Deema Nagib

Volume 26.2 (download PDF)

Abstract

The United States incarcerates approximately 2 million people on any given day, more than any other country in the world. Over the years, we’ve seen growing emphasis on the rights and human needs of the incarcerated. Specifically, there have been growing movements to end the use of solitary confinement; reduce or eliminate the costs of phone calls, visits, and other methods of communication; end prison slavery and implement living wages for incarcerated people; and increase opportunities for education and other meaningful programming. However, little emphasis has been placed on an incarcerated person’s right and ability to be sexual. A desire for sexual intimacy, like many other human needs, does not disappear with incarceration. People who are in prison should have the right to explore their sexuality and sexual intimacy with consenting partners, regardless of their incarceration. To ignore this is to ignore an integral part of incarcerated individuals’ humanity. This Article argues that incarcerated individuals do have a substantive due process right to have sex with a consenting partner, regardless of marital status, which stems from their fundamental right to make decisions regarding their bodily autonomy.