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The Boston Globe

Metro

May 10, 2008

Prison chief opposes sex change

Michelle Kosilek

Michelle Kosilek

From the archives - May 10, 2008

The commissioner of the state’s prison system says he strongly opposes allowing a convicted killer to have a state-funded sex-change operation, saying it would create “insurmountable” safety and security problems.

A month after telling reporters he would reexamine Michelle Kosilek’s federal lawsuit seeking the operation, Harold W. Clarke, head of the Department of Correction, has adopted a position similar to that of his predecessor, Kathleen Dennehy. He succeeded her in November.

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In papers filed in federal court Wednesday, Clarke said Kosilek could not be placed after surgery at MCI-Framingham, the state’s prison for women. Female inmates would likely assault Kosilek and the prisoner might threaten them, he said.

The prison system also should not allow Kosilek to “manipulate the system” by threatening suicide if the inmate does not have surgery because that would embolden other prisoners, Clarke said.

“I do not question the sincerity of Michelle Kosilek’s belief that sex reassignment surgery may reduce any anxiety caused by a gender identity disorder,” Clarke wrote in a three-page statement.

“However, based on my review of the designated trial testimony and my many years of experience as a corrections professional, I believe that the safety and security concerns presented by the prospect of undertaking sex reassignment surgery for Michelle Kosilek are insurmountable.”

A spokeswoman for the prison system said yesterday that the commissioner would not comment beyond his prepared statement.

Joseph L. Sulman, one of the lawyers representing Kosilek at no charge, said he was disappointed in Clarke’s position but looked forward to questioning him in court Monday.

US Chief District Judge Mark L. Wolf has asked Clarke to testify at a hearing that marks the latest chapter of Kosilek’s suit against the state.

The prisoner, born Robert Kosilek, strangled his wife, Cheryl, in Mansfield in 1990 and dumped her body in a car at the Emerald Square Mall at North Attleborough. Kosilek then fled to New York state before being arrested.

He legally changed his first name to Michelle in 1993 and has been living as a woman in a Norfolk prison for men while serving a life sentence.

In 2002, Wolf ruled that prison officials had failed to adequately treat Kosilek’s gender identity disorder but stopped short of ordering the state to permit the surgery. Wolf found that the department had not violated Kosilek’s Eighth Amendment rights prohibiting cruel and unusual punishment because the prisoner did not prove that the correction commissioner had shown “deliberate indifference” to Kosilek’s medical needs.

Kosilek, 58, sued again in 2005, saying the hormone treatments, laser hair removal, and psychotherapy the inmate has received since Wolf’s ruling were insufficient to address anxiety and depression.

For the past year, Wolf has been weighing whether to order the state to allow the surgery.

Medical specialists who have testified for Kosilek, as well as several doctors hired by the prison system’s health provider, have said they believe surgery is medically necessary for the inmate, who has twice tried suicide in prison. Other specialists hired by the department disagree.

Dennehy, who left office a year ago, had said that Kosilek would become a target of sexual assault in a female or a male prison after surgery. She also said she would resign if ordered to allow the operation.

But on April 1, Clarke told reporters he was undecided on the case and promised to examine it with “a fresh set of eyes.”

Some advocates had speculated that Clarke, the former head of the prison systems in Nebraska and Washington state, might have a different perspective, partly because the prison system in Washington housed a transsexual murderer.

But Clarke wrote that providing a sex change to Kosilek was a bad idea for several reasons, including that Kosilek could not be housed afterward in Framingham, as the prisoner has suggested.

“Kosilek’s brutal crime of murdering his wife will increase Kosilek’s risk of being assaulted or victimized by the female offenders at MCI-Framingham, many of whom have been battered and are themselves victims of domestic violence,” Clarke wrote.

Jonathan Saltzman can be reached at jsaltzman@globe.com
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