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3 February 2011
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3 February 2011
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[Federal Register: February 3, 2011 (Volume 76, Number 23)]
[Proposed Rules]
[Page 6247-6302]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03fe11-20]
[[Page 6247]]
Vol. 76
Thursday,
No. 23
February 3, 2011
Part III
Department of Justice
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28 CFR Part 115
National Standards To Prevent, Detect, and Respond to Prison Rape;
Proposed Rule
[[Page 6248]]
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DEPARTMENT OF JUSTICE
28 CFR Part 115
[Docket No. OAG-131; AG Order No. 3244-2011]
RIN 1105-AB34
National Standards To Prevent, Detect, and Respond to Prison Rape
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) has under review
national standards for combating sexual abuse in confinement settings
that were prepared by the National Prison Rape Elimination Commission
(Commission) pursuant to the Prison Rape Elimination Act of 2003 (PREA)
and recommended by the Commission to the Attorney General. On March 10,
2010, the Department published an Advance Notice of Proposed Rulemaking
(ANPRM) to solicit public input on the Commission's proposed national
standards and to receive information useful to the Department in
publishing a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison rape, as mandated by
PREA. The Department is now publishing this Notice of Proposed
Rulemaking to propose such national standards for comment and to
respond to the public comments received on the ANPRM.
DATES: Written comments must be postmarked on or before April 4, 2011,
and electronic comments must be sent on or before midnight Eastern time
April 4, 2011.
ADDRESSES: To ensure proper handling of comments, please reference
``Docket No. OAG-131'' on all written and electronic correspondence.
Written comments being sent via 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 http://
www.regulations.gov using the electronic comment form provided on that
site. An electronic copy of this document is also available at the
http://www.regulations.gov Web site. The Department will accept
attachments to electronic comments in Microsoft Word, WordPerfect,
Adobe PDF, or Excel file formats only. The Department will not accept
any file formats other than those specifically listed here.
Please note that the Department is requesting that electronic
comments be submitted before midnight Eastern Time on the day the
comment period closes because http://www.regulations.gov terminates the
public's ability to submit comments at midnight Eastern Time on the day
the comment period closes. Commenters in time zones other than Eastern
Time may want to consider this so that their electronic comments are
received. All comments sent via regular or express mail will be
considered timely if postmarked on the day the comment period closes.
FOR FURTHER INFORMATION CONTACT: 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.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http:/
/www.regulations.gov and in the Department's public docket. Such
information includes personal identifying information (such as your
name, address, etc.) voluntarily submitted by the commenter.
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 FOR FURTHER INFORMATION CONTACT paragraph.
II. Background
The Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. 15601 et
seq., requires the Attorney General to promulgate regulations that
adopt national standards for the detection, prevention, reduction, and
punishment of prison rape. PREA established the National Prison Rape
Elimination Commission (Commission) to carry out a comprehensive legal
and factual study of the penological, physical, mental, medical,
social, and economic impacts of prison rape in the United States, and
to recommend national standards to the Attorney General and to the
Secretary of Health and Human Services. The Commission released its
recommended national standards in a report dated June 23, 2009, and
subsequently disbanded, pursuant to the statute. The Commission's
report and recommended national standards are available at http://
www.ncjrs.gov/pdffiles1/226680.pdf.
The Commission set forth four sets of recommended national
standards for eliminating prison rape and other forms of sexual abuse.
Each set is applicable to one of the following four confinement
settings: (1) Adult prisons and jails; (2) juvenile facilities; (3)
community corrections facilities; and (4) lockups (i.e., temporary
holding facilities). The Commission recommended that its standards
apply to Federal, State, and local correctional and detention
facilities (excluding facilities operated by the Department of Defense
and the Bureau of Indian Affairs). In addition to the standards
themselves, the Commission prepared assessment checklists, designed as
tools to provide agencies and facilities with examples of how to meet
the standards' requirements; glossaries of key terms; and discussion
sections providing explanations for the rationale of the standards and,
in some cases, guidance for achieving compliance. These are available
at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons and jails),
http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile facilities), http:/
/www.ncjrs.gov/pdffiles1/226683.pdf (community corrections), and http:/
/www.ncjrs.gov/pdffiles1/226685.pdf (lockups).
[[Page 6249]]
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 shall 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
Commission's proposed standards and to help him prepare a draft final
rule. The Working Group includes 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 (BJS), 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 Commission. As part of that process, the Working Group
conducted a number of listening sessions in January and February 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 Commission. The
Department also consulted with the Department of Homeland Security's
Office for Civil Rights and Civil Liberties and with U.S. Immigration
and Customs Enforcement (ICE).
Because 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 Commission. As part of
that process, the Department commissioned an independent contractor to
perform a cost analysis of the Commission's proposed standards, which
was received on June 18, 2010.
The Department has also worked to address those recommendations put
forth by the Commission that require action outside of the context of
PREA to accomplish. For example, the Department is in the process of
developing a companion to the 2004 ``National Protocol for Sexual
Assault Medical Forensic Examinations'' that will be customized to the
conditions of confinement. In addition, via a separate rulemaking
process, the Department intends to propose removing the current ban on
Victims of Crime Act funding for treatment and rehabilitation services
for incarcerated victims of sexual abuse.
III. The Department's Prior Request for Comments
On March 10, 2010 (75 FR 11077), the Department published an
Advance Notice of Proposed Rulemaking (ANPRM) soliciting public input
on the Commission's proposed national standards. Approximately 650
comments were received on the ANPRM, including comments from current or
formerly incarcerated individuals, county sheriffs, State departments
of correction, private citizens, professional organizations, social
service providers, and advocacy organizations concerned with issues of
prison rape, sexual violence, discrimination, and juvenile justice.
The Department of Justice appreciates the interest and insight
reflected in the many submissions and communications and has considered
them carefully.
In general, the commenters supported the broad goals of PREA and
the overall intent of the Commission's recommendations. Some
commenters, particularly those whose responsibilities involve the care
and custody of inmates or juvenile residents, expressed concern that
the Commission'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 Commission's standards did not go
far enough, and, therefore, would not fully achieve PREA's goals. In
preparing its proposed standards, the Department carefully considered
each and every comment, keeping in mind both the goal of the statute
and its mandate not to impose substantial additional costs compared to
the costs presently expended by Federal, State, and local prison
authorities. The following section includes additional discussion of
comments relevant to particular standards.
IV. Overview of PREA National Standards
Rape and sexual abuse are reprehensible, destructive, and illegal
in any setting. Such acts are particularly damaging in the correctional
environment, where the power dynamic is heavily skewed against victims
and recourse is often limited. Until recently, however, this has been
widely viewed as an inevitable aspect of imprisonment within the United
States. This view is not only incorrect but incompatible with American
values. Based on the Department's analysis of data compiled by BJS,
approximately 200,000 adult prisoners and jail inmates suffered some
form of sexual abuse while incarcerated during 2008. See BJS, Sexual
Victimization in Prisons and Jails Reported by Inmates, 2008-09 (Aug.
2010).\1\ This suggests 4.4% of the prison population and 3.1% of the
jail population within the United States suffered sexual abuse during
that year.\2\ In some prisons, nearly 9% of the population reported
abuse within that time; in some jails the corresponding rate approached
8%.\3\
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\1\ This total includes the cross-sectional number covered in
BJS surveys plus the number of estimated victims released in the
twelve months prior to the survey. For methodology, see Initial
Regulatory Impact Analysis (IRIA) at 9, available at http://
www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
\2\ See id. at 6.
\3\ See id. at 8.
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In juvenile facilities, the numbers are similarly troubling. At
least 17,100 adjudicated or committed youth (amounting to some 12% of
the total population in juvenile detention facilities) reported having
suffered sexual abuse within 12 months of arriving at their facility,
with rates as high as 36% in specific facilities. See BJS, Sexual
Victimization in Juvenile Facilities Reported by Youth, 2008-09 (Jan.
2010), at 1, 4.\4\ These numbers
[[Page 6250]]
indicate that improvements can and must be made.
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\4\ This total includes the cross-sectional number covered in
BJS surveys plus the number of estimated victims released in the
twelve months prior to the survey. It includes adjudicated/committed
youth only. For methodology, see IRIA at 9.
---------------------------------------------------------------------------
Neither the Commission nor the Department began its work on a blank
slate. Many correctional administrators have developed and implemented
policies and practices to more effectively prevent and respond to
prison rape. The Department applauds these efforts, and views them as
an excellent first step. However, a national effort is needed to
accomplish PREA's goals. Protection from sexual abuse should not depend
on where an individual is incarcerated: It must be universal.
The Commission recommended standards to the Department after
several years of investigating the prevalence and nature of sexual
abuse in incarceration settings and exploring correctional best
practices in addressing it. The Department has built on the
Commission's work and has adopted the overall structure of its
standards as well as a significant majority of its specific
recommendations. The Department's proposed rule echoes the Commission's
recommendations in devising four sets of standards tailored to specific
types of confinement facilities. Each set consists of the same eleven
categories used by the Commission: Prevention planning, responsive
planning, training and education, screening for risk of sexual
victimization and abusiveness, reporting, official response following
an inmate report, investigations, discipline, medical and mental care,
data collection and review, and audits.
The scope and content of the Department's standards do differ
substantially from the Commission's proposals in a variety of areas.
After careful consideration, the Department has made revisions to each
of the Commission's recommended standards. At all times, the Department
has weighed the logistical and financial feasibility of each standard
against its benefits. The Department has found invaluable the comments
received on the ANPRM, and expects that comments in response to this
proposed rule will provide further insights.
Definitions. Sections 115.5 and 115.6 provide definitions for key
terms. The Department has largely relied on the Commission's
definitions in the Glossary sections that accompanied the Commission's
four sets of standards, but has made a variety of adjustments and has
eliminated definitions for various terms that either do not appear in
the Department's proposed standards or whose meaning is sufficiently
clear so as not to need defining. In addition, the Department has
included definitions in some of the standards themselves. Below is an
explanation for key definitions modified or added by the Department:
Community confinement facility. The Commission recommended a set of
standards for community corrections, which it defined 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.'' The Department believes
that to the extent this definition includes supervision of individuals
in a non-residential setting, it exceeds the scope of PREA's
definitions of jail and prison, which include only ``confinement
facilit[ies].'' 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule
does not reference community corrections, but instead refers to
``community confinement facilities.'' The proposed rule defines this
term nearly identically to the definition provided in regulations
promulgated by the Department to govern the Federal Bureau of Prisons.
See 28 CFR 570.20(a). The term includes a range of facilities in which
offenders or defendants reside as part of a term of imprisonment or as
a condition of pre-trial release or post-release supervision, while
pursuing employment, education, or other facility-approved programs
during non-residential hours. A similar definition appears in Federal
Sentencing Guideline 5F1.1 and, incorporated by reference, in 18 U.S.C.
3621(g)(2).
Employee, contractor, volunteer, and staff. The proposed rule
clarifies these terms to conform more closely to their traditional
definitions--e.g., employees are only those persons who work directly
for the agency or facility. The term ``staff'' is used interchangeably
with ``employees.''
Inmate, detainee, and resident. The proposed standards use these
three terms to refer to persons confined in the four types of covered
facilities. The proposed standards for prisons and jails refer to
persons incarcerated or detained therein as ``inmates.'' For
simplicity, the proposed standards for lockups refer to all persons
detained therein as ``detainees,'' including persons who have already
been adjudicated. The proposed standards for juvenile facilities and
for community confinement facilities refer to all persons housed
therein as ``residents.''
Jail and prison. Although the Commission did not define these
terms, the Department believes that definitions are necessary,
especially because the Department's proposed standards modify the
Commission's recommended standards in certain respects to distinguish
requirements applicable to jails from requirements applicable to
prisons. The definitions provided in the proposed rule generally track
the prevailing definitions of jails and prisons, based upon the primary
use of each facility. If a majority of a facility's inmates are
awaiting adjudication of criminal charges, serving a sentence of one
year or less, or awaiting post-adjudication transfer to a different
facility, then the facility is categorized as a jail, regardless of how
the facility may label itself. As discussed in greater depth below,
these terms do not encompass facilities that are primarily used for the
civil detention of aliens pending removal from the United States.
Question 1: The Department solicits comments regarding the
application of this definition to those States that operate ``unified
systems''--i.e., States with direct authority over all adult
correctional facilities, as opposed to the more common practice of
jails being operated by counties, cities, or other municipalities.
States that operate unified systems may be less likely to adhere to the
traditional distinctions between prisons and jails, and may operate
facilities that are essentially a mixture of the two. Do the respective
definitions of jail and prison, and the manner in which the terms are
used in the proposed standards, adequately cover facilities in States
with unified systems? If not, how should the definitions or standards
be modified?
Juvenile and juvenile facility. The proposed rule defines
``juvenile'' as a person under the age of 18, unless defined otherwise
under State law, and defines ``juvenile facility'' as a facility
primarily used for the confinement of juveniles. Both definitions are
new; the Commission did not define these terms.
Lockup. With small clarifying modifications, the proposed rule
adopts the Commission's definition of lockup, which includes temporary
holding facilities under the control of a law enforcement, court, or
custodial officer.
Sexual abuse and related terms. In its ANPRM, the Department
queried whether the standards should refer to ``rape'' or to ``sexual
abuse.'' Most commenters suggested that the Department refer to
``sexual abuse.'' All advocacy groups that responded to this question
recommended using ``sexual abuse,'' and correctional agencies were
split on the question. Proponents of the term sexual abuse noted that
it captures a broader range of sexual victimization than rape, and
noted that PREA defines rape expansively, see 42 U.S.C. 15609(9)-(12),
to include a range of actions that more closely resembles the
[[Page 6251]]
Commission's proposed definition of sexual abuse rather than the
traditional definition of rape. For example, PREA includes ``sexual
fondling'' in its definition of rape, see 42 U.S.C. 15609(9), (11),
even though that term is typically associated with sexual abuse rather
than with rape. Proponents of the term rape argued that referring to
sexual abuse more accurately captures the intent of the statute and the
scope of behavior that the regulations should address.
The Department's proposed standards use the term sexual abuse,
which the Department believes is a more accurate term to describe the
behaviors that Congress aimed to eliminate. However, the proposed
definition of sexual abuse removes sexual harassment from its scope.
Several correctional agencies commented that including sexual
harassment within the scope of sexual abuse would greatly expand the
obligations of correctional agencies and would require responsive
actions not commensurate to the harm caused by sexual harassment. The
Department agrees, but has rejected the recommendation of some
commenters that sexual harassment be removed entirely from the scope of
the standards. Although PREA does not reference sexual harassment, it
authorizes the Commission, and by extension the Attorney General, to
propose standards relating to ``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 Department believes that
it is appropriate that certain standards reference sexual harassment in
order to combat what may be a precursor to sexual abuse.
With the exception of the omission of sexual harassment, the
Department's proposed definition of sexual abuse substantively
resembles the Commission's recommended definition. The format and
wording, however, have been revised to conform more closely to the
definitions used by BJS in its Survey of Sexual Violence, as several
commenters suggested. The Department hopes that harmonizing these
definitions, to the extent possible, will provide greater clarity to
correctional agencies.
The proposed definition of sexual abuse excludes consensual
activity between inmates, detainees, or residents, but does not exclude
consensual activity with staff. The Department, like the Commission,
believes that the power imbalance in correctional facilities is such
that it is impossible to know if an incarcerated person truly
``consented'' to sexual activity with staff.
Prevention Planning: Sections 115.11, 115.111, 115.211, 115.311,
115.12, 115.112, 115.212, 115.312, 115.13, 115.113, 115.213, 115.313,
115.14, 115.114, 115.214, 115.314, 115.15, 115.115, 115.215, 115.315,
115.16, 115.116, 115.216, 115.316, 115.17, 115.117, 115.217, and
115.317 (compare to the Commission's PP standards). Like the
Commission, the Department believes it is important to establish what
actions facilities are expected to take to prevent sexual abuse.
Sections 115.11, 115.111, 115.211, and 115.311 (compare to the
Commission's PP-1 standard), require that agencies establish a written
zero-tolerance policy toward sexual abuse and harassment. The proposed
standard clarifies that, in addition to mandating zero tolerance, the
policy must outline the agency's approach to preventing, detecting, and
responding to such conduct.
This standard also mandates that agencies employ or designate an
upper-level, agency-wide PREA coordinator to oversee efforts to comply
with PREA standards. In all agencies that operate facilities whose
total rated capacity exceeds 1,000 inmates,\5\ this agency-wide PREA
coordinator must be a full-time position. Other agencies may designate
this role as a part-time position or may assign its functions to an
existing full-time or part-time employee.
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\5\ As noted above, the proposed standards refer to ``inmates,''
``detainees,'' and ``residents,'' depending upon the type of
confinement facility. For simplicity, the explanation of the
standards refers to all persons confined within any type of facility
as ``inmates'' except where specifically discussing lockups,
juvenile facilities, or community confinement facilities.
---------------------------------------------------------------------------
Several commenters criticized that the Commission's proposed
requirement that the PREA coordinator report directly to the agency
head. These commenters expressed concern about setting the position at
an unreasonably high level within the agency, which could require it to
become a political appointment and thus subject to frequent turnover.
The Department's proposed standard requires that the position be
``upper-level'' but does not require that the coordinator report
directly to the agency head. In addition, some correctional agencies
expressed concern that mandating a full-time coordinator for jails that
house only 500 inmates, as the Commission proposed, would impose too
great a burden. The Department's proposed standard instead mandates a
full-time coordinator only for agencies that operate facilities whose
total rated capacity exceeds 1,000 inmates. In addition, agencies whose
total capacity exceeds 1,000 inmates must also designate an existing
full-time or part-time employee at each facility to serve as that
facility's PREA coordinator.
The intent is to tailor this requirement to the varying needs and
capacities of agencies and facilities: Requiring large agencies to
dedicate an employee to coordinate PREA efforts full-time, while
allowing smaller agencies, and individual facilities within large
agencies, to assign such duties as part of an employee's broader
portfolio, thus ensuring a ``point person'' who is responsible for PREA
efforts.
Question 2: Should the Department modify the full-time coordinator
requirement to allow additional flexibility, such as by requiring only
that PREA be the coordinator's primary responsibility, or by allowing
the coordinator also to work on other related issues, such as inmate
safety more generally?
Sections 115.12, 115.112, 115.212, and 115.312 (compare to the
Commission's PP-2 standard), require that agencies that contract with
private entities for the confinement of inmates include the entity's
obligation to comply with the PREA standards in new contracts or
contract renewals. Several agency commenters expressed concern that the
Commission's proposed requirement that an agency ``monitor the entity's
compliance with these standards as part of its monitoring of the
entity's performance'' would impose too great a financial burden. The
Department's proposed standard modifies slightly the Commission's
proposal by requiring only that new contracts or renewals ``shall
provide for agency contract monitoring to ensure that the contractor is
complying with PREA standards.'' The revision is intended to indicate
that the agency is not required to conduct audits of its contract
facilities but rather must include PREA as part of its routine
monitoring of compliance with contractual obligations.
Question 3: Should the final rule provide greater guidance as to
how agencies should conduct such monitoring? If so, what guidance
should be provided?
Sections 115.13, 115.113, 115.213, and 115.313 (compare to the
Commission's PP-3 and PP-7 standards) govern the supervision and
monitoring of inmates. The Department has combined the Commission's
proposed PP-3 and PP-7 standards into one standard, in recognition that
direct staff supervision and video monitoring
[[Page 6252]]
are two methods of achieving one goal: Reducing the opportunity for
abuse to occur unseen. The Department recognizes that different
agencies rely on staffing and technology to varying degrees depending
upon their specific characteristics. Accordingly, the Department
believes that these issues are best considered together.
The Department is mindful that staffing and video-monitoring
systems are both expensive. Staff salaries and benefits are typically
the largest item in a correctional agency's budget, see, e.g., National
Institute of Corrections, Staffing Analysis: Workbook for Jails (2d
ed.) at 2, and economies of scale are difficult to obtain: Increasing
staffing by 25% is likely to increase staff costs by 25%. Likewise,
video-monitoring systems may be beyond the financial reach of some
correctional agencies, although the costs of such systems may diminish
in future years as technology advances.
Various agency commenters criticized the first sentence of the
Commission's PP-3 standard: ``Security staff provides the inmate
supervision necessary to protect inmates from sexual abuse.''
Commenters suggested that the Commission's recommended standard did not
provide appropriate guidance as to what level of supervision would be
``necessary to protect inmates from sexual abuse,'' and that it did not
indicate whether compliance would be measured ex ante, by reviewing
staffing levels alone, or ex post, by determining that instances of
sexual abuse could have been prevented by additional staffing.
The Department recognizes the importance of staffing levels in
combating sexual abuse, and believes that the correctional community
shares this view. See, e.g., American Correctional Association Public
Correctional Policy on Offender on Offender Sexual Assault (Jan. 12,
2005) (recommending that agencies ``[m]aintain adequate and appropriate
levels of staff to protect inmates against sexual assault''). Although
proper supervision and monitoring cannot eliminate sexual abuse, it can
play a key role in reducing opportunities for it to occur. In addition,
inadequate staffing can be a contributing factor in a judicial
determination that conditions of confinement violate the Constitution.
See, e.g., Krein v. Norris, 309 F.3d 487, 489-92 (8th Cir. 2002); Ramos
v. Lamm, 639 F.2d 559, 573-74 (10th Cir. 1980). In several of the
Department's investigations of correctional facilities under the Civil
Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq., for
engaging in a pattern or practice of violating inmates' Federal rights,
the terms of consent decrees and settlements have included specific
remedial measures aimed at improving the adequacy of staffing.
At the same time, however, the Department recognizes that
determining adequate staffing levels is a complicated, facility-
specific enterprise. The appropriate number of staff depends upon a
variety of factors, including (but not necessarily limited to) the
physical layout of a facility, the security level and gender of the
inmates, whether the facility houses adults or juveniles, the length of
time inmates reside in the facility, the amount of programming that the
facility offers, and the facility's population density (i.e., comparing
the number of inmates to the number of beds or square feet). In
addition, the facility's reliance on video monitoring and other
technology may reduce staffing requirements, as long as the facility
employs sufficient staff to monitor the video feeds or other
technologies such as call buttons or sensors. The viability of
technology may depend upon, among other factors, the characteristics of
the incarcerated population. Administrators of juvenile facilities, for
example, are typically more reluctant to rely heavily on video
monitoring given the staff-intensive needs of their residents.
Due to the complex interaction of these factors, the Department
does not believe that it is possible to craft a formula that would set
appropriate staffing levels for all populations--although the
Department is aware that some States do set such levels for juvenile
facilities. Nor is it likely that an auditor would be able to determine
the appropriate staffing level in the limited amount of time available
to conduct an audit. Relying on reported incidents of sexual abuse to
determine appropriate staffing levels is also an imperfect method given
the uncertainty as to whether an incident will be reported. Facilities
where inmates feel comfortable reporting abuse, and where
investigations are conducted effectively, may be more likely than other
facilities to experience substantiated allegations of sexual abuse,
even if the facility is no less safe than its counterparts. For this
reason, the Department has opted not to adopt general across-the-board
performance-based standards, as proposed by some commenters.
Accordingly, the Department is of the view that any standard that
governs supervision and monitoring must protect inmates while providing
sufficient clarity as to its requirements, recognizing that the
adequacy of supervision and monitoring depends on several factors that
interact differently for each facility, and accounting for the costs
involved in employing additional staff and in purchasing and deploying
additional technology.
The Department believes that, at a minimum, such a standard must
impose at least three requirements. First, an agency must make an
assessment of adequate staffing levels, taking into account its use, if
any, of video monitoring or other technology. The fact that multiple
factors bear on the adequacy of staffing and monitoring is no barrier
to requiring an agency to conduct such an assessment for each of its
facilities. Second, an agency must devise a plan for how to best
protect inmates from sexual abuse should staffing levels fall below an
adequate level. Third, an agency must reassess at least annually such
adequate staffing levels, as well as the staffing levels that actually
prevailed during the previous year, and must also reassess its use of
video monitoring systems and other technologies.
The Department assumes that most agencies already engage in similar
inquiries; the purpose of mandating such inquiries within these
standards is to institutionalize the practice of assessing staffing and
monitoring in the context of considering how staffing and monitoring
contribute to efforts to combat sexual abuse.
The Department is interested in receiving comments on whether and
to what extent this standard should include additional or alternative
requirements, and poses various questions below designed to elicit such
comments. The Department has already received comments from the former
Commissioners themselves regarding possible options. Following a
meeting between the Department and several of the former Commissioners
on August 4, 2010, that included discussion of the Commission's PP-3
and PP-7 standards, the former Commissioners sent the Department a
memorandum dated September 28, 2010, that discussed possible revisions
to this standard. The former Commissioners noted the possibility of
replacing the first sentence of the PP-3 standard with the following:
``Agency heads must establish in writing the staffing requirements for
each shift at each facility to keep inmates safe from sexual abuse and
must designate the priority posts at each facility that must be filled
on each shift regardless of staff shortages or absences.'' In addition,
the Commissioners noted that the PP-7 standard could be replaced with
the following: ``The agency uses video monitoring systems, if
available, or other appropriate technology to
[[Page 6253]]
supplement its sexual abuse prevention, detection, and response
efforts. Because video monitoring and other appropriate technology can
contribute to prevention [and] detection of sexual abuse, the agency
assesses at least annually the feasibility of acquiring new or
additional technology. Compliance is measured by ensuring that the
facility has developed a plan for securing such technology as funds
become available.''
Question 4: Should the standard require that facilities actually
provide a certain level of staffing, whether determined qualitatively,
such as by reference to ``adequacy,'' or quantitatively, by setting
forth more concrete requirements? If so, how?
Question 5: If a level such as ``adequacy'' were mandated, how
would compliance be measured?
Question 6: Various States have regulations that require
correctional agencies to set or abide by minimum staffing requirements.
To what extent, if any, should the standard take into account such
State regulations?
Question 7: Some States mandate specific staff-to-resident ratios
for certain types of juvenile facilities. Should the standard mandate
specific ratios for juvenile facilities?
Question 8: If a level of staffing were mandated, should the
standard allow agencies a longer time frame, such as a specified number
of years, in order to reach that level? If so, what time frame would be
appropriate?
Question 9: Should the standard require the establishment of
priority posts, and if so, how should such a requirement be structured
and assessed?
Question 10: To what extent can staffing deficiencies be addressed
by redistributing existing staff assignments? Should the standard
include additional language to encourage such redistribution?
Question 11: If the Department does not mandate the provision of a
certain level of staffing, are there other ways to supplement or
replace the Department's proposed standard in order to foster
appropriate staffing?
Question 12: Should the Department mandate the use of technology to
supplement sexual abuse prevention, detection, and response efforts?
Question 13: Should the Department craft the standard so that
compliance is measured by ensuring that the facility has developed a
plan for securing technology as funds become available?
Question 14: Are there other ways not mentioned above in which the
Department can improve the proposed standard?
The proposed standard also adds a requirement that prisons and
jails with rated capacity in excess of 500 inmates develop a policy of
requiring supervisors to conduct unannounced rounds. The Department
believes that requiring such rounds is an appropriate measure to deter
staff misconduct, in recognition of the great responsibility entrusted
to correctional staff, who often perform their duties unaccompanied by
colleagues. The proposed standard does not mandate how frequently such
rounds must be conducted, in recognition that the frequency of
unannounced rounds may be less important than the deterrent effect of
knowing that such rounds may be conducted at any time. However, the
Department believes that unannounced rounds should be conducted with
reasonable frequency to ensure that such rounds have a sufficient
deterrent effect, and solicits comments on this issue.
Question 15: Should this standard mandate a minimum frequency for
the conduct of such rounds, and if so, what should it be?
Finally, the proposed standard omits language from the Commission's
recommended PP-3 standard regarding post-incident reviews and taking
corrective action. Because the language in those standards cross-
references two of the Commission's recommended standards for data
collection and review (DC-1 and DC-3), the Department has included
comparable language in the proposed standards that correspond to the
Commission's DC-1 and DC-3 standards--i.e., Sec. Sec. 115.86, 115.186,
115.286, and 115.386 (DC-1) and Sec. Sec. 115.88, 115.188, 115.288,
and 115.388 (DC-3).
Sections 115.14, 115.114, 115.214, and 115.314 (compare to the
Commission's PP-4 standard) address the limits on cross-gender
searches. The proposed standard diverges significantly from the
Commission's recommendations in its PP-4 standard. The Commission
proposed strict limits on cross-gender strip searches, visual body
cavity searches, pat-down searches, and viewing of inmates nude or
performing bodily functions. Specifically, the Commission would permit
the first two only in case of emergency, and the latter two in
emergencies or ``other extraordinary or unforeseen circumstances.'' The
Commission recommended such restrictions in order to ``to protect the
privacy and dignity of inmates and to reduce opportunities for staff-
on-inmate sexual abuse.'' Standards for the Prevention, Detection,
Response, and Monitoring of Sexual Abuse in Adult Prisons and Jails
(``Prison/Jail Standards''), available at http://www.ncjrs.gov/
pdffiles1/226682.pdf, at 12.
The Department received numerous comments on the Commission's
proposed limits on cross-gender pat-down searches. A large number of
agencies objected to the Commission's proposal on the ground that it
would require agencies either to hire significant numbers of additional
male staff or to lay off significant numbers of female staff, due to
their overwhelmingly male inmate population and substantial percentage
of female staff. In addition, many agencies expressed concern that the
necessary adjustments to their workforce could violate Federal or State
equal employment opportunities laws. Several advocacy groups, on the
other hand, expressed support for the Commission's proposal.
The Department recognizes that pat-down searches are critical to
ensuring facility security and yet are often perceived as intrusive by
inmates. Ideally, all pat-down searches would be conducted
professionally and diligently by staff members of the same sex as the
inmate. However, the Department is concerned about the high cost of
imposing such a general requirement, and the concomitant effect on
employment opportunities for women. The Department agrees with the
Commission that ``cross-gender supervision, in general, can prove
beneficial in certain confinement settings.'' Prison/Jail Standards at
12. Although the Commission stated that it ``in no way intends for this
standard to limit employment (or post assignment) opportunities for men
or women,'' id., the Department is of the view that implementing a
general prohibition on cross-gender pat-down searches cannot be
achieved in many correctional systems without limiting such
opportunities. In sum, the Department believes that the potential
benefits of eliminating cross-gender pat-down searches do not justify
the costs, financial and otherwise, of imposing such a rule across the
board.
The proposed standard would retain the Commission's recommendation
as applied to juvenile facilities, which tend to conduct pat-down
searches less frequently. Indeed, many juvenile facilities already ban
cross-gender pat-down searches absent exigent circumstance. In
addition, the Department proposes that adult prisons, jails, and
community confinement facilities not allow cross-gender pat-down
searches of inmates who have previously suffered cross-gender sexual
abuse while incarcerated. The Department agrees with the comment of
[[Page 6254]]
the New York Department of Correctional Services, which has implemented
such a rule in its facilities, that allowing such an exemption is a
viable and proportionate approach to protecting those inmates most
likely to suffer emotional harm during cross-gender pat-downs.
The proposed standard also mandates that agencies train security
staff in how to conduct cross-gender pat-down searches in a
professional and respectful manner, and in the least intrusive manner
possible consistent with security needs. Because any pat-down search
carries the potential for abuse, the Department believes that training
in the proper conduct of such searches is a cost-effective approach to
combating problems that might arise in either a cross-gender or same-
gender pat-down search.
Question 16: Should the final rule contain any additional measures
regarding oversight and supervision to ensure that pat-down searches,
whether cross-gender or same-gender, are conducted professionally?
Agency commenters' concerns about banning cross-gender pat-down
searches absent exigent circumstances did not extend to a similar rule
for strip searches and visual body cavity searches. The Department's
proposed standard incorporates that aspect of the Commission's standard
PP-4 as drafted, with two modifications. First, the proposed standard
exempts such cross-gender searches when conducted by medical
practitioners: The Department believes that a medical practitioner,
even of the opposite gender, is more likely to conduct such searches
with appropriate sensitivity. Second, the standard would require
facilities to document all such cross-gender searches, whether
conducted under emergency circumstances or by medical staff under non-
emergency circumstances.
The Department received fewer comments on the Commission's proposed
ban on cross-gender viewing of inmates who are nude or performing
bodily functions. Some agencies expressed concern about being able to
retrofit older facilities, while others commented that the Commission's
language could preclude officers from making unannounced rounds in
units where toilets are located within cells. To accommodate the latter
concern, the proposed standard modifies the Commission's recommendation
by exempting cross-gender viewing when incidental to routine cell
checks. The Department believes that concerns about retrofitting can be
accommodated by constructing privacy panels, reassigning staff, or
other appropriate measures in the limited circumstances where such
retrofitting is not possible.
Sections 115.14, 115.114, 115.214, and 115.314 also bar
examinations of transgender inmates to determine gender status unless
such status is unknown and the examination is conducted in private by a
medical practitioner. The Department's proposed standard adopts the
Commission's restrictions, to which no commenter objected. Some
commenters would impose further restrictions and ban all examinations
to determine gender status, but the Department believes that a complete
ban could preclude examinations where necessary to ensure the safety
and security of the inmate examined and of other inmates and staff.
Sections 115.15, 115.115, 115.215, and 115.315 (compare to the
Commission's PP-5 standard) govern the accommodation of inmates with
disabilities and inmates with limited English proficiency (LEP). As the
Commission noted, ``[t]he ability of all inmates to communicate
effectively and directly with staff, without having to rely on inmate
interpreters, is crucial for ensuring that they are able to report
sexual abuse as discreetly as possible.'' Prison/Jail Standards at 13.
The Department's proposed standard, like the PP-5 standard, requires
that agencies develop methods to ensure that LEP inmates and inmates
with disabilities (e.g., inmates who are deaf, hard of hearing, or
blind and inmates with low vision, intellectual, psychiatric, speech,
and mobility disabilities) are able to report sexual abuse and sexual
harassment to staff directly, and that agencies make accommodations to
convey sexual abuse policies orally to inmates who have intellectual
disabilities or limited reading skills or who are blind or have low
vision. Unlike the Commission's proposal, the proposed standard allows
for the use of inmate interpreters in exigent circumstances,
recognizing that in certain circumstances such use may be unavoidable.
Some commenters would require facilities to ensure that inmates with
disabilities and LEP inmates be able to communicate with staff
throughout the entire investigation and response process. The
Department solicits feedback on this question.
The Department also notes that agencies receiving Federal financial
assistance are required under Federal civil rights laws to meet
obligations to inmates with disabilities or who are LEP. The Department
encourages all agencies to refer to the relevant statutes, regulations,
and guidance when determining the extent of their obligations.
The Americans with Disabilities Act (ADA) requires State and local
governments to make their services, programs, and activities,
accessible to individuals with all types of disabilities. See 42 U.S.C.
12132; 28 CFR 35.130, 35.149-35.151. The ADA also requires State and
local governments to ensure that their communications with individuals
with disabilities affecting communication (blindness, low vision,
deafness, or other speech or hearing disability) are as effective as
their communications with individuals without disabilities. See 28 CFR
35.160-35.164. In addition, the ADA requires each State and local
government to make reasonable modifications to its policies, practices,
and procedures when necessary to avoid discrimination against
individuals with disabilities, unless it can demonstrate that making
the modifications would fundamentally alter the nature of the relevant
service, program, or activity. See 28 CFR 35.130(b)(7). These
nondiscrimination obligations apply to all correctional and detention
facilities operated by or on behalf of State or local governments. See
Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).
Pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq., and implementing regulations, all State and local
agencies that receive Federal financial assistance must provide LEP
persons with meaningful access to all programs and activities. See
Enforcement of Title VI of the Civil Rights Act of 1964--National
Origin Discrimination Against Persons with Limited English Proficiency,
65 FR 50123. Pursuant to Executive Order 13166 of August 11, 2000, each
agency providing Federal financial assistance is obligated to draft
Title VI guidance regarding LEP persons that is specifically tailored
to the agency's recipients of Federal financial assistance. The
Department's guidance for its recipients includes a discussion of LEP
issues in correctional and detention settings. See Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient
Persons, 67 FR 41455.
Question 17: Should the final rule include a requirement that
inmates with disabilities and LEP inmates be able to communicate with
staff throughout the entire investigation and response process? If such
a requirement is included, how should agencies ensure communication
throughout the process?
[[Page 6255]]
Sections 115.16, 115.116, 115.216, and 115.316 (compare to the
Commission's PP-6 standard) govern hiring and promotion decisions. Like
the Commission's proposal, the proposed standard would restrict
agencies' ability to hire employees who previously engaged in sexual
abuse. Several commenters expressed concern about the burden that would
be imposed by requiring background checks on any employee being
considered for promotion. The proposed standard would not mandate such
checks but instead would require agencies to conduct criminal
background checks of current employees at least every five years (as
the Federal Bureau of Prisons currently does) or have in place a system
for otherwise capturing such information for current employees.
Sections 115.17, 115.117, 115.217, and 115.317 constitute a new
standard requiring agencies to take into account how best to combat
sexual abuse when designing or expanding facilities and when installing
or updating video monitoring system or other technology. The Department
believes that it is appropriate to require agencies to consider the
impact of their physical and technological upgrades. Indeed, the
American Correctional Association has recommended that, as a means of
deterring sexual abuse, agencies should ``[p]romote effective facility
design that enables direct lines of sight within housing units.''
American Correctional Association Public Correctional Policy on
Offender on Offender Sexual Assault (Jan. 12, 2005). The sentence in
this standard regarding technology is adopted from a suggestion made in
a comment by the New York Department of Correctional Services.
Response Planning: Sections 115.21, 115.121, 115.221, 115.321,
115.22, 115.222, 115.322, 115.23, 115.123, 115.223, and 115.323
(compare to the Commission's RP standards). Like the Commission, the
Department believes it is important to establish standards that address
how facilities are expected to respond once an incident of sexual abuse
occurs.
Sections 115.21, 115.121, 115.221, and 115.321 (compare to the
Commission's RP-1 standard) set forth an evidence protocol to ensure
all usable physical evidence is preserved for administrative or
criminal proceedings. The standard makes clear that prompt exams are
needed both to identify medical and mental health needs and to minimize
the loss of evidence. In balancing these two interests, facilities
should prioritize treating a victim's acute medical and mental health
needs before collecting evidence. Like the Commission, the Department
believes that its Office on Violence Against Women's National Protocol
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents, a
revised version of which will be published later this year, provides
the best set of guidelines for conducting these exams. The proposed
standard expands the Commission'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
choked 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.
This standard takes 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 requires 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 applies to any outside
State entity or Department of Justice component that investigates such
allegations.
In all settings except lockups, the proposed standard requires 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 requires 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 staff member,'' defined as a facility employee who has
received education concerning sexual assault and forensic examination
issues in general. A victim advocate or qualified staff member must be
made available to accompany and support the victim through the forensic
medical exam process and the investigatory process, and to provide
emotional support, crisis intervention, information and referrals, as
needed. This requirement is intended to ensure that victims understand
the forensic exam and investigative processes and receive support and
assistance at an emotionally difficult time. Several agency commenters
expressed concern about the burden imposed by this requirement. The
Department notes that it has revised the Commission's standard in order
to clarify that an existing employee with appropriate education can
fulfill this role, thus reducing the burden on the facility while
ensuring support for the victim.
Lockups are excluded from this requirement for three reasons.
First, because lockups are leanly staffed, complying with this
requirement could well require the hiring of an additional staff
person. Second, there is little evidence of a significant amount of
sexual abuse in lockups that would warrant such expenditure. Third,
lockup inmates are highly transient, and thus in some cases, victims of
sexual abuse already will have been transferred to a jail before the
forensic exam is conducted.
Question 18: Do the standards adequately provide support for
victims of sexual abuse in lockups upon transfer to other facilities,
and if not, how should the standards be modified?
Sections 115.22, 115.222, and 115.322 (compare to the Commission's
RP-2 standard) govern the agreements that facilities enter into with
public service and community providers. The goal of the proposed
standard is to allow inmates the opportunity to report instances of
sexual abuse and sexual harassment to an entity outside of the agency.
The Department's proposed standard exempts agencies that allow
reporting to quasi-independent internal offices, such as inspectors
general. In addition, the proposed standard requires that agencies
maintain or attempt to enter into agreements with community service
providers who can provide inmates confidential emotional support
services related to sexual abuse. Some commenters argued that this
standard should expressly mandate specific assistance for LEP inmates.
The Department encourages agencies to make efforts to allow such
inmates to partake in the services offered under this standard and
solicits comments on whether such a mandate should be included.
Question 19: Should this standard expressly mandate that agencies
attempt to enter into memoranda of understanding that provide specific
assistance for LEP inmates?
The proposed standards do not include the Commission's
recommendations that agencies attempt to enter into memoranda of
understanding with outside investigative agencies (the Commission's RP-
3 standard) and with prosecutorial agencies (the Commission's RP-4
standard). A number of agency commenters expressed concern that these
requirements would impose significant burdens, especially in State
systems
[[Page 6256]]
where investigations and prosecutions are conducted by numerous
different agencies at the county or municipal level. The Department
recognizes that such memoranda of understanding have proven to be
valuable for certain agencies, and encourages agencies to explore the
viability of attempting to enter into such agreements. However, due to
burden concerns, the Department does not believe that agencies should
be required to make such efforts. Instead, Sec. Sec. 115.23, 115.123,
115.223, and 115.323 mandate that each agency must have in place
policies to ensure that allegations of sexual abuse or sexual
harassment are investigated by an agency with the legal authority to
conduct criminal investigations. The policy must be published on the
agency's Web site, and, if a separate entity is responsible for
investigating criminal investigations, the Web site must delineate the
responsibilities of the agency and the investigating entity. The
Department's proposed standard also requires that that any State entity
or Department of Justice component that conducts such investigations
must have policies in place governing the conduct of such
investigations.
Training and Education: Sections 115.31, 115.131, 115.231, 115.331,
115.32, 115.132, 115.232, 115.332, 115.33, 115.233, 115.333, 115.34,
115.134, 115.234, 115.334, 115.35, 115.235, and 115.335 (compare to the
Commission's TR standards). Like the Commission, the Department
believes that training for all individuals who have contact with
inmates is a key component in combating sexual abuse. Training will
create awareness of the issue of sexual abuse in facilities, clarify
staff responsibilities, ensure that reporting mechanisms are known to
staff and populations in custody, and provide specialized information
for staff with key roles in responding to sexual abuse. These standards
are substantively similar to those offered by the Commission. In
addition, each standard in this category requires documentation that
the required training was provided and, for staff training, that the
training was understood. In order to facilitate compliance, the
Department has revised the Commission's recommendations to allow
electronic documentation.
Sections 115.31, 115.131, 115.231, and 115.331 (compare to the
Commission's TR-1 standard) require that all employees who have contact
with inmates receive training concerning sexual abuse in facilities,
with refresher training to be provided on an annual basis thereafter.
The proposed standard includes all training topics proposed by the
Commission, plus training in how to avoid inappropriate relationships
with inmates. In addition, the Department has added a requirement that
the training be tailored to the gender of the inmates at the employee's
facility, that training cover effective and professional communication
with lesbian, gay, bisexual, transgender, and intersex residents, and
that training in juvenile facilities be tailored to the juvenile
setting.
Due to the limited detention operations of lockups, Sec. 115.131,
consistent with the Commission's corresponding TR-1 standard, does 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.
Question 20: Should the Department further specify training
requirements for lockups and if so, how? Would lockups be able to
implement such training in a cost-effective manner via in-person
training, videos, or Web-based seminars?
Sections 115.32, 115.232, and 115.332 (compare to the Commission's
TR-2 standard) require training for contractors and volunteers
concerning sexual abuse. The Department agrees with the Commission that
training must not be limited to employees, given that contractors and
volunteers often interact with inmates on a regular, sometimes daily,
basis. With regard to lockups, the Department mandates in Sec. 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, Sec. 115.131 governs training of lockup
volunteers.)
Sections 115.33, 115.233, and 115.333 (compare to the Commission's
TR-3 standard) require that information about combating sexual abuse
provided to individuals in custody upon intake and that comprehensive
education be provided within 30 days of intake. Like the Commission,
the Department believes that educating inmates concerning sexual abuse
is of the utmost importance. Several agency commenters expressed
concern that the Commission's recommended standard would impose a vague
mandate by requiring the provision of comprehensive education to
inmates within a ``reasonably brief period of time'' following intake.
Agency commenters also requested clarification that such education
could be provided via video. The proposed standard requires the
provision of comprehensive education within 30 days of intake, and
provides that such education may be provided via video. Although
inmates who are incarcerated for less than 30 days might not receive
such comprehensive education, all inmates will have received
information upon intake. In addition, the Department has added a
requirement that agencies must ensure that key information is
continually and readily available or visible to inmates through
posters, inmate handbooks, or other written formats.
Due to the transitory nature of community confinement, the proposed
standard does not mandate the provision of refresher information except
upon transfer to another facility.
Sections 115.34, 115.134, 115.234, and 115.334 (compare to the
Commission's TR-4 standard) requires that agencies that conduct their
own sexual abuse investigations provide specialized training for their
investigators in conducting such investigations in confinement
settings, and that any State entity or Department of Justice component
that investigates sexual abuse in confinement settings do the same.
Although several agency commenters questioned the need for and cost of
training tailored to confinement settings, the Department believes that
such training is valuable and can be provided in a cost-effective
manner. Models of such training already exist, and the Department is
interested in receiving feedback on how it can provide additional
assistance in developing such training.
Sections 115.35, 115.235, and 115.335 (compare to the Commission's
TR-5 standard), require specialized training for all medical staff
employed by the agency or facility. The proposed standard exempts
lockups, which usually do not employ or contract for medical staff. The
Commission found, and the Department agrees, that investigative and
medical staff members serve vital roles in the response to sexual
abuse, and the nature of their responsibilities require additional
training in order to be effective. The Department further proposes that
any agency medical staff who conduct forensic evaluations receive
appropriate training.
Screening for Risk of Sexual Victimization and Abusiveness:
Sections 115.41, 115.241, 115.42, 115.242, and 115.43 (compare to the
Commission's SC standards). Like the Commission, the Department
believes that the proper classification of inmates
[[Page 6257]]
is crucial to preventing sexual abuse. Sound correctional management
requires that agencies obtain information from inmates and use such
information to assign inmates to housing units or specific cells in
which they are likely to be safe. These proposed standards are
substantively similar to those recommended by the Commission. Like the
Commission's recommended standards, these standards do not apply to
lockups, due to the short-term nature of lockup detention. However, the
Department solicits comments on whether rudimentary screening should be
mandated for lockups.
Sections 115.41 and 115.241 (compare to the Commission's SC-1
standard) require that agencies conduct screenings of inmates upon
intake and during an initial classification process, pursuant to an
objective screening instrument. Although the intake screening need not
be as rigorous, the initial classification process for each inmate must
consider, at a minimum, the existence of a mental, physical, or
developmental disability; age; physical build; criminal history,
including prior sex offenses and previous incarceration; whether the
inmate is gay, lesbian, bisexual, transgender, or intersex; previous
sexual victimization; perceived vulnerability; any history of prior
institutional violence or sexual abuse; and (as added by the
Department) whether an inmate is detained solely on civil immigration
charges. Several commenters proposed reducing or eliminating the
distinctions between the Commission's proposed screening criteria for
male and female inmates. The Department has developed a set of criteria
that is applicable to male and female inmates alike, although agencies
may determine that the criteria should be weighed differently depending
upon the inmate's gender.
Question 21: Recognizing that lockup detention is usually measured
in hours, and that lockups often have limited placement options, should
the final rule mandate rudimentary screening requirements for lockups,
and if so, in what form?
The proposed standard clarifies that the initial classification
screening must be conducted within 30 days of an inmate's confinement.
Several agency commenters expressed concern about the cost and burden
of conducting detailed screening upon an inmate's entrance into a
facility. By clarifying that the detailed initial classification need
only be conducted within 30 days of confinement, the Department intends
to allow agencies with rapid turnover to avoid conducting a full
classification, while still ensuring that an inmate is screened
appropriately upon intake. Agencies that house all inmates beyond 30
days must conduct an intake screening followed by a more detailed
classification. Although the proposed standard does not specify the
scope of the intake screening, the intent of the standard is that
institutions should do what is feasible at intake to ensure that inmate
can be housed safely for a short period of time pending either release
or a more detailed classification.
Question 22: Should the final rule provide greater guidance
regarding the required scope of the intake screening, and if so, how?
The Department's proposed standard differs from the Commission's
recommended standard in several additional respects. First, the
proposed standard clarifies the Commission's reference to ``subsequent
classification reviews'' by mandating that inmates should be rescreened
when warranted due to a referral, request, or incident of sexual
victimization. Second, recognizing that information provided at
screenings is often highly sensitive, personal, and may put an
individual at risk in a correctional setting, the Department proposes
that such information be subject to appropriate controls to avoid
unnecessary dissemination. Third, due to the personal nature of the
information, the proposed standard specifies that it must not be a
disciplinary infraction to fail to provide information during this
process. Fourth, although the Commission would require use of a written
instrument in the classification process, the Department has not
adopted this requirement in order to allow for electronic evaluations.
Sections 115.42 and 115.242 (compare to the Commission's SC-2
standard) require administrators of adult prisons and jails and
community confinement facilities to use the information obtained in a
classification interview in order to separate individuals who are at
risk of abuse from those at high risk of being sexually abusive. The
proposed regulation is substantially similar to the Commission's
standard with, two exceptions.
First, the proposed standard does not include the Commission's
recommended ban on assigning inmates to particular units solely on
basis of sexual orientation or gender identity. One commenter discussed
the success of the Los Angeles County Jail in housing gay male and
transgender prisoners in a separate housing unit. At a subsequent
meeting with officials of that jail, the Department learned that the
jail officials believe that the occupants of that separate unit are
significantly safer than they would be in the general jail population.
While the Department is not proposing a ban on such units, it urges
that any agency that might be considering the creation of such a unit
make every effort to ensure that its occupants receive the same access
to programming and employment as inmates in the general population.
Second, the proposed standard mandates that transgender and
intersex inmates, who may be especially vulnerable, receive an
individualized assessment on whether the inmate should be housed in a
male or female facility, to be reassessed at least twice each year to
review any threats to safety experienced by the inmate.
Section 115.43 governs the use of protective custody, incorporating
and expanding upon the relevant portion of the Commission's SC-2
standard. Due to the importance of protective custody, the Department
believes it warrants its own standard, applicable only to adult prisons
and jails, as other types of facilities usually do not have protective
custody assignments of this nature. The proposed standard provides that
inmates at high risk of sexual victimization 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 new standard also
specifically defines the assessment process, specifies required
documentation, and sets a presumptive time frame of 90 days. The
Department recognizes that protective custody may be necessary in a
correctional setting to ensure the safety of inmates and staff.
However, the Department also notes that the prospect of placement in
segregated housing may deter inmates from reporting sexual abuse. The
new standard attempts to balance these concerns and ensure that
alternatives to involuntary protective custody are considered and
documented. In addition, the proposed standard contains the
Commission's recommendation that, to the extent possible, protective
custody should not limit access to programming.
Assessment and Placement of Residents: Sections 115.341 and 115.342
(compare to the Commission's AP standards). Like the Commission, the
Department refers to the categorization process in juvenile facilities
as ``assessment and placement'' rather than ``screening.''
Sections 115.341 and 115.342 (compare to the Commission's AP-1 and
AP-2 standards) govern screening requirements for juveniles. These two
proposed standards take into account
[[Page 6258]]
the different practices and procedures that apply in juvenile
facilities compared to adult prisons, jails, and community confinement
facilities. Section 115.341 directs facilities to assess each
resident's personal history and behavior upon intake and periodically
throughout a resident's confinement to reduce the risk of sexual abuse.
In addition to obtaining information in conversations with the
resident, facilities can review court records, case files, facility
behavioral records, and other relevant documentation from the
resident's files. The proposed standard adds the inmate's own
perception of vulnerability to the list of topics about which the
facility should attempt to ascertain information.
As in the analogous adult standards, the Department has added a
requirement that juveniles must be assessed and placed pursuant to an
objective screening instrument, and that information obtained for this
purpose be subject to appropriate controls to avoid unnecessary
dissemination.
Several agency commenters expressed concern about the Commission's
recommendation that only medical and mental health practitioners be
allowed to talk with residents to gather information about their sexual
orientation or gender identity, prior sexual victimization, history of
engaging in sexual abuse, mental health status, and mental or physical
disabilities. The Department has not included this limitation in its
proposed standard, agreeing with commenters that appropriately trained
juvenile facility staff who are not medical or mental health
practitioners can engage in productive conversations on these topics
with residents.
Section 115.342 directs the facility to use the information
gathered under Sec. 115.341 to make housing, bed, program, education,
and work assignments. As in the analogous adult standards, the proposed
standard requires individualized assessments about whether a
transgender resident should be housed with males or females. Unlike the
adult standards, however, the proposed standard retains the
Commission's recommended ban on housing separately residents who are
lesbian, gay, bisexual, transgender, or intersex. Given the small size
of the typical juvenile facility, it is unlikely that a facility would
house a large enough population of such residents so as to enable a
fully functioning separate unit, as in the Los Angeles County Jail.
Accordingly, the Department believes that the benefit of housing such
residents separately is likely outweighed by the potential for such
segregation to be perceived as punishment or as akin to isolation.
Section 115.342 also addresses isolation for juveniles, allowing it
only as a last resort when less restrictive means are inadequate to
ensure resident safety, and then only until an alternative method of
ensuring safety can be established.
Reporting: Sections 115.51, 115.151, 115.251, 115.351, 115.52,
115.252, 115.352, 115.53, 115.253, 115.353, 115.54, 115.154, 115.254,
and 115.354 (compare to the Commission's RE standards). Like the
Commission, the Department believes that reporting instances of sexual
abuse is critical to deterring future acts. The Department, however,
has made significant changes to some of the Commission's proposed
standards in this area.
Sections 115.51, 115.151, 115.251, and 115.351 (compare to the
Commission's RE-1 standard) require agencies to enable inmates to
privately report sexual abuse and sexual harassment and related
misconduct. The Commission proposed that agencies be required to allow
inmates to report abuse to an outside public entity, which would then
forward reports to the facility head ``except when an inmate requests
confidentiality.'' Several commenters expressed concern that a public
entity would be required to ignore reports of criminal activity if an
inmate requested confidentiality. The proposed standard eliminates this
exception; however, the Department solicits comments on the issue.
The Department notes that the Department of Defense provides a
``restricted reporting'' option that allows servicemembers to
confidentially disclose the details of a sexual assault to specified
Department employees or contractors and receive medical treatment and
counseling, without triggering the official investigative process and,
subject to certain exceptions, without requiring the notification of
command officials or law enforcement. See Department of Defense
Directive 6495.01, Enclosure Three; Department of Defense Instruction
6495.02. Under Department of Defense policy, such restricted reports
may be made to a Sexual Assault Response Coordinator, a designated
victim advocate, or healthcare personnel.
Question 23: Should the final rule mandate that agencies provide
inmates with the option of making a similarly restricted report to an
outside public entity? To what extent, if any, would such an option
conflict with applicable State or local law?
The proposed standard also provides that, instead of enabling
reports to an outside public entity, the agency may meet this standard
by enabling reports to an office within the agency but that is
operationally independent from agency leadership, such as an inspector
general or ombudsperson. The proposed standard requires only that
agencies make their best efforts to set up such systems, recognizing
that it may not be possible for all agencies. However, an agency must
endeavor diligently to establish such a system, and if it does not
succeed, it must demonstrate that no suitable outside entity or
internal office exists, and that it would be impractical to create an
internal office to serve this role.
In addition, the proposed standard mandates that agencies establish
a method for staff to privately report sexual abuse and sexual
harassment of inmates. Finally, the proposed standard requires that
juvenile residents be provided access to tools necessary to make
written reports, whether writing implements or computerized reporting.
Sections 115.52, 115.252, and 115.352 (compare to the Commission's
RE-2 standard) govern grievance procedures and the methods by which
inmates exhaust their administrative remedies. The Commission's
recommended standard would impose three requirements. First, the
standard would mandate that an inmate be deemed to have exhausted
administrative remedies regarding a claim of sexual abuse either when
the agency makes a final decision on the merits of the report,
regardless of the source, or 90 days after the report, whichever comes
first. Second, the standard would mandate that the agency accept any
grievance alleging sexual abuse regardless of the length of time that
had passed between abuse and report. Third, the standard would provide
that an inmate seeking immediate protection from imminent sexual abuse
would be deemed to have exhausted administrative remedies 48 hours
after notifying any agency staff member of the need for protection.
The Commission justified its standard as a means of ensuring that
inmates have an effective method to seek judicial redress. The
Commission noted that inmates who suffer sexual abuse are often too
traumatized to comply with short time limitations imposed by many
grievance systems. See Prison/Jail Standards at 35. In addition, the
Commission noted, filing a grievance is not the typical way to report
sexual abuse, and inmates who are told that they may report via other
methods may not realize that they also need to file a
[[Page 6259]]
grievance in order to later pursue legal remedies. See id.
Numerous agency commenters registered several types of objections
to the Commission's proposal. First, some commenters suggested that
aspects of the Commission's proposals would violate the Prison
Litigation Reform Act (PLRA), which provides in pertinent part that
``[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.'' 42 U.S.C.
1997e(a). Commenters noted that the Commission's proposal would not
mandate the exhaustion of available administrative remedies such as a
grievance system but rather would deem exhaustion to have occurred 90
days after sexual abuse is reported to the agency. Second, some
commenters objected to the requirement that no limitations period be
imposed on grieving sexual abuse, and suggested that this would allow
filing of stale claims that would be difficult to investigate due to
the passage of time. Third, some commenters suggested that imposing any
standard in this area would encourage the filing of frivolous claims.
Fourth, commenters objected to the imminent-abuse requirement on the
grounds that it would not allow sufficient time for investigations,
would allow inmates to define imminence, and would permit gamesmanship
by inmates seeking changes to housing or facility assignments for
reasons unrelated to sexual abuse.
Numerous commenters from advocacy groups and legal organizations
endorsed the Commission's proposal as a way to ensure that inmates are
able to vindicate their rights. Some commenters suggested that the
standard should also address the PLRA's requirement that no prisoner
may recover for mental or emotional injury without a prior showing of
physical injury, see 42 U.S.C. 1997e(e), either by deeming this
requirement inapplicable to victims of sexual abuse or by deeming
sexual abuse to constitute physical injury per se.
The Department agrees with the Commission that a standard relating
to grievance procedures would be beneficial in light of strong evidence
that victims of sexual abuse are often constrained in their ability to
pursue grievances, for reasons discussed by the Commission and by
commenters. However, the Department believes that the Commission's
recommended standard devotes insufficient attention to several policy
concerns lodged by correctional agencies, regardless of whether those
correctional agencies are correct that the Commission's proposal is
inconsistent with the PLRA. Accordingly, the Department is proposing a
standard that it believes is sensitive to legitimate agency concerns
while providing inmates appropriate access to the legal process in
order to obtain judicial redress where available under applicable law
and to enable litigation to play a beneficial role in ensuring that
agencies devote sufficient attention to combating sexual abuse.
The Department's proposed standard takes into account (1) the
possibility that victims of sexual abuse may need additional time to
initiate the grievance process; (2) the need for a final decision from
the agency, and without undue delay; (3) the fact that such victims
often report such abuse outside of the grievance system, and that the
appropriate agency authorities may first learn of an allegation through
a staff member or other third party; and (4) the need to provide swift
redress in case of emergency. At the same time, the proposed standard
recognizes (1) the need to comply with the PLRA; (2) the importance of
providing agencies a meaningful amount of time to investigate
allegations of sexual abuse; (3) the possibility that some inmates may
fabricate claims of sexual abuse; and (4) the need to ensure
accountability for grievances that are filed. The proposed standard
does not address the PLRA's requirement that physical injury must be
shown prior to any recovery for emotional or mental injury; the
Department agrees with the Commission that the actions that commenters
seek with regard to this requirement would require a statutory revision
and cannot be accomplished via rulemaking.
Paragraph (a) of Sec. Sec. 115.52, 115.252, and 115.352 governs
the amount of time that inmates have after an alleged incident of
sexual abuse to file a grievance. The proposed standard sets this time
at 20 days, with an additional 90 days available if an inmate provides
documentation, such as from a medical or mental health provider or
counselor, that filing sooner would have been impractical due to
trauma, removal from the facility, or other reasons. The 20-day limit
matches the limitations period used by the Federal Bureau of Prisons
(BOP) for all grievances, see 28 CFR 542.14(a), and according to a
recent survey is shorter than the general limitations period for
grievances in 18 States, see Appendix, Brief for the Jerome N. Frank
Legal Services Organization of the Yale Law School As Amicus Curiae in
Support of Respondent, Woodford v. Ngo (No. 05-416) (2006). By
requiring actual documentation to obtain a 90-day extension for good
cause shown, the proposed standard would reduce risk of inmate
gamesmanship. The extension could be granted retroactively, thus
avoiding the perverse consequence of recognizing that a victim may be
too traumatized to file a grievance, while at the same time requiring
the victim to file an extension request that documents such trauma.
Paragraph (b) of Sec. Sec. 115.52, 115.252, and 115.352 governs
the amount of time that agencies have to resolve a grievance alleging
sexual abuse before it is deemed to be exhausted. The goal of this
paragraph is 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) requires 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. Time consumed by inmates in making appeals does not
count against these time limits, in order to clarify that the agency's
burden of producing timely responses applies only when a response is
actually pending, and to ensure that agencies that allow generous time
frames for inmates to take appeals are not penalized by receiving a
commensurately shorter length of time to respond to inmate filings.
The 90-day limit and the 70-day extension period are consistent
with current BOP procedures. BOP has a three-level grievance system:
the Warden has 20 days to adjudicate the initial appeal, the Regional
Director has 30 days to adjudicate an intermediate appeal, and the BOP
General Counsel has 40 days to adjudicate a final appeal. See 28 CFR
542.18. BOP allows extensions at each level of 20, 30, and 20 days,
respectively, if the normal time period is insufficient to make an
appropriate decision. See id. The Department has not identified a broad
survey that would allow comparison to State or local systems, but
believes that the 90-day limit, extendable to 160 days, provides
sufficient time for any agency to take appropriate steps to respond to
allegations of sexual abuse prior to the initiation of a lawsuit.
Paragraph (c) of Sec. Sec. 115.52, 115.252, and 115.352 requires
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. As the
[[Page 6260]]
Commission and some commenters have noted, it is inconsistent for an
agency to assure inmates that it will investigate sexual abuse
allegations made to any staff member and then defend against a lawsuit
on the ground that the inmate failed to file a formal grievance with
the proper facility official. As the Commission noted, ``because
grievance procedures are generally not designed as the sole or primary
method for reporting incidents of sexual abuse by inmates to staff,
victims who do immediately report abuse to authorities may not realize
they need to file a grievance as well to satisfy agency exhaustion
requirements.'' Prison/Jail Standards at 35. However, the Commission's
recommendation that a third-party report suffice to bypass the
grievance system altogether would deny correctional agencies the
ability to investigate allegations of sexual abuse prior to the filing
of a lawsuit. In addition, the Commission's proposal, if adopted, could
require courts to adjudicate disputes over whether and when the agency
in fact received such a report that would excuse the inmate from
needing to file a grievance.
The proposed standard would address these concerns by requiring
reports of sexual abuse to be channeled into the normal grievance
system (including requests for informal resolution where required)
unless the alleged victim requests otherwise. Reports from other
inmates would be exempted from this requirement in order to reduce the
likelihood that inmates would attempt to manipulate staff or other
inmates by making false allegations. The proposed standard would permit
agencies to require alleged victims to perform properly all subsequent
steps in the grievance process, because at that point the rationale for
third-party involvement would no longer exist. However, where the
alleged victim of sexual abuse is a juvenile, the proposed standard
would allow a parent or guardian to continue to file appeals on the
juvenile's behalf unless the juvenile does not consent.
Paragraph (d) governs procedures for dealing with emergency claims
alleging imminent sexual abuse. Many State prison systems expressly
provide emergency grievance procedures where imminent harm is
threatened. Such procedures usually require a speedy final agency
decision, and therefore a speedy exhaustion of administrative remedies.
These procedures address the possibility that some inmates may have
reason to fear imminent harm from another inmate or from a staff
member, in which case a lengthy grievance process would be unlikely to
provide adequate relief.
However, the Department believes that the Commission's imminent-
harm proposal is unworkable, because it would allow any inmate nearly
instant court access based upon the inmate's mere assertion that sexual
abuse is imminent. Under the Commission's proposal, an inmate could
trigger these emergency exhaustion provisions by notifying any agency
staff member, regardless of the staff member's authority to provide a
remedy. Then, the inmate could automatically file suit within 48 hours,
regardless of whether the claim of imminent harm has any merit. Such a
regime could encourage the filing of frivolous claims in which sexual
abuse is alleged as a vehicle to seek immediate judicial access in
order to obtain an unrelated remedy, such as a change in housing
assignment for reasons other than safety.
The proposed standard would require agencies to establish emergency
grievance procedures resulting in a prompt response--unless the agency
determines that no emergency exists, in which case the grievance may 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, an agency could discipline an inmate for
deliberately alleging false emergencies. The Department believes that
this provision, modeled on procedures in place in numerous States,
would serve as an adequate deterrent to the filing of frivolous or
strategic claims while advancing true emergencies to the head of the
queue.
Question 24: Because the Department's proposed standard addressing
administrative remedies differs significantly from the Commission's
draft, the Department specifically encourages comments on all aspects
of this proposed standard.
Sections 115.53, 115.253, and 115.353 (compare to the Commission's
RE-3 standard) require that agencies provide inmates access to outside
victim advocacy organizations, similar to the Commission's recommended
standard. Several commenters expressed concern that the Commission's
proposal would allow inmates unfettered and unmonitored access to
outside organizations, possibly enabling inmate abuse of such access.
The proposed standard modifies the Commission's recommended language,
which would require communications to be ``private, confidential, and
privileged, to the extent allowable by Federal, State, and local law.''
Instead, the proposed rule requires that such communications be as
confidential as possible consistent with agency security needs. The
Department recognizes that allowing inmate access to outside victim
advocacy organizations can greatly benefit inmates who have experienced
sexual abuse yet who may be reluctant to report it to facility
administrators, and notes that some agencies, such as the California
Department of Corrections and Rehabilitation, have established
successful pilot programs working with outside organizations. At the
same time, the Department recognizes that communications with outsiders
raise legitimate security concerns. The proposed standard strikes a
balance by allowing confidentiality to the extent consistent with
security needs.
The proposed standard also retains the Commission's recommendation
that juvenile facilities be specifically instructed to provide
residents with access to their attorney 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 modifies the Commission's language by mandating that
juvenile facilities provide access that is reasonable (and, with
respect to attorneys and other legal representation, confidential)
rather than unimpeded.
Sections 115.54, 115.154, 115.254, and 115.354 (compare to the
Commission's RE-4 standard) requires that facilities establish a method
to receive third-party reports of sexual abuse and publicly distribute
information on how to report such abuse on behalf of an inmate.
Elements of the Commission's RE-4 standard related to investigations
are included in Sec. Sec. 115.71, 115.171, 115.271, and 115.371.
Official Response Following an Inmate Report: Sections 115.61,
115.161, 115.261, 115.361, 115.62, 115.162, 115.262, 115.362, 115.63,
115.163, 115.263, 115.363, 115.64, 115.164, 115.264, 115.364, 115.65,
115.165, 115.265, 115.365, 115.66, and 115.366 (compare to the
Commission's OR standards). The Department proposes six standards
addressing a facility's official response following a report of sexual
abuse or sexual harassment. These six proposed standards are
substantively similar to the five standards proposed by the Commission.
This group of standards is intended to ensure coordinated, thorough,
and complete agency reactions to reports of sexual abuse.
Sections 115.61, 115.161, 115.261, and 115.361 (compare to the
Commission's OR-1 standard) set forth staff and agency reporting duties
regarding incidents of sexual abuse.
[[Page 6261]]
Staff must be trained and informed about how to properly report
incidents of sexual abuse while maintaining the privacy of the victim.
Staff are required to 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
Department's proposed standard adds to the Commission's recommendations
a requirement that the facility must report all allegations of sexual
abuse to the facility's designated investigators, including third-party
and anonymous reports.
Sections 115.62, 115.162, 115.262, and 115.362 (compare to the
Commission's OR-2 standard) require that after a facility receives an
allegation that one of its inmates was sexually abused at another
facility, it must inform that other facility within 14 days. This
standard recognizes that some victims of sexual abuse may not report an
incident until they are housed in another facility. Such incidents must
not evade investigation merely because the victim is no longer at the
facility where the abuse occurred. The proposed standard tracks the
Commission's recommendation but adds the 14-day time limit in order to
provide further guidance to agencies. The standard also requires that
the facility receiving the information must investigate the allegation.
Sections 115.63, 115.163, 115.263, and 115.363 (compare to the
Commission's OR-3 standard) set forth staff first responder
responsibilities. Staff need to be able to adequately counsel victims
while maintaining security and control over the crime scene so any
physical evidence is preserved until an investigator arrives. The
proposed standard revises the Commission's recommendation by
requesting, rather than instructing, victims not to take actions that
could destroy physical evidence. This change is consistent with
forthcoming revisions to the Office on Violence Against Women's
National Protocol for Sexual Assault Medical Forensic Examinations,
Adults/Adolescents.
Sections 115.64, 115.164, 115.264, and 115.364 (compare to the
Commission's OR-4 standard) require a coordinated response among first
responders, medical and mental health practitioners, investigators, and
facility leadership when an incident of sexual abuse takes place. This
proposed standard is modeled after coordinated sexual assault response
teams (SARTs), which are widely accepted as a best practice for
responding to rape and other incidents of sexual abuse. Agencies are
encouraged to work with existing community SARTs or create their own
plan for a coordinated response. To ensure that the victim receives the
best care possible and that the investigator has the best chance of
apprehending the perpetrator, the Department recommends coordination of
the following actions: (1) Assessing the victim's acute medical needs,
(2) informing the victim of his or her rights under relevant Federal or
State law, (3) explaining the need for a forensic medical exam and
offering the victim the option of undergoing one, (4) offering the
presence of a victim advocate or a qualified staff member to be present
during the exam, (5) providing crisis intervention counseling, (6)
interviewing the victim and any witnesses, (7) collecting evidence, and
(8) providing for any special needs the victim may have.
Some commenters expressed uncertainty regarding how compliance with
this standard would be measured.
Question 25: Does this standard provide sufficient guidance as to
how compliance would be measured? If not, how should it be revised?
Sections 115.65, 115.165, 115.265, and 115.365 (compare to the
Commission's OR-5 standard) require that the agency protect all inmates
and staff from retaliation for reporting sexual abuse or for
cooperating with sexual abuse investigations. Retaliation for reporting
instances of sexual abuse and for cooperating with sexual abuse
investigations is a real and serious threat in correctional facilities.
Fear of retaliation, such as being subjected to harsh or hostile
conditions, being attacked by other inmates, or suffering harassment
from staff, prevents many inmates and staff from reporting sexual
abuse, which in turn makes it difficult to keep facilities safe and
secure. The proposed standard requires agencies to adopt policies that
help ensure that those who do report are properly monitored and
protected afterwards, 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.
A few agency commenters raised concerns regarding the burdens
imposed by the proposed requirement that agencies monitor for 90 days
the conduct and treatment of inmates or staff who have reported sexual
abuse or cooperated with investigations. The Department believes that
90 days is an appropriate minimum amount of time to ensure that no
retaliation occurs, and that such monitoring can be performed without
unduly consuming agency resources. The Department has added a
requirement that monitoring continue beyond 90 days where the initial
monitoring conducted during the initial 90-day period indicates
concerns that warrant further monitoring.
Question 26: Should the standard be further refined to provide
additional guidance regarding when continuing monitoring is warranted,
or is the current language sufficient?
The Department's proposed standard adds a requirement that the
Commission discussed but did not mandate: That an agency must not enter
into or renew any collective bargaining agreement or other agreement
that limits its ability to remove alleged staff abusers from contact
with victims pending an investigation. This requirement builds on the
Commission's suggestion, in the discussion section accompanying its OR-
5 standard, that ``agencies should try to secure collective bargaining
agreements that do not limit their ability to protect inmates or staff
from retaliation.'' Prison/Jail Standards at 42.
Sections 115.66 and 115.366 are new standards proposed by the
Department, and clarify that the use of protective custody following an
allegation of sexual abuse should be subject to the same requirements
as the use of protective custody as a preventative measure.
Investigations: Sections 115.71, 115.171, 115.271, 115.371, 115.72,
115.172. 115.272, 115.372, 115.73, 115.273, and 115.373 (compare to the
Commission's IN standards). Like the Commission, the Department
believes it is important to set standards to govern investigations of
allegations of sexual abuse. The proposed standards in these sections
are substantially similar to the Commission's recommendations, with
some modifications.
Sections 115.71, 115.171, 115.271, and 115.371 (compare to the
Commission's IN-1 and IN-2 standards) address criminal and
administrative investigations. Although criminal and administrative
investigations are quite different in nature, certain elements, like
evidence, are critical to both. This proposed standard addresses how to
preserve the elements that are important to both. The standard requires
that agencies that conduct their own investigations must do so
promptly,
[[Page 6262]]
thoroughly, and objectively. The proposed standard requires
investigations whenever an allegation of sexual abuse is made,
including third-party and anonymous reports, and mandates that an
investigation may not be terminated on the ground that the alleged
abuser or victim is no longer employed or housed by the facility or
agency.
The proposed standard requires that investigators gather and
preserve all available direct and circumstantial evidence. Because
sexual abuse often has no witnesses and often leaves no visible
injuries, investigators must be diligent in tracking down all possible
evidence, including collecting DNA and electronic monitoring data,
conducting interviews, and reviewing prior complaints and reports of
sexual abuse involving the alleged perpetrator. Because of the delicate
nature of these investigations, investigators should be trained in
conducting sexual abuse investigations in compliance with Sec. Sec.
115.34, 115.134, 115.234, and 115.334.
The proposed standard also requires that administrative
investigators work with criminal prosecutors in gathering certain kinds
of evidence, such as compelled interviews. It is critical that such
interviews not undermine subsequent criminal prosecutions. The proposed
standard does not, however, require that an administrative
investigation be delayed until a decision whether to prosecute has been
made. To ensure an unbiased evaluation of witness credibility, the
proposed standard requires 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 requires that all
investigations, whether administrative or criminal, be documented in
written reports. Such reports must be retained for as long as the
alleged abuser is incarcerated or employed by the agency, plus five
years.
Some commenters expressed concern that the Commission's proposed
standard would require agencies to dictate investigative procedures to
outside entities responsible for conducting investigations within
agency facilities. The Department's proposed standard simply requires
that a facility cooperate with any outside investigators and endeavor
to remain informed about the progress of the investigation. However,
the proposed standard expressly applies to any outside investigator
that is a State entity or Department of Justice component.
Sections 115.72, 115.172, 115.272, and 115.372 (compare to the
Commission's IN-3 standard) set forth the evidentiary standard for
administrative investigations. The Commission's proposed standard
defined a ``substantiated'' sexual abuse allegation as one supported by
a preponderance of the evidence. The Department's proposed standard
allows the agency to define ``substantiated'' as being supported by a
preponderance of the evidence or a lower evidentiary standard.
Sections 115.73, 115.273, and 115.373 address the agency's duty to
report to inmates, a topic that the Commission included as part of its
IN-1 standard. Specifically, 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, it must request
the relevant information from the investigating entity in order to
inform the inmate. In addition, if an inmate has alleged 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
Department's proposed standard does not apply to allegations that have
been determined to be unfounded, and (as with the Commission's
recommendation) does not apply to lockups, due to the short-term nature
of lockup detention.
The Commission's recommended standard would require a facility to
``notif[y] victims and/or other complainants in writing of
investigation outcomes and any disciplinary or criminal sanctions,
regardless of the source of the allegation.'' Several agency commenters
expressed concern with the Commission's proposal on security or privacy
grounds. These commenters questioned the wisdom of providing written
information to victims and third-party complainants, where such
information could easily become widely known throughout the facility
and possibly endanger other inmates or staff. In addition, commenters
noted that privacy laws may restrict the dissemination of certain
information about staff members. The Department believes that its
proposed standard strikes the proper balance between staff members'
privacy rights and the inmate's right to know the outcome of the
investigation, while protecting the security of both inmates and staff.
Discipline: Sections 115.76, 115.176, 115.276, 115.376, 115.77,
115.177, 115.277, and 115.377 (compare to the Commission's DI
standards). Like the Commission, the Department proposes two standards
to ensure appropriate and proper discipline in relation to cases of
sexual abuse. These standards are substantively similar to those
offered by the Commission.
Sections 115.76, 115.176, 115.276, and 115.376 (compare to the
Commission's DI-1 standard) govern disciplinary sanctions for staff
members who violate sexual abuse or sexual harassment policies,
regardless of whether they have been found criminally culpable.
Imposing appropriate disciplinary sanctions against such staff members
is critical not only to providing a just resolution to substantiated
allegations of sexual abuse and sexual harassment but also to fostering
a culture of zero tolerance for such acts. The sanction for sexually
abusive conduct or penetration is presumed to be termination.
Terminations for violating such policies, or resignations by staff who
otherwise would have been terminated, must be reported to law
enforcement agencies as well as to any relevant licensing bodies.
However, the Department's proposed standard limits the Commission's
recommendation by not requiring a report to law enforcement where the
conduct was clearly not criminal. The proposed standard also adds the
requirement--discussed but not mandated by the Commission, see Prison/
Jail Standards at 47--that sanctions must be fair and proportional,
taking into consideration the accused staff member's actions,
disciplinary history, and sanctions imposed on other staff members in
similar situations. Yet at the same time, such sanctions must send a
clear message that sexual abuse is not tolerated.
Sections 115.77, 115.277, and 115.377 (compare to the Commission's
DI-2 standard) govern disciplinary sanctions for inmates who are found
to have sexually abused another inmate. Holding inmates accountable for
such abuse is an essential deterrent and a critical component of a
zero-tolerance policy. As with sanctions against staff, sanctions
against inmates must be fair and proportional, taking into
consideration the inmate's actions, disciplinary history, and sanctions
imposed on other inmates in similar situations, and must send a clear
message that sexual abuse is not tolerated. The disciplinary process
must also take into account any mitigating
[[Page 6263]]
factors, such as mental illness or mental disability, and must consider
whether to incorporate therapy, counseling, or other interventions that
might help reduce recidivism.
The Department's proposed standard makes four changes to the
Commission's recommendation, each of which was suggested by commenters.
First, the proposed standard does not require therapy, but rather
requires that the facility consider whether to condition access to
programming or other benefits on the inmate agreeing to participate in
therapy. Second, the standard does not permit disciplining inmates for
sexual contact with staff without a finding that the staff member did
not consent to such contact. Although agencies must not tolerate sexual
contact between inmates and staff, the power imbalance between staff
and inmates requires that discipline fall on the staff member unless he
or she did not consent to the activity. Otherwise, inmates may be
reluctant to report sexual abuse by staff for fear that they will be
disciplined. Third, the standard provides that inmates may not be
punished for making good-faith allegations of sexual abuse, even if the
allegation is not substantiated following an investigation. Fourth, the
standard provides that an agency must not consider consensual sexual
contact between inmates to constitute sexual abuse. This standard is
not intended to limit an agency's ability to prohibit such activity,
but only to clarify that consensual sexual activity between inmates
does not fall within the ambit of PREA.
Lockups generally do not hold inmates for prolonged periods of time
and thus do not impose discipline. As a result, Sec. 115.177, like the
Commission's DI-2 standard for lockups, requires 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, it must
inform the responsible investigating entity. The proposed standard also
applies to any State entity or Department of Justice component that is
responsible for sexual abuse investigations in lockups.
Medical and Mental Health Care: Sections 115.81, 115.381, 115.82,
115.182, 115.282, 115.382, 115.83, 115.283, and 115.383 (compare to the
Commission's MM standards). Like the Commission, the Department has
proposed three standards to ensure that inmates receive the appropriate
medical and mental health care. Each proposed standard is substantially
similar to that proposed by the Commission.
Sections 115.81 and 115.381 (compare to the Commission's MM-1
standard) requires that inmates be asked about any prior history of
sexual victimization and abusiveness during their intake or
classification screening. Although the proposed standards do not
require inmates to answer these questions, inmates should be informed
that disclosing prior sexual victimization and abuse is in their own
best interest as such information is used both to determine whether
follow-up care is needed and where the inmate can be safely placed
within the facility.
Some commenters suggested that the Commission's recommended
standard would be too costly because it would require that medical or
mental health practitioners conduct these interviews. Unlike the
Commission's standard, the proposed standard does not specify who
should conduct this inquiry, but instead requires the inmate be offered
a follow-up with a medical or mental health practitioner within 14 days
of the intake screening. Some commenters also suggested that the
standard proposed by the Commission would impose a disproportional cost
burden on smaller jails whose current staffs would not be able to meet
its requirements. The proposed standard limits the inquiry required in
jails by not requiring an inquiry about prior sexual abusiveness.
Neither the Commission's recommended standard nor the Department's
proposed standard applies to either lockups or community confinement
facilities. The proposed standard is not appropriate for lockups given
the relatively short time that they are responsible for inmate care.
Nor is it appropriate for community confinement facilities, which do
not undertake a similar intake/classification screening process.
Sections 115.82, 115.182, 115.282, and 115.382 (compare to the
Commission's MM-2 standard) require that victims of sexual abuse
receive free access to emergency medical treatment and crisis
intervention services if they have been a victim of sexual abuse.
Sections 115.83, 115.283, and 115.383 (compare to the Commission's
MM-3 standard) require that victims of sexual abuse receive access to
ongoing medical and mental health care, and that abusers receive access
to care as well. This proposed standard recognizes that victims of
sexual abuse can experience a range of physical injuries and emotional
reactions, even long after the abuse has occurred, that can require
medical or mental health attention. Thus, this standard requires
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 requires that known inmate abusers receive a mental
health evaluation within 60 days of learning the abuse has occurred. If
specific mental health concerns have contributed to the abuse,
treatment may improve facility security.
Some commenters raised concerns about the cost of offering
treatment to abusers, as opposed to treating only victims. The
Department believes that the benefit of reducing future abuse by proven
abusers justifies the additional cost, both in terms of future
incidents avoided and an improved overall sense of safety within the
facility. However, the proposed standard is not intended to require a
specialized comprehensive sex offender treatment program, which as
several commenters noted could impose a significant financial burden,
and the Department believes that requiring agencies to offer reasonable
treatment is justifiable in light of the anticipated costs and
benefits.
Question 27: Does the standard that requires known inmate abusers
to receive a mental health evaluation within 60 days of learning the
abuse has occurred provide adequate guidance regarding the scope of
treatment that subsequently must be offered to such abusers? If not,
how should it be revised?
In addition, with respect to victims, this category of standards
includes two recommendations from the discussion section that
accompanied the Commission's MM-3 standard: where relevant, agencies
must provide timely information of and access to all pregnancy-related
medical services that are lawful in the community, and must provide
pregnancy tests. See Prison/Jail Standards at 52. The Department also
proposes to require the provision of timely information about and
access to sexually transmitted infections prophylaxis where
appropriate.
Data Collection and Review: Section 115.86, 115.186, 115.286,
115.386, 115.87, 115.187, 115.287, 115.387, 115.88, 115.188, 115.288,
115.388, 115.89, 115.189, 115.289, and 115.389 (compare to the
Commission's DC standards). Like the Commission, the Department has
proposed four standards addressing how facilities should collect and
review data to identify those policies and practices that are
contributing to or failing to prevent sexual abuse and sexual
harassment. Each of the proposed standards in the DC category is
substantially similar to that proposed by the Commission.
Sections 115.86, 115.186, 115.286, and 115.386 (compare to the
Commission's DC-1 standard) set forth
[[Page 6264]]
the requirements for sexual abuse incident reviews, including when
reviews should take place and who should take part. The sexual abuse
review is separate from the sexual abuse investigation, and is intended
to evaluate whether the facility's policies and procedures need to be
changed in light of the incident or allegation. By contrast, the
investigation is intended to determine whether the abuse actually
happened. A review should occur after every investigation, unless the
investigation deems the allegation unfounded, and should consider (1)
whether changes in policy or practice are needed to better prevent,
detect, or respond to sexual abuse incidents like the one that
occurred, (2) whether race, ethnicity, sexual orientation, gang
affiliation or group dynamics in the facility played a role in the
incident or allegation, (3) whether physical barriers in the facility
itself contributed to the incident or allegation, (4) whether staffing
levels need to be changed in light of the incident or allegation, and
(5) whether more video monitoring is needed.
The Commission's proposed standard did not include sexual
orientation in its list of issues to be considered what the review team
should consider. Some commenters expressed the view that determining
whether abuse is motivated by sexual orientation is just as important
to an incident review as determining whether it was motivated by race.
The proposed standard directs the review team to consider whether
sexual orientation motivated or caused the incident or allegation.
Some commenters raised concerns about the cost of conducting sexual
abuse incident reviews. There are, however, facilities that already do
these reviews, and the Department believes that the required steps need
not be onerous. The purpose of this requirement is not to require a
duplicative investigation but rather to require the facility to pause
and consider what lessons, if any, it can learn from the investigation
it has conducted.
Sections 115.87, 115.187, 115.287, and 115.387 (compare to the
Commission's DC-2 standard) specify the incident-based data each agency
is required to collect in order to detect possible patterns and help
prevent future incidents. Under this standard, the agency is required
to collect data needed to completely answer all questions included in
BJS's Survey on Sexual Violence. The Department has added a requirement
that an agency must provide the Department with this data upon request.
Sections 115.88, 115.188, 115.288, and 115.388 (compare to the
Commission's DC-3 standard) describe how the collected data should be
analyzed and reported. The proposed standard mandates that agencies use
the data to identify problem areas, take ongoing corrective action, and
prepare an annual report for each facility as well as the agency as a
whole, including a comparison with data from previous years. The report
must be made public through the agency's Web site or other means to
help promote agency accountability. The Department cautions, however,
that an increase in reported incidents may reflect improvements in a
facility's policies regarding reporting and investigation, rather than
an actual increase in sexual abuse at the facility.
Sections 115.89, 115.189, 115.289, and 115.389 (compare to the
Commission's DC-4 standard) provide guidance on how to store, publish,
and retain the data. Data must be stored in a way that protects its
integrity and must be retained for an adequate length of time, i.e., at
least 10 years. In addition, data must protect the confidentiality of
victims and alleged perpetrators. This standard also requires that the
agency make its aggregated data publicly available either through its
Web site or other means.
Audits: Sections 115.93, 115.193, 115.293, and 115.393 (compare to
the Commission's AU-1 standard). Like the Commission, the Department
believes that independent audits are critical to ensuring that
facilities are doing all they can to eliminate prison rape. The
Commission's proposed standard would require triennial audits of all
facilities by independent auditors ``prequalified'' by the Department.
The Commission explained its inclusion of this standard as follows:
Publicly available audits allow agencies, legislative bodies,
and the public to learn whether facilities are complying with the
PREA standards. Audits can also be a resource for the Attorney
General in determining whether States are meeting their statutory
responsibilities. Public audits help focus an agency's efforts and
can serve as the basis upon which an agency can formulate a plan to
correct any identified deficiencies.
Prison/Jail Standards at 57.
Numerous agency commenters criticized the Commission's proposals on
various grounds, including cost, duplication of audits performed by
accrediting organizations, duplication of existing State oversight, and
the possibility that disagreements in interpretation could lead to
inconsistencies in auditing. Other commenters endorsed the Commission's
proposal as necessary to ensure proper oversight; some commenters
suggested that audits should be more frequent than once every three
years.
The Department believes that independent audits can play a key role
in implementation of PREA, especially given the fact that only States,
but not localities or Federal entities, are subject to financial
penalties for noncompliance. Audits, however, can be time-consuming and
resource-intensive. Particularly as agencies come into compliance with
the substantive standards, routine audits may not contribute to
improving agency performance to a degree that warrants the time and
resources committed to them. The Department believes that further
discussion is necessary in order to determine how frequently, and on
what basis, such audits should be conducted. Accordingly, the proposed
standard does not specify the frequency of audits.
The Department has identified three possible approaches to the
frequency of audits, and specifically invites comment on these as well
as any other options commenters may wish to propose.
One possible approach is to adopt the Commission's proposal of
triennial audits for all covered facilities, possibly with a
modification lowering or eliminating the burden on lockups, the
smallest facilities covered by PREA. A second approach is to adopt a
system of random sampling of facilities. Because no facility would know
in advance whether it would be audited, all facilities would have an
incentive to be in compliance. A third approach is to implement an
auditing system based on information indicating concerns at a
particular facility. Audits could be triggered when information was
received providing reason to believe that a particular facility is
significantly out of compliance with the standards. Such a trigger
could be based upon facility-provided data, third-party complaints, or
any other source of credible information.
The proposed audit standard clarifies the requirements for an audit
to be considered independent. If the agency uses an outside auditor, it
must ensure that it does 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 specifies 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
[[Page 6265]]
proposed standard allows 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 Department believes that allowing
these entities to perform audits would ensure auditor independence
while at the same time allowing the use of existing resources where
available in order to reduce costs and duplication of effort.
The proposed standard further states 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. Although the Commission's proposal would
mandate that the agency provide access to facilities, documents, and
personnel ``as deemed appropriate by the auditor,'' the Department
believes that it would be prudent to set general ground rules in order
to ensure that auditors are provided sufficient access without agencies
incurring excessive or unpredictable expenditures or commitment of
personnel.
Question 28: Should audits be conducted at set intervals, or should
audits be conducted only for cause, based upon a reason to believe that
a particular facility or agency is materially out of compliance with
the standards? If the latter, how should such a for-cause determination
be structured?
Question 29: If audits are conducted for cause, what entity should
be authorized to determine that there is reason to believe an audit is
appropriate, and then to call for an audit to be conducted? What would
be the appropriate standard to trigger such an audit requirement?
Question 30: Should all facilities be audited or should random
sampling be allowed for some or all categories of facilities in order
to reduce burdens while ensuring that all facilities could be subject
to an audit?
Question 31: Is there a better approach to audits other than the
approaches discussed above?
Question 32: To what extent, if any, should agencies be able to
combine a PREA audit with an audit performed by an accrediting body or
with other types of audits?
Question 33: To what extent, if any, should the wording of any of
the substantive standards be revised in order to facilitate a
determination of whether a jurisdiction is in compliance with that
standard?
State Certification and Definition of ``Full Compliance.'' PREA
mandates that any amount that a State would otherwise receive for
prison purposes from the Department in a given fiscal year shall be
reduced by five percent unless the chief executive of the State
certifies either that the State is in ``full compliance'' with the
standards or assures that not less than five percent of such amount
shall be used ``only for the purpose of enabling the State to adopt,
and achieve full compliance with'' the standards ``so as to ensure that
a certification * * * may be submitted in future years.'' 42 U.S.C.
15607(c)(2). This requirement goes into effect for the second fiscal
year beginning after the date on which the national standards are
finalized. See 42 U.S.C. 15607(c)(7)(A).
The Department solicits comments on the proper construction of the
term ``full compliance,'' keeping in mind Congress's view that States
would be able to--and should be encouraged to--achieve full compliance.
One possibility is to define ``full compliance'' as adoption of and
compliance with each and every standard, but to provide that de minimis
failures to comply with a standard will not throw a State out of
compliance. In other words, a State would be required to adopt and
implement every applicable standard, but would not be held to a
requirement of perfection in order to be considered in full compliance.
The Department is interested both in suggestions for how to define full
compliance and how an assessment would be made as to whether a State is
in full compliance. In crafting such a definition, the Department aims
to ensure that full compliance is actually attainable for States and
that States receive sufficient and timely guidance on how the term is
to be interpreted.
Question 34: How should ``full compliance'' be defined in keeping
with the considerations set forth in the above discussion?
Question 35: To what extent, if any, should audits bear on
determining whether a State is in full compliance with PREA?
Other Executive Departments. With respect to Federal entities, the
proposed rule would not apply beyond certain Department of Justice
components. The Department has interpreted PREA to authorize and
require the Attorney General to make the national standards binding
only on the Bureau of Prisons, which houses criminal inmates. Non-PREA
authorities authorize the Attorney General to make the standards
binding on other Department facilities housing criminal inmates, such
as U.S. Marshals Service facilities, and to make those standards that
are relevant to the conduct of investigations binding on Department
components that are responsible for investigation allegations of sexual
abuse in confinement settings. See, e.g., 28 U.S.C. 503, 509, 561-566;
18 U.S.C. 4001(b). Thus, while the proposed standards may be considered
and adopted, as appropriate, by other Federal agencies housing
detainees and inmates, the proposed rule makes the standards binding
only on Department facilities.
Supplemental Immigration Standards. The Department does not propose
including the set of supplemental standards that the Commission
recommended to govern facilities that house immigration detainees. As
the Commission noted in its final report, immigration detainees are
sometimes detained in local or State facilities or in facilities
operated by the Federal Bureau of Prisons. The Commission's ID-6
standard would mandate that immigration detainees be housed separately.
Several commenters expressed concern that this would impose a
significant burden on jails and prisons. The Department has similar
concerns about the Commission's other proposed supplemental standards,
such as imposing separate training requirements, requiring agencies to
attempt to enter into separate memoranda of understanding with
immigration-specific community service providers, and requiring the
provision of access to telephones with free, preprogrammed numbers to
specified Department of Homeland Security offices. The Department
expects that its proposed general training requirements, along with the
general requirements to make efforts to work with outside government
entities and community service providers, will serve to protect
immigration detainees along with the general inmate population. In
addition, the Department has included in Sec. Sec. 115.41 and 115.241
a requirement that screenings for risk of victimization include a
consideration of whether the inmate is detained solely on civil
immigration charges. Furthermore, the Department notes that ICE has
published Performance Based National Detention Standards for the civil
detention of aliens pending removal from the United States by ICE
detention facilities, Contract Detention Facilities, and State or local
government facilities used by ICE through Intergovernmental Service
Agreements to hold detainees for more than 72 hours, and that one
standard specifically addresses Sexual Abuse and Assault Prevention and
Intervention. See http://www.ice.gov/detention-standards/2008/ and
http://
[[Page 6266]]
www.ice.gov/doclib/dro/detention-standards/pdf/sexual_abuse_and_
assault_prevention_and_intervention.pdf.
Additional Suggested Standard. Several commenters suggested that
the Department should propose an additional standard to govern the
placement and treatment of juveniles in adult facilities. A number of
advocacy groups proposed a full ban on placing persons under the age of
18 in adult facilities where contact would occur with incarcerated
adults. Others proposed instead that the standards incorporate the
requirements of the Juvenile Justice and Delinquency Prevention Act
(JJDPA), 42 U.S.C. 5601 et seq., which provides formula grants to
States on the condition that States comply with certain requirements
intended to, among other things, protect juveniles from harm by,
subject to certain exceptions, deinstitutionalizing status offenders,
separating juveniles from adults in secure facilities, and removing
juveniles from adult jails and lockups. See 42 U.S.C. 5633(a)(11)-(14).
States that participate in the JJDPA Formula Grants Program are subject
to a partial loss of funding if they are found not to be in compliance
with specified requirements. The JJDPA's implementing regulations limit
its application to youths who are tried in juvenile courts, but some
commenters suggested that the Department should propose a standard that
includes youth under adult criminal court jurisdiction.
The Department's proposed standards do not include a standard on
this topic. However, the Department solicits comments on whether the
final rule should include such a standard.
Question 36: Should the final rule include a standard that governs
the placement of juveniles in adult facilities?
Question 37: If so, what should the standard require, and how
should it interact with the current JJDPA requirements and penalties
mentioned above?
V. Regulatory Certifications
Executive Order 12866--Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation. The Department of Justice has determined that
this rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), Regulatory Planning and Review, and accordingly
this rule has been reviewed by the Office of Management and Budget.
Please see the Initial Regulatory Impact Analysis, summarized below,
for a discussion of the costs and benefits of this rule.
Executive Order 13132--Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. This rule merely proposes regulations to
implement PREA by establishing national standards for the detection,
prevention, reduction, and punishment of prison rape. Further, PREA
prohibits the Department from establishing national standards that
would impose substantial additional costs compared to the costs
presently expended by Federal, State and local prison authorities. 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. Therefore, in accordance with
Executive Order 13132, it is determined that this 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 rule, the Department's PREA Working Group consulted
with representatives of State and local prisons and jails, juvenile
facilities, community corrections programs and lockups--among other
individuals and groups--during the listening sessions the Working Group
conducted in January and February 2010. The Department also solicited
and received input from public entities in its ANPRM.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
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 PREA
regulations and, as is more fully described in the Initial Regulatory
Impact Analysis, believes these regulations will likely result in an
aggregate expenditure by State and local governments of approximately
$213 million in startup expenses and $544 million in annual ongoing
expenses.
However, the Department believes the requirements of the UMRA do
not apply to the PREA regulations 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 five 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 five 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.
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
January and February 2010. Further, the Department also solicited and
received input from public entities in its ANPRM.
For the foregoing reasons, 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
discussed at greater length elsewhere in this rulemaking which 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 et seq.
A qualitative and quantitative assessment of the
anticipated costs and benefits of these national standards appears
below in the Regulatory Flexibility Act section;
The Department does not believe that these national
standards will have an effect on the national economy, such as an
effect on productivity, economic growth, full employment, creation of
productive jobs, or international competitiveness of United States
goods and services;
The Department consulted with State and local governments
during the listening sessions the Working Group conducted in January
and February
[[Page 6267]]
2010. Further, the Department also solicited and received input from
public entities in its ANPRM. The Department received numerous comments
on its ANPRM from State and local entities, the vast majority of which
focused on the potential costs associated with certain of the
Commission's recommended standards. Standards of particular cost
concern included the cross-gender pat-down prohibition, the auditing
standard, and 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 proposed
standards include various revisions to the Commission's recommendations
in an attempt to address this issue.
Before it issues final regulations implementing national
standards pursuant to PREA the Department will: (1) Provide notice of
these requirements to potentially affected small governments, which it
has done by publishing the ANPRM, by the publishing of this Notice of
proposed rulemaking, by the listening sessions it has conducted, and by
other activities; (2) enable officials of affected small governments to
provide meaningful and timely input, via the methods listed above; and
(3) work to inform, educate, and advise small governments on compliance
with the requirements.
As discussed above in the Initial Regulatory Impact
Assessment summarized below, 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, or least burdensome alternative that achieves the objectives
of PREA.
Small Business Regulatory Enforcement Fairness Act of 1996
This 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.
This rule 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 companies to compete with foreign-based companies in
domestic and export markets.
Regulatory Flexibility Act
The Department of Justice drafted this proposed rule so as to
minimize its impact on small entities, in accordance with the
Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, while meeting its
intended objectives. Based on presently available information, the
Department is unable to state with certainty that the proposed rule, if
promulgated as a final rule, would not have any effect on small
entities of the type described in 5 U.S.C. 601(3). Accordingly, the
Department has prepared an Initial Regulatory Impact Analysis (IRIA) in
accordance with 5 U.S.C. 604. A summary of the IRIA appears below; the
complete IRIA is available for public review at http://
www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf. Following the
summary, the Department lists a set of questions upon which it
specifically solicits public comment. However, the Department welcomes
information and feedback concerning any and all of the assumptions,
estimates, and conclusions presented in the IRIA.
In PREA, Congress directed the Attorney General to promulgate
national standards for the detection, prevention, reduction, and
punishment of prison rape. In doing so, Congress understood that such
standards were likely to require Federal, State, and local agencies (as
well as private entities) that operate inmate confinement facilities to
incur costs in implementing the standards. Given the statute's
aspiration to eliminate prison rape in the United States, Congress
expected that some level of compliance costs would be appropriate and
necessary.
Nevertheless, Congress imposed a limit on the cost of the
standards. Specifically, Congress instructed the Attorney General not
to adopt 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). This statutory mandate
requires that the Department evaluate costs and benefits before
promulgating national standards.
Moreover, separate and apart from what PREA itself requires, the
Department is required by both the RFA and Executive Order 12866,
Regulatory Planning and Review, as amended without substantial change
by Executive Order 13258, to conduct an IRIA to assess the benefits and
costs of its proposed rule. An IRIA must include an assessment of both
the quantitative and qualitative benefits and costs of the proposed
regulation, as well as a discussion of potentially effective and
reasonably feasible alternatives, in order to inform stakeholders in
the regulatory process of the effects of the proposed rule.
Some stakeholders may question whether economic analysis is even
relevant to the implementation of a civil rights statute. Under this
view, because PREA aims to protect the Eighth Amendment rights of
incarcerated persons, regulations designed to implement its protections
are necessary regardless of whether benefits can be shown to outweigh
costs. Furthermore, some might argue, many expected benefits--including
protecting the constitutional and dignitary rights of inmates--may defy
ready identification and quantification, making a monetized benefit-
cost analysis an unfair comparison.
The Department is sympathetic to these views. The destructive,
reprehensible, and illegal nature of rape and sexual abuse in any
setting, and its especially pernicious effects in the correctional
environment, warrant the adoption of strong and clear measures.
However, as noted above, PREA mandates that the Attorney General remain
conscious of costs in promulgating national standards. Moreover, the
statutes that require agencies to express the benefits and costs of
regulations in economic terms do not distinguish between regulations
that implement civil rights statutes and regulations that implement
other laws.
The Department also believes that presenting a comprehensive
assessment of the benefits and costs of its proposed standards,
described in both quantitative and qualitative terms, will promote
greater understanding of PREA and may facilitate compliance with the
standards.
A summary of the major conclusions of the IRIA is set forth below.
However, the Department encourages review of the complete IRIA in order
to assess the Department's assumptions, calculations, and conclusions.
The IRIA begins by estimating the prevalence of sexual abuse in
prisons--i.e., the number of persons who experience it each year. Next,
the IRIA calculates the cost of specific types of victimization, and
therefore the benefit that will accrue from reducing such incidents.
The IRIA then calculates the anticipated costs of the Department's
proposed standards. Finally, the IRIA calculates how much of a
reduction in prison rape would be necessary in order for the benefits
of the proposed standards to outweigh the costs.
Prevalence. Table 1 sets forth the estimate of the baseline
prevalence of prison rape for benefit-cost analysis
[[Page 6268]]
purposes, divided into four different event types (rape involving
force, nonconsensual sexual acts involving pressure, abusive sexual
contacts, and willing sex with staff) in three different confinement
settings (adult prisons, adult jails, and juvenile facilities). (The
Department is not aware of reliable data as to the prevalence of rape
and sexual abuse in lockup and community confinement settings.) For
each event type, the total number of individuals who were victimized
during 2008 is estimated, using figures compiled from inmate surveys by
BJS,\6\ as adjusted to account for the flow of inmates over that period
of time. Inmates who experienced more than one type of victimization
during the period are included in the figures for the most serious type
of victimization they reported.
---------------------------------------------------------------------------
\6\ See BJS, Sexual Victimization in Prisons and Jails Reported
by Inmates, 2008-09 (NCJ 231169) (Aug. 2010); BJS, Sexual
Victimization in Juvenile Facilities Reported by Youth, 2008-09 (NCJ
228416) (Jan. 2010).
Table 1--Baseline Prevalence of Prison Rape and Sexual Abuse by Type of Incident and Type of Facility, 2008
----------------------------------------------------------------------------------------------------------------
Juvenile
Adult prisons Adult jails facilities
----------------------------------------------------------------------------------------------------------------
Rape involving force/threat of force...................... 26,200 39,200 4,400
Nonconsensual sexual acts involving pressure/coercion..... 18,400 14,800 2,900
Abusive sexual contacts................................... 19,000 23,000 3,000
Willing sex with staff.................................... 27,800 31,100 6,800
-----------------------------------------------------
Total................................................. 91,400 108,100 17,100
----------------------------------------------------------------------------------------------------------------
Benefits. Table 2 sets forth a range of costs associated with one
incident of each type of victimization in each of the three settings.
These costs are also known as ``unit avoidance benefits''--that is, the
benefits that will accrue from avoiding one incident that otherwise
would occur. These values have been derived from general literature
assessing the cost of rape,\7\ with adjustments made to account for the
unique characteristics of rape in the prison setting. The values are
presented as a range. The lower bound is calculated using the ``victim
compensation model,'' which aims to identify the costs of sexual abuse
to the victim, both tangible (such as medical and mental health care)
and intangible (such as pain and suffering). The upper bound is
calculated using the ``contingent valuation model,'' which assesses how
much the public would be willing to pay to avoid an incident of sexual
abuse.
---------------------------------------------------------------------------
\7\ See, e.g., National Institute of Justice Research Report,
Victim Costs and Consequences: A New Look (NCJ 155282) (Jan. 1996),
available at http://www.ncjrs.gov/pdffiles/victcost.pdf; Ted R.
Miller et al., Costs of Sexual Violence in Minnesota (Minn. Dep't
Health July 2007), available at http://www.pire.org/documents/mn_
brochure.pdf; Mark A. Cohen et al., Willingness-to-Pay for Crime
Control Programs, 42 Criminology 89 (2004).
Table 2--Range of Unit Avoidance Benefits by Type of Victim and Type of Facility, in 2010 Dollars
----------------------------------------------------------------------------------------------------------------
Adult prisons Adult jails Juvenile facilities
----------------------------------------------------------------------------------------------------------------
Rape involving force/threat of $200,000 to $300,000 $275,000 to $400,000.
force.
Sexual assault involving pressure/ $40,000 to $60,000 $55,000 to $80,000.
coercion.
Abusive sexual contacts.......... $375 $500.
Willing sex with staff........... $375 $55,000 to $80,000.
----------------------------------------------------------------------------------------------------------------
Table 3 sets forth the total monetary benefit of a 1% reduction
from the baseline in the average annual prevalence of prison rape,
which is calculated by multiplying the unit avoidance benefit by 1% of
the total number of incidents for each category.
Table 3--Total Monetary Benefit of a 1% Reduction From the Baseline in the Average Annual Prevalence of Prison
Rape and Sexual Abuse in Thousands of 2010 Dollars
----------------------------------------------------------------------------------------------------------------
Juvenile
Adult prisons Adult jails facilities Total
----------------------------------------------------------------------------------------------------------------
Rape involving injury/force/ $52,400 to $78,600 $78,400 to $9,636 to $17,600. $140,436 to
threat of force. $117,600. $213,800.
Nonconsensual sexual acts $7,360 to $11,040. $5,920 to $8,880.. $1,276 to $2,320.. $14,556 to
involving pressure/coercion. $22,240.
Abusive sexual contacts......... $71............... $86............... $12............... $169.
Willing sex with staff.......... $104.............. $117.............. $1,496 to $2,720.. $1,555 to $2,779.
-------------------------------------------------------------------------------
Total (Rounded)............. $60,000-$90,000... $84,500 to $12,500 to $22,500 $157,000 to
$126,500. $239,000.
----------------------------------------------------------------------------------------------------------------
As noted in the bottom right cell in Table 3, the total monetary
benefit of a 1% reduction in the prevalence of prison rape and sexual
abuse is between $157 and $239 million.
However, these calculations do not include the substantial
nonmonetary benefits associated with reducing the prevalence of prison
rape and sexual abuse. As Executive Order 12866 instructs, a proper
understanding of costs and benefits must ``include both quantifiable
measures (to the fullest extent that these can be usefully estimated)
and qualitative measures of
[[Page 6269]]
costs and benefits that are difficult to quantify, but nevertheless
essential to consider.'' Sec. 1(a), E.O. 12866.
Non-quantifiable benefits from reducing sexual abuse accrue to the
victims themselves, to inmates who are not victims, to prison
administrators and staff, to families of victims, and to society at
large. For example, the PREA standards will yield non-quantifiable
benefits to victims even with regard to abuse that the standards do not
prevent. Implementation of the standards will enhance the mental well-
being of victims by ensuring that they receive adequate treatment after
an incident, which in turn will enhance their ability to integrate into
the community and maintain stable employment upon their release from
prison. Moreover, the standards will reduce the risk of re-
traumatization associated with evidence collection, investigation, and
any subsequent legal proceedings that take place in connection with
sexual abuse and its prosecution. Victims will also benefit from the
increased likelihood that their perpetrators will be held accountable
for their crimes. A broader range of non-quantifiable benefits for
inmates, staff, and others is discussed in the complete IRIA.\8\
---------------------------------------------------------------------------
\8\ As noted above, the Department is not aware of reliable data
regarding the prevalence of sexual abuse in lockups and community
confinement facilities. The IRIA accordingly classifies these as
non-quantifiable benefits. See IRIA at 14-15, 27.
---------------------------------------------------------------------------
Costs. The IRIA contains a preliminary assessment of the
anticipated compliance costs associated with the Department's proposed
standards. The primary source for this assessment is study conducted by
Booz Allen Hamilton, a consulting firm with which the Department
contracted to develop a preliminary cost analysis of the Commission's
recommended standards. The IRIA adjusts this cost analysis to estimate
the compliance costs of the Department's proposed standards, rather
than the Commission's recommendations. Other sources include
assessments by the Federal Bureau of Prisons (BOP) and the United
States Marshals Service (USMS) of their expected implementation costs
as well as comments submitted in response to the ANPRM.
The IRIA estimates the cost of implementing each of the proposed
standards, assuming that the first full year for which the standards
will be applicable is 2012, with all startup expenses assigned to that
year. Subsequent compliance costs are assigned in present value terms
(using both a 3% and a 7% discount rate), for 2013 through 2026. Where
possible, costs are differentiated based on facility type: prisons,
jails, juvenile facilities, community confinement facilities, and
lockups. The IRIA assumes that the Department's standards will apply
to, and will be adopted and implemented by: 1,668 prisons; 3,365 jails;
2,810 juvenile facilities; lockups operated by at least 4,469 different
agencies; and approximately 530 community confinement facilities. See
BJS, 2005 Census of State and Federal Correctional Facilities; 2006
Census of Jail Facilities; and 2008 Juvenile Residential Facility
Census (unpublished; on file with BJS).
Table 4 sets forth in summary fashion the anticipated costs of
compliance on a startup, ongoing, and total (15-year) basis. No
adjustment is made in the out-years for inflation or for anticipated
cost savings due to innovation--that is, costs are assumed to be
constant in nominal terms over the course of the 15-year period.
Table 4--Total Expected Compliance Costs, 2012-2026 by Facility Type, in Thousands of Dollars
----------------------------------------------------------------------------------------------------------------
Total 2012-2026 Total 2012-2026
Startup Ongoing 3% discount rate 7% discount rate
(present value) (present value)
----------------------------------------------------------------------------------------------------------------
Prisons................................. $26,304 $56,407 $411,494 $249,035
Jails................................... 117,742 356,618 2,745,729 1,762,524
Juvenile Facilities..................... 24,087 78,497 602,546 386,128
Community Confinement................... 300 2,358 17,680 11,177
Lockups................................. 44,913 50,583 417,672 278,212
-----------------------------------------------------------------------
Total............................... 213,346 544,463 4,195,121 2,687,076
----------------------------------------------------------------------------------------------------------------
Thus, the Department currently projects that compliance costs for
the proposed standards will be approximately $213 million in the first
(startup) year, followed by an average cost of approximately $544
million per year subsequently. Table 5 compares the projected
nationwide upfront and ongoing costs of the Commission's
recommendations to the Department's proposed standards. The
Commission's recommended standards would cost an estimated $6.5 billion
in upfront costs plus $5.3 billion in annual costs. As noted in Table
5, the Department's proposed standards, depending upon the type of
facility, would require an estimated 31% to 99% less in upfront costs
than the Commission's recommended standards and 44% to 99% less in
ongoing costs.
Table 5--Comparison of Projected Nationwide Upfront and Ongoing Costs Commission Recommendations Versus Department Proposed Standards in Thousands of
Dollars
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upfront costs Ongoing costs
-----------------------------------------------------------------------------------------------
Difference Difference
Commission DOJ (percent) Commission DOJ (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prisons................................................. $2,778,770 $26,304 99.05 $733,166 $56,407 92.31
Jails................................................... 3,151,806 117,742 96.26 1,955,154 356,618 81.76
Juvenile................................................ 475,562 24,087 94.94 139,417 78,497 43.70
Comm. Conf.............................................. 20,944 300 98.57 233,735 2,358 98.99
Lockups................................................. 65,093 44,913 31.00 2,240,096 50,583 97.74
-----------------------------------------------------------------------------------------------
[[Page 6270]]
Total............................................... 6,492,175 213,346 96.71 5,301,568 544,463 89.73
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 6 depicts the expected upfront and ongoing compliance costs
associated with the Department's proposed standards on a per-facility
and per-inmate basis for the different facility types.
Table 6--Expected Upfront and Ongoing Compliance Costs, Nationwide, per
Facility and per Inmate
------------------------------------------------------------------------
Upfront Ongoing
------------------------------------------------------------------------
Prisons, per Facility............................... $15,770 $33,817
Prisons, Per Inmate................................. 16.48 35.35
Jails, Per Facility................................. 34,990 105,978
Jails, Per Inmate................................... 96.00 292.00
Juvenile, per Facility.............................. 8,572 27,935
Juvenile, per Resident.............................. 227.00 741.00
Comm. Conf., per Person............................. 5.36 42.12
Lockups, per Facility............................... 9,843 11,086
------------------------------------------------------------------------
Next, to evaluate whether the costs of the proposed PREA standards
are justified in light of their anticipated benefits, the IRIA conducts
a break-even analysis to determine how much the standards would need to
reduce prison rape in order for benefits to exceed costs, and to assess
whether it is reasonable to assume that the standards will in fact be
as effective as needed for this to occur.
As elaborated in Tables 7 and 8, given that the proposed PREA
standards are expected to cost the correctional community approximately
$213 million in startup costs, and that the monetary benefit of a 1%
reduction in the baseline prevalence of prison rape is worth between
$157 million and $239 million, the startup costs would be offset in the
very first year of implementation, even without regard to the value of
the nonmonetary benefits, if the standards achieved reductions of
between 0.9 and 1.4 percent. The breakeven point would be even lower if
the analysis amortized startup costs over the entire 15 years.
Moreover, because the annual ongoing costs of full compliance are
estimated to be no more than $544 million beginning in 2013, the
proposed standards would have to yield approximately a 2.3-3.5%
reduction from the baseline in the average annual prevalence of prison
rape for the ongoing costs and the monetized benefits to breakeven,
without regard to the value of the nonmonetary benefits.\9\
---------------------------------------------------------------------------
\9\ These figures differ slightly from those depicted in Tables
7 and 8, which include only the $491.5 million in annual ongoing
costs attributable to prisons, jails, and juvenile facilities, as
opposed to the $544 million in total annual ongoing costs
attributable to all five categories (i.e., adding lockups and
community confinement facilities). As noted in the preceding
footnote, the IRIA does not quantify the benefits that will result
from reducing sexual abuse in lockups and community confinement
facilities. For this reason, these figures are somewhat conservative
because they incorporate the costs, but not the benefits, of
reducing sexual abuse in lockups and community confinement
facilities.
Table 7--Breakeven Analysis Using Lower-Bound Assumptions of Benefit Value by Facility Type, in Thousands of
Dollars
----------------------------------------------------------------------------------------------------------------
Value of 1% Breakeven Breakeven
reduction Upfront costs percentage Ongoing costs percentage
----------------------------------------------------------------------------------------------------------------
Prisons......................... $60,000 $26,304 0.44 $56,407 0.94
Jails........................... 84,500 117,742 1.39 356,618 4.22
Juvenile........................ 12,500 24,087 1.93 78,497 6.28
-------------------------------------------------------------------------------
Total....................... 157,000 168,133 1.07 491,522 3.13
----------------------------------------------------------------------------------------------------------------
Table 8--Breakeven Analysis Using Upper-Bound Assumptions of Benefit Value by Facility Type in Thousands of
Dollars
----------------------------------------------------------------------------------------------------------------
Value of 1% Breakeven Breakeven
reduction Upfront costs percentage Ongoing costs percentage
----------------------------------------------------------------------------------------------------------------
Prisons......................... $90,000 $26,304 0.29 $56,407 0.63
Jails........................... 126,500 117,742 0.93 356,618 2.82
Juvenile........................ 22,500 24,087 1.07 78,497 3.49
-------------------------------------------------------------------------------
Total....................... 239,000 168,133 0.70 491,522 2.06
----------------------------------------------------------------------------------------------------------------
As these tables make clear, even without reference to the
nonmonetary benefits of avoiding prison rape and sexual abuse (which
are numerous, and of considerable importance) the Department's proposed
standards need only be modestly effective in order for the monetized
benefits to offset the anticipated compliance costs, both as a whole
and with respect to each facility type to which they apply. With
respect to prisons, a mere 0.63%-0.94% decrease from the baseline in
the average annual prevalence of prison rape and sexual abuse would
result in
[[Page 6271]]
the monetized benefits of the standards breaking even with their
ongoing costs. Such a decrease from the baseline would mean an average
of 165-246 fewer forcible rapes per year, 116-173 fewer nonconsensual
sexual acts involving pressure or coercion, 120-179 fewer abusive
sexual contacts, and 175-261 fewer incidents of willing sex with staff.
Even in the jail context, a 0.93% to 1.39% decrease from the baseline
in the prevalence of rape would justify the startup costs, while a
2.82%-4.22% decrease would justify the ongoing costs. For jails, a
4.22% decrease from the baseline in the average annual prevalence would
translate to 1654 fewer forcible rapes per year, 625 fewer
nonconsensual sexual acts involving pressure or coercion, 971 fewer
abusive sexual contacts, and 1312 fewer incidents of willing sex with
staff.
The Department believes that it is eminently reasonable to expect
that implementation of these standards will yield these decreases.
However, the Department cautions that the benefit-cost conclusions
in the IRIA are meant to be preliminary and are based upon current
estimates. During the comment period, and in advance of preparing the
final rules for publication, these estimates will be subject to
additional analysis. Moreover, the Department actively seeks the
participation of stakeholders in assessing the regulatory impact of its
proposed standards and invites public comment on all aspects of the
IRIA, both as to the societal benefits of adopting the standards and as
to the costs of compliance. Below is a list of specific questions upon
which the Department seeks comment, which is not meant to limit any
other comments that any interested person may wish to submit. Please
note that, although this summary is meant to provide an overview of the
IRIA, the questions below presume that the commenter has reviewed the
complete IRIA. As noted above, the complete IRIA is available at http:/
/www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
Questions for Public Comment on Regulatory Impact Assessment
Question 38: Has the Department appropriately determined the
baseline level of sexual abuse in correctional settings for purposes of
assessing the benefit and cost of the proposed PREA standards?
Question 39: Are there any reliable, empirical sources of data,
other than the BJS studies referenced in the IRIA, that would be
appropriate to use in determining the baseline level of prison sexual
abuse? If so, please cite such sources and explain whether and why they
should be used to supplement or replace the BJS data.
Question 40: Are there reliable methods for measuring the extent of
underreporting and overreporting in connection with BJS's inmate
surveys?
Question 41: Are there sources of data that would allow the
Department to assess the prevalence of sexual abuse in lockups and
community confinement facilities? If so, please supply such data. In
the absence of such data, are there available methodologies for
including sexual abuse in such settings in the overall estimate of
baseline prevalence?
Question 42: Has the Department appropriately adjusted the
conclusions of studies on the value of rape and sexual abuse generally
to account for the differing circumstances posed by sexual abuse in
confinement settings?
Question 43: Are there any academic studies, data compilations, or
established methodologies that can be used to extrapolate from mental
health costs associated with sexual abuse in community settings to such
costs in confinement settings? Has the Department appropriately
estimated that the cost of mental health treatment associated with
sexual abuse in confinement settings is twice as large as the
corresponding costs in community settings?
Question 44: Has the Department correctly identified the
quantifiable costs of rape and sexual abuse? Are there other costs of
rape and sexual abuse that are capable of quantification, but are not
included in the Department's analysis?
Question 45: Should the Department adjust the ``willingness to
pay'' figures on which it relies (developed by Professor Mark Cohen for
purposes of valuing the benefit to society of an avoided rape \10\) to
account for the possibility that some people may believe sexual abuse
in confinement facilities is a less pressing problem than it is in
society as a whole, and might therefore think that the value of
avoiding such an incident in the confinement setting is less than the
value of avoiding a similar incident in the non-confinement setting?
Likewise, should the Department adjust these figures to take into
account the fact that in the general population the vast majority of
sexual abuse victims are female, whereas in the confinement setting the
victims are overwhelmingly male? Are such differences even relevant for
purposes of using the contingent valuation method to monetize the cost
of an incident of sexual abuse? If either adjustment were appropriate,
how (or on the basis of what empirical data) would the Department go
about determining the amount of the adjustment?
---------------------------------------------------------------------------
\10\ See Cohen et al., supra note 7, at 89, 91. Professor
Cohen's study was supported by a grant from the National Institute
of Justice, a unit of the Department of Justice.
---------------------------------------------------------------------------
Question 46: Has the Department appropriately accounted for the
increased costs to the victim and to society when the victim is a
juvenile? Why or why not?
Question 47: Are there available methodologies, or available data
from which a methodology can be developed, to assess the unit value of
avoiding a nonconsensual sexual act involving pressure or coercion? If
so, please supply them. Is the Department's estimate of this unit value
(i.e., 20% of the value of a forcible rape) appropriately conservative?
Question 48: Are there available methodologies, or available data
from which a methodology can be developed, to assess the unit value of
avoiding an ``abusive sexual contact between inmates,'' as defined in
the IRIA? If so, please supply them. Is the Department's estimate of
this unit value (i.e., $375 for adult inmates and $500 for juveniles)
appropriately conservative? Would a higher figure be more appropriate?
Why or why not?
Question 49: Are there any additional nonmonetary benefits of
implementing the PREA standards not mentioned in the IRIA?
Question 50: Are any of the nonmonetary benefits set forth in the
IRIA actually capable of quantification? If so, are there available
methodologies for quantifying such benefits or sources of data from
which such quantification can be drawn?
Question 51: Are there available sources of data relating to the
compliance costs associated with the proposed standards, other than the
sources cited and relied upon in the IRIA? If so, please provide them.
Question 52: Are there available data as to the number of lockups
that will be affected by the proposed standards, the number of
individuals who are detained in lockups on an annual basis, and/or the
anticipated compliance costs for lockups? If so, please provide them.
Question 53: Are there available data as to the number of community
confinement facilities that will be affected by the proposed standards,
the number of individuals who reside or are detained in such facilities
on an annual basis, or the anticipated compliance costs for community
confinement facilities? If so, please provide them.
Question 54: Has the Department appropriately differentiated the
[[Page 6272]]
estimated compliance costs with regard to the different types of
confinement facilities (prisons, jails, juvenile facilities, community
confinement facilities, and lockups)? If not, why and to what extent
should compliance costs be expected to be higher or lower for one type
or another?
Question 55: Are there additional methodologies for conducting an
assessment of the costs of compliance with the proposed standards? If
so, please propose them.
Question 56: With respect to Sec. Sec. 115.12, 115.112, 115.212,
and 115.312, are there other methods of estimating the extent to which
contract renewals and renegotiations over the 15-year period will lead
to costs for agencies that adopt the proposed standards?
Question 57: Do agencies expect to incur costs associated with
proposed Sec. Sec. 115.13, 115.113, 115.213, and 115.313,
notwithstanding the fact that it does not mandate any particular level
of staffing or the use of video monitoring? Why or why not? If so, what
are the potential cost implications of this standard under various
alternative scenarios concerning staffing mandates or video monitoring
mandates? What decisions do agencies anticipate making in light of the
assessments called for by this standard, and what will it cost to
implement those decisions?
Question 58: With respect to Sec. Sec. 115.14, 115.114, 115.214,
and 115.314, will the limitations on cross-gender viewing (and any
associated retrofitting and construction of privacy panels) impose any
costs on agencies? If so, please provide any data from which a cost
estimate can be developed for such measures.
Question 59: Will the requirement in Sec. Sec. 115.31, 115.231,
and 115.331 that agencies train staff on how to communicate effectively
and professionally with lesbian, gay, bisexual, transgender, or
intersex residents lead to additional costs for correctional
facilities, over and above the costs of other training requirements in
the standards? If so, please provide any data from which a cost
estimate can be developed for such training.
Question 60: Has the Department accounted for all of the costs
associated with Sec. Sec. 115.52, 115.252, and 115.352, dealing with
exhaustion of administrative remedies? If not, what additional costs
might be incurred, and what data exist from which an estimate of those
costs can be developed?
Question 61: Is there any basis at this juncture to estimate the
compliance costs associated with Sec. Sec. 115.93, 115.193, 115.293,
and 115.393, pertaining to audits? How much do agencies anticipate
compliance with this standard is likely to cost on a per-facility
basis, under various assumptions as to the type and frequency or
breadth of audits?
Question 62: Has the Department used the correct assumptions (in
particular the assumption of constant cost) in projecting ongoing costs
in the out years? Should it adjust its projections for the possibility
that the cost of compliance may decrease over time as correctional
agencies adopt new innovations that will make their compliance more
efficient? If such an adjustment is appropriate, please propose a
methodology for doing so and a source of data from which valid
predictions as to ``learning'' can be derived.
Question 63: Are there any data showing how the marginal cost of
rape reduction is likely to change once various benchmarks of reduction
have been achieved? If not, is it appropriate for the Department to
assume, for purposes of its breakeven analysis, that the costs and
benefits of reducing prison rape are linear, at least within the range
relevant to the analysis? Why or why not?
Question 64: Are the expectations as to the effectiveness of the
proposed standards that are subsumed within the breakeven analysis
(e.g., 0.7%-1.7% reduction in baseline prevalence needed to justify
startup costs and 2.06%-3.13% reduction required for ongoing costs)
reasonable? Why or why not? Are there available data from which
reasonable predictions can be made as to the extent to which these
proposed standards will be effective in reducing the prevalence of rape
and sexual abuse in prisons? If so, please supply them.
Substantial Additional Cost Assessment
As noted above, PREA mandates that the Attorney General may not
adopt 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). However, PREA does not
further define this phrase, and various ANPRM commenters submitted
differing views as to how it should be read.\11\
---------------------------------------------------------------------------
\11\ The legislative history of PREA appears to contain only two
mentions of the ``substantial additional costs'' provision. The cost
estimate that was prepared by the Congressional Budget Office for
the House version of PREA, H.R.1707, states the following:
``This bill would direct the Attorney General to adopt national
standards for the prevention of prison rape. Though the language
specifies that those standards may not place substantial additional
costs on Federal, State, or local prison authorities, CBO has no
basis for estimating what those standards might be or what costs
State and local governments would face in complying with them.''
H.R. Rep. No. 108-219, at 16 (2003). The House Judiciary
Committee Report explains what would eventually become 42 U.S.C.
15607(a)(3) as follows:
``The Attorney General is required to establish a rule adopting
national standards based on recommendations of the Commission, but
shall not establish national standards that would impose substantial
increases in costs for Federal, State, or local authorities. The
Attorney General shall transmit the final rule to the governor of
each State.''
Id. at 20.
---------------------------------------------------------------------------
A number of agency commenters in response to the ANPRM suggested
that ``substantial additional costs'' should be considered in a
vacuum--that is, in the absolute rather than in comparison to some
other figure. However, such a reading is inconsistent with the plain
language of the statute, which requires that compliance costs be
compared against current nationwide correctional expenditures.
The Commission itself, on the other hand, proposed a very different
reading in its ANPRM comment. Enclosing a letter from former Senate
Judiciary Committee staffer Robert Toone, Letter for Hon. Reggie B.
Walton, United States District Court for the District of Columbia, et
al. from Robert Toone, Senate Judiciary Committee (Apr. 15, 2010)
(``Toone Letter''), the Commission would interpret the phrase
``substantial additional costs'' in accordance with two principles.
First, the Commission proposes that the Department should discount from
its calculations any costs necessary to bring a particular facility
into compliance with its Eighth Amendment obligations and should only
subsume within ``substantial additional costs'' those expenses that the
standards impose over and above this level. According to this argument,
because Congress intended that PREA promote, not weaken, enforcement of
inmates' constitutional rights to safe conditions of confinement, ``any
application of Section 8(a)(3) should consider only those additional
costs that a proposed national standard would impose on
constitutionally compliant prisons and jails.'' Toone Letter at 2.
Second, the Commission argues that ``substantial additional cost''
should be assessed on a per-standard rather than an aggregate basis. In
other words, ``[o]nly a national standard that would, on its own,
impose `substantial additional costs' in relation to total current
correctional expenditures is prohibited under PREA.'' Id. at 3.
In drafting its proposed rule, the Department has chosen not to
adopt these interpretations. The first argument
[[Page 6273]]
is in tension with the plain language of the statute and is in any
event impractical to apply. The PREA standards will apply to almost
13,000 facilities across the country, operated by thousands of
jurisdictions and entities. It is not possible to determine which
facilities are ``constitutionally compliant'' and which are not, in
part because constitutional non-compliance often becomes apparent only
after the fact--that is, after a violation. Nor is it possible to
calculate what subset of the total cost of compliance with the
standards is directed towards bringing facilities into compliance with
the Constitution and what subset constitutes expenditures over and
above the constitutional minimum.
Nor does the Department believe that the impact of the standards
should be assessed individually. Admittedly, the statute uses the
singular in providing that ``[t]he Attorney General shall not establish
a national standard under this section that would impose substantial
additional costs . * * *'' 42 U.S.C. 15607(a)(3) (emphasis added).
However, such a reading would yield absurd results. On the Commission's
proposed reading, the Attorney General is barred from imposing one
extremely expensive standard yet is allowed to promulgate myriad
smaller standards that, when added together, would be just as
expensive. There is no reason to assume that Congress intended such a
result. A more logical assumption is that Congress was concerned with
the costs of the standards as a whole.\12\
---------------------------------------------------------------------------
\12\ Indeed, the discussion of ``substantial additional costs''
in PREA's legislative history refers in the plural to ``national
standards.'' See supra n.11. The Toone Letter states that notes that
``before introducing the bill, the sponsors of PREA changed the
language of Section 8(a)(3) from `significant additional costs' (as
originally drafted) to `substantial additional costs.' '' However,
the fact that the sponsors of a piece of legislation revised its
language prior to introducing the bill does not bear on how the
remaining members of Congress construed the legislation when they
voted to enact it. Moreover, it is far from evident that this
wording change would impact the interpretation of the statute.
---------------------------------------------------------------------------
The Department thus interprets ``substantial additional costs
compared to the costs presently expended by Federal, State, and local
prison authorities'' as costs that impose considerable, large, and
unreasonable burdens on those authorities in a given year, in
comparison to the total amount spent that year by correctional
authorities nationwide. The first half of the comparator--the total
costs imposed on Federal, State, and local prison authorities
collectively, as the result of complying with the PREA standards taken
as a whole--is calculated in the IRIA and depicted in Table 4. The
second half of the comparator--the total annual expenditures of
Federal, State, and local prison authorities on corrections--amounted
to $74.2 billion in 2007, the most recent year for which figures are
available. See BJS, Justice Expenditure and Employment Extracts 2007,
``Table 1: percent distribution of expenditure for the justice system
by type of government, fiscal year 2007'' (Sep. 20, 2010), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2315; Direct
Expenditures by Criminal Justice Function, 1982-2006, in Justice
Expenditure and Employment Extracts, available at http://
bjs.ojp.usdoj.gov/content/glance/tables/exptyptab.cfm.
Tables 9A and 9B compare the cost of compliance with the standards
from 2012 through 2026 to projected total national expenditures on
corrections over the same period of time. During the 15 years from 1993
to 2007, correctional expenditures grew at an annual rate of 5.43%. Id.
Tables 9A and 9B assume growth at that same rate from 2008-2026,
applying alternative discount rates of 3% (in Table 9A) and 7% (in
Table 9B) so as to render, in the second column, the ensuing inflation-
adjusted expenditure estimates in present value dollars. The third
column shows the total expected compliance costs for each year, as
adjusted for inflation and discounted to present value, and the fourth
column presents expected compliance costs as a percentage of national
correctional expenditures. (The figures for expected nationwide
compliance costs depicted in Tables 9A and 9B differ from those in
Tables 4 and 5 because the former are adjusted for inflation whereas
the latter are not.)
Using a 3% discount rate (Table 9A), the ratio of total costs
associated with the proposed standards to total national correctional
expenditures never exceeds 0.63% in any given year and is as low as
0.16% in some years. Using a 7% discount rate (Table 9B), the range
extends from 0.03% to 0.72%. Given the smallness of these percentages,
we do not believe that the standards can be said to impose
considerable, large, or unreasonable cost burdens on correctional
authorities in any given year. Therefore, the standards do not impose
``substantial additional costs compared to the costs * * * expended by
Federal, State, and local prison authorities.'' 42 U.S.C. 15607(a)(3).
Table 9A--Total Annual Compliance Costs, 2012-2026 Projections, as a Percentage of Total Annual Nationwide
Expenditures on Corrections Adjusted for Inflation at 5.4% Annually and Discounted to Present Value at 3% in
Thousands of Dollars
----------------------------------------------------------------------------------------------------------------
Total corr. Compliance
Year exp. costs %
----------------------------------------------------------------------------------------------------------------
2012............................................................ $91,104,068 $213,346 0.2342
2013............................................................ 93,253,416 574,013 0.6155
2014............................................................ 95,453,473 599,847 0.6284
2015............................................................ 97,705,433 561,881 0.5751
2016............................................................ 100,010,523 510,989 0.5109
2017............................................................ 102,369,994 464,707 0.4539
2018............................................................ 104,785,131 422,616 0.4033
2019............................................................ 107,257,246 384,338 0.3583
2020............................................................ 109,787,684 349,527 0.3184
2021............................................................ 112,377,821 317,869 0.2829
2022............................................................ 115,029,064 289,078 0.2513
2023............................................................ 117,742,857 262,895 0.2233
2024............................................................ 120,520,674 239,083 0.1984
2025............................................................ 123,364,026 217,429 0.1762
2026............................................................ 126,274,459 197,735 0.1566
-----------------------------------------------
[[Page 6274]]
Total....................................................... 1,617,035,869 5,605,353 0.3466
===============================================
Average..................................................... 107,802,391 373,690 0.3466
----------------------------------------------------------------------------------------------------------------
Table 9B--Total Annual Compliance Costs, 2012-2026 Projections, as a Percentage of Total Annual Nationwide
Expenditures on Corrections Adjusted for Inflation at 5.4% Annually and Discounted to Present Value at 7% in
Thousands of Dollars
----------------------------------------------------------------------------------------------------------------
Total corr. Compliance
Year exp. costs %
----------------------------------------------------------------------------------------------------------------
2012............................................................ $84,419,867 $213,346 0.2527
2013............................................................ 83,181,183 574,013 0.6901
2014............................................................ 81,960,674 593,650 0.7243
2015............................................................ 80,758,073 477,473 0.5912
2016............................................................ 79,573,119 358,908 0.4510
2017............................................................ 78,405,550 269,785 0.3441
2018............................................................ 77,255,114 202,792 0.2625
2019............................................................ 76,121,557 152,435 0.2003
2020............................................................ 75,004,634 114,583 0.1528
2021............................................................ 73,904,098 86,130 0.1165
2022............................................................ 72,819,711 64,742 0.0889
2023............................................................ 71,751,235 48,666 0.0678
2024............................................................ 70,698,437 36,581 0.0517
2025............................................................ 69,661,086 27,497 0.0395
2026............................................................ 68,638,956 20,669 0.0301
-----------------------------------------------
Total....................................................... 1,144,153,294 3,241,270 0.2833
===============================================
Average..................................................... 76,276,886 216,085 0.2833
----------------------------------------------------------------------------------------------------------------
Paperwork Reduction Act
The Prison Rape Elimination Act of 2003 requires the Department of
Justice to adopt national standards for the detection, prevention,
reduction, and punishment of prison rape. These national standards will
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.
The Department of Justice will be submitting the following
information collection request to the Office of Management and Budget
for review and clearance in accordance with the review procedures of
the Paperwork Reduction Act of 1995. The information collection is
published to obtain comments from the public and affected agencies.
All comments and suggestions, or questions regarding additional
information, should be directed to Robert Hinchman, Senior Counsel,
Office of Legal Policy, Department of Justice, 950 Pennsylvania Avenue,
NW., Room 4252, Washington, DC 20530.
Written comments and suggestions from the public and affected
agencies concerning the collection of information are encouraged. Your
comments on the information collection-related aspects of this rule
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
In particular, the Department requests comments on the
recordkeeping cost burden imposed by this rule and will use the
information gained through such comments to assist in calculating the
cost burden.
Overview of This Information Collection
(1) Type of Information Collection: New collection.
(2) Title of the Form/Collection: Prison Rape Elimination Act
Regulations.
(3) Agency form number, if any, and the applicable component of the
Department of Justice sponsoring the collection: No form. Component:
1105.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: State governments, local governments.
Other: None.
Abstract: The Department of Justice is publishing a notice of
proposed rulemaking to adopt national standards for the detection,
prevention, reduction, and punishment of sexual abuse in confinement
settings pursuant to the Prison Rape Elimination Act of 2003 (PREA), 42
U.S.C. 15601 et seq. These national standards will require covered
facilities to retain certain specified
[[Page 6275]]
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. Covered facilities
include: State and local jails, prisons, lockups, community confinement
facilities, and juvenile facilities.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to keep the required
records is: 11,826 respondents; 158,455 hours.
The average annual burden hour per respondent is 13.4 hours, most
of which is the additional time keeping required records, if such
records are not already being maintained by the facility for its own
administrative purposes.
(6) An estimate of the total public burden (in hours) associated
with the collection: 158,455 hours.
At present, covered facilities are required to retain certain
sexual abuse incident data. This data is already covered by an
information collection maintained by the Department of Justice, Office
of Justice Programs, Bureau of Justice Statistics, as part of its
Survey of Sexual Violence; OMB Control No. 1121-0292. The Survey of
Sexual Violence is the only national data collection for facility-
reported information on sexual abuse within correctional facilities,
characteristics of the victims and perpetrators, circumstances
surrounding the incidents, and how incidents are reported, tracked, and
adjudicated. Please see the following sections:
----------------------------------------------------------------------------------------------------------------
Subpart C-- Subpart D--
Subpart A--Prisons and jails Subpart B-- Community Juvenile
Lockups corrections facilities
----------------------------------------------------------------------------------------------------------------
115.87.......................................................... 115.187 115.287 115.387
115.88.......................................................... 115.188 115.288 115.388
115.89.......................................................... 115.189 115.289 115.389
----------------------------------------------------------------------------------------------------------------
In particular, please see the references in 115.87(c), 115.187(c),
115.287(c), and 115.387(c) to the existing SSV collection.
The balance of the recordkeeping requirements set forth by this
rule are new requirements which will require a new OMB Control Number.
The Department is seeking comment on these new requirements as part of
this NPRM. These new requirements will require covered facilities to
retain certain specified information relating to sexual abuse
prevention planning, responsive planning, education and training,
investigations and to collect and retain certain specified information
relating to allegations of sexual abuse within the facility. Please see
the following sections of the proposed rule:
----------------------------------------------------------------------------------------------------------------
Subpart C-- Subpart D--
Subpart A--Prisons and jails Subpart B-- Community Juvenile
Lockups corrections facilities
----------------------------------------------------------------------------------------------------------------
115.14(b)....................................................... 115.114(b) 115.214(b) 115.314(b)
115.22(c)....................................................... .............. 115.222(c) 115.322(c)
115.31(d)....................................................... 115.131(c) 115.231(d) 115.331(d)
115.32(c)....................................................... .............. 115.232(c) 115.332(c)
115.33(e)....................................................... .............. 115.233(e) 115.333(e)
115.35(c)....................................................... .............. 115.235(c) 115.335(c)
115.71(h)....................................................... 115.171(h) 115.271(h) 115.371(h)
----------------------------------------------------------------------------------------------------------------
If additional information is required contact: Lynn Murray,
Department Clearance Officer, Policy and Planning Staff, Justice
Management Division, U.S. Department of Justice, Two Constitution
Square, 145 N Street, NE., Suite 2E-502, Washington, DC 20530.
List of Subjects in 28 CFR Part 115
Community correction facilities, Crime, Jails, Juvenile facilities,
Lockups, Prisons, Prisoners.
Accordingly, Part 115 of Title 28 of the Code of Federal
Regulations is proposed to be added as follows:
PART 115--PRISON RAPE ELIMINATION ACT NATIONAL STANDARDS
Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse.
Subpart A--Standards for Adult Prisons and Jails
Prevention Planning
115.11 Zero tolerance of sexual abuse and sexual harassment; Prison
Rape Elimination Act (PREA) coordinator.
115.12 Contracting with other entities for the confinement of
inmates.
115.13 Supervision and monitoring.
115.14 Limits to cross-gender viewing and searches.
115.15 Accommodating inmates with special needs.
115.16 Hiring and promotion decisions.
115.17 Upgrades to facilities and technologies.
Responsive Planning
115.21 Evidence protocol and forensic medical exams.
115.22 Agreements with outside public entities and community service
providers.
115.23 Policies to ensure investigation of allegations.
Training and Education
115.31 Employee training.
115.32 Volunteer and contractor training.
115.33 Inmate education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and mental health care.
Screening for Risk of Sexual Victimization and Abusiveness
115.41 Screening for risk of victimization and abusiveness.
115.42 Use of screening information.
115.43 Protective custody.
Reporting
115.51 Inmate reporting.
115.52 Exhaustion of administrative remedies.
115.53 Inmate access to outside confidential support services.
115.54 Third-party reporting.
Official Response Following an Inmate Report
115.61 Staff and agency reporting duties.
[[Page 6276]]
115.62 Reporting to other confinement facilities.
115.63 Staff first responder duties.
115.64 Coordinated response.
115.65 Agency protection against retaliation.
115.66 Post-allegation protective custody.
Investigations
115.71 Criminal and administrative agency investigations.
115.72 Evidentiary standard for administrative investigations.
115.73 Reporting to inmates.
Discipline
115.76 Disciplinary sanctions for staff.
115.77 Disciplinary sanctions for inmates.
115.81 Medical and mental health screenings; history of sexual
abuse.
Medical and Mental Care
115.82 Access to emergency medical and mental health services.
115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
Data Collection and Review
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.
Audits
115.93 Audits of standards.
Subpart B--Standards for Lockups
Prevention Planning
115.111 Zero tolerance of sexual abuse and sexual harassment; PREA
coordinator.
115.112 Contracting with other entities for the confinement of
detainees.
115.113 Supervision and monitoring.
115.114 Limits to cross-gender viewing and searches.
115.115 Accommodating detainees with special needs.
115.116 Hiring and promotion decisions.
115.117 Upgrades to facilities and technologies.
Responsiveness Training
115.121 Evidence protocol and forensic medical exams.
115.123 Policies to ensure investigation of allegations.
Training and Education
115.131 Employee and volunteer training.
115.132 Detainee, attorney, contractor, and inmate worker
notification of the agency's zero-tolerance policy.
115.134 Specialized training; investigations.
Reporting
115.151 Detainee reporting.
115.154 Third-party reporting.
Official Response Following a Detainee Report
115.161 Staff and agency reporting duties.
115.162 Reporting to other confinement facilities.
115.163 Staff first responder duties.
115.164 Coordinated response.
115.165 Agency protection against retaliation.
Investigations
115.171 Criminal and administrative agency investigations.
115.172 Evidentiary standard for administrative investigations.
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Referrals for prosecution for detainee-on-detainee sexual
abuse.
Medical Care
115.182 Access to emergency medical services.
Data Collection and Review
115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and destruction.
Audits
115.193 Audits of standards.
Subpart C--Standards for Community Confinement Facilities
Prevention Planning
115.211 Zero tolerance of sexual abuse and sexual harassment; PREA
coordinator.
115.212 Contracting with other entities for the confinement of
residents.
115.213 Supervision and monitoring.
115.214 Limits to cross-gender viewing and searches.
115.215 Accommodating residents with special needs.
115.216 Hiring and promotion decisions.
115.217 Upgrades to facilities and technologies.
Responsive Planning
115.221 Evidence protocol and forensic medical exams.
115.222 Agreements with outside public entities and community
service providers.
115.223 Policies to ensure investigation of allegations.
Training and Education
115.231 Employee training.
115.232 Volunteer and contractor training.
115.233 Resident education.
115.234 Specialized training: Investigations.
115.235 Specialized training: Medical and mental health care.
Screening for Risk of Sexual Victimization and Abusiveness
115.241 Screening for risk of victimization and abusiveness.
115.242 Use of screening information.
Reporting
115.251 Resident reporting.
115.252 Exhaustion of administrative remedies.
115.253 Resident access to outside confidential support services.
115.254 Third-party reporting.
Official Response Following a Resident Report
115.261 Staff and agency reporting duties.
115.262 Reporting to other confinement facilities.
115.263 Staff first responder duties.
115.264 Coordinated response.
115.265 Agency protection against retaliation.
Investigations
115.271 Criminal and administrative agency investigations.
115.272 Evidentiary standard for administrative investigations.
115.273 Reporting to residents.
Discipline
115.276 Disciplinary sanctions for staff.
115.277 Disciplinary sanctions for residents.
Medical and Mental Care
115.282 Access to emergency medical and mental health services.
115.283 Ongoing medical and mental health care for sexual abuse
victims and abusers.
Data Collection and Review
115.286 Sexual abuse incident reviews.
115.287 Data collection.
115.288 Data review for corrective action.
115.289 Data storage, publication, and destruction.
Audits
115.293 Audits of standards.
Subpart D--Standards for Juvenile Facilities
Prevention Planning
115.311 Zero tolerance of sexual abuse and sexual harassment; PREA
coordinator.
115.312 Contracting with other entities for the confinement of
residents.
115.313 Supervision and monitoring.
115.314 Limits to cross-gender viewing and searches.
115.315 Accommodating residents with special needs.
115.316 Hiring and promotion decisions.
115.317 Upgrades to facilities and technologies.
Responsiveness Planning
115.321 Evidence protocol and forensic medical exams.
115.322 Agreements with outside public entities and community
service providers.
115.323 Policies to ensure investigation of allegations.
Training and Education
115.331 Employee training.
115.332 Volunteer and contractor training.
115.333 Resident education.
115.334 Specialized training: investigations.
115.335 Specialized training: medical and mental health care.
Assessment and Placement of Residents
115.341 Obtaining information from residents.
[[Page 6277]]
115.342 Placement of residents in housing, bed, program, education,
and work assignments.
Reporting
115.351 Resident reporting.
115.352 Exhaustion of administrative remedies.
115.353 Resident access to outside support services and legal
representation.
115.354 Third-party reporting.
Official Response Following a Resident Report
115.361 Staff and agency reporting duties.
115.362 Reporting to other confinement facilities.
115.363 Staff first responder duties.
115.364 Coordinated response.
115.365 Agency protection against retaliation.
115.366 Post-allegation protective custody.
Investigations
115.371 Criminal and administrative agency investigations.
115.372 Evidentiary standard for administrative investigations.
115.373 Reporting to residents.
Discipline
115.376 Disciplinary sanctions for staff.
115.377 Disciplinary sanctions for residents.
Medical and Mental Care
115.381 Medical and mental health screenings; history of sexual
abuse.
115.382 Access to emergency medical and mental health services.
115.383 Ongoing medical and mental health care for sexual abuse
victims and abusers.
Data Collection and Review
115.386 Sexual abuse incident reviews.
115.387 Data collection.
115.388 Data review for corrective action.
115.389 Data storage, publication, and destruction.
Audits
115.393 Audits of standards.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 15601-
15609.
Sec. 115.5 General definitions.
For purposes of this part, the term--
Agency means the unit of a State, local, corporate, or nonprofit
authority, or of the Department of Justice, with direct responsibility
for the operation of any facility that confines inmates, detainees, or
residents, including the implementation of policy as set by the
governing, corporate, or nonprofit authority.
Agency head means the principal official of an agency.
Community confinement facility means a community treatment center,
halfway house, restitution center, mental health facility, alcohol or
drug rehabilitation center, or other community correctional facility
(including residential re-entry centers) in which offenders or
defendants reside as part of a term of imprisonment or as a condition
of pre-trial release or post-release supervision, while participating
in gainful employment, employment search efforts, community service,
vocational training, treatment, educational programs, or similar
facility-approved programs during non-residential hours.
Contractor means a person who provides services on a recurring
basis pursuant to a contractual agreement with the agency.
Detainee means any person detained in a lockup, regardless of
adjudication status.
Employee means a person who works directly for the agency or
facility.
Facility means a place, institution, building (or part thereof),
set of buildings, structure, or area (whether or not enclosing a
building or set of buildings) that is used by an agency for the
confinement of individuals.
Facility head means the principal official of a facility.
Inmate means any person incarcerated or detained in a prison or
jail.
Jail means a confinement facility of a Federal, State, or local law
enforcement agency whose primary use is to hold persons pending
adjudication of criminal charges, persons committed to confinement
after adjudication of criminal charges for sentences of one year or
less, or persons adjudicated guilty who are awaiting transfer to a
correctional facility.
Juvenile means any person under the age of 18, unless otherwise
defined by State law.
Juvenile facility means a facility primarily used for the
confinement of juveniles.
Law enforcement staff means employees responsible for the
supervision and control of detainees in lockups.
Lockup means a facility that contains holding cells, cell blocks,
or other secure enclosures that are:
(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.
Medical practitioner means a health professional who, by virtue of
education, credentials, and experience, is permitted by law to evaluate
and care for patients within the scope of his or her professional
practice. A ``qualified medical practitioner'' refers to such a
professional who has also successfully completed specialized training
for treating sexual abuse victims.
Mental health practitioner means a mental health professional who,
by virtue of education, credentials, and experience, is permitted by
law to evaluate and care for patients within the scope of his or her
professional practice. A ``qualified mental health practitioner''
refers to such a professional who has also successfully completed
specialized training for treating sexual abuse victims.
Pat-down search means a running of the hands over the clothed body
of an inmate, detainee, or resident by an employee to determine whether
the individual possesses contraband.
Prison means an institution under Federal or State jurisdiction
whose primary use is for the confinement of individuals convicted of a
serious crime, usually in excess of one year in length, or a felony.
Resident means any person confined or detained in a juvenile
facility or in a community confinement facility.
Security staff means employees primarily responsible for the
supervision and control of inmates, detainees, or residents in housing
units, recreational areas, dining areas, and other program areas of the
facility.
Staff means employees.
Strip search means a search that requires a person to remove or
arrange some or all clothing so as to permit a visual inspection of the
person's breasts, buttocks, or genitalia.
Substantiated allegation means an allegation that was investigated
and determined to have occurred.
Unfounded allegation means an allegation that was investigated and
determined not to have occurred.
Unsubstantiated allegation means an allegation that was
investigated and the investigation produced insufficient evidence to
make a final determination as to whether or not the event occurred.
Volunteer means an individual who donates time and effort on a
recurring basis to enhance the activities and programs of the agency.
Sec. 115.6 Definitions related to sexual abuse.
For purposes of this part, the term--
Sexual abuse includes--
(1) Sexual abuse by another inmate, detainee, or resident; and
(2) Sexual abuse of an inmate by a staff member, contractor, or
volunteer.
Sexual abuse by another inmate, detainee, or resident includes any
of the following acts, if the victim does not consent, is coerced into
such act by overt or implied threats of violence, or is unable to
consent or refuse:
[[Page 6278]]
(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 any person, excluding incidents in which the intent of the
sexual contact is solely to harm or debilitate rather than to sexually
exploit.
Sexual abuse by a staff member, contractor, or volunteer includes--
(1) Sexual touching by a staff member, contractor, or volunteer;
(2) Any attempted, threatened, or requested sexual touching by a
staff member, contractor, or volunteer;
(3) Indecent exposure by a staff member, contractor, or volunteer;
and
(4) Voyeurism by a staff member, contractor, or volunteer.
Sexual touching by a staff member, contractor, or volunteer
includes any of the following acts, with or without consent:
(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 any person, with the intent to abuse, arouse or gratify
sexual desire.
Indecent exposure by a staff member, contractor, or volunteer means
the display by a staff member, contractor, or volunteer of his or her
uncovered genitalia, buttocks, or breast in the presence of an inmate.
Sexual harassment includes--
(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.
Voyeurism by a staff member, contractor, or volunteer means an
invasion of an inmate's privacy by staff for reasons unrelated to
official duties, such as peering at an inmate who is using a toilet in
his or her cell to perform bodily functions; requiring an inmate to
expose his or her buttocks, genitals or breasts; or taking images of
all or part of an inmate's naked body or of an inmate performing bodily
functions, and distributing or publishing them.
Subpart A--Standards for Adult Prisons and Jails
Prevention Planning
Sec. 115.11 Zero tolerance of sexual abuse and sexual harassment;
Prison Rape Elimination Act (PREA) coordinator.
(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 to develop, implement, and oversee agency efforts to
comply with the PREA standards in all of its facilities.
(c) The PREA coordinator shall be a full-time position in all
agencies that operate facilities whose total rated capacity exceeds
1000 inmates, but may be designated as a part-time position in agencies
whose total rated capacity does not exceed 1000 inmates.
(d) An agency whose facilities have a total rated capacity
exceeding 1000 inmates shall also designate a PREA coordinator for each
facility, who may be full-time or part-time.
Sec. 115.12 Contracting with other entities for the confinement of
inmates.
(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 contracts or contract
renewals the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with
PREA standards.
Sec. 115.13 Supervision and monitoring.
(a) For each facility, the agency shall determine the adequate
levels of staffing, and, where applicable, video monitoring, to protect
inmates against sexual abuse. In calculating such levels, agencies
shall take into consideration the physical layout of each facility, the
composition of the inmate population, and any other relevant factors.
(b) The facility shall also establish a plan for how to conduct
staffing and, where applicable, video monitoring, in circumstances
where the levels established in paragraph (a) of this section are not
attained.
(c) Each year, the facility shall assess, and determine whether
adjustments are needed to:
(1) The staffing levels established pursuant to paragraph (a) of
this section;
(2) Prevailing staffing patterns; and
(3) The agency's deployment of video monitoring systems and other
technologies.
(d) Each prison facility, and each jail facility whose rated
capacity exceeds 500 inmates, 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.
Sec. 115.14 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
visual body cavity searches except in case of emergency or when
performed by medical practitioners.
(b) The facility shall document all such cross-gender searches.
(c) 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 the case of emergency, by accident,
or when such viewing is incidental to routine cell checks.
(d) The facility shall not examine a transgender inmate to
determine the inmate's genital status unless the inmate's genital
status is unknown. Such examination shall be conducted in private by a
medical practitioner.
(e) Following classification, the agency shall implement procedures
to exempt from non-emergency cross-gender pat-down searches those
inmates who have suffered documented prior cross-gender sexual abuse
while incarcerated.
(f) The agency shall train security staff in how to conduct 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.
[[Page 6279]]
Sec. 115.15 Accommodating inmates with special needs.
(a) The agency shall ensure that inmates who are limited English
proficient, deaf, or disabled are able to report sexual abuse and
sexual harassment to staff directly or through other established
reporting mechanisms, such as abuse hotlines, without relying on inmate
interpreters, absent exigent circumstances.
(b) The agency shall make accommodations to convey verbally all
written information about sexual abuse policies, including how to
report sexual abuse and sexual harassment, to inmates who have limited
reading skills or who are visually impaired.
Sec. 115.16 Hiring and promotion decisions.
(a) The agency shall not hire or promote 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.
(b) Before hiring new employees, the agency shall:
(1) Perform a criminal background check; and
(2) Consistent with Federal, State, and local law, make its best
effort to contact all prior institutional employers for information on
substantiated allegations of sexual abuse.
(c) The agency shall either conduct criminal background checks of
current employees at least every five years or have in place a system
for otherwise capturing such information for current employees.
(d) The agency shall ask all applicants and employees directly
about previous misconduct in written applications for hiring or
promotions, in interviews for hiring or promotions, and in any
interviews or written self-evaluations conducted as part of reviews of
current employees.
(e) Material omissions, or the provision of materially false
information, shall be grounds for termination.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
Sec. 115.17 Upgrades to facilities and technologies.
(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.
Responsive Planning
Sec. 115.21 Evidence protocol and forensic medical exams.
(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 adapted from or otherwise based on the
2004 U.S. Department of Justice's Office on Violence Against Women
publication, ``A National Protocol for Sexual Assault Medical Forensic
Examinations, Adults/Adolescents,'' subsequent updated editions, or
similarly comprehensive and authoritative protocols developed after
2010.
(c) The agency shall offer all victims of sexual abuse access to
forensic medical exams performed by qualified medical practitioners,
whether onsite or at an outside facility, without financial cost, where
evidentiarily or medically appropriate.
(d) The agency shall make available to the victim a qualified staff
member or a victim advocate from a community-based organization that
provides services to sexual abuse victims.
(e) As requested by the victim, the qualified staff member or
victim advocate shall accompany and support the victim through the
forensic medical exam process and the investigatory process 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 inform the
investigating entity of these policies.
(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
institutional settings; and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in institutional settings.
(h) For the purposes of this standard, a qualified staff member
shall be an individual who is employed by a facility and has received
education concerning sexual assault and forensic examination issues in
general.
Sec. 115.22 Agreements with outside public entities and community
service providers.
(a) The agency shall 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
Sec. 115.51, 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.
(b) The agency also 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.
(c) The agency shall maintain copies of agreements or documentation
showing attempts to enter into agreements.
Sec. 115.23 Policies to ensure investigation of allegations.
(a) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are investigated by an
agency with the legal authority to conduct criminal investigations,
unless the allegation does not involve potentially criminal behavior,
and shall publish such policy on its Web site.
(b) If a separate entity is responsible for conducting criminal
investigations, such Web site publication shall describe the
responsibilities of both the agency and the investigating entity.
(c) Any State entity responsible for conducting criminal or
administrative investigations of sexual abuse in institutional settings
shall have in place a policy governing the conduct of such
investigations.
(d) Any Department of Justice component responsible for conducting
criminal or administrative investigations of sexual abuse in
institutional settings shall have in place a policy governing the
conduct of such investigations.
[[Page 6280]]
Training and Education
Sec. 115.31 Employee training.
(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
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;
(5) The dynamics of sexual abuse in confinement;
(6) The common reactions of sexual abuse victims;
(7) How to detect and respond to signs of threatened and actual
sexual abuse;
(8) How to avoid inappropriate relationships with inmates; and
(9) How to communicate effectively and professionally with inmates,
including lesbian, gay, bisexual, transgender, or intersex inmates.
(b) Such training shall be tailored to the gender of the inmates at
the employee's facility.
(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 annual refresher information to all
employees to ensure that they know the agency's current sexual abuse
policies and procedures.
(d) The agency shall document, via employee signature or electronic
verification, that employees understand the training they have
received.
Sec. 115.32 Volunteer and contractor training.
(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 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 sexual abuse.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.33 Inmate education.
(a) During the intake process, staff shall inform inmates of 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 via video
regarding their rights to be free from sexual abuse and sexual
harassment and to be free from retaliation for reporting such abuse or
harassment, and regarding agency sexual abuse response policies and
procedures.
(c) Current inmates who have not received such education shall be
educated within one year of the effective date of the PREA standards,
and the agency shall provide refresher information to all inmates at
least annually and whenever an inmate is transferred to a different
facility, to ensure that they know the agency's current sexual abuse
policies and procedures.
(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.
Sec. 115.34 Specialized training: Investigations.
(a) In addition to the general training provided to all employees
pursuant to Sec. 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 Miranda and Garrity warnings,
sexual abuse evidence collection in confinement settings, and the
criteria and evidence required to substantiate a case for
administrative action or prosecution referral.
(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.
Sec. 115.35 Specialized training: Medical and mental health care.
(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;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of
sexual abuse; and
(4) How and to whom to report allegations or suspicions of sexual
abuse.
(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.
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.41 Screening for risk of victimization and abusiveness.
(a) All inmates shall be screened during the intake process and
during the initial classification process to assess their risk of being
sexually abused by other inmates or sexually abusive toward other
inmates.
(b) Such screening shall be conducted using an objective screening
instrument, blank copies of which shall be made available to the public
upon request.
(c) The initial classification process shall consider, at a
minimum, the following criteria to screen inmates for risk of sexual
victimization:
(1) Whether the inmate has a mental, physical, or developmental
disability;
(2) The age of the inmate, including whether the inmate is a
juvenile;
(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 gay, lesbian, bisexual, transgender, or
intersex;
(8) Whether the inmate has previously experienced sexual
victimization;
[[Page 6281]]
(9) The inmate's own perception of vulnerability; and
(10) Whether the inmate is detained solely on civil immigration
charges.
(d) The initial classification process 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 screening inmates for risk of being sexually abusive.
(e) An agency shall conduct such initial classification within 30
days of the inmate's confinement.
(f) Inmates shall be rescreened when warranted due to a referral,
request, or incident of sexual victimization. Inmates may not be
disciplined for refusing to answer particular questions or for not
disclosing complete information.
(g) The agency shall implement appropriate controls on the
dissemination of responses to screening questions within the facility
in order to ensure that sensitive information is not exploited to the
inmate's detriment by staff or other inmates.
Sec. 115.42 Use of screening information.
(a) The agency shall use information from the risk screening 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 such an inmate shall
be reassessed at least twice each year to review any threats to safety
experienced by the inmate.
(e) Such inmate's own views with respect to his or her own safety
shall be given serious consideration.
Sec. 115.43 Protective custody.
(a) Inmates at high risk for sexual victimization may be placed in
involuntary segregated housing only after an assessment of all
available alternatives has been made, and then only until an
alternative means of separation from likely abusers can be arranged.
(b) Inmates placed in segregated housing for this purpose shall
have access to programs, education, and work opportunities to the
extent possible.
(c) The agency shall not ordinarily assign such an inmate to
segregated housing involuntarily for a period exceeding 90 days.
(d) If an extension is necessary, the agency shall clearly
document:
(1) The basis for the agency's concern for the inmate's safety; and
(2) The reason why no alternative means of separation can be arranged.
(e) Every 90 days, the agency shall afford each such inmate a
review to determine whether there is a continuing need for separation
from the general population.
Reporting
Sec. 115.51 Inmate reporting.
(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 an incident of sexual abuse.
(b) Pursuant to Sec. 115.22, the agency shall also make its 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, and that is
able to receive and immediately forward inmate reports of sexual abuse
and sexual harassment to agency officials.
(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.
Sec. 115.52 Exhaustion of administrative remedies.
(a)(1) The agency shall provide an inmate a minimum of 20 days
following the occurrence of an alleged incident of sexual abuse to file
a grievance regarding such incident.
(2) The agency shall grant an extension of no less than 90 days
from the deadline for filing such a grievance when the inmate provides
documentation, such as from a medical or mental health provider or
counselor, that filing a grievance within the normal time limit was or
would likely be impractical, whether due to physical or psychological
trauma arising out of an incident of sexual abuse, the inmate having
been held for periods of time outside of the facility, or other
circumstances indicating impracticality. Such an extension shall be
afforded retroactively to an inmate whose grievance is filed subsequent
to the normal filing deadline.
(b)(1) The agency shall issue a final agency decision on the merits
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 appealing any adverse ruling.
(3) An 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.
(4) The agency shall notify the inmate in writing of any such
extension and provide a date by which a decision will be made.
(c)(1) Whenever an agency is notified of an allegation that an
inmate has been sexually abused, other than by notification from
another inmate, it shall consider such notification 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.
(2) The agency shall inform the alleged victim that a grievance or
request for informal resolution has been submitted on his or her behalf
and shall process it under the agency's normal procedures unless the
alleged victim expressly requests that it not be processed. The agency
shall document any such request.
(3) The agency may require the alleged victim to personally pursue
any subsequent steps in the administrative remedy process.
(4) The agency shall also establish procedures to allow the parent
or legal guardian of a juvenile to file a grievance regarding
allegations of sexual abuse, including appeals, on behalf of such
juvenile.
(d)(1) An agency shall establish procedures for the filing of an
emergency grievance where an inmate is subject to a substantial risk of
imminent sexual abuse.
(2) After receiving such an emergency grievance, the agency shall
immediately forward it to a level of review at which corrective action
may be taken, provide an initial response within 48 hours, and a final
agency decision within five calendar days.
(3) The agency may opt not to take such actions if it determines
that no
[[Page 6282]]
emergency exists, in which case it may either:
(i) Process the grievance as a normal grievance; or
(ii) Return the grievance to the inmate, and require the inmate to
follow the agency's normal grievance procedures.
(4) The agency shall provide a written explanation of why the
grievance does not qualify as an emergency.
(5) An agency may discipline an inmate for intentionally filing an
emergency grievance where no emergency exists.
Sec. 115.53 Inmate access to outside confidential support services.
(a) In addition to providing onsite mental health care services,
the facility shall provide inmates with access to outside victim
advocates for emotional support services related to sexual abuse by
giving inmates 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 inmates and these organizations, as
confidential as possible, consistent with agency security needs.
(b) The facility shall inform inmates, prior to giving them access,
of the extent to which such communications will be monitored.
Sec. 115.54 Third-party reporting.
The facility shall establish a method to receive third-party
reports of sexual abuse and shall distribute publicly information on
how to report sexual abuse on behalf of an inmate.
Official Response Following an Inmate Report
Sec. 115.61 Staff and agency reporting duties.
(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 that occurred in an institutional
setting; retaliation against inmates or staff who reported abuse; and
any staff neglect or violation of responsibilities that may have
contributed to an incident of sexual abuse 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 those who need to know, 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 at the initiation of
services.
(d) If the 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,
including third-party and anonymous reports, to the facility's
designated investigators.
Sec. 115.62 Reporting to other confinement facilities.
(a) Within 14 days of 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 in writing the head
of the facility or appropriate central office of the agency where the
alleged abuse occurred.
(b) The facility head or central office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.63 Staff first responder duties.
(a) Upon learning that an inmate was sexually abused within a time
period that still allows for the collection of physical evidence, the
first security staff member to respond to the report shall be required
to:
(1) Separate the alleged victim and abuser;
(2) Seal and preserve any crime scene; and
(3) Request the victim not to take any actions that could destroy
physical evidence, including 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 the victim not to take any
actions that could destroy physical evidence, and then notify security
staff.
Sec. 115.64 Coordinated response.
The facility shall coordinate actions taken in response to an
incident of sexual abuse, among staff first responders, medical and
mental health practitioners, investigators, and facility leadership.
Sec. 115.65 Agency protection against retaliation.
(a) The agency shall 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.
(b) The agency shall employ multiple protection measures, including
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) The agency shall monitor the conduct and treatment of inmates
or staff who have reported sexual abuse or cooperated with
investigations, including any inmate disciplinary reports, housing, or
program changes, for at least 90 days following their report or
cooperation, to see if there are changes that may suggest possible
retaliation by inmates or staff, and shall act promptly to remedy any
such retaliation. The agency shall continue such monitoring beyond 90
days if the initial monitoring indicates a continuing need.
(d) The agency shall not enter into or renew any collective
bargaining agreement or other agreement that limits the agency's
ability to remove alleged staff abusers from contact with victims
pending an investigation.
Sec. 115.66 Post-allegation protective custody.
Any use of segregated housing to protect an inmate who is alleged
to have suffered sexual abuse shall be subject to the requirements of
Sec. 115.43.
Investigations
Sec. 115.71 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse, it shall do so promptly, thoroughly, and
objectively, using investigators who have received special training in
sexual abuse investigations pursuant to Sec. 115.34, and shall
investigate all allegations of sexual abuse, including third-party and
anonymous reports.
(b) 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.
(c) When the quality of evidence appears to support criminal
prosecution, the agency shall conduct compelled interviews only after
consulting with prosecutors as to
[[Page 6283]]
whether compelled interviews may be an obstacle for subsequent criminal
prosecution.
(d) The credibility of a 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.
(e) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act facilitated 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 findings.
(f) 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.
(g) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(h) The agency shall retain such investigative records for as long
as the alleged abuser is incarcerated or employed by the agency, plus
five years.
(i) 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.
(j) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(k) 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.
Sec. 115.72 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of
the evidence in determining whether allegations of sexual abuse are
substantiated.
Sec. 115.73 Reporting to inmates.
(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, the agency shall subsequently inform the inmate
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) The requirement to inform in inmate shall not apply to
allegations that have been determined to be unfounded.
Discipline
Sec. 115.76 Disciplinary sanctions for staff.
(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 touching.
(c) Sanctions 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.
Sec. 115.77 Disciplinary sanctions for inmates.
(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) Any prohibition on inmate-on-inmate sexual activity shall not
consider consensual sexual activity to constitute sexual abuse.
Medical and Mental Care
Sec. 115.81 Medical and mental health screenings; history of sexual
abuse.
(a) All prisons shall ask inmates about prior sexual victimization
and abusiveness during intake or classification screenings.
(b) If a prison inmate discloses prior sexual victimization or
abusiveness, whether it occurred in an institutional setting or in the
community, staff shall ensure that the inmate is offered a follow-up
reception with a medical or mental health practitioner within 14 days
of the intake screening.
(c) All jails shall ask inmates about prior sexual victimization
during the intake process or classification screenings.
(d) If a jail inmate discloses 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 reception with a
medical or mental health practitioner within 14 days of the intake
screening.
(e) 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 required by
agency policy and Federal, State, or local law, to inform treatment
plans and security and management decisions, including housing, bed,
work, education, and program assignments.
(f) Medical and mental health practitioners shall obtain informed
consent from inmates before reporting information about prior sexual
victimization that did not occur in an
[[Page 6284]]
institutional setting, unless the inmate is under the age of 18.
Sec. 115.82 Access to emergency medical and mental health services.
(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) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser.
(c) 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 Sec. 115.63 and shall immediately notify the appropriate medical
and mental health practitioners.
(d) Inmate victims of sexual abuse while incarcerated shall be
offered timely information about and access to all pregnancy-related
medical services that are lawful in the community and sexually
transmitted infections prophylaxis, where appropriate.
Sec. 115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer ongoing medical and mental health
evaluation and treatment to all inmates who, during their present term
of incarceration, have been victimized by sexual abuse.
(b) The evaluation and treatment of sexual abuse victims shall
include 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 inmate victims of sexual abuse with
medical and mental health services consistent with the community level
of care.
(d) All prisons shall conduct a mental health evaluation of all
known inmate abusers within 60 days of learning of such abuse history
and offer treatment when deemed appropriate by qualified mental health
practitioners.
(e) Inmate victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(f) If pregnancy results, such victims shall receive timely
information about and access to all pregnancy-related medical services
that are lawful in the community.
Data Collection and Review
Sec. 115.86 Sexual abuse incident reviews.
(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) The review team shall include upper management officials, with
input from line supervisors, investigators, and medical or mental
health practitioners.
(c) 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 or
otherwise caused by the perpetrator or victim's race, ethnicity, sexual
orientation, gang affiliation, or 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 and any recommendations for
improvement and submit such report to the facility head and PREA
coordinator, if any.
Sec. 115.87 Data collection.
(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's Bureau of Justice Statistics.
(d) The agency shall collect data from multiple sources, 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 year to the Department of Justice no later than June 30.
Sec. 115.88 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 115.87 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.
Sec. 115.89 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
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 for at least 10
years after the date of its initial collection unless Federal, State,
or local law requires otherwise.
Audits
Sec. 115.93 Audits of standards.
(a) An audit shall be considered independent if it is conducted by:
(1) A correctional monitoring body that is not part of the agency
but that is part of, or authorized by, the relevant State or local
government;
(2) An auditing entity that is within the agency but separate from
its normal chain of command, such as an inspector general or
ombudsperson who reports directly to the agency head or to the agency's
governing board; or
[[Page 6285]]
(3) Other outside individuals with relevant experience.
(b) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited within the three
years prior to the agency's retention of the auditor.
(c) 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 audits.
(d) All auditors shall be certified by the Department of Justice to
conduct such audits, and shall be re-certified every three years.
(e) The Department of Justice shall prescribe methods governing the
conduct of such audits, including provisions for reasonable inspections
of facilities, review of documents, and interviews of staff and
inmates. The Department of Justice also shall prescribe the minimum
qualifications for auditors.
(f) The agency shall enable the auditor to enter and tour
facilities, review documents, and interview staff and inmates to
conduct a comprehensive audit.
(g) 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.
Subpart B--Standards for Lockups
Prevention Planning
Sec. 115.111 Zero tolerance of sexual abuse and sexual harassment;
PREA coordinator.
(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, who may be full-time or part-time, to develop,
implement, and oversee agency efforts to comply with the PREA standards
in all of its lockups.
Sec. 115.112 Contracting with other entities for the confinement of
detainees.
(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
contracts or contract renewals the entity's obligation to adopt and
comply with the PREA standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with the
PREA standards.
Sec. 115.113 Supervision and monitoring.
(a) For each lockup, the agency shall determine the adequate levels
of staffing, and, where applicable, video monitoring, to protect
detainees against sexual abuse. In calculating such levels, agencies
shall take into consideration the physical layout of each lockup, the
composition of the detainee population, and any other relevant factors.
(b) The lockup shall also establish a plan for how to conduct
staffing and, where applicable, video monitoring, in circumstances
where the levels established in paragraph (a) of this section are not
attained.
(c) Each year, the lockup shall assess, and determine whether
adjustments are needed to:
(1) The staffing levels established pursuant to paragraph (a) of
this section;
(2) Prevailing staffing patterns; and
(3) The agency's deployment of video monitoring systems and other
technologies.
(d) Any intake screening or assessment shall include consideration
of a detainee's potential vulnerability to sexual abuse.
(e) If vulnerable detainees are identified, law enforcement staff
shall provide such detainees with heightened protection, to include
continuous direct sight and sound supervision, single-cell housing, or
placement in a cell actively monitored on video by a staff member
sufficiently proximate to intervene, unless no such option is
determined to be feasible.
(f) If the lockup does not perform intake screenings or
assessments, it shall have a policy and practice designed to provide
heightened protection to a detainee to prevent sexual abuse whenever a
law enforcement staff member observes any physical or behavioral
characteristics of a detainee that suggest the detainee may be
vulnerable to such abuse.
Sec. 115.114 Limits to cross-gender viewing and searches.
(a) The lockup shall not conduct cross-gender strip searches or
visual body cavity searches except in case of emergency or when
performed by medical practitioners.
(b) The lockup shall document all such cross-gender 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 the case of emergency, by accident,
or when such viewing is incidental to routine cell checks.
(d) The lockup shall not examine a transgender detainee to
determine the detainee's genital status unless the detainee's genital
status is unknown. Such examination shall be 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 detainees,
in a professional and respectful manner, and in the least intrusive
manner possible, consistent with security needs.
Sec. 115.115 Accommodating detainees with special needs.
(a) The agency shall ensure that detainees who are limited English
proficient, deaf, or disabled are able to report sexual abuse and
sexual harassment to staff directly, or through other established
reporting mechanisms, such as abuse hotlines, without relying on
detainee interpreters, absent exigent circumstances.
(b) The agency shall make accommodations to convey verbally all
written information about sexual abuse policies, including how to
report sexual abuse and sexual harassment, to detainees who have
limited reading skills or who are visually impaired.
Sec. 115.116 Hiring and promotion decisions.
(a) The agency shall not hire or promote 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.
(b) Before hiring new employees, the agency shall:
(1) Perform a criminal background check; and
(2) Consistent with Federal, State, and local law, make its best
effort to contact all prior institutional employers for information on
substantiated allegations of sexual abuse.
(c) The agency shall either conduct criminal background checks of
current employees at least every five years or have in place a system
for otherwise capturing such information for current employees.
(d) The agency shall ask all applicants and employees directly
about previous misconduct in written applications for hiring or
promotions, in interviews for hiring or promotions, and in any
interviews or written self-evaluations conducted as part of reviews of
current employees.
[[Page 6286]]
(e) Material omissions, or the provision of materially false
information, shall be grounds for termination.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
Sec. 115.117 Upgrades to facilities and technologies.
(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 upon the agency's ability to protect detainees 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 detainees from sexual abuse.
Responsive Planning
Sec. 115.121 Evidence protocol and forensic medical exams.
(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 adapted from or otherwise based on the
2004 U.S. Department of Justice's Office on Violence Against Women
publication, ``A National Protocol for Sexual Assault Medical Forensic
Examinations, Adults/Adolescents,'' subsequent updated editions, or
similarly comprehensive and authoritative protocols developed after
2010. As part of the training required in Sec. 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 exams performed by qualified medical practitioners,
whether onsite or at an outside facility, without financial cost, where
evidentiarily or medically appropriate.
(d) To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the agency shall inform the
investigating entity of these policies.
(e) The requirements in paragraphs (a) through (d) 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 institutional settings.
Sec. 115.123 Policies to ensure investigation of allegations.
(a) 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 investigated by an agency with the legal authority
to conduct criminal investigations, unless the allegation does not
involve potentially criminal behavior, and shall publish such policy on
its Web site, including a description of responsibilities of both the
agency and the investigating entity.
(b) Any State entity responsible for conducting criminal or
administrative investigations of sexual abuse in lockups shall have in
place a policy governing the conduct of such investigations.
(c) Any Department of Justice component responsible for conducting
criminal or administrative investigations of sexual abuse in lockups
shall have in place a policy governing the conduct of such
investigations.
Training and Education
Sec. 115.131 Employee and volunteer training.
(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, and to communicate effectively and
professionally with all detainees.
(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 policies and procedures.
(c) The agency shall document, via employee signature or electronic
verification, that employees understand the training they have
received.
Sec. 115.132 Detainee, attorney, contractor, and inmate worker
notification of the agency's zero-tolerance policy.
(a) During the intake process, employees shall notify all detainees
of the agency's zero-tolerance policy regarding sexual abuse.
(b) The agency shall ensure that, upon entering the lockup,
attorneys, contractors, and any inmates who work in the lockup are
informed of the agency's zero-tolerance policy regarding sexual abuse.
Sec. 115.134 Specialized training: Investigations.
(a) In addition to the general training provided to all employees
and volunteers pursuant to Sec. 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 Miranda and Garrity warnings,
sexual abuse evidence collection in confinement settings, and the
criteria and evidence required to substantiate a case for
administrative action or prosecution referral.
(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 lockups shall provide such training to
their agents and investigators who conduct such investigations.
Reporting
Sec. 115.151 Detainee reporting.
(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 an incident of sexual abuse.
(b) The agency shall also make its best efforts to provide at least
one way for detainees 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.
(c) Staff shall accept reports made verbally, in writing,
anonymously, and from third parties and promptly document any verbal
reports.
[[Page 6287]]
(d) The agency shall provide a method for staff to privately report
sexual abuse and sexual harassment of detainees.
Sec. 115.154 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse in its lockups. The agency shall distribute publicly
information on how to report sexual abuse on behalf of a detainee.
Official Response Following a Detainee Report
Sec. 115.161 Staff and agency reporting duties.
(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 that occurred in an agency
lockup; retaliation against detainees or staff who reported abuse; and
any staff neglect or violation of responsibilities that may have
contributed to an incident of sexual abuse 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 those who need to know, as specified in agency
policy, to make treatment and investigation decisions.
(c) If the 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.
Sec. 115.162 Reporting to other confinement facilities.
(a) Within 14 days of receiving an allegation that a detainee was
sexually abused while confined at another facility or lockup, the head
of the facility or lockup that received the allegation shall notify in
writing the head of the facility or lockup or appropriate central
office of the agency where the alleged abuse occurred.
(b) The facility or lockup head or central office that receives
such notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.163 Staff first responder duties.
(a) Upon learning that a detainee was sexually abused within a time
period that still allows for the collection of physical evidence, the
first law enforcement staff member to respond to the report shall be
required to:
(1) Separate the alleged victim and abuser;
(2) Seal and preserve any crime scene; and
(3) Request the victim not to take any actions that could destroy
physical evidence, including washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff
member, he or she shall be required to request the victim not to take
any actions that could destroy physical evidence and then notify law
enforcement staff.
Sec. 115.164 Coordinated response.
(a) The agency shall 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.
Sec. 115.165 Agency protection against retaliation.
(a) The agency shall 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.
(b) The agency shall employ multiple protection measures, including
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 or cooperated with
investigations, and shall act promptly to remedy any such retaliation.
(d) The agency shall not enter into or renew any collective
bargaining agreement or other agreement that limits the agency's
ability to remove alleged staff abusers from contact with victims
pending an investigation.
Investigations
Sec. 115.171 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse, it shall do so promptly, thoroughly, and
objectively, using investigators who have received special training in
sexual abuse investigations pursuant to Sec. 115.134, and shall
investigate all allegations of sexual abuse, including third-party and
anonymous reports.
(b) 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.
(c) 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.
(d) The credibility of a 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.
(e) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act facilitated 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 findings.
(f) 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.
(g) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(h) The agency shall retain such investigative records for as long
as the alleged abuser is incarcerated or employed by the agency, plus
five years.
(i) 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.
(j) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(k) 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.
[[Page 6288]]
Sec. 115.172 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of
the evidence in determining whether allegations of sexual abuse are
substantiated.
Discipline
Sec. 115.176 Disciplinary sanctions for staff.
(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 touching.
(c) Sanctions 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.
Sec. 115.177 Referrals for prosecution for detainee-on-detainee
sexual abuse.
(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.
Medical Care
Sec. 115.182 Access to emergency medical services.
(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.
Data Collection and Review
Sec. 115.186 Sexual abuse incident reviews.
(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) The review team shall include upper management officials, with
input from line supervisors and investigators.
(c) 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 or
otherwise caused by the perpetrator or victim's race, ethnicity, sexual
orientation, gang affiliation, or 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 and any recommendations for
improvement and submit such report to the lockup head and agency PREA
coordinator.
Sec. 115.187 Data collection.
(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's Bureau of Justice Statistics, or any
subsequent form developed by the Bureau of Justice Statistics and
designated for lockups.
(d) The agency shall collect data from multiple sources, 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 year to the Department of Justice no later than June 30.
Sec. 115.188 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to section 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.
Sec. 115.189 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
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 for at least 10
years after the date of its initial collection unless Federal, State,
or local law requires otherwise.
Audits
Sec. 115.193 Audits of standards.
(a) An audit shall be considered independent if it is conducted by:
(1) A correctional monitoring body that is not part of the agency
but that is part of, or authorized by, the relevant State or local
government;
(2) An auditing entity that is within the agency but separate from
its normal chain of command, such as an inspector general or
ombudsperson who reports
[[Page 6289]]
directly to the agency head or to the agency's governing board; or
(3) Other outside individuals with relevant experience.
(b) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited within the three
years prior to the agency's retention of the auditor.
(c) 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 audits.
(d) All auditors shall be certified by the Department of Justice to
conduct such audits, and shall be re-certified every three years.
(e) The Department of Justice shall prescribe methods governing the
conduct of such audits, including provisions for reasonable inspections
of facilities, review of documents, and interviews of staff and
detainees. The Department of Justice also shall prescribe the minimum
qualifications for auditors.
(f) The agency shall enable the auditor to enter and tour
facilities, review documents, and interview staff and detainees to
conduct a comprehensive audit.
(g) 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.
Subpart C--Standards for Community Confinement Facilities
Prevention Planning
Sec. 115.211 Zero tolerance of sexual abuse and sexual harassment;
PREA coordinator.
(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, who may be full-time or part-time, to develop,
implement, and oversee agency efforts to comply with the PREA standards
in all of its community confinement facilities.
Sec. 115.212 Contracting with other entities for the confinement of
residents.
(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 contracts or contract
renewals the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with
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.
Sec. 115.213 Supervision and monitoring.
(a) For each facility, the agency shall determine the adequate
levels of staffing, and, where applicable, video monitoring, to protect
residents against sexual abuse. In calculating such levels, agencies
shall take into consideration the physical layout of each facility, the
composition of the resident population, and any other relevant factors.
(b) The facility shall also establish a plan for how to conduct
staffing and, where applicable, video monitoring, in circumstances
where the levels established in paragraph (a) of this section are not
attained.
(c) Each year, the facility shall assess, and determine whether
adjustments are needed to:
(1) The staffing levels established pursuant to paragraph (a) of
this section;
(2) Prevailing staffing patterns; and
(3) The agency's deployment of video monitoring systems and other
technologies.
Sec. 115.214 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
visual body cavity searches except in case of emergency or when
performed by medical practitioners.
(b) The facility shall document all such cross-gender searches.
(c) 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 the case of emergency, by
accident, or when such viewing is incidental to routine cell checks.
(d) The facility shall not examine a transgender resident to
determine the resident's genital status unless the resident's genital
status is unknown. Such examination shall be conducted in private by a
medical practitioner.
(e) Following classification, the agency shall implement procedures
to exempt from non-emergency cross-gender pat-down searches those
residents who have suffered documented prior cross-gender sexual abuse
while incarcerated.
(f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender residents, in a
professional and respectful manner, and in the least intrusive manner.
Sec. 115.215 Accommodating residents with special needs.
(a) The agency shall ensure that residents who are limited English
proficient, deaf, or disabled are able to report sexual abuse and
sexual harassment to staff directly or through other established
reporting mechanisms, such as abuse hotlines, without relying on
resident interpreters, absent exigent circumstances.
(b) The agency shall make accommodations to convey verbally all
written information about sexual abuse policies, including how to
report sexual abuse and sexual harassment, to residents who have
limited reading skills or who are visually impaired.
Sec. 115.216 Hiring and promotion decisions.
(a) The agency shall not hire or promote 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.
(b) Before hiring new employees, the agency shall:
(1) Perform a criminal background check; and
(2) Consistent with Federal, State, and local law, make its best
effort to contact all prior institutional employers for information on
substantiated allegations of sexual abuse.
(c) The agency shall either conduct criminal background checks of
current employees at least every five years or have in place a system
for otherwise capturing such information for current employees.
(d) The agency shall also ask all applicants and employees directly
about previous misconduct in written applications for hiring or
promotions, in interviews for hiring or promotions, and in any
interviews or written self-evaluations conducted as part of reviews of
current employees.
(e) Material omissions, or the provision of materially false
information, shall be grounds for termination.
(f) Unless prohibited by law, the agency shall provide information
on
[[Page 6290]]
substantiated allegations of sexual abuse involving a former employee
upon receiving a request from an institutional employer for whom such
employee has applied to work.
Sec. 115.217 Upgrades to facilities and technologies.
(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.
Responsive Planning
Sec. 115.221 Evidence protocol and forensic medical exams.
(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 adapted from or otherwise based on the
2004 U.S. Department of Justice's Office on Violence Against Women
publication ``A National Protocol for Sexual Assault Medical Forensic
Examinations, Adults/Adolescents,'' subsequent updated editions, or
similarly comprehensive and authoritative protocols developed after
2010.
(c) The agency shall offer all victims of sexual abuse access to
forensic medical exams performed by qualified medical practitioners,
whether onsite or at an outside facility, without financial cost, where
evidentiarily or medically appropriate.
(d) The agency shall make available to the victim a qualified staff
member or a victim advocate from a community-based organization that
provides services to sexual abuse victims.
(e) As requested by the victim, the qualified staff member or
victim advocate shall accompany and support the victim through the
forensic medical exam process and the investigatory process 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 inform the
investigating entity of these policies.
(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 institutional settings;
and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in institutional settings.
(h) For the purposes of this standard, a qualified staff member
shall be an individual who is employed by a facility and has received
education concerning sexual assault and forensic examination issues in
general.
Sec. 115.222 Agreements with outside public entities and community
service providers.
(a) The agency shall 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 resident reports
of sexual abuse and sexual harassment to agency officials pursuant to
Sec. 115.251, unless the agency enables residents 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.
(b) The agency also 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.
(c) The agency shall maintain copies of agreements or documentation
showing attempts to enter into agreements.
Sec. 115.223 Policies to ensure investigation of allegations.
(a) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are investigated by an
agency with the legal authority to conduct criminal investigations,
unless the allegation does not involve potentially criminal behavior,
and shall publish such policy on its Web site.
(b) If a separate entity is responsible for conducting criminal
investigations, such Web site publication shall describe the
responsibilities of both the agency and the investigating entity.
(c) Any State entity responsible for conducting criminal or
administrative investigations of sexual abuse in institutional settings
shall have in place a policy governing the conduct of such
investigations.
(d) Any Department of Justice component responsible for conducting
criminal or administrative investigations of sexual abuse in
institutional settings shall have in place a policy governing the
conduct of such investigations.
Training and Education
Sec. 115.231 Employee training.
(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
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;
(5) The dynamics of sexual abuse in confinement;
(6) The common reactions of sexual abuse victims;
(7) How to detect and respond to signs of threatened and actual
sexual abuse;
(8) How to avoid inappropriate relationships with residents; and
(9) How to communicate effectively and professionally with
residents, including lesbian, gay, bisexual, transgender, or intersex
residents.
(b) Such training shall be tailored to the gender of the residents
at the employee's facility.
(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 annual refresher information to all
employees to ensure that they know the agency's current sexual abuse
policies and procedures.
(d) The agency shall document, via employee signature or electronic
verification, that employees understand the training they have
received.
Sec. 115.232 Volunteer and contractor training.
(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 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
[[Page 6291]]
sexual abuse and sexual harassment and informed how to report sexual
abuse.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.233 Resident education.
(a) During the intake process, staff shall inform residents of 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 abuse or
harassment, and regarding agency sexual abuse response policies and
procedures.
(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.
Sec. 115.234 Specialized training: Investigations.
(a) In addition to the general training provided to all employees
pursuant to Sec. 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 Miranda and Garrity warnings,
sexual abuse evidence collection in confinement settings, and the
criteria and evidence required to substantiate a case for
administrative action or prosecution referral.
(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.
Sec. 115.235 Specialized training: Medical and mental health care.
(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;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of
sexual abuse; and
(4) How and to whom to report allegations or suspicions of sexual
abuse.
(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.
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.241 Screening for risk of victimization and abusiveness.
(a) All residents shall be screened during the intake process or
during an initial classification process to assess their risk of being
sexually abused by other residents or sexually abusive toward other
residents.
(b) Such screening shall be conducted using an objective screening
instrument, blank copies of which shall be made available to the public
upon request.
(c) The initial classification process shall consider, at a
minimum, the following criteria to screen residents for risk of sexual
victimization:
(1) Whether the resident has a mental, physical, or developmental
disability;
(2) The age of the resident, including whether the resident is a
juvenile;
(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 gay, lesbian, bisexual, transgender, or
intersex;
(8) Whether the resident has previously experienced sexual
victimization; and
(9) The resident's own perception of vulnerability.
(d) The initial classification process 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 screening residents for risk of being sexually abusive.
(e) An agency shall conduct such initial classification within 30
days of the resident's confinement.
(f) Residents shall be rescreened when warranted due to a referral,
request, or incident of sexual victimization. Residents may not be
disciplined for refusing to answer particular questions or for not
disclosing complete information.
(g) The agency shall implement appropriate controls on the
dissemination of responses to screening questions within the facility
in order to ensure that sensitive information is not exploited to the
resident's detriment by staff or other residents.
Sec. 115.242 Use of screening information.
(a) The agency shall use information from the risk screening 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) Such resident's own views with respect to his or her own safety
shall be given serious consideration.
Reporting
Sec. 115.251 Resident reporting.
(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 an incident of sexual abuse.
(b) Pursuant to Sec. 115.222, the agency shall also make its best
efforts to provide at least one way for residents 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
[[Page 6292]]
ombudsperson, and that is able to receive and immediately forward
resident reports of sexual abuse and sexual harassment to agency
officials.
(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.
Sec. 115.252 Exhaustion of administrative remedies.
(a)(1) The agency shall provide a resident a minimum of 20 days
following the occurrence of an alleged incident of sexual abuse to file
a grievance regarding such incident.
(2) The agency shall grant an extension of no less than 90 days
from the deadline for filing such a grievance when the resident
provides documentation, such as from a medical or mental health
provider or counselor, that filing a grievance within the normal time
limit was or would likely be impractical, whether due to physical or
psychological trauma arising out of an incident of sexual abuse, the
resident having been held for periods of time outside of the facility,
or other circumstances indicating impracticality. Such an extension
shall be afforded retroactively to a resident whose grievance is filed
subsequent to the normal filing deadline.
(b)(1) The agency shall issue a final agency decision on the merits
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 appealing any adverse ruling.
(3) An 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.
(4) The agency shall notify the resident in writing of any such
extension and provide a date by which a decision will be made.
(c)(1)Whenever an agency is notified of an allegation that a
resident has been sexually abused, other than by notification from
another resident, it shall consider such notification as a grievance or
request for informal resolution submitted on behalf of the alleged
resident victim for purposes of initiating the agency administrative
remedy process.
(2) The agency shall inform the alleged victim that a grievance or
request for informal resolution has been submitted on his or her behalf
and shall process it under the agency's normal procedures unless the
alleged victim expressly requests that it not be processed. The agency
shall document any such request.
(3) The agency may require the alleged victim to personally pursue
any subsequent steps in the administrative remedy process.
(4) The agency shall also establish procedures to allow the parent
or legal guardian of a juvenile to file a grievance regarding
allegations of sexual abuse, including appeals, on behalf of such
juvenile.
(d)(1) An agency shall establish procedures for the filing of an
emergency grievance where a resident is subject to a substantial risk
of imminent sexual abuse.
(2) After receiving such an emergency grievance, the agency shall
immediately forward it to a level of review at which corrective action
may be taken, provide an initial response within 48 hours, and a final
agency decision within five calendar days.
(3) The agency may opt not to take such actions if it determines
that no emergency exists, in which case it may either:
(i) Process the grievance as a normal grievance; or
(ii) Return the grievance to the resident, and require the resident
to follow the agency's normal grievance procedures.
(4) The agency shall provide a written explanation of why the
grievance does not qualify as an emergency.
(5) An agency may discipline a resident for intentionally filing an
emergency grievance where no emergency exists.
Sec. 115.253 Resident access to outside confidential support
services.
(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, as
confidential as possible, consistent with agency security needs.
(b) The facility shall inform residents, prior to giving them
access, of the extent to which such communications will be monitored.
Sec. 115.254 Third-party reporting.
The facility shall establish a method to receive third-party
reports of sexual abuse. The facility shall distribute publicly
information on how to report sexual abuse on behalf of a resident.
Official Response Following a Resident Report
Sec. 115.261 Staff and agency reporting duties.
(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 that occurred in an institutional
setting; retaliation against residents or staff who reported abuse; and
any staff neglect or violation of responsibilities that may have
contributed to an incident of sexual abuse 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 those who need to know, 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 at the initiation of
services.
(d) If the 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,
including third-party and anonymous reports, to the facility's
designated investigators.
Sec. 115.262 Reporting to other confinement facilities.
(a) Within 14 days of receiving an allegation that a resident was
sexually abused while confined at another community corrections
facility, the head of the facility that received the allegation shall
notify in writing the head of the facility or appropriate central
office of the agency where the alleged abuse occurred.
(b) The facility head or central office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.263 Staff first responder duties.
(a) Upon learning that a resident was sexually abused within a time
period that still allows for the collection of physical evidence, the
first security staff member to respond to the report shall be required
to:
[[Page 6293]]
(1) Separate the alleged victim and abuser;
(2) Seal and preserve any crime scene; and
(3) Request the victim not to take any actions that could destroy
physical evidence, including washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, he
or she shall be required to request the victim not to take any actions
that could destroy physical evidence and then notify security staff.
Sec. 115.264 Coordinated response.
The facility shall coordinate actions taken in response to an
incident of sexual abuse, among staff first responders, medical and
mental health practitioners, investigators, and facility leadership.
Sec. 115.265 Agency protection against retaliation.
(a) The agency shall 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.
(b) The agency shall employ multiple protection measures, including
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) The agency shall monitor the conduct and treatment of residents
or staff who have reported sexual abuse or cooperated with
investigations, including any resident disciplinary reports, housing,
or program changes, for at least 90 days following their report or
cooperation to see if there are changes that may suggest possible
retaliation by residents or staff, and shall act promptly to remedy any
such retaliation. The agency shall continue such monitoring beyond 90
days if the initial monitoring indicates a continuing need.
(d) The agency shall not enter into or renew any collective
bargaining agreement or other agreement that limits the agency's
ability to remove alleged staff abusers from contact with victims
pending an investigation.
Investigations
Sec. 115.271 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse, it shall do so promptly, thoroughly, and
objectively, using investigators who have received special training in
sexual abuse investigations pursuant to Sec. 115.234, and shall
investigate all allegations of sexual abuse, including third-party and
anonymous reports.
(b) 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.
(c) 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.
(d) The credibility of a 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.
(e) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act facilitated 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 findings.
(f) 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.
(g) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(h) The agency shall retain such investigative records for as long
as the alleged abuser is incarcerated or employed by the agency, plus
five years.
(i) 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.
(j) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(k) 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.
Sec. 115.272 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of
the evidence in determining whether allegations of sexual abuse are
substantiated.
Sec. 115.273 Reporting to residents.
(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, the agency shall subsequently inform the
resident 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) The requirement to inform the inmate shall not apply to
allegations that have been determined to be unfounded.
Discipline
Sec. 115.276 Disciplinary sanctions for staff.
(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 touching.
(c) Sanctions 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.
[[Page 6294]]
Sec. 115.277 Disciplinary sanctions for residents.
(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) Any prohibition on resident-on-resident sexual activity shall
not consider consensual sexual activity to constitute sexual abuse.
Medical and Mental Care
Sec. 115.282 Access to emergency medical and mental health services.
(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) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser.
(c) 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 Sec. 115.263 and shall immediately notify the appropriate medical
and mental health practitioners.
(d) Resident victims of sexual abuse while incarcerated shall be
offered timely information about and access to all pregnancy-related
medical services that are lawful in the community and sexually
transmitted infections prophylaxis, where appropriate.
Sec. 115.283 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer ongoing medical and mental health
evaluation and treatment to all residents who, during their present
term of incarceration, have been victimized by sexual abuse.
(b) The evaluation and treatment of sexual abuse victims shall
include 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 resident victims of sexual abuse
with medical and mental health services consistent with the community
level of care.
(d) All prisons shall conduct a mental health evaluation of all
known resident abusers within 60 days of learning of such abuse history
and offer treatment when deemed appropriate by qualified mental health
practitioners.
(e) Resident victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(f) If pregnancy results, such victims shall receive timely
information about and access to all pregnancy-related medical services
that are lawful in the community.
Data Collection and Review
Sec. 115.286 Sexual abuse incident reviews.
(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) The review team shall include upper management officials, with
input from line supervisors, investigators, and medical or mental
health practitioners.
(c) 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 or
otherwise caused by the perpetrator or victim's race, ethnicity, sexual
orientation, gang affiliation, or 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 and any recommendations for
improvement and submit such report to the facility head and PREA
coordinator, if any.
Sec. 115.287 Data collection.
(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's Bureau of Justice Statistics.
(d) The agency shall collect data from multiple sources, 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 year to the Department of Justice no later than June 30.
Sec. 115.288 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 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.
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(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.
Sec. 115.289 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
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 for at least 10
years after the date of its initial collection unless Federal, State,
or local law requires otherwise.
Audits
Sec. 115.293 Audits of standards.
(a) An audit shall be considered independent if it is conducted by:
(1) A correctional monitoring body that is not part of the agency
but that is part of, or authorized by, the relevant State or local
government;
(2) An auditing entity that is within the agency but separate from
its normal chain of command, such as an inspector general or
ombudsperson who reports directly to the agency head or to the agency's
governing board; or
(3) Other outside individuals with relevant experience.
(b) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited within the three
years prior to the agency's retention of the auditor.
(c) 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 audits.
(d) All auditors shall be certified by the Department of Justice to
conduct such audits, and shall be re-certified every three years.
(e) The Department of Justice shall prescribe methods governing the
conduct of such audits, including provisions for reasonable inspections
of facilities, review of documents, and interviews of staff and
residents. The Department of Justice also shall prescribe the minimum
qualifications for auditors.
(f) The agency shall enable the auditor to enter and tour
facilities, review documents, and interview staff and residents to
conduct a comprehensive audit.
(g) 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.
Subpart D--Standards for Juvenile Facilities
Prevention Planning
Sec. 115.311 Zero tolerance of sexual abuse and sexual harassment;
PREA coordinator.
(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 to develop, implement, and oversee agency efforts to
comply with the PREA standards in all of its facilities.
(c) The PREA coordinator shall be a full-time position in all
agencies that operate facilities whose total rated capacity exceeds
1000 residents, but may be designated as a part-time position in
agencies whose total rated capacity does not exceed 1000 residents.
(d) An agency whose facilities have a total rated capacity
exceeding 1000 residents shall also designate a PREA coordinator for
each facility, who may be full-time or part-time.
Sec. 115.312 Contracting with other entities for the confinement of
residents.
(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 contracts or contract
renewals the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contracts or contract renewals shall provide for agency
contract monitoring to ensure that the contractor is complying with
PREA standards.
Sec. 115.313 Supervision and monitoring.
(a) For each facility, the agency shall determine the adequate
levels of staffing, and, where applicable, video monitoring, to protect
residents against sexual abuse. In calculating such levels, agencies
shall take into consideration the physical layout of each facility, the
composition of the resident population, and any other relevant factors.
(b) The facility shall also establish a plan for how to conduct
staffing and, where applicable, video monitoring, in circumstances
where the levels established in paragraph (a) of this section are not
attained.
(c) Each year, the facility shall assess, and determine whether
adjustments are needed to:
(1) The staffing levels established pursuant to paragraph (a) of
this section;
(2) Prevailing staffing patterns; and
(3) The agency's deployment of video monitoring systems and other
technologies.
(d) 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.
Sec. 115.314 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
visual body cavity searches except in case of emergency or when
performed by medical practitioners.
(b) The facility shall document all such cross-gender searches.
(c) 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 the case of emergency, by
accident, or when such viewing is incidental to routine cell checks.
(d) The facility shall not examine a transgender resident to
determine the resident's genital status unless the resident's genital
status is unknown. Such examination shall be conducted in private by a
medical practitioner.
(e) The agency shall not conduct cross-gender pat-down searches
except in the case of emergency or other unforeseen circumstances. Any
such search shall be documented and justified.
(f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender residents, in a
professional and respectful manner, and in the least intrusive manner
possible, consistent with security needs.
[[Page 6296]]
Sec. 115.315 Accommodating residents with special needs.
(a) The agency shall ensure that residents who are limited English
proficient, deaf, or disabled are able to report sexual abuse and
sexual harassment to staff directly or through other established
reporting mechanisms, such as abuse hotlines, without relying on
resident interpreters, absent exigent circumstances.
(b) The agency shall make accommodations to convey verbally all
written information about sexual abuse policies, including how to
report sexual abuse and sexual harassment, to residents who have
limited reading skills or who are visually impaired.
Sec. 115.316 Hiring and promotion decisions.
(a) The agency shall not hire or promote 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.
(b) Before hiring new employees, the agency shall:
(1) Perform a criminal background check; and
(2) Consistent with Federal, State, and local law, make its best
effort to contact all prior institutional employers for information on
substantiated allegations of sexual abuse.
(c) The agency shall either conduct criminal background checks of
current employees at least every five years or have in place a system
for otherwise capturing such information for current employees.
(d) The agency shall also ask all applicants and employees directly
about previous misconduct in written applications for hiring or
promotions, in interviews for hiring or promotions, and in any
interviews or written self-evaluations conducted as part of reviews of
current employees.
(e) Material omissions, or the provision of materially false
information, shall be grounds for termination.
(f) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse involving a former
employee upon receiving a request from an institutional employer for
whom such employee has applied to work.
Sec. 115.317 Upgrades to facilities and technologies.
(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.
Responsive Planning
Sec. 115.321 Evidence protocol and forensic medical exams.
(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 adapted from or otherwise based on the
2004 U.S. Department of Justice's Office on Violence Against Women
publication ``A National Protocol for Sexual Assault Medical Forensic
Examinations, Adults/Adolescents,'' subsequent updated editions, or
similarly comprehensive and authoritative protocols developed after
2010.
(c) The agency shall offer all residents who experience sexual
abuse access to forensic medical exams performed by qualified medical
practitioners, whether onsite or at an outside facility, without
financial cost, where evidentiarily or medically appropriate.
(d) The agency shall make available to the victim a qualified staff
member or a victim advocate from a community-based organization that
provides services to sexual abuse victims.
(e) As requested by the victim, the qualified staff member or
victim advocate shall accompany and support the victim through the
forensic medical exam process and the investigatory process 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 inform the
investigating entity of these policies.
(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 institutional settings;
and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in institutional settings.
(h) For the purposes of this standard, a qualified staff member
shall be an individual who is employed by a facility and has received
education concerning sexual assault and forensic examination issues in
general.
Sec. 115.322 Agreements with outside public entities and community
service providers.
(a) The agency shall 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 resident reports
of sexual abuse and sexual harassment to agency officials pursuant to
Sec. 115.351, unless the agency enables residents 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.
(b) The agency also shall 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, including helping resident sexual
abuse victims during community re-entry, unless the agency is legally
required to provide such services to all residents.
(c) The agency shall maintain copies of agreements or documentation
showing attempts to enter into agreements.
Sec. 115.323 Policies to ensure investigation of allegations.
(a) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are investigated by an
agency with the legal authority to conduct criminal investigations,
unless the allegation does not involve potentially criminal behavior,
and shall publish such policy on its Web site.
(b) If a separate entity is responsible for conducting criminal
investigations, such Web site publication shall describe the
responsibilities of both the agency and the investigating entity.
(c) Any State entity responsible for conducting criminal or
administrative investigations of sexual abuse in juvenile facilities
shall have in place a policy governing the conduct of such
investigations.
(d) Any Department of Justice component responsible for conducting
criminal or administrative investigations of sexual abuse in juvenile
facilities shall have in place a policy governing the conduct of such
investigations.
[[Page 6297]]
Training and Education
Sec. 115.331 Employee training.
(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
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;
(5) The dynamics of sexual abuse in juvenile facilities;
(6) The common reactions of juvenile victims of sexual abuse;
(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, or intersex
residents; and
(10) Relevant laws related to mandatory reporting.
(b) Such training shall be tailored to the unique needs and
attributes of residents of juvenile facilities.
(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 annual refresher information to all
employees to ensure that they know the agency's current sexual abuse
policies and procedures.
(d) The agency shall document, via employee signature or electronic
verification, that employees understand the training they have
received.
Sec. 115.332 Volunteer and contractor training.
(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 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 sexual abuse.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.333 Resident education.
(a) During the intake process, staff shall inform residents in an
age-appropriate fashion of 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 age-appropriate education to residents either in person
or via video regarding their rights to be free from sexual abuse and
sexual harassment and to be free from retaliation for reporting such
abuse or harassment, and regarding agency sexual abuse response
policies and procedures.
(c) Current residents who have not received such education shall be
educated within one year of the effective date of the PREA standards,
and the agency shall provide refresher information to all residents at
least annually and whenever a resident is transferred to a different
facility, to ensure that they know the agency's current sexual abuse
policies and procedures.
(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.
Sec. 115.334 Specialized training: Investigations.
(a) In addition to the general training provided to all employees
pursuant to Sec. 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 Miranda and Garrity
warnings, sexual abuse evidence collection in confinement settings, and
the criteria and evidence required to substantiate a case for
administrative action or prosecution referral.
(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.
Sec. 115.335 Specialized training: Medical and mental health care.
(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;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to juvenile
victims of sexual abuse; and
(4) How and to whom to report allegations or suspicions of sexual
abuse.
(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.
Assessment and Placement of Residents
Sec. 115.341 Obtaining information from residents.
(a) During the intake process 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 assessment shall be conducted using an objective screening
instrument, blank copies of which shall be made available to the public
upon request.
(c) At a minimum, the agency shall attempt to ascertain information
about:
(1) Prior sexual victimization or abusiveness;
(2) Sexual orientation, transgender, or intersex status;
(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;
[[Page 6298]]
(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 residents 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 residents' files.
(e) The agency shall implement appropriate controls on the
dissemination of responses to screening questions within the facility
in order to ensure that sensitive information is not exploited to the
resident's detriment by staff or other residents.
Sec. 115.342 Placement of residents in housing, bed, program,
education, and work assignments.
(a) The agency shall use all information obtained about the
resident during the intake process and subsequently to make placement
decisions for each resident based upon the objective screening
instrument with the goal of keeping all residents safe and free from
sexual abuse.
(b) When determining housing, bed, program, education and work
assignments for residents, the agency must take into account:
(1) A resident's age;
(2) The nature of his or her offense;
(3) Any mental or physical disability or mental illness;
(4) Any history of sexual victimization or engaging in sexual
abuse;
(5) His or her level of emotional and cognitive development;
(6) His or her identification as lesbian, gay, bisexual,
transgender, or intersex; and
(7) Any other information obtained about the resident pursuant to
Sec. 115.341.
(c) 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.
(d) 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.
(e) The agency shall make an individualized determination about
whether a transgender resident should be housed with males or with
females.
Reporting
Sec. 115.351 Resident reporting.
(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 an incident of sexual abuse.
(b) Pursuant to Sec. 115.322, the agency shall also make its best
efforts to provide at least one way for residents 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, and that is
able to receive and immediately forward resident reports of sexual
abuse and sexual harassment to agency officials.
(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.
Sec. 115.352 Exhaustion of administrative remedies.
(a)(1) The agency shall provide a resident a minimum of 20 days
following the occurrence of an alleged incident of sexual abuse to file
a grievance regarding such incident.
(2) The agency shall grant an extension of no less than 90 days
from the deadline for filing such a grievance when the resident
provides documentation, such as from a medical or mental health
provider or counselor, that filing a grievance within the normal time
limit was or would likely be impractical, whether due to physical or
psychological trauma arising out of an incident of sexual abuse, the
resident having been held for periods of time outside of the facility,
or other circumstances indicating impracticality. Such an extension
shall be afforded retroactively to a resident whose grievance is filed
subsequent to the normal filing deadline.
(b)(1) The agency shall issue a final agency decision on the merits
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 appealing any adverse ruling.
(3) An 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.
(4) The agency shall notify the resident in writing of any such
extension and provide a date by which a decision will be made.
(c)(1)Whenever an agency is notified of an allegation that a
resident has been sexually abused, other than by notification from
another resident, it shall consider such notification as a grievance or
request for informal resolution submitted on behalf of the alleged
resident victim for purposes of initiating the agency administrative
remedy process.
(2) The agency shall inform the alleged victim that a grievance or
request for informal resolution has been submitted on his or her behalf
and shall process it under the agency's normal procedures unless the
alleged victim expressly requests that it not be processed. The agency
shall document any such request.
(3) The agency may require the alleged victim to personally pursue
any subsequent steps in the administrative remedy process.
(4) The agency shall also establish procedures to allow the parent
or legal guardian of a juvenile to file a grievance regarding
allegations of sexual abuse, including appeals, on behalf of such
juvenile.
(d)(1) An agency shall establish procedures for the filing of an
emergency grievance where a resident is subject to a substantial risk
of imminent sexual abuse.
(2) After receiving such an emergency grievance, the agency shall
immediately forward it to a level of review at which corrective action
may be taken, provide an initial response within 48 hours, and a final
agency decision within five calendar days.
(3) The agency may opt not to take such actions if it determines
that no emergency exists, in which case it may either:
(i) Process the grievance as a normal grievance; or
(ii) Return the grievance to the resident, and require the resident
to follow the agency's normal grievance procedures.
(4) The agency shall provide a written explanation of why the
grievance does not qualify as an emergency.
(5) An agency may discipline a resident for intentionally filing an
emergency grievance where no emergency exists.
[[Page 6299]]
Sec. 115.353 Resident access to outside support services and legal
representation.
(a) In addition to providing onsite mental health care services,
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 by enabling reasonable communication between
residents and these organizations, as confidential as possible,
consistent with agency security needs and with applicable law.
(b) The facility shall inform residents, prior to giving them
access, of the extent to which such communications will be monitored.
(c) The facility shall also provide residents with reasonable and
confidential access to their attorney or other legal representation and
reasonable access to parents or legal guardians.
Sec. 115.354 Third-party reporting.
The facility shall establish a method to receive third-party
reports of sexual abuse. The facility shall distribute publicly,
including to residents' attorneys and parents or legal guardians,
information on how to report sexual abuse on behalf of a resident.
Official Response Following a Resident Report
Sec. 115.361 Staff and agency reporting duties.
(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 that occurred in an
institutional setting; retaliation against residents or staff who
reported abuse; and any staff neglect or violation of responsibilities
that may have contributed to an incident of sexual abuse 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 those who need to know, 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.
(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 central office of the agency and the 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 victim is under the guardianship of the child welfare
system, the report shall be made to the victim's caseworker instead of
the victim's parents or legal guardians.
(3) If a juvenile court retains jurisdiction over a juvenile, the
facility head or designee shall also report the allegation to such
court within 14 days of receiving the allegation, unless additional
time is needed to comply with applicable rules governing ex parte
communications.
(f) The facility shall report all allegations of sexual abuse,
including third-party and anonymous reports, to the facility's
designated investigators.
Sec. 115.362 Reporting to other confinement facilities.
(a) Within 14 days of 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 in writing the head
of the facility or appropriate central office of the agency where the
alleged abuse occurred and shall also notify the appropriate
investigative agency.
(b) The facility head or central office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.363 Staff first responder duties.
Upon learning that a resident was sexually abused within a time
period that still allows for the collection of physical evidence, the
first staff member to respond to the report shall be required to:
(a) Separate the alleged victim and abuser;
(b) Seal and preserve any crime scene; and
(c) Request the victim not to take any actions that could destroy
physical evidence, including washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
Sec. 115.364 Coordinated response.
The facility shall coordinate actions taken in response to an
incident of sexual abuse among staff first responders, medical and
mental health practitioners, investigators, and facility leadership.
Sec. 115.365 Agency protection against retaliation.
(a) The agency shall 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.
(b) The agency shall employ multiple protection measures, including
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) The agency shall monitor the conduct or treatment of residents
or staff who have reported sexual abuse or cooperated with
investigations, including any resident disciplinary reports, housing,
or program changes, for at least 90 days following their report or
cooperation, to see if there are changes that may suggest possible
retaliation by residents or staff, and shall act promptly to remedy any
such retaliation. The agency shall continue such monitoring beyond 90
days if the initial monitoring indicates a continuing need.
(d) The agency shall not enter into or renew any collective
bargaining agreement or other agreement that limits the agency's
ability to remove alleged staff abusers from contact with residents
pending an investigation.
Sec. 115.366 Post-allegation protective custody.
Any use of segregated housing to protect a resident who is alleged
to have suffered sexual abuse shall be subject to the requirements of
Sec. 115.342.
Investigations
Sec. 115.371 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse, it shall do so promptly, thoroughly, and
objectively, using investigators who have received special training in
sexual abuse investigations involving juvenile victims pursuant to
Sec. 115.334, and shall investigate all allegations of sexual abuse,
including third-party and anonymous reports.
[[Page 6300]]
(b) 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.
(c) The agency shall not terminate an investigation solely because
the source of the allegation recants the allegation.
(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 a 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.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act facilitated 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 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 such investigative records 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.
Sec. 115.372 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of
the evidence in determining whether allegations of sexual abuse are
substantiated.
Sec. 115.373 Reporting to residents.
(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, the agency shall subsequently inform the
resident 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) The requirement to inform the inmate shall not apply to
allegations that have been determined to be unfounded.
Discipline
Sec. 115.376 Disciplinary sanctions for staff.
(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 touching.
(c) Sanctions 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.
Sec. 115.377 Disciplinary sanctions for residents.
(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) Any prohibition on resident-on-resident sexual activity shall
not consider consensual sexual activity to constitute sexual abuse.
Medical and Mental Care
Sec. 115.381 Medical and mental health screenings; history of sexual
abuse.
(a) All facilities shall ask residents about prior sexual
victimization during the intake process or classification screenings.
(b) If a resident discloses 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 reception with a
medical or mental health practitioner within 14 days of the intake
screening.
(c) Unless such intake or classification screening precedes
adjudication, the facility shall also ask residents about prior sexual
abusiveness.
(d) If a resident discloses prior sexual abusiveness, whether it
occurred in an institutional setting or in the community, staff shall
ensure that the resident is offered a follow-up reception with a mental
health practitioner within 14 days of the intake screening.
[[Page 6301]]
(e) Subject to mandatory reporting laws, 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 required by agency policy and
Federal, State, or local law, to inform treatment plans and security
and management decisions, including housing, bed, work, education, and
program assignments.
(f) 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.
Sec. 115.382 Access to emergency medical and mental health services.
(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) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser.
(c) 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 Sec. 115.363 and shall immediately notify the appropriate medical
and mental health practitioners.
(d) Resident victims of sexual abuse while incarcerated shall be
offered timely information about and access to all pregnancy-related
medical services that are lawful in the community and sexually
transmitted infections prophylaxis, where appropriate.
Sec. 115.383 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer ongoing medical and mental health
evaluation and treatment to all residents who, during their present
term of incarceration, have been victimized by sexual abuse.
(b) The evaluation and treatment of sexual abuse victims shall
include 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 resident victims of sexual abuse
with medical and mental health services consistent with the community
level of care.
(d) The facility shall conduct a mental health evaluation of all
known resident abusers within 60 days of learning of such abuse history
and offer treatment when deemed appropriate by qualified mental health
practitioners.
(e) Resident victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(f) If pregnancy results, such victims shall receive timely
information about and access to all pregnancy-related medical services
that are lawful in the community.
Data Collection and Review
Sec. 115.386 Sexual abuse incident reviews.
(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) The review team shall include upper management officials, with
input from line supervisors, investigators, and medical or mental
health practitioners.
(c) 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 or
otherwise caused by the perpetrator or victim's race, ethnicity, sexual
orientation, gang affiliation, or 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 and any recommendations for
improvement and submit such report to the facility head and PREA
coordinator, if any.
Sec. 115.387 Data collection.
(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's Bureau of Justice Statistics.
(d) The agency shall collect data from multiple sources, 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 year to the Department of Justice no later than June 30.
Sec. 115.388 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 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.
Sec. 115.389 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to Sec.
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 for at least 10
years after the date of its initial collection unless
[[Page 6302]]
Federal, State, or local law requires otherwise.
Audits
Sec. 115.393 Audits of standards.
(a) An audit shall be considered independent if it is conducted by:
(1) A correctional monitoring body that is not part of the agency
but that is part of, or authorized by, the relevant State or local
government;
(2) An auditing entity that is within the agency but separate from
its normal chain of command, such as an inspector general or
ombudsperson who reports directly to the agency head or to the agency's
governing board; or
(3) Other outside individuals with relevant experience.
(b) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited within the three
years prior to the agency's retention of the auditor.
(c) 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 audits.
(d) All auditors shall be certified by the Department of Justice to
conduct such audits, and shall be re-certified every three years.
(e) The Department of Justice shall prescribe methods governing the
conduct of such audits, including provisions for reasonable inspections
of facilities, review of documents, and interviews of staff and
residents. The Department of Justice also shall prescribe the minimum
qualifications for auditors.
(f) The agency shall enable the auditor to enter and tour
facilities, review documents, and interview staff and residents to
conduct a comprehensive audit.
(g) 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.
Dated: January 24, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-1905 Filed 2-2-11; 8:45 am]
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