[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1435 Engrossed in Senate (ES)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
108th CONGRESS
  1st Session
                                S. 1435

_______________________________________________________________________

                                 AN ACT


 
To provide for the analysis of the incidence and effects of prison rape 
 in Federal, State, and local institutions and to provide information, 
  resources, recommendations, and funding to protect individuals from 
                              prison rape.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Prison Rape 
Elimination Act of 2003''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. National prison rape statistics, data, and research.
Sec. 5. Prison rape prevention and prosecution.
Sec. 6. Grants to protect inmates and safeguard communities.
Sec. 7. National Prison Rape Reduction Commission.
Sec. 8. Adoption and effect of national standards.
Sec. 9. Requirement that accreditation organizations adopt 
                            accreditation standards.
Sec. 10. Definitions.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) 2,100,146 persons were incarcerated in the United 
        States at the end of 2001: 1,324,465 in Federal and State 
        prisons and 631,240 in county and local jails. In 1999, there 
        were more than 10,000,000 separate admissions to and discharges 
        from prisons and jails.
            (2) Insufficient research has been conducted and 
        insufficient data reported on the extent of prison rape. 
        However, experts have conservatively estimated that at least 13 
        percent of the inmates in the United States have been sexually 
        assaulted in prison. Many inmates have suffered repeated 
        assaults. Under this estimate, nearly 200,000 inmates now 
        incarcerated have been or will be the victims of prison rape. 
        The total number of inmates who have been sexually assaulted in 
        the past 20 years likely exceeds 1,000,000.
            (3) Inmates with mental illness are at increased risk of 
        sexual victimization. America's jails and prisons house more 
        mentally ill individuals than all of the Nation's psychiatric 
        hospitals combined. As many as 16 percent of inmates in state 
        prisons and jails, and 7 percent of Federal inmates, suffer 
        from mental illness.
            (4) Young first-time offenders are at increased risk of 
        sexual victimization. Juveniles are 5 times more likely to be 
        sexually assaulted in adult rather than juvenile facilities--
        often within the first 48 hours of incarceration.
            (5) Most prison staff are not adequately trained or 
        prepared to prevent, report, or treat inmate sexual assaults.
            (6) Prison rape often goes unreported, and inmate victims 
        often receive inadequate treatment for the severe physical and 
        psychological effects of sexual assault--if they receive 
        treatment at all.
            (7) HIV and AIDS are major public health problems within 
        America's correctional facilities. In 2000, 25,088 inmates in 
        Federal and State prisons were known to be infected with HIV/
        AIDS. In 2000, HIV/AIDS accounted for more than 6 percent of 
        all deaths in Federal and State prisons. Infection rates for 
        other sexually transmitted diseases, tuberculosis, and 
        hepatitis B and C are also far greater for prisoners than for 
        the American population as a whole. Prison rape undermines the 
        public health by contributing to the spread of these diseases, 
        and often giving a potential death sentence to its victims.
            (8) Prison rape endangers the public safety by making 
        brutalized inmates more likely to commit crimes when they are 
        released--as 600,000 inmates are each year.
            (9) The frequently interracial character of prison sexual 
        assaults significantly exacerbates interracial tensions, both 
        within prison and, upon release of perpetrators and victims 
        from prison, in the community at large.
            (10) Prison rape increases the level of homicides and other 
        violence against inmates and staff, and the risk of 
        insurrections and riots.
            (11) Victims of prison rape suffer severe physical and 
        psychological effects that hinder their ability to integrate 
        into the community and maintain stable employment upon their 
        release from prison. They are thus more likely to become 
        homeless and/or require government assistance.
            (12) Members of the public and government officials are 
        largely unaware of the epidemic character of prison rape and 
        the day-to-day horror experienced by victimized inmates.
            (13) The high incidence of sexual assault within prisons 
        involves actual and potential violations of the United States 
        Constitution. In Farmer v. Brennan, 511 U.S. 825 (1994), the 
        Supreme Court ruled that deliberate indifference to the 
        substantial risk of sexual assault violates prisoners' rights 
        under the Cruel and Unusual Punishments Clause of the Eighth 
        Amendment. The Eighth Amendment rights of State and local 
        prisoners are protected through the Due Process Clause of the 
        Fourteenth Amendment. Pursuant to the power of Congress under 
        Section Five of the Fourteenth Amendment, Congress may take 
        action to enforce those rights in States where officials have 
        demonstrated such indifference. States that do not take basic 
        steps to abate prison rape by adopting standards that do not 
        generate significant additional expenditures demonstrate such 
        indifference. Therefore, such States are not entitled to the 
        same level of Federal benefits as other States.
            (14) The high incidence of prison rape undermines the 
        effectiveness and efficiency of United States Government 
        expenditures through grant programs such as those dealing with 
        health care; mental health care; disease prevention; crime 
        prevention, investigation, and prosecution; prison 
        construction, maintenance, and operation; race relations; 
        poverty; unemployment and homelessness. The effectiveness and 
        efficiency of these Federally funded grant programs are 
        compromised by the failure of State officials to adopt policies 
        and procedure that reduce the incidence of prison rape in that 
        the high incidence of prison rape--
                    (A) increases the costs incurred by Federal, State, 
                and local jurisdictions to administer their prison 
                systems;
                    (B) increases the levels of violence, directed at 
                inmates and at staff, within prisons;
                    (C) increases health care expenditures, both inside 
                and outside of prison systems, and reduces the 
                effectiveness of disease prevention programs by 
                substantially increasing the incidence and spread of 
                HIV, AIDS, tuberculosis, hepatitis B and C, and other 
                diseases;
                    (D) increases mental health care expenditures, both 
                inside and outside of prison systems, by substantially 
                increasing the rate of post-traumatic stress disorder, 
                depression, suicide, and the exacerbation of existing 
                mental illnesses among current and former inmates;
                    (E) increases the risks of recidivism, civil 
                strife, and violent crime by individuals who have been 
                brutalized by prison rape; and
                    (F) increases the level of interracial tensions and 
                strife within prisons and, upon release of perpetrators 
                and victims, in the community at large.
            (15) The high incidence of prison rape has a significant 
        effect on interstate commerce because it increases 
        substantially--
                    (A) the costs incurred by Federal, State, and local 
                jurisdictions to administer their prison systems;
                    (B) the incidence and spread of HIV, AIDS, 
                tuberculosis, hepatitis B and C, and other diseases, 
                contributing to increased health and medical 
                expenditures throughout the Nation;
                    (C) the rate of post-traumatic stress disorder, 
                depression, suicide, and the exacerbation of existing 
                mental illnesses among current and former inmates, 
                contributing to increased health and medical 
                expenditures throughout the Nation; and
                    (D) the risk of recidivism, civil strife, and 
                violent crime by individuals who have been brutalized 
                by prison rape.

SEC. 3. PURPOSES.

    The purposes of this Act are to--
            (1) establish a zero-tolerance standard for the incidence 
        of prison rape in prisons in the United States;
            (2) make the prevention of prison rape a top priority in 
        each prison system;
            (3) develop and implement national standards for the 
        detection, prevention, reduction, and punishment of prison 
        rape;
            (4) increase the available data and information on the 
        incidence of prison rape, consequently improving the management 
        and administration of correctional facilities;
            (5) standardize the definitions used for collecting data on 
        the incidence of prison rape;
            (6) increase the accountability of prison officials who 
        fail to detect, prevent, reduce, and punish prison rape;
            (7) protect the Eighth Amendment rights of Federal, State, 
        and local prisoners;
            (8) increase the efficiency and effectiveness of Federal 
        expenditures through grant programs such as those dealing with 
        health care; mental health care; disease prevention; crime 
        prevention, investigation, and prosecution; prison 
        construction, maintenance, and operation; race relations; 
        poverty; unemployment; and homelessness; and
            (9) reduce the costs that prison rape imposes on interstate 
        commerce.

SEC. 4. NATIONAL PRISON RAPE STATISTICS, DATA, AND RESEARCH.

    (a) Annual Comprehensive Statistical Review.--
            (1) In general.--The Bureau of Justice Statistics of the 
        Department of Justice (in this section referred to as the 
        ``Bureau'') shall carry out, for each calendar year, a 
        comprehensive statistical review and analysis of the incidence 
        and effects of prison rape. The statistical review and analysis 
        shall include, but not be limited to the identification of the 
        common characteristics of--
                    (A) both victims and perpetrators of prison rape; 
                and
                    (B) prisons and prison systems with a high 
                incidence of prison rape.
            (2) Considerations.--In carrying out paragraph (1), the 
        Bureau shall consider--
                    (A) how rape should be defined for the purposes of 
                the statistical review and analysis;
                    (B) how the Bureau should collect information about 
                staff-on-inmate sexual assault;
                    (C) how the Bureau should collect information 
                beyond inmate self-reports of prison rape;
                    (D) how the Bureau should adjust the data in order 
                to account for differences among prisons as required by 
                subsection (c)(3);
                    (E) the categorization of prisons as required by 
                subsection (c)(4); and
                    (F) whether a preliminary study of prison rape 
                should be conducted to inform the methodology of the 
                comprehensive statistical review.
            (3) Solicitation of views.--The Bureau of Justice 
        Statistics shall solicit views from representatives of the 
        following: State departments of correction; county and 
        municipal jails; juvenile correctional facilities; former 
        inmates; victim advocates; researchers; and other experts in 
        the area of sexual assault.
            (4) Sampling techniques.--The review and analysis under 
        paragraph (1) shall be based on a random sample, or other 
        scientifically appropriate sample, of not less than 10 percent 
        of all Federal, State, and county prisons, and a representative 
        sample of municipal prisons. The selection shall include at 
        least one prison from each State. The selection of facilities 
        for sampling shall be made at the latest practicable date prior 
        to conducting the surveys and shall not be disclosed to any 
        facility or prison system official prior to the time period 
        studied in the survey. Selection of a facility for sampling 
        during any year shall not preclude its selection for sampling 
        in any subsequent year.
            (5) Surveys.--In carrying out the review and analysis under 
        paragraph (1), the Bureau shall, in addition to such other 
        methods as the Bureau considers appropriate, use surveys and 
        other statistical studies of current and former inmates from a 
        sample of Federal, State, county, and municipal prisons. The 
        Bureau shall ensure the confidentiality of each survey 
        participant.
            (6) Participation in survey.--Federal, State, or local 
        officials or facility administrators that receive a request 
        from the Bureau under subsection (a)(4) or (5) will be required 
        to participate in the national survey and provide access to any 
        inmates under their legal custody.
    (b) Review Panel on Prison Rape.--
            (1) Establishment.--To assist the Bureau in carrying out 
        the review and analysis under subsection (a), there is 
        established, within the Department of Justice, the Review Panel 
        on Prison Rape (in this section referred to as the ``Panel'').
            (2) Membership.--
                    (A) Composition.--The Panel shall be composed of 3 
                members, each of whom shall be appointed by the 
                Attorney General, in consultation with the Secretary of 
                Health and Human Services.
                    (B) Qualifications.--Members of the Panel shall be 
                selected from among individuals with knowledge or 
                expertise in matters to be studied by the Panel.
            (3) Public hearings.--
                    (A) In general.--The duty of the Panel shall be to 
                carry out, for each calendar year, public hearings 
                concerning the operation of the three prisons with the 
                highest incidence of prison rape and the two prisons 
                with the lowest incidence of prison rape in each 
                category of facilities identified under subsection 
                (c)(4). The Panel shall hold a separate hearing 
                regarding the three Federal or State prisons with the 
                highest incidence of prison rape. The purpose of these 
                hearings shall be to collect evidence to aid in the 
                identification of common characteristics of both 
                victims and perpetrators of prison rape, and the 
                identification of common characteristics of prisons and 
                prison systems with a high incidence of prison rape, 
                and the identification of common characteristics of 
                prisons and prison systems that appear to have been 
                successful in deterring prison rape.
                    (B) Testimony at hearings.--
                            (i) Public officials.--In carrying out the 
                        hearings required under subparagraph (A), the 
                        Panel shall request the public testimony of 
                        Federal, State, and local officials (and 
                        organizations that represent such officials), 
                        including the warden or director of each 
                        prison, who bears responsibility for the 
                        prevention, detection, and punishment of prison 
                        rape at each entity, and the head of the prison 
                        system encompassing such prison.
                            (ii) Victims.--The Panel may request the 
                        testimony of prison rape victims, organizations 
                        representing such victims, and other 
                        appropriate individuals and organizations.
                    (C) Subpoenas.--
                            (i) Issuance.--The Panel may issue 
                        subpoenas for the attendance of witnesses and 
                        the production of written or other matter.
                            (ii) Enforcement.--In the case of contumacy 
                        or refusal to obey a subpoena, the Attorney 
                        General may in a Federal court of appropriate 
                        jurisdiction obtain an appropriate order to 
                        enforce the subpoena.
    (c) Reports.--
            (1) In general.--Not later than June 30 of each year, the 
        Attorney General shall submit a report on the activities of the 
        Bureau and the Review Panel, with respect to prison rape, for 
        the preceding calendar year to--
                    (A) Congress; and
                    (B) the Secretary of Health and Human Services.
            (2) Contents.--The report required under paragraph (1) 
        shall include--
                    (A) with respect to the effects of prison rape, 
                statistical, sociological, and psychological data;
                    (B) with respect to the incidence of prison rape--
                            (i) statistical data aggregated at the 
                        Federal, State, prison system, and prison 
                        levels;
                            (ii) a listing of those institutions in the 
                        representative sample, separated into each 
                        category identified under subsection (c)(4) and 
                        ranked according to the incidence of prison 
                        rape in each institution; and
                            (iii) an identification of those 
                        institutions in the representative sample that 
                        appear to have been successful in deterring 
                        prison rape; and
                    (C) a listing of any prisons in the representative 
                sample that did not cooperate with the survey conducted 
                pursuant to section 4.
            (3) Data adjustments.--In preparing the information 
        specified in paragraph (2), the Attorney General shall use 
        established statistical methods to adjust the data as necessary 
        to account for differences among institutions in the 
        representative sample, which are not related to the detection, 
        prevention, reduction and punishment of prison rape, or which 
        are outside the control of the of the State, prison, or prison 
        system, in order to provide an accurate comparison among 
        prisons. Such differences may include the mission, security 
        level, size, and jurisdiction under which the prison operates. 
        For each such adjustment made, the Attorney General shall 
        identify and explain such adjustment in the report.
            (4) Categorization of prisons.--The report shall divide the 
        prisons surveyed into three categories. One category shall be 
        composed of all Federal and State prisons. The other two 
        categories shall be defined by the Attorney General in order to 
        compare similar institutions.
    (d) Contracts and Grants.--In carrying out its duties under this 
section, the Attorney General may--
            (1) provide grants for research through the National 
        Institute of Justice; and
            (2) contract with or provide grants to any other entity the 
        Attorney General deems appropriate.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated $15,000,000 for each of fiscal years 2004 through 2010 to 
carry out this section.

SEC. 5. PRISON RAPE PREVENTION AND PROSECUTION.

    (a) Information and Assistance.--
            (1) National clearinghouse.--There is established within 
        the National Institute of Corrections a national clearinghouse 
        for the provision of information and assistance to Federal, 
        State, and local authorities responsible for the prevention, 
        investigation, and punishment of instances of prison rape.
            (2) Training and education.--The National Institute of 
        Corrections shall conduct periodic training and education 
        programs for Federal, State, and local authorities responsible 
        for the prevention, investigation, and punishment of instances 
        of prison rape.
    (b) Reports.--
            (1) In general.--Not later than September 30 of each year, 
        the National Institute of Corrections shall submit a report to 
        Congress and the Secretary of Health and Human Services. This 
        report shall be available to the Director of the Bureau of 
        Justice Statistics.
            (2) Contents.--The report required under paragraph (1) 
        shall summarize the activities of the Department of Justice 
        regarding prison rape abatement for the preceding calendar 
        year.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated $5,000,000 for each of fiscal years 2004 through 2010 to 
carry out this section.

SEC. 6. GRANTS TO PROTECT INMATES AND SAFEGUARD COMMUNITIES.

    (a) Grants Authorized.--From amounts made available for grants 
under this section, the Attorney General shall make grants to States to 
assist those States in ensuring that budgetary circumstances (such as 
reduced State and local spending on prisons) do not compromise efforts 
to protect inmates (particularly from prison rape) and to safeguard the 
communities to which inmates return. The purpose of grants under this 
section shall be to provide funds for personnel, training, technical 
assistance, data collection, and equipment to prevent and prosecute 
prisoner rape.
    (b) Use of Grant Amounts.--Amounts received by a grantee under this 
section may be used by the grantee, directly or through subgrants, only 
for one or more of the following activities:
            (1) Protecting inmates.--Protecting inmates by--
                    (A) undertaking efforts to more effectively prevent 
                prison rape;
                    (B) investigating incidents of prison rape; or
                    (C) prosecuting incidents of prison rape.
            (2) Safeguarding communities.--Safeguarding communities 
        by--
                    (A) making available, to officials of State and 
                local governments who are considering reductions to 
                prison budgets, training and technical assistance in 
                successful methods for moderating the growth of prison 
                populations without compromising public safety, 
                including successful methods used by other 
                jurisdictions;
                    (B) developing and utilizing analyses of prison 
                populations and risk assessment instruments that will 
                improve State and local governments' understanding of 
                risks to the community regarding release of inmates in 
                the prison population;
                    (C) preparing maps demonstrating the concentration, 
                on a community-by-community basis, of inmates who have 
                been released, to facilitate the efficient and 
                effective--
                            (i) deployment of law enforcement resources 
                        (including probation and parole resources); and
                            (ii) delivery of services (such as job 
                        training and substance abuse treatment) to 
                        those released inmates;
                    (D) promoting collaborative efforts, among 
                officials of State and local governments and leaders of 
                appropriate communities, to understand and address the 
                effects on a community of the presence of a 
                disproportionate number of released inmates in that 
                community; or
                    (E) developing policies and programs that reduce 
                spending on prisons by effectively reducing rates of 
                parole and probation revocation without compromising 
                public safety.
    (c) Grant Requirements.--
            (1) Period.--A grant under this section shall be made for a 
        period of not more than 2 years.
            (2) Maximum.--The amount of a grant under this section may 
        not exceed $1,000,000.
            (3) Matching.--The Federal share of a grant under this 
        section may not exceed 50 percent of the total costs of the 
        project described in the application submitted under subsection 
        (d) for the fiscal year for which the grant was made under this 
        section.
    (d) Applications.--
            (1) In general.--To request a grant under this section, the 
        chief executive of a State shall submit an application to the 
        Attorney General at such time, in such manner, and accompanied 
        by such information as the Attorney General may require.
            (2) Contents.--Each application required by paragraph (1) 
        shall--
                    (A) include the certification of the chief 
                executive that the State receiving such grant--
                            (i) has adopted all national prison rape 
                        standards that, as of the date on which the 
                        application was submitted, have been 
                        promulgated under this Act; and
                            (ii) will consider adopting all national 
                        prison rape standards that are promulgated 
                        under this Act after such date;
                    (B) specify with particularity the preventative, 
                prosecutorial, or administrative activities to be 
                undertaken by the State with the amounts received under 
                the grant; and
                    (C) in the case of an application for a grant for 
                one or more activities specified in paragraph (2) of 
                subsection (b)--
                            (i) review the extent of the budgetary 
                        circumstances affecting the State generally and 
                        describe how those circumstances relate to the 
                        State's prisons;
                            (ii) describe the rate of growth of the 
                        State's prison population over the preceding 10 
                        years and explain why the State may have 
                        difficulty sustaining that rate of growth; and
                            (iii) explain the extent to which officials 
                        (including law enforcement officials) of State 
                        and local governments and victims of crime will 
                        be consulted regarding decisions whether, or 
                        how, to moderate the growth of the State's 
                        prison population.
    (e) Reports by grantee.--
            (1) In general.--The Attorney General shall require each 
        grantee to submit, not later than 90 days after the end of the 
        period for which the grant was made under this section, a 
        report on the activities carried out under the grant. The 
        report shall identify and describe those activities and shall 
        contain an evaluation of the effect of those activities on--
                    (A) the number of incidents of prison rape, and the 
                grantee's response to such incidents; and
                    (B) the safety of the prisons, and the safety of 
                the communities in which released inmates are present.
    (2) Dissemination.--The Attorney General shall ensure that each 
report submitted under paragraph (1) is made available under the 
national clearinghouse established under section 5.
    (f) State Defined.--In this section, the term ``State'' includes 
the District of Columbia, the Commonwealth of Puerto Rico, and any 
other territory or possession of the United States.
    (g) Authorization of Appropriations.--
            (1) In general.--There are authorized to be appropriated 
        for grants under this section $40,000,000 for each of fiscal 
        years 2004 through 2010.
            (2) Limitation.--Of amounts made available for grants under 
        this section, not less than 50 percent shall be available only 
        for activities specified in paragraph (1) of subsection (b).

SEC. 7. NATIONAL PRISON RAPE REDUCTION COMMISSION.

    (a) Establishment.--There is established a commission to be known 
as the National Prison Rape Reduction Commission (in this section 
referred to as the ``Commission'').
    (b) Members.--
            (1) In general.--The Commission shall be composed of 9 
        members, of whom--
                    (A) 3 shall be appointed by the President;
                    (B) 2 shall be appointed by the Speaker of the 
                House of Representatives, unless the Speaker is of the 
                same party as the President, in which case 1 shall be 
                appointed by the Speaker of the House of 
                Representatives and 1 shall be appointed by the 
                minority leader of the House of Representatives;
                    (C) 1 shall be appointed by the minority leader of 
                the House of Representatives (in addition to any 
                appointment made under subparagraph (B));
                    (D) 2 shall be appointed by the majority leader of 
                the Senate, unless the majority leader is of the same 
                party as the President, in which case 1 shall be 
                appointed by the majority leader of the Senate and 1 
                shall be appointed by the minority leader of the 
                Senate; and
                    (E) 1 member appointed by the minority leader of 
                the Senate (in addition to any appointment made under 
                subparagraph (D)).
            (2) Persons eligible.--Each member of the Commission shall 
        be an individual who has knowledge or expertise in matters to 
        be studied by the Commission.
            (3) Consultation required.--The President, the Speaker and 
        minority leader of the House of Representatives, and the 
        majority leader and minority leader of the Senate shall consult 
        with one another prior to the appointment of the members of the 
        Commission to achieve, to the maximum extent possible, fair and 
        equitable representation of various points of view with respect 
        to the matters to be studied by the Commission.
            (4) Term.--Each member shall be appointed for the life of 
        the Commission.
            (5) Time for initial appointments.--The appointment of the 
        members shall be made not later than 60 days after the date of 
        enactment of this Act.
            (6) Vacancies.--A vacancy in the Commission shall be filled 
        in the manner in which the original appointment was made, and 
        shall be made not later than 60 days after the date on which 
        the vacancy occurred.
    (c) Operation.--
            (1) Chairperson.--Not later than 15 days after appointments 
        of all the members are made, the President shall appoint a 
        chairperson for the Commission from among its members.
            (2) Meetings.--The Commission shall meet at the call of the 
        chairperson. The initial meeting of the Commission shall take 
        place not later than 30 days after the initial appointment of 
        the members is completed.
            (3) Quorum.--A majority of the members of the Commission 
        shall constitute a quorum to conduct business, but the 
        Commission may establish a lesser quorum for conducting 
        hearings scheduled by the Commission.
            (4) Rules.--The Commission may establish by majority vote 
        any other rules for the conduct of Commission business, if such 
        rules are not inconsistent with this Act or other applicable 
        law.
    (d) Comprehensive Study of the Impacts of Prison Rape.--
            (1) In general.--The Commission shall carry out a 
        comprehensive legal and factual study of the penalogical, 
        physical, mental, medical, social, and economic impacts of 
        prison rape in the United States on--
                    (A) Federal, State, and local governments; and
                    (B) communities and social institutions generally, 
                including individuals, families, and businesses within 
                such communities and social institutions.
            (2) Matters included.--The study under paragraph (1) shall 
        include--
                    (A) a review of existing Federal, State, and local 
                government policies and practices with respect to the 
                prevention, detection, and punishment of prison rape;
                    (B) an assessment of the relationship between 
                prison rape and prison conditions, and of existing 
                monitoring, regulatory, and enforcement practices that 
                are intended to address any such relationship;
                    (C) an assessment of pathological or social causes 
                of prison rape;
                    (D) an assessment of the extent to which the 
                incidence of prison rape contributes to the spread of 
                sexually transmitted diseases and to the transmission 
                of HIV;
                    (E) an assessment of the characteristics of inmates 
                most likely to commit prison rape and the effectiveness 
                of various types of treatment or programs to reduce 
                such likelihood;
                    (F) an assessment of the characteristics of inmates 
                most likely to be victims of prison rape and the 
                effectiveness of various types of treatment or programs 
                to reduce such likelihood;
                    (G) an assessment of the impacts of prison rape on 
                individuals, families, social institutions and the 
                economy generally, including an assessment of the 
                extent to which the incidence of prison rape 
                contributes to recidivism and to increased incidence of 
                sexual assault;
                    (H) an examination of the feasibility and cost of 
                conducting surveillance, undercover activities, or 
                both, to reduce the incidence of prison rape;
                    (I) an assessment of the safety and security of 
                prison facilities and the relationship of prison 
                facility construction and design to the incidence of 
                prison rape;
                    (J) an assessment of the feasibility and cost of 
                any particular proposals for prison reform;
                    (K) an identification of the need for additional 
                scientific and social science research on the 
                prevalence of prison rape in Federal, State, and local 
                prisons;
                    (L) an assessment of the general relationship 
                between prison rape and prison violence;
                    (M) an assessment of the relationship between 
                prison rape and levels of training, supervision, and 
                discipline of prison staff; and
                    (N) an assessment of existing Federal and State 
                systems for reporting incidents of prison rape, 
                including an assessment of whether existing systems 
                provide an adequate assurance of confidentiality, 
                impartiality and the absence of reprisal.
            (3) Report.--
                    (A) Distribution.--Not later than 2 years after the 
                date of the initial meeting of the Commission, the 
                Commission shall submit a report on the study carried 
                out under this subsection to--
                            (i) the President;
                            (ii) the Congress;
                            (iii) the Attorney General;
                            (iv) the Secretary of Health and Human 
                        Services;
                            (v) the Director of the Federal Bureau of 
                        Prisons;
                            (vi) the chief executive of each State; and
                            (vii) the head of the department of 
                        corrections of each State.
                    (B) Contents.--The report under subparagraph (A) 
                shall include--
                            (i) the findings and conclusions of the 
                        Commission;
                            (ii) recommended national standards for 
                        reducing prison rape;
                            (iii) recommended protocols for preserving 
                        evidence and treating victims of prison rape; 
                        and
                            (iv) a summary of the materials relied on 
                        by the Commission in the preparation of the 
                        report.
    (e) Recommendations.--
            (1) In general.--In conjunction with the report submitted 
        under subsection (d)(3), the Commission shall provide the 
        Attorney General and the Secretary of Health and Human Services 
        with recommended national standards for enhancing the 
        detection, prevention, reduction, and punishment of prison 
        rape.
            (2) Matters included.--The information provided under 
        paragraph (1) shall include recommended national standards 
        relating to--
                    (A) the classification and assignment of prisoners, 
                using proven standardized instruments and protocols, in 
                a manner that limits the occurrence of prison rape;
                    (B) the investigation and resolution of rape 
                complaints by responsible prison authorities, local and 
                State police, and Federal and State prosecution 
                authorities;
                    (C) the preservation of physical and testimonial 
                evidence for use in an investigation of the 
                circumstances relating to the rape;
                    (D) acute-term trauma care for rape victims, 
                including standards relating to--
                            (i) the manner and extent of physical 
                        examination and treatment to be provided to any 
                        rape victim; and
                            (ii) the manner and extent of any 
                        psychological examination, psychiatric care, 
                        medication, and mental health counseling to be 
                        provided to any rape victim;
                    (E) referrals for long-term continuity of care for 
                rape victims;
                    (F) educational and medical testing measures for 
                reducing the incidence of HIV transmission due to 
                prison rape;
                    (G) post-rape prophylactic medical measures for 
                reducing the incidence of transmission of sexual 
                diseases;
                    (H) the training of correctional staff sufficient 
                to ensure that they understand and appreciate the 
                significance of prison rape and the necessity of its 
                eradication;
                    (I) the timely and comprehensive investigation of 
                staff sexual misconduct involving rape or other sexual 
                assault on inmates;
                    (J) ensuring the confidentiality of prison rape 
                complaints and protecting inmates who make complaints 
                of prison rape;
                    (K) creating a system for reporting incidents of 
                prison rape that will ensure the confidentiality of 
                prison rape complaints, protect inmates who make prison 
                rape complaints from retaliation, and assure the 
                impartial resolution of prison rape complaints;
                    (L) data collection and reporting of--
                            (i) prison rape;
                            (ii) prison staff sexual misconduct; and
                            (iii) the resolution of prison rape 
                        complaints by prison officials and Federal, 
                        State, and local investigation and prosecution 
                        authorities; and
                    (M) such other matters as may reasonably be related 
                to the detection, prevention, reduction, and punishment 
                of prison rape.
            (3) Limitation.--The Commission shall not propose a 
        recommended standard that would impose substantial additional 
        costs compared to the costs presently expended by Federal, 
        State, and local prison authorities.
    (f) Consultation With Accreditation Organizations.--In developing 
recommended national standards for enhancing the detection, prevention, 
reduction, and punishment of prison rape, the Commission shall consider 
any standards that have already been developed, or are being developed 
simultaneously to the deliberations of the Commission. The Commission 
shall consult with accreditation organizations responsible for the 
accreditation of Federal, State, local or private prisons, that have 
developed or are currently developing standards related to prison rape. 
The Commission will also consult with national associations 
representing the corrections profession that have developed or are 
currently developing standards related to prison rape.
    (g) Hearings.--
            (1) In general.--The Commission shall hold public hearings. 
        The Commission may hold such hearings, sit and act at such 
        times and places, take such testimony, and receive such 
        evidence as the Commission considers advisable to carry out its 
        duties under this section.
            (2) Witness expenses.--Witnesses requested to appear before 
        the Commission shall be paid the same fees as are paid to 
        witnesses under section 1821 of title 28, United State Code. 
        The per diem and mileage allowances for witnesses shall be paid 
        from funds appropriated to the Commission.
    (h) Information From Federal or State Agencies.--The Commission may 
secure directly from any Federal department or agency such information 
as the Commission considers necessary to carry out its duties under 
this section. The Commission may request the head of any State or local 
department or agency to furnish such information to the Commission.
    (i) Personnel Matters.--
            (1) Travel expenses.--The members of the Commission shall 
        be allowed travel expenses, including per diem in lieu of 
        subsistence, at rates authorized for employees of agencies 
        under subchapter I of chapter 57 of title 5, United States 
        Code, while away from their homes or regular places of business 
        in the performance of service for the Commission.
            (2) Detail of federal employees.--With the affirmative vote 
        of \2/3\ of the Commission, any Federal Government employee, 
        with the approval of the head of the appropriate Federal 
        agency, may be detailed to the Commission without 
        reimbursement, and such detail shall be without interruption or 
        loss of civil service status, benefits, or privileges.
            (3) Procurement of temporary and intermittent services.--
        Upon the request of the Commission, the Attorney General shall 
        provide reasonable and appropriate office space, supplies, and 
        administrative assistance.
    (j) Contracts for Research.--
            (1) National institute of justice.--With a \2/3\ 
        affirmative vote, the Commission may select nongovernmental 
        researchers and experts to assist the Commission in carrying 
        out its duties under this Act. The National Institute of 
        Justice shall contract with the researchers and experts 
        selected by the Commission to provide funding in exchange for 
        their services.
            (2) Other organizations.--Nothing in this subsection shall 
        be construed to limit the ability of the Commission to enter 
        into contracts with other entities or organizations for 
        research necessary to carry out the duties of the Commission 
        under this section.
    (k) Subpoenas.--
            (1) Issuance.--The Commission may issue subpoenas for the 
        attendance of witnesses and the production of written or other 
        matter.
            (2) Enforcement.--In the case of contumacy or refusal to 
        obey a subpoena, the Attorney General may in a Federal court of 
        appropriate jurisdiction obtain an appropriate order to enforce 
        the subpoena.
            (3) Confidentiality of documentary evidence.--Documents 
        provided to the Commission pursuant to a subpoena issued under 
        this subsection shall not be released publicly without the 
        affirmative vote of \2/3\ of the Commission.
    (l) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.
    (m) Termination.--The Commission shall terminate on the date that 
is 60 days after the date on which the Commission submits the reports 
required by this section.
    (n) Exemption.--The Commission shall be exempt from the Federal 
Advisory Committee Act.

SEC. 8. ADOPTION AND EFFECT OF NATIONAL STANDARDS.

    (a) Publication of Proposed Standards.--
            (1) Final rule.--Not later than 1 year after receiving the 
        report specified in section 7(d)(3), the Attorney General shall 
        publish a final rule adopting national standards for the 
        detection, prevention, reduction, and punishment of prison 
        rape.
            (2) Independent judgment.--The standards referred to in 
        paragraph (1) shall be based upon the independent judgment of 
        the Attorney General, after giving due consideration to the 
        recommended national standards provided by the Commission under 
        section 7(e), and being informed by such data, opinions, and 
        proposals that the Attorney General determines to be 
        appropriate to consider.
            (3) Limitation.--The Attorney General shall not establish a 
        national standard under this section that would impose 
        substantial additional costs compared to the costs presently 
        expended by Federal, State, and local prison authorities. The 
        Attorney General may, however, provide a list of improvements 
        for consideration by correctional facilities.
            (4) Transmission to states.--Within 90 days of publishing 
        the final rule under paragraph (1), the Attorney General shall 
        transmit the national standards adopted under such paragraph to 
        the chief executive of each State, the head of the department 
        of corrections of each State, and to the appropriate 
        authorities in those units of local government who oversee 
        operation in one or more prisons.
    (b) Applicability to Federal Bureau of Prisons.--The national 
standards referred to in subsection (a) shall apply to the Federal 
Bureau of Prisons immediately upon adoption of the final rule under 
subsection (a)(4).
    (c) Eligibility for Federal Funds.--
            (1) Covered programs.--
                    (A) In general.--For purposes of this subsection, a 
                grant program is covered by this subsection if, and 
                only if--
                            (i) the program is carried out by or under 
                        the authority of the Attorney General; and
                            (ii) the program may provide amounts to 
                        States for prison purposes.
                    (B) List.--For each fiscal year, the Attorney 
                General shall prepare a list identifying each program 
                that meets the criteria of subparagraph (A) and provide 
                that list to each State.
            (2) Adoption of national standards.--For each fiscal year, 
        any amount that a State would otherwise receive for prison 
        purposes for that fiscal year under a grant program covered by 
        this subsection shall be reduced by 5 percent, unless the chief 
        executive of the State submits to the Attorney General--
                    (A) a certification that the State has adopted, and 
                is in full compliance with, the national standards 
                described in section 8(a); or
                    (B) an assurance that not less than 5 percent of 
                such amount shall be used only for the purpose of 
                enabling the State to adopt, and achieve full 
                compliance with, those national standards, so as to 
                ensure that a certification under subparagraph (A) may 
                be submitted in future years.
            (3) Report on noncompliance.--Not later than September 30 
        of each year, the Attorney General shall publish a report 
        listing each grantee that is not in compliance with the 
        national standards adopted pursuant to section 8(a).
            (4) Cooperation with survey.--For each fiscal year, any 
        amount that a State receives for that fiscal year under a grant 
        program covered by this subsection shall not be used for prison 
        purposes (and shall be returned to the grant program if no 
        other authorized use is available), unless the chief executive 
        of the State submits to the Attorney General a certification 
        that neither the State, nor any political subdivision or unit 
        of local government within the State, is listed in a report 
        issued by the Attorney General pursuant to section 4(c)(2)(C).
            (5) Redistribution of amounts.--Amounts under a grant 
        program not granted by reason of a reduction under paragraph 
        (2), or returned by reason of the prohibition in paragraph (4), 
        shall be granted to one or more entities not subject to such 
        reduction or such prohibition, subject to the other laws 
        governing that program.
            (6) Implementation.--The Attorney General shall establish 
        procedures to implement this subsection, including procedures 
        for effectively applying this subsection to discretionary grant 
        programs.
            (7) Effective date.--
                    (A) Requirement of adoption of standards.--The 
                first grants to which paragraph (2) applies are grants 
                for the second fiscal year beginning after the date on 
                which the national standards under section 8(a) are 
                finalized.
                    (B) Requirement for cooperation.--The first grants 
                to which paragraph (4) applies are grants for the 
                fiscal year beginning after the date of the enactment 
                of this Act.

SEC. 9. REQUIREMENT THAT ACCREDITATION ORGANIZATIONS ADOPT 
              ACCREDITATION STANDARDS.

    (a) Eligibility for Federal Grants.--Notwithstanding any other 
provision of law, an organization responsible for the accreditation of 
Federal, State, local, or private prisons, jails, or other penal 
facilities may not receive any new Federal grants during any period in 
which such organization fails to meet any of the requirements of 
subsection (b).
    (b) Requirements.--To be eligible to receive Federal grants, an 
accreditation organization referred to in subsection (a) must meet the 
following requirements:
            (1) At all times after 90 days after the date of enactment 
        of this Act, the organization shall have in effect, for each 
        facility that it is responsible for accrediting, accreditation 
        standards for the detection, prevention, reduction, and 
        punishment of prison rape.
            (2) At all times after 1 year after the date of the 
        adoption of the final rule under section 8(a)(4), the 
        organization shall, in addition to any other such standards 
        that it may promulgate relevant to the detection, prevention, 
        reduction, and punishment of prison rape, adopt accreditation 
        standards consistent with the national standards adopted 
        pursuant to such final rule.

SEC. 10. DEFINITIONS.

    In this Act, the following definitions shall apply:
            (1) Carnal knowledge.--The term ``carnal knowledge'' means 
        contact between the penis and the vulva or the penis and the 
        anus, including penetration of any sort, however slight.
            (2) Inmate.--The term ``inmate'' means any person 
        incarcerated or detained in any facility who is accused of, 
        convicted of, sentenced for, or adjudicated delinquent for, 
        violations of criminal law or the terms and conditions of 
        parole, probation, pretrial release, or diversionary program.
            (3) Jail.--The term ``jail'' means a confinement facility 
        of a Federal, State, or local law enforcement agency to hold--
                    (A) persons pending adjudication of criminal 
                charges; or
                    (B) persons committed to confinement after 
                adjudication of criminal charges for sentences of 1 
                year or less.
            (4) HIV.--The term ``HIV'' means the human immunodeficiency 
        virus.
            (5) Oral sodomy.--The term ``oral sodomy'' means contact 
        between the mouth and the penis, the mouth and the vulva, or 
        the mouth and the anus.
            (6) Police lockup.--The term ``police lockup'' means a 
        temporary holding facility of a Federal, State, or local law 
        enforcement agency to hold--
                    (A) inmates pending bail or transport to jail;
                    (B) inebriates until ready for release; or
                    (C) juveniles pending parental custody or shelter 
                placement.
            (7) Prison.--The term ``prison'' means any confinement 
        facility of a Federal, State, or local government, whether 
        administered by such government or by a private organization on 
        behalf of such government, and includes--
                    (A) any local jail or police lockup; and
                    (B) any juvenile facility used for the custody or 
                care of juvenile inmates.
            (8) Prison rape.--The term ``prison rape'' includes the 
        rape of an inmate in the actual or constructive control of 
        prison officials.
            (9) Rape.--The term ``rape'' means--
                    (A) the carnal knowledge, oral sodomy, sexual 
                assault with an object, or sexual fondling of a person, 
                forcibly or against that person's will;
                    (B) the carnal knowledge, oral sodomy, sexual 
                assault with an object, or sexual fondling of a person 
                not forcibly or against the person's will, where the 
                victim is incapable of giving consent because of his or 
                her youth or his or her temporary or permanent mental 
                or physical incapacity; or
                    (C) the carnal knowledge, oral sodomy, sexual 
                assault with an object, or sexual fondling of a person 
                achieved through the exploitation of the fear or threat 
                of physical violence or bodily injury.
            (10) Sexual assault with an object.--The term ``sexual 
        assault with an object'' means the use of any hand, finger, 
        object, or other instrument to penetrate, however slightly, the 
        genital or anal opening of the body of another person.
            (11) Sexual fondling.--The term ``sexual fondling'' means 
        the touching of the private body parts of another person 
        (including the genitalia, anus, groin, breast, inner thigh, or 
        buttocks) for the purpose of sexual gratification.
            (12) Exclusions.--The terms and conditions described in 
        paragraphs (9) and (10) shall not apply to--
                    (A) custodial or medical personnel gathering 
                physical evidence, or engaged in other legitimate 
                medical treatment, in the course of investigating 
                prison rape;
                    (B) the use of a health care provider's hands or 
                fingers or the use of medical devices in the course of 
                appropriate medical treatment unrelated to prison rape; 
                or
                    (C) the use of a health care provider's hands or 
                fingers and the use of instruments to perform body 
                cavity searches in order to maintain security and 
                safety within the prison or detention facility, 
                provided that the search is conducted in a manner 
                consistent with constitutional requirements.

            Passed the Senate July 21, 2003.

            Attest:

                                                             Secretary.
108th CONGRESS

  1st Session

                                S. 1435

_______________________________________________________________________

                                 AN ACT

To provide for the analysis of the incidence and effects of prison rape 
 in Federal, State, and local institutions and to provide information, 
  resources, recommendations, and funding to protect individuals from 
                              prison rape.