Department of Justice.
Final rule; request for comment on specific issue.
The Department of Justice (Department) is issuing a final rule adopting national standards to prevent, detect, and respond to prison rape, as required by the Prison Rape Elimination Act of 2003 (PREA). In addition, the Department is requesting comment on one issue relating to staffing in juvenile facilities. Further discussion of the final rule is found in the Executive Summary.
This rule is effective August 20, 2012. Comments on the juvenile staffing ratios set forth in § 115.313 must be submitted electronically or postmarked no later than 11:59 p.m. on August 20, 2012.
To ensure proper handling of solicited additional comments, please reference “Docket No. OAG–131” on all written and electronic correspondence. Written comments being sent through regular or express mail should be sent to Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, Washington, DC 20530. Comments may also be sent electronically through
Please note that the Department is requesting that electronic comments be submitted before midnight Eastern Time on the day the comment period closes because
You are not required to submit personal identifying information in order to comment on this rule. Nevertheless, if you still want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online or made available in the public docket in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the Department's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
Robert Hinchman, Senior Counsel, Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252, Washington, DC 20530; telephone: (202) 514–8059. This is not a toll-free number.
The goal of this rulemaking is to prevent, detect, and respond to sexual abuse in confinement facilities, pursuant to the Prison Rape Elimination Act of 2003. For too long, incidents of sexual abuse against incarcerated persons have not been taken as seriously as sexual abuse outside prison walls. In popular culture, prison rape is often the subject of jokes; in public discourse, it has been at times dismissed by some as an inevitable—or even deserved—consequence of criminality.
But sexual abuse is never a laughing matter, nor is it punishment for a crime. Rather, it
In passing PREA, Congress noted that the nation was “largely unaware of the epidemic character of prison rape and the day-to-day horror experienced by victimized inmates.” 42 U.S.C. 15601(12). The legislation established a National Prison Rape Elimination Commission (NPREC) to “carry out a comprehensive legal and factual study of the penalogical [
The statute directs the Attorney General to publish a final rule adopting “national standards for the detection, prevention, reduction, and punishment of prison rape * * * based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission * * * and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.” 42 U.S.C. 15607(a)(1)–(2). However, the standards may not “impose substantial additional costs
The standards are to be immediately binding on the Federal Bureau of Prisons. 42 U.S.C. 15607(b). A State whose Governor does not certify full compliance with the standards is subject to the loss of five percent of any Department of Justice grant funds that it would otherwise receive for prison purposes, unless the Governor submits an assurance that such five percent will be used only for the purpose of enabling the State to achieve and certify full compliance with the standards in future years. 42 U.S.C. 15607(c). The final rule specifies that the Governor's certification applies to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch.
In addition, any correctional accreditation organization that seeks Federal grants must adopt accreditation standards regarding sexual abuse that are consistent with the national standards in this final rule. 42 U.S.C. 15608.
In drafting the final rule, the Department balanced a number of competing considerations. In the current fiscal climate, governments at all levels face budgetary constraints. The Department has aimed to craft standards that will yield the maximum desired effect while minimizing the financial impact on jurisdictions. In addition, recognizing the unique characteristics of individual facilities, agencies, and inmate populations, the Department has endeavored to afford discretion and flexibility to agencies to the extent feasible.
The success of the PREA standards in combating sexual abuse in confinement facilities will depend on effective agency and facility leadership, and the development of an agency culture that prioritizes efforts to combat sexual abuse. Effective leadership and culture cannot, of course, be directly mandated by rule. Yet implementation of the standards will help foster a change in culture by institutionalizing policies and practices that bring these concerns to the fore.
Notably, the standards are generally not outcome-based, but rather focus on policies and procedures. While performance-based standards generally give regulated parties the flexibility to achieve regulatory objectives in the most cost-effective way, it is difficult to employ such standards effectively to combat sexual abuse in confinement facilities, where significant barriers exist to the reporting and investigating of such incidents. An increase in incidents reported to facility administrators might reflect increased abuse, or it might just reflect inmates' increased willingness to
The standards are not intended to define the contours of constitutionally required conditions of confinement. Accordingly, compliance with the standards does not establish a safe harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual abuse. Furthermore, while the standards aim to include a variety of best practices, they do not incorporate every promising avenue of combating sexual abuse, due to the need to adopt national standards applicable to a wide range of facilities, while taking costs into consideration. The standards consist of policies and practices that are attainable by all affected agencies, recognizing that agencies can, and some currently do, exceed the standards in a variety of ways. The Department applauds such efforts, encourages agencies to adopt or continue best practices that exceed the standards, and intends to support further the identification and adoption of innovative methods to protect inmates from harm. As described in the Background section, the Department is continuing its efforts to fund training, technical assistance, and other support for agencies, including through a National Resource Center for the Elimination of Prison Rape.
Because the purposes and operations of various types of confinement facilities differ significantly, there are four distinct sets of standards, each corresponding to a different type of facility: Adult prisons and jails (§§ 115.11–115.93); lockups (§§ 115.111–115.193); community confinement facilities (§§ 115.211–115.293); and juvenile facilities (§§ 115.311–115.393). The standards also include unified sections on definitions (§§ 115.5–115.6) and on audits and State compliance (§§ 115.401–115.405, 115.501).
The standards contained in this final rule apply to facilities operated by, or on behalf of, State and local governments and the Department of Justice. However, in contrast to the proposed rule, the final rule concludes that PREA encompasses all Federal confinement facilities. Given their statutory authorities to regulate conditions of detention, other Federal departments with confinement facilities (including but not limited to the Department of Homeland Security) will work with the Attorney General to issue rules or procedures that will satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
This summary of the major provisions of the standards does not include every single aspect of the standards, nor does it capture all distinctions drawn in the standards on the basis of facility type or size. Agencies that are covered by each set of standards should read them in full rather than rely exclusively on this summary.
Due to the great variation across facilities in terms of size, physical layout, and composition of the inmate population, it would be impractical to require a specified level of staffing. Likewise, mandating a subjective standard such as “adequate staffing” would be extremely difficult to measure. Instead, the final standard requires that prisons and jails use their best efforts to comply with the staffing plan on a regular basis and document and justify any deviations. Given that staffing increases often depend on budget approval from an external legislative or other governmental entity, this revision is designed to support proper staffing without discouraging agencies from attempting to comply with the PREA standards due to financial concerns.
The “best efforts” language encourages agencies to compose the most appropriate staffing plan for each facility without incentivizing agencies to set the bar artificially low in order to avoid non-compliance. But if the facility's plan is plainly deficient on its face, the facility is not in compliance with this standard even if it adheres to its plan.
In addition, the standards contained in the final rule require that supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment.
This standard imposes three requirements upon the placement of youthful inmates in prisons or jails. First, no inmate under 18 may be placed in a housing unit where contact will occur with adult inmates in a common space, shower area, or sleeping quarters. Second, outside of housing units, agencies must either maintain “sight and sound separation”—
While some commenters asserted that, in addition to increasing risk of victimization, confining youth in adult facilities impedes access to age-appropriate programming and services and may actually increase recidivism, the Department is cognizant that its mandate in promulgating these standards extends only to preventing, detecting, and responding to sexual abuse in confinement facilities. In addition, imposing a general prohibition on the placement of youth in adult facilities, or disallowing such placements unless a court finds that the youth has been violent or disruptive in a juvenile facility, would necessarily require a fundamental restructuring of existing State laws that permit or require such placement. Given the current state of knowledge regarding youth in adult facilities, and the availability of more narrowly tailored approaches to protecting youth, the Department has decided not to impose a complete ban at this time through the PREA standards. The Department has supported, however, congressional efforts to amend the JJDPA to extend its jail removal requirements to apply to youth under adult criminal court jurisdiction awaiting trial, unless a court specifically finds that it is in the interest of justice to incarcerate the youth in an adult facility.
For juvenile facilities, however, the final standards, like the proposed standards, prohibit cross-gender pat-down searches of both female and male residents. And for all facilities, the standards prohibit cross-gender strip searches and visual body cavity searches except in exigent circumstances or when performed by medical practitioners, in which case the searches must be documented.
The standards also require facilities to implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. In addition, facilities must require staff of the opposite gender to announce their presence when entering an inmate housing unit.
Inmates, too, must understand a facility's policies and procedures in order to know that they will be kept safe and that the facility will not tolerate their committing sexual abuse. The standards require that facilities explain their zero-tolerance policy regarding sexual abuse and sexual harassment educate inmates on how to report any such incidents.
In addition, agencies are required to provide inmates with access to outside victim advocates for emotional support services related to sexual abuse, by giving inmates contact information for local, State, or national victim advocacy or rape crisis organizations and by enabling reasonable communication between inmates and these organizations, with as much confidentiality as possible.
The standards also require agencies to develop policies to prevent and detect any retaliation against persons who report sexual abuse or who cooperate with investigations. Allegations must be investigated properly, thoroughly, and objectively, and documented correspondingly, and must be deemed substantiated if supported by a preponderance of the evidence. No agency may require an inmate to submit to a polygraph examination as a condition for proceeding with an investigation. Nor may an agency enter into or renew any agreement that limits its ability to remove alleged staff abusers from contact with inmates pending an investigation or disciplinary determination.
Inmates also will be subject to disciplinary action for committing sexual abuse. Where an inmate is found to have engaged in sexual contact with a staff member, the inmate may be disciplined only where the staff member did not consent. Where two inmates have engaged in sexual contact, the agency may (as the final rule clarifies) impose discipline for violating any agency policy against such contact, but may deem such activity to constitute sexual abuse only if it determines that the activity was not consensual. In other words, upon encountering two inmates engaging in sexual activity, the agency cannot simply assume that both have committed sexual abuse.
This standard exists only because the Prison Litigation Reform Act, 42 U.S.C. 1997e, requires that inmates exhaust any available administrative remedies as a prerequisite to filing suit under Federal law with respect to the conditions of their confinement. The final standard contains a variety of other provisions aimed at ensuring that grievance procedures that cover sexual abuse provide inmates with a full and fair opportunity to preserve their ability to seek judicial review, without imposing undue burdens on agencies or facilities. However, agencies that exempt sexual abuse allegations from their remedial schemes are exempt from this standard, because their inmates may proceed directly to court.
The Department will develop and issue an audit instrument that will provide guidance on the conduct of and contents of the audit. All auditors must be certified by the Department, pursuant to procedures, including training requirements, to be issued subsequently.
In addition, in a change from the proposed rule, the final standards do not allow placement of LGBTI inmates in dedicated facilities, units, or wings in adult prisons, jails, or community confinement facilities solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates. As in the proposed standards, such placement is not allowed at all in juvenile facilities.
The standards impose a complete ban on searching or physically examining a transgender or intersex inmate for the sole purpose of determining the inmate's genital status. Agencies must train security staff in conducting professional and respectful cross-gender pat-down searches and searches of transgender and intersex inmates.
In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, an agency may not simply assign the inmate to a facility based on genital status. Rather, the agency must consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems, giving serious consideration to the inmate's own views regarding his or her own safety. In addition, transgender and intersex inmates must be given the opportunity to shower separately from other inmates.
The anticipated costs of full nationwide compliance with the final rule, as well as the benefits of reducing the prevalence of prison rape, are discussed at length in the Regulatory Impact Assessment (RIA), which is available at
However, these figures are potentially misleading. PREA does not require State and local facilities to comply with the Department's standards, nor does it enact a mechanism for the Department to direct or enforce such compliance; instead, the statute provides certain incentives for such confinement facilities to implement the standards. Fiscal realities faced by confinement facilities throughout the country make it virtually certain that the total actual outlays by those facilities will, in the aggregate, be less than the full nationwide compliance costs calculated in the RIA. Actual outlays incurred will depend on the specific choices that State and local correctional agencies make with regard to adoption of the standards, and correspondingly on the annual expenditures that those agencies are willing and able to make in choosing to implement the standards in their facilities. The Department has not endeavored in the RIA to project those actual outlays.
With respect to benefits, the RIA conducts what is known as a “break-even analysis,” by first estimating the monetary value of preventing various
This analysis begins by estimating the current levels of sexual abuse in covered facilities. The RIA concludes that in 2008 more than 209,400 persons were victims of sexual abuse in prisons, jails, and juvenile facilities, of which at least 78,500 prison and jail inmates and 4,300 youth in juvenile facilities were victims of the most serious forms of sexual abuse, including forcible rape and other nonconsensual sexual acts involving injury, force, or high incidence.
Next, the RIA estimates how much monetary benefit (to the victim and to society) accrues from reducing the annual number of victims of prison rape. This is, of course, an imperfect endeavor, given the inherent difficulty in assigning a dollar figure to the cost of such an event. Executive Order 13563 states that agencies “may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” Each of these values is relevant here, including human dignity, which is offended by acts of sexual violence. While recognizing the limits of monetary measures and the difficulty of translation into dollar equivalents, the RIA extrapolates from the existing economic and criminological literature regarding rape in the community. On the basis of such extrapolations, it finds that the monetizable benefit to an adult of avoiding the highest category of prison sexual misconduct (nonconsensual sexual acts involving injury or force, or no injury or force but high incidence) is worth $310,000 to $480,000 per victim; for juveniles, who typically experience significantly greater injury from sexual abuse than do adults, the corresponding category is assessed as worth $675,000 per victim. Lesser forms of sexual abuse have correspondingly lower avoidance benefit values. The RIA thus determines that the maximum monetizable cost to society of prison rape and sexual abuse (and correspondingly, the total maximum benefit of eliminating it) is about $46.6 billion annually for prisons and jails, and an additional $5.2 billion annually for juvenile facilities.
The RIA concludes that the break-even point would be reached if the standards reduced the annual number of victims of prison rape by 1,671 from the baseline levels, which is less than 1 percent of the total number of victims in prisons, jails, and juvenile facilities. The Department believes it reasonable to expect that the standards, if fully adopted and complied with, would achieve at least this level of reduction in the prevalence of sexual abuse, and thus the benefits of the rule justify the costs of full nationwide compliance.
As noted, this analysis inevitably excludes benefits that are not monetizable, but still must be included in a cost-benefit analysis. These include the values of equity, human dignity, and fairness. Such non-quantifiable benefits will be received by victims who receive proper treatment after an assault; such treatment will in turn enhance their ability to re-integrate into the community and maintain stable employment upon their release from prison. Furthermore, making prisons safer will increase the general well-being and morale of staff and inmates alike. Finally, non-quantifiable benefits will accrue to society at large, by ensuring that inmates re-entering the community are less traumatized and better equipped to support their community. Thus, the true break-even level would likely be lower and perhaps significantly lower than 1,671, if it were possible to account for these non-quantifiable benefits.
The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601
The NPREC set forth four sets of recommended national standards for eliminating prison rape and other forms of sexual abuse. Each set applied to one of the following four confinement settings: (1) Adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities; and (4) lockups (
Pursuant to PREA, the final rule adopting national standards “shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission * * * and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.” 42 U.S.C. 15607(a)(2). PREA expressly mandates that the Department not establish a national standard “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3). The Department “may, however, provide a list of improvements for consideration by correctional facilities.” 42 U.S.C. 15607(a)(3).
The Attorney General established a PREA Working Group, chaired by the Office of the Deputy Attorney General, to review each of the NPREC's proposed standards and to assist him in preparing rulemaking materials. The Working Group included representatives from a wide range of Department components, including the Access to Justice Initiative, the Bureau of Prisons (including the National Institute of Corrections), the Civil Rights Division, the Executive Office for United States Attorneys, the Office of Legal Policy, the Office of Legislative Affairs, the Office of Justice Programs (including the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime), the Office on Violence Against Women, and the United States Marshals Service.
The Working Group conducted an in-depth review of the standards proposed by the NPREC. As part of that process, the Working Group conducted a number of listening sessions in 2010, at which a wide variety of individuals and groups provided preliminary input prior to the start of the regulatory process. Participants included representatives of State and local prisons and jails, juvenile facilities, community corrections programs, lockups, State and local sexual abuse associations and service providers, national advocacy groups, survivors of prison rape, and members of the NPREC.
Because, as noted above, PREA prohibits the Department from establishing a national standard that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities, the Working Group carefully examined the potential cost implications of the standards proposed by the NPREC. As part of that process, the Department commissioned an independent contractor to perform a cost analysis of the NPREC's proposed standards.
On March 10, 2010 (75 FR 11077), while awaiting completion of the cost analysis, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input on the NPREC's proposed national standards. Approximately 650 comments were received on the ANPRM, including comments from current or formerly incarcerated individuals, county sheriffs, State correctional agencies, private citizens, professional organizations, social service providers, and advocacy organizations concerned with issues involving inmate safety and rights, sexual violence, discrimination, and juvenile justice.
In general, commenters supported the broad goals of PREA and the overall intent of the NPREC's recommendations. However, comments were sharply divided as to the merits of a number of standards. Some commenters, particularly those whose responsibilities involve the care and custody of inmates or juvenile residents, expressed concern that the NPREC's recommended national standards implementing PREA would impose unduly burdensome costs on already tight State and local government budgets. Other commenters, particularly advocacy groups concerned with protecting the health and safety of inmates and juvenile residents, expressed concern that the NPREC's standards did not go far enough, and, therefore, would not fully achieve PREA's goals.
After reviewing the comments on the NPREC's proposed standards, and after receiving and reviewing the cost analysis of those standards, the Department published a Notice of Proposed Rulemaking (NPRM) on February 3, 2011 (76 FR 6248). The scope and content of the Department's standards differed substantially from the NPREC's proposals in a variety of areas. The Department revised each of the NPREC's recommended standards, weighing the logistical and financial feasibility of each standard against its anticipated benefits. At the same time, the Department published an Initial Regulatory Impact Analysis (IRIA), which presented a comprehensive assessment of the benefits and costs of the Department's proposed standards in both quantitative and qualitative terms. The IRIA was summarized in the NPRM and was published in full on the Department's Web site at
The NPRM solicited comments on the Department's proposed standards, and posed 64 specific questions on the proposed standards and the IRIA. In response, the Department received over 1,300 comments, representing the same broad range of stakeholders as comments on the ANPRM. Commenters provided general assessments of the Department's efforts as well as specific and detailed recommendations regarding each standard. The Department also received a range of comments responding to the 64 questions posed in the NPRM and on the assumptions, calculations, and conclusions contained in the IRIA. As in the comments on the ANPRM, the changes recommended by commenters reflected a diverse array of views. Many commenters asserted that the proposed standards provided insufficient protection against sexual abuse, while others expressed the view that the proposed standards would be too onerous for correctional agencies.
Following the public comment period, the Department carefully reviewed each comment and deliberated internally on the revisions that the commenters proposed and on the critiques of the IRIA's benefit-cost analysis. In addition, the Department once again commissioned an independent contractor to assist the Department in assessing the costs of revisions to the standards.
The final standards reflect a considered analysis of the public comments and a rigorous assessment of the estimated benefits and costs of full nationwide compliance with the standards. The Department has revised the IRIA correspondingly; the final Regulatory Impact Analysis is available at
This is a final rule; however, the Department has identified one provision for which it is considering making changes to the final rule, if warranted by public comments received. The discrete provision open for additional comment does not affect the finality of the rule.
To assist agencies in their compliance efforts, the Department has funded the National Resource Center for the Elimination of Prison Rape to serve as a national source for online and direct support, training, technical assistance, and research to assist adult and juvenile corrections, detention, and law enforcement professionals in combating sexual abuse in confinement. Focusing on areas such as prevention strategies, improved reporting and detection, investigation, prosecution, and victim-centered responses, the Resource Center will identify promising programs and practices that have been implemented around the country and demonstrate models for keeping inmates safe from sexual abuse. It will offer a full library, webinars, and other online resources on its Web site, and will provide direct assistance in the field through skilled and experienced training and technical assistance providers. The Department also funds the National Center for Youth in Custody, which will partner closely with the Resource Center to assist facilities in addressing sexual safety for youth.
The Department is also continuing its grantmaking, through its Bureau of Justice Assistance, to support State and local demonstration projects aimed at combating sexual abuse in confinement facilities. In addition, the Department's National Institute of Corrections, which has provided substantial PREA-related training and technical assistance since passage of the Act, will be developing electronic and web-based resource materials aimed at reaching a broad audience.
The proposed rule interpreted the statute to bind only facilities operated by the Bureau of Prisons, and extended the standards to United States Marshals Service facilities under other authorities of the Attorney General. In light of comments on the proposed rule, the Department has re-examined whether
With respect to Bureau of Prisons facilities, the Act explicitly provides that the national standards apply immediately. 42 U.S.C. 15607(b). However, the statute does not address how it will be implemented at other Federal confinement facilities. In general, each Federal agency is accountable for, and has statutory authority to regulate, the operations of its own facilities and, therefore, is best positioned to determine how to implement the Federal laws and rules that govern its own operations, the conduct of its own employees, and the safety of persons in its custody. For example, the Department of Homeland Security possesses great knowledge and experience regarding the specific characteristics of its immigration facilities, which differ in certain respects from Department of Justice, State, and local facilities with regard to the manner in which they are operated and the composition of their populations. Indeed, the NPREC expressly recognized these distinctions by including a supplemental set of 15 standards applicable only to facilities with immigration detainees. Similarly, the Department of the Interior's Bureau of Indian Affairs (BIA) possesses expertise regarding the various confinement facilities in Indian country, which are owned and operated pursuant to numerous different arrangements by BIA and the tribes, and which also differ in certain respects from Department of Justice, State, and local facilities.
Given their statutory authorities to regulate conditions of detention, other Federal departments with confinement facilities will work with the Attorney General to issue rules or procedures that will satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
In the proposed rule, the Department declined to adopt the NPREC's recommendation that the Department adopt a set of standards for community corrections, which the NPREC had recommended defining as follows: “Supervision of individuals, whether adults or juveniles, in a community setting as a condition of incarceration, pretrial release, probation, parole, or post-release supervision. These settings would include day and evening reporting centers.”
Several commenters criticized the proposed rule for excluding individuals who are not incarcerated but are subject to pretrial release, probation, parole, or post-release supervision. These commenters included advocacy groups, certain former members of the NPREC, and two trade organizations, the American Probation and Parole Association and the International Community Corrections Association. Commenters observed that parole and probation officers play a significant role in the lives of their charges, and that such power includes the potential for abuse. Some suggested that the Department should adopt all of the NPREC's recommendations with regard to pretrial release, probation, parole, or post-release supervision, while others proposed including only certain training requirements related to handling disclosures of sexual abuse and avoiding inappropriate relationships with probationers and parolees.
The final rule does not include these suggested changes and instead retains the definition quoted above. The Department recognizes, of course, that staff involved in pretrial release, probation, parole, or post-release supervision exert great authority. The same is true, however, of numerous other government officials, including police officers who operate in the community, law enforcement investigators, and certain categories of civil caseworkers. While any abuse by law enforcement officials or other government agents is reprehensible, PREA appropriately addresses the unique vulnerability of incarcerated persons, who literally cannot escape their abusers and who lack the ability to access community resources available to most victims of sexual abuse.
One commenter observed that PREA defines “prison rape” as including “the rape of an inmate in the actual or constructive control of prison officials,” 42 U.S.C. 15609(8), and suggested that a probationer or parolee should be considered to be under the constructive control of correctional officials. This suggestion, however, neglects the statute's definition of “inmate” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. 15609(2). An inmate by definition is “incarcerated or detained in [a] facility”; the inclusion of inmates who are “under the constructive control of correctional officials” presumably refers to inmates who are temporarily supervised by others, such as inmates on work details. Furthermore, the reference to parole, probation, and related programs in the definition of “inmate” indicates that only a person who “violate[s] * * * the terms and conditions” of such a program, rather than any person who is subject to such terms and conditions, qualifies as an inmate. Indeed, with the exception of an unrelated grant program to safeguard communities,
The same commenter noted that PREA instructed the NPREC to recommend to the Attorney General national standards on, in addition to specifically enumerated topics, “such other matters as may reasonably be related to the detection, prevention, reduction, and punishment of prison rape.” 42 U.S.C. 15606(e)(2)(M). The
Still, the Department encourages probation and parole departments to take active steps to ensure that any information they learn about sexual abuse in confinement facilities is transmitted to law enforcement authorities or correctional agencies, as appropriate. The Department recommends that such departments train their officers as needed to facilitate proper investigation of allegations.
Finally, one commenter suggested that probation departments should be included because some probation departments operate residential facilities, including juvenile detention facilities. No change is warranted, because the proposed rule already included any agency that operates residential facilities. For example, to the extent that a probation department operates a juvenile detention facility, it is covered by the Standards for Juvenile Facilities, § 115.311
The Department received a significant number of comments from jails regarding the ways in which their operations differ from prisons. Jail commenters noted that prisons, unlike jails, generally receive individuals after sentencing. Thus, prison inmates have already been stabilized medically and been searched before being transported to the prison. Commenters noted that the prison intake unit or facility, unlike its jail counterpart, will often have received information from the sentencing court, and may have received records documenting medical and mental health conditions, criminal and institutional histories, and in some cases, program or treatment histories.
The American Jail Association (AJA), plus several sheriffs and jail administrators, recommended that the Department develop separate standards for jails and prisons, due to differences in facility size, mission, length of stay, and operational considerations.
The Department recognizes the various differences between jails and prisons, but concludes that these differences do not warrant a separate set of standards. Rather, the Department has endeavored to provide sufficient flexibility such that the standards can be adopted by both prisons and jails. Where appropriate, various standards impose different requirements upon prisons and jails, while others differentiate on the basis of facility size.
NPRM Question 34 solicited comments on how the final rule should define “full compliance.” Several commenters recommended that full compliance be measured by a percentage of each standard complied with. These recommendations were generally between 80 and 100 percent. One commenter suggested that each standard be designated as either mandatory or non-mandatory, with differential percentages for each category. A number of comments recommended that full compliance mean complete compliance, with exceptions for
A number of commenters recommended that “full compliance” be fully or partially contingent on certain outcome measures. In other words, “full compliance” could only be achieved if a certain objective level of safety and security is achieved in a facility.
Other commenters suggested that, instead of relying on “full compliance,” the standards should be measured using a multi-tiered approach, such as “substantial compliance,” “partial compliance,” “non-compliance with progress,” and “non-compliance.” One commenter recommended that “full compliance” be regarded as achieved when the facility meets the spirit of the standard. Another suggested that “full compliance” be regarded as achieved when an agency adopts adequate policies and procedures, and has demonstrated its intention to comply with those policies.
Finally, a number of comments suggested that the standards be “fully” complied with, and two suggested that “full compliance” mean complete compliance with the critical elements of the standard.
The final rule defines “full compliance” as “compliance with all material requirements of each standard except for
Below is a nonexhaustive set of examples of violations that would be consistent with full compliance:
• A temporary vacancy in the PREA coordinator's position that the agency is actively seeking to fill;
• A small number of instances in which an agency fails by a number of days to meet a 14-day deadline imposed by the rule;
• Occasional noncompliance with staffing ratios in juvenile facilities due to disturbances in other housing units or staff illnesses;
• A short-term telephone malfunction that prevents inmate access to a confidential reporting hotline, which the agency acts promptly to restore once the malfunction is brought to its attention.
Generally speaking, the intent of this definition is to make clear that a Governor may certify “full compliance” even if, in circumstances that are not reasonably foreseeable, certain of the State's facilities are at times unable to comply with the letter of certain standards for some short period of time, but then act promptly to remedy the violation. This definition is in keeping with Congress's view that States would be able—and should be encouraged—to achieve full compliance.
The final rule also provides, in § 115.501(b), that the Governor's certification applies to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch. The certification, by its terms, does not encompass facilities under the operational control of counties, cities, or other municipalities.
Some commenters recommended that the definition of juvenile include persons over the age of 18 who are currently in the custody of the juvenile justice system, because some State juvenile justice systems hold persons beyond that age who were originally adjudicated as juvenile delinquents. The final rule does not make that change. The set of standards for juvenile facilities refers throughout to “residents.” A “resident” is defined as “any person confined or detained in a juvenile facility.” Thus, the standards already cover over-18 persons confined in a facility that is primarily used for the confinement of under-18 persons, and the commenters' proposed change is not needed. In the rare instance that an over-18 person in the custody of the juvenile justice system is confined in an adult facility, it is appropriate for that person to be treated the same as others of similar age.
One commenter suggested amending the definition of juvenile facility to clarify that it includes all youth confined in juvenile facilities, not just those who are accused of, or have been adjudicated for committing, a delinquent act or criminal offense. The commenter noted that, as a result of shortages in residential mental health facilities, juvenile facilities may temporarily hold youth who are not accused of delinquent or criminal acts, while waiting for bed space to open up in residential mental health facilities. The Department has not made this change, because such youth are already covered to the extent that they are housed in a facility that primarily confines juveniles pursuant to the juvenile justice system or criminal justice system.
A State juvenile agency requested that the standards exempt community-based facilities that are not “physically restricting” and that serve juvenile delinquents as well as non-delinquent youth. The Department has not made this change. As stated above, the definition of juvenile facility includes any facility “primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system.” If a non-secure residential facility fits this definition, it will fall within the scope of the standards, even if it also holds some non-delinquent youth. Youth who are legally obligated to return to a facility in the evening are at risk of sexual abuse and therefore warrant protection under these standards. Furthermore, where a facility is primarily used to confine juvenile delinquents, it would be illogical to exempt from coverage those facilities that happen to confine some non-delinquent youth as well.
The final rule makes various changes to terms related to sexual abuse that were defined in the proposed rule.
With regard to sexual abuse by an inmate, the proposed rule had excluded “incidents in which the intent of the sexual contact is solely to harm or debilitate rather than to sexually exploit.” The purpose of that language was to exclude physical altercations that incidentally resulted in injuries to an inmate's genitalia. While correctional agencies should, of course, endeavor to protect inmates from physical harm of
With regard to abuse by staff, the proposed rule included contact between the penis and the vulva or anus; contact between the mouth and the penis, vulva, or anus; penetration of the anal or genital opening; and “[a]ny other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of any person with the intent to abuse, arouse, or gratify sexual desire.” The final rule replaces the intent clause with the following language: “that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse or gratify sexual desire.” Thus, if the touching is unrelated to official duties, no finding as to intent is necessary. If the touching
One agency recommended replacing “sexual abuse” with “rape.” The Department has not made this change. PREA defines “rape” broadly, in a manner that is more consistent with the customary definition of sexual abuse. For example, PREA includes “sexual fondling” in its definition of rape,
An advocate for disability rights recommended that the Department define what it means for an inmate to be “unable to consent,” due to variations in State law on this issue. The Department has not done so, concluding that correctional agencies should use their judgment, taking into account any applicable State law.
One advocacy organization recommended that kissing be added to the definition of sexual abuse or sexual harassment, due to the possibility that kissing could be used as a “grooming” technique leading to other sexual activities. The Department concludes that it is appropriate to consider kissing to constitute sexual abuse in certain contexts where committed by a staff member. Accordingly, the final rule adds to the definition of sexual abuse by a staff member “[c]ontact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire.”
Finally, the Department has made various nonsubstantive changes to the definition of sexual abuse, including simplifying its structure. In addition, the final rule provides that sexual abuse is not limited to incidents where the staff member touches the inmate's genitalia, breasts, anus, groin, inner thigh, or buttocks, but also includes incidents where the staff member induces the inmate to touch the staff member in such a manner.
One commenter took issue with the categorization of “repeated verbal comments or gestures of a sexual nature * * * including demeaning references to gender, sexually suggestive or derogatory comments” as sexual harassment rather than sexual abuse. The commenter suggested that this categorization inappropriately downplayed the harm associated with such conduct, especially because many of the standards in the proposed rule referenced only sexual abuse and not sexual harassment. The Department has not made this change, largely because such activities fit the textbook definition of sexual harassment. To label comments and gestures as sexual harassment is not meant to belittle the harm that may ensue. (The question of whether specific standards should include sexual harassment as well as sexual abuse is a separate issue and is discussed below in reference to specific standards.) However, similar activity, when performed by a staff member,
The same commenter also recommended defining sexual harassment to include all comments of a sexual nature, not just repeated comments. One correctional agency made the same recommendation with regard to comments made by staff. The Department has not made this change. Various standards require remedial action in response to sexual harassment; while correctional agencies may take appropriate action in response to a single comment, a concern for efficient resource allocation suggests that it is best to mandate such action only where comments of a sexual nature are repeated.
One correctional agency recommended that voyeurism be considered as a subset of sexual harassment and be limited to repeated actions, as with sexual harassment. The Department has not made this change. Voyeurism is appropriately considered to be a more serious offense than sexual harassment, and indeed is often a crime. The same commenter suggested that by placing voyeurism within the category of sexual abuse, “there is no differentiation between incidences of voyeurism and rape.” This is incorrect; sexual abuse appropriately encompasses a broad range of incidents of varying degrees of severity. The standards oblige correctional agencies to take certain actions in response to all incidents of sexual abuse, but the appropriate response will vary greatly depending upon the nature of the incident.
Some advocacy commenters, and one sheriff's office, criticized the proposed rule for providing that taking images of all or part of an inmate's naked body, or of an inmate performing bodily functions, constituted voyeurism only if the staff member also distributed or published them. The final rule removes that limitation. Under the revised definition, taking such images constitutes voyeurism regardless of what the staff member does with the images afterwards.
The standard contained in the proposed rule required that agencies establish a zero-tolerance policy toward sexual abuse and harassment that outlines the agency's approach to preventing, detecting, and responding to such conduct. The Department also proposed that agencies employ or designate an upper-level, agency-wide PREA coordinator to oversee efforts to comply with the standards. The proposed standard specified that the agency-wide PREA coordinator would be a full-time position in all agencies that operate facilities whose total rated capacity—
The final standard no longer requires that the agency-wide PREA coordinator be a full-time position for large agencies. Instead, the standard provides that the PREA coordinator must have “sufficient time and authority” to perform the required responsibilities, which have not been changed from the proposed standard.
The final standard also requires that any agency that operates more than one facility (regardless of agency size) designate a PREA compliance manager at each facility with sufficient time and authority to coordinate the facility's efforts to comply with the PREA standards.
As for the suggestion that a full-time coordinator be required only if verified incidents exceed a specified threshold, it is important to note that a low level of verified incidents does not necessarily mean that sexual abuse is not a concern. If an agency is not appropriately investigating allegations of sexual abuse, or if victims do not feel comfortable reporting such incidents, the level of verified incidents may not accurately reflect the agency's success at combating sexual abuse.
The standard contained in the proposed rule required that agencies that contract with outside entities include in any new contract or contract renewal the entity's obligation to comply with the PREA standards.
No substantive changes have been made to the proposed standard.
The standard in the proposed rule contained four requirements. First, it required the agency to make an assessment of adequate staffing levels, taking into account its use, if any, of video monitoring or other technology, and the physical layout and inmate population of the facility. Second, it required agencies to devise a plan for how to best protect inmates from sexual abuse should staffing levels fall below an adequate level. Third, it required agencies to reassess at least annually the identified adequate staffing levels, as well as the staffing levels that actually prevailed during the previous year, and the facility's use of video monitoring systems and other technologies. Fourth, it required prisons, juvenile facilities, and jails whose rated capacity exceeds 500 inmates to implement a policy of unannounced rounds by supervisors to identify and deter staff sexual abuse and sexual harassment.
The final standard requires each prison, jail, and juvenile facility to develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, facilities must consider several factors, including: (1) Generally accepted detention and correctional practices; (2) any judicial findings of inadequacy; (3) any findings of inadequacy from Federal investigative agencies; (4) any findings of inadequacy from internal or external oversight bodies; (5) all components of the facility's physical plant (including “blind spots” or areas where staff or inmates may be isolated); (6) the composition of the inmate population; (7) the number and placement of supervisory staff; (8) institution programs occurring on a particular shift; (9) any applicable State or local laws, regulations, or standards; (10) the prevalence of substantiated and unsubstantiated incidents of sexual abuse; and (11) any other relevant factors. Prisons and jails must use “best efforts to comply with the staffing plan on a regular basis” and are required to document and justify deviations from the staffing plan.
Like the proposed standard, the final standard requires all agencies to annually assess, determine, and document for each facility whether adjustments are needed to (1) The staffing levels established pursuant to this standard; (2) prevailing staffing patterns; and (3) the facility's deployment of video monitoring systems and other monitoring technologies. The final standard also adds a requirement that the annual assessment examine the resources the facility has available to commit to ensure adequate staffing levels.
The final standard requires, lockups and community confinement facilities to develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In circumstances where the staffing plan is not complied with, lockups and community confinement facilities must document and justify all deviations from the plan. The final standard, like the proposed standard, requires lockup and community confinement agencies to consider the facility's physical layout, the composition of its population, the prevalence of substantiated and unsubstantiated incidents of sexual abuse, and any other relevant factors. If vulnerable detainees are identified pursuant to the lockup screening process set forth in § 115.141, security staff must provide such detainees with heightened protection, including continuous direct sight and sound supervision, single-cell housing, or placement in a cell that is actively monitored, unless no such option is determined to be feasible.
The final standard sets specific minimum staffing levels for certain juvenile facilities.
The final standard also extends to all jails (rather than, as in the proposed standards, only those jails whose rated capacity exceeds 500 inmates) the requirement of unannounced supervisory rounds to identify and deter staff sexual abuse and sexual harassment. In order to address concerns that some staff members might prevent such rounds from being “unannounced” by providing surreptitious warnings, the final standard adds a requirement that agencies have a policy to prohibit staff members from alerting their colleagues that such supervisory rounds are occurring, unless such announcement is related to the legitimate operational functions of the facility.
The NPRM posed several questions regarding staffing. Below is a summary of all comments received regarding this standard, keyed to the question to which they correspond, and the Department's responses.
In addition to feasibility, many correctional commenters stated that the costs of establishing a specific staffing requirement would be prohibitive. These commenters noted that the ability to increase staffing levels at a facility is often beyond the control of either the facility or the agency. Staffing increases require additional funding, which usually must be legislatively appropriated. The commenters also noted that budget increases are unlikely in the current fiscal climate and would require a significant amount of lead time for approval. Several correctional stakeholders, joined by some advocacy groups, commented that specific staffing ratios in adult facilities would constitute an “unfunded mandate,” which might compel some agencies to choose not to attempt compliance with the PREA standards in general. In addition, commenters observed that increased costs imposed by a staffing mandate could result in elimination of programming for inmates due to funding limitations.
On the other hand, one local correctional agency commented that, given current fiscal conditions, some agencies will have difficulties expanding staffing unless the final standard mandates minimum staffing levels. In addition, some advocates noted that courts have held that cost is not an excuse for failing to provide for the safety of persons in custody, and argued that if an agency cannot provide adequate staffing to ensure inmate safety, then it should reduce its inmate population.
Given the intricacies involved in formulating an adequate staffing plan, the Department does not include specific staffing ratios for adult facilities in the final standard. The final determination as to adequate staffing levels remains in the discretion of the facility or agency administration. In addition, the facility is encouraged to reassess its staffing plan as often as necessary to account for changes in the facility's demographics or needs.
With regard to the cost of staffing, the Department notes that the Constitution requires that correctional facilities provide inmates with reasonable safety and security from violence,
The final standard also requires the agency to reassess, determine, and document, at least annually, whether adjustments are needed to resources the facility has available to commit to ensure adherence to the staffing plan. This language accounts for the fact that resource availability will affect staffing levels and provides agencies an incentive to request additional staffing funds as needed. The Department considered including a requirement for the agency to request additional funds from the appropriate governing authority, if necessary, but determined that this decision best remained within the discretion of the agency.
The final standard requires agencies to use “best efforts to comply on a regular basis” with the staffing plan. Facilities must document and justify deviations from the staffing plan, but full compliance with the plan is not required to achieve compliance with the standard. The Department considered including in the standard a specific mandate to comply with the staffing plan, but determined that requiring “best efforts” is more appropriate, to avoid penalizing agencies that unsuccessfully seek to obtain additional funds. Lockups and community confinement facilities are exempt from the “best efforts” language, but must document deviations from the staffing plan. Juvenile facilities, however, must comply with their staffing plans except during limited and discrete exigent circumstances, and must fully document deviations from a plan during such circumstances.
The Department reiterates, however, that this standard, like all the standards, is not intended to serve as a constitutional safe harbor. A facility that makes its best efforts to comply with the staffing plan is not necessarily in compliance with constitutional requirements, even if the staffing shortfall is due to budgetary factors beyond its control.
In addition, a failure to comply with identified adequate staffing levels may affect a facility's ability to comply with other standards. Pursuant to the auditing standards, facilities that receive a finding of “Does Not Meet Standard” with regard to any of the PREA standards will have a 180-day corrective action period in which the auditor and the agency shall jointly develop a corrective action plan to achieve compliance and the auditor will take necessary and appropriate steps to verify implementation of the corrective action plan before issuing a final determination as to whether the facility has achieved compliance.
The standard's ratios include only security staff. Of the States identified as requiring specific staffing ratios, approximately half count only “direct-care staff” in these ratios.
The 1:8 and 1:16 staffing ratios adopted by the final standard match or are less stringent than the ratios currently mandated by twelve States, plus the District of Columbia and Puerto Rico, for their juvenile detention facilities, juvenile correctional facilities, or both. The Department's Civil Rights Division has consistently taken the position that sufficient staffing is integral to keeping youth safe from harm and views minimum staffing ratios of 1:8 during the day and 1:16 at night as generally accepted professional standards in secure juvenile facilities. For this reason, the Civil Rights Division has entered into multiple settlement agreements that require jurisdictions to meet minimum staffing ratios in order to ensure constitutional conditions of confinement for juveniles. In addition, as noted above, the National Juvenile Detention Association's 1999 position statement on “Minimum Direct Care Staff Ratio in Juvenile Detention Centers” supports a minimum ratio of 1:8 during the day and 1:16 at night.
Given the widespread practice of setting minimum staffing ratios for juvenile facilities, the Department believes these ratios accord with national practice, are an integral measure for protecting juveniles from sexual assault, and can be implemented without excessive additional costs. In order to provide agencies with sufficient time to readjust staffing levels and, if necessary, request additional funding, any facility that, as of the date of publication of the final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the required staffing ratios shall have until October 1, 2017, to achieve compliance.
The standard excludes non-secure juvenile facilities from this requirement. Juveniles in non-secure facilities typically have less acute violent and abusive characteristics than those in secure facilities. Many jurisdictions utilize a risk screening instrument to determine whether a juvenile requires a secure placement; juveniles who are identified as having a high likelihood for assaultive behavior and re-offense are generally held in secure facilities. Accordingly, many non-secure and community-confinement-type facilities do not require as intensive staffing levels to protect residents from victimization.
Some States currently mandate higher levels of staff supervision in their long-term residential facilities, while others require higher levels of staff supervision for their short-term detention facilities. A number of States currently require high levels of staff supervision for both facility types. Agencies are encouraged to exceed the ratios set forth in the standard where the unique characteristics of the facility and youth require more intensive supervision levels.
Some advocates argued that staffing in medical units, work release programs, and other opportunities for seclusion should be considered priority posts. One advocacy group recommended that the staffing plan identify those posts that must be filled in every shift, regardless of unexpected absences or staff shortages.
The Department recognizes that technology is best utilized to supplement, but not replace, staff supervision. Camera surveillance is a powerful deterrent and a useful tool in post-incident investigations. But it cannot substitute for more direct forms of staff supervision (in part because blind spots are inevitable even in facilities with comprehensive video monitoring), and cannot replace the interactions between inmates or residents and staff that may prove valuable at identifying or preventing abuse. In addition, cameras generally do not translate into a reduction of staff levels—additional staff may be required to properly monitor the new cameras. Indeed, many cameras in correctional facilities are currently not continuously monitored.
While the Department encourages increased use of video monitoring technology to supplement sexual abuse prevention, detection, and response efforts, the agency is in the best position to determine if current or future funds are best directed at increasing the agency's use of technology.
While this final rule is effective on the date indicated herein, the Department believes that further discussion is warranted regarding the aspect of this standard that requires secure juvenile facilities to maintain minimum staffing ratios during resident waking and sleeping hours. The standard contained in the final rule requires, in pertinent part, that “[e]ach secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours, except during limited and discrete exigent circumstances, which shall be fully documented. Only security staff shall be included in these ratios.” § 115.313(c). Accordingly, the Department solicits additional comments limited to this issue.
Commenters are encouraged to address (1) Whether the provision, as written, is appropriate; (2) whether the specific ratios enumerated in the provision are the appropriate minimum ratios, or whether the ratios should be higher or lower; (3) whether the provision appropriately allows an exception from the minimum ratios during “limited and discrete exigent circumstances” (as “exigent circumstances” is defined in § 115.5), or whether that exception should be broadened, limited, or otherwise revised; (4) whether certain categories of secure juvenile facilities should be exempt from the minimum ratio requirement or, conversely, whether certain categories of non-secure juvenile facilities should also be included in the minimum ratio requirement; (5) the extent to which the provision can be expected to be effective in combating sexual abuse; (6) the expected costs of the provision; (7) whether the required ratios may have negative unintended consequences or additional positive unintended benefits; (8) whether empirical studies exist on the relationship between staffing ratios and sexual abuse or other negative outcomes in juvenile facilities;
Sections 115.14 and 115.114 regulate the placement of persons under the age of 18 in adult prisons, jails, and lockups. The final rule refers to under-18 persons in such facilities as “youthful inmates” (in adult prisons and jails) and “youthful detainees” (in lockups).
The proposed rule did not contain a standard that governed the placement of under-18 inmates in adult facilities. Rather, the proposed rule noted, and solicited input regarding, ANPRM commenters' recommendations that the NPREC's recommended standards be supplemented with an additional
Some ANPRM commenters had proposed a full ban on placing persons under the age of 18 in adult facilities where contact would occur with incarcerated adults, while others proposed instead that the standards incorporate the requirements of the Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. 5601
Generally speaking, the JJDPA applies to juveniles who are in the juvenile justice system, as opposed to those who are under the jurisdiction of adult criminal courts. The JJDPA's separation requirement applies only to juveniles who are alleged to be or are found to be delinquent, juveniles who are charged with or who have committed an offense that would not be criminal if committed by an adult, or juveniles who are not charged with any offense at all.
Accordingly, the NPRM expressly solicited comments on whether the final rule should include a standard that governs the placement of juveniles in adult facilities, and if so, what the standard should require, and how it should interact with current JJDPA requirements and penalties.
After reviewing the comments in response to the questions posed in the NPRM, the Department has chosen to adopt a new standard that restricts, but does not forbid, the placement of juveniles in adult facilities. The standard applies only to persons under the age of 18 who are under adult court supervision and incarcerated or detained in a prison, jail, or lockup. Such persons are, for the purposes of this standard, referred to as “youthful inmates” (or, in lockups, “youthful detainees”).
The standard imposes three requirements for juveniles placed in adult prisons or jails. First, it mandates that no youthful inmate may be placed in a housing unit in which he or she will have contact with any adult inmate through use of a shared day room or other common space, shower area, or sleeping quarters. Second, it requires that, outside of housing units, agencies either maintain “sight and sound separation” between youthful inmates and adult inmates—
In lockups, the standard requires that juveniles and youthful detainees be held separately from adult detainees.
Many commenters from advocacy organizations recommended a complete ban on incarcerating persons under the age of 18 in adult facilities, citing statistics indicating that youth in adult facilities face an increased risk of sexual abuse. Some advocates expressed concern that attempts to protect youth in adult facilities by housing them in segregated settings often cause or exacerbate mental health problems. Furthermore, advocates asserted, correctional agencies lack sufficient expertise in treating the unique needs of the underage population.
Some advocates proposed, as a fallback option, that the standard require a presumption that all youth be housed in juvenile facilities, unless a hearing determines that the interests of justice require housing in an adult facility.
Former members of the NPREC—whose final report did not include a recommended standard that would govern the placement of youth in adult facilities—submitted a comment that supported a standard that would require individuals below the age of 18 to be held in juvenile facilities, with some exceptions. Specifically, the former members recommended that a person under 18 be transferred to an adult facility only upon court order following a finding that the juvenile was violent or disruptive. If such a juvenile is transferred, the facility would need to comply with the standards governing juvenile facilities, separate the juvenile by sight and sound from adult inmates, ensure that the juvenile receives daily visits from health care providers and other staff, and visually check the juvenile every 15 minutes.
With regard to the intersection with the JJDPA, advocates indicated that the PREA standards could and should overlap with the conditions applied to formula grants under the JJDPA.
A significant number of correctional agency commenters opposed restricting the placement of youth in adult facilities. Some commenters noted that State law governs placement options for youth, and recommended that the Department not mandate a standard that would contravene such State laws. Other comments suggested that any such standard might improperly intrude into judicial functions by infringing on judges' discretion in making placement decisions. One comment suggested that a national standard governing the placement of juveniles in adult facilities would be impractical due to variation in facility size, layout, and staffing; another recommended against a standard regarding the placement of youth in adult facilities because the zero-tolerance mandate of § 115.11 already provides adequate protections to this population.
Some agency commenters recommended intermediate approaches. One commenter suggested that the final standard should allow youth to be placed in adult facilities only where there is “total separation” between the two populations. Another commenter suggested that adult facilities be required (1) to develop and implement a plan to provide additional protections for juvenile inmates, and (2) to report separately instances of abuse involving juvenile victims.
A number of agency commenters expressed concerns about importing JJDPA requirements into the PREA standards. Some remarked that this would result in “double-counting” and would result in undue weight being placed on this standard.
The Department recognizes that the statistical evidence regarding the victimization of youth in adult facilities is not as robust as it is for juvenile facilities, in large part because of the small number of under-18 inmates in adult facilities and the additional difficulties in obtaining consent to survey such inmates.
The Department's Bureau of Justice Statistics (BJS) previously reported that, based on its surveys of facility administrators, 20.6 percent of victims of substantiated incidents of inmate-on-inmate sexual violence in adult jails in 2005 were under the age of 18, and 13 percent of such victims in 2006 were under 18,
However, this conclusion does not impact the findings of the same BJS surveys performed in State prisons, which surveyed all State prisons, in contrast to the jails surveys, which included only a sampling of jails. According to SSV reports, from 2005 through 2008, 1.5 percent of victims of substantiated incidents of inmate-on-inmate sexual violence in State prisons were under 18, even though under-18 inmates constituted less than 0.2 percent of the State prison population. While the number of such substantiated incidents is small—a total of 10—the combined data indicate that State prison inmates under the age of 18 are more than eight times as likely as the average State prison inmate to have experienced a substantiated incident of sexual abuse. Furthermore, the true prevalence of sexual abuse is undoubtedly higher than the number of substantiated incidents, due to the fact that many incidents are not reported, and some incidents that are reported are not able to be verified and thus are not classified as “substantiated.” Indeed, it is quite possible that prison inmates under 18 are more reluctant than the average inmate to report an incident because of their age and relative newness to the prison system.
BJS is currently in the middle of its third National Inmate Survey collection, which is expected to provide better data regarding victimization of under-18 inmates in adult prisons and jails. This extensive survey will reach inmates in 600 prisons and jails and is designed to specifically address this issue by oversampling for facilities that house under-18 inmates, and oversampling such inmates within those facilities. BJS expects to provide national-level estimates in early 2013.
The Department's review of State procedures indicates that at least 28 States have laws, regulations, or policies that restrict the confinement of youth in adult facilities to varying degrees. Some jurisdictions house these youth in juvenile facilities until they reach a threshold age and then transfer them to an adult facility. Other jurisdictions require physical separation or sight and sound separation between these youth and adult offenders. Yet other jurisdictions maintain dedicated programs, facilities, or housing units for youth in the adult system. Overall, there appears to be a national trend toward limiting interaction between adult and under-18 inmates. In recent years, a number of States have imposed greater restrictions on the placement of youth in adult facilities or have passed legislation to allow youth tried as adults to be housed in juvenile facilities.
Furthermore, several accrediting and correctional associations have formulated position statements, issued standards, or provided comments urging either that all persons under 18 be held in juvenile facilities only, or that the youth be housed separately from adult inmates. For example, the National Commission on Correctional Healthcare, the American Jail Association, the National Juvenile Detention Association, and the National Association of Juvenile Correctional Agencies all support separate housing or placement for youth.
Although many jurisdictions have moved away from incarcerating adults with juveniles, a significant number of youth continue to be integrated into the adult inmate population. The Department estimates that in 2009, approximately 2,778 juveniles were incarcerated in State prisons and 7,218 were held in local jails.
As a matter of policy, the Department supports strong limitations on the confinement of adults with juveniles. Under the Federal Juvenile Justice and Delinquency Prevention Act (a separate statute from the JJDPA), 18 U.S.C. 5031
For a variety of reasons, however, the Department has decided against adopting a standard that would generally prohibit the placement of youth in adult facilities. Most importantly, the Department is cognizant that its mandate in promulgating these standards extends only to preventing, detecting, and responding to sexual abuse in confinement facilities. While some commenters asserted that confining youth in adult facilities impedes access to age-appropriate programming and services and may actually increase recidivism, the PREA standards cannot include a ban on those bases. Rather, the Department must focus on the extent to which such a ban would enhance the ability to prevent, detect, and respond to sexual abuse. To be sure, implicit in PREA is the authority to regulate and restrict well-intentioned interventions aimed at preventing sexual abuse that inadvertently lead to other forms of harm. Thus, the Department may adopt a standard that governs the placement of inmates in isolation, and the concomitant denial of programming, where such placement is used as a means of protecting vulnerable inmates against sexual abuse.
In addition, imposing a general ban on the placement of youth in adult facilities, or banning such placements unless a court finds that the youth has been violent or disruptive in a juvenile facility, would necessarily require a fundamental restructuring of existing State laws that permit such placement. For example, many States would require legislation redefining the age of criminal responsibility, eliminating or amending youthful offender statutes, making changes to direct-file and transfer laws, or limiting judicial discretion to determine where a youth should be placed. Given the current state of knowledge regarding youth in adult facilities, and the availability of more narrowly tailored approaches to protecting youth, the Department has decided not to impose a complete ban at this time through the PREA standards. As noted above, BJS is currently collecting additional data regarding this issue, and the Department reserves the right to reexamine this question if warranted.
Juveniles in adult facilities can be protected from sexual abuse by adult inmates by preventing unsupervised contact with adult inmates. The Department adopts a final standard aimed at preventing such unsupervised contact without inadvertently causing other harm to youth.
First, the standard bans the placement of youth in housing units where they interact with adults. Youth are vulnerable to abuse not only by cellmates, but also by adults in their unit who may have contact with them. To be sure, if youth have their own cells, and if the housing unit lacks a common day room or shower area, then such dangers are sufficiently mitigated. Thus, the standard requires that no youthful inmate be placed in a housing unit in which he or she will have sight, sound, or physical contact with any adult inmate through use of a shared day room or other common space, shower area, or sleeping quarters.
Second, the standard limits interactions between youthful and adult inmates in other areas of the facility. The most basic way to limit such interaction is to ensure sight and sound separation. However, some facilities may find it infeasible to achieve total sight and sound separation without resorting to the use of isolation and denial of programming, which raise significant concerns of their own, as discussed below. Thus, the standard provides additional flexibility by allowing youthful inmates to commingle with adult inmates as long as direct staff supervision is provided. Such supervision must be sufficient to ensure that youth are within sight at all times.
Third, the standard restricts the use of isolation of youth as a means of compliance with the requirements discussed above. While confining youth to their cells is the easiest method of protecting them from sexual abuse, such protection comes at a cost. Isolation is known to be dangerous to mental health, especially among youth. Among other things, isolation puts youth at greater risk of committing suicide. A recent survey of juvenile suicides in confinement found that 110 suicides occurred in juvenile facilities between 1995 and 1999. Analyzing those suicides for which information was available, the survey determined that 50.6 percent of the suicides occurred when inmates were confined to their rooms outside of traditional nonwaking hours as a behavioral sanction.
Youth appear to be at increased risk of suicide in adult facilities, although the extent to which isolation is a contributing factor is unknown. Based on the BJS Deaths in Custody Reporting Program, 2000–2007, 36 under-18 inmates held in local jails died as a result of suicide (with the number varying from 3 to 7 each year). The suicide rate of youth in jails was 63.0 per 100,000 under-18 inmates, as compared to 42.1 per 100,000 inmates overall, and 31 per 100,000 inmates aged 18–24. (By contrast, in the general population, the suicide risk is twice as high for persons aged 18–24 than for persons under 18.) The suicide rate of youth was approximately six times as high in jails than among 15- to 19-year-olds in the U.S. resident population
Accordingly, the standard requires that agencies make their best efforts to avoid placing youth in isolation in order to comply with this standard. For example, rather than relying on the use of isolation, agencies should attempt to designate dedicated units, wings, or tiers for confined youth; enter into inter-agency, inter-facility, or cooperative agreements for the common placement of youth; temporarily house youth in a juvenile facility; construct partitions or other low-cost facility alterations; or explore alternatives to detention or incarceration for youth in the agency's custody and care. If isolation is unavoidable, the final standard requires that, absent exigent circumstances, agencies provide youth with daily large-muscle exercise and any special education services otherwise mandated by law. Youth also shall have access to other programs and work opportunities to the extent possible. The Department believes it is not necessary to impose the additional requirements suggested by former NPREC members. Requiring a facility to abide by the standards for juvenile facilities in addition to the standards for adult prisons and jails could lead to confusion and is unlikely to have an impact on the safety of the youth. Nor is it likely that mandating visits by staff or visual checks would provide enhanced protection beyond the basic sight and sound separation.
The Department is mindful of agency concerns regarding cost, feasibility, and preservation of State law prerogatives. The final standard affords facilities and agencies flexibility in devising an approach to protecting youth. Compliance may be achieved by (1) Confining youth to a separate unit, (2) transferring youth to a facility within the agency that enables them to be confined to a separate unit, (3) entering into a cooperative agreement with an outside jurisdiction to enable compliance, or (4) ceasing to confine youth in adult facilities as a matter of policy or law. Agencies may, of course, combine these approaches as they see fit.
The Department has decided not to incorporate into the standards for adult prisons and jails the JJDPA requirements that apply to juveniles who are
The high degree of compliance with the JJDPA indicates that the incentives and penalties under the Act are operating successfully to ensure that juveniles who are tried as juveniles are not intermingled with adults except under the narrow circumstances the JJDPA allows. As discussed above, the purposes of the two statutes are different: The JJDPA aims to protect youth and discourage delinquency, whereas PREA is more narrowly limited to preventing sexual abuse. Thus, only a portion of the requirements that States must fulfill in order to receive JJDPA grants is relevant to protecting youth from sexual abuse. The Department concludes that to import such requirements in a piecemeal manner could risk confusion and would not materially increase the protection of youth in the juvenile justice system.
The standard contained in the proposed rule (numbered as §§ 115.14, 115.114, 115.214, and 115.314) prohibited cross-gender pat-down searches in juvenile facilities, but did not impose a general ban in other facilities. The proposed standard did, however, require agencies to exempt from non-emergency pat-down searches those inmates who have suffered prior cross-gender sexual abuse while incarcerated. That provision attempted to address the possibility that an inmate who has experienced prior sexual abuse would experience a cross-gender pat-down search as particularly traumatizing, even if the search was conducted properly.
The proposed standard also prohibited cross-gender strip searches absent an emergency situation or when conducted by a medical practitioner, and required documentation for cross-gender strip searches.
Recognizing that transgender inmates may be traumatized by genital examinations, the proposed standard prohibited examining a transgender inmate to determine genital status, unless genital status is unknown, in which case such an examination would be conducted in private by a medical practitioner. The proposed standard also required facilities to minimize opposite-gender viewing of inmates as they shower, perform bodily functions, or change clothes. The standard provided an exception for such viewing where incidental to routine cell checks.
The proposed standard also required agencies to train security staff in properly conducting cross-gender pat-down searches, and searches of transgender inmates, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
The most significant change in this standard is the inclusion of a ban on cross-gender pat-down searches of female inmates in adult prisons and jails and in community confinement facilities, absent exigent circumstances. To facilitate compliance, most facilities will have three years to comply. Recognizing that this requirement may be more difficult for smaller facilities to implement, facilities with a rated capacity of less than 50 inmates are provided five years in which to implement the ban. The final standard also clarified that women's access to programming or out-of-cell opportunities should not be restricted to comply with this provision. In addition, the final standard requires facilities to document all cross-gender searches of female inmates.
The final standard retains the general rule against cross-gender strip searches and body cavity searches and clarifies that “body cavity searches” means searches of the anal or genital opening. The exception for medical practitioners has been retained; the emergency exception has been replaced with an exception for “exigent circumstances” to be consistent with similar changes from “emergency” to “exigent” throughout the final standards.
The final standard imposes a complete ban on searching or physically examining a transgender or intersex inmate for the sole purpose of determining the inmate's genital status. Rather, if the inmate's genital status is unknown, it may be determined during conversations with the inmate, by
The final standard retains the requirement that each facility implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in the case of emergency (now reworded as “exigent circumstances”), or when such viewing is incidental to routine cell checks. The final standard removes “by accident” from the list of exceptions, and adds a requirement that staff of the opposite gender announce their presence when entering an inmate housing unit.
The final standard retains the ban on cross-gender pat-down searches for all residents in juvenile facilities, and narrows the exceptions to the ban to include only exigent circumstances.
A number of advocates strongly recommended that, at a minimum, the final standard prohibit cross-gender pat-down searches of women. Citing a 1999 study conducted by the National Institute of Corrections, advocates suggested that numerous States currently ban cross-gender pat-down searches of female inmates. A handful of commenters recommended that such a ban be phased in over a period of two or three years to ease the transition.
In general, agency commenters supported the proposed standard as written regarding cross-gender searches. Several State correctional agencies remarked that prohibiting cross-gender pat-down searches of female inmates was feasible, but that it would be difficult to extend a cross-gender ban to male inmates. Other agency commenters stated that the training requirement would address any problems with cross-gender searches.
Commenters noted that gender-based requirements could implicate laws that bar discrimination in employment on the basis of sex. Of these commenters, most expressed concern regarding the possibility of a standard that prohibited both male-on-female pat-down searches and female-on-male cross-gender pat-down searches. A smaller number of commenters expressed similar concerns with regard to the possibility of a standard that prohibited only male-on-female searches. A larger number, however, expressed confidence that a ban on cross-gender pat-down searches of female inmates could be implemented in a manner that would not violate employment laws. Several correctional agency commenters observed that requiring same-gender pat-down searches of female inmates, except in exigent circumstances, is already an accepted practice in adult prisons and jails.
Multiple agency commenters expressed concern that a complete prohibition on cross-gender pat-down searches could violate collective bargaining agreements, which affect staff assignments, if the prohibition prevented staff of a particular gender from retaining a particular assignment.
Both advocacy and agency commenters strongly criticized the exemption from cross-gender pat-down searches for inmates who have suffered documented prior cross-gender sexual abuse while incarcerated. Commenters expressed concern that inmates who avail themselves of the exemption would be labeled and ostracized, and would possibly be putting themselves at greater risk for further abuse. Commenters expressed doubt that inmates would be willing to reveal their sexual abuse history in such a manner, which would likely become known to a significant number of staff and inmates if only victims of prior abuse were exempted from cross-gender pat-down searches. A number of former inmates also expressed skepticism that requests for exemptions would actually be honored.
Pat-down searches are a daily occurrence in corrections settings and, when performed correctly, require staff to have intimate bodily contact with inmates. Although most pat-down searches are conducted legitimately by conscientious staff, it can be difficult to distinguish between a pat-down search conducted for legitimate security purposes and one conducted for the illicit gratification of the staff person, which would constitute sexual abuse.
Female inmates are especially vulnerable owing to their disproportionate likelihood of having previously suffered abuse. A BJS survey conducted in 2004 found that 42 percent of female State prisoners and 28 percent of female Federal prisoners reported that they had been sexually abused before their current sentence, as compared to 6 percent of male State prisoners and 2 percent of male Federal prisoners. A BJS survey of jail inmates, conducted in 2002, found that 36 percent of female inmates reported sexual abuse prior to incarceration, compared to 4 percent of male inmates.
Most staff sexual abuse of female inmates is committed by male staff. The BJS National Inmate Survey found that 71.8 percent of female prisoners who were victims of sexual abuse by staff reported that the staff perpetrator was male in every instance, compared to 9.3 percent who reported that the staff perpetrators were exclusively female.
An analysis of allegations reported by BOP inmates to BOP's Office of Internal Affairs, conducted by the Department's Office of the Inspector General (OIG), provides further indication of vulnerability of female inmates to sexual abuse at the hands of male staff. OIG found that, from fiscal year 2001 through 2008, 45.6 percent of all allegations of criminal cross-gender sexual abuse committed by BOP staff were lodged by female prisoners, even though women made up less than 7 percent of the BOP population.
A thorough pat-down search requires staff to engage in intimate touching of the inmate's clothed body, including the breasts, buttocks, and genital regions. Given that female inmates are significantly more likely to be sexually abused by male officers than by female officers, the Department determined that it would be prudent, as a prophylactic measure to decrease the risk of sexual abuse, to prohibit the necessarily intimate touching that occurs during routine cross-gender pat-down searches and that may inadvertently contribute to the development of a sexualized environment within a facility. A ban on cross-gender pat-down searches of female inmates, absent exigent circumstances, is consistent with effective corrections policy, as evidenced by the fact that a significant number of State and local corrections systems already abide by such a restriction, as discussed below.
Currently, as a matter of law or policy, most State prison systems do not conduct cross-gender pat-down searches of female inmates, absent exigent circumstances. At the request of the Department's PREA Working Group, the National Institute of Corrections (NIC) conducted a survey of State corrections systems and found that at least 27 States ban the practice, and that it is common practice in several other States for male officers to perform pat-down searches of female prisoners only under exigent circumstances. While comparable data from jails are unavailable, representatives of twelve large jail agencies who attended a PREA listening session convened by the Department all stated that they do not permit cross-gender pat-down searches of females. The Department is not aware of any cases successfully challenging the practice of banning only cross-gender pat-down searches of female prisoners, despite the widespread prevalence of these restrictions.
The Department believes that laws that prohibit employment discrimination on the basis of sex pose no obstacle to the implementation of this standard. Rather, the prohibition of cross-gender pat-down searches of female inmates can (and must) be implemented in a manner consistent with Federal laws prohibiting sex discrimination in employment, to ensure that implementation has only a
Notably, female inmates make up a very small proportion of the total number of incarcerated individuals.
Title VII of the Civil Rights Act of 1964 states that “it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of * * * sex * * * where * * * sex * * * is a bona fide occupational qualification [“BFOQ”] reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. 2000e–2(e)(1).
To establish a BFOQ defense, a facility must show that a gender-based job qualification is related to the essence or central function of the facility, and that the qualification is reasonably necessary to the normal operations of the facility.
Sex-based assignment policies in correctional facilities often impose only a
Facilities and agencies should strive to implement this provision in a manner that has a
It is important to note that the standard prohibiting cross-gender pat-down searches does not, in and of itself, create or establish a BFOQ defense to claims of sex discrimination in employment. If a correctional facility cannot implement this standard in a manner that imposes only a
Female-preference sex-based employment assignments in correctional facilities can meet the BFOQ standard if such assignments are reasonably necessary to the normal operation of the particular facilities at which they are used. This is a high standard. For example, one agency used its history of rampant sexual abuse of female prisoners to justify a BFOQ and designate 250 corrections officer and residential unit officer positions in the housing units of State female prisons as “female only.” The facially discriminatory plan, which affected a significant number of male officers, was permissible because sex was a BFOQ for these particular facilities based on the facilities' histories.
However, female-preference sex-based staffing polices do not meet the high standard necessary to establish a BFOQ defense without a high correlation between sex and ability to perform a particular position.
In addition, the final standard allows all facilities with more than 50 beds three years from the effective date of the PREA standards for implementation, and five years for facilities smaller than 50 beds. This extended time frame provides facilities of all sizes and security levels with ample opportunity to develop and implement a practice that will protect female prisoners without undue burden on the operations of the facility. Furthermore, to the extent that agencies want to increase their percentage of female staff to facilitate compliance with the standards, agencies can take advantage of natural attrition to recruit and hire additional female staff without terminating male staff. Most agencies will be able to implement the ban in a
The Department has chosen not to include in the final standard a similar prohibition on female staff conducting pat-down searches of male inmates. The Department concludes that the benefit of prohibiting cross-gender pat-down searches of male inmates is significantly less than the benefit of prohibiting cross-gender pat-down searches of female inmates, whereas the costs of the former are significantly higher than the costs of the latter. A ban on cross-gender pat-down searches only of female prisoners does not violate the Equal Protection Clause of the Fourteenth Amendment because male and female prisoners are not similarly situated with respect to bodily searches. Male inmates are far less likely than female inmates to have a history of traumatic sexual abuse and are less likely to experience the retraumatization that may affect female inmates due to a cross-gender pat-down search.
With regard to cost, the Department reaffirms its assessment, as stated in the proposed rule, that a ban on cross-gender pat-down searches of male inmates would impose significant financial costs and could limit employment opportunities for women. The correctional population remains overwhelmingly male: 88 percent of jail inmates and 93 percent of prison inmates are men. Correctional staff, by contrast, are considerably more balanced by sex: according to BJS data, 25 percent of Federal and State correctional officers were female as of 2005, and 28 percent of correctional officers in local jails were female as of 1999.
To be sure, in adopting a one-way ban, the Department does not suggest that male inmates are less likely to have experienced cross-gender sexual abuse while incarcerated than female inmates. In the most recent BJS survey, male inmates were somewhat more likely to report having experienced staff sexual misconduct than female inmates (in prisons, 2.9 percent vs. 2.1 percent; in jails, 2.1 percent vs. 1.5 percent), and were about as likely as female inmates to report that the perpetrator was always of the opposite sex (in prisons, 68.8 percent vs. 71.8 percent; in jails, 64.3 percent vs. 62.6 percent).
The experience of BOP, which has not prohibited cross-gender pat-down searches, is illustrative. As noted above, female inmates lodged 45.6 percent of all allegations of criminal cross-gender sexual abuse committed by BOP staff, even though less than 7 percent of the BOP population was female. Unlike a majority of State correctional agencies, BOP allowed male correctional staff to perform pat-down searches of female inmates, which may explain why BOP experienced a gender imbalance in allegations that was not shared nationwide. Indeed (as also noted above), according to the OIG report, BOP officials believed that pat-down searches were the most common source of allegations of sexual misconduct against male staff members.
The final rule does not include a similar restriction on cross-gender pat-down searches of female detainees in lockups due to the smaller size, limited staffing numbers, lack of data on incidence of sexual abuse in these institutions, and minimal number of comments directed at lockups. In addition, a pat-down search of a lockup detainee is often conducted by the same police officer who performed a similar search of the detainee upon arrest in the field. Therefore, it would be impractical to impose different search rules once the officer and detainee reach the lockup doors. While recognizing that a blanket restriction would be unworkable, the Department encourages lockups to avoid cross-gender pat-down searches of female detainees, to the extent feasible.
Finally, the Department has removed the provision that mandated a specific exemption from cross-gender pat-down searches for inmates who have suffered documented prior cross-gender sexual abuse while incarcerated. The prohibition of cross-gender pat-down searches of female inmates largely obviates the need for this exemption, and the Department concludes that the potential benefits of retaining the exemption only for male inmates are
The percentage of staff-on-resident victimization that involves female staff and male residents is much higher than the analogous percentage in adult facilities. A recent BJS survey indicated that 92 percent of all youth reporting staff sexual misconduct were males reporting victimization exclusively by female staff, compared to 65 percent in adult prisons and 58 percent in jails.
Many advocates urged the Department to prohibit examinations of transgender and intersex inmates, even by medical professionals, solely to determine genital status. Such examinations can be highly traumatic, commenters asserted, whereas the information regarding genital status can be obtained by questioning the person or by review of medical files. Commenters noted that transgender and intersex juveniles are particularly likely to be traumatized by such examinations.
The final standard does not include a provision allowing individual inmates to state a preference for the gender of their searcher, because such requests have the potential to be arbitrary and disruptive to facility administration. Rather, the Department believes that the concerns that prompted such a proposal can be addressed by properly assigning (or re-assigning) transgender and intersex inmates to facilities or housing units that correspond to their gender identity, and not making housing determinations based solely on genital status. Agencies should also recognize that the proper placement of a transgender inmate may not be a one-time decision, but may need to be reevaluated to account for a change in the status of the inmate's gender transition. For example, an inmate who is initially assigned to a male facility or unit may subsequently merit a move to a female facility or unit (or vice versa) following hormone treatment or surgery. Finally, searches of both transgender and intersex inmates at intake, before a housing determination has been made, may present special challenges. In such cases, facilities should make individual assessments of inmates who may be transgender or intersex and consult with the inmate regarding the preferred gender of the staff member who will perform the search.
The final standard does include additional safeguards to protect transgender and intersex inmates from examinations solely to determine genital status. Such targeted examinations will rarely be warranted, as the information can be gathered without the need for a targeted examination of a person's genitals. Accordingly, the final standard states that, if an inmate's genital status is unknown, a facility should attempt to gain the information by speaking with the inmate or by reviewing medical records. In the rare circumstances where a facility remains unable to determine an inmate's genital status, the Department recognizes that the facility may have to conduct a medical examination. Any such medical examination, however, should be conducted as part of a regular medical examination or screening that is required of or offered to all inmates. Transgender and intersex inmates should not be stigmatized by being singled out for specific genital examinations.
Some agency commenters expressed concern that privacy screens would be an unnecessary expense, and others feared that such screens would create blind spots and therefore security risks. Other commenters approved of privacy screens as a cost-effective means of protecting inmates' privacy.
The Department is sensitive to cost concerns and clarifies that the rule is not intended to mandate the use of privacy screens. Rather, privacy screens may be a safe and cost-effective way to address privacy concerns in certain facilities.
The standard contained in the proposed rule (numbered as §§ 115.15, 115.115, 115.215, and 115.315) governed the accommodation of inmates with disabilities and inmates with limited English proficiency (LEP). The proposed standard required that agencies develop methods to ensure that inmates who are LEP, deaf, or disabled can report sexual abuse and sexual harassment to staff directly, and that agencies make accommodations to convey sexual abuse policies orally to inmates with limited reading skills or visual impairments. The proposed standard allowed for the use of inmate interpreters in exigent circumstances.
The final rule revises this standard to be consistent with the requirements of relevant Federal civil rights laws: Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101, 12131
The final standard requires an agency to take appropriate steps to provide inmates with disabilities an equal opportunity to participate in and benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under Title II of the ADA.
The final standard clarifies that the category of “inmates with disabilities” includes, for example, inmates who are deaf or hard of hearing, those who are blind or have low vision, and those with intellectual, psychiatric, or speech disabilities. It specifies that agencies shall provide access to interpreters when necessary to ensure effective communication with inmates who are deaf or hard of hearing, consistent with the ADA and its implementing regulations. The standard clarifies that such interpreters shall be able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
Similarly, with respect to inmates who are LEP, the final standard requires agencies to take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment, consistent with the requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d
Further, the final standard specifies that an agency cannot rely on inmate interpreters, inmate readers, or other types of inmate assistants “except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate's safety, the performance of first-response duties under § 115.64, or the investigation of the inmate's allegations.” The quoted phrase replaces “exigent circumstances,” which has been removed in light of the final rule's definition of that term as “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” § 115.5.
The Department emphasizes that the requirements in this standard are not intended to relieve agencies of any preexisting obligations imposed by the ADA, the Rehabilitation Act of 1973, or the meaningful access requirements set forth in Title VI of the Civil Rights Act of 1964 and Executive Order 13166. The Department continues to encourage all agencies to refer to the relevant statutes, regulations, and guidance when determining the extent of their obligations.
The ADA requires State and local governments to make their services, programs, and activities accessible to individuals with all types of disabilities.
Similar requirements apply to correctional and detention facilities that are federally conducted or receive Federal financial assistance. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, prohibits discrimination against persons with disabilities by entities that receive Federal financial assistance. Discrimination includes denying persons with disabilities the opportunity accorded others to participate in the program or activity, or denying an equal opportunity to achieve the same benefits that others achieve in the program or activity.
Pursuant to Title VI of the Civil Rights Act of 1964 and its implementing
In NPRM Question 17, the Department solicited feedback on whether the standards should require facilities to ensure that inmates with disabilities and LEP inmates be able to communicate with staff throughout the entire investigative and response process. The final standard clarifies that an agency must take appropriate steps to ensure equal opportunity to participate in and benefit from all aspects of its efforts to prevent, detect, and respond to sexual abuse and sexual harassment for inmates with disabilities, and take reasonable steps to ensure meaningful access to inmates who are LEP. These requirements are consistent with agencies' obligations under the ADA and related regulations, and provide sufficient protection to individuals with disabilities and individuals who are LEP.
Under the ADA, the nature, length, and complexity of the communication involved, and the context in which the communication takes place, are factors for consideration in determining which “auxiliary aids and services,” including interpreters, are necessary for effective communication. The ADA title II regulation lists a variety of auxiliary aids and services, including “video remote interpreting,” which may potentially afford effective communication. Under the ADA title II regulation, however, in determining which types of auxiliary aids and services are necessary for effective communication, the public entity is to give primary consideration to the request of individuals with disabilities.
Most correctional commenters who addressed this issue stated that the Department should not require agencies to enter into formal agreements with outside entities to provide the required services, but should allow agencies to determine for themselves whether such an agreement would help ensure compliance. Other correctional commenters noted that such agreements could be beneficial and should be encouraged, in order to ensure adequate communication with LEP inmates; a few suggested such agreements, or attempts to enter into them, should be mandated.
The standard contained in the proposed rule (numbered as §§ 115.16, 115.116, 115.216, and 115.316) prohibited the hiring of anyone who has engaged in sexual abuse in an institutional setting; who has been convicted of engaging in sexual activity in the community facilitated by force, the threat of force, or coercion; or who has been civilly or administratively adjudicated to have engaged in such activity. The proposed standard also required agencies to perform a criminal background check on new hires and to run checks on current employees at least every five years or have in place a system for otherwise capturing such information for current employees. The proposed standard required agencies to ask about previous misconduct in any applications, interviews, or self-evaluations, and provided that material omissions would be grounds for termination. The proposed standard also provided that, unless prohibited by law, the agency must provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
The final standard is largely similar to the proposed standard, but makes several changes. First, the final standard narrows its application to employees who may have contact with inmates, but expands it to include contractors within its scope. Second, the final standard encompasses attempts to engage in improper sexual activity, which is now defined more expansively as sexual activity that is “facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse.” Third, the final standard requires agencies to consider any incidents of sexual harassment in making decisions regarding employees and contractors, and to provide information regarding such incidents to possible future institutional employers unless prohibited by law. Fourth, the final standard clarifies that an agency need only ask applicants about their prior abuse history in applications
The standard contained in the proposed rule (numbered as §§ 115.17, 115.117, 115.217, and 115.317) required agencies to take into account how best to combat sexual abuse when designing or expanding facilities and when installing or updating video monitoring systems or other technology.
The Department is adopting the regulation as proposed.
The standard contained in the proposed rule required agencies responsible for investigating allegations of sexual abuse to adopt an evidence protocol to ensure all usable physical evidence is preserved for administrative or criminal proceedings, based on the Department of Justice's Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” (SAFE Protocol), or similarly comprehensive and authoritative protocols published after 2011.
The proposed standard expanded the NPREC's recommendation by requiring access to exams not only in cases of penetration but whenever evidentiarily or medically appropriate. For example, if an inmate alleges that she was strangled in the course of a sexual assault that did not result in penetration, a forensic exam might provide evidence to support (or refute) her contention.
The proposed standard took into account the fact that some agencies are not responsible for investigating alleged sexual abuse within their facilities and that those agencies may not be able to dictate the conduct of investigations conducted by outside entities. In such situations, the proposed standard required the agency to inform the investigating entity about the standard's requirements with the hope that the investigating entity will look to the standard as a best-practices guideline. In addition, the standard applied to any outside State entity or Department of Justice component that investigates such allegations.
In all settings except lockups, the proposed standard required that the agency offer all sexual abuse victims access to a person either inside or outside the facility who can provide support to the victim. Specifically, the proposed standard required that the agency make available to the victim either a victim advocate from a community-based organization that provides services to sexual abuse victims or a “qualified agency staff member,” defined as a facility employee who been screened for appropriateness to serve in this role and has received education concerning sexual assault and forensic examination issues in general.
The final standard instructs facilities to use a Sexual Assault Nurse Examiner (SANE) or Sexual Assault Forensic Examiner (SAFE) where possible to perform the exams. Facilities in areas where there is not a SANE or SAFE available must document their efforts to provide SAFEs or SANEs and then provide other qualified medical professionals.
The final standard specifies the use of a developmentally appropriate protocol where the victim is a prepubescent minor, and clarifies that the protocol used in adult facilities shall be developmentally appropriate for youth, where applicable.
The final standard also recognizes the unique role of rape crisis center advocates in supporting victims throughout the forensic examination and investigatory interviews. Recognizing that many facilities are in rural areas where there may not be a rape crisis center available or where the rape crisis center may lack the resources to assist the facility, the standard requires an agency to document its efforts to secure advocacy services from a rape crisis center. If it fails to obtain such services in spite of reasonable efforts, it may provide either a qualified agency staff member or a qualified community-based organization staff member. Particularly in rural areas, there often are community-based organizations that, while not focused on rape crisis services, may provide similar social services, such as general counseling services or advocacy, counseling, and supportive services to victims of domestic violence. Individuals from these organizations may not have the training and expertise that individuals from a rape crisis center have to serve victims, but in the absence of available rape crisis services, they may still be a useful source of outside support for victims, some of whom may be reluctant to trust agency staff. In the case of community-based organizations or agency staff, the final standard requires that the staff person serving in the support role be screened for appropriateness and receive education concerning sexual assault and forensic examination issues in general. Ideally, the staff person would receive the same training as that required for victim advocates in the State, which is usually a forty-hour training and is offered by many State sexual assault coalitions, usually several times throughout the year and at a reasonable cost. A list of coalitions is available on the Web site of the Department's Office on Violence Against Women at
To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the final standard requires the agency to request that the investigating entity follow the relevant investigatory requirements set out in the standard.
For lockups, the final standard adds a requirement that if the victim is transported to an outside hospital for forensic examinations and that hospital offers advocacy services, the detainee shall be allowed to use the services to the extent available, consistent with security needs.
Some correctional agencies supported the decision to allow for a qualified staff person, but others expressed concerns over the cost of training and supervising such staff.
(i) 24-hour hotline services providing crisis intervention services and referral;
(ii) accompaniment and advocacy through medical, criminal justice, and social support systems, including medical facilities, police, and court proceedings;
(iii) crisis intervention, short-term individual and group support services, and comprehensive service coordination and supervision to assist sexual assault victims and family or household members;
(iv) information and referral to assist the sexual assault victim and family or household members;
(v) community-based, linguistically and culturally specific services and support mechanisms, including outreach activities for underserved communities; and
(vi) the development and distribution of materials on issues related to the services described in clauses (i) through (v).
With regard to training, the Department encourages agencies to draw upon outside expertise. Even in the absence of local rape crisis centers, each State has a State Sexual Assault Coalition, which may be a useful resource in developing screening tools and training. Many coalitions will be able to provide the forty-hour advocate training for a reasonable cost to facility personnel. A list of coalitions is available on the Web site of the Department's Office on Violence Against Women at
Because lockups do not have on-site medical services, a victim would be taken to the hospital for exams. In § 115.121(d), the final standard includes language specifying that, after reaching the hospital, such victims must have the same access to advocates as other victims, barring any security risks.
The
The final standard contains no substantive changes, although it adds language that makes explicit what was implicit in the proposed standard: “The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.”
The standard contained in the proposed rule required that all employees who have contact with inmates receive training concerning sexual abuse in facilities, including specified topics, with refresher training to be provided on an annual basis thereafter. The proposed standard included all training topics proposed by the NPREC, and added requirements that training be provided on how to avoid inappropriate relationships with inmates, that training be tailored to the gender of the inmates at employees' facilities, that training cover effective and professional communication with LGBTI residents, and that training in juvenile facilities be tailored to the juvenile setting.
The proposed standard required that agencies document that employees understand the training they have received, and that all current employees be trained within one year of the effective date of the PREA standards.
In lockups, the proposed standard, consistent with the NPREC's corresponding standard, did not specify training requirements beyond requiring that the agency train all employees and volunteers who may have contact with lockup detainees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures, and to communicate effectively and professionally with all detainees.
The Department has added language in §§ 115.31(a)(10), 115.131(a)(6), and 115.231(a)(10), and made conforming changes to § 115.331(a)(10), to require relevant staff training in all facilities on laws related to the mandatory reporting of sexual abuse to outside authorities.
The final standard adds sexual harassment to paragraphs (a)(2), (a)(4), (a)(5), and (a)(6), which previously referenced only sexual abuse, and adds “gender nonconforming inmates” to paragraph (a)(9), which previously referenced only LGBTI inmates.
In an effort to reduce the costs associated with providing training, the Department has reduced the required frequency of staff “refresher training” from annual to every two years, while adding a requirement that “refresher information” be provided to staff in the years in which they do not receive training.
The standard contained in the proposed rule mandated that all volunteers and contractors who have contact with inmates be trained on their responsibilities under the agency's sexual abuse and prevention, detection, and response policies and procedures, in recognition of the fact that contractors and volunteers often interact with inmates on a regular, sometimes daily, basis. The level and type of training provided to volunteers and contractors would be based on the services they provide and level of contact they have with inmates; at the very least, all volunteers and contractors who have contact with inmates would be notified of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
With regard to lockups, the proposed standards mandated, in § 115.132, that attorneys, contractors, and any inmates who work in the lockup must be informed of the agency's zero-tolerance policy regarding sexual abuse. (As noted above, § 115.131 governs training of lockup volunteers.)
The final standard adds sexual harassment to the scope of training for volunteers and contractors. For lockups, the final standard removes attorneys from the scope of persons to be notified of the agency's zero-tolerance policy. The proposed standard did not require such notification of attorneys in any other type of facility, and upon reconsideration the Department concludes that the purposes of notification are not served by requiring notification of attorneys in lockups.
The proposed standard required that information about combating sexual abuse be provided to individuals in custody upon intake and that comprehensive education be provided within 30 days of intake in person or through video. In addition, the proposed standard required that agencies ensure that key information is continually and readily available or visible to inmates through posters, inmate handbooks, or other written formats. The proposed standard required annual refresher information, except for community confinement facilities, which were required to provide refresher information only when a resident is transferred to a different facility.
The final standard replaces the requirement that inmates receive annual refresher information with a requirement that inmates receive additional education upon transfer to a different facility to the extent that the policies and procedures of the inmate's new facility differ from those of the previous facility. In addition, juvenile facilities are now required to provide comprehensive education within 10 days of intake, rather than 30 days, which remains the timeframe for other facilities.
The proposed standard required that agencies that conduct their own sexual abuse investigations provide specialized training for their investigators in conducting such investigations in confinement settings, in addition to the general training required for all employees, and that any State entity or Department of Justice component that investigates sexual abuse in confinement settings do the same.
No changes have been made.
The question of whether sexual contact was consensual is a threshold determination in investigating any allegation of sexual abuse between inmates. The investigator is unlikely to have observed direct contact between the victim and alleged abuser, but will need to make this determination based on interviews and the evidence collected. The final standard requires investigators to have specialized training in conducting sexual abuse investigations in confinement settings, including training on techniques for interviewing sexual abuse victims and the evidence required to substantiate a case. Such training will help enable investigators to assess whether sexual contact was abusive. The National Resource Center for the Elimination of
The standard contained in the proposed rule required specialized training, and documentation thereof, for all medical staff employed by the agency or facility. The standard exempted lockups, which usually do not employ or contract for medical staff. The proposed standard also required that any agency medical staff who conduct forensic evaluations receive appropriate training.
The final standard clarifies that medical and mental health care practitioners shall also receive the training mandated for employees under § 115.31 or for contractors and volunteers under § 115.32, depending upon the practitioner's status at the agency. The final standard also adds a requirement that medical staff receive training in how to detect, respond to, and report sexual harassment.
The standard contained in the proposed rule required that prisons, jails, and community confinement facilities screen inmates during intake and during an initial classification process for risk of being sexually abused by other inmates or being sexually abusive toward other inmates. The standard required that such screening be conducted using an objective screening instrument, taking into account a list of enumerated factors, and mandated that blank copies of the screening instrument be made available to the public upon request,
The proposed standard further required that the screening be conducted within 30 days of intake, and required re-screening when warranted. The standard prohibited discipline of inmates who refuse to answer specific questions during the screening process, and required protection of sensitive inmate information.
With regard to juveniles, the proposed standard did not include a timeframe, except to state that the facility should attempt to ascertain such information during intake and periodically throughout the resident's confinement.
The proposed standard did not include a screening requirement for lockups.
Rather than require a screening during intake and again during an initial classification process, the final standard requires an initial intake screening to occur ordinarily within 72 hours of intake in prisons, jails, and community confinement facilities, and requires that the facility reassess the inmate's risk of victimization or abusiveness within a set time period, not to exceed 30 days from the inmate's arrival at the facility, based upon any additional, relevant information received by the facility subsequent to the intake screening. For juvenile facilities, the standard requires the initial screening to occur within 72 hours.
In the list of factors to consider, the requirement to assess whether the inmate is LGBTI has been revised by adding consideration of whether the inmate would be perceived to be so, and whether the inmate is or would be perceived to be “gender nonconforming,” which is defined in § 115.5 as
The final standard eliminates the requirement that a facility's screening instrument be made publicly available, and clarifies that the prohibition on disciplining inmates who refuse to answer screening questions applies only to specific sensitive questions required by the standard.
For lockups, the final standard adds an abbreviated risk screening process for facilities that do not hold detainees overnight, and a more extensive risk screening process for detainees in lockups that do hold inmates overnight.
Agency commenters expressed the concern slightly differently, noting that a large percentage of jail inmates are released within 30 days, and thus 30 days was too long to allow an inmate to wait until an initial classification. Some jail commenters, including the American Jail Association, also expressed concern about conducting screening at intake, when inmates are often under the influence or under great stress. In addition, these commenters stated that a high percentage of those arrested are released directly from the “booking floor” and suggested that a jail intake screening should look similar to those conducted at lockup facilities until a determination has been made that the arrestee will not be released. The National Sheriffs Association, plus several State sheriffs' associations, commented that the standard in the proposed rule would be difficult to implement in a jail. Several commenters suggested that jail booking operations are more similar to processes in lockup facilities than to prison intake.
In order to protect all inmates regardless of when they arrive at a facility or where they are located within the facility, at least minimal information must be collected quickly to inform decisions about where the arrestee should be held awaiting the intake procedure and where he or she will be housed initially.
The Department recognizes that some jail inmates spend limited time in the booking area, at a time when certain information needed for appropriate classification may not be immediately available. However, the brevity of the booking process and the possible lack of background information do not obviate the need to identify potentially vulnerable or abusive individuals and ensure they do not become victims or perpetrators. The final standard addresses jails' concerns by making a clearer distinction between the initial process of collecting risk information upon intake to make provisional decisions about protection and placement, and the subsequent reassessment of the inmate's risk after receiving fuller information.
The final standard uses the term “intake screening” to describe the collecting of information from a person brought to a facility. Facilities should be able to readily obtain the information referenced in the enumerated criteria, and this intake screening can and should occur within 72 hours of the person's arrival at the facility. Facilities are strongly encouraged to conduct the intake screening sooner, to the extent circumstances permit. The ten criteria enumerated in the standard usually will be available through staff observation, direct questioning, or records checks within the 72-hour timeframe.
Inmates who are unable to post a bond or are held subsequent to other warrants or court orders usually remain in custody pending a court appearance. The final standard requires that inmates who remain in custody undergo a more extensive classification process. Within a set period of time, not to exceed 30 days, the facility is to reassess the inmate's risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening. This requirement recognizes that information relevant to the risk and classification needs will become available as staff interview, assess, and observe the inmate, and as the facility receives information from other agencies and sources.
These revisions take into account the differences between—and among—prisons and jails, as well as the fact that information relevant to a more comprehensive inmate classification may not be immediately accessible. The Department recognizes that the time limits in this standard imply that some inmates will be screened twice, some once, and some—hopefully very few—not at all. These variations are inevitable when crafting a system with sufficient structure and flexibility to ensure that classifications are both effective and efficient.
The Department disagrees with the commenter that it is inappropriate to inquire about the resident's prior sexual victimization or abusiveness. First, this information is important in informing housing and programming decisions with the goal of keeping residents safe from abuse. Second, as discussed above, appropriately trained staff can make the inquiries in a professional and sensitive manner. Third, the standard makes clear that residents are not required to provide this information and may not be punished for refusing to provide this information.
Advocates proposed adding a list of known indicators of vulnerability, including mental and physical disability, young age, slight build, nonviolent history, identification as LGBTI, gender nonconforming appearance, and prior victimization. Some also proposed requiring lockups to ask detainees about their own perception of vulnerability and to provide heightened protection to detainees who perceive themselves to be vulnerable.
Few agency commenters responded to the question; those that did mostly supported requiring lockups to administer some type of screening instrument or process. Some remarked that lockups were so small, and lengths of stay so brief, that the standards should not mandate a screening, and that any such standard should allow maximum flexibility.
In lockups that are not used to house detainees overnight, before placing any detainees together in a holding cell, staff must consider whether, based on the information before them, a detainee may be at a high risk of being sexually abused and, when appropriate, must take necessary steps to mitigate any such danger to the detainee.
In lockups that are utilized to house detainees overnight, all detainees must be screened to assess their risk of being sexually abused by other detainees or sexually abusive toward other detainees, and all detainees must be asked about their own perception of vulnerability. The screening process in such lockups shall also consider—to the extent that the information is available—whether the detainee has a mental, physical, or developmental disability; the age of the detainee; the physical build and appearance of the detainee; whether the detainee has previously been incarcerated; and the nature of the detainee's alleged offense and criminal history. In an effort to minimize the number of screening requirements in lockups, given that there may be no privacy to ask individuals screening questions, the standard does not explicitly include identification as LGBTI, gender nonconforming appearance, or prior victimization in its list of known indicators of vulnerability. However, these indicators may be ascertainable through other listed factors, such as physical build and appearance, and the detainee's own perception of risk.
The standard contained in the proposed rule required that agencies use the risk screening process to inform housing, bed, work, education, and program assignments with the goal of keeping inmates determined to be at risk of sexual victimization separate from inmates at risk of being sexually abusive. The proposed standard provided that agencies shall make individualized determinations about how to ensure the safety of each inmate, and required that, in placing transgender or intersex inmates, the agency consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems. The proposed standard also provided that transgender and intersex inmate placement be reassessed at least twice each year, and that such inmates' own views as to their safety be given serious consideration.
For community confinement facilities, the proposed standard generally mirrored the standard for prisons and jails, but omitted the requirement that transgender and intersex residents be reassessed twice per year.
For juvenile facilities, the proposed standard required the use of the risk screening process and additional information in order to determine appropriate placement to keep the residents safe from sexual abuse. The proposed standard also limited the use of isolation for purposes of protecting residents, and provided that LGBTI residents may not be placed in a particular housing location based solely on such identification.
The standard in the proposed rule did not apply to lockups.
The final standard makes two changes applicable to prisons, jails, and community confinement facilities. First, transgender and intersex inmates must be given the opportunity to shower separately from other inmates. Second, the final standard prohibits placing LGBTI inmates in a dedicated unit or facility solely on the basis of LGBTI identification unless such placement is pursuant to a legal requirement for the purpose of protecting such inmates.
The final standard makes multiple changes for juvenile facilities. First, to avoid duplication and confusion, the final standard for juvenile facilities no longer enumerates placement factors but requires the facility to use the types of information obtained pursuant to § 115.341(c) to make housing, bed, program, education, and work assignments for residents, with the goal of keeping all residents safe and free from sexual abuse. Second, the final standard contains added protections for residents who are isolated for purposes of protection. During any period of isolation, agencies shall not deny residents daily large-muscle exercise or any legally required educational programming or special education services. Residents in isolation shall receive daily visits from a medical or mental health care clinician, and shall have access to other programs and work opportunities to the extent possible. Third, agencies may not consider a resident's LGBTI identification as a predictor of likelihood of being sexually abusive. Fourth, the final standard replaces the requirement that agencies make individualized determinations about the placement of transgender and intersex residents with language identical to corresponding language in the standard for adult facilities: That agencies determine, on a case-by-case basis, housing and programming assignments for transgender and
Several commenters remarked that these designated units can be successful only in certain circumstances. Some asserted that the unit operated by the Los Angeles County Jail for gay male and transgender inmates, specifically mentioned in the discussion of this standard in the proposed rule, is the exception rather the norm. These commenters stated that inmates in this unit retain access to substantial programming—often more than what is available in the general population—and that the jail has a sufficiently large gay male and transgender population to fill multiple wings, thus allowing these inmates to be segregated without experiencing isolation. The commenters suggested that successfully maintaining a unit based solely on sexual orientation or gender identity requires a demonstrated need, sufficient facility size and LGBTI inmate population, a basic level of cultural competence among staff, and an institutional commitment to safety and fairness toward these populations.
Many commenters proposed language that would allow such units only under narrowly defined circumstances, such as where placement is based on a finding made by a judge or outside expert or is pursuant to a consent decree, legal settlement, or legal judgment—an exception apparently designed to encompass the Los Angeles County Jail.
Other commenters supported including the NPREC's recommendation that the standard prohibit such units entirely; one law professor disputed the notion that the Los Angeles County Jail was effective at protecting inmates or otherwise worthy of emulation.
Section 115.43 in the proposed rule provided that inmates at high risk of sexual victimization, or who are alleged to have suffered sexual abuse, may be placed in involuntary segregated housing only after an assessment of all available alternatives has been made—and only until an alternative housing arrangement can be implemented. The proposed standard also specifically defined the assessment process, specified required documentation, and set a presumptive timeframe for placement in protective custody. In addition, the proposed standard provided that, to the extent possible, involuntary protective custody should not limit access to programming.
Section 115.66 in the proposed rule (now renumbered as § 115.68) provided that any use of segregated housing to protect an inmate who is alleged to have suffered sexual abuse shall be subject to the requirements of § 115.43.
The standard contained in the final rule clarifies that inmates shall not be placed involuntarily in protective custody, unless an assessment of available alternatives has been made, and a determination has been made that no other alternative means of separating the inmate from the abuser exist. The final standard adopts a 24-hour timeframe to make this initial assessment.
The final standard also adds a requirement that if the facility restricts access to programs, privileges, education, or work opportunities, it must document the opportunities that have been limited, the duration of the limitation, and the reasons for such limitations.
Finally, the final standard shortens the presumptive time limit for involuntary protective custody from 90 days to 30 days, and shortens the timeframe for periodic reviews for the need for continued separation from 90 days to 30 days.
In the proposed rule, §§ 115.22(a), 115.222(a), and 115.322(a) stated that agencies should maintain or attempt to enter into memoranda of understanding or other agreements with an outside public entity or office that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials pursuant to §§ 115.51, 115.251, or 115.351 unless the agency enables inmates to make such reports to an internal entity that is operationally independent from the agency's chain of command, such as an inspector general or ombudsperson who reports directly to the agency head. The proposed standards also required agencies to maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide inmates with confidential emotional support services related to sexual abuse. Finally, agencies were required to maintain copies of agreements or documentation showing attempts to enter into agreements.
Sections 115.51, 115.151, 115.251, and 115.351 required agencies to enable inmates to privately report sexual abuse and sexual harassment and related misconduct. Specifically, this standard required that agencies provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to sexual abuse. The proposed standard also required that agencies make their best efforts to provide at least one way for inmates to report abuse or harassment to an outside governmental entity that is not affiliated with the agency or that is operationally independent from agency leadership, such as an inspector general or ombudsperson.
The proposed standard also mandated that agencies establish a method for staff to privately report sexual abuse and sexual harassment of inmates.
Finally, the proposed standard required that juvenile residents be provided access to tools necessary to make written reports, whether writing implements or computerized reporting.
The final standard requires prisons, jails, and juvenile facilities to provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials. By contrast, the proposed standard required only that facilities make their “best efforts” to provide such access, and did not allow a private entity to serve this function. By expanding the outside reporting option to include private entities, the final standard allows an agency, in its discretion, to utilize a private rape crisis center or similar community support service for these purposes, as appropriate.
The final standard also specifies that the outside entity must allow the victim to remain anonymous upon request.
Consistent with these revisions, the final standard no longer requires agencies to maintain or attempt to enter into agreements with an outside public entity that is able to receive and immediately forward inmate reports of sexual abuse. Such a requirement is no longer necessary now that agencies are required to provide reporting access to an outside entity, which may be public or private.
In lockups and community confinement facilities, the “best efforts” requirement of the proposed standard has been replaced with a requirement that agencies inform detainees or residents of at least one way to report abuse or harassment to a public or private entity or office that is not part of the agency.
The standard no longer contemplates the use of an internal entity that is operationally independent from the agency's chain of command. If the agency designates a government office to accept reports for the purposes of this standard, it must be outside of and completely independent from the correctional agency.
Finally, for inmates detained solely for civil immigration purposes in jails, prisons, and juvenile facilities operated by States, localities, and BOP, the final standard requires that the facility also provide information on how to contact relevant consular officials and relevant officials at the Department of Homeland Security.
Some correctional agencies argued that requiring an outside reporting mechanism would constitute an unfunded mandate. Commenters stated that local support services may not be available to county jails in rural areas, and that staffing a hotline can be expensive. They also asserted that BJS data demonstrate that sexual abuse is less likely in rural jails, and that they would be paying for a service to respond to an event that rarely occurs. One correctional agency stated that an internal hotline to a facility investigator should be sufficient given improvements in staff training and increased focus on combating sexual abuse within facilities.
The Department does not believe that this will impose a significant cost burden. The final standard does not require a hotline or a formal agreement between the facility and any specific outside entity. Rather, the agency need only establish an avenue for inmates to make contact with an outside entity—whether public or private—that can receive and forward reports of sexual abuse or sexual harassment to the agency. For example, an agency may choose to provide access to an external reporting hotline, or may provide a method for inmates to send confidential correspondence to an external entity. The standard thus provides flexibility for a facility to choose or develop the most appropriate external reporting mechanism to fit its needs.
To be sure, the Department recognizes the value of internal hotlines and encourages their use. Indeed, the final standards require multiple internal ways for inmates to privately report sexual abuse and sexual harassment. However, the Department agrees with advocates and inmates who argued that an external reporting mechanism is necessary to address situations in which victims do not feel safe reporting to anyone inside the correctional system.
The standard requires lockups and community confinement facilities to inform detainees or residents of at least one way to report abuse or harassment to a public or private entity or office that is not part of the agency, but does not require them affirmatively to provide detainees and residents with access, as is the case for prisons, jails, and juvenile facilities. Unlike adult prisons and jails and juvenile facilities, lockups typically hold inmates briefly before release or transfer to a jail, and community confinement facility residents usually are able to leave the facility during the day for various reasons and generally have greater access to community resources. Hence, the populations of the latter facilities will generally have greater access to make contact outside these of these facilities.
A number of inmates and advocates suggested that some victims would not report an incident if the facility would learn of the report, even if the victim's identity was not revealed, and therefore requested complete confidentiality as an option. In contrast, many correctional agencies expressed concern that such an option would prevent them from learning about problems within their facilities and would preclude thorough investigations into allegations, in tension with the goals of a zero-tolerance policy.
One commenter recommended that, in case agency officials are not responsive, the outside entity should have the option to take information to outside law enforcement if deemed in the victim's best interest and should be allowed not to disclose that information to the agency.
With regard to reporting to law enforcement, nothing precludes an outside reporting entity from reporting allegations of abuse to the relevant law enforcement authorities or other entities, as appropriate. The outside entity should also have the discretion to report specific incidents at different administrative levels within a facility. If, for example, the facility investigator is the subject of an inmate report, the outside entity should forward that report to the facility superintendent or other agency administrator, instead of to the investigator.
Correctional agencies that responded to this question were generally opposed to a reporting option that would prohibit an official investigation. Agencies stressed the need to adequately investigate any potential abuse in order to ensure inmate safety and compliance with other standards. Some stated that a restricted reporting option would conflict with the goals of a zero-tolerance policy; others suggested it could conflict with State laws requiring mandatory reporting. One commented that a restricted reporting option would be contrary to the intent of the Prison Litigation Reform Act, which seeks to encourage issues to be brought to the attention of prison administrators before litigation occurs. Advocacy groups generally did not focus on Question 23, but many advocate comments recommended that the standards return to the NPREC's proposed language that allowed inmates to request confidentiality or permit confidential reports “to the extent allowable by law.” One law student stated that inmates should be entitled to separate their need for medical care from the investigation process, particularly if the inmate believes an investigation is unlikely to positively affect the situation or may lead to danger.
The cost of a restricted reporting policy, however, is that the institution cannot take steps to prevent the recurrence of the abuse. The dynamics of sexual abuse in correctional facilities make it quite likely that an abuser will subsequently abuse other inmates. An agency that learns of such abuse is far better equipped to prevent future incidents.
Given the competing costs and benefits of restricted reporting policies, the Department chooses not to include in the standards a requirement to adopt a restricted reporting option. Instead, provisions in other standards are designed to mitigate the risks that inmates may be too fearful to come forward. The final standard requires each prison, jail, and juvenile facility to provide multiple ways for inmates to report sexual abuse and sexual harassment, including at least one external reporting mechanism. Anonymous reports must be accepted, but all reports will be forwarded to the facility for investigation. These requirements will enable some inmates who are reluctant to report to facility authorities some ability to find support, and may lead them to reconsider their initial decision not to come forward. In addition, this system should ensure that the facility is made aware of allegations of abuse, while protecting the identities of those inmates who would not come forward if they were not permitted to report anonymously. Finally, §§ 115.82 and 115.83 provide that facilities may not condition any medical or mental health care on the victim's cooperation with any ensuing investigation. A victim who needs care but is reluctant to name the perpetrator of the abuse—or who may not even admit that the injury occurred as result of a sexual assault—must be offered the same level of care as any other inmate presenting similar injuries. Given these requirements, the Department has determined it is not necessary to include a restricted reporting option.
Paragraph (a) of the standard contained in the proposed rule governed the amount of time allotted inmates to file a request for administrative remedies (typically known as grievances) following an incident of
Paragraph (b) of the proposed standard governed the amount of time that agencies have to resolve a grievance alleging sexual abuse before it is deemed to be exhausted, in order to ensure that the agency is allotted a reasonable amount of time to investigate the allegation, after which the inmate may seek judicial redress. Paragraph (b) required that agencies take no more than 90 days to resolve grievances alleging sexual abuse, unless additional time is needed, in which case the agency may extend up to 70 additional days. The proposed standard did not count time consumed by inmates in making appeals against these time limits.
Paragraph (c) required that agencies treat third-party notifications of alleged sexual abuse as a grievance or request for informal resolution submitted on behalf of the alleged inmate victim for purposes of initiating the agency administrative remedy process. The proposed standard required reports of sexual abuse to be channeled into the normal grievance system (including requests for informal resolution where required) unless the alleged victim requested otherwise. This requirement exempted reports from other inmates in order to reduce the likelihood that inmates would attempt to manipulate staff or other inmates by making false allegations. The proposed standard permitted agencies to require alleged victims to perform properly all subsequent steps in the grievance process, unless the alleged victim of sexual abuse is a juvenile, in which case a parent or guardian could continue to file appeals on the juvenile's behalf unless the juvenile does not consent.
Paragraph (d) governed procedures for dealing with emergency claims alleging imminent sexual abuse. The proposed standard required agencies to establish emergency grievance procedures resulting in a prompt response—unless the agency determined that no emergency exists, in which case the grievance could be processed normally or returned to the inmate, as long as the agency provides a written explanation of why the grievance does not qualify as an emergency. To deter abuse, the proposed standard provided that an agency could discipline an inmate for intentionally filing an emergency grievance where no emergency exists.
The final standard includes numerous changes.
First, the final standard requires that agencies not impose any deadline on the submission of a request for administrative remedies regarding sexual abuse incidents.
Second, the final standard no longer requires agencies to treat third-party notifications of alleged sexual abuse as a grievance or request for informal resolution submitted on behalf of the alleged inmate victim for purposes of initiating the agency administrative remedy process. Rather, the final standard requires agencies to allow third parties to submit grievances on behalf of inmates. If a third party submits such a request on behalf of an inmate, the facility may require as a condition of processing the request that the alleged victim agree to have the request submitted on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process. The final standard also provides that third parties, including fellow inmates, staff members, family members, attorneys, and outside advocates, shall be permitted to assist inmates in filing requests for administrative remedies relating to allegations of sexual abuse.
Third, the final standard revises the emergency-grievance provision, which allows an inmate to seek an expedited response where the inmate alleges that he or she is subject to a substantial risk of imminent sexual abuse. As in the proposed standard, the final standard requires an initial agency response within 48 hours and a final decision within five days. However, the standard no longer requires that, if the agency determines that no emergency exists, it must process the grievance as a non-emergency grievance.
The final standard forbids agencies from requiring inmates to seek informal resolution of a grievance alleging sexual abuse as a prerequisite to submitting a formal request for administrative remedies.
The final standard provides that agencies shall ensure that inmates may submit requests for administrative remedies without needing to submit the request to the alleged abuser, and that no request will be referred to an alleged abuser.
The final standard states expressly that an agency that lacks administrative procedures to address inmate grievances regarding sexual abuse need not create such procedures in order to comply with the standard.
An inmate in an agency that lacks any administrative remedies may proceed to court directly. Accordingly, this standard is inapplicable to agencies that lack administrative remedy schemes. Likewise, if an agency exempts sexual abuse allegations from its administrative remedies scheme, an inmate who alleges sexual abuse may proceed to court directly with regard to such allegations, and this standard would not apply. Some agencies exempt sexual abuse allegations from their remedial schemes entirely, such as the West Virginia Division of Corrections,
The 90-day extension provision received significant criticism. Advocates asserted that obtaining the documentation required by the proposed standard to justify such an extension would be difficult at best and often impossible. Many correctional agency commenters agreed with advocates that the 90-day extension was unworkable. One State correctional agency commented that such a requirement might well subject its counselors and mental health providers to complaints and lawsuits for failing to provide requested documentation in a timely manner.
The Department considered revising the standard to allow a lengthy time limit, such as 180 days, but concluded that no interest is served by allowing the filing of grievances up until that point but not beyond. Importantly, one key time limit will still apply: The statute of limitations. Federal suits filed against State officials under 42 U.S.C. 1983 are governed by the general State personal injury statute of limitations,
Paragraph (b)(2) has been added to make clear that paragraph (b)(1) applies only to those portions of a grievance that actually involve allegations of sexual abuse. In other words, if an agency applies time limits to grievances that do not involve allegations of sexual abuse, inmates may not circumvent those timelines by including such allegations in a grievance that also alleges sexual abuse.
The Department added paragraph (d)(4) in the final standard to address comments that the proposed standard, as written, could be interpreted to mean that a grievance might not be considered exhausted if a correctional agency adopted the 90/160-day time limits but nevertheless failed to timely respond to a grievance alleging sexual abuse. Paragraph (d)(4) makes clear that, when an agency fails to respond to an administrative grievance alleging sexual abuse according to its guidelines, an inmate may consider that failure a denial at the corresponding level of administrative review, including at the final level (in which case, the inmate may consider the absence of a timely response as the final agency decision for purposes of exhaustion).
Conversely, several commenters supported a requirement that agencies treat any notification of alleged sexual assault as a grievance, including notifications by other inmates. These commenters stated that complicated administrative processes could frustrate the ability of victims of sexual abuse to exhaust their remedies and seek redress in court. Commenters noted that difficulties in filing and exhausting grievances were particularly acute for complaints involving sexual abuse. Further, many commenters (including correctional agency commenters) noted that juveniles may be more susceptible to peer pressure or other factors that might dissuade them from pursuing a valid grievance alleging sexual abuse. These commenters expressed concern over the provision in the proposed standard that allowed agencies not to treat a notification as a grievance if the alleged victim requests that it not be processed as such.
With regard to juvenile facilities, the final standard requires that agencies accept third-party grievances submitted by parents or guardians regardless of the juveniles' acquiescence. This revision addresses concerns that juveniles may be particularly reluctant to agree to the filing of a grievance by a third party. Because parents and guardians represent reliable sources for such complaints, it is appropriate to require their complaints to be treated as grievances, even where the juvenile requests otherwise.
The Department is sympathetic to agency concerns that the requirement in the proposed standard was impractical. In light of other changes to the proposed standard, there is less need to require that a third-party notification be treated as a grievance. By requiring that agencies not impose a deadline on submitting an administrative grievance alleging sexual abuse, allowing third parties to submit grievances on an inmate's behalf, allowing third parties to assist inmates in filing their own grievances, and requiring agencies to implement procedures to avoid the submission or referral of complaints to their subjects, the Department has made it significantly easier for sexual abuse grievances to be filed by the victim or by someone acting expressly on the victim's behalf. As a result of these changes, the Department concludes that it is no longer worthwhile to require agency staff to file grievances whenever they hear of an allegation.
However, the Department declines to revise the standard to disallow disciplinary measures entirely. Agencies should have the discretion to discipline inmates who are not victims of sexual abuse but who attempt to circumvent agency rules by making intentionally frivolous allegations. Such allegations not only waste agency time and resources but also may make correctional officials more dubious about allegations of sexual abuse in general, which could lead to valid allegations receiving insufficient attention.
In the standard contained in the proposed rule, paragraphs (b) and (c) of §§ 115.22, 115.222, and 115.322 required agencies to maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that could provide inmates with confidential emotional support services related to sexual abuse. The proposed standard also required agencies to maintain copies of agreements or documentation showing attempts to enter into agreements.
Sections 115.53, 115.253, and 115.353 required agencies to provide inmates access to outside victim advocacy organizations for emotional support services related to sexual abuse, similar to the NPREC's recommended standard. The proposed standard required that such communications be as confidential as possible consistent with agency security needs. In addition, the proposed standard required that juvenile facilities be instructed specifically to provide residents with access to their attorneys or other legal representation and to their families, in recognition of the fact that juveniles may be especially vulnerable and unaware of their rights in confinement. The proposed standard mandated that juvenile facilities provide access that is reasonable (and, with respect to attorneys and other legal representation, confidential) rather than unimpeded.
The final standard includes several small changes.
First, the language from § 115.22(b) and (c) and its counterparts has been moved into § 115.53(c) and the latter's counterparts. Only one substantive change has been made in this area: The final standard requires all juvenile agencies to maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide residents with emotional support services related to sexual abuse. The proposed standard had exempted juvenile agencies that were legally required to provide such services to all residents.
Second, the final standard includes, in the standards for prisons/jails and juveniles, access to immigrant services agencies for persons detained solely for civil immigration purposes in State, local, and BOP facilities.
Third, where the proposed standard required that the facility enable reasonable communications with such organizations “as confidential as possible, consistent with agency security needs,” the final standard requires that such communication be “in as confidential a manner as possible.” The facility is also required to inform the victim of the extent to which communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
The Department encourages agencies to establish multiple avenues for inmate victims of sexual abuse to contact external victim services agencies. While not ensuring optimal privacy, phones may provide the best opportunity for inmates to seek help in a timely manner. Privacy concerns may be allayed through other methods of contacting outside organizations, such as allowing confidential correspondence, opportunities for phone contact in more private settings, or the ability of the inmate to make a request to contact an outside victim advocate through a chaplain, clinician, or other service provider.
The standard contained in the proposed rule required facilities to establish a method to receive third-party reports of sexual abuse and to distribute publicly information on how to report sexual abuse on behalf of an inmate. In addition, the proposed standard required juvenile facilities to distribute such information to residents' attorneys and parents or legal guardians.
The final standard includes the proposed requirements and adds sexual harassment to its scope. The final standard also references “agency” instead of “facility.”
The standard contained in the proposed rule required that staff be trained and informed about how to properly report incidents of sexual abuse while maintaining the privacy of the victim. The proposed standard also required that staff immediately report (1) Any knowledge, suspicion, or information regarding incidents of sexual abuse that take place in an institutional setting, (2) any retaliation against inmates or staff who report abuse, and (3) any staff neglect or violation of responsibilities that may have contributed to the abuse. The proposed standard also required that the facility report all allegations of sexual abuse to the facility's designated investigators, including third-party and anonymous reports.
The final standard includes several small changes. In paragraph (a), the staff reporting requirements have been expanded to add sexual harassment, in addition to sexual abuse. This paragraph no longer refers to incidents that occur in an “institutional setting,” but rather refers to incidents that occurred in a “facility, whether or not it is part of the agency.” In §§ 115.61(e), 115.261(e), and 115.361(f), the final standard requires that the facility report all allegations of sexual harassment, as well as sexual abuse, to the facility's designated investigators.
In paragraph (b) of §§ 115.61, 115.161, and 115.261, and in paragraph (c) of § 115.361, the Department has clarified the exception that allowed staff to reveal information relating to a report of sexual abuse to “those who need to know, as specified in agency policy, to make treatment, investigation and other security and management decisions.” The Department has replaced “those who need to know” with “to the extent necessary” in order to clarify that staff should not share information relating to a sexual abuse report unless necessary for the limited purposes listed in the rule.
In §§ 115.61(c) and 115.261(c), the final standard requires medical and mental health practitioners to inform inmates and residents of “the limitations of confidentiality,” as well as of their duty to report.
For precision and consistency, the Department has qualified “victim” with “alleged” in §§ 115.61(d), 115.161(c), 115.261(d), and 115.361(d).
Finally, the Department has made several changes to § 115.361(e)(3). The final standard no longer requires that courts retaining jurisdiction over a juvenile be notified of any allegations of sexual abuse. Rather, it requires that, where a court retains jurisdiction over an alleged juvenile victim, the juvenile's attorney or other legal representative of record be notified within 14 days of receiving the allegation.
The Department has added this standard, which did not appear in the proposed rule, in order to make explicit what was implicit in the proposed rule: That an agency must act immediately to protect an inmate whenever it learns that he or she faces a substantial risk of imminent sexual abuse.
The standard contained in the proposed rule (numbered as §§ 115.62, 115.162, 115.262, and 115.362) required that a facility that receives an allegation that one of its inmates was sexually abused at another facility must inform that other facility of the allegation within 14 days. The proposed standard also required the facility receiving the information to investigate the allegation.
The Department has made several small changes to this standard. In order to ensure that facilities report allegations promptly, the Department has removed reference to the 14-day timeframe in paragraph (a) and has added a new paragraph (b) requiring that such notification be provided as soon as possible, but no later than 72 hours after receiving the allegation. The final standard no longer requires that notification be in writing.
In paragraph (a), the Department has removed the word “central” from the phrase, “the head of the facility or appropriate central office of the agency.” In the paragraph formerly designated as (b), now designated as (d), the Department has replaced “central office” with “agency office.”
The Department intends for all facilities, including community confinement facilities, to report allegations of sexual abuse occurring at any other facility. Accordingly, in § 115.263, the Department has replaced the phrase “while confined at another community corrections facility” with “while confined at another facility.”
In § 115.163, the Department has replaced the phrase “while confined at another facility or lockup” with “while confined at another facility,” to clarify that the definition of facility includes lockups.
The Department does not expect facilities to be able to identify the appropriate investigative staff, especially at facilities operated by other agencies. Where a facility is uncertain about whom to contact, it may simply contact the facility head.
The standard contained in the proposed rule (numbered as §§ 115.63, 115.163, 115.263, and 115.363) set forth staff first responder responsibilities, recognizing that staff must be able to adequately counsel victims while maintaining security and control over the crime scene so that any physical evidence is preserved until an investigator arrives. Specifically, the standard required that the first responder separate abuser and victim, seal and preserve any crime scene, and request that the victim not take any actions that could destroy physical evidence. Where the first staff responder is not a security staff member, the proposed standard required that the responder be required to request that the victim not take any actions that could destroy physical evidence, and then notify security staff.
The Department has made several clarifying changes to this standard. The Department has removed the phrase “within a time period that still allows for the collection of physical evidence” from paragraph (a) and added language to paragraphs (a)(3) and (a)(4) stating: “If the abuse occurred within a time period that still allows for the collection of physical evidence.”
The Department has replaced “seal and preserve any crime scene” in paragraph (a)(2) with “preserve and protect any crime scene,” which is more
Finally, the Department has clarified that the standard applies after learning “of an allegation” that an inmate was sexually abused, and, as elsewhere in the final standards, has qualified “victim” with “alleged.”
The standard contained in the proposed rule (numbered as §§ 115.64, 115.164, 115.264, and 115.364) required a coordinated response among first responders, medical and mental health practitioners, investigators, and facility leadership whenever an incident of sexual abuse occurs.
The final standard requires the development of a written institutional plan to coordinate responses.
A paragraph within a standard contained in the proposed rule (numbered as §§ 115.65(d), 115.165(d), 115.265(d), and 115.365(d)) prohibited agencies from entering into or renewing any collective bargaining agreements or other agreements that limit the agency's ability to remove alleged staff abusers from contact with victims pending an investigation.
The final rule breaks out this provision as a separate standard, and strengthens the standard by (1) covering the agency's ability to limit contact with any inmate, not only alleged victims; and (2) extending the period of time within which the agency may remove staff from contact with victims to include the pendency of a determination of whether and to what extent discipline is warranted. In addition, the final standard extends to any government agency negotiating collective bargaining agreements on the correctional agency's behalf, in recognition of the fact that correctional agencies often do not conduct their own collective bargaining.
The final standard adds language to clarify that this standard is not intended to restrict agreements that govern the conduct of the disciplinary process or that address whether a no-contact assignment that is imposed pending the outcome of an investigation shall be expunged from or retained in the staff member's personnel file following a determination that the allegation of sexual abuse is not substantiated.
This standard does not mandate that an agency take any specific action against alleged staff abusers; rather, it requires that the agency not tie its hands by entering into a collective bargaining agreement that limits the agency's ability to remove a staff member from a post that involves contact with inmates, as a prophylactic measure, while the agency determines what happened and what measure of discipline is warranted. An agency may determine, consistent with the standard, that it is best to decide on a case-by-case basis, taking into account the gravity and credibility of the allegations, whether to place a staff member in a no-contact status pending such determinations. The Department notes that placing staff accused of sexual misconduct or other serious inmate abuse on no-contact status is a common practice in many facilities and is consistent with best practices. This is particularly true in the context of juvenile justice facilities, where it would be extremely unusual to permit staff accused of serious resident abuse to continue supervising residents pending the outcome of an administrative assessment and, if appropriate, an internal or criminal investigation.
This standard is limited in scope in that it does not purport to govern agreements regarding the conduct of the disciplinary process, as long as such agreements are consistent with §§ 115.72, 115.172, 115.272, and 115.372, which forbid imposition of a standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated, and with §§ 115.76, 115.176, 115.276, and 115.376, which generally govern disciplinary sanctions for staff and which provide that termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse. In addition, the standard does not restrict entering into agreements that address whether and in what form the record of the staff member's no-contact assignment will be retained in the employee's personnel file if the allegations against the employee are not substantiated.
The Department declines to impose further restrictions on the use of arbitration in discipline determinations. What is crucial is establishing proper ground rules to govern the disciplinary process, pursuant to §§ 115.72, 115.172, 115.272, and 115.372, and §§ 115.76, 115.176, 115.276, and 115.376, and ensuring that the agency has the ability to take prophylactic action while the disciplinary process runs its course. With those conditions in place, the Department does not believe that the final standards need restrict the use of arbitrators to review factual findings or disciplinary determinations in order to ensure that the interests of inmates are protected.
The standard contained in the proposed rule (numbered as §§ 115.65, 115.165, 115.265, and 115.365) required that the agency protect all inmates and staff from retaliation for reporting sexual abuse or for cooperating with sexual abuse investigations, in recognition of the fact that retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a serious concern in correctional facilities. The proposed standard required agencies to adopt policies that help ensure that persons who report sexual abuse are properly monitored and protected, including but not limited to providing information in training sessions, enforcing strict reporting policies, imposing strong disciplinary sanctions for retaliation, making housing changes or transfers for inmate victims or abusers, removing alleged staff or inmate abusers from contact with victims, and providing emotional support services for inmates or staff who fear retaliation.
The proposed standard also required that agencies monitor the conduct and treatment of inmates and staff who have reported sexual abuse or cooperated with investigations for at least 90 days to see if there are changes that may suggest possible retaliation by inmates or staff, and act promptly to remedy any such retaliation. In addition, the proposed standard required that monitoring continue beyond 90 days if the initial monitoring conducted during the initial 90-day period indicated concerns that warranted further monitoring.
In paragraph (a), the final standard specifies that an agency shall “establish a policy” to protect against retaliation, “and shall designate which staff members or departments are charged with monitoring retaliation.”
In paragraph (c), the final standard clarifies that the agency must monitor the conduct and treatment of inmates who have been reported to have suffered sexual abuse, in addition to inmates and staff who have reported sexual abuse directly. The final standard adds language in §§ 115.67(d), 115.267(d), and 115.367(d) requiring that monitoring of inmates include periodic status checks.
In addition, the final standard specifies that an agency need not continue monitoring if it determines that an allegation is unfounded.
The final standard also includes various clarifying changes. In paragraph (b), the phrase “including housing changes or transfers” has been changed to “such as housing changes or transfers,” and in §§ 115.67(c), 115.267(c), and 115.367(c), “including any inmate disciplinary reports, housing or program changes” has been changed to “[i]tems the agency should monitor include any inmate disciplinary reports * * *” In §§ 115.67(c), 115.267(c), and 115.367(c), the list of actions that should be considered possible evidence of retaliation now includes examples of retaliation against staff.
Commenters offered a range of suggestions for limiting the scope of monitoring requirements. Some correctional agencies recommended that monitoring not be required where allegations are determined to be unfounded; another agency recommended that monitoring not be required either for unfounded or unsubstantiated allegations. Some agency commenters suggested that monitoring be required only of persons who “materially” cooperate with investigations, and recommended clarifying that the provision applies to inmates who report abuse during their present term of incarceration. Another agency would limit the monitoring requirement to the inmate or staff member who made the report, or, if the report was made by a third party, to the alleged victim if he or she cooperated with the investigation.
First, the Department has removed the requirement that agencies automatically monitor all individuals who cooperate with an investigation. Instead, the final standard requires agencies to take appropriate measures to protect any individual who has cooperated with an investigation and expresses a fear of retaliation. The final standard retains the requirement to monitor inmates and staff who have reported sexual abuse, and adds a requirement to monitor victims who have been reported to have suffered sexual abuse.
Second, the Department has added language terminating the agencies' obligation to monitor if the agency determines that the allegation is unfounded. Monitoring remains appropriate where an agency has classified an allegation as “unsubstantiated”—which means, as defined in § 115.5, that the investigation produced insufficient evidence to enable the agency to make a final determination as to whether or not the event occurred.
The Department understands the concern that identifying individuals for monitoring may raise confidentiality issues, but believes that this risk can be managed. The Department encourages agencies, in developing their policies, to limit the number of staff with access to the names of individuals under monitoring and to be mindful of situations in which a staff member who poses a threat of retaliation may also be entrusted with monitoring responsibilities.
The Department does not find it necessary to specify that a new incident of retaliation must restart the 90-day clock, as the final standard requires agencies to continue monitoring beyond 90 days if the initial monitoring indicates a continuing need. The Department trusts that agencies will recognize that an incident of retaliation indicates a continuing need for monitoring. Finally, in light of the requirement that agencies continue monitoring beyond 90 days if the initial monitoring indicates a continuing need, as well as agencies' concerns about the cost and burden of a monitoring requirement, the Department declines to revise the standard to require agencies to monitor for eight months.
The standard contained in the proposed rule required that agencies that conduct their own investigations do so promptly, thoroughly, and objectively. The proposed standard required investigations whenever an allegation of sexual abuse is made, including third-party and anonymous reports, and prohibited the termination of an investigation on the ground that the alleged abuser or victim is no longer employed or housed by the facility or agency. The proposed standard required that investigators gather and preserve all available direct and circumstantial evidence.
The proposed standard required that investigators be trained in conducting sexual abuse investigations in compliance with §§ 115.34, 115.134, 115.234, and 115.334.
To ensure an unbiased evaluation of witness credibility, the standard required that credibility assessments be made objectively rather than on the basis of the individual's status as an inmate or a staff member.
In addition, the proposed standard required that all investigations, whether administrative or criminal, be documented in written reports, which must be retained for as long as the alleged abuser is incarcerated or employed by the agency, plus five years.
The final standard contains several small changes.
In paragraph (a), the duty to investigate allegations promptly, thoroughly, and objectively has been extended to sexual harassment in addition to sexual abuse.
In paragraph (e) of §§ 115.71, 115.171, and 115.271, and paragraph (f) of § 115.371, the final standard provides that no agency shall require an inmate who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
In paragraph (f) of §§ 115.71, 115.171, and 115.271, and paragraph (g) of § 115.371, the final standard provides that administrative investigations should endeavor to determine whether staff actions or failures to act “contributed to” the abuse, rather than “facilitated to” as in the proposed standard.
In paragraph (i) of §§ 115.71, 115.171, and 115.271, the final standard provides that the duty to retain documents applies to “all written reports referenced in paragraphs (f) and (g),” rather than “such investigative records” as in the proposed standard. The final standard for juvenile facilities makes a similar change in § 115.371(j).
In paragraph (j) of the standard for juvenile facilities, the final standard allows for a shorter retention period for written reports regarding abuse committed by residents where the retention for the time period otherwise required by the standard is prohibited by law.
The Department does not believe that the requirement of maintaining the records generated pursuant to paragraphs (f) and (g) will prove overly burdensome, especially in light of the clarification in the final standard that only the written reports documenting investigations need be retained.
Finally, the Department lacks the authority to determine whether these records should be subject to public inspection under freedom of information laws, which will depend upon the relevant laws of the jurisdiction in which the custodian of the records is located.
The standard contained in the proposed rule required that agencies not impose a standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse are substantiated.
The final standard encompasses allegations of sexual harassment.
The standard contained in the proposed rule required that, upon completion of an investigation into an inmate's allegation that he or she suffered sexual abuse in an agency facility, the agency must inform the inmate whether the allegation was deemed substantiated, unsubstantiated, or unfounded. If the agency itself did not conduct the investigation, the proposed standard required that the agency request the relevant information from the investigating entity in order to inform the inmate. The proposed standard further provided that, if an inmate alleges that a staff member committed sexual abuse, the agency must inform the inmate whenever (1) The staff member is no longer posted in the inmate's unit, (2) the staff member is no longer employed at the facility, (3) the staff member has been indicted on a charge related to the reported conduct, or (4) the indictment results in a conviction. The proposed standard did not apply to allegations that have been determined to be unfounded, and did not apply to lockups, due to the short-term nature of lockup detention.
The final standard adds a requirement that all such notification or attempted notification must be documented. The final standard also expands the requirement to inform the inmate if his or her abuser is indicted or convicted to apply where the abuser is a fellow inmate. In addition, the final standard clarifies that the agency's duty to report to an alleged victim terminates if the victim is released from the agency's custody, and terminates with regard to notifications regarding staff reassignments, departures, indictments, or convictions if the allegation is determined to be unfounded.
The standard contained in the proposed rule provided that staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies, and that termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual touching.
The proposed standard further provided that sanctions be commensurate with the nature and circumstances of the acts committed, the staff member's disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories. If a staff member is terminated for violating such policies, or if a staff member resigns in lieu of termination, the proposed standard required that a report be made to law enforcement agencies (unless the activity was clearly not criminal) and to any relevant licensing bodies.
The final standard provides that termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse, not only sexual touching.
This standard requires that termination be the “presumptive” but not the mandatory sanction for certain types of sexual abuse in recognition of the fact that disciplinary sanctions must be determined on a case-by-case basis. Establishing termination as a presumption places a heavy burden on the staff person found to have committed the abuse to demonstrate why termination is not the appropriate sanction. This presumption also requires that termination should be the rule for the referenced types of sexual abuse, with exceptions made only in extraordinary circumstances.
The final rule adds a new standard requiring that an agency or facility prohibit from contact with inmates any contractor or volunteer who engages in sexual abuse. The standard also requires that any incident of sexual abuse be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies. With regard to any other violation of agency sexual abuse or sexual harassment policies by a contractor or volunteer, the new standard requires that the facility take appropriate remedial measures and consider whether to prohibit further contact with inmates.
The wording of this standard takes into account that contractors and volunteers are not employees and thus are not subject to termination or discipline as those terms are typically construed. However, the consequences set forth in this standard parallel the consequences for staff members, with discretion left to agencies and facilities to take appropriate remedial measures commensurate with the nature of the violation.
The standard contained in the proposed rule (numbered as §§ 115.77, 115.177, 115.277, and 115.377) mandated that inmates be subject to disciplinary sanctions pursuant to a formal disciplinary process following a finding that the inmate sexually abused another inmate. The standard mandated that sanctions be appropriate for the offense, taking into account the inmate's history and whether any mental disabilities or mental illness contributed to the behavior.
As with sanctions against staff, the proposed standard required that sanctions against inmates be fair and proportional, taking into consideration the inmate's actions, disciplinary history, and sanctions imposed on other inmates in similar situations. The proposed standard also required that the disciplinary process take into account any mitigating factors, such as mental illness or mental disability, and that it consider whether to incorporate therapy, counseling, or other interventions that might help reduce recidivism.
The proposed standard provided that inmates shall not be disciplined for sexual contact with staff without a finding that the staff member did not consent to such contact. The standard further provided that inmates may not be punished for making good-faith allegations of sexual abuse, even if the allegation is not substantiated following an investigation. Finally, the standard provided that an agency must not consider consensual sexual contact between inmates to constitute sexual abuse.
With regard to lockups, which generally do not hold inmates for prolonged periods of time and thus do not impose discipline, the proposed standard required a referral to the appropriate prosecuting authority when probable cause exists to believe that one lockup detainee sexually abused another. If the lockup is not responsible for investigating allegations of sexual abuse, the standard required that it inform the responsible investigating entity. The proposed standard also applied to any State entity or Department of Justice component that is responsible for investigating sexual abuse in lockups.
The final standard makes clear that it does not limit an agency's ability to prohibit sexual activity among inmates, or to discipline inmates for violating such a prohibition.
However, exempting from discipline non-consensual activity that did not involve force or threat of force would tilt too far in the opposite direction. Such a rule would exempt from discipline, for example, a large and muscular inmate who did not use or threaten force but who coerced a physically slight staff member into sexual activity by trapping her in a confined space. Likewise, an inmate who drugged a staff member and sexually abused her while she was unconscious would be immune from discipline. Finally, it is doubtful that the language suggested by advocates would eliminate the risk of false allegations by staff members. A staff member who would falsely allege that he or she did not consent to sexual activity with an inmate could, if this language were adopted, instead falsely assert that the inmate had threatened to use force. For these reasons, the Department rejects this proposed change.
In consideration of these concerns, § 115.378 is now titled “Interventions and disciplinary sanctions for residents.” Further, the Department has reworded § 115.378 to make clear that the standard does not require any particular type of intervention or discipline, and that juvenile agencies retain discretion to determine the most appropriate response. When agencies choose to impose discipline, the sanction must be commensurate with the nature of the offense and must take into consideration other relevant factors.
The Department did not incorporate a time limit into the final standard, recognizing that agencies must balance the well-being of sexually abusive youth with that of other youth in its custody. In rare cases, a facility may find it necessary to isolate youth beyond 72 hours due to safety and security concerns. However, isolated youth remain subject to the protections discussed above. The Department encourages facilities to minimize their reliance on isolation for juveniles to the greatest extent possible.
The standard in the proposed rule required that inmates be asked about any prior history of sexual victimization and abusiveness during intake or classification screenings. The proposed standard further required that inmates be offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening. The proposed standard also limited the inquiry required in jails by not requiring an inquiry about prior sexual abusiveness.
The proposed standard did not apply to lockups, given the relatively short time that they are responsible for inmate care, or to community confinement facilities, which do not undertake a similar screening process.
The final standard no longer requires that facilities make these inquiries during intake screenings. Rather, the Department has replaced this language with a reference to the screening conducted pursuant to §§ 115.41 and 115.341. The Department has also revised the standard to require that inmates be offered a follow-up meeting when screening indicates that they have experienced prior sexual victimization or perpetrated sexual abuse, rather than only when the inmate discloses such information. Finally, for clarity, the Department has changed “follow-up reception” to “follow-up meeting.”
Finally, some juvenile justice agencies asserted that the 14-day timeframe under §§ 115.81 and 115.381 is inconsistent with the requirement under §§ 115.83 and 115.383 that facilities conduct a mental health evaluation of all known abusers within 60 days of learning of such abuse history.
The requirement that prisons provide
In light of the importance of providing mental health support to youth who have reported sexual abusiveness—a point underscored by numerous commenters who requested that the 14-day timeframe for a follow-up meeting be reduced for juveniles—the final standard does not exempt any juvenile facilities from the medical and mental health care requirements for abusers.
In addition, a State sheriffs' association raised concerns that inquiring about an inmate's sexual history in a public setting, where intake screenings are currently conducted, would violate the inmate's privacy. The association expressed apprehension that facilities would be required to build private screening rooms, which the association suggested would raise issues of cost and space.
Sections 115.41, 115.141, 115.241, and 115.341 do not require that intake screenings occur in private rooms. However, the Department expects that screening will be conducted in a manner that is conducive to eliciting complete and accurate information.
The standard contained in the proposed rule required that victims of sexual abuse receive free access to emergency medical treatment and crisis intervention services.
The Department has added a requirement for prisons, jails, community confinement facilities, and juvenile facilities that victims of sexual abuse while incarcerated be offered timely information about and timely access to emergency contraception, in accordance with professionally accepted standards of care.
In addition, the Department has made four clarifying changes. First, the Department has specified that sexually transmitted infections prophylaxis must be offered where “medically” appropriate, to clarify that the assessment of whether to offer prophylaxis should be based solely on a medical judgment. Second, the final standard specifies that such prophylaxis must be offered in accordance with professionally accepted standards of care. Third, the final standard clarifies that a victim cannot be charged for any of the services described in this standard, or required to name the abuser as a condition of receipt of care. Finally, the Department has qualified the word “access” with “timely” to underscore the time-sensitive nature of emergency contraception and sexually transmitted infections prophylaxis and to ensure that drugs are provided within their window of efficacy.
The standard contained in the proposed rule required that victims of sexual abuse receive access to ongoing medical and mental health care, and that abusers receive access to care as well. The standard required facilities to offer ongoing medical and mental health care consistent with the community level of care for as long as such care is needed.
The standard also required that known inmate abusers receive a mental health evaluation within 60 days of the facility learning that the abuse had occurred.
In addition, with respect to victims, the standard required that agencies provide, where relevant, pregnancy tests and timely information about and access to all pregnancy-related medical services that are lawful in the community. The Department also proposed requiring the provision of timely information about and access to sexually transmitted infections prophylaxis where appropriate.
The Department has expanded the duty to provide non-emergency medical and mental health care to victims of sexual abuse by requiring care for individuals who were victimized in any prison, jail, lockup, or juvenile facility rather than only for those who were victimized “during their present term of incarceration.” However, the Department has clarified that such care need not be “ongoing” but need be provided only “as appropriate.”
The final standard adds a requirement that victims of sexual abuse while incarcerated be offered tests for sexually transmitted infections as medically appropriate, and clarifies that information about pregnancy-related medical services must be “comprehensive” and access to pregnancy-related medical services must be “timely.”
For clarity, the Department has replaced the reference to access to “all pregnancy-related medical services that are lawful in the community” with “all lawful pregnancy-related medical services.”
The Department has also added language, identical to a provision in § 115.82, that requires that all treatment services under this standard be made available without financial cost to the victim and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
Finally, the Department has made several clarifying changes to the requirement that facilities conduct mental health evaluations of inmate abusers and offer treatment when deemed appropriate: The final standard specifies that facilities need only “attempt” to conduct mental health evaluations; indicates that this clause applies only to inmate-on-inmate abusers; and no longer requires that only “qualified” mental health practitioners be permitted to determine whether it is appropriate to offer treatment. The final standard also clarifies the wording of references to sexual abuse victims.
In particular, a group of women's rights organizations requested that a woman who becomes pregnant as a result of sexual abuse while incarcerated be provided with comprehensive and unbiased counseling on options, including information on how pregnancy will affect the conditions of her confinement and information on the full spectrum of her parental rights and responsibilities.
These commenters also requested that the standards specify that an incarcerated rape victim be able to terminate her pregnancy at no financial cost, and that counseling include an explanation that she will not have to pay for her medical care, whether she chooses to terminate the pregnancy or carry to term. In addition, these commenters requested that facilities be required to protect from coercion and retaliation women who accuse staff members of rape and then choose to carry to term, and that the standards specify that facilities must provide transportation for abortion care, distance and cost notwithstanding.
Finally, the commenters criticized as excessively vague the proposed standard's requirement that pregnant
The Department believes that the commenters' requests regarding the provision of specific information are encompassed by the requirement that facilities provide “comprehensive” information about all lawful pregnancy-related medical services, and that additional guidance on transportation is unnecessary given the requirement that victims be provided “timely access” to all lawful pregnancy-related medical services—which necessarily includes transportation. Finally, while the Department appreciates commenters' concern about the risk of coercion or retaliation by staff members accused of sexual abuse in cases where a victim becomes pregnant, the Department believes that the protections against retaliation provided in §§ 115.67, 115.167, 115.267, and 115.367 are adequate to address this risk.
The Department agrees that mental health care for victims should be the priority and accordingly has provided more detail on the minimum standards of care for victims than for abusers. The standard specifies that evaluation and treatment of sexual abuse victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody. The standard further requires that facilities provide victims of sexual abuse with medical and mental health services consistent with the community level of care.
Several commenters took the opposite position, and recommended extending the timeframe or removing it all together. A State correctional agency observed that this requirement might pose difficulties for smaller agencies, which may lack in-house staff capable of conducting a mental health evaluation; as a compromise, the commenter recommended requiring agencies to arrange for an evaluation within 60 days and to conduct the evaluation as soon as practicable thereafter.
One State correctional agency suggested that conducting an evaluation within 60 days is unrealistic due to a State law requirement that, where a determination that an inmate is a sex offender is made pursuant to procedures established by the State department of corrections, such determination must be made following an adversarial hearing conducted by a licensed attorney serving as an administrative hearing officer.
The 60-day clock starts only upon the agency's “learning of such abuse history”; thus, where an agency is required to hold a hearing in order to determine whether an inmate is an abuser, the treatment need not be offered until the determination is made.
The Department notes that the standard only requires that a known inmate-on-inmate or resident-on-resident abuser be offered treatment where deemed appropriate by a mental health practitioner. The standard does not require the agency to compel participation.
Finally, in light of the unfortunate reality that sexual harassment is pervasive among inmates and residents, the Department believes that a requirement to provide mental health evaluations and treatment for all inmates and residents who have committed sexual harassment would impose an excessive burden upon facilities.
The standard contained in the proposed rule set forth requirements for sexual abuse incident reviews, including when reviews should take place and who should participate. Unlike the sexual abuse investigation, which is intended to determine whether the abuse occurred, the sexual abuse incident review is intended to evaluate whether the facility's policies and procedures need to be changed in light of the alleged incident. The Department proposed that a review occur at the conclusion of every investigation of an alleged incident, unless the investigation concludes that the allegation was unfounded. The Department further required the review to consider: (1) Whether changes in policy or practice are needed to improve the prevention, detection, or response to sexual abuse incidents similar to the alleged incident; (2) whether race, ethnicity, sexual orientation, gang affiliation, or group dynamics in the facility played a role; (3) whether physical barriers in the facility contributed to the incident; (4) whether staffing levels need to be changed in light of the alleged incident; and (5) whether more video monitoring is needed.
In order to ensure that an incident review results in timely action, the final standard includes a new paragraph (b) specifying that the review should ordinarily occur within 30 days of the conclusion of the investigation. In the paragraph formerly designated as (b), now designated as (c), the Department has replaced “upper” with “upper-level.” In what was paragraph (c)(2), now (d)(2), the Department has revised the list of factors to be considered during the review by replacing “sexual orientation” with “gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status.” In what was paragraph (c)(6), now (d)(6), “PREA coordinator, if any” has been changed to “PREA compliance manager,” and the Department has clarified that the review team's report must include any determinations made pursuant to paragraphs (d)(1)–(d)(5). In addition, the final standard requires the facility either to implement the review team's recommendations for improvement or document its reasons for not doing so.
The standard contained in the proposed rule specified the incident-based data that each agency is required to collect in order to detect possible patterns and to help prevent future incidents. The Department proposed that the agency be required to collect, at a minimum, sufficient data to answer fully all questions in the most recent revision of the Survey of Sexual Violence (SSV) conducted by BJS. The Department further proposed that the agency collect data from multiple sources (
The final standard includes three small changes. Paragraph (c) now refers to the Department as whole rather than BJS. In paragraph (d), “collect data from multiple sources” has been changed to “maintain, review, and collect data as needed from all available incident-based documents.” In paragraph (f), “calendar” has been added before “year.”
A county juvenile justice agency suggested that this standard would be especially burdensome for smaller juvenile facilities such as group homes and private placement facilities. The commenter remarked that if those facilities are deemed non-compliant with the PREA standards due to an inability to provide data under § 115.387, the agency would likely need to cancel contracts with those facilities in order to protect itself and the county from liability. The commenter suggested that canceling contracts with such facilities would exacerbate difficulties in placing minors ordered removed from parents' custody. Furthermore, the commenter stated, delays could result in longer waits in juvenile detention facilities and in the occupation of beds needed for pre-adjudication minors, and the cost of having to provide more beds long-term would be substantial. Two State correctional agencies objected that the standard would require the agencies to increase or realign staff, without funding to match.
The standard contained in the proposed rule described how the collected data should be analyzed and reported. The Department proposed that agencies be required to use the data to identify problem areas, to take ongoing corrective action, and to prepare an annual report for each facility and for the agency as a whole. In order to promote agency accountability, the proposed standard further mandated that the report compare the current year's data with data from prior years and provide an assessment of the agency's progress in addressing sexual abuse. The proposed standard required that the agency make its report publicly available through its Web site or other means. The proposed standard allowed agencies to redact specific material when publication would present a clear and specific threat to the safety and security of a facility, as long as the nature of the redacted material is indicated.
The Department has reviewed and considered commenters' suggested changes to this standard but has made no substantive changes.
The Department recognizes that the preparation of the report will incur support staff time and effort, but believes that the cost of adding material to the Web site will be minimal and outweighed by the benefits of public accessibility.
The standard contained in the proposed rule provided guidance on how to store, publish, and retain data. The Department proposed that data must be securely retained for at least ten years after the date of initial collection unless Federal, State, or local law requires otherwise. In addition, the proposed standard required that agencies make aggregated data publicly available through their Web sites or other means, after removing all personal identifiers.
The Department has added language to clarify that “sexual abuse data” in paragraph (d) refers to data collected pursuant to §§ 115.87, 115.187, 115.287, and 115.387.
In the proposed rule, the Department declined to resolve how frequently, and on what basis, audits should be conducted. Determining that further discussion was necessary in order to assess these issues, the Department included in the NPRM several questions regarding the nature and scope of audits.
The standard contained in the proposed rule did specify the requirements for an audit to be considered independent. If an agency uses an outside auditor, the proposed standard required that the agency ensure that it not have a financial relationship with the auditor for three years before or after the audit, other than payment for the audit conducted. The proposed standard also specified that the audit may be conducted by an external monitoring body that is part of, or authorized by, State or local government, such as a government agency or nonprofit entity whose purpose is to oversee or monitor correctional facilities. In addition, the proposed standard allowed an agency to utilize an internal inspector general or ombudsperson who reports directly to the agency head or to the agency's governing board.
The proposed standard further stated that the Department will prescribe methods governing the conduct of such audits, including provisions for reasonable inspections of facilities, review of documents, and interviews of staff and inmates, as well as the minimal qualifications for auditors.
The proposed standard provided that an agency shall enable the auditor to enter and tour facilities, review documents, and interview staff and inmates to conduct a comprehensive audit.
Finally, the proposed standard provided that an agency shall ensure that the auditor's final report is published on the agency's Web site if it has one, or is otherwise made readily available to the public.
In the final rule, the Department creates a single, unified auditing system for all facilities, except for lockups that do not hold detainees overnight, such as court holding facilities. The final standard addresses the frequency and scope of audits, required auditor qualifications, audit report contents and findings, audit corrective action plans, the audit appeals process, and the effect of the audit results on the Governor's certification of compliance.
The final standard provides that audits shall be conducted on a three-year cycle, with the first auditing period commencing one year after the effective date of the standards. Each year, the agency shall ensure that at least one-third of each facility type operated by the agency, or by a private organization on behalf of the agency, is audited. During the three-year cycle, the agency shall ensure that each facility operated by the agency, or by a private organization on behalf of the agency, is audited at least once. In some cases, the Department may recommend that an agency conduct an expedited audit if the Department has reason to believe that a particular facility may be experiencing problems relating to sexual abuse. The recommendation may also include referrals to resources that may assist the agency with PREA-related issues.
The Department will develop and issue an audit instrument that will provide guidance on the conduct of and contents of the audit.
The auditor shall review all relevant agency-wide policies, procedures, reports, internal and external audits, and accreditations for each facility type, as well as, at a minimum, a sampling of relevant documents and other records and information for the most recent one-year period. The auditor shall be permitted to request and receive copies of any relevant documents (including electronically stored information), and shall retain and preserve all documentation (such as video tapes and interview notes) relied upon in making audit determinations. Such documentation shall be provided to the Department upon request. The auditor shall interview a representative sample of inmates, staff, supervisors, and administrators, and shall have access to and observe all areas of the audited facilities.
The auditor shall be permitted to conduct private interviews with inmates, and inmates shall be permitted to send confidential information or correspondence to the auditor in the same manner as if they were
The final standard provides that an audit shall be conducted by: (1) A member of a correctional monitoring body that is not part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant State or local government); (2) a member of an auditing entity such as an inspector general's or ombudsperson's office that is external to the agency; or (3) other outside individuals with relevant experience. Thus, the final standard differs from the proposed standard in that it does not allow audits to be conducted by an internal inspector general or ombudsperson who reports directly to the agency head or to the agency's governing board.
Auditors shall be certified by the Department, pursuant to procedures to be developed, including training requirements.
For each standard, the auditor shall determine whether the audited facility reaches one of the following findings: “Exceeds Standard” (substantially exceeds requirement of standard); “Meets Standard” (substantial compliance; complies in all material ways with the standard for the relevant review period); or “Does Not Meet Standard” (requires corrective action). The audit summary shall indicate, among other things, the number of provisions the facility has achieved at each grade level.
A finding of “Does Not Meet Standard” with one or more standards shall trigger a 180-day corrective action period. The auditor and the agency shall jointly develop a corrective action plan to achieve compliance. The auditor shall take necessary and appropriate steps to verify implementation of the corrective action plan, such as reviewing updated policies and procedures or re-inspecting portions of a facility. After the 180-day corrective action period ends, the auditor shall issue a final determination as to whether the facility has achieved compliance with those standards requiring corrective action. If the agency does not achieve compliance with each standard, it may (at its discretion and cost) request a subsequent audit once it believes that it has achieved compliance.
An agency may lodge an appeal with the Department regarding any specific audit finding that it believes to be incorrect. If the Department determines that the agency has stated good cause for a re-evaluation, the agency may commission a re-audit by an auditor mutually agreed upon by the Department and the agency, at the agency's cost. The findings of the re-audit shall be final.
Section 115.501(a) provides that, in determining pursuant to 42 U.S.C. 15607(c)(2) whether the State is in full compliance with the PREA standards, the Governor shall consider the results of the most recent agency audits. Section 115.501(b) provides that the Governor's certification shall apply to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch.
Several comments recommended various hybrid thresholds and timeframes for required audits. Some suggested a combination of “streamlined” audits and full audits, more frequent or less frequent audits depending upon prior audit results or reasons to suspect noncompliance, and different audit timelines for smaller agencies.
Several comments recommended audits only for a random sampling of all facilities, or of facilities not otherwise subject to accreditation. Several comments suggested that all facilities be audited. A number of other comments suggested various hybrid approaches, including: statistical reporting with random audits to confirm data; auditing of all large facilities and random sampling of small facilities; differential auditing cycles for large and small facilities; auditing of all facilities during the first auditing cycle with various triggers or random selection for subsequent audits; or annual internal audits with random sampling for external PREA audits or as requested by the agency.
A comment submitted by former members of the NPREC recommended that all facilities be audited within the first three years to establish a “baseline” that would guide future audits. Performance on the baseline audit would determine when the next regular audit would occur. The members suggested that if an agency or facility's compliance with the standards was determined to exceed 85 percent, the subsequent audit would occur five years later. If compliance was between 50 and 85 percent, the next audit would be in three years, and if compliance was less than 50 percent the next audit would be one year later. Former NPREC members further recommended that a random sample of agencies and facilities receive unscheduled audits after the initial baseline audit. In addition, the members recommended for-cause audits based upon reasons to suspect problems in specific agencies or facilities.
The Department has chosen not to require audits only for cause, as this would make it difficult to determine whether a broad range of facilities are complying with the standards, and would make it harder to assess whether a State is in full compliance with the statute. Under PREA, certification of full compliance by the Governor of a State is necessary in order to avoid a reduction in certain grant funding from the Department, unless the Governor commits to using the amount that otherwise would be forfeited for the purpose of enabling the State to achieve full compliance in future years.
The final standard does incorporate the concept of a for-cause audit by providing a mechanism through which the Department can recommend to an agency that an expedited audit be conducted on any facility if the Department has reason to believe that
The Department believes that audits conducted through random sampling would be insufficient to assess the scope of compliance with the PREA standards. The Department is cognizant of the burden that audits pose on institutions but believes that the triennial cycle appropriately balances the level of effort and resources that will need to be expended. In addition, the Department anticipates that the actual audit complexity and duration will be scaled to the size and type of facility.
The Department declines to incorporate into the standards specific outcome measures. While performance-based standards facilitate compliance assessments, it is difficult to employ such standards effectively to combat sexual abuse in confinement facilities. An increase in incidents reported to facility administration may reflect increased abuse due to the facility's inability to protect inmates from harm. Alternatively, it might reflect inmates' increased willingness to report abuse, due to the facility's success at assuring inmates that reporting abuse will yield positive outcomes and not result in retaliation.
This final rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” as recently reaffirmed and supplemented by Executive Order 13563, “Improving Regulation and Regulatory Review.” The Department has determined that this final rule is a “significant regulatory action” under Executive Order 12866, § 3(f)(1), and accordingly has submitted it to the Office of Management and Budget (OMB) for review.
Executive Order 12866 requires Federal agencies to conduct a regulatory impact assessment (benefit-cost analysis) for any “significant regulatory action” likely to result in a rule that may have an annual impact on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
The Department has concluded that the economic impact of its adoption of the final rule, if complied with by all entities to which it applies, is likely to exceed this $100 million threshold. Assuming full nationwide compliance, the standards would affect the management of all State, local, privately operated, and Department of Justice confinement facilities, which collectively house over 2.4 million individuals at any given time and which spent more than $79.5 billion in 2008.
The final rule, moreover, “materially alters * * * the rights and obligations of grant recipients,” and “raise[s] novel legal or policy issues.” Executive Order 12866, Secs. 3(f)(3), (4). Accordingly, in compliance with OMB Circular A–4, the Department has prepared a Regulatory Impact Assessment (RIA) to accompany the final rule.
The RIA is available in full at
The cost estimates set forth in the RIA are the costs of full nationwide compliance with all of the standards and their implementation in all covered facilities. The Department concludes that full nationwide compliance with the standards would cost the correctional community, in the aggregate, approximately $6.9 billion over the period 2012–2026, or $468.5 million per year when annualized at a 7 percent discount rate. The average annualized cost per facility of compliance with the standards is approximately $55,000 for prisons, $50,000 for jails, $24,000 for community confinement facilities, and $54,000 for juvenile facilities. For lockups, the average annualized cost per agency is estimated at $16,000.
However, these figures are potentially misleading. PREA does not require full nationwide compliance with the Department's standards, nor does it enact a mechanism for the Department to direct or enforce such compliance; instead, the statute provides certain incentives for State (but not local or privately operated) confinement facilities to implement the standards. Fiscal realities faced by confinement facilities throughout the country make it virtually certain that the total actual outlays by those facilities will, in the aggregate, be less than the full nationwide compliance costs calculated in this RIA. Actual outlays incurred will depend on the specific choices that State, local, and private correctional agencies make with regard to adoption of the standards, and correspondingly on the annual expenditures that those agencies are willing and able to make in choosing to implement the standards in their facilities. The Department has not endeavored in the RIA to project those actual outlays.
In developing the final rule, the Department was constrained by two separate and independent limitations relating to the potential costs of the standards. The first was the requirement, set forth in Executive Order 12866, that each agency “propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs,” recognizing that some benefits and costs are difficult to quantify. Executive Order 12866, Sec. 1(b)(6). Executive Order 13563, moreover, directs agencies “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” Executive Order 13563, Sec. 1(c). The second was the provision, set forth in PREA itself, prohibiting the Attorney General from adopting any standards “that would impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3). The RIA addresses both sets of limitations and concludes that the final rule does not contravene either constraint, and is in fact fully justified under both analyses.
With respect to the analysis called for by the Executive Orders, the RIA undertakes a break-even analysis to demonstrate that the anticipated costs of full nationwide compliance with the PREA standards are amply justified by the anticipated benefits. The results of this break-even analysis are summarized in Table 2. As shown there, using the Department's preferred estimation method, for the costs of full nationwide compliance to break even with the monetized benefits of avoiding prison rape, the standards would have to be successful in reducing the annual number of prison sexual abuse victims by about 1,671, for a total reduction from the baseline over fifteen years of about 25,000 victims.
The Department believes it reasonable to expect that the standards, if fully adopted and complied with, would achieve at least this level of reduction in the
The “value of 1% reduction” row sets forth the RIA's estimate of the monetizable value (in millions of dollars) of the benefit of a 1% reduction from the baseline annual prevalence of sexual abuse in prisons, jails, and juvenile centers, using the Department's preferred methodology, the victim compensation model, and taking into account the fact that many victims of prison rape are victimized multiple times. The “value of 1 victim avoided” row sets forth the corresponding estimate for lockups and community confinement facilities, but sets forth the value (again in millions) of avoiding a single victim of abuse.
Cost figures represent the cost of full nationwide compliance with all of the PREA standards, in the aggregate, in millions of dollars. “Breakeven percent,” for prisons, jails, and juvenile centers, shows the total percentage reduction from the baseline annual prevalence of prison sexual abuse that the standards would have to achieve in each sector in order for their annual benefits, in monetary terms, to break even with their annual costs, again assuming full nationwide compliance. “Breakeven Number of Victims” shows how many individual victims of prison sexual abuse the standards would have to be successful in preventing each year, in each sector (again taking into account the phenomenon of serial victimization), for the standards' annual benefits, in monetary terms, to break even with the annual costs of full nationwide compliance.
With respect to the analysis that Congress required in PREA, the RIA concludes that the costs of full nationwide compliance do not amount to “substantial additional costs” when compared to total national expenditures on correctional operations. In the most recent tabulation, correctional agencies nationwide spent approximately $79.5 billion on correctional operations in 2008. As noted, the RIA estimates that full nationwide compliance with the final standards would cost these agencies approximately $468.5 million per year, when annualized over 15 years at a 7 percent discount rate, or a mere 0.6 percent of total annual correctional expenditures in 2008. The Department concludes that this does not amount to substantial additional costs.
As a starting point, the RIA measures the baseline level of prison rape and sexual abuse in prisons, jails, and juvenile facilities. It estimates the annual prevalence of six categories of inappropriate sexual contact in adult prisons and jails, and five different categories in juvenile facilities. The precise definitions of these categories are set forth in detail in the RIA, but these types of sexual contact are essentially differentiated based on the existence and nature of force or threat of force, the nature and intrusiveness of the physical contact, and how often the victim has experienced abuse (
Relying largely on tabulations made by BJS and the Office of Juvenile Justice and Delinquency Prevention, the RIA examines the available statistics on the prevalence of each type of inappropriate sexual contact
The RIA presents three alternatives for estimating the prevalence of sexual abuse, each relying on different assumptions to account for the possibility of underreporting (false negatives) and overreporting (false positives) of sexual abuse. Under the “principal” method—the one the Department prefers among the three—no adjustment is made to the prevalence estimates to account either for false negatives (sexual abuses that occurred but were never reported) or false positives (sexual abuses that were reported by inmates but that did not actually occur). The “adjusted” approach uses an upper bound assumption as to the number of false negatives and a conservative approach to the adjustment for false positives; the “lower bound” approach uses a lower bound assumption as to the number of false negatives and a less conservative approach to adjusting for false positives. Under the principal approach, the RIA concludes that in 2008 more than 209,400 persons were victims of sexual abuse in America's prisons, jails, and juvenile centers. Of these, at least 78,500 were prison and jail inmates and 4,300 were youth in juvenile facilities who were victims of the most serious forms of sexual abuse, including forcible rape and other nonconsensual sexual acts involving injury, force, or high incidence.
Table 3 shows the estimated baseline prevalence of rape and sexual abuse in adult prison and jail facilities under each of the RIA's prevalence estimation methods. Table 4 shows the corresponding estimates for juvenile facilities, and Table 5 shows the composite prevalence estimates among all facility types.
As a number of commenters observed, placing a monetary value on avoided sexual abuse confronts considerable methodological difficulties. One commenter remarked that “estimating the monetary `costs' of crime is at best a fraught and imperfect effort, particularly when dealing with crimes such as sexual abuse whose principal cost is due to the pain, suffering, and quality of life diminution of the victims.” Executive Order 12866 nevertheless instructs agencies to measure quantifiable benefits “to the fullest extent that [they] can be usefully estimated.” Executive Order 12866, Sec. 1(a);
The RIA estimates the monetary value of certain benefits of avoiding prison sexual abuse using values derived from general literature assessing the cost of rape,
In part because of these limitations, the RIA also uses an alternative approach known as the victim compensation or willingness-to-accept (WTA) model, which estimates how much the average victim of prison rape would be willing to accept as compensation for injuries suffered in the assault, including intangible injuries such as pain, suffering, and diminished quality of life. To do this, the RIA assesses certain monetizable costs of prison rape to the victim, such as the costs of medical and mental health care, and adds an element, drawn primarily from jury verdicts, to cover the intangible costs associated with pain and suffering. All of these costs were identified by reviewing the literature on the cost of rape generally, and then extrapolating the analogous costs in confinement facilities. Although the RIA calculates avoidance benefits on a per victim basis, it accounts for the fact that many victims of prison rape are victimized multiple times.
Thus, the RIA essentially uses a hybrid approach that combines the WTP and WTA elements: For the one category of sexual conduct as to which an estimate using the WTP was possible (the most serious category for adult victims), it identifies a range of avoidance benefit values, with the WTP estimate at one bound and the WTA estimate on the other; for the remaining categories of conduct, as to which a WTP estimate was not possible, the RIA uses only the WTA estimate. Using this approach, the RIA derives monetized values for avoiding each of the six types of sexual contact (five for juveniles), depending upon whether the victim is a juvenile or an adult. These values are depicted in Tables 6 and 7. The RIA estimates the monetizable benefit to an adult of avoiding the highest category of prison sexual misconduct (nonconsensual sexual acts involving injury or force, or no injury or force but high incidence) as worth about $310,000 per victim using the willingness to pay model and $480,000 per victim under the victim compensation model. For juveniles, who typically experience significantly greater injury from sexual abuse than adults, the corresponding category is assessed as worth $675,000 per victim under the victim compensation model. (A willingness to pay estimate was not calculated for juveniles.) These estimates are higher than in the IRIA because of changes the Department made, in response to public comments, to the definitions of the different types of sexual abuse and to the methodologies for monetizing the benefit of avoiding each type.
The RIA next calculates the maximum monetizable benefit to society of totally eliminating each of the types of inappropriate sexual contact, by multiplying the baseline prevalence of such events by the unit benefit of an avoided victim. As depicted in Table 8, under the Department's principal approach for estimating prevalence, and using the victim compensation model, the RIA determines that the maximum monetizable cost to society of prison rape and sexual abuse (and correspondingly, the total maximum benefit of eliminating it) is about $46.6 billion annually for prisons and jails, and an additional $5.2 billion annually for juvenile facilities.
It bears cautioning, however, that the Department has not estimated in the RIA the expected monetized benefit of the standards themselves but has instead opted for a break-even approach that estimates the number of victims that would need to be avoided (taking into account the fact that many victims are victimized multiple times) for the benefits of the standards to break even with the costs of full nationwide compliance. Thus, the RIA does not estimate that the standards will actually yield an annual monetized benefit of $52 billion, except in the hypothetical scenario where the standards would, by themselves, lead to the complete elimination of prison rape and sexual abuse. The actual monetized benefit of the standards will certainly be less than this hypothetical figure and will depend on a number of factors, including the extent to which facilities comply with
Executive Order 13563 states that, “[w]here appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” Executive Order 13563, Sec. 1(c). Under Executive Order 12866, costs and benefits must “include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify but nevertheless essential to consider.” Executive Order 12866, Sec. 1(a). Benefits of regulatory action include “the enhancement of health and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias.”
In concluding its assessment of the benefits of prison rape avoidance, the RIA identifies a number of benefits that cannot be monetized. These are some of the most important and consequential benefits of the final rule, and the discussion in the RIA describes both the nature and scale of those benefits so that they can be appropriately factored into the analysis. For example, the RIA examines benefits for rape victims, for inmates who are not rape victims, for families of victims, for prison administrators and staff, and for society at large. These benefits include those relating to public health and public safety, as well as economic benefits and existence value benefits. The RIA also describes benefits to inmates in lockups and community confinement facilities, as to which information was lacking relating to the baseline prevalence of sexual abuse.
Additionally, Congress predicated PREA on its conclusion—consistent with decisions by the Supreme Court—that “deliberate indifference to the substantial risk of sexual assault violates prisoners' rights under the Cruel and Unusual Punishment Clause of the Eighth Amendment.” 42 U.S.C. 15601(13) (citing
The RIA presents a detailed analysis of the costs of full nationwide compliance with the standards in the final rule. The RIA concludes that full nationwide compliance with the standards would cost the correctional community approximately $6.9 billion over the period 2012–2026, or $468.5 million per year when annualized at a 7 percent discount rate. The details of the RIA's cost estimates are summarized in Tables
Again, these tables reflect the estimated costs of full nationwide compliance, which will occur only if all State, local, and private confinement facilities adopt the standards contained in the final rule and then immediately and fully implement them. In this sense, the cost impact of the final rule, as represented here, is essentially theoretical—in effect treating the standards as if they were binding regulations on State and local confinement facilities.
The true cost impact (which the RIA does not purport to assess), like the true impact of the final rule on preventing, detecting, and minimizing the effects of sexual abuse, will depend on the specific choices and expenditures that State, local, and private correctional agencies make with regard to adoption and implementation of the standards.
In assessing the nationwide compliance costs for many of the standards, the RIA relies on work performed by the consulting firm Booz Allen Hamilton, with which the Department contracted to undertake cost analyses, first of the standards recommended by the NPREC, then of the standards proposed in the NPRM, and finally of the standards contained in the final rule. Booz Allen's initial cost analysis was based on a field study in which it surveyed 49 agencies of various types from across the country about the costs they would incur to comply with various aspects of the NPREC's recommended standards. Each of the final standards is examined in detail in the RIA to determine the full implementation costs of that standard. Where possible, the RIA distinguishes among costs applicable to prisons, jails, juvenile facilities, community confinement facilities, and lockups.
Many of the standards are assessed as likely having minimal to no associated
On an annualized basis, the most expensive standards, by the RIA's estimate, are: §§ 115.13, 115.113, 115.213, and 115.313, which relate to staffing, supervision, and video monitoring and would impose annual compliance costs of $120 million per year if fully adopted; §§ 115.11, 115.111, 115.211, and 115.311, which establish a zero-tolerance policy and require agencies to designate an agency-wide PREA coordinator and facilities to designate a PREA compliance manager, and would cost $110 million annually if fully adopted; the training standards (§§ 115.31–115.35, 115.131–115.132, 115.134, 115.231–115.235, and 115.331–115.335), which the RIA estimates would cost $82 million per year if fully adopted; and the screening standards (§§ 115.41–115.42, 115.141, 115.241–115.242, and 115.341–115.342), which would have an estimated $61 million in annual costs if there were full nationwide compliance. Together, full nationwide compliance with these four sets of standards would cost $372 million annually, or about 80 percent of the total for all of the standards.
Booz Allen's analyses assessed only the costs that State, local, and private agencies would incur if they adopted and implemented the standards in their own facilities. Thus, Booz Allen's analyses do not include the compliance costs of those Federal facilities to which the final rule applies. The RIA supplements these analyses with the Department's own internal assessments of the costs that its two relevant components—the Bureau of Prisons and the United States Marshals Service—would incur in implementing the standards in the facilities they operate or oversee. As shown in Table 15, these two components expect to spend approximately $1.75 million per year over fifteen years to comply with the standards.
Executive Order 13563 calls upon agencies, “in choosing among alternative regulatory approaches,” to select “those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity).” Executive Order 13563, sec. 1(b)(3). The Attorney General has concluded that, among the available alternatives, the standards in the final rule define measures and programs that, when implemented, will prove effective in accomplishing the goals of the statute while also promoting flexible decisions by the affected agencies on how to achieve compliance in a manner that works best given their unique circumstances and environments. Standards that could potentially maximize net benefits in the abstract would risk actually being less effective, either due to the failure of States and localities to adopt them at all, or due to the damaging consequences that the full costs of compliance could have on funding available for other critical correctional programs.
The RIA examines the cost implications of the two most obvious alternatives to the final standards—the NPREC's recommended standards, which are more stringent than the final rule in many respects, and the standards proposed in the NPRM, which by and large are less stringent—and finds that the standards in the final rule are the most effective and cost-effective among the three alternatives. As shown in Table 16, the final standards are the least expensive of the three alternatives.
In drafting the standards, the Department was mindful of its obligation to meet the objectives of PREA while also minimizing conflicts between State law and Federal interests. In accordance with Executive Order 13132, it is determined that this final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Notwithstanding the determination that the formal consultation process described in Executive Order 13132 is not required for this final rule, the Department's PREA Working Group consulted with representatives of State and local prisons and jails, juvenile facilities, community confinement programs, and lockups—among other individuals and groups—during the listening sessions the Working Group conducted in 2010. The Department also solicited and received input from numerous public entities at several levels of government in both the ANPRM and the NPRM stages of this rulemaking.
Insofar as it sets forth national standards that apply to confinement facilities operated by State and local governments, this final rule has the potential to affect the States, the relationship between the national government and the States, and the distribution of power and responsibilities among the various levels of government. However, with respect to the thousands of State and local agencies, and private companies, that own and operate confinement facilities across the country, PREA provides the Department with no direct authority to mandate binding standards for their facilities. Instead, PREA depends upon State and local agencies to make voluntary decisions to adopt and implement them.
For State agencies that receive grant funding from the Department to support their correctional operations, Congress has provided that the Department shall withhold 5 percent of prison-related grant funding to any State that fails to certify that it “has adopted, and is in full compliance with, the national standards,” or that fails to alternatively provide “an assurance that not less than 5 percent” of the relevant grant funding “shall be used only for the purpose of enabling the State to adopt, and achieve full compliance with, those national standards, so as to ensure that a certification [of compliance] may be submitted in future years.” 42 U.S.C. 15607(c)(2). For county, municipal, and privately run agencies that operate confinement facilities, PREA lacks any corresponding sanctions for facilities that do not adopt or comply with the standards.
Despite the absence of statutory authority to promulgate standards that would bind State, local, and private agencies, other consequences may flow from the issuance of national standards, which could provide incentives for voluntary compliance. For example, these standards may influence the standard of care that courts will apply in considering legal and constitutional claims brought against corrections agencies and their employees arising out of allegations of sexual abuse. Moreover, agencies seeking to be accredited by the major accreditation organizations may need to comply with the standards as a condition of accreditation.
Nevertheless, pivotal to the statutory scheme is a voluntary decision by State, county, local, and private correctional agencies to adopt the standards and to comply with them (or alternatively, for States, to commit to expending 5 percent of Department of Justice prison-related grant funds to come into compliance in future years). In deciding whether to adopt these standards, agencies will of necessity conduct their own analyses of whether they can commit to adopting the standards in light of other demands on their correctional budgets.
The Department cannot assume that all agencies will choose to adopt and implement these standards. An agency assessing whether to do so may choose not to based upon an assessment that, with regard to that specific agency, the costs outweigh the benefits. Such a course of action would be regrettable. The Department certainly hopes that it will not be common, and that agencies will instead consider the benefits of prison rape prevention not only to the agencies themselves but also to the inmates in their charge and to the communities to which the agencies are accountable.
Nevertheless, the Department cannot ignore the straitened fiscal realities confronting many correctional agencies. Congress was acutely aware of these circumstances in passing PREA, which authorized the Department to make grants to States “to assist those States in ensuring that budgetary circumstances (such as reduced State and local spending on prisons) do not compromise efforts to protect inmates (particularly from prison rape).” 42 U.S.C. 15605(a). Congress did not intend for the Department to impose unrealistic or unachievable standards but rather expected it to partner with those agencies in adopting and implementing policies that will yield successes at combating sexual abuse in confinement facilities, while enabling State and local correctional authorities to continue other correctional programs vital to protecting inmates, staff, and the community, and ensuring that inmates' eventual reintegration into the community is successful.
The statute does not mandate any specific approach in developing the standards, but instead relies upon the Attorney General to exercise his independent judgment. The Attorney General has concluded that the standards in the final rule define measures and programs that, when implemented, will prove effective in accomplishing the goals of the statute while also promoting voluntary compliance decisions by State and local agencies.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies, unless otherwise prohibited by law, to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).
The Department has assessed the probable impact of the final PREA standards and, as is more fully described in the RIA, believes that these standards, if fully adopted and implemented by all State, local, and private operators of confinement facilities, would theoretically result in an aggregate expenditure by such operators of approximately $467 million annually (
However, the Department concludes that the requirements of the UMRA do not apply to the PREA standards because UMRA excludes from its definition of “Federal intergovernmental mandate” those regulations imposing an enforceable duty on other levels of government which are “a condition of Federal assistance.” 2 U.S.C. 658(5)(A)(i)(I). PREA provides that any amount that a State would otherwise receive for prison purposes from the Department in a given fiscal year shall be reduced by 5 percent unless the chief executive of the State certifies either that the State is in “full compliance” with the standards or that not less than 5 percent of such amount shall be used to enable the State to achieve full compliance with the standards. Accordingly, compliance with these PREA standards is a condition of Federal assistance for State governments.
While the Department does not believe that a formal statement pursuant to the UMRA is required, it has, for the convenience of the public, summarized as follows various matters that are discussed at greater length elsewhere in this rulemaking and that would have been included in a UMRA statement should that have been required:
• These national standards are being issued pursuant to the requirements of the Prison Rape Elimination Act of 2003, 42 U.S.C. 15601
• A qualitative and quantitative assessment of the anticipated costs and benefits of these national standards appears above in the section on Executive Order 12866, as elaborated in the RIA;
• The Department does not believe that these national standards will have an effect on national productivity, economic growth, full employment, creation of productive jobs, or international competitiveness of United States goods and services, except to the extent described in the RIA, which postulates
• Notwithstanding how limited the Department's obligations may be under the formal requirements of UMRA, the Department has engaged in a variety of contacts and consultations with State and local governments, including during the listening sessions the Working Group conducted in 2010. In addition, the Department solicited and received input from public entities in both its ANPRM and its NPRM. The Department received numerous comments on its NPRM from State and local entities, the vast majority of which addressed the potential costs associated with certain of the proposed standards. Standards of particular cost concern included the training standards, the auditing standard, and the standards regarding staff supervision and video monitoring. The Department has altered various standards in ways that it believes will appropriately mitigate the cost concerns identified in the comments. State and local entities also expressed concern that the standards were overly burdensome on small correctional systems and facilities, especially in rural areas. The Department's final standards include various revisions to the proposed rule to address this issue.
This final rule is a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. It may result in an annual effect on the economy of $100,000,000 or more, although it will not result in a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
The Department of Justice drafted this final rule so as to minimize its impact on small entities, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601–612, while meeting PREA's intended objectives. The Department has conducted an extensive consideration of the impact of this rule on small governmental entities, and available alternatives, as elaborated in the RIA and in the above discussions of Federalism and UMRA.
The Department provided notice of the proposed standards to potentially affected small governments by publishing the ANPRM and NPRM, by conducting listening sessions, and by other activities; enabled officials of affected small governments to provide meaningful and timely input through the methods listed above; and worked (and will continue to work) to inform, educate, and advise small governments on compliance with the requirements.
As discussed in the RIA summarized above, the Department has identified and considered a reasonable number of regulatory alternatives and from those alternatives has attempted to select the least costly, most cost-effective, and least burdensome alternative that achieves the objectives of PREA.
This final rule contains a new “collection of information” covered by the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501–3521. Under the PRA, a covered agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number assigned by OMB. 44 U.S.C. 3507(a)(3), 3512.
The information collections in this final rule require covered facilities to retain certain specified information relating to sexual abuse prevention planning, responsive planning, education and training, and investigations, as well as to collect and retain certain specified information relating to allegations of sexual abuse within the facility.
At the time of the proposed rule, the Department submitted an information collection request to OMB for review and approval in accordance with the review procedures of the PRA.
As part of the comment process on the NPRM, the Department received a few comments pertaining to the PRA, mostly raising questions whether certain recordkeeping requirements of the PREA standards duplicated in part the recordkeeping requirements imposed by other Department regulations. These comments and the Department's responses thereto are discussed above in the
Changes to the PREA standards made in response to comments on the NPRM and due to additional analysis resulted in the total PRA burden hours being greater than those estimated in the Department's initial information collection request. None of the comments received on the NPRM pertaining to the PRA aspects of the rule necessitated any changes in the PRA burden hours estimated by the Department. However, the Department has submitted to OMB a revised information collection request with the new burden estimates for review and approval.
Community confinement facilities, Crime, Jails, Juvenile facilities, Lockups, Prisons, Prisoners.
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 15601–15609.
For purposes of this part, the term—
(1) Under the control of a law enforcement, court, or custodial officer; and
(2) Primarily used for the temporary confinement of individuals who have recently been arrested, detained, or are being transferred to or from a court, jail, prison, or other agency.
For purposes of this part, the term—
(1) Sexual abuse of an inmate, detainee, or resident by another inmate, detainee, or resident; and
(2) Sexual abuse of an inmate, detainee, or resident by a staff member, contractor, or volunteer.
(1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
(4) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.
(1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Contact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(4) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(5) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
(6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities described in paragraphs (1) through (5) of this definition;
(7) Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, detainee, or resident, and
(8) Voyeurism by a staff member, contractor, or volunteer.
(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and
(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.
(a) An agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) An agency shall employ or designate an upper-level, agency-wide PREA coordinator with sufficient time and authority to develop, implement, and oversee agency efforts to comply with the PREA standards in all of its facilities.
(c) Where an agency operates more than one facility, each facility shall designate a PREA compliance manager with sufficient time and authority to coordinate the facility's efforts to comply with the PREA standards.
(a) A public agency that contracts for the confinement of its inmates with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.
(a) The agency shall ensure that each facility it operates shall develop, document, and make its best efforts to comply on a regular basis with a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, facilities shall take into consideration:
(1) Generally accepted detention and correctional practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight bodies;
(5) All components of the facility's physical plant (including “blind-spots” or areas where staff or inmates may be isolated);
(6) The composition of the inmate population;
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(11) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the facility shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, for each facility the agency operates, in consultation with the PREA coordinator required by § 115.11, the agency shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) The facility's deployment of video monitoring systems and other monitoring technologies; and
(3) The resources the facility has available to commit to ensure adherence to the staffing plan.
(d) Each agency operating a facility shall implement a policy and practice of having intermediate-level or higher-level supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Such policy and practice shall be implemented for night shifts as well as day shifts. Each agency shall have a policy to prohibit staff from alerting other staff members that these supervisory rounds are occurring, unless such announcement is related to the legitimate operational functions of the facility.
(a) A youthful inmate shall not be placed in a housing unit in which the youthful inmate will have sight, sound, or physical contact with any adult inmate through use of a shared dayroom or other common space, shower area, or sleeping quarters.
(b) In areas outside of housing units, agencies shall either:
(1) Maintain sight and sound separation between youthful inmates and adult inmates, or
(2) Provide direct staff supervision when youthful inmates and adult inmates have sight, sound, or physical contact.
(c) Agencies shall make best efforts to avoid placing youthful inmates in isolation to comply with this provision. Absent exigent circumstances, agencies shall not deny youthful inmates daily large-muscle exercise and any legally required special education services to comply with this provision. Youthful inmates shall also have access to other programs and work opportunities to the extent possible.
(a) The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.
(b) As of August 20, 2015, or August 21, 2017 for a facility whose rated capacity does not exceed 50 inmates, the facility shall not permit cross-gender pat-down searches of female inmates, absent exigent circumstances. Facilities shall not restrict female inmates' access to regularly available programming or other out-of-cell opportunities in order to comply with this provision.
(c) The facility shall document all cross-gender strip searches and cross-gender visual body cavity searches, and shall document all cross-gender pat-down searches of female inmates.
(d) The facility shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce
(e) The facility shall not search or physically examine a transgender or intersex inmate for the sole purpose of determining the inmate's genital status. If the inmate's genital status is unknown, it may be determined during conversations with the inmate, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
(f) The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex inmates, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
(a) The agency shall take appropriate steps to ensure that inmates with disabilities (including, for example, inmates who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to ensure effective communication with inmates who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure that written materials are provided in formats or through methods that ensure effective communication with inmates with disabilities, including inmates who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment to inmates who are limited English proficient, including steps to provide interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
(c) The agency shall not rely on inmate interpreters, inmate readers, or other types of inmate assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the inmate's safety, the performance of first-response duties under § 115.64, or the investigation of the inmate's allegations.
(a) The agency shall not hire or promote anyone who may have contact with inmates, and shall not enlist the services of any contractor who may have contact with inmates, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether to hire or promote anyone, or to enlist the services of any contractor, who may have contact with inmates.
(c) Before hiring new employees who may have contact with inmates, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior institutional employers for information on substantiated allegations of sexual abuse or any resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting the services of any contractor who may have contact with inmates.
(e) The agency shall either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with inmates or have in place a system for otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(a) When designing or acquiring any new facility and in planning any substantial expansion or modification of existing facilities, the agency shall consider the effect of the design, acquisition, expansion, or modification upon the agency's ability to protect inmates from sexual abuse.
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the agency shall consider how such technology may enhance the agency's ability to protect inmates from sexual abuse.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse, the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S. Department of Justice's Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and authoritative protocols developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to forensic medical examinations, whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse
(d) The agency shall attempt to make available to the victim a victim advocate from a rape crisis center. If a rape crisis center is not available to provide victim advocate services, the agency shall make available to provide these services a qualified staff member from a community-based organization, or a qualified agency staff member. Agencies shall document efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis center refers to an entity that provides intervention and related assistance, such as the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may utilize a rape crisis center that is part of a governmental unit as long as the center is not part of the criminal justice system (such as a law enforcement agency) and offers a comparable level of confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or qualified community-based organization staff member shall accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.
(f) To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the agency shall request that the investigating agency follow the requirements of paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations of sexual abuse in prisons or jails; and
(2) Any Department of Justice component that is responsible for investigating allegations of sexual abuse in prisons or jails.
(h) For the purposes of this section, a qualified agency staff member or a qualified community-based staff member shall be an individual who has been screened for appropriateness to serve in this role and has received education concerning sexual assault and forensic examination issues in general.
(a) The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or sexual harassment are referred for investigation to an agency with the legal authority to conduct criminal investigations, unless the allegation does not involve potentially criminal behavior. The agency shall publish such policy on its Web site or, if it does not have one, make the policy available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in prisons or jails shall have in place a policy governing the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in prisons or jails shall have in place a policy governing the conduct of such investigations.
(a) The agency shall train all employees who may have contact with inmates on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment prevention, detection, reporting, and response policies and procedures;
(3) Inmates' right to be free from sexual abuse and sexual harassment;
(4) The right of inmates and employees to be free from retaliation for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in confinement;
(6) The common reactions of sexual abuse and sexual harassment victims;
(7) How to detect and respond to signs of threatened and actual sexual abuse;
(8) How to avoid inappropriate relationships with inmates;
(9) How to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming inmates; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities.
(b) Such training shall be tailored to the gender of the inmates at the employee's facility. The employee shall receive additional training if the employee is reassigned from a facility that houses only male inmates to a facility that houses only female inmates, or vice versa.
(c) All current employees who have not received such training shall be trained within one year of the effective date of the PREA standards, and the agency shall provide each employee with refresher training every two years to ensure that all employees know the agency's current sexual abuse and sexual harassment policies and procedures. In years in which an employee does not receive refresher training, the agency shall provide refresher information on current sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification, that employees understand the training they have received.
(a) The agency shall ensure that all volunteers and contractors who have contact with inmates have been trained on their responsibilities under the agency's sexual abuse and sexual harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based on the services they provide and level of contact they have with inmates, but all volunteers and contractors who have contact with inmates shall be notified of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers
(a) During the intake process, inmates shall receive information explaining the agency's zero-tolerance policy regarding sexual abuse and sexual harassment and how to report incidents or suspicions of sexual abuse or sexual harassment.
(b) Within 30 days of intake, the agency shall provide comprehensive education to inmates either in person or through video regarding their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding agency policies and
(c) Current inmates who have not received such education shall be educated within one year of the effective date of the PREA standards, and shall receive education upon transfer to a different facility to the extent that the policies and procedures of the inmate's new facility differ from those of the previous facility.
(d) The agency shall provide inmate education in formats accessible to all inmates, including those who are limited English proficient, deaf, visually impaired, or otherwise disabled, as well as to inmates who have limited reading skills.
(e) The agency shall maintain documentation of inmate participation in these education sessions.
(f) In addition to providing such education, the agency shall ensure that key information is continuously and readily available or visible to inmates through posters, inmate handbooks, or other written formats.
(a) In addition to the general training provided to all employees pursuant to § 115.31, the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations, its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims, proper use of
(c) The agency shall maintain documentation that agency investigators have completed the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in confinement settings shall provide such training to its agents and investigators who conduct such investigations.
(a) The agency shall ensure that all full- and part-time medical and mental health care practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated for employees under § 115.31 or for contractors and volunteers under § 115.32, depending upon the practitioner's status at the agency.
(a) All inmates shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other inmates or sexually abusive toward other inmates.
(b) Intake screening shall ordinarily take place within 72 hours of arrival at the facility.
(c) Such assessments shall be conducted using an objective screening instrument.
(d) The intake screening shall consider, at a minimum, the following criteria to assess inmates for risk of sexual victimization:
(1) Whether the inmate has a mental, physical, or developmental disability;
(2) The age of the inmate;
(3) The physical build of the inmate;
(4) Whether the inmate has previously been incarcerated;
(5) Whether the inmate's criminal history is exclusively nonviolent;
(6) Whether the inmate has prior convictions for sex offenses against an adult or child;
(7) Whether the inmate is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the inmate has previously experienced sexual victimization;
(9) The inmate's own perception of vulnerability; and
(10) Whether the inmate is detained solely for civil immigration purposes.
(e) The initial screening shall consider prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the agency, in assessing inmates for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the inmate's arrival at the facility, the facility will reassess the inmate's risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening.
(g) An inmate's risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the inmate's risk of sexual victimization or abusiveness.
(h) Inmates may not be disciplined for refusing to answer, or for not disclosing complete information in response to, questions asked pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this section.
(i) The agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the inmate's detriment by staff or other inmates.
(a) The agency shall use information from the risk screening required by § 115.41 to inform housing, bed, work, education, and program assignments with the goal of keeping separate those inmates at high risk of being sexually victimized from those at high risk of being sexually abusive.
(b) The agency shall make individualized determinations about how to ensure the safety of each inmate.
(c) In deciding whether to assign a transgender or intersex inmate to a facility for male or female inmates, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the inmate's health and safety, and whether the placement would present management or security problems.
(d) Placement and programming assignments for each transgender or intersex inmate shall be reassessed at least twice each year to review any threats to safety experienced by the inmate.
(e) A transgender or intersex inmate's own views with respect to his or her own safety shall be given serious consideration.
(f) Transgender and intersex inmates shall be given the opportunity to shower separately from other inmates.
(g) The agency shall not place lesbian, gay, bisexual, transgender, or intersex inmates in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility, unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such inmates.
(a) Inmates at high risk for sexual victimization shall not be placed in involuntary segregated housing unless an assessment of all available alternatives has been made, and a determination has been made that there is no available alternative means of separation from likely abusers. If a facility cannot conduct such an assessment immediately, the facility may hold the inmate in involuntary segregated housing for less than 24 hours while completing the assessment.
(b) Inmates placed in segregated housing for this purpose shall have access to programs, privileges, education, and work opportunities to the extent possible. If the facility restricts access to programs, privileges, education, or work opportunities, the facility shall document:
(1) The opportunities that have been limited;
(2) The duration of the limitation; and
(3) The reasons for such limitations.
(c) The facility shall assign such inmates to involuntary segregated housing only until an alternative means of separation from likely abusers can be arranged, and such an assignment shall not ordinarily exceed a period of 30 days.
(d) If an involuntary segregated housing assignment is made pursuant to paragraph (a) of this section, the facility shall clearly document:
(1) The basis for the facility's concern for the inmate's safety; and
(2) The reason why no alternative means of separation can be arranged.
(e) Every 30 days, the facility shall afford each such inmate a review to determine whether there is a continuing need for separation from the general population.
(a) The agency shall provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.
(b) The agency shall also provide at least one way for inmates to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials, allowing the inmate to remain anonymous upon request. Inmates detained solely for civil immigration purposes shall be provided information on how to contact relevant consular officials and relevant officials at the Department of Homeland Security.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and sexual harassment of inmates.
(a) An agency shall be exempt from this standard if it does not have administrative procedures to address inmate grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when an inmate may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits to any portion of a grievance that does not allege an incident of sexual abuse.
(3) The agency shall not require an inmate to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to defend against an inmate lawsuit on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) An inmate who alleges sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by inmates in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the inmate in writing of any such extension and provide a date by which a decision will be made.
(4) At any level of the administrative process, including the final level, if the inmate does not receive a response within the time allotted for reply, including any properly noticed extension, the inmate may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow inmates, staff members, family members, attorneys, and outside advocates, shall be permitted to assist inmates in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of inmates.
(2) If a third party files such a request on behalf of an inmate, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process.
(3) If the inmate declines to have the request processed on his or her behalf, the agency shall document the inmate's decision.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance alleging that an inmate is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging an inmate is subject to a substantial risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within 5 calendar days. The initial response and final agency decision shall document the agency's determination whether the inmate is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.
(g) The agency may discipline an inmate for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the inmate filed the grievance in bad faith.
(a) The facility shall provide inmates with access to outside victim advocates for emotional support services related to sexual abuse by giving inmates mailing
(b) The facility shall inform inmates, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide inmates with confidential emotional support services related to sexual abuse. The agency shall maintain copies of agreements or documentation showing attempts to enter into such agreements.
The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of an inmate.
(a) The agency shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
(c) Unless otherwise precluded by Federal, State, or local law, medical and mental health practitioners shall be required to report sexual abuse pursuant to paragraph (a) of this section and to inform inmates of the practitioner's duty to report, and the limitations of confidentiality, at the initiation of services.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, to the facility's designated investigators.
When an agency learns that an inmate is subject to a substantial risk of imminent sexual abuse, it shall take immediate action to protect the inmate.
(a) Upon receiving an allegation that an inmate was sexually abused while confined at another facility, the head of the facility that received the allegation shall notify the head of the facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the allegation is investigated in accordance with these standards.
(a) Upon learning of an allegation that an inmate was sexually abused, the first security staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request that the alleged victim not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence, and then notify security staff.
The facility shall develop a written institutional plan to coordinate actions taken in response to an incident of sexual abuse, among staff first responders, medical and mental health practitioners, investigators, and facility leadership.
(a) Neither the agency nor any other governmental entity responsible for collective bargaining on the agency's behalf shall enter into or renew any collective bargaining agreement or other agreement that limits the agency's ability to remove alleged staff sexual abusers from contact with any inmates pending the outcome of an investigation or of a determination of whether and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such agreements are not inconsistent with the provisions of §§ 115.72 and 115.76; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an investigation shall be expunged from or retained in the staff member's personnel file following a determination that the allegation of sexual abuse is not substantiated.
(a) The agency shall establish a policy to protect all inmates and staff who report sexual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other inmates or staff, and shall designate which staff members or departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or transfers for inmate victims or abusers, removal of alleged staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the conduct and treatment of inmates or staff who reported the sexual abuse and of inmates who were reported to have suffered sexual abuse to see if
(d) In the case of inmates, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of retaliation, the agency shall take appropriate measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency determines that the allegation is unfounded.
Any use of segregated housing to protect an inmate who is alleged to have suffered sexual abuse shall be subject to the requirements of § 115.43.
(a) When the agency conducts its own investigations into allegations of sexual abuse and sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations, including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received special training in sexual abuse investigations pursuant to § 115.34.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; shall interview alleged victims, suspected perpetrators, and witnesses; and shall review prior complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency shall conduct compelled interviews only after consulting with prosecutors as to whether compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an individual basis and shall not be determined by the person's status as inmate or staff. No agency shall require an inmate who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and attaches copies of all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this section for as long as the alleged abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the employment or control of the facility or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such investigations shall do so pursuant to the above requirements.
(l) When outside agencies investigate sexual abuse, the facility shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
The agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.
(a) Following an investigation into an inmate's allegation that he or she suffered sexual abuse in an agency facility, the agency shall inform the inmate as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant information from the investigative agency in order to inform the inmate.
(c) Following an inmate's allegation that a staff member has committed sexual abuse against the inmate, the agency shall subsequently inform the inmate (unless the agency has determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the inmate's unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to sexual abuse within the facility.
(d) Following an inmate's allegation that he or she has been sexually abused by another inmate, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency's obligation to report under this standard shall terminate if the inmate is released from the agency's custody.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the nature and circumstances of the acts committed, the staff member's disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies.
(a) Any contractor or volunteer who engages in sexual abuse shall be
(b) The facility shall take appropriate remedial measures, and shall consider whether to prohibit further contact with inmates, in the case of any other violation of agency sexual abuse or sexual harassment policies by a contractor or volunteer.
(a) Inmates shall be subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative finding that the inmate engaged in inmate-on-inmate sexual abuse or following a criminal finding of guilt for inmate-on-inmate sexual abuse.
(b) Sanctions shall be commensurate with the nature and circumstances of the abuse committed, the inmate's disciplinary history, and the sanctions imposed for comparable offenses by other inmates with similar histories.
(c) The disciplinary process shall consider whether an inmate's mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address and correct underlying reasons or motivations for the abuse, the facility shall consider whether to require the offending inmate to participate in such interventions as a condition of access to programming or other benefits.
(e) The agency may discipline an inmate for sexual contact with staff only upon a finding that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between inmates and may discipline inmates for such activity. An agency may not, however, deem such activity to constitute sexual abuse if it determines that the activity is not coerced.
(a) If the screening pursuant to § 115.41 indicates that a prison inmate has experienced prior sexual victimization, whether it occurred in an institutional setting or in the community, staff shall ensure that the inmate is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening.
(b) If the screening pursuant to § 115.41 indicates that a prison inmate has previously perpetrated sexual abuse, whether it occurred in an institutional setting or in the community, staff shall ensure that the inmate is offered a follow-up meeting with a mental health practitioner within 14 days of the intake screening.
(c) If the screening pursuant to § 115.41 indicates that a jail inmate has experienced prior sexual victimization, whether it occurred in an institutional setting or in the community, staff shall ensure that the inmate is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening.
(d) Any information related to sexual victimization or abusiveness that occurred in an institutional setting shall be strictly limited to medical and mental health practitioners and other staff, as necessary, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments, or as otherwise required by Federal, State, or local law.
(e) Medical and mental health practitioners shall obtain informed consent from inmates before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the inmate is under the age of 18.
(a) Inmate victims of sexual abuse shall receive timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders shall take preliminary steps to protect the victim pursuant to § 115.62 and shall immediately notify the appropriate medical and mental health practitioners.
(c) Inmate victims of sexual abuse while incarcerated shall be offered timely information about and timely access to emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care, where medically appropriate.
(d) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) The facility shall offer medical and mental health evaluation and, as appropriate, treatment to all inmates who have been victimized by sexual abuse in any prison, jail, lockup, or juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services consistent with the community level of care.
(d) Inmate victims of sexually abusive vaginal penetration while incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from the conduct described in paragraph (d) of this section, such victims shall receive timely and comprehensive information about and timely access to all lawful pregnancy-related medical services.
(f) Inmate victims of sexual abuse while incarcerated shall be offered tests for sexually transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(h) All prisons shall attempt to conduct a mental health evaluation of all known inmate-on-inmate abusers within 60 days of learning of such abuse history and offer treatment when deemed appropriate by mental health practitioners.
(a) The facility shall conduct a sexual abuse incident review at the conclusion of every sexual abuse investigation, including where the allegation has not been substantiated, unless the allegation has been determined to be unfounded.
(b) Such review shall ordinarily occur within 30 days of the conclusion of the investigation.
(c) The review team shall include upper-level management officials, with
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse;
(2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse;
(4) Assess the adequacy of staffing levels in that area during different shifts;
(5) Assess whether monitoring technology should be deployed or augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily limited to determinations made pursuant to paragraphs (d)(1) through (d)(5) of this section, and any recommendations for improvement and submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for improvement, or shall document its reasons for not doing so.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to answer all questions from the most recent version of the Survey of Sexual Violence conducted by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available incident-based documents, including reports, investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private facility with which it contracts for the confinement of its inmates.
(f) Upon request, the agency shall provide all such data from the previous calendar year to the Department of Justice no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.87 in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in addressing sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would present a clear and specific threat to the safety and security of a facility, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.87 are securely retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its direct control and private facilities with which it contracts, readily available to the public at least annually through its Web site or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.87 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
The agency shall conduct audits pursuant to §§ 115.401 through 115.405.
(a) An agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) An agency shall employ or designate an upper-level, agency-wide PREA coordinator with sufficient time and authority to develop, implement, and oversee agency efforts to comply with the PREA standards in all of its lockups.
(a) A law enforcement agency that contracts for the confinement of its lockup detainees in lockups operated by private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.
(a) For each lockup, the agency shall develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect detainees against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, agencies shall take into consideration;
(1) The physical layout of each lockup;
(2) The composition of the detainee population;
(3) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the lockup shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, the lockup shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The lockup's deployment of video monitoring systems and other monitoring technologies; and
(4) The resources the lockup has available to commit to ensure adequate staffing levels.
(d) If vulnerable detainees are identified pursuant to the screening required by § 115.141, security staff shall provide such detainees with
Juveniles and youthful detainees shall be held separately from adult detainees.
(a) The lockup shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.
(b) The lockup shall document all cross-gender strip searches and cross-gender visual body cavity searches.
(c) The lockup shall implement policies and procedures that enable detainees to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an area where detainees are likely to be showering, performing bodily functions, or changing clothing.
(d) The lockup shall not search or physically examine a transgender or intersex detainee for the sole purpose of determining the detainee's genital status. If the detainee's genital status is unknown, it may be determined during conversations with the detainee, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
(e) The agency shall train law enforcement staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex detainees, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
(a) The agency shall take appropriate steps to ensure that detainees with disabilities (including, for example, detainees who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to ensure effective communication with detainees who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure that written materials are provided in formats or through methods that ensure effective communication with detainees with disabilities, including detainees who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment to detainees who are limited English proficient, including steps to provide interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
(c) The agency shall not rely on detainee interpreters, detainee readers, or other types of detainee assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the detainee's safety, the performance of first-response duties under § 115.164, or the investigation of the detainee's allegations.
(a) The agency shall not hire or promote anyone who may have contact with detainees, and shall not enlist the services of any contractor who may have contact with detainees, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether to hire or promote anyone, or to enlist the services of any contractor, who may have contact with detainees.
(c) Before hiring new employees who may have contact with detainees, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior institutional employers for information on substantiated allegations of sexual abuse or any resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting the services of any contractor who may have contact with detainees.
(e) The agency shall either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with detainees or have in place a system for otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have contact with detainees directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(a) When designing or acquiring any new lockup and in planning any substantial expansion or modification of existing lockups, the agency shall consider the effect of the design, acquisition, expansion, or modification
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the agency shall consider how such technology may enhance the agency's ability to protect detainees from sexual abuse.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse in its lockups, the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S. Department of Justice's Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and authoritative protocols developed after 2011. As part of the training required in § 115.131, employees and volunteers who may have contact with lockup detainees shall receive basic training regarding how to detect and respond to victims of sexual abuse.
(c) The agency shall offer all victims of sexual abuse access to forensic medical examinations whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified medical practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) If the detainee is transported for a forensic examination to an outside hospital that offers victim advocacy services, the detainee shall be permitted to use such services to the extent available, consistent with security needs.
(e) To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the agency shall request that the investigating agency follow the requirements of paragraphs (a) through (d) of this section.
(f) The requirements in paragraphs (a) through (e) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations of sexual abuse in lockups; and
(2) Any Department of Justice component that is responsible for investigating allegations of sexual abuse in lockups.
(a) The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
(b) If another law enforcement agency is responsible for conducting investigations of allegations of sexual abuse or sexual harassment in its lockups, the agency shall have in place a policy to ensure that such allegations are referred for investigation to an agency with the legal authority to conduct criminal investigations, unless the allegation does not involve potentially criminal behavior. The agency shall publish such policy, including a description of responsibilities of both the agency and the investigating entity, on its Web site, or, if it does not have one, make available the policy through other means. The agency shall document all such referrals.
(c) Any State entity responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in lockups shall have in place a policy governing the conduct of such investigations.
(d) Any Department of Justice component responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in lockups shall have in place a policy governing the conduct of such investigations.
(a) The agency shall train all employees and volunteers who may have contact with lockup detainees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures, including training on:
(1) The agency's zero-tolerance policy and detainees' right to be free from sexual abuse and sexual harassment;
(2) The dynamics of sexual abuse and harassment in confinement settings, including which detainees are most vulnerable in lockup settings;
(3) The right of detainees and employees to be free from retaliation for reporting sexual abuse or harassment;
(4) How to detect and respond to signs of threatened and actual abuse;
(5) How to communicate effectively and professionally with all detainees; and
(6) How to comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities.
(b) All current employees and volunteers who may have contact with lockup detainees shall be trained within one year of the effective date of the PREA standards, and the agency shall provide annual refresher information to all such employees and volunteers to ensure that they know the agency's current sexual abuse and sexual harassment policies and procedures.
(c) The agency shall document, through employee signature or electronic verification, that employees understand the training they have received.
(a) During the intake process, employees shall notify all detainees of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment.
(b) The agency shall ensure that, upon entering the lockup, contractors and any inmates who work in the lockup are informed of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment.
(a) In addition to the general training provided to all employees and volunteers pursuant to § 115.131, the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations, its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims, proper use of
(c) The agency shall maintain documentation that agency investigators have completed the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates
(a) In lockups that are not utilized to house detainees overnight, before placing any detainees together in a holding cell, staff shall consider whether, based on the information before them, a detainee may be at a high risk of being sexually abused and, when appropriate, shall take necessary steps to mitigate any such danger to the detainee.
(b) In lockups that are utilized to house detainees overnight, all detainees shall be screened to assess their risk of being sexually abused by other detainees or sexually abusive toward other detainees.
(c) In lockups described in paragraph (b) of this section, staff shall ask the detainee about his or her own perception of vulnerability.
(d) The screening process in the lockups described in paragraph (b) of this section shall also consider, to the extent that the information is available, the following criteria to screen detainees for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated; and
(5) The nature of the detainee's alleged offense and criminal history.
(a) The agency shall provide multiple ways for detainees to privately report sexual abuse and sexual harassment, retaliation by other detainees or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.
(b) The agency shall also inform detainees of at least one way to report abuse or harassment to a public or private entity or office that is not part of the agency, and that is able to receive and immediately forward detainee reports of sexual abuse and sexual harassment to agency officials, allowing the detainee to remain anonymous upon request.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third parties and promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and sexual harassment of detainees.
The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment in its lockups and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of a detainee.
(a) The agency shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in an agency lockup; retaliation against detainees or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment and investigation decisions.
(c) If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
(d) The agency shall report all allegations of sexual abuse, including third-party and anonymous reports, to the agency's designated investigators.
When an agency learns that a detainee is subject to a substantial risk of imminent sexual abuse, it shall take immediate action to protect the detainee.
(a) Upon receiving an allegation that a detainee was sexually abused while confined at another facility, the head of the facility that received the allegation shall notify the head of the facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the allegation is investigated in accordance with these standards.
(a) Upon learning of an allegation that a detainee was sexually abused, the first law enforcement staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request that the alleged victim not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence and then notify law enforcement staff.
(a) The agency shall develop a written institutional plan to coordinate actions taken in response to a lockup incident of sexual abuse, among staff first responders, medical and mental health practitioners, investigators, and agency leadership.
(b) If a victim is transferred from the lockup to a jail, prison, or medical facility, the agency shall, as permitted by law, inform the receiving facility of the incident and the victim's potential need for medical or social services, unless the victim requests otherwise.
(a) Neither the agency nor any other governmental entity responsible for collective bargaining on the agency's behalf shall enter into or renew any collective bargaining agreement or other agreement that limits the agency's ability to remove alleged staff sexual abusers from contact with detainees pending the outcome of an investigation or of a determination of whether and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such agreements are not inconsistent with the provisions of §§ 115.172 and 115.176; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an investigation shall be expunged from or retained in the staff member's personnel file following a determination that the allegation of sexual abuse is not substantiated.
(a) The agency shall establish a policy to protect all detainees and staff who report sexual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other detainees or staff, and shall designate which staff members or departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or transfers for detainee victims or abusers, removal of alleged staff or detainee abusers from contact with victims, and emotional support services for staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) The agency shall monitor the conduct and treatment of detainees or staff who have reported sexual abuse and of detainees who were reported to have suffered sexual abuse, and shall act promptly to remedy any such retaliation.
(d) If any other individual who cooperates with an investigation expresses a fear of retaliation, the agency shall take appropriate measures to protect that individual against retaliation.
(e) An agency's obligation to monitor shall terminate if the agency determines that the allegation is unfounded.
(a) When the agency conducts its own investigations into allegations of sexual abuse and sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations, including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received special training in sexual abuse investigations pursuant to § 115.134.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; shall interview alleged victims, suspected perpetrators, and witnesses; and shall review prior complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency shall conduct compelled interviews only after consulting with prosecutors as to whether compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an individual basis and shall not be determined by the person's status as detainee or staff. No agency shall require a detainee who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and attaches copies of all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this section for as long as the alleged abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the employment or control of the lockup or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such investigations shall do so pursuant to the above requirements.
(l) When outside agencies investigate sexual abuse, the agency shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
The agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the nature and circumstances of the acts committed, the staff member's disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from contact with detainees and shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to prohibit further contact with detainees, in the case of any other violation of agency sexual abuse or
(a) When there is probable cause to believe that a detainee sexually abused another detainee in a lockup, the agency shall refer the matter to the appropriate prosecuting authority.
(b) To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the agency shall inform the investigating entity of this policy.
(c) Any State entity or Department of Justice component that is responsible for investigating allegations of sexual abuse in lockups shall be subject to this requirement.
(a) Detainee victims of sexual abuse in lockups shall receive timely, unimpeded access to emergency medical treatment.
(b) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) The lockup shall conduct a sexual abuse incident review at the conclusion of every sexual abuse investigation, including where the allegation has not been substantiated, unless the allegation has been determined to be unfounded.
(b) Such review shall ordinarily occur within 30 days of the conclusion of the investigation.
(c) The review team shall include upper-level management officials, with input from line supervisors and investigators.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse;
(2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the lockup;
(3) Examine the area in the lockup where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse;
(4) Assess the adequacy of staffing levels in that area during different shifts;
(5) Assess whether monitoring technology should be deployed or augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily limited to determinations made pursuant to paragraphs (d)(1) through (d)(5) of this section, and any recommendations for improvement and submit such report to the lockup head and agency PREA coordinator.
(e) The lockup shall implement the recommendations for improvement, or shall document its reasons for not doing so.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at lockups under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to answer all questions from the most recent version of the Local Jail Jurisdictions Survey of Sexual Violence conducted by the Department of Justice, or any subsequent form developed by the Department of Justice and designated for lockups.
(d) The agency shall maintain, review, and collect data as needed from all available incident-based documents, including reports, investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data from any private agency with which it contracts for the confinement of its detainees.
(f) Upon request, the agency shall provide all such data from the previous calendar year to the Department of Justice no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.187 in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each lockup, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in addressing sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would present a clear and specific threat to the safety and security of a lockup, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.187 are securely retained.
(b) The agency shall make all aggregated sexual abuse data, from lockups under its direct control and any private agencies with which it contracts, readily available to the public at least annually through its Web site or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.187 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
The agency shall conduct audits pursuant to §§ 115.401 through 115.405. Audits need not be conducted of individual lockups that are not utilized to house detainees overnight.
(a) An agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) An agency shall employ or designate an upper-level, agency-wide PREA coordinator, with sufficient time and authority to develop, implement, and oversee agency efforts to comply
(a) A public agency that contracts for the confinement of its residents with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.
(c) Only in emergency circumstances in which all reasonable attempts to find a private agency or other entity in compliance with the PREA standards have failed, may the agency enter into a contract with an entity that fails to comply with these standards. In such a case, the public agency shall document its unsuccessful attempts to find an entity in compliance with the standards.
(a) For each facility, the agency shall develop and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect residents against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, agencies shall take into consideration:
(1) The physical layout of each facility;
(2) The composition of the resident population;
(3) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the facility shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, the facility shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The facility's deployment of video monitoring systems and other monitoring technologies; and
(4) The resources the facility has available to commit to ensure adequate staffing levels.
(a) The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.
(b) As of August 20, 2015, or August 21, 2017 for a facility whose rated capacity does not exceed 50 residents, the facility shall not permit cross-gender pat-down searches of female residents, absent exigent circumstances. Facilities shall not restrict female residents' access to regularly available programming or other outside opportunities in order to comply with this provision.
(c) The facility shall document all cross-gender strip searches and cross-gender visual body cavity searches, and shall document all cross-gender pat-down searches of female residents.
(d) The facility shall implement policies and procedures that enable residents to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an area where residents are likely to be showering, performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident's genital status. If the resident's genital status is unknown, it may be determined during conversations with the resident, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
(f) The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
(a) The agency shall take appropriate steps to ensure that residents with disabilities (including, for example, residents who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to ensure effective communication with residents who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure that written materials are provided in formats or through methods that ensure effective communication with residents with disabilities, including residents who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment to residents who are limited English proficient, including steps to provide interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
(c) The agency shall not rely on resident interpreters, resident readers, or other types of resident assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the resident's safety, the performance of first-response duties under § 115.264, or the investigation of the resident's allegations.
(a) The agency shall not hire or promote anyone who may have contact with residents, and shall not enlist the services of any contractor who may have contact with residents, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or
(3) Has been civilly or administratively adjudicated to have engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether to hire or promote anyone, or to enlist the services of any contractor, who may have contact with residents.
(c) Before hiring new employees who may have contact with residents, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior institutional employers for information on substantiated allegations of sexual abuse or any resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting the services of any contractor who may have contact with residents.
(e) The agency shall either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with residents or have in place a system for otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may have contact with residents directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(a) When designing or acquiring any new facility and in planning any substantial expansion or modification of existing facilities, the agency shall consider the effect of the design, acquisition, expansion, or modification upon the agency's ability to protect residents from sexual abuse.
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the agency shall consider how such technology may enhance the agency's ability to protect residents from sexual abuse.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse, the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S. Department of Justice's Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and authoritative protocols developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to forensic medical examinations whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified medical practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a victim advocate from a rape crisis center. If a rape crisis center is not available to provide victim advocate services, the agency shall make available to provide these services a qualified staff member from a community-based organization or a qualified agency staff member. Agencies shall document efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis center refers to an entity that provides intervention and related assistance, such as the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may utilize a rape crisis center that is part of a governmental unit as long as the center is not part of the criminal justice system (such as a law enforcement agency) and offers a comparable level of confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or qualified community-based organization staff member shall accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.
(f) To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the agency shall request that the investigating agency follow the requirements of paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations of sexual abuse in community confinement facilities; and
(2) Any Department of Justice component that is responsible for investigating allegations of sexual abuse in community confinement facilities.
(h) For the purposes of this standard, a qualified agency staff member or a qualified community-based staff member shall be an individual who has been screened for appropriateness to serve in this role and has received education concerning sexual assault and forensic examination issues in general.
(a) The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or sexual harassment are referred for investigation to an agency with the legal authority to conduct criminal investigations, unless the allegation does not involve potentially criminal behavior. The agency shall publish such policy on its Web site or, if it does not have one, make the policy available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in community confinement facilities shall have in place a policy governing the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in community confinement facilities shall have in place a policy governing the conduct of such investigations.
(a) The agency shall train all employees who may have contact with residents on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment prevention, detection, reporting, and response policies and procedures;
(3) Residents' right to be free from sexual abuse and sexual harassment;
(4) The right of residents and employees to be free from retaliation for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in confinement;
(6) The common reactions of sexual abuse and sexual harassment victims;
(7) How to detect and respond to signs of threatened and actual sexual abuse;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities.
(b) Such training shall be tailored to the gender of the residents at the employee's facility. The employee shall receive additional training if the employee is reassigned from a facility that houses only male residents to a facility that houses only female residents, or vice versa.
(c) All current employees who have not received such training shall be trained within one year of the effective date of the PREA standards, and the agency shall provide each employee with refresher training every two years to ensure that all employees know the agency's current sexual abuse and sexual harassment policies and procedures. In years in which an employee does not receive refresher training, the agency shall provide refresher information on current sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification, that employees understand the training they have received.
(a) The agency shall ensure that all volunteers and contractors who have contact with residents have been trained on their responsibilities under the agency's sexual abuse and sexual harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based on the services they provide and level of contact they have with residents, but all volunteers and contractors who have contact with residents shall be notified of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers and contractors understand the training they have received.
(a) During the intake process, residents shall receive information explaining the agency's zero-tolerance policy regarding sexual abuse and sexual harassment, how to report incidents or suspicions of sexual abuse or sexual harassment, their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding agency policies and procedures for responding to such incidents.
(b) The agency shall provide refresher information whenever a resident is transferred to a different facility.
(c) The agency shall provide resident education in formats accessible to all residents, including those who are limited English proficient, deaf, visually impaired, or otherwise disabled as well as residents who have limited reading skills.
(d) The agency shall maintain documentation of resident participation in these education sessions.
(e) In addition to providing such education, the agency shall ensure that key information is continuously and readily available or visible to residents through posters, resident handbooks, or other written formats.
(a) In addition to the general training provided to all employees pursuant to § 115.231, the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations, its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims, proper use of
(c) The agency shall maintain documentation that agency investigators have completed the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in confinement settings shall provide such training to its agents and investigators who conduct such investigations.
(a) The agency shall ensure that all full- and part-time medical and mental health care practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated for employees under § 115.231 or for contractors and volunteers under § 115.232, depending upon the practitioner's status at the agency.
(a) All residents shall be assessed during an intake screening and upon transfer to another facility for their risk of being sexually abused by other residents or sexually abusive toward other residents.
(b) Intake screening shall ordinarily take place within 72 hours of arrival at the facility.
(c) Such assessments shall be conducted using an objective screening instrument.
(d) The intake screening shall consider, at a minimum, the following criteria to assess residents for risk of sexual victimization:
(1) Whether the resident has a mental, physical, or developmental disability;
(2) The age of the resident;
(3) The physical build of the resident;
(4) Whether the resident has previously been incarcerated;
(5) Whether the resident's criminal history is exclusively nonviolent;
(6) Whether the resident has prior convictions for sex offenses against an adult or child;
(7) Whether the resident is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the resident has previously experienced sexual victimization; and
(9) The resident's own perception of vulnerability.
(e) The intake screening shall consider prior acts of sexual abuse, prior convictions for violent offenses, and history of prior institutional violence or sexual abuse, as known to the agency, in assessing residents for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the resident's arrival at the facility, the facility will reassess the resident's risk of victimization or abusiveness based upon any additional, relevant information received by the facility since the intake screening.
(g) A resident's risk level shall be reassessed when warranted due to a referral, request, incident of sexual abuse, or receipt of additional information that bears on the resident's risk of sexual victimization or abusiveness.
(h) Residents may not be disciplined for refusing to answer, or for not disclosing complete information in response to, questions asked pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this section.
(i) The agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the resident's detriment by staff or other residents.
(a) The agency shall use information from the risk screening required by § 115.241 to inform housing, bed, work, education, and program assignments with the goal of keeping separate those residents at high risk of being sexually victimized from those at high risk of being sexually abusive.
(b) The agency shall make individualized determinations about how to ensure the safety of each resident.
(c) In deciding whether to assign a transgender or intersex resident to a facility for male or female residents, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the resident's health and safety, and whether the placement would present management or security problems.
(d) A transgender or intersex resident's own views with respect to his or her own safety shall be given serious consideration.
(e) Transgender and intersex residents shall be given the opportunity to shower separately from other residents.
(f) The agency shall not place lesbian, gay, bisexual, transgender, or intersex residents in dedicated facilities, units, or wings solely on the basis of such identification or status, unless such placement is in a dedicated facility unit, or wing established in connection with a consent decree, legal settlement, or legal judgment for the purpose of protecting such residents.
(a) The agency shall provide multiple internal ways for residents to privately report sexual abuse and sexual harassment, retaliation by other residents or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.
(b) The agency shall also inform residents of at least one way to report abuse or harassment to a public or private entity or office that is not part of the agency and that is able to receive and immediately forward resident reports of sexual abuse and sexual harassment to agency officials, allowing the resident to remain anonymous upon request.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and sexual harassment of residents.
(a) An agency shall be exempt from this standard if it does not have administrative procedures to address resident grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any portion of a grievance that does not allege an incident of sexual abuse.
(3) The agency shall not require a resident to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to defend against a lawsuit filed by a resident on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) A resident who alleges sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by residents in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the resident in writing of any such extension and provide a date by which a decision will be made.
(4) At any level of the administrative process, including the final level, if the resident does not receive a response within the time allotted for reply, including any properly noticed extension, the resident may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow residents, staff members, family members, attorneys, and outside advocates, shall be permitted to assist residents in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of residents.
(2) If a third party files such a request on behalf of a resident, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process.
(3) If the resident declines to have the request processed on his or her behalf, the agency shall document the resident's decision.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance alleging that a resident is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is subject to a substantial risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within 5 calendar days. The initial response and final agency decision shall document the agency's determination whether the resident is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.
(g) The agency may discipline a resident for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the resident filed the grievance in bad faith.
(a) The facility shall provide residents with access to outside victim advocates for emotional support services related to sexual abuse by giving residents mailing addresses and telephone numbers, including toll-free hotline numbers where available, of local, State, or national victim advocacy or rape crisis organizations, and by enabling reasonable communication between residents and these organizations, in as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide residents with confidential emotional support services related to sexual abuse. The agency shall maintain copies of agreements or documentation showing attempts to enter into such agreements.
The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of a resident.
(a) The agency shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against residents or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
(c) Unless otherwise precluded by Federal, State, or local law, medical and mental health practitioners shall be required to report sexual abuse pursuant to paragraph (a) of this section and to inform residents of the practitioner's duty to report, and the limitations of confidentiality, at the initiation of services.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency shall report the allegation to the designated State or local services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, to the facility's designated investigators.
When an agency learns that a resident is subject to a substantial risk of imminent sexual abuse, it shall take immediate action to protect the resident.
(a) Upon receiving an allegation that a resident was sexually abused while confined at another facility, the head of the facility that received the allegation shall notify the head of the facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the allegation is investigated in accordance with these standards.
(a) Upon learning of an allegation that a resident was sexually abused, the first security staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request that the alleged victim not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence and then notify security staff.
The facility shall develop a written institutional plan to coordinate actions taken in response to an incident of sexual abuse, among staff first responders, medical and mental health practitioners, investigators, and facility leadership.
(a) Neither the agency nor any other governmental entity responsible for collective bargaining on the agency's behalf shall enter into or renew any collective bargaining agreement or other agreement that limits the agency's ability to remove alleged staff sexual abusers from contact with residents pending the outcome of an investigation or of a determination of whether and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such agreements are not inconsistent with the provisions of §§ 115.272 and 115.276; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an investigation shall be expunged from or retained in the staff member's personnel file following a determination that the allegation of sexual abuse is not substantiated.
(a) The agency shall establish a policy to protect all residents and staff who report sexual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other residents or staff and shall designate which staff members or departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or transfers for resident victims or abusers, removal of alleged staff or resident abusers from contact with victims, and emotional support services for residents or staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the conduct and treatment of residents or staff who reported the sexual abuse and of residents who were reported to have suffered sexual abuse to see if there are changes that may suggest possible retaliation by residents or staff, and shall act promptly to remedy any such retaliation. Items the agency should monitor include any resident disciplinary reports, housing, or program changes, or negative performance reviews or reassignments of staff. The agency shall continue such monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(d) In the case of residents, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of retaliation, the agency shall take appropriate measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency determines that the allegation is unfounded.
(a) When the agency conducts its own investigations into allegations of sexual abuse and sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations, including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received special training in sexual abuse investigations pursuant to § 115.234.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; shall interview alleged victims, suspected perpetrators, and witnesses; and shall review prior complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency shall conduct compelled interviews only after consulting with prosecutors as to whether compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an individual basis and shall not be determined by the person's status as resident or staff. No agency shall require a resident who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and attaches copies of all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this section for as long as the alleged abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the employment or control of the facility or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such investigations shall do so pursuant to the above requirements.
(l) When outside agencies investigate sexual abuse, the facility shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
The agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.
(a) Following an investigation into a resident's allegation of sexual abuse suffered in an agency facility, the agency shall inform the resident as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant information from the investigative agency in order to inform the resident.
(c) Following a resident's allegation that a staff member has committed sexual abuse against the resident, the agency shall subsequently inform the resident (unless the agency has determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident's unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to sexual abuse within the facility.
(d) Following a resident's allegation that he or she has been sexually abused by another resident, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency's obligation to report under this standard shall terminate if the resident is released from the agency's custody.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the nature and circumstances of the acts committed, the staff member's disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from contact with residents and shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to prohibit further contact with residents, in the case of any other violation of agency sexual abuse or sexual harassment policies by a contractor or volunteer.
(a) Residents shall be subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative finding that the resident engaged in resident-on-resident sexual abuse or following a criminal finding of guilt for resident-on-resident sexual abuse.
(b) Sanctions shall be commensurate with the nature and circumstances of the abuse committed, the resident's disciplinary history, and the sanctions imposed for comparable offenses by other residents with similar histories.
(c) The disciplinary process shall consider whether a resident's mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address and correct underlying reasons or motivations for the abuse, the facility shall consider whether to require the offending resident to participate in such interventions as a condition of access to programming or other benefits.
(e) The agency may discipline a resident for sexual contact with staff only upon a finding that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between residents and may discipline residents for such activity. An agency may not, however, deem such activity to constitute sexual abuse if it determines that the activity is not coerced.
(a) Resident victims of sexual abuse shall receive timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders shall take preliminary steps to protect the victim pursuant to § 115.262 and shall immediately notify the appropriate medical and mental health practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be offered timely information about and timely access to emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care, where medically appropriate.
(d) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) The facility shall offer medical and mental health evaluation and, as appropriate, treatment to all residents who have been victimized by sexual abuse in any prison, jail, lockup, or juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of this section, such victims shall receive timely and comprehensive information about and timely access to all lawful pregnancy-related medical services.
(f) Resident victims of sexual abuse while incarcerated shall be offered tests for sexually transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(h) The facility shall attempt to conduct a mental health evaluation of all known resident-on-resident abusers within 60 days of learning of such abuse history and offer treatment when deemed appropriate by mental health practitioners.
(a) The facility shall conduct a sexual abuse incident review at the conclusion of every sexual abuse investigation, including where the allegation has not been substantiated, unless the allegation has been determined to be unfounded.
(b) Such review shall ordinarily occur within 30 days of the conclusion of the investigation.
(c) The review team shall include upper-level management officials, with input from line supervisors, investigators, and medical or mental health practitioners.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse;
(2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse;
(4) Assess the adequacy of staffing levels in that area during different shifts;
(5) Assess whether monitoring technology should be deployed or augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily limited to determinations made pursuant to paragraphs (d)(1) through (d)(5) of this section, and any recommendations for improvement, and submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for improvement, or shall document its reasons for not doing so.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to answer all questions from the most recent version of the Survey of Sexual Violence conducted by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available incident-based documents including reports, investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private facility with which it contracts for the confinement of its residents.
(f) Upon request, the agency shall provide all such data from the previous calendar year to the Department of Justice no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.287 in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in addressing sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would present a clear and specific threat to the safety and security of a facility, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.287 are securely retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its direct control and private facilities with which it contracts, readily available to the public at least annually through its Web site or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.287 for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.
The agency shall conduct audits pursuant to §§ 115.401 through 115.405.
(a) An agency shall have a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment and outlining the agency's approach to preventing, detecting, and responding to such conduct.
(b) An agency shall employ or designate an upper-level, agency-wide PREA coordinator with sufficient time and authority to develop, implement, and oversee agency efforts to comply with the PREA standards in all of its facilities.
(c) Where an agency operates more than one facility, each facility shall designate a PREA compliance manager with sufficient time and authority to coordinate the facility's efforts to comply with the PREA standards.
(a) A public agency that contracts for the confinement of its residents with private agencies or other entities, including other government agencies, shall include in any new contract or contract renewal the entity's obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to ensure that the contractor is complying with the PREA standards.
(a) The agency shall ensure that each facility it operates shall develop, implement, and document a staffing plan that provides for adequate levels of staffing, and, where applicable, video monitoring, to protect residents against sexual abuse. In calculating adequate staffing levels and determining the need for video monitoring, facilities shall take into consideration:
(1) Generally accepted juvenile detention and correctional/secure residential practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight bodies;
(5) All components of the facility's physical plant (including “blind spots” or areas where staff or residents may be isolated);
(6) The composition of the resident population;
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(11) Any other relevant factors.
(b) The agency shall comply with the staffing plan except during limited and discrete exigent circumstances, and shall fully document deviations from the plan during such circumstances.
(c) Each secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during resident sleeping hours, except during limited and discrete exigent circumstances, which shall be fully documented. Only security staff shall be included in these ratios. Any facility that, as of the date of publication of this final rule, is not already obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in this paragraph shall have until October 1, 2017, to achieve compliance.
(d) Whenever necessary, but no less frequently than once each year, for each facility the agency operates, in consultation with the PREA coordinator required by § 115.311, the agency shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The facility's deployment of video monitoring systems and other monitoring technologies; and
(4) The resources the facility has available to commit to ensure adherence to the staffing plan.
(e) Each secure facility shall implement a policy and practice of having intermediate-level or higher level supervisors conduct and document unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Such policy and practice shall be implemented for night shifts as well as day shifts. Each secure facility shall have a policy to prohibit staff from alerting other staff members that these supervisory rounds are occurring, unless such announcement is related to the legitimate operational functions of the facility.
(a) The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.
(b) The agency shall not conduct cross-gender pat-down searches except in exigent circumstances.
(c) The facility shall document and justify all cross-gender strip searches, cross-gender visual body cavity searches, and cross-gender pat-down searches.
(d) The facility shall implement policies and procedures that enable residents to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia, except in exigent circumstances or when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering a resident housing unit. In facilities (such as group homes) that do not contain discrete housing units, staff of the opposite gender shall be required to announce their presence when entering an area where residents are likely to be showering, performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a transgender or intersex resident for the sole purpose of determining the resident's genital status. If the resident's genital status is unknown, it may be determined during conversations with the resident, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.
(f) The agency shall train security staff in how to conduct cross-gender pat-down searches, and searches of transgender and intersex residents, in a professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.
(a) The agency shall take appropriate steps to ensure that residents with disabilities (including, for example, residents who are deaf or hard of hearing, those who are blind or have low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal opportunity to participate in or benefit from all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to ensure effective communication with residents who are deaf or hard of hearing, providing access to interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure that written materials are provided in formats or through methods that ensure effective communication with residents with disabilities, including residents who have intellectual disabilities, limited reading skills, or who are blind or have low vision. An agency is not required to take actions that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens, as those terms are used in regulations promulgated under title II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of the agency's efforts to prevent, detect, and respond to sexual abuse and sexual harassment to residents who are limited English proficient, including steps to provide interpreters who can interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
(c) The agency shall not rely on resident interpreters, resident readers, or other types of resident assistants except in limited circumstances where an extended delay in obtaining an effective interpreter could compromise the resident's safety, the performance of first-response duties under § 115.364, or the investigation of the resident's allegations.
(a) The agency shall not hire or promote anyone who may have contact with residents, and shall not enlist the services of any contractor who may have contact with residents, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the community facilitated by force, overt or implied threats of force, or coercion, or if the victim did not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether to hire or promote anyone, or to enlist the services of any
(c) Before hiring new employees who may have contact with residents, the agency shall:
(1) Perform a criminal background records check;
(2) Consult any child abuse registry maintained by the State or locality in which the employee would work; and
(3) Consistent with Federal, State, and local law, make its best efforts to contact all prior institutional employers for information on substantiated allegations of sexual abuse or any resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check, and consult applicable child abuse registries, before enlisting the services of any contractor who may have contact with residents.
(e) The agency shall either conduct criminal background records checks at least every five years of current employees and contractors who may have contact with residents or have in place a system for otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may have contact with residents directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated allegations of sexual abuse or sexual harassment involving a former employee upon receiving a request from an institutional employer for whom such employee has applied to work.
(a) When designing or acquiring any new facility and in planning any substantial expansion or modification of existing facilities, the agency shall consider the effect of the design, acquisition, expansion, or modification upon the agency's ability to protect residents from sexual abuse.
(b) When installing or updating a video monitoring system, electronic surveillance system, or other monitoring technology, the agency shall consider how such technology may enhance the agency's ability to protect residents from sexual abuse.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse, the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth and, as appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S. Department of Justice's Office on Violence Against Women publication, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and authoritative protocols developed after 2011.
(c) The agency shall offer all residents who experience sexual abuse access to forensic medical examinations whether on-site or at an outside facility, without financial cost, where evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made available, the examination can be performed by other qualified medical practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a victim advocate from a rape crisis center. If a rape crisis center is not available to provide victim advocate services, the agency shall make available to provide these services a qualified staff member from a community-based organization or a qualified agency staff member. Agencies shall document efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis center refers to an entity that provides intervention and related assistance, such as the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may utilize a rape crisis center that is part of a governmental unit as long as the center is not part of the criminal justice system (such as a law enforcement agency) and offers a comparable level of confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or qualified community-based organization staff member shall accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.
(f) To the extent the agency itself is not responsible for investigating allegations of sexual abuse, the agency shall request that the investigating agency follow the requirements of paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations of sexual abuse in juvenile facilities; and
(2) Any Department of Justice component that is responsible for investigating allegations of sexual abuse in juvenile facilities.
(h) For the purposes of this standard, a qualified agency staff member or a qualified community-based staff member shall be an individual who has been screened for appropriateness to serve in this role and has received education concerning sexual assault and forensic examination issues in general.
(a) The agency shall ensure that an administrative or criminal investigation is completed for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or sexual harassment are referred for investigation to an agency with the legal authority to conduct criminal investigations, unless the allegation does not involve potentially criminal behavior. The agency shall publish such policy on its Web site or, if it does not have one, make the policy available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations of sexual abuse or sexual harassment in juvenile facilities shall have in place a policy governing the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or criminal investigations of sexual abuse or sexual
(a) The agency shall train all employees who may have contact with residents on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment prevention, detection, reporting, and response policies and procedures;
(3) Residents' right to be free from sexual abuse and sexual harassment;
(4) The right of residents and employees to be free from retaliation for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in juvenile facilities;
(6) The common reactions of juvenile victims of sexual abuse and sexual harassment;
(7) How to detect and respond to signs of threatened and actual sexual abuse and how to distinguish between consensual sexual contact and sexual abuse between residents;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with residents, including lesbian, gay, bisexual, transgender, intersex, or gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities;
(11) Relevant laws regarding the applicable age of consent.
(b) Such training shall be tailored to the unique needs and attributes of residents of juvenile facilities and to the gender of the residents at the employee's facility. The employee shall receive additional training if the employee is reassigned from a facility that houses only male residents to a facility that houses only female residents, or vice versa.
(c) All current employees who have not received such training shall be trained within one year of the effective date of the PREA standards, and the agency shall provide each employee with refresher training every two years to ensure that all employees know the agency's current sexual abuse and sexual harassment policies and procedures. In years in which an employee does not receive refresher training, the agency shall provide refresher information on current sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification, that employees understand the training they have received.
(a) The agency shall ensure that all volunteers and contractors who have contact with residents have been trained on their responsibilities under the agency's sexual abuse and sexual harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based on the services they provide and level of contact they have with residents, but all volunteers and contractors who have contact with residents shall be notified of the agency's zero-tolerance policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers and contractors understand the training they have received.
(a) During the intake process, residents shall receive information explaining, in an age appropriate fashion, the agency's zero tolerance policy regarding sexual abuse and sexual harassment and how to report incidents or suspicions of sexual abuse or sexual harassment.
(b) Within 10 days of intake, the agency shall provide comprehensive age-appropriate education to residents either in person or through video regarding their rights to be free from sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents, and regarding agency policies and procedures for responding to such incidents.
(c) Current residents who have not received such education shall be educated within one year of the effective date of the PREA standards, and shall receive education upon transfer to a different facility to the extent that the policies and procedures of the resident's new facility differ from those of the previous facility.
(d) The agency shall provide resident education in formats accessible to all residents, including those who are limited English proficient, deaf, visually impaired, or otherwise disabled, as well as to residents who have limited reading skills.
(e) The agency shall maintain documentation of resident participation in these education sessions.
(f) In addition to providing such education, the agency shall ensure that key information is continuously and readily available or visible to residents through posters, resident handbooks, or other written formats.
(a) In addition to the general training provided to all employees pursuant to § 115.331, the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations, its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing juvenile sexual abuse victims, proper use of
(c) The agency shall maintain documentation that agency investigators have completed the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in juvenile confinement settings shall provide such training to its agents and investigators who conduct such investigations.
(a) The agency shall ensure that all full- and part-time medical and mental health care practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to juvenile victims of sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated for employees under § 115.331 or for contractors and volunteers under § 115.332, depending
(a) Within 72 hours of the resident's arrival at the facility and periodically throughout a resident's confinement, the agency shall obtain and use information about each resident's personal history and behavior to reduce the risk of sexual abuse by or upon a resident.
(b) Such assessments shall be conducted using an objective screening instrument.
(c) At a minimum, the agency shall attempt to ascertain information about:
(1) Prior sexual victimization or abusiveness;
(2) Any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, or intersex, and whether the resident may therefore be vulnerable to sexual abuse;
(3) Current charges and offense history;
(4) Age;
(5) Level of emotional and cognitive development;
(6) Physical size and stature;
(7) Mental illness or mental disabilities;
(8) Intellectual or developmental disabilities;
(9) Physical disabilities;
(10) The resident's own perception of vulnerability; and
(11) Any other specific information about individual residents that may indicate heightened needs for supervision, additional safety precautions, or separation from certain other residents.
(d) This information shall be ascertained through conversations with the resident during the intake process and medical and mental health screenings; during classification assessments; and by reviewing court records, case files, facility behavioral records, and other relevant documentation from the resident's files.
(e) The agency shall implement appropriate controls on the dissemination within the facility of responses to questions asked pursuant to this standard in order to ensure that sensitive information is not exploited to the resident's detriment by staff or other residents.
(a) The agency shall use all information obtained pursuant to § 115.341 and subsequently to make housing, bed, program, education, and work assignments for residents with the goal of keeping all residents safe and free from sexual abuse.
(b) Residents may be isolated from others only as a last resort when less restrictive measures are inadequate to keep them and other residents safe, and then only until an alternative means of keeping all residents safe can be arranged. During any period of isolation, agencies shall not deny residents daily large-muscle exercise and any legally required educational programming or special education services. Residents in isolation shall receive daily visits from a medical or mental health care clinician. Residents shall also have access to other programs and work opportunities to the extent possible.
(c) Lesbian, gay, bisexual, transgender, or intersex residents shall not be placed in particular housing, bed, or other assignments solely on the basis of such identification or status, nor shall agencies consider lesbian, gay, bisexual, transgender, or intersex identification or status as an indicator of likelihood of being sexually abusive.
(d) In deciding whether to assign a transgender or intersex resident to a facility for male or female residents, and in making other housing and programming assignments, the agency shall consider on a case-by-case basis whether a placement would ensure the resident's health and safety, and whether the placement would present management or security problems.
(e) Placement and programming assignments for each transgender or intersex resident shall be reassessed at least twice each year to review any threats to safety experienced by the resident.
(f) A transgender or intersex resident's own views with respect to his or her own safety shall be given serious consideration.
(g) Transgender and intersex residents shall be given the opportunity to shower separately from other residents.
(h) If a resident is isolated pursuant to paragraph (b) of this section, the facility shall clearly document:
(1) The basis for the facility's concern for the resident's safety; and
(2) The reason why no alternative means of separation can be arranged.
(i) Every 30 days, the facility shall afford each resident described in paragraph (h) of this section a review to determine whether there is a continuing need for separation from the general population.
(a) The agency shall provide multiple internal ways for residents to privately report sexual abuse and sexual harassment, retaliation by other residents or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents.
(b) The agency shall also provide at least one way for residents to report abuse or harassment to a public or private entity or office that is not part of the agency and that is able to receive and immediately forward resident reports of sexual abuse and sexual harassment to agency officials, allowing the resident to remain anonymous upon request. Residents detained solely for civil immigration purposes shall be provided information on how to contact relevant consular officials and relevant officials at the Department of Homeland Security.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third parties and shall promptly document any verbal reports.
(d) The facility shall provide residents with access to tools necessary to make a written report.
(e) The agency shall provide a method for staff to privately report sexual abuse and sexual harassment of residents.
(a) An agency shall be exempt from this standard if it does not have administrative procedures to address resident grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any portion of a grievance that does not allege an incident of sexual abuse.
(3) The agency shall not require a resident to use any informal grievance process, or to otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to defend against a lawsuit filed by a resident on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) A resident who alleges sexual abuse may submit a grievance without submitting it to a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by residents in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal time period for response is insufficient to make an appropriate decision. The agency shall notify the resident in writing of any such extension and provide a date by which a decision will be made.
(4) At any level of the administrative process, including the final level, if the resident does not receive a response within the time allotted for reply, including any properly noticed extension, the resident may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow residents, staff members, family members, attorneys, and outside advocates, shall be permitted to assist residents in filing requests for administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests on behalf of residents.
(2) If a third party, other than a parent or legal guardian, files such a request on behalf of a resident, the facility may require as a condition of processing the request that the alleged victim agree to have the request filed on his or her behalf, and may also require the alleged victim to personally pursue any subsequent steps in the administrative remedy process.
(3) If the resident declines to have the request processed on his or her behalf, the agency shall document the resident's decision.
(4) A parent or legal guardian of a juvenile shall be allowed to file a grievance regarding allegations of sexual abuse, including appeals, on behalf of such juvenile. Such a grievance shall not be conditioned upon the juvenile agreeing to have the request filed on his or her behalf.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance alleging that a resident is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is subject to a substantial risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at which immediate corrective action may be taken, shall provide an initial response within 48 hours, and shall issue a final agency decision within 5 calendar days. The initial response and final agency decision shall document the agency's determination whether the resident is in substantial risk of imminent sexual abuse and the action taken in response to the emergency grievance.
(g) The agency may discipline a resident for filing a grievance related to alleged sexual abuse only where the agency demonstrates that the resident filed the grievance in bad faith.
(a) The facility shall provide residents with access to outside victim advocates for emotional support services related to sexual abuse, by providing, posting, or otherwise making accessible mailing addresses and telephone numbers, including toll free hotline numbers where available, of local, State, or national victim advocacy or rape crisis organizations, and, for persons detained solely for civil immigration purposes, immigrant services agencies. The facility shall enable reasonable communication between residents and these organizations and agencies, in as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them access, of the extent to which such communications will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide residents with confidential emotional support services related to sexual abuse. The agency shall maintain copies of agreements or documentation showing attempts to enter into such agreements.
(d) The facility shall also provide residents with reasonable and confidential access to their attorneys or other legal representation and reasonable access to parents or legal guardians.
The agency shall establish a method to receive third-party reports of sexual abuse and sexual harassment and shall distribute publicly information on how to report sexual abuse and sexual harassment on behalf of a resident.
(a) The agency shall require all staff to report immediately and according to agency policy any knowledge, suspicion, or information they receive regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against residents or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.
(b) The agency shall also require all staff to comply with any applicable mandatory child abuse reporting laws.
(c) Apart from reporting to designated supervisors or officials and designated State or local services agencies, staff shall be prohibited from revealing any information related to a sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to make treatment, investigation, and other security and management decisions.
(d)(1) Medical and mental health practitioners shall be required to report sexual abuse to designated supervisors and officials pursuant to paragraph (a) of this section, as well as to the designated State or local services agency where required by mandatory reporting laws.
(2) Such practitioners shall be required to inform residents at the initiation of services of their duty to report and the limitations of confidentiality.
(e)(1) Upon receiving any allegation of sexual abuse, the facility head or his or her designee shall promptly report the allegation to the appropriate agency office and to the alleged victim's parents or legal guardians, unless the facility has official documentation showing the parents or legal guardians should not be notified.
(2) If the alleged victim is under the guardianship of the child welfare system, the report shall be made to the alleged victim's caseworker instead of the parents or legal guardians.
(3) If a juvenile court retains jurisdiction over the alleged victim, the facility head or designee shall also report the allegation to the juvenile's attorney or other legal representative of record within 14 days of receiving the allegation.
(f) The facility shall report all allegations of sexual abuse and sexual harassment, including third-party and anonymous reports, to the facility's designated investigators.
When an agency learns that a resident is subject to a substantial risk of imminent sexual abuse, it shall take immediate action to protect the resident.
(a) Upon receiving an allegation that a resident was sexually abused while confined at another facility, the head of the facility that received the allegation shall notify the head of the facility or appropriate office of the agency where the alleged abuse occurred and shall also notify the appropriate investigative agency.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the allegation is investigated in accordance with these standards.
(a) Upon learning of an allegation that a resident was sexually abused, the first staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of physical evidence, request that the alleged victim not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of physical evidence, ensure that the alleged abuser does not take any actions that could destroy physical evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be required to request that the alleged victim not take any actions that could destroy physical evidence, and then notify security staff.
The facility shall develop a written institutional plan to coordinate actions taken in response to an incident of sexual abuse among staff first responders, medical and mental health practitioners, investigators, and facility leadership.
(a) Neither the agency nor any other governmental entity responsible for collective bargaining on the agency's behalf shall enter into or renew any collective bargaining agreement or other agreement that limits the agency's ability to remove alleged staff sexual abusers from contact with residents pending the outcome of an investigation or of a determination of whether and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such agreements are not inconsistent with the provisions of §§ 115.372 and 115.376; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an investigation shall be expunged from or retained in the staff member's personnel file following a determination that the allegation of sexual abuse is not substantiated.
(a) The agency shall establish a policy to protect all residents and staff who report sexual abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations from retaliation by other residents or staff and shall designate which staff members or departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or transfers for resident victims or abusers, removal of alleged staff or resident abusers from contact with victims, and emotional support services for residents or staff who fear retaliation for reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the conduct or treatment of residents or staff who reported the sexual abuse and of residents who were reported to have suffered sexual abuse to see if there are changes that may suggest possible retaliation by residents or staff, and shall act promptly to remedy any such retaliation. Items the agency should monitor include any resident disciplinary reports, housing, or program changes, or negative performance reviews or reassignments of staff. The agency shall continue such monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(d) In the case of residents, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of retaliation, the agency shall take appropriate measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency determines that the allegation is unfounded.
Any use of segregated housing to protect a resident who is alleged to have suffered sexual abuse shall be subject to the requirements of § 115.342.
(a) When the agency conducts its own investigations into allegations of sexual abuse and sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations, including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received special training in sexual abuse investigations involving juvenile victims pursuant to § 115.334.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including any available physical and DNA evidence and any available electronic monitoring data; shall interview alleged victims, suspected perpetrators, and witnesses; and shall review prior complaints and reports of sexual abuse involving the suspected perpetrator.
(d) The agency shall not terminate an investigation solely because the source of the allegation recants the allegation.
(e) When the quality of evidence appears to support criminal prosecution, the agency shall conduct compelled interviews only after consulting with prosecutors as to whether compelled interviews may be an obstacle for subsequent criminal prosecution.
(f) The credibility of an alleged victim, suspect, or witness shall be assessed on an individual basis and shall not be determined by the person's status as resident or staff. No agency shall require a resident who alleges sexual abuse to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an allegation.
(g) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
(2) Shall be documented in written reports that include a description of the physical and testimonial evidence, the reasoning behind credibility assessments, and investigative facts and findings.
(h) Criminal investigations shall be documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and attaches copies of all documentary evidence where feasible.
(i) Substantiated allegations of conduct that appears to be criminal shall be referred for prosecution.
(j) The agency shall retain all written reports referenced in paragraphs (g) and (h) of this section for as long as the alleged abuser is incarcerated or employed by the agency, plus five years, unless the abuse was committed by a juvenile resident and applicable law requires a shorter period of retention.
(k) The departure of the alleged abuser or victim from the employment or control of the facility or agency shall not provide a basis for terminating an investigation.
(l) Any State entity or Department of Justice component that conducts such investigations shall do so pursuant to the above requirements.
(m) When outside agencies investigate sexual abuse, the facility shall cooperate with outside investigators and shall endeavor to remain informed about the progress of the investigation.
The agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated.
(a) Following an investigation into a resident's allegation of sexual abuse suffered in an agency facility, the agency shall inform the resident as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant information from the investigative agency in order to inform the resident.
(c) Following a resident's allegation that a staff member has committed sexual abuse against the resident, the agency shall subsequently inform the resident (unless the agency has determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident's unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to sexual abuse within the facility.
(d) Following a resident's allegation that he or she has been sexually abused by another resident, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency's obligation to report under this standard shall terminate if the resident is released from the agency's custody.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the nature and circumstances of the acts committed, the staff member's disciplinary history, and the sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies, or resignations by staff who would have been terminated if not for their resignation, shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to any relevant licensing bodies.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from contact with residents and shall be reported to law enforcement agencies, unless the activity was clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to prohibit further contact with residents, in the case of any other violation of agency sexual abuse or sexual harassment policies by a contractor or volunteer.
(a) A resident may be subject to disciplinary sanctions only pursuant to a formal disciplinary process following an administrative finding that the resident engaged in resident-on-resident sexual abuse or following a criminal finding of guilt for resident-on-resident sexual abuse.
(b) Any disciplinary sanctions shall be commensurate with the nature and circumstances of the abuse committed, the resident's disciplinary history, and the sanctions imposed for comparable offenses by other residents with similar histories. In the event a disciplinary sanction results in the isolation of a resident, agencies shall not deny the resident daily large-muscle exercise or access to any legally required educational programming or special education services. Residents in isolation shall receive daily visits from a medical or mental health care clinician. Residents shall also have access to other programs and work opportunities to the extent possible.
(c) The disciplinary process shall consider whether a resident's mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address and correct underlying reasons or motivations for the abuse, the facility shall consider whether to offer the offending resident participation in such interventions. The agency may require participation in such interventions as a condition of access to any rewards-based behavior management system or other behavior-based incentives, but not as a condition to access to general programming or education.
(e) The agency may discipline a resident for sexual contact with staff only upon a finding that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely reporting an incident or lying, even if an investigation does not establish evidence sufficient to substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between residents and may discipline residents for such activity. An agency may not, however, deem such activity to constitute sexual abuse if it determines that the activity is not coerced.
(a) If the screening pursuant to § 115.341 indicates that a resident has experienced prior sexual victimization, whether it occurred in an institutional setting or in the community, staff shall ensure that the resident is offered a follow-up meeting with a medical or mental health practitioner within 14 days of the intake screening.
(b) If the screening pursuant to § 115.341 indicates that a resident has previously perpetrated sexual abuse, whether it occurred in an institutional setting or in the community, staff shall ensure that the resident is offered a follow-up meeting with a mental health practitioner within 14 days of the intake screening.
(c) Any information related to sexual victimization or abusiveness that occurred in an institutional setting shall be strictly limited to medical and mental health practitioners and other staff, as necessary, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments, or as otherwise required by Federal, State, or local law.
(d) Medical and mental health practitioners shall obtain informed consent from residents before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the resident is under the age of 18.
(a) Resident victims of sexual abuse shall receive timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, staff first responders shall take preliminary steps to protect the victim pursuant to § 115.362 and shall immediately notify the appropriate medical and mental health practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be offered timely information about and timely access to emergency contraception and sexually transmitted infections prophylaxis, in accordance with professionally accepted standards of care, where medically appropriate.
(d) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(a) The facility shall offer medical and mental health evaluation and, as appropriate, treatment to all residents who have been victimized by sexual abuse in any prison, jail, lockup, or juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for continued care following their transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of this section, such victims shall receive timely and comprehensive information about and timely access to all lawful pregnancy-related medical services.
(f) Resident victims of sexual abuse while incarcerated shall be offered tests for sexually transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and regardless of whether the victim names the abuser or cooperates with any investigation arising out of the incident.
(h) The facility shall attempt to conduct a mental health evaluation of all known resident-on-resident abusers within 60 days of learning of such abuse history and offer treatment when deemed appropriate by mental health practitioners.
(a) The facility shall conduct a sexual abuse incident review at the conclusion of every sexual abuse investigation, including where the allegation has not been substantiated, unless the allegation has been determined to be unfounded.
(b) Such review shall ordinarily occur within 30 days of the conclusion of the investigation.
(c) The review team shall include upper-level management officials, with input from line supervisors, investigators, and medical or mental health practitioners.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a need to change policy or practice to better prevent, detect, or respond to sexual abuse;
(2) Consider whether the incident or allegation was motivated by race; ethnicity; gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status; or, gang affiliation; or was motivated or otherwise caused by other group dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly occurred to assess whether physical barriers in the area may enable abuse;
(4) Assess the adequacy of staffing levels in that area during different shifts;
(5) Assess whether monitoring technology should be deployed or augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily limited to determinations made pursuant to paragraphs (d)(1) through (d)(5) of this section, and any recommendations for improvement and submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for improvement, or shall document its reasons for not doing so.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to answer all questions from the most recent version of the Survey of Sexual Violence conducted by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available incident-based documents, including reports, investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private facility with which it contracts for the confinement of its residents.
(f) Upon request, the agency shall provide all such data from the previous calendar year to the Department of Justice no later than June 30.
(a) The agency shall review data collected and aggregated pursuant to § 115.387 in order to assess and improve the effectiveness of its sexual abuse prevention, detection, and response policies, practices, and training, including:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's data and corrective actions with those from prior years and shall provide an assessment of the agency's progress in addressing sexual abuse.
(c) The agency's report shall be approved by the agency head and made readily available to the public through its Web site or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would present a clear and specific threat to the safety and security of a facility, but must indicate the nature of the material redacted.
(a) The agency shall ensure that data collected pursuant to § 115.387 are securely retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its direct control and private facilities with which it contracts, readily available to the public at least annually through its Web site or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.387 for at least 10 years after the date of its initial collection unless Federal, State, or local law requires otherwise.
The agency shall conduct audits pursuant to §§ 115.401 through 115.405.
(a) During the three-year period starting on August 20, 2013, and during each three-year period thereafter, the agency shall ensure that each facility operated by the agency, or by a private organization on behalf of the agency, is audited at least once.
(b) During each one-year period starting on August 20, 2013, the agency shall ensure that at least one-third of each facility type operated by the agency, or by a private organization on behalf of the agency, is audited.
(c) The Department of Justice may send a recommendation to an agency for an expedited audit if the Department has reason to believe that a particular facility may be experiencing problems relating to sexual abuse. The recommendation may also include referrals to resources that may assist the agency with PREA-related issues.
(d) The Department of Justice shall develop and issue an audit instrument that will provide guidance on the conduct of and contents of the audit.
(e) The agency shall bear the burden of demonstrating compliance with the standards.
(f) The auditor shall review all relevant agency-wide policies, procedures, reports, internal and external audits, and accreditations for each facility type.
(g) The audits shall review, at a minimum, a sampling of relevant documents and other records and information for the most recent one-year period.
(h) The auditor shall have access to, and shall observe, all areas of the audited facilities.
(i) The auditor shall be permitted to request and receive copies of any relevant documents (including electronically stored information).
(j) The auditor shall retain and preserve all documentation (including,
(k) The auditor shall interview a representative sample of inmates, residents, and detainees, and of staff, supervisors, and administrators.
(l) The auditor shall review a sampling of any available videotapes and other electronically available data (
(m) The auditor shall be permitted to conduct private interviews with inmates, residents, and detainees.
(n) Inmates, residents, and detainees shall be permitted to send confidential information or correspondence to the auditor in the same manner as if they were communicating with legal counsel.
(o) Auditors shall attempt to communicate with community-based or victim advocates who may have insight into relevant conditions in the facility.
(a) An audit shall be conducted by:
(1) A member of a correctional monitoring body that is not part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant State or local government);
(2) A member of an auditing entity such as an inspector general's or ombudsperson's office that is external to the agency; or
(3) Other outside individuals with relevant experience.
(b) All auditors shall be certified by the Department of Justice. The Department of Justice shall develop and issue procedures regarding the certification process, which shall include training requirements.
(c) No audit may be conducted by an auditor who has received financial compensation from the agency being audited (except for compensation received for conducting prior PREA audits) within the three years prior to the agency's retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise financially compensate the auditor for three years subsequent to the agency's retention of the auditor, with the exception of contracting for subsequent PREA audits.
(a) Each audit shall include a certification by the auditor that no conflict of interest exists with respect to his or her ability to conduct an audit of the agency under review.
(b) Audit reports shall state whether agency-wide policies and procedures comply with relevant PREA standards.
(c) For each PREA standard, the auditor shall determine whether the audited facility reaches one of the following findings: Exceeds Standard (substantially exceeds requirement of standard); Meets Standard (substantial compliance; complies in all material ways with the standard for the relevant review period); Does Not Meet Standard (requires corrective action). The audit summary shall indicate, among other things, the number of provisions the facility has achieved at each grade level.
(d) Audit reports shall describe the methodology, sampling sizes, and basis for the auditor's conclusions with regard to each standard provision for each
(e) Auditors shall redact any personally identifiable inmate or staff information from their reports, but shall provide such information to the agency upon request, and may provide such information to the Department of Justice.
(f) The agency shall ensure that the auditor's final report is published on the agency's Web site if it has one, or is otherwise made readily available to the public.
(a) A finding of “Does Not Meet Standard” with one or more standards shall trigger a 180-day corrective action period.
(b) The auditor and the agency shall jointly develop a corrective action plan to achieve compliance.
(c) The auditor shall take necessary and appropriate steps to verify implementation of the corrective action plan, such as reviewing updated policies and procedures or re-inspecting portions of a facility.
(d) After the 180-day corrective action period ends, the auditor shall issue a final determination as to whether the facility has achieved compliance with those standards requiring corrective action.
(e) If the agency does not achieve compliance with each standard, it may (at its discretion and cost) request a subsequent audit once it believes that is has achieved compliance.
(a) An agency may lodge an appeal with the Department of Justice regarding any specific audit finding that it believes to be incorrect. Such appeal must be lodged within 90 days of the auditor's final determination.
(b) If the Department determines that the agency has stated good cause for a re-evaluation, the agency may commission a re-audit by an auditor mutually agreed upon by the Department and the agency. The agency shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.
(a) In determining pursuant to 42 U.S.C. 15607(c)(2) whether the State is in full compliance with the PREA standards, the Governor shall consider the results of the most recent agency audits.
(b) The Governor's certification shall apply to all facilities in the State under the operational control of the State's executive branch, including facilities operated by private entities on behalf of the State's executive branch.