of removing consent as a defense for Eighth Amendment claims,” ultimately deciding that “the better approach” was “a rule that explicitly recog- nize[d] the coercive nature of sexual relations in the prison environment.” Id. at 1048–49. Aligned with that principle, the Ninth Circuit adopted the following framework for Eighth Amendment sexual abuse cases: [W]hen a prisoner alleges sexual abuse by a prison guard, we believe the prisoner is entitled to a presumption that the conduct was not con- sensual. The state then may rebut this No. 23-1207 7

presumption by showing that the conduct in- volved no coercive factors. We need not attempt to exhaustively describe every factor which could be fairly characterized as coercive. Of course, explicit assertions or manifestations of non-consent indicate coercion, but so too may favors, privileges, or any type of exchange for sex. Unless the state carries its burden, the pris- oner is deemed to have established the fact of non-consent. Id. at 1049. The Sixth Circuit has since followed suit, adopting whole- sale the Ninth Circuit’s presumption in a sexual abuse case— albeit one concerning the alleged deprivation of a pretrial de- tainee’s Fourteenth (as opposed to Eighth) Amendment rights. See Hale v. Boyle County, 18 F.4th 845, 852, 854 (6th Cir. 2021). The Eighth and Tenth Circuits have charted a different course, though, declining to adopt a presumption and leaving prisoners with the burden of establishing nonconsent. “To state a plausible constitutional claim” in the Eighth Circuit, “a prisoner who recounts sexual contact that is outwardly con- sensual must allege at least some manifestation of resistance by the prisoner or some act of coercion by the corrections of- ficial.” Richardson v. Duncan, 117 F.4th 1025, 1030 (8th Cir. 2024). The Tenth Circuit has echoed the Eighth Circuit, stating that “in this circuit, the burden remains on the plaintiff—not the defendant—to establish that sexual conduct is nonconsen- sual.” Works v. Byers, 128 F.4th 1156, 1162 (10th Cir. 2025). 8 No. 23-1207

C In time, the Supreme Court is sure to resolve the split. And, while this case does not compel us to choose a side, we do see many reasons for why a presumption of nonconsent may prove to be the right answer to a difficult question. Supreme Court precedent is clear that bedrock Eighth Amendment principles require us to assess a prison official’s conduct against “the evolving standards of decency that mark the progress of a maturing society.” Hudson, 503 U.S. at 8 (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Recall that conduct is objectively harmful (and therefore may give rise to an Eighth Amendment violation) when it is “incompat- ible” with such standards. Id. at 10 (quoting Estelle, 429 U.S. at 102–03). “[R]eview under those evolving standards,” the Su- preme Court has explained, “should be informed by ‘objec- tive factors to the maximum possible extent.’” Atkins v. Vir- ginia, 536 U.S. 304, 312 (2002) (quoting Harmelin v. Michigan, 501 U.S. 957, 1000 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). And the “clearest and most re- liable objective evidence of contemporary values is the legis- lation enacted by the country’s legislatures.” Id. at 312 (quot- ing Penry v. Lynaugh, 492 U.S. 302, 331 (1989)). It is telling, then, that the legislatures in all 50 states (plus the District of Columbia) have made it a crime for prison offi- cials to engage in sexual activity with prisoners—regardless of consent. The Appendix to this opinion lists each state’s stat- ute. Federal law similarly makes it a criminal offense for a fed- eral law enforcement officer to “knowingly engag[e] in a sex- ual act” with a prisoner, regardless of consent. 18 U.S.C. § 2243(b); see also United States v. Martinez, 110 F.4th 160, 166 (2d Cir. 2023) (explaining that 18 U.S.C. § 2243(b) “prohibits No. 23-1207 9

sexual acts between an inmate and a guard regardless of the inmate’s consent to such acts”). So the takeaway is clear: our country’s legislatures have determined that sexual activity be- tween prisoners and prison officials is a crime, intolerable conduct in a civilized society. The aligned judgment of elected officials at the state and national level is consistent with Eighth Amendment jurispru- dence recognizing the inherently vulnerable position of pris- oners, especially in relation to prison officials. The prison en- vironment, the Supreme Court has underscored, “strip[s]” prisoners “of virtually every means of self-protection and foreclose[s] their access to outside aid.” Farmer, 511 U.S. at 833. We recognized that same reality in J.K.J., explaining that prisoners depend on prison officials “for nearly everything in their lives—their safety as well as their access to food, medical care, recreation, and even contact with family members.” 960 F.3d at 381. But these observations invite yet another question: why not conclude that, as a matter of Eighth Amendment law, a prisoner can never consent to a sexual relationship with a prison official? After all, at first glance, such a per se rule would comport with both the judgment of our country’s leg- islatures and Eighth Amendment case law recognizing the in- herent vulnerability of prisoners. We are mindful, however, that the Supreme Court has in- structed courts to “proceed cautiously in making an Eighth Amendment judgment.” Rhodes, 452 U.S. at 351. Any determi- nation that certain conduct constitutes a per se violation of the Eighth Amendment “cannot be reversed short of a constitu- tional amendment.” Gregg v. Georgia, 428 U.S. 153, 176 (1976). A per se nonconsent rule would run counter to the Supreme 10 No. 23-1207

Court’s instruction by broadly and indeed categorically ex- panding Eighth Amendment liability in one fell swoop— without regard to the unique factual circumstances that could arise in future cases. Determining the scope of a constitutional right, moreover, can be an endeavor ill-suited to an overly formalistic or cate- gorical approach. See, e.g., Florida v. Bostick, 501 U.S. 429, 439 (1991) (rejecting a “per se rule” in a Fourth Amendment case and explaining that “in order to determine whether a partic- ular encounter constitutes a seizure, a court must consider all the circumstances”). That observation rings particularly true when it comes to the Eighth Amendment, which “draw[s] its meaning from … evolving standards of decency” and, as a re- sult, “admits of few absolute limitations.” Hudson, 503 at 8 (al- teration in original) (quoting Rhodes, 452 U.S. at 346). Put dif- ferently, because evolving standards of decency define the Eighth Amendment’s scope, Eighth Amendment cases re- quire a flexible approach that is not often compatible with per se, broadly applicable rules. A burden-shifting presumption may well align better with the sort of flexible approach that constitutional law requires. Indeed, the Supreme Court frequently applies such presump- tions when fleshing out the scope of constitutional rights. In New York State Rifle & Pistol Ass’n v. Bruen, for example, the Court explained that the Second Amendment “presumptively protects” the individual right to bear arms. 597 U.S. 1, 24 (2022). For that reason, if a government regulation bars or oth- erwise limits that right, the government bears the burden of “justify[ing] its regulation by demonstrating that it is con- sistent with the Nation’s historical tradition of firearm regu- lation.” Id. No. 23-1207 11

And in the Fourth Amendment context, the Supreme Court has long held that “[w]arrantless searches are presump- tively unreasonable.” United States v. Karo, 468 U.S. 705, 717 (1984). Under that presumption, the government bears the burden of showing that a warrantless search was nevertheless constitutional. See Chimel v. California, 395 U.S. 752, 761 (1969). Even the tiers of scrutiny, ubiquitous in First and Four- teenth Amendment jurisprudence, operate as burden-shifting presumptions. Under the First Amendment, content-based laws are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). For any content-based re- striction or regulation, then, the government bears the burden of establishing that it is “narrowly tailored to serve compel- ling state interests.” Id. Racial classifications are likewise “pre- sumptively invalid” under the Fourteenth Amendment’s Equal Protection Clause. Pers. Adm’r v. Feeney, 442 U.S. 256, 272 (1979). It is therefore the government that bears the bur- den of establishing the legitimacy of any such classifications. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). The prevalence of burden-shifting presumptions in these contexts is perhaps unsurprising. It reflects the reality that the Constitution’s provision of individual rights can be broad and that giving content to those rights is not always a straightfor- ward exercise. But knowing that the Constitution protects “the right of the people to keep and bear Arms,” to be free from “unreasonable searches and seizures,” to enjoy “the freedom of speech,” or take comfort in “the equal protection of the laws” is one thing. U.S. Const. amends. I, II, IV, XIV. Knowing exactly when official action infringes on any of those individual rights is another. The latter requires 12 No. 23-1207

evaluating both the official action as well as the nature of the alleged infringement on the individual. Under such an evalu- ation, the government’s justification (or historical basis) for a particular action is of course relevant. But the law will often place a thumb on the scale in favor of the individual—espe- cially when the official action “appears on its face within a specific prohibition of the law.” United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); see also District of Columbia v. Heller, 554 U.S. 570, 628 n.27 (2008) (citing Carolene Products and explaining that something more than rational basis re- view must “be used to evaluate the extent to which a legisla- ture may regulate a specific, enumerated right, be it the free- dom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms”). In the Eighth Amendment context, a presumption of non- consent may fit comfortably within the line of constitutional cases applying burden-shifting frameworks. Our own case law establishes that a prison official who engages in a noncon- sensual sexual relationship with a prisoner runs afoul of the Eighth Amendment’s prohibition on cruel and unusual pun- ishment. See J.K.J., 960 F.3d at 376. Presuming that any such sexual relationship is nonconsensual, then, would be tanta- mount to presuming that a prison official has violated the Eighth Amendment—a presumption that aligns with both the judgment of our nation’s legislatures and the inherently coer- cive prison environment. Yet before we can adopt a presumption of nonconsent, several difficult questions need answering. Start with deter- mining what conduct triggers the presumption. We have ob- served that sexual conduct need not involve the use of force to be objectively harmful. See Washington, 695 F.3d at 643. But No. 23-1207 13

how, exactly, should we define sexual conduct? Some conduct is obviously sexual in nature, but what about a kiss or touch of the thigh? Alternatively, what about nonphysical conduct, such as indecent exposure or verbal harassment? Relatedly, should the presumption apply to all prison officials? Or should we limit it to only those officials capable of affecting or influencing a prisoner’s conditions of confinement? And if we do so limit the presumption, how do we determine whether an official satisfies that standard? Given the difficulty of those questions (and the no doubt many others that will arise), we are hesitant to adopt a pre- sumption of nonconsent, especially once we return to the facts before us. II Even if we applied a presumption of nonconsent, Nehls would be able to overcome it based on the facts in the record. In the end, then, this case does not present the best vehicle for working out the dimensions of a presumption framework for future Eighth Amendment prison sexual abuse cases. A Walton alleges that, over the course of three months or so beginning in June 2021, he and Nehls were in a romantic and sexual relationship. For her part, Nehls denies that she was ever romantically or sexually involved with Walton. But be- cause this appeal comes to us from the district court’s entry of summary judgment in Nehls’s favor, we recount the facts in the light most favorable to Walton. See Hackett v. City of South Bend, 956 F.3d 504, 506 (7th Cir. 2020). The relationship began in June 2021, when Walton visited the prison’s health services unit to receive prescription 14 No. 23-1207

medication from Nehls. While giving Walton the medication, Nehls touched his arm. In response, Walton joked, “You touch me like that, I might touch you.” Nehls replied, “All right,” and grabbed Walton’s shirt. Walton and Nehls then kissed each other. Walton continued to visit Nehls at the health services unit, where the two would kiss “almost every single day.” Walton sometimes initiated the kissing. Walton also says Nehls touched his penis over his clothing at times and “allow[ed]” him to touch her chest and buttocks over her clothing. Walton compared their interactions to “two high school kids making out.” Throughout the course of their relationship, Nehls pro- vided Walton with illegal contraband, including chips, candy, chewing gum, a cell phone, and an unprescribed antidepres- sant. Nehls never asked Walton for anything in return. Walton described the relationship as “consensual,” and explained that “outside of the prison,” he would consider Nehls his “girlfriend.” He did not report the relationship be- cause he “enjoyed it,” wanted it to continue, and did not want himself or Nehls “to get into trouble.” Despite his wishes, the relationship did not continue. Wal- ton last visited Nehls on August 30, 2021. On that day, Walton and Nehls began kissing in a private room within the health services unit. Nehls then closed the door and touched Wal- ton’s penis underneath his clothing with her bare hand—an interaction that Walton described as “consensual.” At one point, Walton joked about letting a correctional officer “catch” them. Nehls responded by threatening to sound an alarm that would warn correctional officers of an ongoing assault. No. 23-1207 15

Walton then reached out toward Nehls, who stepped back and then fell to the floor. As Walton bent down over Nehls, several correctional officers entered the private room and dis- covered them. Prison officials transferred Walton to another institution the next day. Since his transfer, he has had no contact with Nehls. In his complaint, he alleged that his relationship with Nehls triggered post-traumatic stress disorder, anxiety at- tacks, and self-harm. B Against those facts, the district court did not err in enter- ing summary judgment for Nehls. Walton implores us to re- verse the district court on the ground that it should have ap- plied the Ninth Circuit’s presumption of nonconsent. But even if the district court had done so, summary judgment would have been proper. Nehls would be able to meet the burden of showing that the relationship was consensual. Wal- ton has never deviated from describing their encounters as “consensual” and even acknowledged initiating some of the sexual conduct. He also stated that he “enjoyed” the relation- ship and wanted it to continue. To be sure, Nehls provided Walton with contraband— conduct that under many circumstances can be coercive. See Wood, 692 F.3d at 1049 (identifying “favors, privileges, or any type of exchange for sex” as indicators of coercion). But Wal- ton explained that Nehls did not expect anything in return. And nowhere has he suggested that Nehls provided the con- traband in exchange for sexual contact. Having taken a close look at the evidentiary record, we see nothing that would allow a jury to find that Nehls coerced 16 No. 23-1207

Walton into a sexual relationship. The closest evidence of co- ercion is a declaration Walton submitted to the district court, stating that, at one point in July 2021, Nehls “got upset” with him and “fals[e]ly” had him “placed on temporary lock[] down.” Walton also attached an incident report that Nehls filled out, accusing him of making inappropriate comments about “a female staff member.” But Walton did not submit any evidence connecting the incident report to a theory of co- ercion. He did not, for instance, allege that he continued with the relationship out of fear that Nehls would submit another report or otherwise get him in trouble. To the contrary, he continued to describe their later interactions as consensual. Absent evidence of coercion, we are left with Walton’s clear, consistent, and unqualified statements that his relation- ship with Nehls was consensual. Those statements would be sufficient to overcome any presumption that the relationship was nonconsensual. We can therefore save the broad legal question for another day. * * * We recognize the fundamental power imbalance between prison officials and prisoners and the inherently vulnerable position of prisoners. But deplorable as Nehls’s alleged con- duct may be, we cannot on this record say that she knew of and was deliberately indifferent to an excessive risk that her conduct would seriously harm Walton. In the final analysis, then, we cannot say that Nehls’s conduct constitutes an Eighth Amendment violation. So with this closing observa- tion we AFFIRM the district court’s entry of summary judg- ment for Nehls. No. 23-1207 17

Appendix In 26 states plus the District of Columbia, statutes make it a criminal offense for prison officials to engage in sexual ac- tivity with prisoners and explicitly state that consent is not an affirmative defense: State Relevant Statute Alabama Ala. Code § 14-11-31 Arkansas Ark. Code Ann. § 5-14-126 California Cal. Penal Code § 289.6 Delaware Del. Code Ann. tit. 11, § 780A District of Columbia D.C. Code Ann. §§ 22-3014, -3017(a) Florida Fla. Stat. Ann. § 944.35(3)(b) Georgia Ga. Code Ann. § 16-6-5.1 Illinois 720 Ill. Comp. Stat. 5/11-9.2 Indiana Ind. Code Ann. § 35-44.1-3-10 Kansas Kan. Stat. Ann. § 21-5512 Kentucky Ky. Rev. Stat. Ann. §§ 510.020(3)(f), .120(1)(c) Massachusetts Mass. Gen. Laws Ann. ch. 268, § 21A Minnesota Minn. Stat. Ann. §§ 609.341, subd. 24(2)(viii), 609.345 Mississippi Miss. Code Ann. § 97-3-104 Missouri Mo. Ann. Stat. § 566.145 Montana Mont. Code Ann. § 45-5-502 Nebraska Neb. Rev. Stat. Ann. § 28- 322.01 18 No. 23-1207

New Hampshire N.H. Rev. Stat. Ann. §§ 632- A:2, -A:4 New York N.Y. Penal Law § 130.05(3)(e)–(f) North Carolina N.C. Gen. Stat. Ann. § 14- 27.31 Oregon Or. Rev. Stat. Ann. §§ 163.452, .454 Pennsylvania 18 Pa. Cons. Stat. Ann. § 3124.2 South Carolina S.C. Code Ann. § 44-23-1150 Utah Utah Code Ann. §§ 76-5-412, -412.2 Washington Wash. Rev. Code Ann. §§ 9A.44.160, .170 West Virginia W. Va. Code Ann. §§ 61-8B-2, -10 Wisconsin Wis. Stat. Ann. § 940.225(2)(h), (4) Wyoming Wyo. Stat. Ann. §§ 6-2- 303(a)(vii), -307(b)

The remaining 24 states make it essentially a strict liability offense for prison officials to engage in sexual activity with prisoners, omitting consent as an available affirmative de- fense. State Relevant Statute Alaska Alaska Stat. §§ 11.41.427(a)(1), .432 Arizona Ariz. Rev. Stat. Ann. §§ 13- 1407, -1419 No. 23-1207 19

Colorado Colo. Rev. Stat. Ann. § 18-7- 701 Connecticut Conn. Gen. Stat. Ann. §§ 53a- 65(3), 54a-73a(a)(1)(E) Hawaii Haw. Rev. Stat. Ann. § 707- 732 Idaho Idaho Code Ann. § 18-6110 Iowa Iowa Code Ann. § 709.16 Louisiana La. Stat. Ann. § 14:134.1 Maine Me. Rev. Stat. Ann. tit. 17-A, § 255-A(1)(I) to -A(1)(J) Maryland Md. Code Ann., Crim. Law § 3-314(b) Michigan Mich. Comp. Laws Ann. § 750.520c(1)(i) Nevada Nev. Rev. Stat. Ann. § 212.187 New Jersey N.J. Stat. Ann. § 2C:14-2(c)(2) New Mexico N.M. Stat. Ann. § 30-9- 11(E)(2) North Dakota N.D. Cent. Code Ann. §§ 12.1- 20-06, -07 Ohio Ohio Rev. Code Ann. § 2907.03(A)(6) Oklahoma Okla. Stat. tit. 21, § 1111(A)(7) Rhode Island R.I. Gen. Laws § 11-25-24 South Dakota S.D. Codified Laws §§ 22-22- 7.6, 24-1-26.1 Tennessee Tenn. Code Ann. § 39-16-408 Texas Tex. Penal Code Ann. § 39.04 Vermont Vt. Stat. Ann. tit. 13, § 3257(a)(1) 20 No. 23-1207

Virginia Va. Code Ann. §§ 18.2-64.2, -67.4