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Wisconsin Spotlight | Dec. 22, 2020

MADISON — A federal judge recently ruled it was cruel and unusual punishment to deny a taxpayer-funded sex change to a state prisoner who sexually assaulted a child. 

U.S. District Court Judge James Peterson earlier this month ordered the state to pay for the sexual reassignment of Nicole Campbell, who was known as Mark Allan Campbell in 2007 when he started a 34-year sentence after being convicted of raping his 10-year-old daughter. 

Campbell, of Waupun, who these days likes to go by Nicole Rose, “showed a lack of remorse, empathy or responsibility,” District Court Judge James Duvall said in handing out the sentence— stiffer than the 5 to 7 years reached in the original plea deal. Campbell was charged with 1st-degree sexual assault of a child; incest; exposing a child to harmful material (pornography); and causing a child under the age of 13 to listen or view a sex act, according to court records. The final three charges were read into the record but dismissed as part of the plea deal.  

Those facts were missing from some mainstream media stories. 

“You are 100 percent to blame for what you did to that child. There’s very little hope of providing restitution to the victim because you violated her trust,” Duvall said at the time. 

But the federal judge says it’s the Wisconsin Department of Corrections that has abused Campbell’s constitutional rights in not allowing the sex change. 

In his brief, Peterson wrote that Nicole Rose suffers from “severe, unremitting gender dysphoria,” which causes “her severe anguish and puts her at risk of self-harm.” Court records show Campbell has threatened “self-castration.” 

The brief notes Campbell, 49, has received some treatment for gender dystopia while incarcerated, including counseling and “cross-gender hormone therapy.” Campbell first requested gender-affirming cosmetic surgery in 2013. The inmate wants to complete the transition. 

Peterson declared Campbell “has waited long enough.” The judge found the Department of Corrections violated the inmate’s Eighth Amendment rights “by denying her sex reassignment surgery.” Peterson, nominated to the bench by President Barack Obama, did reject Campbell’s requests for breast augmentation, voice therapy, and electrolysis. 

Campbell also wants to be transferred from a men’s prison to Taycheedah Correctional Institution for women in Fond du Lac County before surgery. 

“That request came as a surprise, because previously the DOC designated any inmate with a penis to a male prison, regardless of gender identity or expression,” the federal judge wrote. 

Peterson shrugged off opposition to a convicted child rapist being granted a sex change. 

“And some members of the public are outraged at any effort to improve the health and well-being of inmates. But the true public interest lies in alleviating needless suffering by those who are dependent on the government for their care,” the judge wrote. 

What of Campbell’s 10-year-old daughter’s anguish? What of her needless suffering? 

Court documents show the girl “attempted suicide because of the extraordinary trauma caused by the abuse.” 

In 2016, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit rejected Campbell’s claim for damages. The 2-1 ruling written by Judge Diane Sykes found “prison officials followed accepted medical standards” at the time.  

Peterson said the times have changed, and justice demands a taxpayer-funded sex change for a man — now identifying as a woman — who was convicted of repeatedly raping his own child. 

“To be clear: an inmate’s criminal history is irrelevant to whether she has a right to necessary medical treatment,” Peterson wrote in the ruling. 

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