A published opinion from the Third Circuit Court of Appeals provides a glimpse into a deeply problematic practice: On a Friday afternoon, 12-year-old J.B. went to the state police barracks with his parents upon request of a police officer following an incident in his neighborhood three weeks prior. At the station, police processed J.B. on a petition charging him and then transported him to a detention center. He went through the intake process at the detention center and was taken to be strip-searched. An officer observed him remove his clothing. J.B. was asked to turn around, drop his pants and underwear, bend over, spread his buttocks, and cough. He remained unclothed for 90 seconds. J.B. spent the weekend in detention. On Monday morning, J.B. appeared for the first time before a judge in juvenile court who determined his detention was unnecessary and released him to his parents. But the harmful invasion of his privacy couldn’t be undone, and J.B.’s case is not unique.
Strip searches of children occur in schools, in juvenile detention centers, by investigators of child abuse, in immigration detention centers, and by correctional staff when children visit incarcerated family members. These searches require a child to remove or arrange their clothing to permit an adult stranger to conduct a visual inspection of ordinarily covered areas, like the breasts, buttocks, and genitalia. Sometimes the searches can even include more physically invasive techniques, like the inspection of the child’s mouth or nose or searches of other body cavities.
Strip searches may be uniquely damaging to adolescents. With the onset of puberty, teenagers begin to view their bodies critically and compare them to those of their peers and their personal ideals, making adolescents particularly vulnerable to embarrassment. Accordingly, teenagers have a heightened need for personal privacy. For an adolescent, privacy is an important marker of independence and integral to how they develop and differentiate themselves from their peers. If the child’s privacy is threatened, the resulting stress can seriously undermine the child’s self-esteem.
Children—especially those with histories of sexual abuse—may experience a strip search as a form of state-ordered sexual abuse. Children, even at very early ages, understand the concept that certain parts of their bodies are private. Child abuse education programs highlight this understanding, telling children that nobody should look at or touch their private parts. Thus, a strip search—being compelled to expose one’s private parts to an adult stranger who is obviously not a medical practitioner—is offensive to the child’s natural instincts and education.
Further research has shown that strip searches, performed even as intended, can cause children to experience anxiety, depression, loss of concentration, sleep disturbances, difficulty performing in school, phobic reactions, shame, guilt, and other lasting emotional scars. Strip searches can also retraumatize children who are survivors of sexual abuse. Studies show that a large percentage of young girls in the juvenile justice system are sexual abuse survivors. These negative consequences of strip searches can last for years. In the most egregious cases, staff members may use strip searches to intentionally abuse children, creating an even greater risk of harm.
The trauma of strip searches may even interfere with positive brain development. Trauma during adolescence may have a particularly significant effect on the development of the frontal lobe, the area in the brain that is responsible for thoughtful decision-making and measured responses, and the harm may impact the individual into adulthood.
A minority of states have laws governing when and how strip searches can be performed on children, leaving discretion largely to agencies and facilities to create their own policies and contractual provisions. Court precedent does, however, create some parameters.
The U.S. Supreme Court has been clear that strip searches in a school setting are highly suspect. In Safford v. Redding, the Court held unconstitutional the search of a 13-year-old girl strip-searched by school officials on suspicion that she was carrying over-the-counter ibuprofen. The Court emphasized the severe intrusion of the strip search as compared with the governmental need at hand. Although Safford set forth a standard requiring reasonable suspicion prior to conducting a school-based strip search, school officials often enjoy qualified immunity and therefore escape liability for unconstitutional searches.
Detention Center Searches
In contrast, courts have placed minimal limits on strip searches of children in detention center contexts—especially at the point of admission to the facility. (Courts have sometimes upheld challenges to strip searches of youth traveling between locked facilities or in other limited cases.) Despite the availability of less intrusive alternatives, many detention centers require staff to strip-search each child who enters, purportedly to protect children from harmful contraband or to detect abuse. Courts across the country have repeatedly held such suspicionless searches of children at admission constitutional.
Recent cases have relied heavily on the U.S. Supreme Court case Florence v. Board of Chosen Freeholders of County of Burlington, which upheld a universal strip and cavity search policy of adult detainees who were arrested on any offense. Relying on Florence in cases involving children fails to account for the very real developmental differences between children and adults, which have been repeatedly acknowledged by the U.S. Supreme Court.
Courts have been more reluctant to uphold such searches of children transferring between facilities, on the assumption that any contraband would already have been discovered. Blanket strip search policies governing entry to a facility, however, expose thousands of children to harmful strip searches each year.
Child Protection Strip Searches
Courts have also repeatedly upheld the use of strip searches in the name of protecting children and keeping them safe. Investigators use strip searches to look for signs of abuse on children who are removed from their parents’ care through child protective service functions.
Even when children are removed from their parents’ care by law enforcement or to enter the juvenile delinquency system, authorities have justified universally and unprofessionally strip-searching children to detect signs of abuse or self-harm. This non-medical approach to looking for signs of abuse under the guise of child protection stems from the historical doctrine of parens patriae. Under a state’s parens patriae authority, it may exercise its police power in a way that conflicts with the due process owed to the child. In the context of strip searches, sadly, the case law fails to properly account for the real harm imposed by strip searches and overemphasizes the importance of seeking evidence of harm.
Children in the child welfare system who have been subjected to strip searches without consent have found these invasive practices demoralizing. When the system needs to assess a child’s physical well-being, a comprehensive and trauma-informed physical by a medical professional, not a strip search, would best meet the goal.
Universally justifying routine harmful strip searches of children in the name of safety is a dangerous precedent.
Although strip searches are designed to locate contraband, the harm caused by these searches far outweighs any purported benefit: This is particularly true because the items could instead have been located using less intrusive approaches. Staff could inform a child that they must turn over any contraband prior to entering the detention center, allowing youth to voluntarily surrender any harmful objects and avoid an invasive search. Children could also keep a layer of clothing on during the search, like shorts and a tank top. Increased technology can also eliminate the need for strip searches. Electronic metal detectors, body scanners, or wands can discover many types of hidden contraband while youth remain fully clothed. These approaches aren’t just hypothetical; they have been implemented by agencies across the country.
People with lived experiences in these settings strongly advocate for more protections against abuse, including the abuse that takes place during strip searches. In an important first step to limit the harms of strip searches of children, the American Bar Association recently passed a resolution calling for an end to strip searches of children in any context unless (1) the child is in custody; (2) there is probable cause to believe that the child possesses an implement that poses a threat of imminent bodily harm to themselves or others; (3) all other less intrusive methods of discovering and removing the implement have been exhausted, including the use of alternative search techniques that can be performed while the child is fully clothed; and (4) the child has been given notice—in a manner that is consistent with the child’s primary language and developmental stage, and that takes into account accommodations for disability—that they will be searched and an opportunity to reveal any implement they are carrying instead of being searched. The policy further prohibits all body cavity searches.
The resolution echoes the guidance of international law. Human rights instruments and case law establish that the unreasonable use of strip searches is degrading and inhumane. For example, the United Nations Declaration of the Rights of the Child considers the vulnerable nature of childhood and places a duty on the government to protect children subject to confinement from harm. The Unaccompanied Alien Child Protection Act prohibits the “unreasonable use” of pat or strip searches, which may violate a child’s sense of dignity and respect. Despite this international law, young people like J.B. can’t escape this state-imposed harm.
Because courts place too few limitations on the use of invasive strip searches of children, state policymakers, including legislatures and agencies responsible for youth, must take the lead on prohibiting this state-created trauma.