[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Rules and Regulations]
[Pages 37106-37232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12427]
[[Page 37105]]
Vol. 77
Wednesday,
No. 119
June 20, 2012
Part II
Department of Justice
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28 CFR Part 115
National Standards To Prevent, Detect, and Respond to Prison Rape;
Final Rule
Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 /
Rules and Regulations
[[Page 37106]]
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DEPARTMENT OF JUSTICE
28 CFR Part 115
[Docket No. OAG-131; AG Order No. 3331-2012]
RIN 1105-AB34
National Standards To Prevent, Detect, and Respond to Prison Rape
AGENCY: Department of Justice.
ACTION: Final rule; request for comment on specific issue.
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SUMMARY: The Department of Justice (Department) is issuing a final rule
adopting national standards to prevent, detect, and respond to prison
rape, as required by the Prison Rape Elimination Act of 2003 (PREA). In
addition, the Department is requesting comment on one issue relating to
staffing in juvenile facilities. Further discussion of the final rule
is found in the Executive Summary.
DATES: This rule is effective August 20, 2012. Comments on the juvenile
staffing ratios set forth in Sec. 115.313 must be submitted
electronically or postmarked no later than 11:59 p.m. on August 20,
2012.
ADDRESSES: To ensure proper handling of solicited additional comments,
please reference ``Docket No. OAG-131'' on all written and electronic
correspondence. Written comments being sent through regular or express
mail should be sent to Robert Hinchman, Senior Counsel, Office of Legal
Policy, Department of Justice, 950 Pennsylvania Avenue NW., Room 4252,
Washington, DC 20530. Comments may also be sent electronically through
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 through regular or express mail will be
considered timely if postmarked on or before the day the comment period
closes.
Posting of Solicited Additional 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 paragraph.
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. Executive Summary
A. Overview
The goal of this rulemaking is to prevent, detect, and respond to
sexual abuse in confinement facilities, pursuant to the Prison Rape
Elimination Act of 2003. For too long, incidents of sexual abuse
against incarcerated persons have not been taken as seriously as sexual
abuse outside prison walls. In popular culture, prison rape is often
the subject of jokes; in public discourse, it has been at times
dismissed by some as an inevitable--or even deserved--consequence of
criminality.
But sexual abuse is never a laughing matter, nor is it punishment
for a crime. Rather, it is a crime, and it is no more tolerable when
its victims have committed crimes of their own. Prison rape can have
severe consequences for victims, for the security of correctional
facilities, and for the safety and well-being of the communities to
which nearly all incarcerated persons will eventually return.
In passing PREA, Congress noted that the nation was ``largely
unaware of the epidemic character of prison rape and the day-to-day
horror experienced by victimized inmates.'' 42 U.S.C. 15601(12). The
legislation established a National Prison Rape Elimination Commission
(NPREC) to ``carry out a comprehensive legal and factual study of the
penalogical [sic], physical, mental, medical, social, and economic
impacts of prison rape in the United States'' and to recommend to the
Attorney General ``national standards for enhancing the detection,
prevention, reduction, and punishment of prison rape.'' 42 U.S.C.
15606(d)(1), (e)(1). The statute defines ``prison'' as ``any
confinement facility,'' including jails, police lockups, and juvenile
facilities, and defines ``rape'' to include a broad range of unwanted
sexual activity. 42 U.S.C. 15609(7) & (9). After over four years of
work, the NPREC released its recommended national standards in June
2009 and subsequently disbanded, pursuant to the statute.
The statute directs the Attorney General to publish a final rule
adopting ``national standards for the detection, prevention, reduction,
and punishment of prison rape * * * based upon the independent judgment
of the Attorney General, after giving due consideration to the
recommended national standards provided by the Commission * * * and
being informed by such data, opinions, and proposals that the Attorney
General determines to be appropriate to consider.'' 42 U.S.C.
15607(a)(1)-(2). However, the standards may not ``impose substantial
additional costs
[[Page 37107]]
compared to the costs presently expended by Federal, State, and local
prison authorities.'' 42 U.S.C. 15607(a)(3).
The standards are to be immediately binding on the Federal Bureau
of Prisons. 42 U.S.C. 15607(b). A State whose Governor does not certify
full compliance with the standards is subject to the loss of five
percent of any Department of Justice grant funds that it would
otherwise receive for prison purposes, unless the Governor submits an
assurance that such five percent will be used only for the purpose of
enabling the State to achieve and certify full compliance with the
standards in future years. 42 U.S.C. 15607(c). The final rule specifies
that the Governor's certification applies to all facilities in the
State under the operational control of the State's executive branch,
including facilities operated by private entities on behalf of the
State's executive branch.
In addition, any correctional accreditation organization that seeks
Federal grants must adopt accreditation standards regarding sexual
abuse that are consistent with the national standards in this final
rule. 42 U.S.C. 15608.
In drafting the final rule, the Department balanced a number of
competing considerations. In the current fiscal climate, governments at
all levels face budgetary constraints. The Department has aimed to
craft standards that will yield the maximum desired effect while
minimizing the financial impact on jurisdictions. In addition,
recognizing the unique characteristics of individual facilities,
agencies, and inmate populations, the Department has endeavored to
afford discretion and flexibility to agencies to the extent feasible.
The success of the PREA standards in combating sexual abuse in
confinement facilities will depend on effective agency and facility
leadership, and the development of an agency culture that prioritizes
efforts to combat sexual abuse. Effective leadership and culture
cannot, of course, be directly mandated by rule. Yet implementation of
the standards will help foster a change in culture by
institutionalizing policies and practices that bring these concerns to
the fore.
Notably, the standards are generally not outcome-based, but rather
focus on policies and procedures. While performance-based standards
generally give regulated parties the flexibility to achieve regulatory
objectives in the most cost-effective way, it is difficult to employ
such standards effectively to combat sexual abuse in confinement
facilities, where significant barriers exist to the reporting and
investigating of such incidents. An increase in incidents reported to
facility administrators might reflect increased abuse, or it might just
reflect inmates' increased willingness to report abuse, due to the
facility's success at assuring inmates that reporting will yield
positive outcomes and not result in retaliation. Likewise, an increase
in substantiated incidents could mean either that a facility is failing
to protect inmates, or else simply that it has improved its
effectiveness at investigating allegations. For these reasons, the
standards generally aim to inculcate policies and procedures that will
reduce and ameliorate bad outcomes, recognizing that one possible
consequence of improved performance is that evidence of more incidents
will come to light.
The standards are not intended to define the contours of
constitutionally required conditions of confinement. Accordingly,
compliance with the standards does not establish a safe harbor with
regard to otherwise constitutionally deficient conditions involving
inmate sexual abuse. Furthermore, while the standards aim to include a
variety of best practices, they do not incorporate every promising
avenue of combating sexual abuse, due to the need to adopt national
standards applicable to a wide range of facilities, while taking costs
into consideration. The standards consist of policies and practices
that are attainable by all affected agencies, recognizing that agencies
can, and some currently do, exceed the standards in a variety of ways.
The Department applauds such efforts, encourages agencies to adopt or
continue best practices that exceed the standards, and intends to
support further the identification and adoption of innovative methods
to protect inmates from harm. As described in the Background section,
the Department is continuing its efforts to fund training, technical
assistance, and other support for agencies, including through a
National Resource Center for the Elimination of Prison Rape.
Because the purposes and operations of various types of confinement
facilities differ significantly, there are four distinct sets of
standards, each corresponding to a different type of facility: Adult
prisons and jails (Sec. Sec. 115.11-115.93); lockups (Sec. Sec.
115.111-115.193); community confinement facilities (Sec. Sec. 115.211-
115.293); and juvenile facilities (Sec. Sec. 115.311-115.393). The
standards also include unified sections on definitions (Sec. Sec.
115.5-115.6) and on audits and State compliance (Sec. Sec. 115.401-
115.405, 115.501).\1\
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\1\ The standards themselves refer to persons confined in
prisons and jails as ``inmates,'' persons confined in lockups as
``detainees,'' and persons confined in juvenile facilities or
community confinement facilities as ``residents.'' For simplicity,
however, the discussion and explanation of the standards refer
collectively to all such persons as ``inmates'' except where
specifically discussing lockups, juvenile facilities, or community
confinement facilities.
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The standards contained in this final rule apply to facilities
operated by, or on behalf of, State and local governments and the
Department of Justice. However, in contrast to the proposed rule, the
final rule concludes that PREA encompasses all Federal confinement
facilities. Given their statutory authorities to regulate conditions of
detention, other Federal departments with confinement facilities
(including but not limited to the Department of Homeland Security) will
work with the Attorney General to issue rules or procedures that will
satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
B. Summary of Major Provisions
This summary of the major provisions of the standards does not
include every single aspect of the standards, nor does it capture all
distinctions drawn in the standards on the basis of facility type or
size. Agencies that are covered by each set of standards should read
them in full rather than rely exclusively on this summary.
General Prevention Planning. To ensure that preventing sexual abuse
receives appropriate attention, the standards require that each agency
and facility designate a PREA point person with sufficient time and
authority to coordinate compliance efforts. Facilities may not hire or
promote persons who have committed sexual abuse in an institutional
setting or who have been adjudicated to have done so in the community,
and must perform background checks on prospective and current
employees, unless a system is in place to capture such information for
current employees. A public agency that contracts for the confinement
of its inmates with outside entities must include in any new contracts
or contract renewals the entity's obligation to adopt and comply with
the PREA standards.
Supervision and Monitoring. The standards require each facility to
develop and document a staffing plan, taking into account a set of
specified factors, that provides for adequate levels of staffing, and,
where applicable, video monitoring, to protect inmates against sexual
abuse. The staffing standard further requires all agencies to annually
[[Page 37108]]
assess, determine, and document whether adjustments are needed to the
staffing levels or deployment of monitoring technologies.
Due to the great variation across facilities in terms of size,
physical layout, and composition of the inmate population, it would be
impractical to require a specified level of staffing. Likewise,
mandating a subjective standard such as ``adequate staffing'' would be
extremely difficult to measure. Instead, the final standard requires
that prisons and jails use their best efforts to comply with the
staffing plan on a regular basis and document and justify any
deviations. Given that staffing increases often depend on budget
approval from an external legislative or other governmental entity,
this revision is designed to support proper staffing without
discouraging agencies from attempting to comply with the PREA standards
due to financial concerns.
The ``best efforts'' language encourages agencies to compose the
most appropriate staffing plan for each facility without incentivizing
agencies to set the bar artificially low in order to avoid non-
compliance. But if the facility's plan is plainly deficient on its
face, the facility is not in compliance with this standard even if it
adheres to its plan.
In addition, the standards contained in the final rule require that
supervisors conduct and document unannounced rounds to identify and
deter staff sexual abuse and sexual harassment.
Staffing of Juvenile Facilities. The standards set minimum staffing
levels for certain juvenile facilities. As discussed in greater detail
in the appropriate section below, the Department seeks additional
comment on this aspect of the standards, and may make changes if
warranted in light of public comments received. Specifically, the
standards require secure juvenile facilities--i.e., those that do not
allow residents access to the community--to maintain minimum security
staff ratios of 1:8 during resident waking hours, and 1:16 during
resident sleeping hours, except during limited and discrete exigent
circumstances; deviations from the staffing plan in such circumstances
must be documented. Because increasing staffing levels takes time and
money, this requirement does not go into effect until October 2017
except for facilities that are already obligated by law, regulation, or
judicial consent decree to maintain at least 1:8 and 1:16 ratios.
Juveniles in Adult Facilities. The final rule, unlike the proposed
rule and the NPREC's recommended standards, contains a standard that
governs the placement of juveniles in adult facilities. The standard
applies only to persons under the age of 18 who are under adult court
supervision and incarcerated or detained in a prison, jail, or lockup.
Such persons are, for the purposes of this standard, referred to as
``youthful inmates'' (or, in lockups, ``youthful detainees''). By
contrast, youth in the juvenile justice system are already protected by
the Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C.
5601 et seq., which provides formula grants to States conditioned on
(subject to minimal exceptions) separating juveniles from adults in
secure facilities and removing juveniles from adult jails and lockups.
This standard imposes three requirements upon the placement of
youthful inmates in prisons or jails. First, no inmate under 18 may be
placed in a housing unit where contact will occur with adult inmates in
a common space, shower area, or sleeping quarters. Second, outside of
housing units, agencies must either maintain ``sight and sound
separation''--i.e., preventing adult inmates from seeing or
communicating with youth--or provide direct staff supervision when the
two are together. Third, agencies must make their best efforts to avoid
placing youthful inmates in isolation to comply with this provision
and, absent exigent circumstances, must afford them daily large-muscle
exercise and any legally required special education services, and must
provide them access to other programs and work opportunities to the
extent possible. With regards to lockups, the standard requires that
juveniles and youthful detainees be held separately from adult inmates.
While some commenters asserted that, in addition to increasing risk
of victimization, confining youth in adult facilities impedes access to
age-appropriate programming and services and may actually increase
recidivism, the Department is cognizant that its mandate in
promulgating these standards extends only to preventing, detecting, and
responding to sexual abuse in confinement facilities. In addition,
imposing a general prohibition on the placement of youth in adult
facilities, or disallowing such placements unless a court finds that
the youth has been violent or disruptive in a juvenile facility, would
necessarily require a fundamental restructuring of existing State laws
that permit or require such placement. Given the current state of
knowledge regarding youth in adult facilities, and the availability of
more narrowly tailored approaches to protecting youth, the Department
has decided not to impose a complete ban at this time through the PREA
standards. The Department has supported, however, congressional efforts
to amend the JJDPA to extend its jail removal requirements to apply to
youth under adult criminal court jurisdiction awaiting trial, unless a
court specifically finds that it is in the interest of justice to
incarcerate the youth in an adult facility.
Cross-Gender Searches and Viewing. In a change from the proposed
standards, the final standards include a phased-in ban on cross-gender
pat-down searches of female inmates in adult prisons, jails, and
community confinement facilities absent exigent circumstances--which is
currently the policy in most State prison systems. However, female
inmates' access to programming and out-of-cell opportunities must not
be restricted to comply with this provision.
For juvenile facilities, however, the final standards, like the
proposed standards, prohibit cross-gender pat-down searches of both
female and male residents. And for all facilities, the standards
prohibit cross-gender strip searches and visual body cavity searches
except in exigent circumstances or when performed by medical
practitioners, in which case the searches must be documented.
The standards also require facilities to implement policies and
procedures that enable inmates to shower, perform bodily functions, and
change clothing without nonmedical staff of the opposite gender viewing
their breasts, buttocks, or genitalia, except in exigent circumstances
or when such viewing is incidental to routine cell checks. In addition,
facilities must require staff of the opposite gender to announce their
presence when entering an inmate housing unit.
Training and Education. Proper training is essential to combating
sexual abuse in correctional facilities. The standards require staff
training on key topics related to preventing, detecting, and responding
to sexual abuse. Investigators and medical practitioners will receive
training tailored to their specific roles.
Inmates, too, must understand a facility's policies and procedures
in order to know that they will be kept safe and that the facility will
not tolerate their committing sexual abuse. The standards require that
facilities explain their zero-tolerance policy regarding sexual abuse
and sexual harassment educate inmates on how to report any such
incidents.
Screening. The standards require that inmates be screened for risk
of being sexually abused or sexually abusive and
[[Page 37109]]
that screening information be used to inform housing, bed, work,
education, and program assignments. The goal is to keep inmates at high
risk of victimization away from those at high risk of committing abuse.
However, facilities may not simply place victims in segregated housing
against their will unless a determination has been made that there is
no available alternative means of separation, and even then only under
specified conditions and with periodic reassessment.
Reporting. The standards require that agencies provide at least two
internal reporting avenues, and at least one way to report abuse to a
public or private entity or office that is not part of the agency and
that can allow inmates to remain anonymous upon request. An agency must
also provide a way for third parties to report such abuse on behalf of
an inmate.
In addition, agencies are required to provide inmates with access
to outside victim advocates for emotional support services related to
sexual abuse, by giving inmates contact information for local, State,
or national victim advocacy or rape crisis organizations and by
enabling reasonable communication between inmates and these
organizations, with as much confidentiality as possible.
Responsive Planning. The standards require facilities to prepare a
written plan to coordinate actions taken among staff first responders,
medical and mental health practitioners, investigators, and facility
leadership in response to an incident of sexual abuse. Upon learning of
an allegation of abuse, staff must separate the alleged victim and
abuser and take steps to preserve evidence.
The standards also require agencies to develop policies to prevent
and detect any retaliation against persons who report sexual abuse or
who cooperate with investigations. Allegations must be investigated
properly, thoroughly, and objectively, and documented correspondingly,
and must be deemed substantiated if supported by a preponderance of the
evidence. No agency may require an inmate to submit to a polygraph
examination as a condition for proceeding with an investigation. Nor
may an agency enter into or renew any agreement that limits its ability
to remove alleged staff abusers from contact with inmates pending an
investigation or disciplinary determination.
Investigations. Investigations are required to follow a uniform
evidence protocol that maximizes the potential for obtaining usable
physical evidence for administrative proceedings and criminal
prosecutions. The agency must offer victims no-cost access to forensic
medical examinations where evidentiarily or medically appropriate. In
addition, the agency must attempt to make available a victim advocate
from a rape crisis center. If that option is not available, the agency
must provide such services through either (1) qualified staff from
other community-based organizations or (2) a qualified agency staff
member.
Discipline. The standards require that staff be subject to
discipline for violating agency policies regarding sexual abuse, with
termination the presumptive discipline for actually engaging in sexual
abuse. Terminations or resignations linked to violating such policies
are to be reported to law enforcement (unless the conduct was clearly
not criminal) and to relevant licensing bodies.
Inmates also will be subject to disciplinary action for committing
sexual abuse. Where an inmate is found to have engaged in sexual
contact with a staff member, the inmate may be disciplined only where
the staff member did not consent. Where two inmates have engaged in
sexual contact, the agency may (as the final rule clarifies) impose
discipline for violating any agency policy against such contact, but
may deem such activity to constitute sexual abuse only if it determines
that the activity was not consensual. In other words, upon encountering
two inmates engaging in sexual activity, the agency cannot simply
assume that both have committed sexual abuse.
Medical and Mental Health Care. The standards require that
facilities provide timely, unimpeded access to emergency medical
treatment and crisis intervention services, whose nature and scope are
determined by practitioners according to their professional judgment.
Inmate victims of sexual abuse while incarcerated must be offered
timely information about, and timely access to, emergency contraception
and sexually transmitted infections prophylaxis, where medically
appropriate. Where relevant, inmate victims must also receive
comprehensive information about, and timely access to, all lawful
pregnancy-related medical services. In addition, facilities are
required to offer a follow-up meeting if the initial screening at
intake indicates that the inmate has experienced or perpetrated sexual
abuse.
Grievances. If an agency has a grievance process for inmates who
allege sexual abuse, the agency may not impose a time limit on when an
inmate may submit a grievance regarding such allegations. To be sure, a
grievance system cannot be the only method--and should not be the
primary method--for inmates to report abuse. As noted above, agencies
must provide multiple internal ways to report abuse, as well as access
to an external reporting channel.
This standard exists only because the Prison Litigation Reform Act,
42 U.S.C. 1997e, requires that inmates exhaust any available
administrative remedies as a prerequisite to filing suit under Federal
law with respect to the conditions of their confinement. The final
standard contains a variety of other provisions aimed at ensuring that
grievance procedures that cover sexual abuse provide inmates with a
full and fair opportunity to preserve their ability to seek judicial
review, without imposing undue burdens on agencies or facilities.
However, agencies that exempt sexual abuse allegations from their
remedial schemes are exempt from this standard, because their inmates
may proceed directly to court.
Audits. The final rule resolves an issue left undecided in the
proposed rule by including standards that require that agencies ensure
that each of their facilities is audited once every three years. Audits
must be conducted by: (1) A member of a correctional monitoring body
that is not part of, or under the authority of, the agency (but may be
part of, or authorized by, the relevant State or local government); (2)
a member of an auditing entity such as an inspector general's or
ombudsperson's office that is external to the agency; or (3) other
outside individuals with relevant experience. Thus, the final standards
differ from the proposed standards in that audits may not be conducted
by an internal inspector general or ombudsperson who reports directly
to the agency head or to the agency's governing board.
The Department will develop and issue an audit instrument that will
provide guidance on the conduct of and contents of the audit. All
auditors must be certified by the Department, pursuant to procedures,
including training requirements, to be issued subsequently.
Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) and Gender
Nonconforming Inmates. The standards account in various ways for the
particular vulnerabilities of inmates who are LGBTI or whose appearance
or manner does not conform to traditional gender expectations. The
standards require training in effective and professional communication
with LGBTI and gender nonconforming inmates and require the screening
process to consider whether the inmate is, or is perceived to be, LGBTI
or
[[Page 37110]]
gender nonconforming. The standards also require that post-incident
reviews consider whether the incident was motivated by LGBTI
identification, status, or perceived status.
In addition, in a change from the proposed rule, the final
standards do not allow placement of LGBTI inmates in dedicated
facilities, units, or wings in adult prisons, jails, or community
confinement facilities solely on the basis of such identification or
status, unless such placement is in a dedicated facility, unit, or wing
established in connection with a consent decree, legal settlement, or
legal judgment for the purpose of protecting such inmates. As in the
proposed standards, such placement is not allowed at all in juvenile
facilities.
The standards impose a complete ban on searching or physically
examining a transgender or intersex inmate for the sole purpose of
determining the inmate's genital status. Agencies must train security
staff in conducting professional and respectful cross-gender pat-down
searches and searches of transgender and intersex inmates.
In deciding whether to assign a transgender or intersex inmate to a
facility for male or female inmates, and in making other housing and
programming assignments, an agency may not simply assign the inmate to
a facility based on genital status. Rather, the agency must consider on
a case-by-case basis whether a placement would ensure the inmate's
health and safety, and whether the placement would present management
or security problems, giving serious consideration to the inmate's own
views regarding his or her own safety. In addition, transgender and
intersex inmates must be given the opportunity to shower separately
from other inmates.
Inmates with Disabilities and Limited English Proficient (LEP)
Inmates. The standards require agencies to develop methods to ensure
effective communication with inmates who are deaf or hard of hearing,
those who are blind or have low vision, and those who have
intellectual, psychiatric, or speech disabilities. Agencies also must
take reasonable steps to ensure meaningful access to all aspects of the
agency's efforts to prevent, detect, and respond to sexual abuse and
sexual harassment to inmates who are LEP. Agencies may not rely on
inmate interpreters or readers except in limited circumstances where an
extended delay in obtaining an effective interpreter could compromise
the inmate's safety, the performance of first-response duties, or an
investigation.
C. Costs and Benefits
The anticipated costs of full nationwide compliance with the final
rule, as well as the benefits of reducing the prevalence of prison
rape, are discussed at length in the Regulatory Impact Assessment
(RIA), which is available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and is summarized below in section IV, entitled
``Executive Orders 13563 and 12866--Regulatory Planning and Review.''
As shown in Table 1, the Department estimates that the costs of these
standards to all covered facilities, assuming full nationwide
compliance, would be approximately $6.9 billion over the period 2012-
2026, or $468.5 million per year when annualized at a 7 percent
discount rate. The average annualized cost per facility of compliance
with the standards is approximately $55,000 for prisons, $50,000 for
jails, $24,000 for community confinement facilities, and $54,000 for
juvenile facilities. For lockups, the average annualized cost per
agency is estimated at $16,000.
Table 1--Estimated Cost of Full State and Local Compliance With the PREA Standards, in the Aggregate, by Year and by Facility Type, in Millions of
Dollars
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Total all
Year Prisons Jails Lockups CCF Juveniles facilities
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2012.................................................... $87.2 $254.6 $180.1 $27.8 $196.0 $745.8
2013.................................................... 55.2 161.0 122.0 16.8 93.3 448.5
2014.................................................... 58.3 157.9 106.6 14.2 92.1 429.2
2015.................................................... 59.2 154.6 93.7 12.1 94.9 414.5
2016.................................................... 61.3 153.5 87.3 11.1 109.3 422.6
2017.................................................... 61.5 152.4 83.6 10.6 151.9 460.1
2018.................................................... 62.9 151.3 80.1 10.1 147.3 451.8
2019.................................................... 63.1 150.7 77.5 9.8 144.7 445.8
2020.................................................... 64.3 150.1 75.0 9.4 142.2 441.0
2021.................................................... 65.7 149.9 73.2 9.2 140.4 438.3
2022.................................................... 65.9 150.1 72.0 9.0 139.2 436.2
2023.................................................... 67.1 150.1 70.8 8.9 138.0 434.9
2024.................................................... 67.1 149.9 69.6 8.7 136.7 432.0
2025.................................................... 67.9 149.5 68.4 8.5 135.5 429.8
2026.................................................... 67.6 148.8 67.2 8.4 134.3 426.3
15-yr Total............................................. 974.2 2,384.6 1,327.3 174.8 1,995.8 6,856.7
Present Value........................................... 591.2 1,488.4 869.8 116.6 1,201.4 4,267.4
Annual.................................................. 64.9 163.4 95.5 12.8 131.9 468.5
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However, these figures are potentially misleading. PREA does not
require State and local facilities to comply with the Department's
standards, nor does it enact a mechanism for the Department to direct
or enforce such compliance; instead, the statute provides certain
incentives for such confinement facilities to implement the standards.
Fiscal realities faced by confinement facilities throughout the country
make it virtually certain that the total actual outlays by those
facilities will, in the aggregate, be less than the full nationwide
compliance costs calculated in the RIA. Actual outlays incurred will
depend on the specific choices that State and local correctional
agencies make with regard to adoption of the standards, and
correspondingly on the annual expenditures that those agencies are
willing and able to make in choosing to implement the standards in
their facilities. The Department has not endeavored in the RIA to
project those actual outlays.
With respect to benefits, the RIA conducts what is known as a
``break-even analysis,'' by first estimating the monetary value of
preventing various
[[Page 37111]]
types of prison sexual abuse (from incidents involving violence to
inappropriate touching) and then, using those values, calculating the
reduction in the annual number of victims that would need to occur for
the benefits of the rule to equal the cost of full nationwide
compliance.
This analysis begins by estimating the current levels of sexual
abuse in covered facilities. The RIA concludes that in 2008 more than
209,400 persons were victims of sexual abuse in prisons, jails, and
juvenile facilities, of which at least 78,500 prison and jail inmates
and 4,300 youth in juvenile facilities were victims of the most serious
forms of sexual abuse, including forcible rape and other nonconsensual
sexual acts involving injury, force, or high incidence.
Next, the RIA estimates how much monetary benefit (to the victim
and to society) accrues from reducing the annual number of victims of
prison rape. This is, of course, an imperfect endeavor, given the
inherent difficulty in assigning a dollar figure to the cost of such an
event. Executive Order 13563 states that agencies ``may consider (and
discuss qualitatively) values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and distributive
impacts.'' Each of these values is relevant here, including human
dignity, which is offended by acts of sexual violence. While
recognizing the limits of monetary measures and the difficulty of
translation into dollar equivalents, the RIA extrapolates from the
existing economic and criminological literature regarding rape in the
community. On the basis of such extrapolations, it finds that the
monetizable benefit to an adult of avoiding the highest category of
prison sexual misconduct (nonconsensual sexual acts involving injury or
force, or no injury or force but high incidence) is worth $310,000 to
$480,000 per victim; for juveniles, who typically experience
significantly greater injury from sexual abuse than do adults, the
corresponding category is assessed as worth $675,000 per victim. Lesser
forms of sexual abuse have correspondingly lower avoidance benefit
values. The RIA thus determines that the maximum monetizable cost to
society of prison rape and sexual abuse (and correspondingly, the total
maximum benefit of eliminating it) is about $46.6 billion annually for
prisons and jails, and an additional $5.2 billion annually for juvenile
facilities.
The RIA concludes that the break-even point would be reached if the
standards reduced the annual number of victims of prison rape by 1,671
from the baseline levels, which is less than 1 percent of the total
number of victims in prisons, jails, and juvenile facilities. The
Department believes it reasonable to expect that the standards, if
fully adopted and complied with, would achieve at least this level of
reduction in the prevalence of sexual abuse, and thus the benefits of
the rule justify the costs of full nationwide compliance.
As noted, this analysis inevitably excludes benefits that are not
monetizable, but still must be included in a cost-benefit analysis.
These include the values of equity, human dignity, and fairness. Such
non-quantifiable benefits will be received by victims who receive
proper treatment after an assault; such treatment will in turn enhance
their ability to re-integrate into the community and maintain stable
employment upon their release from prison. Furthermore, making prisons
safer will increase the general well-being and morale of staff and
inmates alike. Finally, non-quantifiable benefits will accrue to
society at large, by ensuring that inmates re-entering the community
are less traumatized and better equipped to support their community.
Thus, the true break-even level would likely be lower and perhaps
significantly lower than 1,671, if it were possible to account for
these non-quantifiable benefits.
II. Background
The Prison Rape Elimination Act of 2003, 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 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 NPREC released its recommended national
standards in a report dated June 23, 2009, and subsequently disbanded,
pursuant to the statute. The NPREC's report and recommended national
standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
The NPREC set forth four sets of recommended national standards for
eliminating prison rape and other forms of sexual abuse. Each set
applied to one of the following four confinement settings: (1) Adult
prisons and jails; (2) juvenile facilities; (3) community corrections
facilities; and (4) lockups (i.e., temporary holding facilities). The
NPREC recommended that its standards apply to Federal, State, and local
correctional and detention facilities, including immigration detention
facilities operated by the Department of Homeland Security and the
Department of Health and Human Services. In addition to the standards
themselves, the NPREC 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 of the rationale for each standard 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).
Pursuant to PREA, the final rule adopting national standards
``shall be based upon the independent judgment of the Attorney General,
after giving due consideration to the recommended national standards
provided by the Commission * * * and being informed by such data,
opinions, and proposals that the Attorney General determines to be
appropriate to consider.'' 42 U.S.C. 15607(a)(2). PREA expressly
mandates that the Department not establish a national standard ``that
would impose substantial additional costs compared to the costs
presently expended by Federal, State, and local prison authorities.''
42 U.S.C. 15607(a)(3). The Department ``may, however, provide a list of
improvements for consideration by correctional facilities.'' 42 U.S.C.
15607(a)(3).
The Attorney General established a PREA Working Group, chaired by
the Office of the Deputy Attorney General, to review each of the
NPREC's proposed standards and to assist him in preparing rulemaking
materials. The Working Group included representatives from a wide range
of Department components, including the Access to Justice Initiative,
the Bureau of Prisons (including the National Institute of
Corrections), the Civil Rights Division, the Executive Office for
United States Attorneys, the Office of Legal Policy, the Office of
Legislative Affairs, the Office of Justice Programs (including the
Bureau of Justice Assistance, the Bureau of Justice Statistics, the
National Institute of Justice, the Office of Juvenile Justice and
Delinquency Prevention, and the Office for Victims of Crime), the
Office on Violence Against Women, and the United States Marshals
Service.
[[Page 37112]]
The Working Group conducted an in-depth review of the standards
proposed by the NPREC. As part of that process, the Working Group
conducted a number of listening sessions in 2010, at which a wide
variety of individuals and groups provided preliminary input prior to
the start of the regulatory process. Participants included
representatives of State and local prisons and jails, juvenile
facilities, community corrections programs, lockups, State and local
sexual abuse associations and service providers, national advocacy
groups, survivors of prison rape, and members of the NPREC.
Because, as noted above, PREA prohibits the Department from
establishing a national standard that would impose substantial
additional costs compared to the costs presently expended by Federal,
State, and local prison authorities, the Working Group carefully
examined the potential cost implications of the standards proposed by
the NPREC. As part of that process, the Department commissioned an
independent contractor to perform a cost analysis of the NPREC's
proposed standards.
On March 10, 2010 (75 FR 11077), while awaiting completion of the
cost analysis, the Department published an Advance Notice of Proposed
Rulemaking (ANPRM) soliciting public input on the NPREC's proposed
national standards. Approximately 650 comments were received on the
ANPRM, including comments from current or formerly incarcerated
individuals, county sheriffs, State correctional agencies, private
citizens, professional organizations, social service providers, and
advocacy organizations concerned with issues involving inmate safety
and rights, sexual violence, discrimination, and juvenile justice.
In general, commenters supported the broad goals of PREA and the
overall intent of the NPREC's recommendations. However, comments were
sharply divided as to the merits of a number of standards. Some
commenters, particularly those whose responsibilities involve the care
and custody of inmates or juvenile residents, expressed concern that
the NPREC's recommended national standards implementing PREA would
impose unduly burdensome costs on already tight State and local
government budgets. Other commenters, particularly advocacy groups
concerned with protecting the health and safety of inmates and juvenile
residents, expressed concern that the NPREC's standards did not go far
enough, and, therefore, would not fully achieve PREA's goals.
After reviewing the comments on the NPREC's proposed standards, and
after receiving and reviewing the cost analysis of those standards, the
Department published a Notice of Proposed Rulemaking (NPRM) on February
3, 2011 (76 FR 6248). The scope and content of the Department's
standards differed substantially from the NPREC's proposals in a
variety of areas. The Department revised each of the NPREC's
recommended standards, weighing the logistical and financial
feasibility of each standard against its anticipated benefits. At the
same time, the Department published an Initial Regulatory Impact
Analysis (IRIA), which presented a comprehensive assessment of the
benefits and costs of the Department's proposed standards in both
quantitative and qualitative terms. The IRIA was summarized in the NPRM
and was published in full on the Department's Web site at http://www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
The NPRM solicited comments on the Department's proposed standards,
and posed 64 specific questions on the proposed standards and the IRIA.
In response, the Department received over 1,300 comments, representing
the same broad range of stakeholders as comments on the ANPRM.
Commenters provided general assessments of the Department's efforts as
well as specific and detailed recommendations regarding each standard.
The Department also received a range of comments responding to the 64
questions posed in the NPRM and on the assumptions, calculations, and
conclusions contained in the IRIA. As in the comments on the ANPRM, the
changes recommended by commenters reflected a diverse array of views.
Many commenters asserted that the proposed standards provided
insufficient protection against sexual abuse, while others expressed
the view that the proposed standards would be too onerous for
correctional agencies.
Following the public comment period, the Department carefully
reviewed each comment and deliberated internally on the revisions that
the commenters proposed and on the critiques of the IRIA's benefit-cost
analysis. In addition, the Department once again commissioned an
independent contractor to assist the Department in assessing the costs
of revisions to the standards.
The final standards reflect a considered analysis of the public
comments and a rigorous assessment of the estimated benefits and costs
of full nationwide compliance with the standards. The Department has
revised the IRIA correspondingly; the final Regulatory Impact Analysis
is available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
This is a final rule; however, the Department has identified one
provision for which it is considering making changes to the final rule,
if warranted by public comments received. The discrete provision open
for additional comment does not affect the finality of the rule.
To assist agencies in their compliance efforts, the Department has
funded the National Resource Center for the Elimination of Prison Rape
to serve as a national source for online and direct support, training,
technical assistance, and research to assist adult and juvenile
corrections, detention, and law enforcement professionals in combating
sexual abuse in confinement. Focusing on areas such as prevention
strategies, improved reporting and detection, investigation,
prosecution, and victim-centered responses, the Resource Center will
identify promising programs and practices that have been implemented
around the country and demonstrate models for keeping inmates safe from
sexual abuse. It will offer a full library, webinars, and other online
resources on its Web site, and will provide direct assistance in the
field through skilled and experienced training and technical assistance
providers. The Department also funds the National Center for Youth in
Custody, which will partner closely with the Resource Center to assist
facilities in addressing sexual safety for youth.
The Department is also continuing its grantmaking, through its
Bureau of Justice Assistance, to support State and local demonstration
projects aimed at combating sexual abuse in confinement facilities. In
addition, the Department's National Institute of Corrections, which has
provided substantial PREA-related training and technical assistance
since passage of the Act, will be developing electronic and web-based
resource materials aimed at reaching a broad audience.
III. Overview of PREA National Standards
Scope of Standards: Application to Other Federal Confinement Facilities
The proposed rule interpreted the statute to bind only facilities
operated by the Bureau of Prisons, and extended the standards to United
States Marshals Service facilities under other authorities of the
Attorney General. In light of comments on the proposed rule, the
Department has re-examined whether
[[Page 37113]]
PREA extends to Federal facilities beyond those operated by the
Department of Justice. The Department now concludes that PREA does, in
fact, encompass any Federal confinement facility ``whether administered
by [the] government or by a private organization on behalf of such
government,'' 42 U.S.C. 15609(7).
With respect to Bureau of Prisons facilities, the Act explicitly
provides that the national standards apply immediately. 42 U.S.C.
15607(b). However, the statute does not address how it will be
implemented at other Federal confinement facilities. In general, each
Federal agency is accountable for, and has statutory authority to
regulate, the operations of its own facilities and, therefore, is best
positioned to determine how to implement the Federal laws and rules
that govern its own operations, the conduct of its own employees, and
the safety of persons in its custody. For example, the Department of
Homeland Security possesses great knowledge and experience regarding
the specific characteristics of its immigration facilities, which
differ in certain respects from Department of Justice, State, and local
facilities with regard to the manner in which they are operated and the
composition of their populations. Indeed, the NPREC expressly
recognized these distinctions by including a supplemental set of 15
standards applicable only to facilities with immigration detainees.
Similarly, the Department of the Interior's Bureau of Indian Affairs
(BIA) possesses expertise regarding the various confinement facilities
in Indian country, which are owned and operated pursuant to numerous
different arrangements by BIA and the tribes, and which also differ in
certain respects from Department of Justice, State, and local
facilities.
Given their statutory authorities to regulate conditions of
detention, other Federal departments with confinement facilities will
work with the Attorney General to issue rules or procedures that will
satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
Scope of Standards: Pretrial Release, Probation, Parole, and Related
Programs
In the proposed rule, the Department declined to adopt the NPREC's
recommendation that the Department adopt a set of standards for
community corrections, which the NPREC had recommended defining as
follows: ``Supervision of individuals, whether adults or juveniles, in
a community setting as a condition of incarceration, pretrial release,
probation, parole, or post-release supervision. These settings would
include day and evening reporting centers.'' \2\ The Department
determined that to the extent this definition included supervision of
individuals in a non-residential setting, it exceeded 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
did not reference community corrections, but instead proposed adopting
a set of standards for ``community confinement facilities,'' defined as
---------------------------------------------------------------------------
\2\ NPREC, Standards for the Prevention, Detection, Response,
and Monitoring of Sexual Abuse in Community Corrections, 5,
available at http://www.ncjrs.gov/pdffiles1/226683.pdf.
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 nonresidential hours.
Several commenters criticized the proposed rule for excluding
individuals who are not incarcerated but are subject to pretrial
release, probation, parole, or post-release supervision. These
commenters included advocacy groups, certain former members of the
NPREC, and two trade organizations, the American Probation and Parole
Association and the International Community Corrections Association.
Commenters observed that parole and probation officers play a
significant role in the lives of their charges, and that such power
includes the potential for abuse. Some suggested that the Department
should adopt all of the NPREC's recommendations with regard to pretrial
release, probation, parole, or post-release supervision, while others
proposed including only certain training requirements related to
handling disclosures of sexual abuse and avoiding inappropriate
relationships with probationers and parolees.
The final rule does not include these suggested changes and instead
retains the definition quoted above. The Department recognizes, of
course, that staff involved in pretrial release, probation, parole, or
post-release supervision exert great authority. The same is true,
however, of numerous other government officials, including police
officers who operate in the community, law enforcement investigators,
and certain categories of civil caseworkers. While any abuse by law
enforcement officials or other government agents is reprehensible, PREA
appropriately addresses the unique vulnerability of incarcerated
persons, who literally cannot escape their abusers and who lack the
ability to access community resources available to most victims of
sexual abuse.
One commenter observed that PREA defines ``prison rape'' as
including ``the rape of an inmate in the actual or constructive control
of prison officials,'' 42 U.S.C. 15609(8), and suggested that a
probationer or parolee should be considered to be under the
constructive control of correctional officials. This suggestion,
however, neglects the statute's definition of ``inmate'' as ``any
person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations
of criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program.'' 42 U.S.C. 15609(2). An
inmate by definition is ``incarcerated or detained in [a] facility'';
the inclusion of inmates who are ``under the constructive control of
correctional officials'' presumably refers to inmates who are
temporarily supervised by others, such as inmates on work details.
Furthermore, the reference to parole, probation, and related programs
in the definition of ``inmate'' indicates that only a person who
``violate[s] * * * the terms and conditions'' of such a program, rather
than any person who is subject to such terms and conditions, qualifies
as an inmate. Indeed, with the exception of an unrelated grant program
to safeguard communities,\3\ the statute makes no other reference to
parole, probation, pretrial release, or diversionary programs.
---------------------------------------------------------------------------
\3\ The statute authorizes the Attorney General to make grants
to States to ``safeguard the communities to which inmates return''
by, among other things, ``preparing maps demonstrating the
concentration, on a community-by-community basis, of inmates who
have been released, to facilitate the efficient and effective * * *
deployment of law enforcement resources (including probation and
parole resources),'' and ``developing policies and programs that
reduce spending on prisons by effectively reducing rates of parole
and probation revocation without compromising public safety.'' 42
U.S.C. 15605(b)(2)(C), (E).
---------------------------------------------------------------------------
The same commenter noted that PREA instructed the NPREC to
recommend to the Attorney General national standards on, in addition to
specifically enumerated topics, ``such other matters as may reasonably
be related to the detection, prevention, reduction, and punishment of
prison rape.'' 42 U.S.C. 15606(e)(2)(M). The
[[Page 37114]]
Department agrees with the commenter that this language, by extension,
provides the Attorney General with a broad scope of authority to combat
sexual abuse in confinement facilities. However, this language does not
necessitate the adoption of standards to govern probation, parole,
pretrial release, or diversionary programs. To be sure, former inmates
may report to a parole officer sexual abuse that occurred while they
were in a confinement facility. However, former inmates--unlike current
inmates--generally possess ample ability to report abuse through the
same channels as any other person living in the community.
Still, the Department encourages probation and parole departments
to take active steps to ensure that any information they learn about
sexual abuse in confinement facilities is transmitted to law
enforcement authorities or correctional agencies, as appropriate. The
Department recommends that such departments train their officers as
needed to facilitate proper investigation of allegations.
Finally, one commenter suggested that probation departments should
be included because some probation departments operate residential
facilities, including juvenile detention facilities. No change is
warranted, because the proposed rule already included any agency that
operates residential facilities. For example, to the extent that a
probation department operates a juvenile detention facility, it is
covered by the Standards for Juvenile Facilities, Sec. 115.311 et seq.
Scope of Standards: Categorization of Prisons and Jails
The Department received a significant number of comments from jails
regarding the ways in which their operations differ from prisons. Jail
commenters noted that prisons, unlike jails, generally receive
individuals after sentencing. Thus, prison inmates have already been
stabilized medically and been searched before being transported to the
prison. Commenters noted that the prison intake unit or facility,
unlike its jail counterpart, will often have received information from
the sentencing court, and may have received records documenting medical
and mental health conditions, criminal and institutional histories, and
in some cases, program or treatment histories.
The American Jail Association (AJA), plus several sheriffs and jail
administrators, recommended that the Department develop separate
standards for jails and prisons, due to differences in facility size,
mission, length of stay, and operational considerations.
The Department recognizes the various differences between jails and
prisons, but concludes that these differences do not warrant a separate
set of standards. Rather, the Department has endeavored to provide
sufficient flexibility such that the standards can be adopted by both
prisons and jails. Where appropriate, various standards impose
different requirements upon prisons and jails, while others
differentiate on the basis of facility size.
General Definitions (Sec. 115.5)
Community confinement facility. Several commenters expressed
uncertainty as to whether group homes that house juveniles would be
governed by the standards for community confinement facilities, the
standards for juvenile facilities, or both. For clarity, the final rule
revises the definition of community confinement facility to expressly
exclude juvenile facilities. All juvenile facilities, including group
homes and halfway houses, are governed by the Standards for Juvenile
Facilities, Sec. 115.311 et seq.
Exigent circumstances. The final rule adds a definition of this
term, which is used in several standards. The term is defined to mean
``any set of temporary and unforeseen circumstances that require
immediate action in order to combat a threat to the security or
institutional order of a facility.'' Such circumstances include, for
example, the unforeseen absence of a staff member whose presence is
indispensible to carrying out a specific standard, or an outbreak of
violence within the facility that requires immediate action.
Full compliance. The final rule adds a definition of this statutory
term. As discussed above in the Executive Summary and below in the
section titled Executive Order 13132--Federalism, PREA provides that
the Governor of each State must certify ``full compliance'' with the
standards or else forfeit five percent of any Department of Justice
grant funds that the State would otherwise receive for prison purposes,
unless the Governor submits an assurance that such five percent will be
used only for the purpose of enabling the State to achieve and certify
full compliance with the standards in future years. 42 U.S.C. 15607(c).
NPRM Question 34 solicited comments on how the final rule should
define ``full compliance.'' Several commenters recommended that full
compliance be measured by a percentage of each standard complied with.
These recommendations were generally between 80 and 100 percent. One
commenter suggested that each standard be designated as either
mandatory or non-mandatory, with differential percentages for each
category. A number of comments recommended that full compliance mean
complete compliance, with exceptions for de minimis violations.
A number of commenters recommended that ``full compliance'' be
fully or partially contingent on certain outcome measures. In other
words, ``full compliance'' could only be achieved if a certain
objective level of safety and security is achieved in a facility.
Other commenters suggested that, instead of relying on ``full
compliance,'' the standards should be measured using a multi-tiered
approach, such as ``substantial compliance,'' ``partial compliance,''
``non-compliance with progress,'' and ``non-compliance.'' One commenter
recommended that ``full compliance'' be regarded as achieved when the
facility meets the spirit of the standard. Another suggested that
``full compliance'' be regarded as achieved when an agency adopts
adequate policies and procedures, and has demonstrated its intention to
comply with those policies.
Finally, a number of comments suggested that the standards be
``fully'' complied with, and two suggested that ``full compliance''
mean complete compliance with the critical elements of the standard.
The final rule defines ``full compliance'' as ``compliance with all
material requirements of each standard except for de minimis
violations, or discrete and temporary violations during otherwise
sustained periods of compliance.'' The Department concludes that a
requirement for specific outcome measures would be impractical to
implement across a broad spectrum of facility types, and further notes
that compliance with procedural mandates is usually more within the
control of a facility than achieving specific outcome measures.
Furthermore, a definition that allows for some standards to be non-
mandatory, or that defines full compliance as a percentage or by
reference to substantial compliance, is not compatible with the plain
meaning of the statutory term ``full compliance.'' Accordingly, the
Department lacks the discretion to adopt such a definition.
Below is a nonexhaustive set of examples of violations that would
be consistent with full compliance:
A temporary vacancy in the PREA coordinator's position
that the agency is actively seeking to fill;
A small number of instances in which an agency fails by a
number of days to meet a 14-day deadline imposed by the rule;
[[Page 37115]]
Occasional noncompliance with staffing ratios in juvenile
facilities due to disturbances in other housing units or staff
illnesses;
A short-term telephone malfunction that prevents inmate
access to a confidential reporting hotline, which the agency acts
promptly to restore once the malfunction is brought to its attention.
Generally speaking, the intent of this definition is to make clear
that a Governor may certify ``full compliance'' even if, in
circumstances that are not reasonably foreseeable, certain of the
State's facilities are at times unable to comply with the letter of
certain standards for some short period of time, but then act promptly
to remedy the violation. This definition is in keeping with Congress's
view that States would be able--and should be encouraged--to achieve
full compliance.
The final rule also provides, in Sec. 115.501(b), that the
Governor's certification applies to all facilities in the State under
the operational control of the State's executive branch, including
facilities operated by private entities on behalf of the State's
executive branch. The certification, by its terms, does not encompass
facilities under the operational control of counties, cities, or other
municipalities.
Gender nonconforming. The final rule adds a definition of this
term, which is used in several standards. The term is defined to mean
``a person whose appearance or manner does not conform to traditional
societal gender expectations.''
Intersex. Various commenters, including both correctional agencies
and advocates, requested a definition of this term, and several
advocates suggested definitions. The final rule defines the term as ``a
person whose sexual or reproductive anatomy or chromosomal pattern does
not seem to fit typical definitions of male or female.'' The definition
also notes that ``[i]ntersex medical conditions are sometimes referred
to as disorders of sex development.''
Juvenile. Several commenters criticized the proposed rule's
definition of juvenile as any person under the age of 18 unless
otherwise defined by State law. One commenter noted that State law may
be inconsistent, defining a person as a juvenile for some purposes and
as an adult for others. For clarity, the final rule revises the
definition by changing ``unless otherwise defined by State law'' to
``unless under adult court supervision and confined or detained in a
prison or jail.'' For reasons explained at greater length below, the
Department has rejected the suggestion by some commenters to define
juvenile as any person under the age of 18.
Some commenters recommended that the definition of juvenile include
persons over the age of 18 who are currently in the custody of the
juvenile justice system, because some State juvenile justice systems
hold persons beyond that age who were originally adjudicated as
juvenile delinquents. The final rule does not make that change. The set
of standards for juvenile facilities refers throughout to
``residents.'' A ``resident'' is defined as ``any person confined or
detained in a juvenile facility.'' Thus, the standards already cover
over-18 persons confined in a facility that is primarily used for the
confinement of under-18 persons, and the commenters' proposed change is
not needed. In the rare instance that an over-18 person in the custody
of the juvenile justice system is confined in an adult facility, it is
appropriate for that person to be treated the same as others of similar
age.
Juvenile facility. For clarifying purposes, the final rule adds
language to make clear that a juvenile facility is one that is
primarily used to confine juveniles ``pursuant to the juvenile justice
system or criminal justice system.'' A facility that confines juveniles
pursuant to a social services system, or for medical purposes, is
beyond the scope of these regulations, regardless of whether it is
administered or licensed by a Federal, State, or local government or a
private organization on behalf of such government.
One commenter suggested amending the definition of juvenile
facility to clarify that it includes all youth confined in juvenile
facilities, not just those who are accused of, or have been adjudicated
for committing, a delinquent act or criminal offense. The commenter
noted that, as a result of shortages in residential mental health
facilities, juvenile facilities may temporarily hold youth who are not
accused of delinquent or criminal acts, while waiting for bed space to
open up in residential mental health facilities. The Department has not
made this change, because such youth are already covered to the extent
that they are housed in a facility that primarily confines juveniles
pursuant to the juvenile justice system or criminal justice system.
A State juvenile agency requested that the standards exempt
community-based facilities that are not ``physically restricting'' and
that serve juvenile delinquents as well as non-delinquent youth. The
Department has not made this change. As stated above, the definition of
juvenile facility includes any facility ``primarily used for the
confinement of juveniles pursuant to the juvenile justice system or
criminal justice system.'' If a non-secure residential facility fits
this definition, it will fall within the scope of the standards, even
if it also holds some non-delinquent youth. Youth who are legally
obligated to return to a facility in the evening are at risk of sexual
abuse and therefore warrant protection under these standards.
Furthermore, where a facility is primarily used to confine juvenile
delinquents, it would be illogical to exempt from coverage those
facilities that happen to confine some non-delinquent youth as well.
Transgender. As with ``intersex,'' both agency and advocacy
commenters requested that the final rule define this term. The
definition adopted in the final rule--``a person whose gender identity
(i.e., internal sense of feeling male or female) is different from the
person's assigned sex at birth''--reflects the suggestions of numerous
advocacy commenters.
Other terms. The Department has not adopted the suggestion of one
commenter to define a variety of additional terms including jail
booking, intake, initial screening, and risk assessment. These terms
are in common usage in correctional settings and have meanings that are
generally understood, even if facility practices may vary in certain
respects. To define these terms would risk confusion by imposing a one-
size-fits-all definition on facilities that employ these terms in
slightly different ways.
Definitions Related to Sexual Abuse (Sec. 115.6)
The final rule makes various changes to terms related to sexual
abuse that were defined in the proposed rule.
Sexual abuse. Various commenters criticized the proposed definition
for referencing the intent of the abuser. These commenters expressed
the view that including an intent element would, in the words of one,
``require agencies to engage in a complicated time- and labor-intensive
inquiry into the intent of the perpetrator.'' The final rule revises
the definition to limit the relevance of intent.
With regard to sexual abuse by an inmate, the proposed rule had
excluded ``incidents in which the intent of the sexual contact is
solely to harm or debilitate rather than to sexually exploit.'' The
purpose of that language was to exclude physical altercations that
incidentally resulted in injuries to an inmate's genitalia. While
correctional agencies should, of course, endeavor to protect inmates
from physical harm of
[[Page 37116]]
all sorts, such incidental injury is beyond the scope of PREA. To
eliminate the intent element while still preserving this exclusion, the
final rule replaces the language quoted above with ``contact incidental
to a physical altercation.''
With regard to abuse by staff, the proposed rule included contact
between the penis and the vulva or anus; contact between the mouth and
the penis, vulva, or anus; penetration of the anal or genital opening;
and ``[a]ny other intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or the
buttocks of any person with the intent to abuse, arouse, or gratify
sexual desire.'' The final rule replaces the intent clause with the
following language: ``that is unrelated to official duties or where the
staff member, contractor, or volunteer has the intent to abuse, arouse
or gratify sexual desire.'' Thus, if the touching is unrelated to
official duties, no finding as to intent is necessary. If the touching
is related to official duties--such as a strip search--the touching
qualifies as sexual abuse only if it is performed in a manner that
evidences an intent to abuse, arouse, or gratify sexual desire.
One agency recommended replacing ``sexual abuse'' with ``rape.''
The Department has not made this change. PREA defines ``rape'' broadly,
in a manner that is more consistent with the customary definition of
sexual abuse. For example, PREA includes ``sexual fondling'' in its
definition of rape, see 42 U.S.C. 15609(9), (11), even though that term
is typically associated with sexual abuse rather than with rape. The
Department concludes that sexual abuse is a more accurate term to
describe the behaviors that Congress aimed to eliminate.
An advocate for disability rights recommended that the Department
define what it means for an inmate to be ``unable to consent,'' due to
variations in State law on this issue. The Department has not done so,
concluding that correctional agencies should use their judgment, taking
into account any applicable State law.
One advocacy organization recommended that kissing be added to the
definition of sexual abuse or sexual harassment, due to the possibility
that kissing could be used as a ``grooming'' technique leading to other
sexual activities. The Department concludes that it is appropriate to
consider kissing to constitute sexual abuse in certain contexts where
committed by a staff member. Accordingly, the final rule adds to the
definition of sexual abuse by a staff member ``[c]ontact between the
mouth and any body part where the staff member, contractor, or
volunteer has the intent to abuse, arouse, or gratify sexual desire.''
Finally, the Department has made various nonsubstantive changes to
the definition of sexual abuse, including simplifying its structure. In
addition, the final rule provides that sexual abuse is not limited to
incidents where the staff member touches the inmate's genitalia,
breasts, anus, groin, inner thigh, or buttocks, but also includes
incidents where the staff member induces the inmate to touch the staff
member in such a manner.
Sexual harassment. Several correctional agencies recommended that
the final rule remove sexual harassment from the scope of the
standards. The Department has not done so. Although PREA does not
reference sexual harassment, it authorized the NPREC to propose, and by
extension authorized the Attorney General to adopt, 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). Certain standards reference sexual harassment in order
to combat what may be a precursor to sexual abuse.
One commenter took issue with the categorization of ``repeated
verbal comments or gestures of a sexual nature * * * including
demeaning references to gender, sexually suggestive or derogatory
comments'' as sexual harassment rather than sexual abuse. The commenter
suggested that this categorization inappropriately downplayed the harm
associated with such conduct, especially because many of the standards
in the proposed rule referenced only sexual abuse and not sexual
harassment. The Department has not made this change, largely because
such activities fit the textbook definition of sexual harassment. To
label comments and gestures as sexual harassment is not meant to
belittle the harm that may ensue. (The question of whether specific
standards should include sexual harassment as well as sexual abuse is a
separate issue and is discussed below in reference to specific
standards.) However, similar activity, when performed by a staff
member, does constitute sexual abuse. This distinction recognizes that
staff exert tremendous authority over every aspect of inmates' lives--
far more authority than employers exert over employees in a workplace
context. An attempt, threat, or request to engage in sexual contact,
even if it does not result in actual sexual contact, may lead to grave
consequences for an inmate, and deserves to be treated seriously.
Indeed, in many States, such contact is considered to be a crime.\4\
---------------------------------------------------------------------------
\4\ See National Institute of Corrections/Washington College of
Law Project on Addressing Prison Rape, Fifty-State Survey of
Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody,
available at http://www.wcl.american.edu/endsilence/documents/50StateSurveyofSSMLawsFINAL2009Update.pdf.
---------------------------------------------------------------------------
The same commenter also recommended defining sexual harassment to
include all comments of a sexual nature, not just repeated comments.
One correctional agency made the same recommendation with regard to
comments made by staff. The Department has not made this change.
Various standards require remedial action in response to sexual
harassment; while correctional agencies may take appropriate action in
response to a single comment, a concern for efficient resource
allocation suggests that it is best to mandate such action only where
comments of a sexual nature are repeated.
Voyeurism. Some correctional agencies recommended removing
voyeurism from the scope of the standards, fearing that its inclusion
would result in groundless accusations against staff members merely for
performing their jobs. This change has not been made. The Department
notes that voyeurism is limited to actions taken ``for reasons
unrelated to official duties''--which constitutes a significant
limitation. A staff member who happens to witness an inmate in a state
of undress while conducting rounds has not engaged in voyeurism. The
risk of false accusations is an inevitable consequence of imposing
limits upon staff members' actions, and is neither limited to, nor
unusually problematic in, the context of voyeurism.
One correctional agency recommended that voyeurism be considered as
a subset of sexual harassment and be limited to repeated actions, as
with sexual harassment. The Department has not made this change.
Voyeurism is appropriately considered to be a more serious offense than
sexual harassment, and indeed is often a crime. The same commenter
suggested that by placing voyeurism within the category of sexual
abuse, ``there is no differentiation between incidences of voyeurism
and rape.'' This is incorrect; sexual abuse appropriately encompasses a
broad range of incidents of varying degrees of severity. The standards
oblige correctional agencies to take certain actions in response to all
incidents of sexual abuse, but the appropriate response will vary
greatly depending upon the nature of the incident.
[[Page 37117]]
Some advocacy commenters, and one sheriff's office, criticized the
proposed rule for providing that taking images of all or part of an
inmate's naked body, or of an inmate performing bodily functions,
constituted voyeurism only if the staff member also distributed or
published them. The final rule removes that limitation. Under the
revised definition, taking such images constitutes voyeurism regardless
of what the staff member does with the images afterwards.
Zero Tolerance; PREA Coordinator (Sec. Sec. 115.11, 115.111, 115.211,
115.311)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies
establish a zero-tolerance policy toward sexual abuse and harassment
that outlines the agency's approach to preventing, detecting, and
responding to such conduct. The Department also proposed that agencies
employ or designate an upper-level, agency-wide PREA coordinator to
oversee efforts to comply with the standards. The proposed standard
specified that the agency-wide PREA coordinator would be a full-time
position in all agencies that operate facilities whose total rated
capacity--i.e., an objective determination of available bed space in a
facility--exceeds 1,000 inmates, but could be a part-time position in
other agencies. The proposed standard also required that agencies whose
total capacity exceeds 1,000 inmates must designate an existing full-
time or part-time employee at each facility to serve as that facility's
PREA coordinator.
Changes in Final Rule
The final standard no longer requires that the agency-wide PREA
coordinator be a full-time position for large agencies. Instead, the
standard provides that the PREA coordinator must have ``sufficient time
and authority'' to perform the required responsibilities, which have
not been changed from the proposed standard.
The final standard also requires that any agency that operates more
than one facility (regardless of agency size) designate a PREA
compliance manager at each facility with sufficient time and authority
to coordinate the facility's efforts to comply with the PREA standards.
Comments and Responses
Comment. Numerous commenters criticized the proposed standard for
requiring that the PREA coordinator be a full-time position. Such
commenters indicated that establishing a full-time position would be
cost-prohibitive and would inappropriately divert resources from other
important efforts. Some recommended that agencies be given discretion
in how to structure their PREA oversight and that coordinators be given
flexibility to work on related tasks. One commenter suggested that the
standard mandate that the PREA coordinator devote a specified minimum
percentage of time to PREA-related work. Another commenter proposed
that a full-time PREA coordinator be required only if a threshold level
of verified sexual abuse incidents is reached.
Response. Designating a specific staff person to be accountable for
PREA development, implementation, and oversight will help ensure the
success of such efforts. However, agencies should have discretion in
how to manage their PREA initiatives. Therefore, the final standard
does not require that the PREA coordinator be a full-time position.
Similarly, mandating a minimum percentage of staff time to be spent on
PREA would be too stringent, and would not provide sufficient
flexibility. Rather, the final standard requires that the agency
designate a PREA coordinator with sufficient time and authority to
develop, implement, and oversee agency efforts to comply with the PREA
standards.
As for the suggestion that a full-time coordinator be required only
if verified incidents exceed a specified threshold, it is important to
note that a low level of verified incidents does not necessarily mean
that sexual abuse is not a concern. If an agency is not appropriately
investigating allegations of sexual abuse, or if victims do not feel
comfortable reporting such incidents, the level of verified incidents
may not accurately reflect the agency's success at combating sexual
abuse.
Comment. Various agency commenters requested additional flexibility
with respect to the requirement that agencies with aggregate rated
capacities of over 1,000 inmates designate facility-level PREA
coordinators. Some commenters suggested raising or lowering the
population threshold for this requirement.
Response. Where an agency operates multiple facilities, the final
standard requires that all such facilities, regardless of size,
designate a PREA compliance manager with sufficient time and authority
to coordinate the facility's efforts to comply with the PREA standards.
Having a ``point person'' at each facility will be beneficial
regardless of the size of the agency or facility. (The PREA coordinator
would serve as the ``point person'' at single-facility agencies.) The
language in the final standard appropriately balances the need for
accountability with the flexibility that sound correctional management
requires.
Comment. One commenter inquired as to whether separate smaller
facilities could share one PREA coordinator, to accommodate workload
and cost concerns.
Response. With the additional flexibility provided in the final
standard, such arrangements should not be necessary. Facilities are
encouraged to collaborate on PREA efforts to the extent feasible, but
ultimately each facility will need to ensure that effective practices
and procedures are in place. For this reason, the final standard
requires each facility in a multi-facility agency to have its own PREA
compliance manager.
Comment. One commenter requested clarification as to the
requirement that the PREA coordinator be an ``upper-level'' staff
member.
Response. While it is not possible to define ``upper-level'' with
precision, the PREA coordinator should have access to agency and
facility leadership on a regular basis, and have the authority to work
with other staff, managers, and supervisors to effectuate change if
necessary. By contrast, the facility-specific PREA compliance manager
need not be ``upper-level,'' but should have access to facility staff,
managers, and supervisors in order to guide implementation.
Contracting With Other Entities for Confinement of Inmates (Sec. Sec.
115.12, 115.112, 115.212, 115.312)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies
that contract with outside entities include in any new contract or
contract renewal the entity's obligation to comply with the PREA
standards.
Changes in Final Rule
No substantive changes have been made to the proposed standard.
Comments and Responses
Comment. Numerous advocates urged that the standard be revised to
require government agencies to impose financial sanctions on private
contractors that fail to comply with the standards. These commenters
also argued that contract entities should be held to the same auditing
standards as agency-run facilities.
Response. As discussed below, the auditing standard (Sec. 115.401)
requires
[[Page 37118]]
that every facility operated by an agency, or by a private organization
on behalf of an agency, be audited for PREA compliance at least once in
every three-year auditing cycle. The auditing requirements are the
same, as are the effects of such audits: The Governor of each State is
required to consider the audits of facilities within the operational
control of the State's executive branch, including the audits of
private facilities operated by a contract entity on behalf of such
agencies, in determining whether to certify that the State is in full
compliance with the PREA standards. However, the final standard does
not require agencies to impose financial sanctions on non-compliant
private contractors. The standard requires that new contracts or
contract renewals include a provision that obligates the entity to
adopt and comply with the PREA standards. Beyond that, the Department
sees no need to specify the manner in which an agency enforces such
compliance.
Supervision and Monitoring (Sec. Sec. 115.13, 115.113, 115.213,
115.313)
Summary of Proposed Rule
The standard in the proposed rule contained four requirements.
First, it required the agency to make an assessment of adequate
staffing levels, taking into account its use, if any, of video
monitoring or other technology, and the physical layout and inmate
population of the facility. Second, it required agencies to devise a
plan for how to best protect inmates from sexual abuse should staffing
levels fall below an adequate level. Third, it required agencies to
reassess at least annually the identified adequate staffing levels, as
well as the staffing levels that actually prevailed during the previous
year, and the facility's use of video monitoring systems and other
technologies. Fourth, it required prisons, juvenile facilities, and
jails whose rated capacity exceeds 500 inmates to implement a policy of
unannounced rounds by supervisors to identify and deter staff sexual
abuse and sexual harassment.
Changes in Final Rule
The final standard requires each prison, jail, and juvenile
facility to develop and document a staffing plan that provides for
adequate levels of staffing, and, where applicable, video monitoring,
to protect inmates against sexual abuse. In calculating adequate
staffing levels and determining the need for video monitoring,
facilities must consider several factors, including: (1) Generally
accepted detention and correctional practices; (2) any judicial
findings of inadequacy; (3) any findings of inadequacy from Federal
investigative agencies; (4) any findings of inadequacy from internal or
external oversight bodies; (5) all components of the facility's
physical plant (including ``blind spots'' or areas where staff or
inmates may be isolated); (6) the composition of the inmate population;
(7) the number and placement of supervisory staff; (8) institution
programs occurring on a particular shift; (9) any applicable State or
local laws, regulations, or standards; (10) the prevalence of
substantiated and unsubstantiated incidents of sexual abuse; and (11)
any other relevant factors. Prisons and jails must use ``best efforts
to comply with the staffing plan on a regular basis'' and are required
to document and justify deviations from the staffing plan.
Like the proposed standard, the final standard requires all
agencies to annually assess, determine, and document for each facility
whether adjustments are needed to (1) The staffing levels established
pursuant to this standard; (2) prevailing staffing patterns; and (3)
the facility's deployment of video monitoring systems and other
monitoring technologies. The final standard also adds a requirement
that the annual assessment examine the resources the facility has
available to commit to ensure adequate staffing levels.
The final standard requires, lockups and community confinement
facilities to develop and document a staffing plan that provides for
adequate levels of staffing, and, where applicable, video monitoring,
to protect inmates against sexual abuse. In circumstances where the
staffing plan is not complied with, lockups and community confinement
facilities must document and justify all deviations from the plan. The
final standard, like the proposed standard, requires lockup and
community confinement agencies to consider the facility's physical
layout, the composition of its population, the prevalence of
substantiated and unsubstantiated incidents of sexual abuse, and any
other relevant factors. If vulnerable detainees are identified pursuant
to the lockup screening process set forth in Sec. 115.141, security
staff must provide such detainees with heightened protection, including
continuous direct sight and sound supervision, single-cell housing, or
placement in a cell that is actively monitored, unless no such option
is determined to be feasible.
The final standard sets specific minimum staffing levels for
certain juvenile facilities. As set forth below at the end of the
discussion of the Supervision and Monitoring standard, the Department
seeks additional comment on this aspect of the standard. Specifically,
the final standard requires secure juvenile facilities to maintain
minimum security staff ratios of 1:8 during resident waking hours, and
1:16 during resident sleeping hours, except during limited and discrete
exigent circumstances, and to fully document deviations from the
minimum ratios during such circumstances. However, any secure juvenile
facility that, as of the date of publication of the final rule, is not
already obligated by law, regulation, or judicial consent decree to
maintain the required staffing ratios shall have until October 1, 2017,
to achieve compliance. A secure facility is one that typically does not
allow its residents to leave the facility without supervision.\5\ Group
homes and other facilities that allow residents access to the community
to achieve treatment or correctional objectives, such as through
educational or employment programs, typically will not be considered to
be secure facilities. For juvenile facilities, the final standard omits
the requirement to plan for staffing levels that do not meet the
identified adequate levels.
---------------------------------------------------------------------------
\5\ The full definition is as follows: ``Secure juvenile
facility means a juvenile facility in which the movements and
activities of individual residents may be restricted or subject to
control through the use of physical barriers or intensive staff
supervision. A facility that allows residents access to the
community to achieve treatment or correctional objectives, such as
through educational or employment programs, typically will not be
considered to be a secure juvenile facility.'' Sec. 115.5.
---------------------------------------------------------------------------
The final standard also extends to all jails (rather than, as in
the proposed standards, only those jails whose rated capacity exceeds
500 inmates) the requirement of unannounced supervisory rounds to
identify and deter staff sexual abuse and sexual harassment. In order
to address concerns that some staff members might prevent such rounds
from being ``unannounced'' by providing surreptitious warnings, the
final standard adds a requirement that agencies have a policy to
prohibit staff members from alerting their colleagues that such
supervisory rounds are occurring, unless such announcement is related
to the legitimate operational functions of the facility.
Comments and Responses
The NPRM posed several questions regarding staffing. Below is a
summary of all comments received regarding this standard, keyed to the
question to which they correspond, and the Department's responses.
[[Page 37119]]
NPRM 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?
Comment. Commenters were nearly unanimous in opposing a
quantitative staffing requirement for adult facilities. Numerous adult
correctional agencies expressed a strong preference for deference to
agency decisions on staffing issues, given the varied and intricate
factors that affect staffing levels, such as facility type, layout,
population, classification levels, and whether and how the facility
uses video surveillance. Many agency commenters expressed support for
the proposed standard as written; some noted that many facilities
already employ mandatory and minimum post/staffing criteria, which they
can tailor to meet specific needs, such as by increasing staffing
levels in particular units that have experienced an increase in
victimization. Other commenters noted that some facilities are already
bound by State-mandated staffing ratios, and that additional or
different PREA ratios could conflict with State law. Jail
administrators suggested the absence of any national model or best
practice that supports a specific staffing ratio in local jails, due to
extreme differences in facility size, age, architectural design, and
population. Agency commenters emphasized that facility leadership is
best positioned to determine ``adequate'' staffing levels. In general,
advocacy groups agreed that, due to these concerns, the final standard
should not mandate staffing ratios in adult facilities.
In addition to feasibility, many correctional commenters stated
that the costs of establishing a specific staffing requirement would be
prohibitive. These commenters noted that the ability to increase
staffing levels at a facility is often beyond the control of either the
facility or the agency. Staffing increases require additional funding,
which usually must be legislatively appropriated. The commenters also
noted that budget increases are unlikely in the current fiscal climate
and would require a significant amount of lead time for approval.
Several correctional stakeholders, joined by some advocacy groups,
commented that specific staffing ratios in adult facilities would
constitute an ``unfunded mandate,'' which might compel some agencies to
choose not to attempt compliance with the PREA standards in general. In
addition, commenters observed that increased costs imposed by a
staffing mandate could result in elimination of programming for inmates
due to funding limitations.
On the other hand, one local correctional agency commented that,
given current fiscal conditions, some agencies will have difficulties
expanding staffing unless the final standard mandates minimum staffing
levels. In addition, some advocates noted that courts have held that
cost is not an excuse for failing to provide for the safety of persons
in custody, and argued that if an agency cannot provide adequate
staffing to ensure inmate safety, then it should reduce its inmate
population.
Response. The Department recognizes the many factors that affect
adequate staffing and therefore does not promulgate a standard with
concrete staffing requirements for adult facilities. The final standard
enumerates a broader set of factors to be taken into consideration in
calculating adequate staffing levels and determining the need for video
monitoring: Generally accepted detention and correctional practices;
any judicial findings of inadequacy; any findings of inadequacy from
Federal investigative agencies; any findings of inadequacy from
internal or external oversight bodies; all components of the facility's
physical plant (including ``blind-spots'' or areas where staff or
inmates may be isolated); the composition of the inmate population
(such as gender, age, security level, and length of time inmates reside
in the facility); the number and placement of supervisory staff;
institution programs occurring on a particular shift; any applicable
State or local laws, regulations, or standards; and the prevalence of
substantiated and unsubstantiated incidents of sexual abuse. In
addition, the final standard requires facilities to take into account
``any other relevant factors.''
Given the intricacies involved in formulating an adequate staffing
plan, the Department does not include specific staffing ratios for
adult facilities in the final standard. The final determination as to
adequate staffing levels remains in the discretion of the facility or
agency administration. In addition, the facility is encouraged to
reassess its staffing plan as often as necessary to account for changes
in the facility's demographics or needs.
With regard to the cost of staffing, the Department notes that the
Constitution requires that correctional facilities provide inmates with
reasonable safety and security from violence, see Farmer v. Brennan,
511 U.S. 825, 832 (1994), and sufficient staff supervision is essential
to that requirement. However, the Department is sensitive to current
fiscal conditions and the inability of correctional agencies to secure
budget increases unilaterally. The Department is also cognizant of the
fact that staffing is the largest expense for correctional agencies,
and recognizes that the costs involved in increasing staffing could
make compliance difficult for some facilities. While adequate staffing
is essential to a safe facility, the Department wishes to avoid the
unintended consequence of decreased programming and other opportunities
for inmates as a result of budgetary limitations.
The final standard also requires the agency to reassess, determine,
and document, at least annually, whether adjustments are needed to
resources the facility has available to commit to ensure adherence to
the staffing plan. This language accounts for the fact that resource
availability will affect staffing levels and provides agencies an
incentive to request additional staffing funds as needed. The
Department considered including a requirement for the agency to request
additional funds from the appropriate governing authority, if
necessary, but determined that this decision best remained within the
discretion of the agency.
The final standard requires agencies to use ``best efforts to
comply on a regular basis'' with the staffing plan. Facilities must
document and justify deviations from the staffing plan, but full
compliance with the plan is not required to achieve compliance with the
standard. The Department considered including in the standard a
specific mandate to comply with the staffing plan, but determined that
requiring ``best efforts'' is more appropriate, to avoid penalizing
agencies that unsuccessfully seek to obtain additional funds. Lockups
and community confinement facilities are exempt from the ``best
efforts'' language, but must document deviations from the staffing
plan. Juvenile facilities, however, must comply with their staffing
plans except during limited and discrete exigent circumstances, and
must fully document deviations from a plan during such circumstances.
The Department reiterates, however, that this standard, like all
the standards, is not intended to serve as a constitutional safe
harbor. A facility that makes its best efforts to comply with the
staffing plan is not necessarily in compliance with constitutional
requirements, even if the staffing shortfall is due to budgetary
factors beyond its control.
Comment. Numerous advocates expressed concern that the proposed
[[Page 37120]]
standard did not require the facilities to adhere to a specific
staffing plan. These commenters noted that the proposed standard
required agencies to develop a staffing plan but did not require that
agencies safely staff the facilities. In addition, because the proposed
standard required agencies to plan for what to do if they failed to
comply with their staffing goals, commenters suggested that it could be
read to permit or condone unsafe supervision levels. These advocates
proposed requiring agencies to comply with their initial staffing goals
and eliminating the requirement that agencies plan for suboptimal
staffing. Former members of the NPREC, and an advocacy organization,
recommended that the Department revise its proposed supervision
standard to require agencies to annually review staffing and video
monitoring to assess their effectiveness at keeping inmates safe in
light of reported incidents of sexual abuse, identify the changes it
considers necessary, and actually implement those changes.
Response. The Department recognizes the tension in the proposed
standard between requiring an agency to identify adequate staffing
levels, but then implicitly allowing the facility to operate without
requisite staffing in accordance with a ``backup plan.'' Therefore, the
final standard requires each prison, jail, and juvenile facility to
develop, implement, and document a staffing plan that provides for
adequate levels of staffing, and, where applicable, video monitoring,
to protect inmates against sexual abuse, taking into account the
relevant factors affecting staffing needs. In addition, the final
standard requires that, at least annually, the agency must assess,
determine, and document whether adjustments are needed to the staffing
plan, but does not require implementation of such adjustments. Because
the Department recognizes that staffing levels are often dependent on
budget approval from an external legislative or other governmental
entity, the final standard requires each adult prison and jail to use
its ``best efforts to comply on a regular basis'' with its staffing
plan. Given the costs involved and the lack of control correctional
agencies may have with regard to budgetary issues, the final standard
is designed to encourage adequate staffing without discouraging
agencies from attempting to comply with the PREA standards due to
financial concerns.
Comment. Advocates expressed concern that the proposed standards
failed to provide sufficient guidance with respect to how staffing
levels should be established. One advocate suggested that, in
determining safe staffing ratios, facilities should start with any
State requirements and standards promulgated by the American
Correctional Association and the American Jail Association. Several
comments suggested including as factors any blind spots within the
facility, including spaces not designated for residents, such as
closets, rooms, and hallways; high traffic areas within the facility;
the ease with which individual staff members can be alone with
individual residents in a given location; the potential value of
establishing and retaining video and other evidence of sexual
misconduct; the need to provide enhanced supervision of inmates who
have abused or victimized other inmates; the need to ensure that
vulnerable inmates receive additional protections without being
subjected to extended isolation or deprived of programming; previous
serious incidents and the staffing and other circumstances that existed
during those incidents; the need for increased or improved staff
training; the number of special needs or vulnerable inmates; the number
and placement of supervisory staff; grievances from inmates, staff,
visitors, family members, or others; compliance with any applicable
laws and regulations related to staffing requirements; individual
medical and mental health needs; availability of technology; custody
level; management level; capacity; and peripheral duty requirements.
Response. The Department considered each suggestion and adopted a
final standard that requires facilities to consider the following
factors: (1) Generally accepted detention and correctional practices;
(2) any judicial findings of inadequacy; (3) any findings of inadequacy
from Federal investigative agencies; (4) any findings of inadequacy
from internal or external oversight bodies; (5) all components of the
facility's physical plant (including ``blind-spots'' or areas where
staff or inmates may be isolated); (6) the composition of the inmate
population; (7) the number and placement of supervisory staff; (8)
institution programs occurring on a particular shift; (9) any
applicable State or local laws, regulations, or standards; (10) the
prevalence of substantiated and unsubstantiated incidents of sexual
abuse; and (11) any other relevant factors. The factors enumerated in
the final standard are broadly applicable across different types of
facilities, allow for comprehensive analysis without prescribing every
single detail to be considered, and provide sufficient guidance as to
how to plan for staffing levels that will provide adequate supervision
to protect inmates from sexual abuse. The listed factors are not
exclusive; facilities should consider additional issues that are common
across correctional facilities and pertinent to the characteristics of
each specific facility, and findings from reports and empirical studies
relevant to sexual abuse issued by the Department, academia, or
professional sources. As an example of one finding from a Department
report that would be relevant to determining adequate staffing, as well
as the need for increased video monitoring or the frequency of rounds,
the Department encourages facilities to consider that inmate-on-inmate
sexual abuse is most likely to occur in the evening, when inmates are
awake but often confined to their cells and staffing levels are
generally lower than during the day.\6\ In addition, the National
Resource Center for the Elimination of Prison Rape will develop
guidance to help facilities compose an adequate staffing plan, and the
Department's National Institute of Corrections is available to provide
technical assistance on developing an adequate staffing plan.
---------------------------------------------------------------------------
\6\ See Allen J. Beck and Paige M. Harrison, Bureau of Justice
Statistics (``BJS''), Sexual Victimization in Prisons and Jails
Reported by Inmates, 2008-09, at 22 (Table 16) (Aug. 2010).
---------------------------------------------------------------------------
Comment. One correctional agency interpreted the proposed standard
to require direct supervision of inmates, which it asserted would have
major cost implications.
Response. This comment is based on a misinterpretation of the
proposed standard, which did not require direct supervision. Nor does
the final standard.
Comment. Some correctional agency commenters argued that it is not
appropriate for the Federal government, or for State governments, to
set staffing standards for a facility run by an independently elected
constitutional officer at the local level.
Response. The Department is sensitive to concerns regarding
interference with local government. However, Congress mandated in PREA
that the Attorney General adopt standards that would apply to local
facilities as well as Federal and State facilities, as evidenced by the
statute's definition of ``prison'' as ``any confinement facility of a
Federal, State, or local government, whether administered by such
government or by a private organization on behalf of such
[[Page 37121]]
government.'' 42 U.S.C. 15609.\7\ The application of the staffing
standard to local correctional agencies is consistent with Congress's
mandate to the Department. Indeed, it is not uncommon for State
staffing standards, especially for juvenile facilities, to apply to
facilities that are under the purview of an independently elected
county or municipal official. For these reasons, the Department does
not view the imposition of this standard as inappropriately intruding
upon the prerogatives of local elected officials.
---------------------------------------------------------------------------
\7\ In addition, the cost limitation language in the statute
expressly references local institutions. See 42 U.S.C. 15607(a)(3)
(``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.'').
---------------------------------------------------------------------------
Comment. One correctional agency commented that hiring more staff
does not necessarily eliminate sexual abuse.
Response. The Department recognizes that adequate staffing levels
alone are not sufficient to combat sexual abuse in a corrections
setting. However, adequate staffing is essential to providing
sufficient supervision to protect inmates from abuse.
NPRM Question 5: If a level such as ``adequacy'' were mandated, how
would compliance be measured?
NPRM 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?
NPRM Question 14: Are there other ways not mentioned above in which
the Department can improve the proposed standard?
Comment. The Department received numerous suggestions from agency
commenters on proposed methods for measuring adequacy. Some
stakeholders expressed concern that a subjective ``adequacy'' standard
would be difficult to audit. Many commenters requested a better
definition of ``adequacy.'' Various advocacy and correctional groups
commented that agencies would benefit from a more detailed description
of what they must consider when conducting the staffing and technology
analyses that PREA requires. Others suggested that ``adequate,'' while
subjective, is the most appropriate term to use in this context.
Response. The final standard does not include a specific definition
for ``adequate staffing'' but does provide greater guidance as to the
factors that should be considered in developing an adequate staffing
plan. The Department intends to develop, in conjunction with the
National Resource Center for the Elimination of Prison Rape, auditing
tools that will guide PREA auditors regarding the various factors
affecting the adequacy of staffing. The final standard contains
additional documentation requirements, which will aid the auditor in
reviewing the adequacy of the plan and the facility's efforts at
complying with it. The auditor will review documentation showing that
the agency or facility conducted a proper staffing analysis taking into
account all enumerated and relevant factors included in the standard.
In addition, the National Resource Center for the Elimination of Prison
Rape will develop guidance to help facilities compose an adequate
staffing plan. And, as noted above, the Department's National Institute
of Corrections can provide technical assistance on developing an
adequate staffing plan.
Comment. Some correctional commenters, including the American Jail
Association, requested best-practice tools for achieving ``adequate''
staffing. They suggested that the Federal government develop
appropriate tools, model policies, and training materials that address
the basic principles of PREA and focus on adequate supervision in order
to provide facilities with ``a greater chance of meaningful
implementation of this standard.''
Response. As discussed above, the National Resource Center for the
Elimination of Prison Rape will develop guidance both for facilities in
composing an adequate staffing plan and for auditors in evaluating
adequacy of staffing during a PREA audit. These materials will be
available to aid agencies in achieving compliance with the final
standard.
Comment. Some correctional agencies and advocacy groups recommended
assessing the adequacy of staffing by reviewing any incidents related
to sexual or physical abuse at a facility to determine if inadequate
staffing played a role. One juvenile justice agency suggested that
daily monitoring of PREA-related incidents could help identify staffing
needs. Another agency commenter suggested reviewing incident reports of
rule violations at particular posts.
Response. Reviewing incidents of abuse and rule violations can
provide information as to whether staffing is adequate in a particular
facility or unit of a facility. However, incidents of abuse should not
be the only factor. As discussed above, many factors affect adequacy of
staffing. In addition, the reliability of the record of prior incidents
may depend upon the facility's diligence at investigating allegations
and its ability to create a culture in which inmate victims feel
comfortable reporting incidents without fear of reprisal. Accordingly,
it is not possible to define adequacy solely in these terms. Of course,
if a review of incident reports indicates that insufficient staffing is
a contributing factor in sexual abuse, such a finding is clearly
relevant to the ultimate determination as to the adequacy of staffing.
Comment. One State correctional agency suggested that adequacy
could be defined by determining the minimum staffing levels at which a
facility is able to operate within constitutional requirements and
determining whether a facility is adhering to such staffing levels.
Response. Adequate staffing is essential to providing
constitutional conditions within a correctional facility. However, it
is not feasible for the Department to determine, at every Federal,
State, and local facility, the level of staffing required to comport
with the Constitution, especially given that the level may change over
time as the size and nature of the facility's population changes. The
PREA audit with regard to this standard will focus on whether the
facility has developed and utilized best efforts to comply on a regular
basis with an adequate staffing plan to protect inmates from sexual
abuse.
Comment. Some correctional commenters suggested that ``adequate''
staffing levels be measured by the facility's ability to perform
required functions, such as feeding inmates, conducting routine checks,
holding outdoor recreation, and generally maintaining the facility
schedule without requiring significant periods of lockdown.
Response. A facility's inability to perform required functions and
operate in accordance with the institutional schedule without
significant periods of lockdown may have a direct bearing on the
adequacy of staffing. However, deviations from the schedule and
performance deficiencies may signal deeper problems unrelated to the
number of staff. In addition, the ability to stay on schedule and
perform routine functions does not necessarily indicate a safe or
adequately staffed facility. While this information may be relevant to
an auditor's review of the facility's staffing plan, it cannot be the
sole determinant of staffing adequacy.
Comment. Many commenters, including correctional agencies and
advocacy groups, suggested that adequacy be measured by assessing
whether a facility complies with its written staffing plan. One agency
[[Page 37122]]
suggested that compliance should be measured by determining whether the
facility is complying with the plan rather than by reviewing the level
or nature of incidents of abuse. Former NPREC members recommended that
staffing level compliance be measured during the baseline audit, and
that actual staffing patterns should be compared with the levels
determined by the facility needs assessment. If the audit outcome
reveals that current staffing levels are inadequate, facilities should
be required to develop a corrective action plan, a timeline for
implementation, and regularly scheduled assessments to monitor progress
toward achieving safe staffing levels.
Response. The final standard requires agencies to develop,
document, and use ``best efforts'' to comply on a regular basis with a
staffing plan that provides for adequate levels of staffing, and, where
applicable, video monitoring, to protect inmates against sexual abuse,
taking into account the relevant, enumerated factors. A more stringent
mandate would unfairly penalize agencies that do not have budgetary
authority or funds to increase staffing. In addition, if faced with a
specific mandate to comply with the staffing plan, agencies would have
an incentive to formulate plans that undercount the number of staff
needed in order to facilitate compliance with the plan. The final
standard encourages agencies to compose the most appropriate staffing
plan for each facility without concern that the agencies will be overly
conservative in their staffing analysis in order to avoid non-
compliance with the PREA standards. To be sure, if the facility's plan
is plainly deficient on its face, the facility is not in compliance
with this standard even if it adheres to the plan.
In addition, a failure to comply with identified adequate staffing
levels may affect a facility's ability to comply with other standards.
Pursuant to the auditing standards, facilities that receive a finding
of ``Does Not Meet Standard'' with regard to any of the PREA standards
will have a 180-day corrective action period in which the auditor and
the agency shall jointly develop a corrective action plan to achieve
compliance and the auditor will take necessary and appropriate steps to
verify implementation of the corrective action plan before issuing a
final determination as to whether the facility has achieved compliance.
Comment. Some correctional stakeholders suggested that the
Department require each facility to conduct incident mapping and set
performance goals, and then measure adequacy based on the facility's
ability to meet these goals.
Response. The Department recognizes that incident mapping and
performance goals are important quality improvement measures, and
encourages all facilities to implement a system to set goals, collect
and review data, identify trends, and chart progress towards
performance goals. However, because incident reporting is an imperfect
measurement of adequate staffing, the results of such a system cannot
provide an ultimate assessment of compliance.
NPRM 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?
Comment. Agency commenters felt strongly that compliance with a
State minimum staffing requirement should lead to a presumption that
staffing is adequate. Some stakeholders commented that concrete
staffing requirements should apply only if a facility is not already
subject to staffing mandates set by an outside agency or commission.
Various correctional commenters noted that some accreditation entities
honor compliance with State staffing regulations, and suggested that
the PREA standards do the same. On the other hand, some advocacy groups
argued that State-mandated minimum staffing ratios may not be
sufficient to establish adequacy and that many facilities are not in
compliance with such ratios. One advocate recommended that the
standards require compliance with any applicable State or Federal laws,
unless the PREA standards offer increased protection.
Response. The final standard directs agencies to take into account
any applicable State or local laws, regulations, or standards in
formulating an adequate staffing plan for jails, prisons, and juvenile
facilities. While regulations setting a minimum staffing level may be
instructive, they do not necessarily equate to adequate staffing for
each unit of each facility. Applicable State laws are a factor to
consider, but in developing adequate staffing plans, an agency must
take into account all relevant factors that bear on the question of
adequacy.
Comment. Some correctional stakeholders commented that it would
violate the Tenth Amendment if the PREA standards required compliance
with a specific staffing standard other than that set by the State.
Response. The Department understands the concerns submitted by
State agencies regarding the impact of PREA standards, and has welcomed
the opportunity to consult with the Department's partners at the State
level to develop effective standards that minimize costs, maximize
flexibility, and, to the extent feasible, minimize conflict with State
and local laws and regulations. However, the Department concludes that
PREA is consistent with the Federal government's responsibilities to
protect the constitutional and civil rights of all persons in custody.
Moreover, PREA is an appropriate exercise of Congress's power to
condition Federal funding upon grantees' compliance with relevant
conditions. The application of the staffing standard to State and local
correctional agencies is consistent with Congress's mandate to the
Department. Indeed, Federal regulations frequently impose requirements
that exceed requirements imposed by specific States. Accordingly, the
Department does not view the imposition of this standard as
inappropriately intruding on State prerogatives.
NPRM 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?
Comment. Many advocacy groups commented that specific staffing
ratios are appropriate and commonly utilized for juvenile facilities,
and specifically proposed establishing a minimum 1:6 ratio for
supervision during hours when residents are awake and a 1:12 ratio
during sleeping hours. These commenters stated that minimum juvenile
staffing ratios fall within the guidelines established by various
States and correctional organizations, and that two jurisdictions
already require the 1:6 and 1:12 staffing ratios. In contrast to adult
correctional agencies, juvenile agencies were less opposed to mandatory
staffing ratios for juvenile facilities. However, some juvenile justice
administrators expressed the same concerns raised with regard to adult
facilities--that specific ratios would constitute a cost-prohibitive,
unfunded mandate and that it would be impractical to establish one
ratio to fit all facilities. Multiple agency commenters noted that they
were already subject to mandatory staffing ratios and that any such
ratios in the PREA standards would be duplicative or conflicting.
Response. The Department adopts a standard requiring a minimum
staffing ratio in secure juvenile facilities of 1:8 for supervision
during resident waking
[[Page 37123]]
hours and 1:16 during resident sleeping hours. Unlike for adult
facilities, it is relatively common for juvenile facilities to be
subject to specific staffing ratios by State law or regulation. The
Department's research indicates that over 30 States already impose
staffing ratios on some or all of their juvenile facilities.
The standard's ratios include only security staff. Of the States
identified as requiring specific staffing ratios, approximately half
count only ``direct-care staff'' in these ratios.\8\ (For most of the
remaining States requiring specific staffing ratios, the Department has
not been able to determine precisely which categories of staff are
included.) In addition, the National Juvenile Detention Association's
position statement, ``Minimum Direct Care Staff Ratio in Juvenile
Detention Centers,'' which recommends respective day and night minimum
ratios of 1:8 and 1:16, specifically limits the included staff to
direct-care staff.\9\
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\8\ For juvenile facilities, the term ``direct-care staff'' is
often used in a manner that approximates this rule's definition of
``security staff.'' While the precise definition varies across
jurisdictions, it is generally meant to include staff whose
exclusive or primary duties include the supervision of residents.
\9\ See National Juvenile Detention Association, Minimum Direct
Care Staff Ratio in Juvenile Detention Centers, at 6 (June 8, 1999),
available at http://npjs.org/docs/NJDA/NJDA_Position_Statements.pdf. The NJDA position statement is generally more
restrictive than the requirement in the PREA standard. Specifically,
while the PREA standard defines ``security staff'' as ``employees
primarily responsible for the supervision and control of * * *
residents in housing units, recreational areas, dining areas, and
other program areas of the facility,'' the NJDA position statement
defines ``direct care staff'' as ``[e]mployees whose exclusive
responsibility is the direct and continuous supervision of
juveniles'' Id. (emphases added).
---------------------------------------------------------------------------
The 1:8 and 1:16 staffing ratios adopted by the final standard
match or are less stringent than the ratios currently mandated by
twelve States, plus the District of Columbia and Puerto Rico, for their
juvenile detention facilities, juvenile correctional facilities, or
both. The Department's Civil Rights Division has consistently taken the
position that sufficient staffing is integral to keeping youth safe
from harm and views minimum staffing ratios of 1:8 during the day and
1:16 at night as generally accepted professional standards in secure
juvenile facilities. For this reason, the Civil Rights Division has
entered into multiple settlement agreements that require jurisdictions
to meet minimum staffing ratios in order to ensure constitutional
conditions of confinement for juveniles. In addition, as noted above,
the National Juvenile Detention Association's 1999 position statement
on ``Minimum Direct Care Staff Ratio in Juvenile Detention Centers''
supports a minimum ratio of 1:8 during the day and 1:16 at night.
Given the widespread practice of setting minimum staffing ratios
for juvenile facilities, the Department believes these ratios accord
with national practice, are an integral measure for protecting
juveniles from sexual assault, and can be implemented without excessive
additional costs. In order to provide agencies with sufficient time to
readjust staffing levels and, if necessary, request additional funding,
any facility that, as of the date of publication of the final rule, is
not already obligated by law, regulation, or judicial consent decree to
maintain the required staffing ratios shall have until October 1, 2017,
to achieve compliance.
The standard excludes non-secure juvenile facilities from this
requirement. Juveniles in non-secure facilities typically have less
acute violent and abusive characteristics than those in secure
facilities. Many jurisdictions utilize a risk screening instrument to
determine whether a juvenile requires a secure placement; juveniles who
are identified as having a high likelihood for assaultive behavior and
re-offense are generally held in secure facilities. Accordingly, many
non-secure and community-confinement-type facilities do not require as
intensive staffing levels to protect residents from victimization.
Comment. Many correctional stakeholders suggested that, if a
staffing ratio is set for juvenile facilities, the standards should
differentiate between long-term juvenile correctional facilities and
short-term juvenile detention facilities.
Response. The Department recognizes that long-term placement
facilities have different types of staffing needs than short-term
detention facilities. For example, short-term detention facilities
serve less stable populations, residents without comprehensive housing
classification information, and residents awaiting placement in other
residential facilities--usually for shorter stays but sometimes for
extended periods of time. These populations tend to be more
unpredictable and more likely to engage in disruptive behavior
requiring higher levels of staffing. On the other hand, long-term
placement facilities often have significantly higher levels of
programming requiring continuous movement throughout various areas of
the facility. Such increased movement requires higher levels of
security staffing to maintain security. Accordingly, the Department has
determined that the same staff ratios are appropriate for both types of
facilities, but for different reasons.
Some States currently mandate higher levels of staff supervision in
their long-term residential facilities, while others require higher
levels of staff supervision for their short-term detention facilities.
A number of States currently require high levels of staff supervision
for both facility types. Agencies are encouraged to exceed the ratios
set forth in the standard where the unique characteristics of the
facility and youth require more intensive supervision levels.
Comment. One juvenile correctional agency commented that stringent
staffing levels will not ensure the safety of youth if staff do not
remain vigilant and provide active supervision. This commenter posited
that if a facility has high numbers of incidents, it is most likely due
to facility culture rather than staff size.
Response. The Department recognizes that adequate staffing levels
alone are not sufficient to combat sexual abuse and that developing a
healthy facility culture is a key component in this effort. However,
adequate staffing is essential to providing sufficient supervision to
protect residents from abuse. In addition to the staffing requirements,
the final rule contains comprehensive standards on a broad range of
topics related to preventing abuse. While a healthy facility culture
cannot be mandated directly, the adoption and implementation of the
standards will assist greatly in developing such a culture, by
requiring agencies and facilities to institutionalize a set of policies
and practices that, among other things, will elevate the importance of
agency and facility responsibilities to protect against sexual abuse.
Comment. Some juvenile agencies suggested that, if adequate
staffing levels are mandated, there will be a need for guidelines for
auditors so that sporadic deficiencies in staff levels may be excused,
while long-term patterns of non-compliance are dealt with fairly.
Response. In the final rule, the Department adopts a definition of
``full compliance'' that requires ``compliance with all material
requirements of each standard except for de minimis violations, or
discrete and temporary violations during otherwise sustained periods of
compliance.'' Sec. 115.5. However, when conducting an audit of a
particular facility, the PREA auditor will assess, with regard to each
specific standard, whether the facility exceeds the standard, meets the
standard, or requires corrective action. The Department intends to
develop, in conjunction with the National Resource
[[Page 37124]]
Center for the Elimination of Prison Rape, auditing tools that will
guide PREA auditors through these assessments.
Comment. Some juvenile justice agencies commented that, in States
that currently require a minimum staffing ratio for juvenile
facilities, additional PREA staffing ratio requirements will result in
agencies and facilities being audited on the same standards by two
different auditing teams--one to determine compliance with the State
requirements and one to determine compliance with the PREA standards.
These commenters remarked that such double auditing would be an
unnecessary duplication of effort and should not be required by the
PREA standards.
Response. The staffing analysis conducted by a PREA auditor will be
just one aspect of the PREA audit, which will examine a facility's
compliance with all applicable standards. While this may result in some
duplication of efforts, facilities may be able to schedule their
triennial PREA audits so as to combine the PREA audit with other
accreditation proceedings. In addition, while the PREA audit will
encompass the facility's compliance with all of the PREA standards, it
will be focused on issues related to sexual abuse and thus likely will
be narrower in scope than other audits to which the facility is
subjected.
Comment. Many advocacy groups recommended that the juvenile
standard recognize the value of continuous, direct supervision in
preventing sexual misconduct in juvenile facilities.
Response. The Department supports the use of continuous, direct
supervision and notes that many juvenile facilities already employ
direct supervision as a matter of course. However, some physical plants
are not conducive to direct supervision. In those facilities, a mandate
for direct supervision would require major renovations at a high cost.
For this reason, the final standard does not require direct
supervision. With regard to under-18 inmates held in adult facilities,
Sec. 115.14 requires such facilities to provide direct staff
supervision if the under-18 inmates have contact with adult inmates.
NPRM 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?
Comment. Correctional stakeholders, while remaining opposed to
mandated staffing levels, supported an extended timeframe, if such
requirements were included, in order to allow for the local governments
to allocate additional staffing funding. Some suggested a two-year
timeframe; others requested up to five years; and some suggested that
extensions should be granted where necessary. One agency proposed tying
the timeframe to the growth rate of the State's annual per capita gross
domestic product. Although advocacy groups did not promote specific
ratios for adult facilities, they did state that if specific staffing
levels are required, there should be no extension of the timeframe
because, in one commenter's words, ``adequate staffing to prevent risk
of harm to incarcerated individuals is already required by the
Constitution and reinforced through case law requiring protection from
harm.''
Response. The Department adopts specific staffing ratios only with
regard to secure juvenile facilities. Many of these facilities are
already subject to the ratios required by the final standard and
therefore will not need additional time to comply. However, in order to
provide agencies with sufficient time to readjust staffing levels and,
if necessary, request and obtain additional funding, any secure
juvenile facility that, as of the date of publication of the final
rule, is not already obligated by law, regulation, or judicial consent
decree to maintain the required staffing ratios shall have until
October 1, 2017, to achieve compliance. The Department recognizes that
increasing staffing often requires additional legislative
appropriations, as well as time needed to recruit and train appropriate
new staff.
NPRM Question 9: Should the standard require the establishment of
priority posts, and, if so, how should such a requirement be structured
and assessed?
NPRM 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?
Comment. In general, correctional stakeholders and advocacy groups
agreed that it would be difficult to establish priority posts or
regulate staff redistribution, given the vast differences in facility
layout and inmate composition. Many comments stated that establishing
priority posts and redistributing staff require detailed knowledge of
the facility's needs in order to best determine how staff should be
allocated. Other commenters suggested that the Department encourage but
not mandate this practice. One State correctional agency recommended
that the standard omit language regarding redistribution to avoid
conflict with existing collective bargaining agreements and State laws
governing such agreements.
Some advocates argued that staffing in medical units, work release
programs, and other opportunities for seclusion should be considered
priority posts. One advocacy group recommended that the staffing plan
identify those posts that must be filled in every shift, regardless of
unexpected absences or staff shortages.
Response. Given the variation in facilities and their operational
needs, the Department concludes that priority posts and staff
distribution are best left to the agency's discretion. By requiring
agencies to reassess their staffing plans at least once per year, the
final standard requires agencies to determine whether and to what
extent priority posts should be established, or existing staff
redistributed, to account for changed circumstances and facility needs.
Comment. The American Jail Association commented that few jails are
sufficiently similar in layout, classification systems, and supervision
methods to allow for any universal definition of priority posts.
Therefore, the AJA and other correctional stakeholders requested that
the Federal government provide a tool for local jails to use in
determining risk, thereby helping jails to identify priority posts.
Response. The National Resource Center for the Elimination of
Prison Rape will be available to provide technical assistance to
agencies who seek resources and training. The Department encourages
agencies to contact the Center with requests of this type.
Comment. Some correctional agencies suggested that staff
redistribution should be connected to filed and substantiated
complaints related to sexual abuse, but that the ultimate decision
should be a management activity.
Response. The Department agrees that staff redistribution may be an
appropriate response to a complaint of sexual abuse. The agency retains
the discretion as to how to handle such staff redistribution.
NPRM Question 12: Should the Department mandate the use of
technology to supplement sexual abuse prevention, detection, and
response efforts?
NPRM 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?
[[Page 37125]]
Comment. Correctional stakeholders strongly opposed any mandate for
increased technology, which they emphasized would be cost-prohibitive.
Some advocates strongly encouraged mandates for cameras throughout the
facilities, which they viewed as the best deterrent against abuse,
especially by staff, and important to substantiating incidents of
abuse. Other advocates cautioned that cameras in certain locations can
intrude upon inmate privacy. Several advocacy groups emphasized that
technology should supplement, not substitute for, adequate staff
supervision. These advocates opposed a technology mandate when the
funds could better be spent on additional or higher-quality staffing,
believing that cameras are most productive as investigatory tools to
confirm abuse, rather than as a means to prevent abuse. Most commenters
were receptive to a standard encouraging increased use of technology to
augment supervision.
Response. The final standard requires each facility to develop,
implement, and document a staffing plan that provides for adequate
levels of staffing, and, where applicable, video monitoring, to protect
inmates against sexual abuse. Given the costs associated with video
monitoring technology, the Department concludes that the issue is best
left to the agency's discretion. The facility is in the best position
not only to determine the need for such technology but also to
determine how and where to place cameras.
The Department recognizes that technology is best utilized to
supplement, but not replace, staff supervision. Camera surveillance is
a powerful deterrent and a useful tool in post-incident investigations.
But it cannot substitute for more direct forms of staff supervision (in
part because blind spots are inevitable even in facilities with
comprehensive video monitoring), and cannot replace the interactions
between inmates or residents and staff that may prove valuable at
identifying or preventing abuse. In addition, cameras generally do not
translate into a reduction of staff levels--additional staff may be
required to properly monitor the new cameras. Indeed, many cameras in
correctional facilities are currently not continuously monitored.
While the Department encourages increased use of video monitoring
technology to supplement sexual abuse prevention, detection, and
response efforts, the agency is in the best position to determine if
current or future funds are best directed at increasing the agency's
use of technology.
Comment. Former members of the NPREC recommended that the
Department reinstate two distinct standards for inmate supervision and
use of monitoring technology. They expressed concern that the
Department's decision to incorporate inmate supervision and monitoring
technology into a single standard unintentionally emphasizes the use of
technology to the detriment of the level of supervision that is
essential to protect inmates from sexual abuse. They recommended that
the Department encourage and facilitate, but not mandate, the use of
technology to supplement sexual abuse prevention, detection, and
response efforts.
Response. The final standard does not mandate the use of video
monitoring technology but instructs agencies to take such technology
into consideration, where applicable, in evaluating staffing needs. The
Department did not intend for the combined standard to emphasize the
use of technology over supervision, and based upon comments received,
does not believe that it was received as such. The Department believes
it is appropriate to consider the technology available to a facility,
but does not consider video monitoring a substitute for staff
supervision. The National Resource Center for the Elimination of Prison
Rape can provide technical assistance for agencies seeking input on how
to introduce or enhance monitoring technology in their facilities.
Comment. One advocacy group commented that the proposed standard
should provide guidance on who should monitor cameras, especially in
cross-gender circumstances.
Response. Section 115.15 requires that all facilities implement
policies and procedures that enable inmates to shower, perform bodily
functions, and change clothing without nonmedical staff of the opposite
gender viewing their breasts, buttocks, or genitalia, except in the
case of emergency (now reworded as ``exigent circumstances'') or when
such viewing is incidental to routine cell checks. Such policies and
procedures shall require staff of the opposite gender to announce their
presence when entering an inmate housing unit (for jails and prisons)
or an area where detainees or residents are likely to be showering,
performing bodily functions, or changing clothing. Accordingly, no
staff should monitor a camera that is likely to view inmates of the
opposite gender while they are showering, performing bodily functions,
or changing clothing.
Comment. One advocacy group commented that the proposed standard
should provide guidance on how long recordings should be retained.
Response. The Department encourages sufficient retention policies
to support an appropriate investigations system. Because the final
standard does not mandate the use of video, it is best to leave the
specifics to agency discretion.
Comment. Some juvenile justice agencies suggested that any mandate
regarding video monitoring technology should be tied directly to a
facility's compliance with the PREA standards and its overall rate of
substantiated sexual abuse incidents. A plan for securing additional
technology funding should only be necessary, in their view, if a
facility is found to have a higher than average rate of sexual abuse
cases. Facilities would then draft a corrective active plan that may or
may not include the need for additional technology. Mandated technology
expenditures would occur only after a facility has demonstrated a
continued failure to reduce a higher-than-average rate of sexual abuse
incidents.
Response. While the Department encourages the use of video
monitoring technology to deter sexual abuse and aid in the
investigatory process, the final standard does not require any facility
to install camera systems. However, an agency may determine that the
addition of cameras is an appropriate response to incidents of sexual
abuse at a particular facility or specific areas within a facility. The
Department encourages all agencies to assess the potential value of
such technology in combating sexual abuse. As discussed elsewhere, the
Department does not believe that the overall rate of substantiated
sexual abuse incidents can serve as a useful trigger for the imposition
of additional requirements, because the rate is itself dependent not
only upon a facility's success at combating sexual abuse, but its
diligence in investigating allegations and in creating a culture in
which victims are comfortable reporting incidents without fear of
retaliation.
NPRM Question 15: Should this standard mandate a minimum frequency
for the conduct of such rounds, and if so, what should it be?
Comment. Correctional stakeholders generally agreed that
unannounced supervisory rounds should be conducted and are standard
correctional practice. However, they recommended that the frequency of
such rounds be left to agency discretion. One sheriff's office noted
that flexibility in meeting the requirement would reduce resistance by
supervisors. Advocacy groups made relatively few proposals regarding
the frequency of such rounds, ranging from every 30 minutes, to weekly,
to monthly, to ``often enough to prevent
[[Page 37126]]
abuse.'' Some comments noted that frequency should vary so as to
preserve the element of surprise. Other comments stated that the
requirement should apply to all facilities, not just those with more
than 500 beds.
Response. The final standard expands the requirement for
unannounced supervisory rounds to all prisons, jails, and juvenile
facilities. The Department recognizes the value in this practice and
believes it is appropriate for all facilities. The Department concludes
that the precise frequency of such rounds is best left to agency
discretion. The standard requires that facilities implement a policy
and practice requiring ``unannounced rounds to identify and deter staff
sexual abuse and sexual harassment,'' document the rounds, and conduct
the rounds on night shifts and day shifts. Thus, rounds should be
conducted on a regular basis in a manner intended to discourage staff
sexual abuse and sexual harassment.
Comment. Two advocacy groups commented that the standard expressly
should prohibit so-called ``trip calls,''--i.e., actions by staff to
tip off their colleagues that a supervisor is en route. These
commenters asserted that allowing trip calls would defeat the purpose
of unannounced rounds.
Response. The final standard adds a requirement that agencies
maintain a policy prohibiting staff from alerting other staff members
that these supervisory rounds are occurring, unless such announcement
is related to the legitimate operational functions of the facility.
Comment. One law student commented that the standards should
require a minimum frequency of unannounced supervisory rounds because
the proposed standard could be satisfied by one unannounced round in a
decade.
Response. The final standard requires prisons, jails, and juvenile
facilities to implement a policy and practice of having intermediate
level or higher-level supervisors conduct and document unannounced
rounds. While the final standard does not specify a minimum frequency,
a policy of one round per decade would clearly not serve as
``unannounced rounds to identify and deter staff sexual abuse and
sexual harassment'' (emphasis added).
Comment. One sheriff's office commented that any standard should
contain wording that would exempt random supervisory checks in
emergency and staffing shortage situations.
Response. Because the final standard does not mandate a specific
time or frequency of such rounds, facilities may implement a reasonable
policy that does not require such rounds during an emergency or
temporary staffing shortage.
Comment. Another sheriff's office commented that establishing a
reasonable minimum frequency is advisable to prevent disagreements
between facility administrators and auditors as to whether the
frequency of a facility's rounds is adequate. The commenter cautioned,
however, that great care must be taken to ensure the requirement is
reasonable, given the vast differences in facilities, and suggested
that the minimum frequency should be once per month.
Response. While the final standard does not set a minimum frequency
for unannounced supervisory rounds, it requires facilities to implement
a policy and practice requiring ``unannounced rounds to identify and
deter staff sexual abuse and sexual harassment.'' As such, the
facilities may set the practice with regard to frequency of rounds, but
rounds should be conducted on a regular basis in order to have an
effect on staff sexual abuse and sexual harassment. The Department
submits that once per month is unlikely to be frequent enough to have
the intended effect.
Solicitation of Additional Comments Regarding the Juvenile Staffing
Ratios Set Forth in Sec. 115.313(c)
While this final rule is effective on the date indicated herein,
the Department believes that further discussion is warranted regarding
the aspect of this standard that requires secure juvenile facilities to
maintain minimum staffing ratios during resident waking and sleeping
hours. The standard contained in the final rule requires, in pertinent
part, that ``[e]ach secure juvenile facility shall maintain staff
ratios of a minimum of 1:8 during resident waking hours and 1:16 during
resident sleeping hours, except during limited and discrete exigent
circumstances, which shall be fully documented. Only security staff
shall be included in these ratios.'' Sec. 115.313(c). Accordingly, the
Department solicits additional comments limited to this issue.
Commenters are encouraged to address (1) Whether the provision, as
written, is appropriate; (2) whether the specific ratios enumerated in
the provision are the appropriate minimum ratios, or whether the ratios
should be higher or lower; (3) whether the provision appropriately
allows an exception from the minimum ratios during ``limited and
discrete exigent circumstances'' (as ``exigent circumstances'' is
defined in Sec. 115.5), or whether that exception should be broadened,
limited, or otherwise revised; (4) whether certain categories of secure
juvenile facilities should be exempt from the minimum ratio requirement
or, conversely, whether certain categories of non-secure juvenile
facilities should also be included in the minimum ratio requirement;
(5) the extent to which the provision can be expected to be effective
in combating sexual abuse; (6) the expected costs of the provision; (7)
whether the required ratios may have negative unintended consequences
or additional positive unintended benefits; (8) whether empirical
studies exist on the relationship between staffing ratios and sexual
abuse or other negative outcomes in juvenile facilities; \10\ (9)
whether specific objectively determined resident populations within a
secure facility should be exempt from the minimum ratios; (10) whether
additional categories of staff, beyond security staff, should be
included in the minimum ratios; (11) whether the standard should
exclude from the minimum ratio requirement facilities that meet a
specified threshold of resident monitoring through video technology or
other means, and, if so, what that threshold should include; and (12)
whether the standard appropriately provides an effective date of
October 1, 2017, for any facility not already obligated to maintain the
staffing ratios.
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\10\ While the Department has not identified studies that
address the relationship between negative outcomes and specific
staffing ratios, the Department has reviewed studies that address
the relationship between negative outcomes and the quantity of
staffing more generally. See New Amsterdam Consulting, Performance-
based Standards for Youth Correction and Detention Facilities: 2011
Research Report (unpublished study; available in rulemaking docket);
Aaron Kupchik and R. Bradley Snyder, The Impact of Juvenile Inmates'
Perceptions and Facility Characteristics on Victimization in
Juvenile Correctional Facilities, 89 The Prison Journal 265 (2009),
available at http://tpj.sagepub.com/content/89/3/265.
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Youthful Inmates (Sec. Sec. 115.14, 115.114)
Sections 115.14 and 115.114 regulate the placement of persons under
the age of 18 in adult prisons, jails, and lockups. The final rule
refers to under-18 persons in such facilities as ``youthful inmates''
(in adult prisons and jails) and ``youthful detainees'' (in lockups).
The proposed rule did not contain a standard that governed the
placement of under-18 inmates in adult facilities. Rather, the proposed
rule noted, and solicited input regarding, ANPRM commenters'
recommendations that the NPREC's recommended standards be supplemented
with an additional
[[Page 37127]]
standard to govern the placement and treatment of juveniles in adult
facilities.
Some ANPRM commenters had proposed a full ban on placing persons
under the age of 18 in adult facilities where contact would occur with
incarcerated adults, while others proposed instead that the standards
incorporate the requirements of the Juvenile Justice and Delinquency
Prevention Act (JJDPA), 42 U.S.C. 5601 et seq. As the NPRM discussed,
the JJDPA provides formula grants to States conditioned on (subject to
minimal exceptions) deinstitutionalizing juveniles who are charged with
or who have committed an offense that would not be criminal if
committed by an adult (often referred to as ``status offenders''),
separating juveniles from adult inmates 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.
Generally speaking, the JJDPA applies to juveniles who are in the
juvenile justice system, as opposed to those who are under the
jurisdiction of adult criminal courts. The JJDPA's separation
requirement applies only to juveniles who are alleged to be or are
found to be delinquent, juveniles who are charged with or who have
committed an offense that would not be criminal if committed by an
adult, or juveniles who are not charged with any offense at all. See 42
U.S.C. 5633(a)(11)-(12). The JJDPA defines ``adult inmate'' as ``an
individual who * * * has reached the age of full criminal
responsibility under applicable State law; and * * * has been arrested
and is in custody for or awaiting trial on a criminal charge, or is
convicted of a criminal charge offense.'' 42 U.S.C. 5603(26).
Accordingly, the NPRM expressly solicited comments on whether the
final rule should include a standard that governs the placement of
juveniles in adult facilities, and if so, what the standard should
require, and how it should interact with current JJDPA requirements and
penalties.
After reviewing the comments in response to the questions posed in
the NPRM, the Department has chosen to adopt a new standard that
restricts, but does not forbid, the placement of juveniles in adult
facilities. The standard applies only to persons under the age of 18
who are under adult court supervision and incarcerated or detained in a
prison, jail, or lockup. Such persons are, for the purposes of this
standard, referred to as ``youthful inmates'' (or, in lockups,
``youthful detainees'').
The standard imposes three requirements for juveniles placed in
adult prisons or jails. First, it mandates that no youthful inmate may
be placed in a housing unit in which he or she will have contact with
any adult inmate through use of a shared day room or other common
space, shower area, or sleeping quarters. Second, it requires that,
outside of housing units, agencies either maintain ``sight and sound
separation'' between youthful inmates and adult inmates--i.e., prevent
adult inmates from seeing or communicating with youth--or provide
direct staff supervision when youthful inmates and adult inmates are
together. Third, it requires that agencies make their best efforts to
avoid placing youthful inmates in isolation to comply with this
provision and that, absent exigent circumstances, agencies comply with
this standard in a manner that affords youthful inmates daily large-
muscle exercise and any legally required special education services,
and provides access to other programs and work opportunities to the
extent possible.
In lockups, the standard requires that juveniles and youthful
detainees be held separately from adult detainees.
Comments and Responses
Comment. In response to the questions posed in the NPRM, comments
varied widely.
Many commenters from advocacy organizations recommended a complete
ban on incarcerating persons under the age of 18 in adult facilities,
citing statistics indicating that youth in adult facilities face an
increased risk of sexual abuse. Some advocates expressed concern that
attempts to protect youth in adult facilities by housing them in
segregated settings often cause or exacerbate mental health problems.
Furthermore, advocates asserted, correctional agencies lack sufficient
expertise in treating the unique needs of the underage population.
Some advocates proposed, as a fallback option, that the standard
require a presumption that all youth be housed in juvenile facilities,
unless a hearing determines that the interests of justice require
housing in an adult facility.
Former members of the NPREC--whose final report did not include a
recommended standard that would govern the placement of youth in adult
facilities--submitted a comment that supported a standard that would
require individuals below the age of 18 to be held in juvenile
facilities, with some exceptions. Specifically, the former members
recommended that a person under 18 be transferred to an adult facility
only upon court order following a finding that the juvenile was violent
or disruptive. If such a juvenile is transferred, the facility would
need to comply with the standards governing juvenile facilities,
separate the juvenile by sight and sound from adult inmates, ensure
that the juvenile receives daily visits from health care providers and
other staff, and visually check the juvenile every 15 minutes.
With regard to the intersection with the JJDPA, advocates indicated
that the PREA standards could and should overlap with the conditions
applied to formula grants under the JJDPA.
A significant number of correctional agency commenters opposed
restricting the placement of youth in adult facilities. Some commenters
noted that State law governs placement options for youth, and
recommended that the Department not mandate a standard that would
contravene such State laws. Other comments suggested that any such
standard might improperly intrude into judicial functions by infringing
on judges' discretion in making placement decisions. One comment
suggested that a national standard governing the placement of juveniles
in adult facilities would be impractical due to variation in facility
size, layout, and staffing; another recommended against a standard
regarding the placement of youth in adult facilities because the zero-
tolerance mandate of Sec. 115.11 already provides adequate protections
to this population.
Some agency commenters recommended intermediate approaches. One
commenter suggested that the final standard should allow youth to be
placed in adult facilities only where there is ``total separation''
between the two populations. Another commenter suggested that adult
facilities be required (1) to develop and implement a plan to provide
additional protections for juvenile inmates, and (2) to report
separately instances of abuse involving juvenile victims.
A number of agency commenters expressed concerns about importing
JJDPA requirements into the PREA standards. Some remarked that this
would result in ``double-counting'' and would result in undue weight
being placed on this standard.
Response. After reviewing the comments received on this issue, the
Department has decided to adopt a standard that restricts the placement
of youth in adult facilities to the extent that such placement would
bring youth into unsupervised contact with adults.
[[Page 37128]]
The Department recognizes that the statistical evidence regarding
the victimization of youth in adult facilities is not as robust as it
is for juvenile facilities, in large part because of the small number
of under-18 inmates in adult facilities and the additional difficulties
in obtaining consent to survey such inmates.\11\
---------------------------------------------------------------------------
\11\ The Department does not rely on Congress's finding in PREA
that ``[j]uveniles are 5 times more likely to be sexually assaulted
in adult rather than juvenile facilities,'' 42 U.S.C. 15601(4),
because insufficient data exist to support that assessment.
Congress's finding appears to derive from a study based on
interviews with youth adjudicated or tried for violent offenses in
four cities between 1981 and 1984. See Martin Frost, et al., Youths
in Prisons and Training Schools: Perceptions and Consequences of the
Treatment-Custody Dichotomy, 40 Juv. & Fam. Ct. J. 1, 4 (1989). The
study noted that 7 of 81 youth sentenced to adult facilities, or
8.6%, reported experiencing sexual assault, as compared to 2 of 59
youth sent to juvenile facilities, or 1.7%. Id. at 4, 10. While
suggesting that this discrepancy, and discrepancies regarding other
types of victimization, ``illustrate the increased danger of
violence for juveniles sentenced to adult prisons,'' the authors
noted that ``the victimization results are not statistically
significant.'' Id. at 9.
---------------------------------------------------------------------------
The Department's Bureau of Justice Statistics (BJS) previously
reported that, based on its surveys of facility administrators, 20.6
percent of victims of substantiated incidents of inmate-on-inmate
sexual violence in adult jails in 2005 were under the age of 18, and 13
percent of such victims in 2006 were under 18,\12\ despite the fact
that under-18 inmates accounted for less than one percent of the total
jail population in both years.\13\ These findings derived from facility
responses to BJS's Survey of Sexual Violence (SSV), which was
administered to a representative sampling of jail facilities in
addition to all Federal and State prison facilities. However, upon
further review, BJS has determined that these figures are not
statistically significant due to the small number of reported incidents
and the small number of jails contained in the sample. Indeed, in
reporting data from the 2007 and 2008 SSVs, BJS determined that the
standard errors around the under-18 estimates for adult jails were
excessively large, and consequently did not report the estimates
separately, but rather reported combined figures for inmates under the
age of 25. BJS has now determined that it should have done the same for
2005 and 2006.
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\12\ See Beck, BJS, Sexual Violence Reported by Correctional
Authorities, 2005, Table 4 (2006); and Beck, BJS, Sexual Violence
Reported by Correctional Authorities, 2006, Appendix Table 5 (2007).
\13\ See Minton, BJS, Jail Inmates at Midyear 2010--Statistical
Tables, Table 7 (2011).
---------------------------------------------------------------------------
However, this conclusion does not impact the findings of the same
BJS surveys performed in State prisons, which surveyed all State
prisons, in contrast to the jails surveys, which included only a
sampling of jails. According to SSV reports, from 2005 through 2008,
1.5 percent of victims of substantiated incidents of inmate-on-inmate
sexual violence in State prisons were under 18, even though under-18
inmates constituted less than 0.2 percent of the State prison
population. While the number of such substantiated incidents is small--
a total of 10--the combined data indicate that State prison inmates
under the age of 18 are more than eight times as likely as the average
State prison inmate to have experienced a substantiated incident of
sexual abuse. Furthermore, the true prevalence of sexual abuse is
undoubtedly higher than the number of substantiated incidents, due to
the fact that many incidents are not reported, and some incidents that
are reported are not able to be verified and thus are not classified as
``substantiated.'' Indeed, it is quite possible that prison inmates
under 18 are more reluctant than the average inmate to report an
incident because of their age and relative newness to the prison
system.
BJS is currently in the middle of its third National Inmate Survey
collection, which is expected to provide better data regarding
victimization of under-18 inmates in adult prisons and jails. This
extensive survey will reach inmates in 600 prisons and jails and is
designed to specifically address this issue by oversampling for
facilities that house under-18 inmates, and oversampling such inmates
within those facilities. BJS expects to provide national-level
estimates in early 2013.
The Department's review of State procedures indicates that at least
28 States have laws, regulations, or policies that restrict the
confinement of youth in adult facilities to varying degrees. Some
jurisdictions house these youth in juvenile facilities until they reach
a threshold age and then transfer them to an adult facility. Other
jurisdictions require physical separation or sight and sound separation
between these youth and adult offenders. Yet other jurisdictions
maintain dedicated programs, facilities, or housing units for youth in
the adult system. Overall, there appears to be a national trend toward
limiting interaction between adult and under-18 inmates. In recent
years, a number of States have imposed greater restrictions on the
placement of youth in adult facilities or have passed legislation to
allow youth tried as adults to be housed in juvenile facilities.\14\
---------------------------------------------------------------------------
\14\ See 42 Pa. Cons. Stat. Ann. 6327 (under-18 Pennsylvania
inmates awaiting trial as adults may be detained in juvenile
facilities until reaching 18); Va. S.B. 259, 2010 Gen. Assem., Reg.
Sess. (eff. July 1, 2010) (presumption that under-18 Virginia
inmates awaiting trial as adults be held in juvenile facilities);
Colo. Rev. Stat. 19-2-517 (2012) (preventing 14- and 15-year-olds
from being tried as adults except in murder and sexual assault
cases; requires prosecutors to state reasons and hear from defense
counsel before exercising discretion to try 16- and 17-year-olds as
adults); Ariz. S.B. 1009, 49th Leg., 2d Reg. Sess. (2010)
(eliminating eligibility of some juveniles to be tried as adults by
requiring a criminal charge brought against the juvenile to be based
on their age at the time the offense was committed and not when the
charge was filed); Utah H.B. 14, Gen. Sess. (2010) (granting justice
court judge discretion to transfer a matter at any time to juvenile
court if it is in the best interest of the minor and the juvenile
court concurs); Miss. S.B. 2969, 2010 Leg., Reg. Sess. (2010)
(limiting the types of felonies that 17-year- olds can be tried for
as an adult); Wash. Rev. Code 13.04.030(1)(e)(v)(E)(III) (2012)
(allowing juveniles to be transferred back to juvenile court upon
agreement of the defense and prosecution.); Wash. Rev. Code
13.40.020(14) (providing that juveniles previously transferred to
adult court are not automatically treated as adults for future
charges if found not guilty of original charge); 2009 Nev. Stat. 239
(raising the age a juvenile may be presumptively certified as an
adult from 14 to 16); Me. Rev. Stat. Ann. tit. 17-A 1259 (2011)
(providing that juveniles under 16 who receive adult prison sentence
must serve sentence in juvenile correctional facility until their
18th birthday); 2008 Ind. Acts 1142-1144 (limiting juvenile courts'
ability to waive jurisdiction to felonies and requiring access for
Indiana criminal justice institute inspection and monitoring of
facilities that are or have been used to house or hold juveniles);
Conn. Gen. Stat. 54-76b-c (2012) (creating presumption that 16- and
17-year-olds are eligible to be tried as youthful offenders unless
they are charged with a serious felony or had previously been
convicted of a felony or adjudicated a serious juvenile offender);
75 Del. Laws 269 (2005) (limiting Superior Court's original
jurisdiction over robbery cases involving juveniles to crimes
committed by juveniles who had previously been adjudicated
delinquent for a felony charge and thereafter committed a robbery in
which a deadly weapon was displayed or serious injury inflicted);
705 Ill. Comp. Stat. 405/5-130 (2011) (eliminating the requirement
that 15- to 17-year-olds charged with aggravated battery with a
firearm and violations of the Illinois Controlled Substances Act,
while on or near school or public housing agency grounds, be tried
as adults).
---------------------------------------------------------------------------
Furthermore, several accrediting and correctional associations have
formulated position statements, issued standards, or provided comments
urging either that all persons under 18 be held in juvenile facilities
only, or that the youth be housed separately from adult inmates. For
example, the National Commission on Correctional Healthcare, the
American Jail Association, the National Juvenile Detention Association,
and the National Association of Juvenile Correctional Agencies all
support separate housing or placement for youth.\15\
---------------------------------------------------------------------------
\15\ See Letter from Campaign for Youth Justice, et al., to
Attorney General Holder, 4 (April 4, 2011), available at http://www.campaignforyouthjustice.org/documents/PREA_sign-on_letter.pdf;
NCCHC Position Statement, Health Services to Adolescents in Adult
Correctional Facilities, adopted May 17, 1998, available at http://www.ncchc.org/resources/statements/adolescents.html.
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[[Page 37129]]
Although many jurisdictions have moved away from incarcerating
adults with juveniles, a significant number of youth continue to be
integrated into the adult inmate population. The Department estimates
that in 2009, approximately 2,778 juveniles were incarcerated in State
prisons and 7,218 were held in local jails.\16\
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\16\ See West, Prison Inmates at Midyear 2009-Statistical
Tables, Table 21, BJS (Rev. 2011); Minton, Jail Inmates at Midyear
2010-Statistical Tables, Table 6, BJS (Rev. 2011).
---------------------------------------------------------------------------
As a matter of policy, the Department supports strong limitations
on the confinement of adults with juveniles. Under the Federal Juvenile
Justice and Delinquency Prevention Act (a separate statute from the
JJDPA), 18 U.S.C. 5031 et seq., ``[n]o juvenile committed, whether
pursuant to an adjudication of delinquency or conviction for an
offense, to the custody of the Attorney General may be placed or
retained in an adult jail or correctional institution in which he has
regular contact with adults incarcerated because they have been
convicted of a crime or are awaiting trial on criminal charges.'' 18
U.S.C. 5039. Accordingly, the Federal Bureau of Prisons contracts with
juvenile facilities to house the few juvenile inmates in its custody.
The United States Marshals Service endeavors to place juveniles in
juvenile facilities; where that is not possible, the juvenile is placed
in an adult facility, separated by sight and sound from adult inmates.
In addition, the Department endorsed the Juvenile Justice and
Delinquency Prevention Reauthorization Act of 2009, which, had it been
enacted, would have (among other changes) extended the JJDPA's sight
and sound separation and jail removal core requirements to youth under
adult criminal court jurisdiction awaiting trial, unless a court
specifically finds that it is in the interest of justice to incarcerate
the youth in an adult facility.
For a variety of reasons, however, the Department has decided
against adopting a standard that would generally prohibit the placement
of youth in adult facilities. Most importantly, the Department is
cognizant that its mandate in promulgating these standards extends only
to preventing, detecting, and responding to sexual abuse in confinement
facilities. While some commenters asserted that confining youth in
adult facilities impedes access to age-appropriate programming and
services and may actually increase recidivism, the PREA standards
cannot include a ban on those bases. Rather, the Department must focus
on the extent to which such a ban would enhance the ability to prevent,
detect, and respond to sexual abuse. To be sure, implicit in PREA is
the authority to regulate and restrict well-intentioned interventions
aimed at preventing sexual abuse that inadvertently lead to other forms
of harm. Thus, the Department may adopt a standard that governs the
placement of inmates in isolation, and the concomitant denial of
programming, where such placement is used as a means of protecting
vulnerable inmates against sexual abuse.
In addition, imposing a general ban on the placement of youth in
adult facilities, or banning such placements unless a court finds that
the youth has been violent or disruptive in a juvenile facility, would
necessarily require a fundamental restructuring of existing State laws
that permit such placement. For example, many States would require
legislation redefining the age of criminal responsibility, eliminating
or amending youthful offender statutes, making changes to direct-file
and transfer laws, or limiting judicial discretion to determine where a
youth should be placed. Given the current state of knowledge regarding
youth in adult facilities, and the availability of more narrowly
tailored approaches to protecting youth, the Department has decided not
to impose a complete ban at this time through the PREA standards. As
noted above, BJS is currently collecting additional data regarding this
issue, and the Department reserves the right to reexamine this question
if warranted.
Juveniles in adult facilities can be protected from sexual abuse by
adult inmates by preventing unsupervised contact with adult inmates.
The Department adopts a final standard aimed at preventing such
unsupervised contact without inadvertently causing other harm to youth.
First, the standard bans the placement of youth in housing units
where they interact with adults. Youth are vulnerable to abuse not only
by cellmates, but also by adults in their unit who may have contact
with them. To be sure, if youth have their own cells, and if the
housing unit lacks a common day room or shower area, then such dangers
are sufficiently mitigated. Thus, the standard requires that no
youthful inmate be placed in a housing unit in which he or she will
have sight, sound, or physical contact with any adult inmate through
use of a shared day room or other common space, shower area, or
sleeping quarters.
Second, the standard limits interactions between youthful and adult
inmates in other areas of the facility. The most basic way to limit
such interaction is to ensure sight and sound separation. However, some
facilities may find it infeasible to achieve total sight and sound
separation without resorting to the use of isolation and denial of
programming, which raise significant concerns of their own, as
discussed below. Thus, the standard provides additional flexibility by
allowing youthful inmates to commingle with adult inmates as long as
direct staff supervision is provided. Such supervision must be
sufficient to ensure that youth are within sight at all times.
Third, the standard restricts the use of isolation of youth as a
means of compliance with the requirements discussed above. While
confining youth to their cells is the easiest method of protecting them
from sexual abuse, such protection comes at a cost. Isolation is known
to be dangerous to mental health, especially among youth. Among other
things, isolation puts youth at greater risk of committing suicide. A
recent survey of juvenile suicides in confinement found that 110
suicides occurred in juvenile facilities between 1995 and 1999.
Analyzing those suicides for which information was available, the
survey determined that 50.6 percent of the suicides occurred when
inmates were confined to their rooms outside of traditional nonwaking
hours as a behavioral sanction.\17\ (To be sure, the suicide risk may
be higher among juveniles who are committed to isolation as punishment,
rather than among juveniles isolated for protection from the general
population, as is more common in adult facilities.)
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\17\ See Lindsay Hayes, Juvenile Suicide in Confinement: A
National Survey at 10, 28-29 (Feb. 2004).
---------------------------------------------------------------------------
Youth appear to be at increased risk of suicide in adult
facilities, although the extent to which isolation is a contributing
factor is unknown. Based on the BJS Deaths in Custody Reporting
Program, 2000-2007, 36 under-18 inmates held in local jails died as a
result of suicide (with the number varying from 3 to 7 each year). The
suicide rate of youth in jails was 63.0 per 100,000 under-18 inmates,
as compared to 42.1 per 100,000 inmates overall, and 31 per 100,000
inmates aged 18-24. (By contrast, in the general population, the
suicide risk is twice as high for persons aged 18-24 than for persons
under 18.) The suicide rate of youth was approximately six times as
high in jails than among 15- to 19-year-olds in the U.S. resident
population
[[Page 37130]]
with a comparable gender distribution (10.4 per 100,000 in 2007).\18\
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\18\ See Margaret E. Noonan, BJS, Deaths in Custody: Local Jail
Deaths, Table 9 (Oct. 28, 2010); Margaret E. Noonan, BJS, Mortality
in Local Jails, 2000-2007, Table 9 (July 2010); BJS, 2002 Survey of
Inmates in Local Jails (unpublished data); BJS, Annual Survey of
Jails, 2007 (unpublished data); Melonie Heron, Ph.D., National Vital
Statistics System, Deaths: Leading Causes for 2007, 59 National
Vital Statistics Reports, No. 8, table 1 (Aug. 26, 2011); BJS,
Deaths in Custody Reporting Program, 2002-2005, available at http://bjs.ojp.usdoj.gov/content/dcrp/juvenileindex.cfm; Census of
Juveniles in Residential Placement, 2001, 2003, and 2006, data
available at http://www.ojjdp.gov/ojstatbb/ezacjrp/asp/selection.asp. Although the rate among 15- to 19-year-olds in the
U.S. resident population was 6.9 per 100,000, the estimated rate for
a comparable gender distribution is higher after adjusting for the
fact that 92.3% of youth held in jails were male.
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Accordingly, the standard requires that agencies make their best
efforts to avoid placing youth in isolation in order to comply with
this standard. For example, rather than relying on the use of
isolation, agencies should attempt to designate dedicated units, wings,
or tiers for confined youth; enter into inter-agency, inter-facility,
or cooperative agreements for the common placement of youth;
temporarily house youth in a juvenile facility; construct partitions or
other low-cost facility alterations; or explore alternatives to
detention or incarceration for youth in the agency's custody and care.
If isolation is unavoidable, the final standard requires that, absent
exigent circumstances, agencies provide youth with daily large-muscle
exercise and any special education services otherwise mandated by law.
Youth also shall have access to other programs and work opportunities
to the extent possible. The Department believes it is not necessary to
impose the additional requirements suggested by former NPREC members.
Requiring a facility to abide by the standards for juvenile facilities
in addition to the standards for adult prisons and jails could lead to
confusion and is unlikely to have an impact on the safety of the youth.
Nor is it likely that mandating visits by staff or visual checks would
provide enhanced protection beyond the basic sight and sound
separation.
The Department is mindful of agency concerns regarding cost,
feasibility, and preservation of State law prerogatives. The final
standard affords facilities and agencies flexibility in devising an
approach to protecting youth. Compliance may be achieved by (1)
Confining youth to a separate unit, (2) transferring youth to a
facility within the agency that enables them to be confined to a
separate unit, (3) entering into a cooperative agreement with an
outside jurisdiction to enable compliance, or (4) ceasing to confine
youth in adult facilities as a matter of policy or law. Agencies may,
of course, combine these approaches as they see fit.
The Department has decided not to incorporate into the standards
for adult prisons and jails the JJDPA requirements that apply to
juveniles who are not tried as adults. As noted above, Sec. 115.14
applies only to juveniles under the jurisdiction of adult courts,
whereas the JJDPA's separation requirement applies only to juveniles
who are alleged to be or are found to be delinquent, juveniles who are
charged with or who have committed an offense that would not be
criminal if committed by an adult, or juveniles who are not charged
with any offense at all. See 42 U.S.C 5633(a)(11)-(12).
The high degree of compliance with the JJDPA indicates that the
incentives and penalties under the Act are operating successfully to
ensure that juveniles who are tried as juveniles are not intermingled
with adults except under the narrow circumstances the JJDPA allows. As
discussed above, the purposes of the two statutes are different: The
JJDPA aims to protect youth and discourage delinquency, whereas PREA is
more narrowly limited to preventing sexual abuse. Thus, only a portion
of the requirements that States must fulfill in order to receive JJDPA
grants is relevant to protecting youth from sexual abuse. The
Department concludes that to import such requirements in a piecemeal
manner could risk confusion and would not materially increase the
protection of youth in the juvenile justice system.
Limits to Cross-Gender Viewing and Searches (Sec. Sec. 115.15,
115.115, 115.215, 115.315)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.14, 115.114, 115.214, and 115.314) prohibited cross-gender pat-down
searches in juvenile facilities, but did not impose a general ban in
other facilities. The proposed standard did, however, require agencies
to exempt from non-emergency pat-down searches those inmates who have
suffered prior cross-gender sexual abuse while incarcerated. That
provision attempted to address the possibility that an inmate who has
experienced prior sexual abuse would experience a cross-gender pat-down
search as particularly traumatizing, even if the search was conducted
properly.
The proposed standard also prohibited cross-gender strip searches
absent an emergency situation or when conducted by a medical
practitioner, and required documentation for cross-gender strip
searches.
Recognizing that transgender inmates may be traumatized by genital
examinations, the proposed standard prohibited examining a transgender
inmate to determine genital status, unless genital status is unknown,
in which case such an examination would be conducted in private by a
medical practitioner. The proposed standard also required facilities to
minimize opposite-gender viewing of inmates as they shower, perform
bodily functions, or change clothes. The standard provided an exception
for such viewing where incidental to routine cell checks.
The proposed standard also required agencies to train security
staff in properly conducting cross-gender pat-down searches, and
searches of transgender inmates, in a professional and respectful
manner, and in the least intrusive manner possible, consistent with
security needs.
Changes in Final Rule
The most significant change in this standard is the inclusion of a
ban on cross-gender pat-down searches of female inmates in adult
prisons and jails and in community confinement facilities, absent
exigent circumstances. To facilitate compliance, most facilities will
have three years to comply. Recognizing that this requirement may be
more difficult for smaller facilities to implement, facilities with a
rated capacity of less than 50 inmates are provided five years in which
to implement the ban. The final standard also clarified that women's
access to programming or out-of-cell opportunities should not be
restricted to comply with this provision. In addition, the final
standard requires facilities to document all cross-gender searches of
female inmates.
The final standard retains the general rule against cross-gender
strip searches and body cavity searches and clarifies that ``body
cavity searches'' means searches of the anal or genital opening. The
exception for medical practitioners has been retained; the emergency
exception has been replaced with an exception for ``exigent
circumstances'' to be consistent with similar changes from
``emergency'' to ``exigent'' throughout the final standards.
The final standard imposes a complete ban on searching or
physically examining a transgender or intersex inmate for the sole
purpose of determining the inmate's genital status. Rather, if the
inmate's genital status is unknown, it may be determined during
conversations with the inmate, by
[[Page 37131]]
reviewing medical records, or, if necessary, by learning that
information as part of a broader medical examination conducted in
private by a medical practitioner. The final standard also retains the
requirement for agencies to train security staff in conducting
professional and respectful cross-gender pat-down searches and searches
of transgender inmates, in the least intrusive manner possible,
consistent with security needs. The final standard extends these
protections to intersex inmates as well.
The final standard retains the requirement that each facility
implement policies and procedures that enable inmates to shower,
perform bodily functions, and change clothing without nonmedical staff
of the opposite gender viewing their breasts, buttocks, or genitalia,
except in the case of emergency (now reworded as ``exigent
circumstances''), or when such viewing is incidental to routine cell
checks. The final standard removes ``by accident'' from the list of
exceptions, and adds a requirement that staff of the opposite gender
announce their presence when entering an inmate housing unit.
The final standard retains the ban on cross-gender pat-down
searches for all residents in juvenile facilities, and narrows the
exceptions to the ban to include only exigent circumstances.
Comments and Responses
Comments on cross-gender pat-down searches. The issue of cross-
gender pat-down searches generated a substantial number of comments. In
general, advocates strongly supported a ban on all cross-gender pat-
down searches, as did two members of Congress. Some correctional
commenters also noted that same-gender pat-down searches are accepted
practice, but emphasized the need for an exception that would permit
cross-gender pat-down searches in exigent circumstances. Advocates
suggested that a ban on cross-gender pat-down searches could be
accomplished with minimal expense by limiting pat-down searches to
areas with a high contraband risk, or assigning a roving officer to
various posts. Most current and former inmates also supported a ban on
all cross-gender pat-down searches. Other commenters stated that cross-
gender searches contribute to a sexualized environment. Two commenters
went further by proposing limits to cross-gender supervision, not just
cross-gender searches.
A number of advocates strongly recommended that, at a minimum, the
final standard prohibit cross-gender pat-down searches of women. Citing
a 1999 study conducted by the National Institute of Corrections,
advocates suggested that numerous States currently ban cross-gender
pat-down searches of female inmates. A handful of commenters
recommended that such a ban be phased in over a period of two or three
years to ease the transition.
In general, agency commenters supported the proposed standard as
written regarding cross-gender searches. Several State correctional
agencies remarked that prohibiting cross-gender pat-down searches of
female inmates was feasible, but that it would be difficult to extend a
cross-gender ban to male inmates. Other agency commenters stated that
the training requirement would address any problems with cross-gender
searches.
Commenters noted that gender-based requirements could implicate
laws that bar discrimination in employment on the basis of sex. Of
these commenters, most expressed concern regarding the possibility of a
standard that prohibited both male-on-female pat-down searches and
female-on-male cross-gender pat-down searches. A smaller number of
commenters expressed similar concerns with regard to the possibility of
a standard that prohibited only male-on-female searches. A larger
number, however, expressed confidence that a ban on cross-gender pat-
down searches of female inmates could be implemented in a manner that
would not violate employment laws. Several correctional agency
commenters observed that requiring same-gender pat-down searches of
female inmates, except in exigent circumstances, is already an accepted
practice in adult prisons and jails.
Multiple agency commenters expressed concern that a complete
prohibition on cross-gender pat-down searches could violate collective
bargaining agreements, which affect staff assignments, if the
prohibition prevented staff of a particular gender from retaining a
particular assignment.
Both advocacy and agency commenters strongly criticized the
exemption from cross-gender pat-down searches for inmates who have
suffered documented prior cross-gender sexual abuse while incarcerated.
Commenters expressed concern that inmates who avail themselves of the
exemption would be labeled and ostracized, and would possibly be
putting themselves at greater risk for further abuse. Commenters
expressed doubt that inmates would be willing to reveal their sexual
abuse history in such a manner, which would likely become known to a
significant number of staff and inmates if only victims of prior abuse
were exempted from cross-gender pat-down searches. A number of former
inmates also expressed skepticism that requests for exemptions would
actually be honored.
Response. The Department is persuaded that adopting a standard that
generally prohibits cross-gender pat-down searches of female inmates in
prisons and jails will further PREA's mandate of preventing sexual
abuse without compromising security in corrections settings, infringing
impermissibly on the employment rights of officers, or adversely
affecting male inmates. The final standard prohibits cross-gender pat-
down searches of female inmates and residents in adult prisons, jails,
and community confinement facilities, absent exigent circumstances, but
does not prohibit such searches of male inmates. With regard to
juvenile facilities, the final standard retains the proposed standard's
prohibition on all cross-gender pat-down searches of either male or
female residents, absent exigent circumstances.
Pat-down searches are a daily occurrence in corrections settings
and, when performed correctly, require staff to have intimate bodily
contact with inmates. Although most pat-down searches are conducted
legitimately by conscientious staff, it can be difficult to distinguish
between a pat-down search conducted for legitimate security purposes
and one conducted for the illicit gratification of the staff person,
which would constitute sexual abuse.
Female inmates are especially vulnerable owing to their
disproportionate likelihood of having previously suffered abuse. A BJS
survey conducted in 2004 found that 42 percent of female State
prisoners and 28 percent of female Federal prisoners reported that they
had been sexually abused before their current sentence, as compared to
6 percent of male State prisoners and 2 percent of male Federal
prisoners. A BJS survey of jail inmates, conducted in 2002, found that
36 percent of female inmates reported sexual abuse prior to
incarceration, compared to 4 percent of male inmates.\19\ According to
studies, women with histories of sexual abuse--including women in
prisons and jails--are particularly traumatized by subsequent
abuse.\20\ In addition, even a
[[Page 37132]]
professionally conducted cross-gender pat-down search may be traumatic
and perceived as abusive by inmates who have experienced past sexual
abuse. See Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (en
banc) (striking down cross-gender pat-downs of female inmates as
unconstitutional ``infliction of pain'' where there was evidence that a
high percentage of the female inmate population had a history of
traumatic sexual abuse by men and were being re-traumatized by the
cross-gender pat-down searches). Thus, even a professionally conducted
male-on-female pat-down search increases the risk of harm to female
inmates, who have a high prevalence of past prior abuse. See id. at
1525 (affirming district court holding that there ``is a high
probability of great harm, including severe psychological injury and
emotional pain and suffering, to some inmates, from these searches,
even if it was properly conducted'').
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\19\ BJS, unpublished data, 2004 Survey of Inmates in State and
Federal Correctional Facilities and 2002 Survey of Inmates in Local
Jails.
\20\ See Catherine C. Classen, Oxana Gronskaya Palesh, & Rashi
Aggarwal, Sexual Revictimization: A Review of the Empirical
Literature, 6 Trauma, Violence, & Abuse 103, 117 (2005) (``There is
considerable evidence that sexual revictimization is associated with
more distress compared to one incident of sexual victimization. * *
* The general finding appears to be that women who are revictimized
suffer more PTSD symptoms''); Barbara Bloom, Barbara Owen, and
Stephanie Covington, Gender-Responsive Strategies: Research,
Practice, and Guiding Principles for Women Offenders, at 37, NIC
(2003) (``In addition, standard policies and procedures in
correctional settings (e.g., searches, restraints, and isolation)
can have profound effects on women with histories of trauma and
abuse, and often act as triggers to retraumatize women who have
post-traumatic stress disorder (PTSD).''); Danielle Dirks, Sexual
Revictimization and Retraumatization of Women in Prison, 32 Women's
Stud. Q. 102, 102 (2004) (``For women with previous histories of
abuse, prison life is apt to simulate the abuse dynamics already
established in these women's lives, thus perpetuating women's
further revictimization and retraumatization while serving time.'').
In 2009, the Department's Office of the Inspector General, in a
report on BOP's efforts at combating sexual abuse by staff, noted
that ``because female prisoners in particular often have histories
of being sexually abused, they are even more traumatized by further
abuse inflicted by correctional staff while in custody.'' OIG,
United States Department of Justice, The Department of Justice's
Efforts to Prevent Staff Sexual Abuse of Federal Inmates at 1
(2009).
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Most staff sexual abuse of female inmates is committed by male
staff. The BJS National Inmate Survey found that 71.8 percent of female
prisoners who were victims of sexual abuse by staff reported that the
staff perpetrator was male in every instance, compared to 9.3 percent
who reported that the staff perpetrators were exclusively female.\21\
Furthermore, 36.7 percent of female inmates who reported sexual
touching indicated that they experienced sexual touching during a pat-
down search.
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\21\ See BJS, Sexual Victimization in Prisons and Jails Reported
by Inmates, National Inmate Survey, 2008-09, at 24. Corresponding
figures in jails were 62.6% and 27.6%, respectively. Numbers do not
sum to 100% because some inmates reported being victimized by both
male and female staff.
---------------------------------------------------------------------------
An analysis of allegations reported by BOP inmates to BOP's Office
of Internal Affairs, conducted by the Department's Office of the
Inspector General (OIG), provides further indication of vulnerability
of female inmates to sexual abuse at the hands of male staff. OIG found
that, from fiscal year 2001 through 2008, 45.6 percent of all
allegations of criminal cross-gender sexual abuse committed by BOP
staff were lodged by female prisoners, even though women made up less
than 7 percent of the BOP population.\22\ BOP did not prohibit cross-
gender pat-down searches of female inmates during this time period, and
OIG reported that ``BOP officials believed that male staff members were
most often accused of sexual misconduct stemming from pat searches.''
\23\
---------------------------------------------------------------------------
\22\ See OIG, United States Department of Justice, The
Department of Justice's Efforts to Prevent Staff Sexual Abuse of
Federal Inmates at 26-28 (2009). Three hundred and twenty-five
allegations of criminal sexual abuse were made by female inmates
against male staff, as compared to 382 allegations by male inmates
against female staff.
\23\ See id. at 26.
---------------------------------------------------------------------------
A thorough pat-down search requires staff to engage in intimate
touching of the inmate's clothed body, including the breasts, buttocks,
and genital regions. Given that female inmates are significantly more
likely to be sexually abused by male officers than by female officers,
the Department determined that it would be prudent, as a prophylactic
measure to decrease the risk of sexual abuse, to prohibit the
necessarily intimate touching that occurs during routine cross-gender
pat-down searches and that may inadvertently contribute to the
development of a sexualized environment within a facility. A ban on
cross-gender pat-down searches of female inmates, absent exigent
circumstances, is consistent with effective corrections policy, as
evidenced by the fact that a significant number of State and local
corrections systems already abide by such a restriction, as discussed
below.
Currently, as a matter of law or policy, most State prison systems
do not conduct cross-gender pat-down searches of female inmates, absent
exigent circumstances. At the request of the Department's PREA Working
Group, the National Institute of Corrections (NIC) conducted a survey
of State corrections systems and found that at least 27 States ban the
practice, and that it is common practice in several other States for
male officers to perform pat-down searches of female prisoners only
under exigent circumstances. While comparable data from jails are
unavailable, representatives of twelve large jail agencies who attended
a PREA listening session convened by the Department all stated that
they do not permit cross-gender pat-down searches of females. The
Department is not aware of any cases successfully challenging the
practice of banning only cross-gender pat-down searches of female
prisoners, despite the widespread prevalence of these restrictions.
The Department believes that laws that prohibit employment
discrimination on the basis of sex pose no obstacle to the
implementation of this standard. Rather, the prohibition of cross-
gender pat-down searches of female inmates can (and must) be
implemented in a manner consistent with Federal laws prohibiting sex
discrimination in employment, to ensure that implementation has only a
de minimis impact on employment opportunities, or, if the impact is
more than de minimis, that any sex-based limitations on employment
opportunities satisfy the bona fide occupational qualification
requirement of Federal employment law.
Notably, female inmates make up a very small proportion of the
total number of incarcerated individuals.\24\ The small proportion of
female inmates provides further support for agencies' ability to
implement a ban on cross-gender pat-down searches of female inmates
without negatively impacting employment opportunities.
---------------------------------------------------------------------------
\24\ See BJS, Annual Survey of Jails (2010) (12% of jail inmates
are female); BJS, Prisoners in 2009 (7% of prison inmates are
female).
---------------------------------------------------------------------------
Title VII of the Civil Rights Act of 1964 states that ``it shall
not be an unlawful employment practice for an employer to hire and
employ employees * * * on the basis of * * * sex * * * where * * * sex
* * * is a bona fide occupational qualification [``BFOQ''] reasonably
necessary to the normal operation of that particular business or
enterprise.'' 42 U.S.C. 2000e-2(e)(1).\25\ However, employment
decisions that have only a de minimis effect on the employment
opportunities of
[[Page 37133]]
correctional employees do not trigger or require a BFOQ analysis.
---------------------------------------------------------------------------
\25\ The BFOQ language is found in the section of Title VII that
pertains to private employers and State and local government
employers. The section of Title VII that applies to executive branch
agencies such as BOP does not expressly set forth a BFOQ defense.
See 42 U.S.C. 2000e-16(a). While the Department is not aware of any
case law on the issue, the Equal Employment Opportunities Commission
has applied the Title VII BFOQ defense in petitions against Federal
employers. See, e.g., Gray v. Nicholson, EEOC DOC 0720050093 (Feb.
9, 2007). Accordingly, the Department believes that the defense
would be available to BOP and other Federal employers on the same
terms as other employers.
---------------------------------------------------------------------------
To establish a BFOQ defense, a facility must show that a gender-
based job qualification is related to the essence or central function
of the facility, and that the qualification is reasonably necessary to
the normal operations of the facility. See Dothard v. Rawlinson, 433
U.S. 321, 332-37 (1977) (holding that exclusion of females in contact
positions in Alabama's violent male maximum security prisons may
satisfy BFOQ requirement). However, the requirement that only female
staff perform pat-down searches on female inmates is unlikely to
require a BFOQ for single-sex employment positions in a facility
because, as shown by nationwide experience, facilities will almost
always be able to implement the requirement in a minimally intrusive
way that has only a de minimis effect on employment opportunities. See
Tharp v. Iowa Dep't of Corr., 68 F.3d 223, 226 (8th Cir. 1995) (en
banc) (holding that a prison employer's reasonable gender-based job
assignment policy, particularly a policy that is favorable to the
protected class of women employees, will be upheld if it imposes only a
minimal restriction on other employees, and therefore a BFOQ analysis
was unnecessary).
Sex-based assignment policies in correctional facilities often
impose only a de minimis restriction on the employment opportunities of
male officers when facilities preclude male employees from working only
a small percentage of certain shifts or job posts at particular
facilities but make numerous comparable shifts or posts available to
males. See Robino v. Iranon, 145 F.3d 1109, 1110-11 (9th Cir. 1998)
(restricting six out of 41 guard positions to women had a de minimis
effect). When only minor adjustments of staff schedules and job
responsibilities are at issue, the effect on employment rights is de
minimis. See Jordan, 986 F.2d at 1539 (Reinhardt, J. concurring);
Tipler v. Douglas Cnty., 482 F.3d 1023, 1025-27 (8th Cir. 2007)
(temporary reassignments with no effect on promotional opportunities
had a de minimis effect); Tharp, 68 F.3d at 225-27 (policy requiring
female residential advisors to staff a women's unit in a mixed-gender
minimum security had a de minimis effect because the prison's male
employees did not suffer termination, demotion, or a reduction in pay).
Agencies may implement a ban on cross-gender pat-down searches of
female inmates in the manner most appropriate for each facility.
Facilities and agencies should strive to implement this provision
in a manner that has a de minimis effect so that a BFOQ inquiry is not
required. If a facility or agency implements the cross-gender pat-down
ban in a way that creates materially adverse changes in the terms and
conditions of employment by precluding staff of either sex from certain
positions entirely, thereby affecting their promotions, additional pay,
seniority, or future eligibility for senior positions, then the
facility would be required to conduct a BFOQ inquiry. As noted above,
such an inquiry must demonstrate that the manner of implementation is
both related to the central function of the facility and reasonably
necessary for the successful operation of the facility. See Dothard,
433 U.S. at 335-37. There are numerous ways in which facilities can
eliminate cross-gender pat-down searches of female inmates, in
conformance with employment laws. For example, agencies can assign or
rotate female staff to certain key posts within the facility, so long
as female staff are not limited in their opportunities for advancement
as compared to similarly situated male staff; provide for female float
staff who can conduct searches as necessary; allow staff to transfer
between agency facilities to achieve better gender balance; or
implement institutional schedules that maximize availability of female
staff for pat-down searches of female inmates.
It is important to note that the standard prohibiting cross-gender
pat-down searches does not, in and of itself, create or establish a
BFOQ defense to claims of sex discrimination in employment. If a
correctional facility cannot implement this standard in a manner that
imposes only a de minimis impact on employment opportunities for either
sex, it must undertake an individualized assessment of its particular
policies and practices and the particular circumstances and history of
its inmates to determine whether altering or reserving job duties or
opportunities to one sex would justify a BFOQ defense with respect to
each particular employment position or opportunity potentially affected
by the agency's implementation of the standards.
Female-preference sex-based employment assignments in correctional
facilities can meet the BFOQ standard if such assignments are
reasonably necessary to the normal operation of the particular
facilities at which they are used. This is a high standard. For
example, one agency used its history of rampant sexual abuse of female
prisoners to justify a BFOQ and designate 250 corrections officer and
residential unit officer positions in the housing units of State female
prisons as ``female only.'' The facially discriminatory plan, which
affected a significant number of male officers, was permissible because
sex was a BFOQ for these particular facilities based on the facilities'
histories. See Everson v. Michigan Dep't of Corr., 391 F.3d 737, 747-61
(6th Cir. 2004). Additionally, based on the totality of the
circumstances at a specific facility, sex may be a BFOQ for all
positions in the living units of a women's maximum security prison
where the practice of employing only female guards in these positions
is reasonably necessary to the goal of female prisoner rehabilitation.
See Torres v. Wisconsin Dep't of Health & Human Servs., 859 F.2d 1523,
1530-32 (7th Cir. 1988) (en banc).
However, female-preference sex-based staffing polices do not meet
the high standard necessary to establish a BFOQ defense without a high
correlation between sex and ability to perform a particular position.
See Breiner v. Nevada Dep't of Corr., 610 F.3d 1201, 1213 (9th Cir.
2010). For example, being female was not a BFOQ for all three
lieutenant positions at a women's correctional facility because the
facility did not demonstrate that precluding men from serving in
supervisory positions in women's prisons was necessary to meet its goal
of reducing instances of sexual abuse of female inmates by male
correctional officers. See id. at 1210-16. A policy banning male
officers from all posts in female housing units also did not meet the
requirements necessary to establish a BFOQ defense when it was
predicated on a few unspecified past incidents of sexual misconduct and
generalized arguments that the mere presence of males caused distress
to past victims of sexual abuse. See Westchester Cnty. Corr. v. Cnty.
of Westchester, 346 F. Supp. 2d 527, 533-36 (S.D.N.Y. 2004).
In addition, the final standard allows all facilities with more
than 50 beds three years from the effective date of the PREA standards
for implementation, and five years for facilities smaller than 50 beds.
This extended time frame provides facilities of all sizes and security
levels with ample opportunity to develop and implement a practice that
will protect female prisoners without undue burden on the operations of
the facility. Furthermore, to the extent that agencies want to increase
their percentage of female staff to facilitate compliance with the
standards, agencies can take advantage of natural attrition to recruit
and hire additional female staff without terminating male staff. Most
agencies will be able to implement the ban in a
[[Page 37134]]
manner that has only a de minimis effect on employment opportunities
and assignments for male employees. And given the lengthy time period
allowed to come into compliance, and the level of discretion retained
by agencies, the Department believes that the standard can be
implemented in accordance with collective bargaining agreements.
The Department has chosen not to include in the final standard a
similar prohibition on female staff conducting pat-down searches of
male inmates. The Department concludes that the benefit of prohibiting
cross-gender pat-down searches of male inmates is significantly less
than the benefit of prohibiting cross-gender pat-down searches of
female inmates, whereas the costs of the former are significantly
higher than the costs of the latter. A ban on cross-gender pat-down
searches only of female prisoners does not violate the Equal Protection
Clause of the Fourteenth Amendment because male and female prisoners
are not similarly situated with respect to bodily searches. Male
inmates are far less likely than female inmates to have a history of
traumatic sexual abuse and are less likely to experience the
retraumatization that may affect female inmates due to a cross-gender
pat-down search. See Laing v. Guisto, 92 Fed. Appx. 422, 423 (9th Cir.
2004); Timm v. Gunter, 917 F.2d 1093, 1102-03 (8th Cir. 1990); Jordan,
986 at 1525-27; Tipler, 482 F.3d at 1027-28; Colman v. Vasquez, 142 F.
Supp. 2d 226, 232 (D. Conn. 2001).
With regard to cost, the Department reaffirms its assessment, as
stated in the proposed rule, that a ban on cross-gender pat-down
searches of male inmates would impose significant financial costs and
could limit employment opportunities for women. The correctional
population remains overwhelmingly male: 88 percent of jail inmates and
93 percent of prison inmates are men. Correctional staff, by contrast,
are considerably more balanced by sex: according to BJS data, 25
percent of Federal and State correctional officers were female as of
2005, and 28 percent of correctional officers in local jails were
female as of 1999.\26\ Female participation in the correctional
workforce has been increasing over the past two decades, and it is
likely that the disparity between the percentage of female correctional
staff and the percentage of female inmates will continue to grow. In
addition, there is significant variation across States: The percentage
of female correctional officers in State prisons ranges from 9 percent
in Rhode Island to 63 percent in Mississippi. Jurisdiction-level data
are not available for local jails, but statewide data indicate that the
comparable aggregate percentages range from 8 percent in Massachusetts
to 43 percent in Nebraska. In the growing number of correctional
agencies where the percentage of female correctional staff is
substantial, but the female inmate population is (as in most places)
quite small, it could be difficult to implement a ban on female staff
patting down male inmates without a significant adverse impact on
employment opportunities for women, who would be unable to occupy
correctional positions that involve patting down male inmates, and
whose prospects for advancement could suffer as a result. See Madyun v.
Franzen, 704 F.2d 954, 962 (7th Cir. 1983) (gender-based distinctions
allowing women to serve as guards in male prisons and perform tasks
that are not open to men in female prisons serves the important
governmental objective of equal job opportunity for women in fields
traditionally closed to them). In addition, in facilities with a high
percentage of female staff, there could be an insufficient number of
male staff to perform pat-down searches on male inmates, given the
overwhelmingly male nature of the inmate population.
---------------------------------------------------------------------------
\26\ See James J. Stephan, BJS, Census of State and Federal
Correctional Facilities, 2005, Appendix Table 12 (Oct. 2008); James
J. Stephan, BJS, Census of Jails, 1999, at 9, 26 (Aug. 2001).
---------------------------------------------------------------------------
To be sure, in adopting a one-way ban, the Department does not
suggest that male inmates are less likely to have experienced cross-
gender sexual abuse while incarcerated than female inmates. In the most
recent BJS survey, male inmates were somewhat more likely to report
having experienced staff sexual misconduct than female inmates (in
prisons, 2.9 percent vs. 2.1 percent; in jails, 2.1 percent vs. 1.5
percent), and were about as likely as female inmates to report that the
perpetrator was always of the opposite sex (in prisons, 68.8 percent
vs. 71.8 percent; in jails, 64.3 percent vs. 62.6 percent).\27\ The
Department also acknowledges that the same survey indicated that male
inmates were nearly as likely as female inmates to report sexual
touching in a pat-down search: 36.3 percent of male inmates who
reported sexual touching indicated that it had occurred at least once
during a pat-down search, compared to 36.7 percent of the corresponding
set of female inmates.\28\ However, when evaluating the prevalence of
cross-gender sexual abuse of female inmates, this statistic could be
misleading in light of the fact that, as noted above, many facilities
nationwide--which may well collectively house a majority of all
inmates--already prohibit cross-gender pat-down searches of female
inmates absent exigent circumstances. Therefore, a large percentage of
female inmates are currently not subject to cross-gender pat-down
searches as a matter of course. This discrepancy may well explain why
male and female inmates are roughly equally likely to report sexual
touching in a pat-down search.
---------------------------------------------------------------------------
\27\ See Allen J. Beck and Paige M. Harrison, BJS, Sexual
Victimization in Prisons and Jails Reported by Inmates, 2008-09, at
12, 24.
\28\ See id. at 24.
---------------------------------------------------------------------------
The experience of BOP, which has not prohibited cross-gender pat-
down searches, is illustrative. As noted above, female inmates lodged
45.6 percent of all allegations of criminal cross-gender sexual abuse
committed by BOP staff, even though less than 7 percent of the BOP
population was female. Unlike a majority of State correctional
agencies, BOP allowed male correctional staff to perform pat-down
searches of female inmates, which may explain why BOP experienced a
gender imbalance in allegations that was not shared nationwide. Indeed
(as also noted above), according to the OIG report, BOP officials
believed that pat-down searches were the most common source of
allegations of sexual misconduct against male staff members.
The final rule does not include a similar restriction on cross-
gender pat-down searches of female detainees in lockups due to the
smaller size, limited staffing numbers, lack of data on incidence of
sexual abuse in these institutions, and minimal number of comments
directed at lockups. In addition, a pat-down search of a lockup
detainee is often conducted by the same police officer who performed a
similar search of the detainee upon arrest in the field. Therefore, it
would be impractical to impose different search rules once the officer
and detainee reach the lockup doors. While recognizing that a blanket
restriction would be unworkable, the Department encourages lockups to
avoid cross-gender pat-down searches of female detainees, to the extent
feasible.
Finally, the Department has removed the provision that mandated a
specific exemption from cross-gender pat-down searches for inmates who
have suffered documented prior cross-gender sexual abuse while
incarcerated. The prohibition of cross-gender pat-down searches of
female inmates largely obviates the need for this exemption, and the
Department concludes that the potential benefits of retaining the
exemption only for male inmates are
[[Page 37135]]
outweighed by the disadvantages noted by commenters.
Comments regarding juvenile cross-gender pat-down searches.
Agencies generally agreed with the gender-neutral ban on pat-down
searches in juvenile facilities, so long as exceptions were permitted
in certain circumstances. One large State expressed significant concern
regarding the cost of implementing the part of the ban that prohibits
female staff from conducting pat-down searches of male juveniles. Some
organizations supported strengthening the standard to limit the
exceptions to exigent circumstances only.
Response. The Department concludes that a gender-neutral cross-
gender pat-down search ban in juvenile facilities is required to help
protect youth from staff sexual misconduct.
The percentage of staff-on-resident victimization that involves
female staff and male residents is much higher than the analogous
percentage in adult facilities. A recent BJS survey indicated that 92
percent of all youth reporting staff sexual misconduct were males
reporting victimization exclusively by female staff, compared to 65
percent in adult prisons and 58 percent in jails.\29\ The Department
agreed with commenters who recommended allowing such searches only in
``exigent circumstances.'' The Department removed the exception for
``other unforeseen circumstances'' because the phrase is too vague and
could lead to excessive reliance on the exception. The Department
intends the exception to the cross-gender pat-down search ban to be
limited to rare instances where truly emergent conditions exist.
---------------------------------------------------------------------------
\29\ Beck, BJS, Sexual Victimization in Juvenile Facilities
Reported by Youth, 2008-2009 (Jan. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf; Beck & Harrison,
BJS, Sexual Victimization in Prisons and Jails Reported by Inmates,
2008-09, at 24.
---------------------------------------------------------------------------
Comments regarding searches of transgender and intersex inmates. A
number of advocates urged that transgender and intersex inmates be
allowed to state a preference regarding the gender of the staff
searching them, or that a presumption be created that transgender or
intersex inmates be searched by female staff, because transgender and
intersex persons are often perceived as female and are at high risk of
being targeted by male staff for sexual violence and harassment.
Numerous commenters, including both advocates and agency commenters,
requested guidance on this issue.
Many advocates urged the Department to prohibit examinations of
transgender and intersex inmates, even by medical professionals, solely
to determine genital status. Such examinations can be highly traumatic,
commenters asserted, whereas the information regarding genital status
can be obtained by questioning the person or by review of medical
files. Commenters noted that transgender and intersex juveniles are
particularly likely to be traumatized by such examinations.
Response. The Department agrees that guidance is needed on properly
searching transgender and intersex inmates. This guidance should be
detailed and workable for facilities, should adequately protect
transgender and intersex people, and is best provided by the National
Resource Center for the Elimination of Prison Rape.
The final standard does not include a provision allowing individual
inmates to state a preference for the gender of their searcher, because
such requests have the potential to be arbitrary and disruptive to
facility administration. Rather, the Department believes that the
concerns that prompted such a proposal can be addressed by properly
assigning (or re-assigning) transgender and intersex inmates to
facilities or housing units that correspond to their gender identity,
and not making housing determinations based solely on genital status.
Agencies should also recognize that the proper placement of a
transgender inmate may not be a one-time decision, but may need to be
reevaluated to account for a change in the status of the inmate's
gender transition. For example, an inmate who is initially assigned to
a male facility or unit may subsequently merit a move to a female
facility or unit (or vice versa) following hormone treatment or
surgery. Finally, searches of both transgender and intersex inmates at
intake, before a housing determination has been made, may present
special challenges. In such cases, facilities should make individual
assessments of inmates who may be transgender or intersex and consult
with the inmate regarding the preferred gender of the staff member who
will perform the search.
The final standard does include additional safeguards to protect
transgender and intersex inmates from examinations solely to determine
genital status. Such targeted examinations will rarely be warranted, as
the information can be gathered without the need for a targeted
examination of a person's genitals. Accordingly, the final standard
states that, if an inmate's genital status is unknown, a facility
should attempt to gain the information by speaking with the inmate or
by reviewing medical records. In the rare circumstances where a
facility remains unable to determine an inmate's genital status, the
Department recognizes that the facility may have to conduct a medical
examination. Any such medical examination, however, should be conducted
as part of a regular medical examination or screening that is required
of or offered to all inmates. Transgender and intersex inmates should
not be stigmatized by being singled out for specific genital
examinations.
Comments regarding privacy. Advocates expressed concern that the
standard allowed nonmedical staff of the opposite gender to view
inmates as they shower, perform bodily functions, or change clothing,
as long as such viewing is incidental to routine cell checks. These
commenters feared that this exception would diminish the effectiveness
of the Department's intended limitation on cross-gender viewing. Some
advocates proposed strengthening this limitation by requiring staff of
the opposite gender to announce their presence when entering a housing
unit.
Some agency commenters expressed concern that privacy screens would
be an unnecessary expense, and others feared that such screens would
create blind spots and therefore security risks. Other commenters
approved of privacy screens as a cost-effective means of protecting
inmates' privacy.
Response. The final standard maintains the exception to the cross-
gender viewing prohibition, if the viewing is incidental to routine
cell checks. However, the Department has addressed concerns that this
exception would lead to widespread cross-gender viewing by adding to
the standard a requirement that staff of the opposite gender announce
their presence when entering a housing unit.
The Department is sensitive to cost concerns and clarifies that the
rule is not intended to mandate the use of privacy screens. Rather,
privacy screens may be a safe and cost-effective way to address privacy
concerns in certain facilities.
Comments regarding training. Advocates generally supported the
inclusion of the requirement to train staff in conducting cross-gender
searches. However, some commenters, especially juvenile advocacy
commenters, found the requirement confusing because the juvenile
standard bans cross-gender searches.
Response. The Department has retained this provision, even for
juvenile facilities, due to the likelihood that cross-gender searches
of women and juveniles may occur in exigent circumstances.
[[Page 37136]]
Comments regarding cross-gender strip searches. Few commenters
discussed the prohibition on cross-gender strip searches and body
cavity searches. One commenter was concerned that the prohibition, as
written, may extend to visual examinations of the mouth and ear, areas
that are commonly inspected by members of the opposite sex. Several
agency commenters recommended that all strip searches, not just cross-
gender strip searches conducted under exigent circumstances, be
documented.
Response. The final standard clarifies that a body cavity search
refers to a search of the anal or genital opening, and adopts the
exigent circumstances language proposed by advocates. The Department
declined to revise the standard to require documentation of all strip
searches, out of concern that such a requirement could impose a heavy
burden on some agencies for no good purpose. The standard aims to
ensure documentation of those strip searches that carry the greatest
potential for abuse; agencies may, of course, document all strip
searches if they so choose.
Inmates with Disabilities and Inmates Who Are Limited English
Proficient (Sec. Sec. 115.16, 115.116, 115.216, 115.316)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.15, 115.115, 115.215, and 115.315) governed the accommodation of
inmates with disabilities and inmates with limited English proficiency
(LEP). The proposed standard required that agencies develop methods to
ensure that inmates who are LEP, deaf, or disabled can report sexual
abuse and sexual harassment to staff directly, and that agencies make
accommodations to convey sexual abuse policies orally to inmates with
limited reading skills or visual impairments. The proposed standard
allowed for the use of inmate interpreters in exigent circumstances.
Changes in Final Rule
The final rule revises this standard to be consistent with the
requirements of relevant Federal civil rights laws: Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101, 12131 et seq.;
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and Title
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.
The final standard requires an agency to take appropriate steps to
provide inmates with disabilities an equal opportunity to participate
in and benefit from all aspects of the agency's efforts to prevent,
detect, and respond to sexual abuse and sexual harassment. An agency is
not required to take actions that it can demonstrate would result in a
fundamental alteration in the nature of a service, program, or
activity, or in undue financial and administrative burdens, as those
terms are used in regulations promulgated under Title II of the ADA.
See 28 CFR 35.164.
The final standard clarifies that the category of ``inmates with
disabilities'' includes, for example, inmates who are deaf or hard of
hearing, those who are blind or have low vision, and those with
intellectual, psychiatric, or speech disabilities. It specifies that
agencies shall provide access to interpreters when necessary to ensure
effective communication with inmates who are deaf or hard of hearing,
consistent with the ADA and its implementing regulations. The standard
clarifies that such interpreters shall be able to interpret
effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary.
Similarly, with respect to inmates who are LEP, the final standard
requires agencies to take reasonable steps to ensure meaningful access
to all aspects of the agency's efforts to prevent, detect, and respond
to sexual abuse and sexual harassment, consistent with the requirements
of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.,
and Executive Order 13166 of August 11, 2000, including steps to
provide interpreters who can interpret effectively, accurately, and
impartially, both receptively and expressively, using any necessary
specialized vocabulary.
Further, the final standard specifies that an agency cannot rely on
inmate interpreters, inmate readers, or other types of inmate
assistants ``except in limited circumstances where an extended delay in
obtaining an effective interpreter could compromise the inmate's
safety, the performance of first-response duties under Sec. 115.64, or
the investigation of the inmate's allegations.'' The quoted phrase
replaces ``exigent circumstances,'' which has been removed in light of
the final rule's definition of that term as ``any set of temporary and
unforeseen circumstances that require immediate action in order to
combat a threat to the security or institutional order of a facility.''
Sec. 115.5.
Note on Intersection With Existing Statutes and Regulations
The Department emphasizes that the requirements in this standard
are not intended to relieve agencies of any preexisting obligations
imposed by the ADA, the Rehabilitation Act of 1973, or the meaningful
access requirements set forth in Title VI of the Civil Rights Act of
1964 and Executive Order 13166. The Department continues to encourage
all agencies to refer to the relevant statutes, regulations, and
guidance when determining the extent of their obligations.
The ADA requires State and local governments to make their
services, programs, and activities accessible to individuals with all
types of disabilities. See 42 U.S.C. 12132; 28 CFR 35.130, 35.149-
35.151. The ADA also requires State and local governments to take
appropriate steps to ensure that their communications with individuals
with disabilities (including, for example, those who are deaf or hard
of hearing, those who are blind or have low vision, and those with
intellectual, psychiatric, or speech disabilities) 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 entity to make reasonable modifications to its policies,
practices, and procedures when necessary to avoid discrimination
against individuals with disabilities, unless the entity 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).
Similar requirements apply to correctional and detention facilities
that are federally conducted or receive Federal financial assistance.
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, prohibits
discrimination against persons with disabilities by entities that
receive Federal financial assistance. Discrimination includes denying
persons with disabilities the opportunity accorded others to
participate in the program or activity, or denying an equal opportunity
to achieve the same benefits that others achieve in the program or
activity. See 28 CFR 42.503 (implementing Section 504 with respect to
recipients of Federal financial assistance from the Department of
Justice); 28 CFR 39.160 (implementing Section 504 with respect to
programs or activities conducted by the Department of Justice, and
providing specifically that auxiliary aids and services be furnished
where necessary to afford an equal opportunity to participate).
Pursuant to Title VI of the Civil Rights Act of 1964 and its
implementing
[[Page 37137]]
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; Policy Guidance, 65 FR 50123 (2000).
Pursuant to Executive Order 13166, 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 (2002). For further information, agencies are encouraged to
review Common Language Access Questions, Technical Assistance, and
Guidance for Federally Conducted and Federally Assisted Programs (Aug.
2011), available at http://www.lep.gov/resources/081511_Language_Access_CAQ_TA_Guidance.pdf.
In NPRM Question 17, the Department solicited feedback on whether
the standards should require facilities to ensure that inmates with
disabilities and LEP inmates be able to communicate with staff
throughout the entire investigative and response process. The final
standard clarifies that an agency must take appropriate steps to ensure
equal opportunity to participate in and benefit from all aspects of its
efforts to prevent, detect, and respond to sexual abuse and sexual
harassment for inmates with disabilities, and take reasonable steps to
ensure meaningful access to inmates who are LEP. These requirements are
consistent with agencies' obligations under the ADA and related
regulations, and provide sufficient protection to individuals with
disabilities and individuals who are LEP.
Under the ADA, the nature, length, and complexity of the
communication involved, and the context in which the communication
takes place, are factors for consideration in determining which
``auxiliary aids and services,'' including interpreters, are necessary
for effective communication. The ADA title II regulation lists a
variety of auxiliary aids and services, including ``video remote
interpreting,'' which may potentially afford effective communication.
Under the ADA title II regulation, however, in determining which types
of auxiliary aids and services are necessary for effective
communication, the public entity is to give primary consideration to
the request of individuals with disabilities. See 28 CFR 35.160(b)(2);
35.160(b)(2)(d); 35.104 (Definitions--Auxiliary aids and services);
Appendix A to Part 35, Guidance to Revisions to ADA Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services.
Comments and Responses
Comment. The comments in response to the proposed standard were
generally positive. Most correctional agency commenters expressed
support for the standard as written. Many correctional stakeholders and
inmate advocacy groups answered affirmatively to Question 17, but other
commenters observed that the ADA already requires facilities to
accommodate inmates with disabilities and therefore suggested that
additional requirements were unnecessary.
Response. The Department recognizes the importance of ensuring that
all inmates, regardless of disability or LEP status, can communicate
effectively with staff and are included in each facility's efforts to
prevent sexual abuse. The final standard, in conjunction with the ADA,
Section 504, Title VI, and Federal regulations protecting the rights of
individuals with disabilities and LEP individuals, protects all inmates
while providing agencies with discretion over how to provide the
requisite information and interpretation services. The final standard
does not, nor is intended to, go beyond what is required by the ADA,
Section 504, or Title VI, but the standard clarifies the agencies'
specific responsibilities with regard to PREA-related matters and
individuals who are LEP or who have disabilities.
Comment. One State correctional agency commended the goals of the
proposed standard, but expressed concern that ensuring implementation
would be difficult due to the vast range of communication issues that
might present themselves.
Response. The Department appreciates that a range of communication
issues are implicated by this standard. With respect to inmates with
disabilities, agencies are encouraged to review the ADA Title II
regulations and associated technical assistance materials for more
information addressing the broad spectrum of communication needs. See
28 CFR 35.160(b)(2); 35.160(b)(2)(d); and 35.104 (Definitions--
Auxiliary aids and services); and The Americans with Disabilities Act,
Title II Technical Assistance Manual, Covering State and Local
Government Programs and Services (1993), available at http://www.ada.gov/taman2.html, at II--7.0000-II-7.1200. The agency can
exercise its discretion regarding how to provide the required
information or interpretation for individuals who require additional
communication services with regard to PREA-related issues, including by
choosing to provide services directly or working with an outside entity
to ensure effective communication with inmates with disabilities and
meaningful access for LEP inmates.
Comment. Some correctional agency commenters stated that the
availability of technology, internet services, and interpreters makes
compliance with the standard very reasonable, except in many rural
facilities. The commenters further noted that major metropolitan
corrections facilities may detain people from 100 different cultures or
countries. These commenters requested that the Department offer
interpretation services 24 hours a day, rather than placing the burden
on each facility individually. Many correctional stakeholders stated
that contracting with interpreters can be time-consuming and costly;
some requested that agencies be required to comply only to the best of
their abilities. On the other hand, several State correctional agencies
and local facilities noted that these services are already in place,
and as such there will be no additional costs associated with
compliance.
Response. Numerous interpretation services are available throughout
the country, including telephone and internet providers that can
accommodate the needs of small and rural facilities. While the
Department cannot provide these services to all agencies, the National
Resource Center for the Elimination of Prison Rape can provide
technical assistance to help agencies connect with an appropriate
provider.\30\ Agencies retain the discretion to provide the requisite
services in the most appropriate manner for the specific facility and
incident. With regard to cost, the Department notes that all prisons
and jails are subject to the ADA, and that all State Departments of
Corrections and many jails are subject to Title VI due to receipt
[[Page 37138]]
of Federal financial assistance. The requirements of this standard are
informed by the ADA and Title VI; to the extent entities are in
compliance with those requirements, the Department does not anticipate
that additional costs will arise.
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\30\ Some services may be available free of charge. For example,
Video Relay Service (VRS) is a form of Telecommunications Relay
Service (TRS) that enables persons with hearing disabilities who use
American Sign Language to communicate with voice telephone users
through video equipment, rather than through typed text. Like all
TRS calls, VRS is free to the caller. VRS providers are compensated
for their costs from the Interstate TRS Fund, which the Federal
Communications Commission oversees. See http://www.fcc.gov/guides/video-relay-services.
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Comment. Some juvenile justice administrators suggested that the
agency document the actions it takes, including notes taken by
interpreters. These commenters noted that agencies can keep notes and
records of their efforts, but cannot ensure that perfect communication
has occurred, even between a victim and investigator speaking the same
language. An advocacy group also recommended that the standards require
documentation of the agencies' efforts to comply.
Response. The Department encourages agencies to keep accurate
documentation of their efforts to implement and comply with all of the
PREA standards. Such documentation will facilitate the auditing process
and ensure accurate compliance assessments. While an agency cannot
ensure error-free communication in all instances, a valid policy that
has clearly been implemented to guide investigation protocols with
regard to ensuring effective communication for individuals with
disabilities and meaningful access for individuals who are LEP should
satisfy the requirements of this standard, assuming that the agency
keeps accurate documentation.
Comment. Some advocacy groups recommended that the final standard
include a requirement to enter into a memorandum of understanding with
agencies providing specific assistance for LEP inmates, who may face
significant language-related obstacles in navigating facilities'
grievance and reporting processes.
Most correctional commenters who addressed this issue stated that
the Department should not require agencies to enter into formal
agreements with outside entities to provide the required services, but
should allow agencies to determine for themselves whether such an
agreement would help ensure compliance. Other correctional commenters
noted that such agreements could be beneficial and should be
encouraged, in order to ensure adequate communication with LEP inmates;
a few suggested such agreements, or attempts to enter into them, should
be mandated.
Response. The Department recognizes that many facilities would
benefit from a formal agreement or memorandum of understanding to
ensure that LEP inmates can effectively communicate. Indeed, many State
correctional agencies noted that they already have these types of
agreements in place. Other facilities provide many communication
services in-house or through the agency; some rarely have a need for
such services. Given the varying needs of different facilities
throughout the country, the Department determined that it is prudent to
grant the agencies the discretion to provide the requisite services in
the manner most appropriate for the specific facility or incident at
issue.
Comment. A State correctional agency criticized the proposed
standard for referencing abuse hotlines as a possible method for LEP,
deaf, or disabled inmates to report abuse without relying on inmate
interpreters. The commenter noted that such a hotline would do little
for deaf, hearing impaired, or LEP inmates, and further noted that, in
its experience, inmate hotlines prove expensive to operate and generate
a large number of unfounded calls.
Response. The final standard no longer references abuse hotlines,
and does not require an agency to provide any specific type of
interpretation or communication services. Agencies retain the
discretion to provide the requisite services in the manner most
appropriate for the specific facility or incident at issue, so long as
agencies provide effective communication for inmates with disabilities
and meaningful access for LEP inmates.
Comment. Many advocacy groups stated that the standards should
allow inmate interpreters in adult facilities only in ``exigent
circumstances and with the expressed voluntary consent of the inmate
victim,'' and should never allow resident interpreters to be used in
juvenile facilities. Some agency commenters, by contrast, suggested
that inmate interpreters be allowed if the inmate consents.
Response. The final standard requires that agencies not rely on
inmate interpreters, readers, or assistants ``except in limited
circumstances where an extended delay in obtaining an effective
interpreter could compromise the inmate's safety, the performance of
first-response duties under Sec. 115.64, or the investigation of the
inmate's allegations.'' The intent of this provision is to discourage
the use of inmate assistance in investigations unless no other option
is available in a reasonable timeframe, and where timing is critical to
prevent physical harm or to reveal the facts. An inmate's consent to
utilizing another inmate as an interpreter does not guarantee the
accuracy of the interpretation. While the use of inmate interpreters
ordinarily is not an appropriate practice, the Department recognizes
that in certain circumstances such use may be unavoidable.
Comment. One State correctional agency recommended removing the
term ``sexual harassment'' from this standard, because it would apply
to interactions between inmates. The commenter suggested that because
staff are trained in sexual violence in correctional settings, and
therefore recognize the influence such verbalizations play, instances
of inmate-on-inmate sexual harassment are best addressed through each
facility's reporting and investigation processes, and should not be
subject to additional regulations.
Response. To the extent that incidents are to be reported, as
sexual harassment is, inmates must be able to communicate effectively
throughout the process, regardless of disability or LEP status.
Comment. The American Jail Association, an association of county
wardens, and a local sheriff's department recommended that the
Department encourage jails without resources to provide the required
services to enter into memoranda of agreement with larger facilities to
house victims with disabilities or victims who are LEP.
Response. Given the varying needs of different facilities
throughout the country, agencies should be afforded discretion to
provide the requisite services in the manner most appropriate for the
specific facility or incident at issue. If an agency cannot provide the
necessary services to an inmate within its custody, the agency is not
precluded from contracting to house such an inmate in another, more
appropriate facility. However, agencies should be aware that ADA
regulations provide that, ``[u]nless it is appropriate to make an
exception, a public entity . . . [s]hall not deprive inmates or
detainees with disabilities of visitation with family members by
placing them in distant facilities where they would not otherwise be
housed.'' 28 CFR 35.152(b)(2)(iv).
Comment. The National Disability Rights Network (NDRN), a nonprofit
membership organization consisting of federally mandated Protection and
Advocacy (P&A) Systems and Client Assistance Programs (CAP), provided
extensive comments suggesting effective methods for agencies to comply
with the proposed standards. NDRN noted that the proposed standards did
not impose any new burdens or mandates on facilities, but rather
reaffirmed the applicability of existing accommodations. In order to
meet their legal and constitutional obligations, NDRN stated,
confinement facilities
[[Page 37139]]
must provide effective communication accommodations when a need for
such accommodations is known, based on requests from individual inmates
as well as other information sources. NDRN suggested several best
practices for communicating with special needs inmates, and recommended
adopting ``universal precautions'' for communicating with all inmates,
such as using a sixth-grade reading level for written materials
intended for adults, and a third-grade reading level for confined
juveniles. NDRN suggested, in addition to restricting the use of other
inmates as interpreters, that family members and acquaintances should
not be used as interpreters, except in emergency situations when no
viable alternative option exists, in order to protect the
confidentiality, privacy, dignity, and safety of inmates, and to ensure
objectivity and fidelity of interpretation. NDRN also noted that each
State has a designated Protection & Advocacy office, which can be a
resource for facilities on disability issues, including how to provide
accessible formats for inmate education and effective communication
accommodations during responses to and investigations of sexual abuse
or harassment reports.
Response. The Department appreciates the detailed suggestions for
best practices included in NDRN's comment and encourages all agencies
to consider implementing a variety of strategies to ensure effective
communication with all inmates. The National Resource Center for the
Elimination of Prison Rape will develop training modules and provide
technical assistance to help agencies educate staff concerning
communication with inmates who are LEP and inmates who have
disabilities. While the Department allows the agencies the discretion
to provide the requisite services in the most appropriate manner for
the specific facility or incident at issue, the Department encourages
agencies to reach out to community providers and State offices as
resources. As NDRN notes, each State has a federally mandated
Protection & Advocacy office, initially created pursuant to
Developmental Disabilities Assistance and Bill of Rights Act of 1975,
codified as amended at 42 U.S.C. 15001 et seq. These offices can serve
as valuable resources in helping facilities comply with the standards
and with disability law more generally.
Comment. One State correctional agency recommended that the
facilities establish an early identification system as part of the
reception process to ``flag'' inmates with disabilities and inmates who
are LEP, and then develop a tracking mechanism that ensures the
designation follows the inmate throughout his or her incarceration.
Response. In order to ensure proper communication for inmates who
have disabilities or are LEP, facilities will need to know which
individuals require additional assistance. A formal early
identification system, as suggested by the commenter, is a promising
method of managing this information. Under the final standards,
however, the agencies retain the discretion to develop a system to
provide the requisite services in the most appropriate manner for the
specific facility or individuals at issue, so long as effective
communication for inmates with disabilities and meaningful access for
LEP inmates are provided.
Comment. One State correctional agency suggested extra time should
be allotted for agencies to come into compliance.
Response. The final standard requires each agency to provide
communication and information services that are consistent with the
agency's responsibilities pursuant to the ADA and applicable
regulations. Agencies may exercise discretion in how to provide such
services, but the Department declines to afford additional time to
comply with an obligation that, in large part, is already mandated by
Federal law.
Comment. A group that advocates for people with mental illness
noted that the proposed standard was limited to protecting individuals
with sensory disabilities but did not include protections for
individuals with psychiatric or intellectual disabilities. The
commenter recommended that the Department consider clarifying the
proposed standard to ensure that administrators understand that they
must provide auxiliary aids and services to inmates with a broader
range of disabilities.
Response. The final standard clarifies that agencies must take
appropriate steps to ensure equal opportunity to participate in and
benefit from all aspects of their efforts to prevent, detect, and
respond to sexual abuse and sexual harassment for inmates with
disabilities, including those with intellectual or psychiatric
disabilities.
Hiring and Promotion Decisions (Sec. Sec. 115.17, 115.117, 115.217,
115.317)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.16, 115.116, 115.216, and 115.316) prohibited the hiring of anyone
who has engaged in sexual abuse in an institutional setting; who has
been convicted of engaging in sexual activity in the community
facilitated by force, the threat of force, or coercion; or who has been
civilly or administratively adjudicated to have engaged in such
activity. The proposed standard also required agencies to perform a
criminal background check on new hires and to run checks on current
employees at least every five years or have in place a system for
otherwise capturing such information for current employees. The
proposed standard required agencies to ask about previous misconduct in
any applications, interviews, or self-evaluations, and provided that
material omissions would be grounds for termination. The proposed
standard also provided that, unless prohibited by law, the agency must
provide information on substantiated allegations of sexual abuse or
sexual harassment involving a former employee upon receiving a request
from an institutional employer for whom such employee has applied to
work.
Changes in Final Standard
The final standard is largely similar to the proposed standard, but
makes several changes. First, the final standard narrows its
application to employees who may have contact with inmates, but expands
it to include contractors within its scope. Second, the final standard
encompasses attempts to engage in improper sexual activity, which is
now defined more expansively as sexual activity that is ``facilitated
by force, overt or implied threats of force, or coercion, or if the
victim did not consent or was unable to consent or refuse.'' Third, the
final standard requires agencies to consider any incidents of sexual
harassment in making decisions regarding employees and contractors, and
to provide information regarding such incidents to possible future
institutional employers unless prohibited by law. Fourth, the final
standard clarifies that an agency need only ask applicants about their
prior abuse history in applications or interviews, rather than in both.
Fifth, for juvenile facilities, the final standard requires a check of
any child abuse registry maintained by the State or locality in which
the employee would work.
Comments and Responses
Comment. Several commenters noted that the prohibition of hiring
and promoting anyone with a history of sexual abuse may be too
burdensome to implement, and may not be necessary for staff who have no
contact with inmates.
[[Page 37140]]
Response. The final standard exempts staff who do not have contact
with inmates, in order to focus agencies' efforts on the relevant set
of employees.
Comment. Several commenters noted that contractors were not
included in this standard.
Response. The Department agrees that this standard should address
contractors who have contact with inmates and has revised it
accordingly.
Comment. Several commenters recommended adding convictions or
restraining orders for domestic violence offenses to this list of prior
actions that would preclude employment.
Response. The Department agrees that agencies should have policies
addressing a history of domestic violence in relation to employment and
promotions. However, given the wide range of factual circumstances,
varied State and local statutory definitions, and the lack of a clear
nexus to sexual abuse in correctional settings, the Department has
declined to expand the prohibition as suggested. By contrast, the
Department has added to the final standard a requirement that the
agency check any child abuse registry maintained by the State or
locality in which the employee would work. This added requirement is
appropriate for applicants to work in juvenile facilities due to the
unique nature of these facilities, and the particular need to safeguard
this population.
Comment. One commenter noted that sexual abuse can occur in
institutional settings other than corrections or detention facilities,
and that the standard should clarify that such abuse is covered.
Response. The Department agrees that sexual abuse that occurs in
other custodial situations should be included in this standard.
Accordingly, the final standard refers to sexual abuse in a prison,
jail, lockup, community confinement facility, juvenile facility, or
other ``institution,'' as that term is defined in the Civil Rights of
Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997 et seq. Beyond
correctional and pretrial detention facilities, CRIPA defines
``institution'' to include State facilities for persons who are
mentally ill, disabled, or retarded, or chronically ill or handicapped;
residential care or treatment facilities for juveniles; and facilities
that provide skilled nursing, intermediate or long-term care, or
custodial or residential care. See 42 U.S.C. 1997(1).
Comment. Several commenters recommended that the standard's
prohibition on hiring include prior incidents of sexual harassment as
well as sexual abuse.
Response. Sexual harassment can include a wide range of behaviors,
and incidents are often addressed without criminal, civil, or
administrative adjudication, making verification difficult. Therefore,
the Department has not revised the standard to include an absolute
prohibition on hiring or promotions of persons who have engaged in
sexual harassment. The final standard does, however, require that an
agency consider any incidents of sexual harassment in determining
whether to hire or promote anyone, or to enlist the services of any
contractor, who may have contact with inmates. For similar reasons, the
Department has also added a requirement that agencies provide other
institutional employers with information on substantiated incidents of
sexual harassment--the proposed standards referenced only sexual
abuse--unless prohibited by law.
Comment. One commenter requested clarification regarding the scope
of the ``criminal background check'' referenced in the proposed
standard.
Response. At a minimum, agencies should access the standardized
criminal records databases maintained and widely used by law
enforcement agencies. The final standard clarifies this requirement by
referring to a ``criminal background records check.''
Comment. One commenter recommended that the standard require
contacting prior institutional employers not only to learn about
substantiated allegations of sexual abuse, but also to inquire about
resignations during a pending investigation into an allegation of
sexual abuse.
Response. The Department agrees with this suggestion, and has
incorporated the requirement into the standard.
Comment. Several commenters suggested that criminal background
record checks for employees should occur more frequently than once
every five years and should be required for promotions as well.
Correctional agency commenters, however, expressed concern that
increasing criminal background record checks would impose an excessive
burden. One commenter suggested that if criminal background record
checks are not required to occur more frequently than once every five
years, then the final standard should mandate that agencies require
staff members to report any incident of sexual abuse that they have
committed.
Response. The Department concludes that the proposed standard
appropriately balanced the need for criminal background record checks
with the concerns regarding the burden of carrying out this
requirement. The Department agrees that an affirmative staff reporting
requirement would be beneficial, and has revised the standard
accordingly.
Upgrades to Facilities and Technologies (Sec. Sec. 115.18, 115.118,
115.218, 115.318)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.17, 115.117, 115.217, and 115.317) required agencies to take into
account how best to combat sexual abuse when designing or expanding
facilities and when installing or updating video monitoring systems or
other technology.
Changes in Final Rule
The Department is adopting the regulation as proposed.
Comments and Responses
Comment. One commenter suggested that the regulation should
affirmatively prohibit an agency from making any changes that would
diminish its ability to protect inmates from sexual abuse.
Response. Improving agency performance in combating sexual abuse
should be an important goal when making any physical changes or
adopting new technology. However, a change may be offset by an agency
intending to use other methods to combat sexual abuse (e.g., a physical
change made in conjunction with increased staff supervision). The
commenter's concern is further addressed in the requirements in
Sec. Sec. 115.13, 115.113, 115.213, and 115.313 to conduct assessments
of physical layout and technology as part of an overall review of
supervision and monitoring in conjunction with other contributing
factors.
Comment. A commenter requested clarification as to the
documentation requirements concerning this regulation.
Response. The regulation does not entail a regular separate
reporting requirement, but issues concerning physical layouts and
technology should be addressed as appropriate in assessments required
under Sec. Sec. 115.13, 115.113, 115.213, 115.313, and Sec. Sec.
115.88, 115.188, 115.288, 115.388. Agencies may demonstrate compliance
through a variety of means--e.g., through planning meeting minutes,
statements of work, design specifications, or contracting documents.
Comment. One commenter would have the regulation require agencies
to use video-monitoring as a deterrent to sexual abuse and an aid to
prosecutions. Another commenter noted that a
[[Page 37141]]
mandate to use video technology would be cost-prohibitive.
Response. As discussed in greater depth in its responses to
comments regarding Sec. 115.13, the Department agrees that video
technology can be extremely helpful, yet is also sensitive to the cost
of mandating such technology.
Evidence Protocol and Forensic Medical Examinations (Sec. Sec. 115.21,
115.121, 115.221, 115.321)
Summary of Proposed Rule
The standard contained in the proposed rule required agencies
responsible for investigating allegations of sexual abuse to adopt an
evidence protocol to ensure all usable physical evidence is preserved
for administrative or criminal proceedings, based on the Department of
Justice's Office on Violence Against Women publication, ``A National
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents'' (SAFE Protocol), or similarly comprehensive and
authoritative protocols published after 2011.
The proposed standard expanded the NPREC's recommendation by
requiring access to exams not only in cases of penetration but whenever
evidentiarily or medically appropriate. For example, if an inmate
alleges that she was strangled in the course of a sexual assault that
did not result in penetration, a forensic exam might provide evidence
to support (or refute) her contention.
The proposed standard took into account the fact that some agencies
are not responsible for investigating alleged sexual abuse within their
facilities and that those agencies may not be able to dictate the
conduct of investigations conducted by outside entities. In such
situations, the proposed standard required the agency to inform the
investigating entity about the standard's requirements with the hope
that the investigating entity will look to the standard as a best-
practices guideline. In addition, the standard applied to any outside
State entity or Department of Justice component that investigates such
allegations.
In all settings except lockups, the proposed standard required that
the agency offer all sexual abuse victims access to a person either
inside or outside the facility who can provide support to the victim.
Specifically, the proposed standard required that the agency make
available to the victim either a victim advocate from a community-based
organization that provides services to sexual abuse victims or a
``qualified agency staff member,'' defined as a facility employee who
been screened for appropriateness to serve in this role and has
received education concerning sexual assault and forensic examination
issues in general.
Changes in Final Rule
The final standard instructs facilities to use a Sexual Assault
Nurse Examiner (SANE) or Sexual Assault Forensic Examiner (SAFE) where
possible to perform the exams. Facilities in areas where there is not a
SANE or SAFE available must document their efforts to provide SAFEs or
SANEs and then provide other qualified medical professionals.
The final standard specifies the use of a developmentally
appropriate protocol where the victim is a prepubescent minor, and
clarifies that the protocol used in adult facilities shall be
developmentally appropriate for youth, where applicable.
The final standard also recognizes the unique role of rape crisis
center advocates in supporting victims throughout the forensic
examination and investigatory interviews. Recognizing that many
facilities are in rural areas where there may not be a rape crisis
center available or where the rape crisis center may lack the resources
to assist the facility, the standard requires an agency to document its
efforts to secure advocacy services from a rape crisis center. If it
fails to obtain such services in spite of reasonable efforts, it may
provide either a qualified agency staff member or a qualified
community-based organization staff member. Particularly in rural areas,
there often are community-based organizations that, while not focused
on rape crisis services, may provide similar social services, such as
general counseling services or advocacy, counseling, and supportive
services to victims of domestic violence. Individuals from these
organizations may not have the training and expertise that individuals
from a rape crisis center have to serve victims, but in the absence of
available rape crisis services, they may still be a useful source of
outside support for victims, some of whom may be reluctant to trust
agency staff. In the case of community-based organizations or agency
staff, the final standard requires that the staff person serving in the
support role be screened for appropriateness and receive education
concerning sexual assault and forensic examination issues in general.
Ideally, the staff person would receive the same training as that
required for victim advocates in the State, which is usually a forty-
hour training and is offered by many State sexual assault coalitions,
usually several times throughout the year and at a reasonable cost. A
list of coalitions is available on the Web site of the Department's
Office on Violence Against Women at http://www.ovw.usdoj.gov/statedomestic.htm.
To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the final standard requires
the agency to request that the investigating entity follow the relevant
investigatory requirements set out in the standard.
For lockups, the final standard adds a requirement that if the
victim is transported to an outside hospital for forensic examinations
and that hospital offers advocacy services, the detainee shall be
allowed to use the services to the extent available, consistent with
security needs.
Comments and Responses
Comment. Many advocacy groups commented that the SAFE Protocol is
not appropriate for prepubescent minors.
Response. For this reason, the final standard specifies the use of
a protocol that is ``developmentally appropriate for youth'' and based
on the National Protocol only ``as appropriate.''
Comment. Some groups recommended specifying in the standard that
the protocol for prepubescent minors must include such specific topics
as policies and procedures for mandatory reporting, consent to
treatment, parental notification, and scope of confidentiality.
Response. The Department recognizes that these topics are important
in responding to sexual abuse in all settings. However, the Department
believes that knowledge of these topics, which are often governed by
State laws, should be a prerequisite for qualification as an examiner
rather than a mandatory part of the protocol. Accordingly, the
Department has not made this change.
Comment. Many victim advocacy groups recommended that the
Department require the use of SANEs or SAFEs because they are best
qualified to provide a proper forensic examination. Some specifically
recommended a protocol that includes transport to facilities that
perform exams through SANEs or SAFEs or a requirement that an agency
document its decision whether to transport victims outside or perform
the examination internally.
Response. The final standard recognizes that the state of the art
in sexual assault forensic examinations is to utilize a specially
trained and
[[Page 37142]]
certified examiner, such as a SANE or SAFE, to perform the exams. SANEs
and SAFEs have specialized training and experience so that they are
more sensitive to victim needs, and are highly skilled in the
collection of evidence, resulting in more successful prosecutions.
Accordingly, the final standard instructs facilities to use SANEs or
SAFEs where possible, while recognizing that they may not always be
available. The Department does not believe it is necessary to dictate
to facilities how to utilize SANEs or SAFEs or to impose additional
documentary requirements beyond documenting their efforts to make SANEs
or SAFEs available.
Comment. Two other such groups specifically recommended the Sexual
Assault Response Team (SART) model for response during the exam as well
as the use of SANEs/SAFEs.
Response. As discussed above, the final standard instructs
facilities to use SANEs or SAFEs where possible. Although the final
standard does not specifically require the SART model for response,
Sec. 115.64 requires agencies to follow specific first responder
duties to protect the victim and preserve evidence and Sec. 115.65
requires agencies to develop a written institutional plan to coordinate
actions taken in response to an incident of sexual abuse among staff
first responders, medical and mental health practitioners,
investigators, and facility leadership. These standards will help
ensure an appropriate response to sexual assault incidents, while
preserving agency discretion to coordinate such responses in the manner
best suited to the particular situation.
Comment. One inmate commented that the exams should be performed by
an outside medical practitioner.
Response. The Department believes that the choice of an internal or
outside practitioner is less important than making an effort to obtain
the services of a SANE/SAFE and otherwise providing a qualified medical
practitioner. Accordingly, the Department does not mandate the use of
an outside practitioner.
Comment. One correctional association and one State sheriffs'
association expressed concerns about the cost of paying for the exams,
particularly for jails that would have to pay an outside entity.
Response. Under the Violence Against Women Act (VAWA) of 1994, as
reauthorized in 2006, all States must certify as a condition of certain
formula grant funding that victims of sexual assault have access to a
forensic medical examination regardless of the decision to cooperate
with the criminal justice system and that the State or another
governmental entity bears the full out of pocket costs of such exams.
See 42 U.S.C. 3796gg-4. This certification requirement applies
throughout the entire State, including to victims who are incarcerated.
All States, pursuant to their receipt of funds through the STOP
Violence Against Women formula grant program, are required to cover the
costs of the exams, including exams for victims in correctional
facilities. The Department encourages States and correctional agencies
to work together to craft effective strategies for funding and
administering these examinations. A list of the administering agencies
for each State for the formula grant funding, which should have
information about the payment mechanism, is available on the
Department's Web site at http://www.ovw.usdoj.gov/stop-contactlist.htm.
Comment. One State correctional agency noted that it is in
compliance with the current SAFE Protocol, but that it is a guideline
for suggested practices, rather than a list of requirements.
Response. This is the correct understanding of the SAFE Protocol,
which is a tool to be used for developing individual protocols. The
Department will be soon issuing a companion to the SAFE Protocol that
will specifically assist correctional facilities in adapting the SAFE
Protocol to their needs.
Comment. One sheriff's office expressed concern that the use of the
SAFE Protocol could be a moving target if agencies were required to
comply with updates.
Response. As discussed above, the SAFE Protocol is a guideline for
best practices, rather than a list of requirements.
Comment. A number of advocacy organizations and inmates expressed
concerns with the use of ``qualified staff'' to serve in an advocacy
role. Concerns included lack of inmate trust in staff, including fear
of staff bias against inmates who are lesbian, gay, bisexual,
transgender, or intersex (LGBTI); conflict between security and support
roles; lack of sufficient time to spend with the victim; and
confidentiality. Specific recommendations included using a qualified
staff member only when no rape crisis center is available; documenting
efforts to enter into agreements with rape crisis centers; screening
staff for appropriateness to serve in the role of a support person,
including assessing whether the staff member has a nonjudgmental
attitude toward sexual assault victims and LGBTI individuals; ensuring
round-the-clock coverage; providing the staff member the full forty
hours of training that most rape crisis center advocates are required
to receive; and providing the staff member opportunities to debrief
experts in the victim advocacy field. Some advocacy groups suggested
that it was inconsistent for this standard to allow the use of
qualified staff members to perform these functions, given that a
separate standard required agencies to attempt to enter into memoranda
of understanding with community groups to provide confidential
emotional support services related to sexual abuse. These commenters
recommended that a ``qualified staff member'' be allowed to serve as a
victim advocate only where the agency has not been able to enter into
an agreement with a community-based agency to provide such services.
Some correctional agencies supported the decision to allow for a
qualified staff person, but others expressed concerns over the cost of
training and supervising such staff.
Response. After considering the wide range of comments, the
Department has decided to require agencies to attempt to make available
a rape crisis center advocate, which the final standard defines as ``an
entity that provides intervention and related assistance, such as the
services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual
assault of all ages.'' \31\ The Department is sensitive to concerns
that inmate victims may be reluctant to confide in a ``qualified staff
member'' from the agency due to real or perceived bias and fear of
retaliation. In addition, the Department believes that an advocacy
organization that is specifically dedicated to providing assistance to
victims of sexual abuse is best suited to address victims' needs. A
victim will most benefit from a trained, confidential support person,
who can focus on the victim and to whom the
[[Page 37143]]
victim will feel safe talking. However, the Department recognizes that
a rape crisis center advocate will not always be available, whether due
to geographic distance or simply because the local rape crisis center
lacks sufficient resources to serve the facility. If so, the agency has
the option of using either staff from other community-based agencies or
qualified agency staff, as long as such persons have been screened for
appropriateness to serve in this role and the agency has documented its
attempts to secure services from a rape crisis center. Other
``community-based agencies'' may include any entity--such as faith-
based groups, non-profit organizations, or community counseling
services--that can provide appropriate victim assistance when a rape
crisis center is not available. In addition, although the final
standard does not mandate a specific number of training hours, it
requires that agencies ensure that the victim advocate has received
education concerning sexual assault and forensic examination issues in
general. The Department recognizes that these precautions will not
allay all concerns regarding use of a person who is not a rape crisis
center advocate, but anticipates that these safeguards will help ensure
that these options are available as a backstop where such an advocate
is truly unavailable. In providing two fallback options, the Department
entrusts agencies with discretion to utilize whichever option provides
the most effective and timely assistance to the victim.
---------------------------------------------------------------------------
\31\ 42 U.S.C. 14043g(b)(2)(C) specifies the following services:
(i) 24-hour hotline services providing crisis intervention
services and referral;
(ii) accompaniment and advocacy through medical, criminal
justice, and social support systems, including medical facilities,
police, and court proceedings;
(iii) crisis intervention, short-term individual and group
support services, and comprehensive service coordination and
supervision to assist sexual assault victims and family or household
members;
(iv) information and referral to assist the sexual assault
victim and family or household members;
(v) community-based, linguistically and culturally specific
services and support mechanisms, including outreach activities for
underserved communities; and
(vi) the development and distribution of materials on issues
related to the services described in clauses (i) through (v).
---------------------------------------------------------------------------
With regard to training, the Department encourages agencies to draw
upon outside expertise. Even in the absence of local rape crisis
centers, each State has a State Sexual Assault Coalition, which may be
a useful resource in developing screening tools and training. Many
coalitions will be able to provide the forty-hour advocate training for
a reasonable cost to facility personnel. A list of coalitions is
available on the Web site of the Department's Office on Violence
Against Women at http://www.ovw.usdoj.gov/statedomestic.htm.
Comment. One agency commenter construed the draft standard to
require a qualified staff person to be employed by the facility where
the incident occurred.
Response. The final standard refers to a ``qualified agency staff
member,'' making clear that the staff member need not work at the
facility where the incident occurred.
Comment. One commenter suggested that the National Resource Center
for the Elimination of Prison Rape make available an approved
curriculum to assist individuals in becoming qualified staff members.
Response. The Resource Center will do so.
Comment. Some commenters expressed uncertainty regarding the
meaning of the phrase ``during the investigatory process.''
Response. For clarification, this phrase has been changed to
``during investigatory interviews.''
Comment. One correctional agency expressed concern that the
standard would hold it responsible for the actions of an outside
individual over whom they have no authority.
Response. This concern is misplaced: The agency is not responsible
for the actions of the victim advocate--only for making one available
to the victim. The Department recommends that agencies enter into an
agreement with a rape crisis center that describes the scope of the
services and the terms of their relationship.
Comment. One sheriff's office suggested separating this standard
into separate components for criminal and administrative investigation.
Response. The Department has not made this change, because the
references to investigations in the standard apply to either criminal
or administrative investigations. If the agency is responsible for
either type of investigation, it would be required to follow this
standard. If it is not responsible for any investigations, and the
responsible entity is a State agency or Department component, the State
entity or Department component would be responsible. If the agency is
not responsible for any type of investigation and the responsible
entity is not a State agency or Department component--i.e., another
local entity is responsible--then the agency would notify the
responsible entity of the requirements of this standard.
Comment. Some correctional agencies expressed concern about the
requirements in paragraphs (f) and (g) regarding outside entities that
investigate sexual assault cases because the agencies do not control
such entities.
Response. This standard does not require agencies to exert control
over such outside entities. Paragraph (g) separately regulates State
agencies that investigate these crimes; paragraph (f) requires only
that correctional agencies that do not conduct such investigations
notify the entity that does. Other than the obligation to notify, the
standard does not require a local agency to take any affirmative steps
to ensure the compliance of the other entities.
Comment. One correctional agency requested clarification regarding
the provision that this standard applies to any ``State entity''
outside of the correctional agency that is responsible for
investigating allegations of sexual abuse in institutional settings.
Response. The reference to ``State entity'' is meant to include any
relevant division of the State government, as opposed to local
government entities.
Comment. One correctional agency requested clarification regarding
the meaning of ``these policies'' referenced in paragraph (f).
Response. The final standard clarifies that this refers back to the
requirements of paragraphs (a) through (e).
Comment. Numerous victim advocacy organizations and organizations
advocating for the rights of inmates recommended that the proposed
standard be revised to require lockups to provide a victim advocate or
qualified staff member. These commenters stated that victims in lockups
should have the same access to advocates as victims in the other types
of facilities.
Response. The Department declines to amend the proposed standard to
mandate this requirement for lockups, largely for reasons stated in the
NPRM. 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 can be conducted.
Because lockups do not have on-site medical services, a victim
would be taken to the hospital for exams. In Sec. 115.121(d), the
final standard includes language specifying that, after reaching the
hospital, such victims must have the same access to advocates as other
victims, barring any security risks.
Comment. NPRM Question 18 asked whether the standards adequately
provide support for victims of sexual abuse in lockups upon transfer to
other facilities, and if not, how the standards should be modified. The
majority of correctional organizations were satisfied that the
standards addressed the needs of victims in lockups. Additional
comments are discussed below.
Comment. One State correctional agency noted that some tribes use
lockups for longer-term court orders, which may raise additional
concerns.
Response. Except to the extent that tribes contract with State or
local facilities to house non-tribal inmates,
[[Page 37144]]
this rule does not apply to tribal facilities. With regard to
confinement facilities in Indian country, BIA, like other Federal
agencies whose operations involve confinement facilities, will work
with the Attorney General to issue rules or procedures that will
satisfy the requirements of PREA.
Comment. Some correctional organizations recommended that the
standard specify that the processing of the inmate to a larger facility
should be expedited in order to ensure access to the services available
at the larger facility.
Response. While the Department certainly supports this goal, such
expedited treatment may not always be feasible--and should not be
attempted if doing so delays the provision of medical care at hospitals
or other offsite treatment centers.
Comment. One State expressed the view that a lockup should be
responsible for aiding a detainee who is victimized in the lockup, even
if the victim has been subsequently transferred to another facility.
Response. As a practical matter, it is not feasible to require a
lockup to provide support to a victim who is confined elsewhere. To the
extent the concern is over who pays for the victim's care, it is best
left to the individual States and localities to determine whether and
how to require a shifting of costs.
Policies To Ensure Referrals of Allegations for Investigations
(Sec. Sec. 115.22, 115.122, 115.222, 115.322) \32\
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\32\ The standard numbered in the proposed rule as Sec. Sec.
115.22, 115.222, and 115.322, titled ``Agreements with outside
public entities and community service providers,'' has been deleted
and its contents, as modified, have been moved to Sec. Sec. 115.51,
115.53, 115.251, 115.253, 115.351, and 115.353.
---------------------------------------------------------------------------
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.23, 115.123, 115.223, and 115.323) mandated that each agency 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. The standard mandated that the policy
be published on the agency's Web site, or otherwise made available,
and, if a separate entity is responsible for investigating criminal
investigations, that the publication delineate the responsibilities of
the agency and the investigating entity. The standard also required
that that any State entity or Department of Justice component that
conducts such investigations have in place policies governing the
conduct of such investigations.
Changes in Final Rule
The final standard contains no substantive changes, although it
adds language that makes explicit what was implicit in the proposed
standard: ``The agency shall ensure that an administrative or criminal
investigation is completed for all allegations of sexual abuse and
sexual harassment.''
Comments and Responses
Comment. Some commenters recommended that the Department restore
the NPREC's recommendations that agencies attempt to enter into
memoranda of understanding with outside investigative agencies and with
prosecutorial agencies.
Response. The Department recognizes that such memoranda of
understanding have benefited 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
the standard should require agencies to make such efforts. In comments
submitted in response to the ANPRM, a number of agency commenters
expressed concern that a standard requiring agencies to enter into
memoranda, as the NPREC had recommended, would impose significant
burdens, especially in State systems where investigations and
prosecutions are conducted by numerous different agencies at the county
or municipal level. In light of these concerns, the Department declines
to revise the standard to mandate attempts to enter into such
memoranda.
Comment. A few agencies commented that the requirement to ensure
completion of an investigation is duplicative because many agencies
already require the investigation of any crime that occurs.
Response. To the extent that an agency has such a policy, the
requirement should not require extra effort to implement.
Comment. Some agency commenters expressed concern that the standard
required allegations of sexual harassment to be forwarded on to an
outside agency to conduct criminal investigations even if the
allegation does not rise to the level of criminal conduct.
Response. This concern is misplaced. As stated in paragraph (b) of
the relevant sections, there is no need to refer an investigation to an
outside criminal investigation agency if the allegation does not
involve potentially criminal behavior.
Comment. One commenter asserted that local agencies must be allowed
to promptly address sexual harassment complaints and not send
complaints to outside agencies.
Response. As noted above, agencies need not refer an investigation
to an outside criminal investigation agency if the allegation does not
involve potentially criminal behavior. And even if criminal behavior is
alleged, the agency may still take administrative action during the
pendency of a criminal investigation.
Comment. Some agency commenters objected to the requirement that
agency Web sites describe the responsibilities of both the confining
agency and (where different) the agency investigating allegations of
abuse. A small number of such commenters noted that they did not have a
Web site and lacked the resources or support to develop one, and some
asked if the policy must be presented in full.
Response. The final standard allows agencies without a Web site to
make the information available by other means, which should facilitate
full publication of the policy.
Comment. A few agencies objected that it was outside their agency's
authority to publish any information describing the responsibilities of
another agency.
Response. The Department does not agree with the assertion that an
agency lacks the authority to explain what responsibilities it bears,
and what investigatory responsibilities will be carried out by an
outside agency.
Comment. A commenter recommended revising the standard from ``[t]he
agency shall have in place a policy to ensure that allegations of
sexual abuse * * * are investigated by an agency with the legal
authority to conduct criminal investigations'' to ``[t]he agency shall
have in place a policy to ensure that allegations of sexual abuse * * *
are referred to an agency with the legal authority to conduct criminal
investigations.''
Response. The Department has adopted this change, and Sec.
115.22(b) now requires agencies to have a policy to ensure that
allegations are ``referred for'' investigation by an agency with the
legal authority to conduct criminal investigations.
Comment. Some agencies expressed concern that they would be
responsible for monitoring the compliance of an outside entity's
investigation, noting that they did not typically have control over the
manner in which law enforcement conducts investigations.
Response. As the amended text makes clear, agencies are responsible
only for
[[Page 37145]]
referring the investigation to the outside entity, not for monitoring
the outside entity's investigation.
Comment. One State correctional agency commented that proposed
standard Sec. 115.23(a) would be impossible to implement because
criminal investigation entities in its State lack sufficient funding to
take on the volume of investigations. The commenter asserted that it
would be impossible to divide investigations between law enforcement
and the correctional agency at the beginning of a case because it is
often difficult to predict, at the outset of an investigation, whether
evidence of criminal behavior will be obtained. Another agency
commenter objected to the requirement that it determine whether
behavior was ``potentially criminal'' because, in its view, such a
determination can be made only by prosecutors and courts.
Response. As the amended standard makes clear, a correctional
agency's sole responsibility is to refer allegations of potentially
criminal behavior to entities with the authority to investigate
criminal matters. An agency need not definitively determine whether
behavior is actually criminal; it need only refer allegations of
potentially criminal behavior to the appropriate law enforcement
agency. The Department is confident that the ability to determine
whether an allegation might involve criminal acts is well within the
competence of agency officials.
Comment. A private individual recommended that criminal
investigations be conducted by outside agencies, and that inmates have
the opportunity to appeal the results of these investigations.
Response. The standard requires agencies to refer investigations
regarding potentially criminal behavior involving sexual abuse or
sexual harassment to an agency with the legal authority to conduct
criminal investigations. State or local law may dictate which entity
has the legal authority to conduct such investigations, and it would
not be appropriate for the standards to require that an outside
jurisdiction conduct such investigations. With regard to criminal
investigations, alleged victims of crimes do not ordinarily have the
right to appeal the results of criminal investigations, and the
Department declines to revise the standard to mandate such a right
here.
Comment. A number of advocates noted that delay can result where
multiple investigations are not well coordinated, and recommended
requiring that facilities establish clear responsibilities when
overlapping investigations occur, so that staff members understand
their roles and how to collaborate with other agencies to ensure timely
resolution of all investigations. Specifically, they recommended adding
the following language to the standard: ``The agency shall coordinate
internal investigations of alleged sexual abuse and sexual harassment
with any external investigations by law enforcement, child protective
services, or other entities charged with investigating alleged abuse.
The agency shall establish an understanding between investigative
bodies with overlapping responsibilities so that staff have a clear
understanding of their roles in evidence collection, interviewing,
taking statements, preserving crime scenes, and other investigative
responsibilities that require clarification.''
Response. The Department recognizes the importance of coordinating
investigations. However, the Department concludes that details of how
to coordinate investigative efforts most effectively are best left to
the agencies involved, and do not warrant specific reference within the
standards.
Comment. One stakeholder suggested removing sexual harassment from
the ambit of this standard, while a number of other commentators
suggested adding sexual harassment to sections of the proposed
standards that referenced only sexual abuse.
Response. Although PREA does not reference sexual harassment, it
authorizes the NPREC, 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). Referencing sexual harassment in
certain standards is appropriate to combat what may be a precursor to
sexual abuse. Upon reconsideration, the Department has added sexual
harassment to the portions of the standard that reference policies of
State entities and Department of Justice components, in order that
these provisions parallel the remainder of the standard.
Comment. Two agencies expressed uncertainty as to the meaning of
``State entity'' in the proposed standard, and suggested adding a
specific definition.
Response. The reference to ``State entity'' is meant to refer to
any division of the State government, as opposed to local government.
The Department does not believe that a definition is necessary.
Employee Training (Sec. Sec. 115.31, 115.131, 115.231, 115.331)
Summary of Proposed Rule
The standard contained in the proposed rule required that all
employees who have contact with inmates receive training concerning
sexual abuse in facilities, including specified topics, with refresher
training to be provided on an annual basis thereafter. The proposed
standard included all training topics proposed by the NPREC, and added
requirements that training be provided on how to avoid inappropriate
relationships with inmates, that training be tailored to the gender of
the inmates at employees' facilities, that training cover effective and
professional communication with LGBTI residents, and that training in
juvenile facilities be tailored to the juvenile setting.
The proposed standard required that agencies document that
employees understand the training they have received, and that all
current employees be trained within one year of the effective date of
the PREA standards.
In lockups, the proposed standard, consistent with the NPREC's
corresponding standard, did not specify training requirements beyond
requiring that the agency train all employees and volunteers who may
have contact with lockup detainees to be able to fulfill their
responsibilities under agency sexual abuse prevention, detection, and
response policies and procedures, and to communicate effectively and
professionally with all detainees.
Changes in Final Rule
The Department has added language in Sec. Sec. 115.31(a)(10),
115.131(a)(6), and 115.231(a)(10), and made conforming changes to Sec.
115.331(a)(10), to require relevant staff training in all facilities on
laws related to the mandatory reporting of sexual abuse to outside
authorities.
The final standard adds sexual harassment to paragraphs (a)(2),
(a)(4), (a)(5), and (a)(6), which previously referenced only sexual
abuse, and adds ``gender nonconforming inmates'' to paragraph (a)(9),
which previously referenced only LGBTI inmates.
In an effort to reduce the costs associated with providing
training, the Department has reduced the required frequency of staff
``refresher training'' from annual to every two years, while adding a
requirement that ``refresher information'' be provided to staff in the
years in which they do not receive training.
[[Page 37146]]
Comments and Responses
Comment. Most agency commenters responded positively to the staff
training standards, with some stating that that they were already in
compliance. A number of agency commenters identified concerns with the
cost of development and the frequency of required training. Other
commenters expressed concern specifically with regard to the costs
associated with providing training on effective communication with
LGBTI inmates.
Response. The Department's National Resource Center for the
Elimination of Prison Rape intends to develop training tools for use by
all types of correctional agencies. Therefore, costs for training
development should not be burdensome, and agencies should be able to
integrate this training into their training protocols in a cost-
effective manner. In response to comments regarding the frequency of
refresher training, the Department modified the requirement so that
agencies need provide such training only every two years, which will
reduce the cost of such training. However, the Department notes that
such refresher training is quite valuable: In addition to helping
ensure that staff know their responsibilities and agency policies, the
periodic repetition of this training will foster the development of an
agency and facility culture that prioritizes efforts to combat sexual
abuse.
Comment. Advocate and former inmate commenters requested increased
and specific training for staff on effective and professional
communication with all inmates, and specifically with LGBTI and gender
nonconforming inmates.
Response. The final standard requires staff to receive training in
effective and professional training with inmates in general, and
specifically with respect to LGBTI and gender nonconforming inmates.
The Department does not believe that the standard itself need provide
greater detail regarding the precise contours of such training. Rather,
the Department expects that agencies will learn from each other and
will adapt the Resource Center's training materials as needed.
Comment. Some commenters recommended that the standard require
training of all employees rather than, as in the proposed standard,
only employees who may have contact with inmates.
Response. While agencies are free to train all employees, the
Department reaffirms its determination that it would not be appropriate
for the standard to require agencies to train employees who have no
documentable inmate contact.
Comment. Some commenters requested that training be expanded to
include sexual harassment in addition to sexual abuse.
Response. The Department has added sexual harassment to certain
training requirements, where particularly relevant. Specifically, the
final standard requires training on inmates' right to be free from
retaliation for reporting sexual harassment, the dynamics of sexual
harassment in confinement, and the common reactions of sexual abuse and
sexual harassment victims. Adding sexual harassment to these training
categories, which in the proposed standard referenced only sexual
abuse, is unlikely to increase costs and may help combat what is often
a precursor to sexual abuse.
Comment. An advocate commenter recommended that staff receive
training on how histories of sexual abuse and domestic violence affect
women. Additionally, one agency commenter suggested that all training
should be ``gender informed.'' Various other commenters expressed
concern that gender-specific training would be interpreted to mean that
training should be tailored solely to the gender of the inmates in the
employee's current work assignment, which these commenters stated could
be problematic if the employee is later reassigned. Instead, they
requested that all staff be trained on the gender-specific needs of
both genders with regard to sexual abuse.
Response. The proposed standard already mandated training on these
topics, by requiring training on the dynamics of sexual abuse in
confinement and the common reactions of sexual abuse victims, and by
requiring that training be tailored to the gender of the inmates at the
employee's facility. The final standard retains these requirements, and
clarifies the last provision by requiring that staff transferring
between gender-specific facilities receive gender-appropriate training.
Requiring gender-specific training is unlikely to complicate employee
transfers; it should not prove burdensome for an employee transferring
from a male facility to a female facility, or vice versa, to undergo a
training module related to the needs of the population at the staff
member's new facility.
Comment. Some advocate commenters recommended that agencies be
required to use the incident review process to make adjustments to
training curriculums.
Response. While the Department agrees that incident reviews may be
instructive as to training needs, it does not believe it is necessary
to mandate such a connection. Instead, the Department leaves the issue
to the discretion of agency officials.
Comment. A rape crisis center recommended that agencies partner
with local rape crisis centers to provide the most current training
materials regarding sexual abuse.
Response. The Department encourages such linkages, but declines to
mandate them. Such a mandate could be difficult for certain agencies to
comply with, depending upon the availability and interest of local rape
crisis centers.
Comment. Several advocacy groups proposed requiring that staff be
trained in State mandatory reporting laws.
Response. The Department agrees, and has added a requirement in
Sec. Sec. 115.31(a)(10), 115.131(a), and 115.231(a)(10) that staff be
trained in how to comply with relevant laws relating to mandatory
reporting of sexual abuse to outside authorities. The Department has
modified the analogous requirement under Sec. 115.331(a)(10) for
consistency. Jurisdictions must determine their responsibilities under
applicable laws and train staff accordingly.
Comment. Many commenters expressed concern that the proposed
standard for lockups specified a smaller set of training topics than
the proposed standards for other categories of facilities.
Response. The final standard expands the training requirements for
lockups, adding requirements that training be provided on the agency's
zero-tolerance policy; detainees' right to be free from sexual abuse
and sexual harassment; the dynamics of sexual abuse and harassment in
confinement settings, including which detainees are most vulnerable in
lockup settings; the right of detainees and employees to be free from
retaliation for reporting sexual abuse or harassment; how to detect and
respond to signs of threatened and actual abuse; and how to comply with
relevant laws related to mandatory reporting of sexual abuse to outside
authorities.
Comment. Juvenile justice agencies and juvenile advocacy groups
recommended that the final standard require staff training specific to
age of consent laws and how to distinguish between consensual and
abusive sexual contact between residents.
Response. The Department recognizes that juveniles may have sexual
development issues that are distinct from adult behaviors. Accordingly,
the final standard includes these training
[[Page 37147]]
topics in Sec. 115.331(a)(7) and (11). Juvenile facilities will need
to identify applicable State laws regarding age of consent and train
staff accordingly.
Comment. A significant number of commenters requested the inclusion
of staff training in adolescent development, behavioral manifestations
of trauma, the particular needs and vulnerabilities of juveniles,
sexual health, sexual development, healthy staff-youth relationships,
and other topics.
Response. Many of these topics are covered in the final standard,
which requires training on, among other topics, the dynamics of sexual
abuse and sexual harassment in juvenile facilities, the common
reactions of juvenile victims of sexual abuse and sexual harassment,
how to detect and respond to signs of threatened and actual sexual
abuse and how to distinguish between consensual sexual contact and
sexual abuse between residents, and how to avoid inappropriate
relationships with residents. While staff may benefit from training on
sexual health and sexual development, such training is not essential to
combating sexual abuse in juvenile facilities.
Comment. Some commenters recommended that the agencies be required
to train all employees within one year, rather than 90 days, upon
enactment of the final standards.
Response. The Department believes that one year is a suitable
amount of time, in consideration of the wide variety in facility sizes,
population, and resources.
Comment. Some commenters criticized the Department for not
including the NPREC's recommended supplemental immigration standard ID-
2, which would require additional training for employees at facilities
that hold immigration detainees. These commenters requested that the
final standards require specific training regarding cultural
sensitivity and issues unique to immigration detainees.
Response. The Department recognizes that State and local facilities
often confine very diverse populations, as do BOP facilities, even if
they do not hold immigration detainees. The Department believes that
the final standard requires training that is appropriate and responsive
to this diversity. By mandating that agencies train their employees,
for example, on how to detect and respond to signs of threatened and
actual sexual abuse and to communicate effectively and professionally
with inmates, the standard implicitly contemplates training to account
for any relevant linguistic, ethnic, or cultural differences. Because
the requirement is broad and inclusive, the Department concludes that
it is not necessary to require additional training regarding cultural
sensitivity to particular populations. Instead, the Department leaves
the issue to the discretion of agency officials.
Volunteer and Contractor Training (Sec. Sec. 115.32, 115.132, 115.232,
115.332)
Summary of Proposed Rule
The standard contained in the proposed rule mandated that all
volunteers and contractors who have contact with inmates be trained on
their responsibilities under the agency's sexual abuse and prevention,
detection, and response policies and procedures, in recognition of the
fact that contractors and volunteers often interact with inmates on a
regular, sometimes daily, basis. The level and type of training
provided to volunteers and contractors would be based on the services
they provide and level of contact they have with inmates; at the very
least, all volunteers and contractors who have contact with inmates
would be notified of the agency's zero-tolerance policy regarding
sexual abuse and sexual harassment and informed how to report such
incidents.
With regard to lockups, the proposed standards mandated, in 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.)
Changes in Final Rule
The final standard adds sexual harassment to the scope of training
for volunteers and contractors. For lockups, the final standard removes
attorneys from the scope of persons to be notified of the agency's
zero-tolerance policy. The proposed standard did not require such
notification of attorneys in any other type of facility, and upon
reconsideration the Department concludes that the purposes of
notification are not served by requiring notification of attorneys in
lockups.
Comments and Responses
Comment. Commenters supported training for volunteers; some
requested greater specificity in the categories of training required.
Response. The Department believes that the training categories
included in the final standard are sufficient for agencies to identify
training as appropriate for each type of volunteer.
Inmate Education (Sec. Sec. 115.33, 115.233, 115.333)
Summary of Proposed Rule
The proposed standard required that information about combating
sexual abuse be provided to individuals in custody upon intake and that
comprehensive education be provided within 30 days of intake in person
or through video. In addition, the proposed standard required that
agencies ensure that key information is continually and readily
available or visible to inmates through posters, inmate handbooks, or
other written formats. The proposed standard required annual refresher
information, except for community confinement facilities, which were
required to provide refresher information only when a resident is
transferred to a different facility.
Changes in Final Rule
The final standard replaces the requirement that inmates receive
annual refresher information with a requirement that inmates receive
additional education upon transfer to a different facility to the
extent that the policies and procedures of the inmate's new facility
differ from those of the previous facility. In addition, juvenile
facilities are now required to provide comprehensive education within
10 days of intake, rather than 30 days, which remains the timeframe for
other facilities.
Comments and Responses
Comment. Jail agency commenters were most critical of the
requirement for inmate education, indicating that the training of a
population with rapid turnover was difficult to deliver and document.
Jail agency commenters also criticized the requirement to provide
inmate education during the intake process; some noted that jail
booking processes were not equivalent to intake in prisons, because
jail inmates are more likely to be suffering from increased stress, to
be less stable emotionally, and to be under the influence of drugs or
alcohol at the time of intake. These commenters also remarked that
smaller jails are not equipped to provide inmate education.
Response. The Department recognizes that jails have a unique
population and rapid turnover rate. The final standard clarifies that
information can be provided at intake through a handout or other
written material. The documentation requirement has not been changed,
as this can be easily added to an intake/admission checklist or other
form of documentation. Indeed,
[[Page 37148]]
several agency commenters, including jails, stated that they already do
so.
Comment. Agency commenters criticized the yearly refresher
requirement as unwieldy, citing the difficulty of delivery,
documentation, and tracking of this activity.
Response. The Department has removed the annual refresher
requirement, substituting language requiring that inmates receive
education upon transfer between facilities to the extent that the
policies and procedures differ. This revision is better tailored to the
goal of ensuring that inmates are always aware of relevant procedures,
consistent with the requirement in Sec. 115.33(f) that agencies ensure
that key information is continuously and readily available or visible
to inmates through posters, inmate handbooks, or other written formats.
Comment. One former inmate stated that inmates do not take video
education seriously. The commenter recommended that inmate training be
tailored to the type of inmate, including separate trainings for first-
time inmates, who may need more information than is currently provided.
Response. The Department encourages agencies to offer in-person
education and tailored trainings to the extent that resources allow,
but concludes that the standard need not mandate either in order to
serve the purpose of educating inmates. The National Resource Center
for the Elimination of Prison Rape intends to develop training tools
for use by all types of correctional agencies and may be able to
provide such tailoring.
Comment. Juvenile justice advocates criticized as too long the 30-
day timeframe in Sec. 115.333(b) for providing comprehensive education
regarding sexual abuse and harassment in juvenile facilities.
Response. The Department agrees, and has shortened the timeframe
for comprehensive education in juvenile facilities to ``within 10 days
of intake.'' The Department notes that Sec. 115.333(a) separately
requires that residents receive information upon intake explaining the
agency's zero-tolerance policy regarding sexual abuse and sexual
harassment and how to report incidents or suspicions of sexual abuse or
sexual harassment.
Comment. Some commenters requested inclusion of a lengthy list of
additional topics for juveniles, such as basic sexual education, sexual
anatomy, sexual orientation, and gender roles.
Response. While juvenile residents may benefit from learning about
such topics, these topics appear to be better suited for inclusion in a
facility's school curriculum rather than in a set of mandated topics
aimed at combating sexual abuse.
Comment. Some advocate commenters requested that the Department
mandate ``peer-to-peer education'' for inmates.
Response. The Department recognizes that some correctional systems,
including the California Department of Corrections and Rehabilitation,
have instituted pilot peer-to-peer education programs. While the
Department encourages further development of such programs, it believes
that at this point in time the nationwide imposition of such a
requirement would be too resource-intensive.
Comment. Some commenters proposed that the Department include the
NPREC's recommended supplemental immigration standard ID-3, which would
require that education regarding sexual abuse be culturally appropriate
and given to immigration detainees separately from information
regarding their immigration cases.
Response. The Department believes that the final standard is
sufficient to address concerns that immigration detainees in State,
local, and BOP facilities receive meaningful education regarding
combating sexual abuse. The final standard requires that education be
accessible to all inmates, including those who do not speak English,
and that educational materials be continuously and readily available to
inmates regardless of their immigration status. The Department believes
that facilities need not be required to tailor such education to the
culture of the detainees, or deliver it separately from case-related
information, in order to ensure that it is meaningful.
Comment. Several commenters suggested that agencies be required to
distribute an ICE Detainee Handbook, as recommended by the NPREC in its
supplemental immigration standard ID-4.
Response. The final rule does not include this change. The NPREC
recommended that the handbook include information regarding the
agency's sexual abuse policies, as well as information regarding how to
contact community services organizations, consular officials, and DHS
officials. These issues are already addressed in this standard as well
as in the final standards on Inmate Reporting (Sec. Sec. 115.51,
115.151, 115.251, 115.351) and Access to Outside Confidential Support
Services (Sec. Sec. 115.53, 115.253, 115.353), which collectively
provide appropriate guidance to State, local, and BOP facilities that
hold immigration detainees.
Specialized Training: Investigations (Sec. Sec. 115.34, 115.134,
115.234, 115.334)
Summary of Proposed Rule
The proposed standard required that agencies that conduct their own
sexual abuse investigations provide specialized training for their
investigators in conducting such investigations in confinement
settings, in addition to the general training required for all
employees, and that any State entity or Department of Justice component
that investigates sexual abuse in confinement settings do the same.
Changes in Final Rule
No changes have been made.
Comments and Responses
Comment. Advocate commenters generally supported revising the
standard to require training on distinguishing between abusive and
consensual sexual contact. Some advocates identified this training as
essential to determining whether what may appear to be consensual
activity is in fact coercive, while others expressed an opposite
concern: That too many incidents would be considered abusive unless
investigators were properly trained.
Response. While not specifically mentioned, this topic should be
considered part of the relevant training in conducting sexual abuse
investigations in confinement settings as mandated by Sec. 115.34(a).
The same paragraph requires that investigators receive the general
training provided to all inmates pursuant to Sec. 115.31, which
includes training on the dynamics of sexual abuse in confinement.
Additionally, with regard to juvenile facilities, Sec. 115.331
specifically mandates training in how to distinguish between consensual
sexual contact and sexual abuse between residents.
The question of whether sexual contact was consensual is a
threshold determination in investigating any allegation of sexual abuse
between inmates. The investigator is unlikely to have observed direct
contact between the victim and alleged abuser, but will need to make
this determination based on interviews and the evidence collected. The
final standard requires investigators to have specialized training in
conducting sexual abuse investigations in confinement settings,
including training on techniques for interviewing sexual abuse victims
and the evidence required to substantiate a case. Such training will
help enable investigators to assess whether sexual contact was abusive.
The National Resource Center for the Elimination of
[[Page 37149]]
Prison Rape will develop training modules that will assist the
provision of such specialized training to investigators.
Comment. Advocate commenters also requested a requirement that
investigators receive specialized instruction in accessing LEP
resources.
Response. Sections 115.16, 115.116, 115.216 and 115.316 address LEP
inmates and, as revised, require equal access to all aspects of efforts
to prevent, detect, and respond to sexual abuse and sexual harassment
for inmates who are LEP. The Department has not specified within
individual standards how agencies are to implement this standard,
preferring to leave it to agency discretion.
Specialized Training: Medical and Mental Health Care (Sec. Sec.
115.35, 115.235, 115.335)
Summary of Proposed Rule
The standard contained in the proposed rule required specialized
training, and documentation thereof, for all medical staff employed by
the agency or facility. The standard exempted lockups, which usually do
not employ or contract for medical staff. The proposed standard also
required that any agency medical staff who conduct forensic evaluations
receive appropriate training.
Changes in Final Rule
The final standard clarifies that medical and mental health care
practitioners shall also receive the training mandated for employees
under Sec. 115.31 or for contractors and volunteers under Sec.
115.32, depending upon the practitioner's status at the agency. The
final standard also adds a requirement that medical staff receive
training in how to detect, respond to, and report sexual harassment.
Comments and Responses
Comment. Many comments regarding paragraph (b) of the proposed
standard, which required that any agency medical staff who conduct
forensic evaluations receive appropriate training, appeared to
misunderstand the intent of this requirement. Agency commenters
expressed concern about the potential expense of providing advanced
forensic training, whereas advocate commenters criticized the notion
that agency medical staff would conduct forensic examinations, and
seemed to assume that any training provided to them would be
inadequate.
Response. Paragraph (b) is meant to direct agencies to obtain
appropriate and proper training for in-house medical staff if they
decide to perform forensic examinations on-site. This direction is not
intended to encourage agencies to create in-house forensic programs,
but rather to call attention to the specialized training required to
perform adequate examinations. The Department recommends that on-site
medical staff conducting forensic examinations meet or exceed the
training guidelines found in the Department's National Training
Standards for Sexual Assault Medical Forensic Examiners.
Comment. Advocate commenters suggested that medical and mental
health care practitioners should receive the same training as all other
staff.
Response. The Department agrees, and has added language
accordingly.
Comment. One agency commenter stated that specialized training for
medical and mental health contractors would be costly and burdensome.
Response. The Department does not find this comment persuasive.
Many medical and mental health contractors will already have such
training, in which case the agency need not supplement it (beyond the
standard training for staff and contractors). To the extent medical and
mental health contractors do not have such training, it is essential
that they receive it. The National Resource Center for the Elimination
of Prison Rape is able to develop training modules that will assist the
provision of such training.
Screening for Risk of Sexual Victimization and Abusiveness (Sec. Sec.
115.41, 115.141 115.241, 115.341)
Summary of Proposed Rule
The standard contained in the proposed rule required that prisons,
jails, and community confinement facilities screen inmates during
intake and during an initial classification process for risk of being
sexually abused by other inmates or being sexually abusive toward other
inmates. The standard required that such screening be conducted using
an objective screening instrument, taking into account a list of
enumerated factors, and mandated that blank copies of the screening
instrument be made available to the public upon request,
The proposed standard further required that the screening be
conducted within 30 days of intake, and required re-screening when
warranted. The standard prohibited discipline of inmates who refuse to
answer specific questions during the screening process, and required
protection of sensitive inmate information.
With regard to juveniles, the proposed standard did not include a
timeframe, except to state that the facility should attempt to
ascertain such information during intake and periodically throughout
the resident's confinement.
The proposed standard did not include a screening requirement for
lockups.
Changes in Final Rule
Rather than require a screening during intake and again during an
initial classification process, the final standard requires an initial
intake screening to occur ordinarily within 72 hours of intake in
prisons, jails, and community confinement facilities, and requires that
the facility reassess the inmate's risk of victimization or abusiveness
within a set time period, not to exceed 30 days from the inmate's
arrival at the facility, based upon any additional, relevant
information received by the facility subsequent to the intake
screening. For juvenile facilities, the standard requires the initial
screening to occur within 72 hours.
In the list of factors to consider, the requirement to assess
whether the inmate is LGBTI has been revised by adding consideration of
whether the inmate would be perceived to be so, and whether the inmate
is or would be perceived to be ``gender nonconforming,'' which is
defined in Sec. 115.5 as ``a person whose appearance or manner does
not conform to traditional societal gender expectations.''
The final standard eliminates the requirement that a facility's
screening instrument be made publicly available, and clarifies that the
prohibition on disciplining inmates who refuse to answer screening
questions applies only to specific sensitive questions required by the
standard.
For lockups, the final standard adds an abbreviated risk screening
process for facilities that do not hold detainees overnight, and a more
extensive risk screening process for detainees in lockups that do hold
inmates overnight.
Comments and Responses
Comment. Advocates and correctional agencies alike expressed
concern over the requirement in the proposed standard that the initial
classification occur within 30 days of the inmate's confinement.
Advocates feared that allowing facilities up to 30 days to complete an
initial classification would place many inmates at unnecessarily high
risk of abuse for an extended period of time. Advocates preferred that
information be gathered during the intake process to the extent
possible,
[[Page 37150]]
and expressed the view that much of the required information should be
readily available.
Agency commenters expressed the concern slightly differently,
noting that a large percentage of jail inmates are released within 30
days, and thus 30 days was too long to allow an inmate to wait until an
initial classification. Some jail commenters, including the American
Jail Association, also expressed concern about conducting screening at
intake, when inmates are often under the influence or under great
stress. In addition, these commenters stated that a high percentage of
those arrested are released directly from the ``booking floor'' and
suggested that a jail intake screening should look similar to those
conducted at lockup facilities until a determination has been made that
the arrestee will not be released. The National Sheriffs Association,
plus several State sheriffs' associations, commented that the standard
in the proposed rule would be difficult to implement in a jail. Several
commenters suggested that jail booking operations are more similar to
processes in lockup facilities than to prison intake.
Response. Upon reconsideration, including a review of comments
submitted in response to NPRM Question 22, which asked whether the
final rule should provide greater guidance regarding the required scope
of the intake screening, the Department has decided to make significant
changes to this standard.
In order to protect all inmates regardless of when they arrive at a
facility or where they are located within the facility, at least
minimal information must be collected quickly to inform decisions about
where the arrestee should be held awaiting the intake procedure and
where he or she will be housed initially.
The Department recognizes that some jail inmates spend limited time
in the booking area, at a time when certain information needed for
appropriate classification may not be immediately available. However,
the brevity of the booking process and the possible lack of background
information do not obviate the need to identify potentially vulnerable
or abusive individuals and ensure they do not become victims or
perpetrators. The final standard addresses jails' concerns by making a
clearer distinction between the initial process of collecting risk
information upon intake to make provisional decisions about protection
and placement, and the subsequent reassessment of the inmate's risk
after receiving fuller information.
The final standard uses the term ``intake screening'' to describe
the collecting of information from a person brought to a facility.
Facilities should be able to readily obtain the information referenced
in the enumerated criteria, and this intake screening can and should
occur within 72 hours of the person's arrival at the facility.
Facilities are strongly encouraged to conduct the intake screening
sooner, to the extent circumstances permit. The ten criteria enumerated
in the standard usually will be available through staff observation,
direct questioning, or records checks within the 72-hour timeframe.
Inmates who are unable to post a bond or are held subsequent to
other warrants or court orders usually remain in custody pending a
court appearance. The final standard requires that inmates who remain
in custody undergo a more extensive classification process. Within a
set period of time, not to exceed 30 days, the facility is to reassess
the inmate's risk of victimization or abusiveness based upon any
additional, relevant information received by the facility since the
intake screening. This requirement recognizes that information relevant
to the risk and classification needs will become available as staff
interview, assess, and observe the inmate, and as the facility receives
information from other agencies and sources.
These revisions take into account the differences between--and
among--prisons and jails, as well as the fact that information relevant
to a more comprehensive inmate classification may not be immediately
accessible. The Department recognizes that the time limits in this
standard imply that some inmates will be screened twice, some once, and
some--hopefully very few--not at all. These variations are inevitable
when crafting a system with sufficient structure and flexibility to
ensure that classifications are both effective and efficient.
Comment. Some jail commenters noted that certain inmates are
``frequent flyers'' who rotate in and out of the jail on a regular
basis. The commenters stated that an inmate screening would be
unnecessary for such inmates, given that the jail would already possess
a significant amount of information from their prior admissions.
Response. A facility is free to rely on information previously
gathered with regard to a returning inmate; however, the facility
should ensure that its assessment captures any changes in risk factors
that may have occurred subsequent to the facility's prior gathering of
information regarding that inmate.
Comment. Some agency commenters recommended that the final standard
defer to State or local laws regarding the screening of inmates.
Response. The final standard provides a set of requirements that
can be implemented in a manner consistent with State and local laws; to
defer entirely to such laws would abdicate the Department's
responsibility to ensure that the standard is satisfied only by
screening procedures that provide sufficient protection against abuse.
Comment. Some advocacy commenters recommended that the standard add
gender nonconformance to the list of risk factors, on the ground that
gender nonconformance gives rise to the same risk of victimization as
the inmate's internal identification.
Response. The Department agrees, and has made two additions to this
standard. First, the final standard includes consideration of whether
the inmate is ``gender nonconforming,'' which is defined in Sec. 115.5
as ``a person whose appearance or manner does not conform to
traditional societal gender expectations.'' Second, the standard
instructs agencies to take into account not only whether the inmate is
LGBTI, but whether the inmate is perceived to be so.
Comment. Some agency commenters feared confusion between Sec.
115.41, which in the proposed rule required that all inmates be
screened during the intake process and during initial classification,
and Sec. 115.81, which required that inmates be asked about prior
victimization and abusiveness during intake or classification
screenings. One jail stated that implementing the standards as written
would require the hiring of one additional officer per shift, at an
additional annual cost of $840,000. Other agency commenters also
expressed budget concerns; some stated that requiring two separate
screenings is overly burdensome and that the two standards should be
combined.
Response. The Department agrees that, as written, the two standards
could cause confusion, and has amended Sec. 115.81 accordingly.
Instead of requiring a separate interview to collect information about
sexual victimization and abusiveness, the requirements of Sec. 115.81
are triggered only if the screening mandated by Sec. 115.41 indicates
that an inmate has experienced prior sexual victimization or
perpetrated sexual abuse. This adjustment should eliminate the need for
additional staff to conduct separate interviews.
Comment. One agency commenter expressed uncertainty over whether
the
[[Page 37151]]
``PREA screening'' should be incorporated into the initial
classification instrument, and suggested that such incorporation could
be problematic because the agency requires inmates to answer questions
during its classification process, in contravention of the proposed
standard, which provided that ``[i]nmates may not be disciplined for
refusing to answer particular questions or for not disclosing complete
information.'' The agency therefore recommended that the ``PREA
screening'' be separate and distinct from the initial classification
process.
Response. This comment indicates that the proposed standard was
worded too broadly and inadvertently caused confusion. The intent of
the no-discipline phrase was not to grant immunity from discipline for
failure to cooperate with intake, but rather to ensure that inmates who
are fearful of disclosing sensitive information about risk factors are
not punished for failing to disclose such information. Accordingly, the
final standard revises this language to clarify that it applies only to
questions about disabilities, LGBTI status, gender nonconformance,
previous sexual victimization, and the inmate's self-perception of
vulnerability.
Comment. A small number of State correctional agencies expressed
concern that staffing levels may need to increase to manage additional
intake interviews.
Response. As noted above, the clarification of the distinction
between intake screening and classification should negate the need for
additional classification staff.
Comment. A few agency commenters also expressed concerns that
making blank copies of their screening instruments available to the
public could compromise their operations; one suggested that if the
blank forms were made available, inmates could manipulate the
information. The commenter recommended that the standard instead
require agencies to identify and publicize the general types of
information collected.
Response. Upon reconsideration, the Department concludes that it is
unnecessary to require agencies to make available blank copies of their
screening instruments, and has removed this requirement from the
standard.
Comment. A State correctional agency expressed concern that the
screening instrument would collect and rely on items that have not been
validated as predictors of risk. The commenter recommended that any
instrument used to classify inmates be validated and that funding be
provided to develop such an instrument and to revalidate the instrument
after three years of use.
Response. To account for the range of agency types and available
resources, the Department has chosen not to include a validation
requirement. Pre-implementation validation and follow-up validation of
risk screening instruments is a commendable practice and, in State
systems and other large jurisdictions, comports with generally accepted
professional standards. However, some agencies, such as small county
jails, may lack sufficient resources to engage in a comprehensive
validation study. Because risk factors may have varying degrees of
predictive correlation in different jurisdictions, small agencies may
need to rely upon reasonable assumptions in developing an objective
screening instrument and classification process. Although research into
risk factors for institutional sexual victimization and abusiveness
remains ongoing, the factors listed in the standard have sufficient
bearing upon the risk of victimization or abusiveness to warrant their
use when assessing inmates. A validation process, where used, can
assist in determining the weight of each identified factor for purposes
of informing the housing classification process.
Comment. Some advocates expressed concern that the proposed
standard would allow intake and security staff to ask sensitive
questions of residents without requiring the appropriate level of
training to conduct such interviews. Several commenters urged the
Department to adopt the NPREC's recommendation that only medical or
mental health providers be allowed to ask such questions, at least in a
facility where such providers work on-site. One agency remarked that
its screening instrument was developed by a mental health professional,
and suggested that an accurate determination of a resident's level of
emotional and cognitive development, intellectual capabilities, and
self-perception of vulnerability would not be possible without the
involvement of such professionals.
Response. The Department remains of the view that appropriately
trained intake staff may be competent to ask residents sensitive
questions in a professional and effective manner, and thus the final
standard leaves to agency discretion how to use staff resources most
effectively at intake. The Department expects that the training
required in these standards will benefit intake staff who are tasked
with such responsibilities.
Comment. One juvenile detention association expressed concern over
the lack of distinction between short-term juvenile detention
facilities and long-term juvenile correctional facilities. The
commenter noted that in detention settings, the facility may have no
information about the inmate other than a court order. The commenter
warned that asking questions about sexual victimization or abusiveness
upon the resident's arrival at the facility could be viewed as
intrusive, could produce anxiety, and could ``set the wrong tone for
the stay in detention.''
Response. The Department recognizes that an agency will not always
be able to ascertain information about each of the enumerated factors.
For example, the resident may choose not to answer certain screening
questions, or the facility may not otherwise have access to certain
criteria. The standard accounts for these considerations by making
clear that the agency shall only ``attempt to ascertain'' the
information. The Department expects that an agency will make necessary
and reasonable efforts to obtain information. For example, an agency
can work cooperatively with law enforcement and social service agencies
to obtain information about the resident.
The Department disagrees with the commenter that it is
inappropriate to inquire about the resident's prior sexual
victimization or abusiveness. First, this information is important in
informing housing and programming decisions with the goal of keeping
residents safe from abuse. Second, as discussed above, appropriately
trained staff can make the inquiries in a professional and sensitive
manner. Third, the standard makes clear that residents are not required
to provide this information and may not be punished for refusing to
provide this information.
Comment. The same commenter indicated that unless the screening
instrument is developed by a mental health professional, it will be
difficult to assess accurately the resident's level of emotional and
cognitive development, intellectual capabilities, and the resident's
own perception of vulnerability, and that the development of such a
screening instrument could be expensive.
Response. The Department encourages agencies to develop their risk
screening instrument and process utilizing a multi-disciplinary team,
including input from an appropriate mental health professional. Because
agencies and facilities typically employ or contract with mental health
professionals, the Department does not believe that such input would be
cost prohibitive. In addition, the National Resource Center for the
Elimination of
[[Page 37152]]
Prison Rape and other agencies and technical assistance providers can
assist with the development of a risk-screening program that may be
applicable or adaptable across systems.
Comment. NPRM Question 21 asked whether, given that lockup
detention is usually measured in hours, and that lockups often have
limited placement options, the final standard should mandate
rudimentary screening requirements for lockups. Advocates strongly
favored screening requirements, and suggested that many police lockups
already employ basic measures aimed at protecting inmates from sexual
abuse. Noting that a full classification process may not be necessary,
advocates recommended that lockups be required to collect information
similar to what the proposed standard required longer-term facilities
to gather, especially if lockups hold multiple inmates in the same
cell. Commenters also recommended that lockups conduct a basic
screening to ensure that highly vulnerable inmates are not left alone
with likely perpetrators even for short periods of time.
Advocates proposed adding a list of known indicators of
vulnerability, including mental and physical disability, young age,
slight build, nonviolent history, identification as LGBTI, gender
nonconforming appearance, and prior victimization. Some also proposed
requiring lockups to ask detainees about their own perception of
vulnerability and to provide heightened protection to detainees who
perceive themselves to be vulnerable.
Few agency commenters responded to the question; those that did
mostly supported requiring lockups to administer some type of screening
instrument or process. Some remarked that lockups were so small, and
lengths of stay so brief, that the standards should not mandate a
screening, and that any such standard should allow maximum flexibility.
Response. The Department has added screening requirements for
lockup facilities, distinguishing between lockups that hold detainees
for a few hours, such as court holding facilities, and lockups where
individuals may be held overnight, such as police stations. This
revision adds protections for lockup detainees while recognizing that
lockups are situated very differently from prisons and jails and often
do not conduct intake as that term is traditionally understood.
In lockups that are not used to house detainees overnight, before
placing any detainees together in a holding cell, staff must consider
whether, based on the information before them, a detainee may be at a
high risk of being sexually abused and, when appropriate, must take
necessary steps to mitigate any such danger to the detainee.
In lockups that are utilized to house detainees overnight, all
detainees must be screened to assess their risk of being sexually
abused by other detainees or sexually abusive toward other detainees,
and all detainees must be asked about their own perception of
vulnerability. The screening process in such lockups shall also
consider--to the extent that the information is available--whether the
detainee has a mental, physical, or developmental disability; the age
of the detainee; the physical build and appearance of the detainee;
whether the detainee has previously been incarcerated; and the nature
of the detainee's alleged offense and criminal history. In an effort to
minimize the number of screening requirements in lockups, given that
there may be no privacy to ask individuals screening questions, the
standard does not explicitly include identification as LGBTI, gender
nonconforming appearance, or prior victimization in its list of known
indicators of vulnerability. However, these indicators may be
ascertainable through other listed factors, such as physical build and
appearance, and the detainee's own perception of risk.
Use of Screening Information (Sec. Sec. 115.42, 115.242, 115.342)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies
use the risk screening process to inform housing, bed, work, education,
and program assignments with the goal of keeping inmates determined to
be at risk of sexual victimization separate from inmates at risk of
being sexually abusive. The proposed standard provided that agencies
shall make individualized determinations about how to ensure the safety
of each inmate, and required that, in placing transgender or intersex
inmates, the agency consider on a case-by-case basis whether a
placement would ensure the inmate's health and safety, and whether the
placement would present management or security problems. The proposed
standard also provided that transgender and intersex inmate placement
be reassessed at least twice each year, and that such inmates' own
views as to their safety be given serious consideration.
For community confinement facilities, the proposed standard
generally mirrored the standard for prisons and jails, but omitted the
requirement that transgender and intersex residents be reassessed twice
per year.
For juvenile facilities, the proposed standard required the use of
the risk screening process and additional information in order to
determine appropriate placement to keep the residents safe from sexual
abuse. The proposed standard also limited the use of isolation for
purposes of protecting residents, and provided that LGBTI residents may
not be placed in a particular housing location based solely on such
identification.
The standard in the proposed rule did not apply to lockups.
Changes in Final Rule
The final standard makes two changes applicable to prisons, jails,
and community confinement facilities. First, transgender and intersex
inmates must be given the opportunity to shower separately from other
inmates. Second, the final standard prohibits placing LGBTI inmates in
a dedicated unit or facility solely on the basis of LGBTI
identification unless such placement is pursuant to a legal requirement
for the purpose of protecting such inmates.
The final standard makes multiple changes for juvenile facilities.
First, to avoid duplication and confusion, the final standard for
juvenile facilities no longer enumerates placement factors but requires
the facility to use the types of information obtained pursuant to Sec.
115.341(c) to make housing, bed, program, education, and work
assignments for residents, with the goal of keeping all residents safe
and free from sexual abuse. Second, the final standard contains added
protections for residents who are isolated for purposes of protection.
During any period of isolation, agencies shall not deny residents daily
large-muscle exercise or any legally required educational programming
or special education services. Residents in isolation shall receive
daily visits from a medical or mental health care clinician, and shall
have access to other programs and work opportunities to the extent
possible. Third, agencies may not consider a resident's LGBTI
identification as a predictor of likelihood of being sexually abusive.
Fourth, the final standard replaces the requirement that agencies make
individualized determinations about the placement of transgender and
intersex residents with language identical to corresponding language in
the standard for adult facilities: That agencies determine, on a case-
by-case basis, housing and programming assignments for transgender and
[[Page 37153]]
intersex residents for purposes of ensuring the residents' health and
safety, as well as any management or security concerns, that such
placement decisions shall be reassessed at least twice per year, and
that the views of transgender and intersex residents regarding their
own safety be given serious consideration. Finally, if a resident is
isolated for protective purposes, the agency shall be required to
document its justification, and review the continued need for isolation
at least every 30 days.
Comments and Responses
Comment. Some agency commenters requested definitions of
``transgender'' and ``intersex.''
Response. As noted above, the final rule includes definitions of
these terms in Sec. 115.5.
Comment. Many advocacy commenters urged the inclusion of ``gender
nonconforming'' and ``perceived to be'' LGBTI as screening factors.
Response. As discussed above, the Department has made this change.
Comment. Many advocate commenters opposed the omission from the
proposed standard of the NPREC's recommended ban on assigning inmates
to particular units based solely on their sexual orientation or gender
identity. Commenters noted that it is impossible to state categorically
that such units are safer and expressed concern that occupants might
not be afforded programs and services equal to those of other inmates.
Commenters also worried that such units could be used to punish inmates
for their sexual orientation or gender identity.
Several commenters remarked that these designated units can be
successful only in certain circumstances. Some asserted that the unit
operated by the Los Angeles County Jail for gay male and transgender
inmates, specifically mentioned in the discussion of this standard in
the proposed rule, is the exception rather the norm. These commenters
stated that inmates in this unit retain access to substantial
programming--often more than what is available in the general
population--and that the jail has a sufficiently large gay male and
transgender population to fill multiple wings, thus allowing these
inmates to be segregated without experiencing isolation. The commenters
suggested that successfully maintaining a unit based solely on sexual
orientation or gender identity requires a demonstrated need, sufficient
facility size and LGBTI inmate population, a basic level of cultural
competence among staff, and an institutional commitment to safety and
fairness toward these populations.
Many commenters proposed language that would allow such units only
under narrowly defined circumstances, such as where placement is based
on a finding made by a judge or outside expert or is pursuant to a
consent decree, legal settlement, or legal judgment--an exception
apparently designed to encompass the Los Angeles County Jail.
Other commenters supported including the NPREC's recommendation
that the standard prohibit such units entirely; one law professor
disputed the notion that the Los Angeles County Jail was effective at
protecting inmates or otherwise worthy of emulation.
Response. Upon reconsideration, the Department concludes that
agencies should retain the option of using dedicated facilities, units,
or wings to house LGBTI inmates. However, the Department agrees that to
do so carries its own risk, and that it should be undertaken only in
limited contexts. Because it would not be feasible for the Department
to anticipate every case or circumstance that might warrant such
placements, the Department has chosen to adopt a final standard that
allows use of this practice only where the dedicated facility, unit, or
wing is established in connection with a consent decree, legal
settlement, or legal judgment.
Comment. By contrast, the proposed standard did not allow such
placements in juvenile facilities. One juvenile agency expressed
concern about this prohibition, asserting that it would present
operational challenges and might put residents at risk.
Response. The Department respectfully disagrees with this
assessment, which was not shared by advocacy groups. Despite good
intentions, the practice of using dedicated facilities, units, or wings
to house LGBTI inmates may result in youth being unable to access the
same privileges and programs as others in general population housing,
effectively punishing youth for their LGBTI status. The Department
adheres to the assessment expressed in the NPRM: ``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.'' 76
FR 6258. While some LGBTI residents may require protective measures,
such an assessment should occur only after a holistic assessment of the
risk confronting the specific inmate, and should not be implemented
automatically as a matter of facility policy.
Comment. Some advocates recommended that the final standard ensure
that transgender and intersex inmates have an opportunity to shower
separately, owing to the unique risks that such inmates face in
facilities.
Response. The final standard adds such a requirement.
Comment. Some commenters suggested several additional safeguards to
protect against excessive use of isolation, including reviewing the
status of a youth in isolation every 24 hours, limiting use of
isolation to no more than 72 hours, and ensuring that isolated
residents are provided access to programs and services.
Response. The Department agrees that long periods of isolation have
negative and, at times, dangerous consequences for confined youth.
However, in limited situations, protective isolation longer than 72
hours may be necessary to keep youth safe from sexual abuse, especially
in small facilities with limited housing options and programming space.
While not imposing a specific limit on the duration of any such
protective isolation, the final standard contains a number of
provisions limiting the use of isolation and providing enhanced
protections for youth when they are isolated. First, the final standard
prohibits the use of protective isolation except as a last resort when
less restrictive measures are inadequate to keep them and other
residents safe, and then only until an alternative housing option can
be arranged. Second, for any such placement, agencies must document the
need for isolation, and reassess its use at least every 30 days. In
addition to requiring the agency to justify the use of isolation and to
periodically reassess it, this provision will provide a mechanism for
the PREA auditor to examine whether the use of isolation is being used
appropriately. Third, the final standard provides that any youth in
protective isolation must receive daily large-muscle exercise, any
legally required education and special education programming and
services, and daily visits from medical care or mental health care
clinicians. In addition, agencies must provide isolated youth with
access to other programming to the extent possible.
Comment. One State juvenile justice agency expressed strong
concerns about proposed standard Sec. 115.342(b), arguing
[[Page 37154]]
that the specification of information that agencies are required to
consider exceeds PREA's scope and improperly dictates agency placement
policy. The comment recommended that the standard provide only that the
risk of abuse upon or by a resident be considered when making placement
decisions.
Response. The risk-screening factors enumerated in Sec. 115.341
(and incorporated by reference into Sec. 115.342) may yield
information that is predictive of a resident's risk of sexual
victimization or sexual abusiveness. Requiring consideration of such
factors in no way dictates agency placement policy; the standard does
not require that a resident meeting specific screening criteria be
housed in a specific placement. Nor does the standard mandate the
weight to be assigned to any of the enumerated factors in making
placement or classification decisions. Rather, the standard provides
that the agency shall attempt to ascertain specific information about
the resident, and that the agency develop an objective, rather than
subjective, process for using that information with the goal of keeping
residents safe from sexual abuse.
Comment. Juvenile justice advocates requested that the final
standards clarify that being LGBTI is a risk factor for being
victimized by sexual abuse, not for committing sexual abuse.
Response. The Department is not aware of any evidence to suggest
that LGBTI identification or status is a risk factor for perpetrating
sexual abuse. For this reason, and to prevent negative stereotypes of
such juveniles from affecting placement decisions, the final standard
specifically prohibits considering LGBTI identification or status as a
predictor of sexual abusiveness in juvenile facilities.
Comment. Some advocates criticized the Department for failing to
adopt NPREC supplemental immigration standard ID-6, which would require
immigration detainees to be housed separately from other inmates.
Response. The final standards addressing screening (Sec. Sec.
115.41, 115.141, 115.241, 115.341) require that agencies develop a
screening instrument that measures risk of sexual victimization
according to numerous criteria, including whether the inmate is
detained solely for civil immigration purposes. The Department believes
that the requirement that agencies use that screening information to
make individualized determinations regarding housing, bed, work,
education, and program assignments is sufficient to protect immigration
detainees in State, local, and BOP facilities without a specific
requirement that they be housed separately in every instance,
particularly when weighed against the substantial burden that such a
mandate would impose.
Protective Custody (Sec. Sec. 115.43, 115.68, 115.368)
Standards in Proposed Rule
Section 115.43 in the proposed rule provided that inmates at high
risk of sexual victimization, or who are alleged to have suffered
sexual abuse, may be placed in involuntary segregated housing only
after an assessment of all available alternatives has been made--and
only until an alternative housing arrangement can be implemented. The
proposed standard also specifically defined the assessment process,
specified required documentation, and set a presumptive timeframe for
placement in protective custody. In addition, the proposed standard
provided that, to the extent possible, involuntary protective custody
should not limit access to programming.
Section 115.66 in the proposed rule (now renumbered as Sec.
115.68) provided that any use of segregated housing to protect an
inmate who is alleged to have suffered sexual abuse shall be subject to
the requirements of Sec. 115.43.
Changes in Final Rule
The standard contained in the final rule clarifies that inmates
shall not be placed involuntarily in protective custody, unless an
assessment of available alternatives has been made, and a determination
has been made that no other alternative means of separating the inmate
from the abuser exist. The final standard adopts a 24-hour timeframe to
make this initial assessment.
The final standard also adds a requirement that if the facility
restricts access to programs, privileges, education, or work
opportunities, it must document the opportunities that have been
limited, the duration of the limitation, and the reasons for such
limitations.
Finally, the final standard shortens the presumptive time limit for
involuntary protective custody from 90 days to 30 days, and shortens
the timeframe for periodic reviews for the need for continued
separation from 90 days to 30 days.
Comments and Responses
Comment. One advocacy group commented that, although the proposed
standard required programming to be provided to inmates in protective
custody to the extent possible, such programming could still be
routinely denied. The commenter suggested that agencies be required to
document the programming opportunities that have been limited, the
duration of the limitation, and the reasons for the limitation.
Response. The Department agrees that a documentation requirement
will assist in auditing this standard, and would provide agencies a
formal mechanism to use in making programming assessments, and has
amended the standard accordingly.
Comment. Several commenters criticized as too lengthy the 90-day
presumptive time limit for productive custody, as well as the
requirement for periodic reviews every 90 days. Commenters suggested
changing both to 30 days.
Response. Upon reconsideration, the Department concludes that 30
days should ordinarily suffice to arrange for alternate means of
separation from likely abusers. In addition, the final standard
requires that a review be provided at least every 30 days thereafter,
in order to ensure that the situation is being actively monitored
should the initial placement in protective custody be extended.
Comment. A number of inmate, advocate, and individual commenters
indicated that involuntary protective custody was, in effect, punitive,
because inmates subject to this type of classification are sometimes
isolated or otherwise denied essential programming and services. These
commenters suggested that the conditions of protective custody housing
may deter the reporting of sexual abuse or the threat of sexual abuse.
Response. In certain circumstances, involuntary protective custody
may be necessary to keep inmates safe from sexual abuse. However, the
final standard makes clear that this type of housing should only be
used when, pursuant to an administrative assessment, no better
alternative is available. The standard also requires that any denial of
programming to inmates in protective custody be documented and
justified.
Comment. A number of advocates commented that an inmate's gender
identity should not be the sole basis for placement of the inmate in
involuntary protective custody.
Response. Sections 115.42, 115.242, and 115.342 provide that
housing placement determinations for LGBTI inmates shall be made on a
``case-by-case'' basis. This would preclude automatic placement in
involuntary
[[Page 37155]]
protective custody on the basis of gender identity.
Inmate Reporting (Sec. Sec. 115.51, 115.151, 115.251, 115.351)
Summary of Proposed Rule
In the proposed rule, Sec. Sec. 115.22(a), 115.222(a), and
115.322(a) stated that agencies should maintain or attempt to enter
into memoranda of understanding or other agreements with an outside
public entity or office that is able to receive and immediately forward
inmate reports of sexual abuse and sexual harassment to agency
officials pursuant to Sec. Sec. 115.51, 115.251, or 115.351 unless the
agency enables inmates to make such reports to an internal entity that
is operationally independent from the agency's chain of command, such
as an inspector general or ombudsperson who reports directly to the
agency head. The proposed standards also required agencies to maintain
or attempt to enter into memoranda of understanding or other agreements
with community service providers that are able to provide inmates with
confidential emotional support services related to sexual abuse.
Finally, agencies were required to maintain copies of agreements or
documentation showing attempts to enter into agreements.
Sections 115.51, 115.151, 115.251, and 115.351 required agencies to
enable inmates to privately report sexual abuse and sexual harassment
and related misconduct. Specifically, this standard required that
agencies provide multiple internal ways for inmates to privately report
sexual abuse and sexual harassment, retaliation by other inmates or
staff for reporting sexual abuse and sexual harassment, and staff
neglect or violation of responsibilities that may have contributed to
sexual abuse. The proposed standard also required that agencies make
their best efforts to provide at least one way for inmates to report
abuse or harassment to an outside governmental entity that is not
affiliated with the agency or that is operationally independent from
agency leadership, such as an inspector general or ombudsperson.
The proposed standard also mandated that agencies establish a
method for staff to privately report sexual abuse and sexual harassment
of inmates.
Finally, the proposed standard required that juvenile residents be
provided access to tools necessary to make written reports, whether
writing implements or computerized reporting.
Changes in Final Rule
The final standard requires prisons, jails, and juvenile facilities
to provide at least one way for inmates to report abuse or harassment
to a public or private entity or office that is not part of the agency,
and that is able to receive and immediately forward inmate reports of
sexual abuse and sexual harassment to agency officials. By contrast,
the proposed standard required only that facilities make their ``best
efforts'' to provide such access, and did not allow a private entity to
serve this function. By expanding the outside reporting option to
include private entities, the final standard allows an agency, in its
discretion, to utilize a private rape crisis center or similar
community support service for these purposes, as appropriate.
The final standard also specifies that the outside entity must
allow the victim to remain anonymous upon request.
Consistent with these revisions, the final standard no longer
requires agencies to maintain or attempt to enter into agreements with
an outside public entity that is able to receive and immediately
forward inmate reports of sexual abuse. Such a requirement is no longer
necessary now that agencies are required to provide reporting access to
an outside entity, which may be public or private.
In lockups and community confinement facilities, the ``best
efforts'' requirement of the proposed standard has been replaced with a
requirement that agencies inform detainees or residents of at least one
way to report abuse or harassment to a public or private entity or
office that is not part of the agency.
The standard no longer contemplates the use of an internal entity
that is operationally independent from the agency's chain of command.
If the agency designates a government office to accept reports for the
purposes of this standard, it must be outside of and completely
independent from the correctional agency.
Finally, for inmates detained solely for civil immigration purposes
in jails, prisons, and juvenile facilities operated by States,
localities, and BOP, the final standard requires that the facility also
provide information on how to contact relevant consular officials and
relevant officials at the Department of Homeland Security.
Comments and Responses
Comment. Section 115.22 appeared to engender some confusion because
it covered agreements for the purpose of outside reporting as well as
agreements for the purpose of providing support services for victims.
In addition, commenters were unclear as to how Sec. 115.22 interacted
with Sec. Sec. 115.51 and 115.53, given the topical overlap.
Response. For clarity, the subject matter covered by proposed
standard Sec. 115.22 has been moved into Sec. Sec. 115.51 and 115.53,
as appropriate.
Comment. The proposed standards evoked a strong response from
current and former inmates, who expressed the view that an outside
reporting mechanism is essential to encourage reporting incidents of
sexual abuse, because inmates often do not feel comfortable reporting
to staff and may fear retaliation, especially when the abuser is a
staff member. Thus, inmates may be reluctant to trust any internal
entity, even if it is ``operationally independent'' from the agency's
chain of command. Various advocacy groups and rape crisis centers, as
well as a United States Senator, agreed with this reasoning. Many
stated that some inmates are unlikely to understand or trust the
distinction between an operationally independent entity, including an
internal inspector general's office, and other agency offices. These
commenters expressed the view that a reporting entity that answers to
the same agency head could be perceived as part of the system that
failed to protect the inmate in the first place. Many inmates commented
that reports to allegedly independent entities, such as an
ombudsperson, were routinely ignored.
Some correctional agencies argued that requiring an outside
reporting mechanism would constitute an unfunded mandate. Commenters
stated that local support services may not be available to county jails
in rural areas, and that staffing a hotline can be expensive. They also
asserted that BJS data demonstrate that sexual abuse is less likely in
rural jails, and that they would be paying for a service to respond to
an event that rarely occurs. One correctional agency stated that an
internal hotline to a facility investigator should be sufficient given
improvements in staff training and increased focus on combating sexual
abuse within facilities.
Response. The final standard requires all prisons, jails, and
juvenile facilities to provide at least one way for inmates to report
abuse or harassment to a public or private entity or office that is not
part of the agency. The standard no longer allows compliance by relying
on an internal entity that is operationally independent from the
agency's chain of command. However, an agency may designate a
government office that is outside of and completely independent from
the correctional agency. For example, if a State has an inspector
[[Page 37156]]
general's office that sits outside of, and does not report to, the
State correctional agency, the agency may satisfy this standard by
designating that office as the external reporting entity. An inspector
general's office within the agency would not qualify under these
standards, even if it is ``operationally independent'' from the
facility administration. While this change may increase the burden on
some agencies, inmates must feel comfortable reporting any incident of
sexual abuse and may be loath to do so if their only option is
reporting to an entity they view as part of the agency in which they
suffered the abuse.
The Department does not believe that this will impose a significant
cost burden. The final standard does not require a hotline or a formal
agreement between the facility and any specific outside entity. Rather,
the agency need only establish an avenue for inmates to make contact
with an outside entity--whether public or private--that can receive and
forward reports of sexual abuse or sexual harassment to the agency. For
example, an agency may choose to provide access to an external
reporting hotline, or may provide a method for inmates to send
confidential correspondence to an external entity. The standard thus
provides flexibility for a facility to choose or develop the most
appropriate external reporting mechanism to fit its needs.
To be sure, the Department recognizes the value of internal
hotlines and encourages their use. Indeed, the final standards require
multiple internal ways for inmates to privately report sexual abuse and
sexual harassment. However, the Department agrees with advocates and
inmates who argued that an external reporting mechanism is necessary to
address situations in which victims do not feel safe reporting to
anyone inside the correctional system.
The standard requires lockups and community confinement facilities
to inform detainees or residents of at least one way to report abuse or
harassment to a public or private entity or office that is not part of
the agency, but does not require them affirmatively to provide
detainees and residents with access, as is the case for prisons, jails,
and juvenile facilities. Unlike adult prisons and jails and juvenile
facilities, lockups typically hold inmates briefly before release or
transfer to a jail, and community confinement facility residents
usually are able to leave the facility during the day for various
reasons and generally have greater access to community resources.
Hence, the populations of the latter facilities will generally have
greater access to make contact outside these of these facilities.
Comment. Many advocates, as well as former and current inmates,
commented that the standards must allow confidential reporting because
some inmates may be too afraid of retaliation to report otherwise, even
when reporting to an outside entity. One inmate recommended that
allegations be forwarded to the facility only with the victim's
consent. Many rape crisis centers and other community support groups
commented that confidential reporting is important because, in their
experience, victims are much more likely to report sexual abuse and
cooperate with the investigation when they feel safe in doing so.
A number of inmates and advocates suggested that some victims would
not report an incident if the facility would learn of the report, even
if the victim's identity was not revealed, and therefore requested
complete confidentiality as an option. In contrast, many correctional
agencies expressed concern that such an option would prevent them from
learning about problems within their facilities and would preclude
thorough investigations into allegations, in tension with the goals of
a zero-tolerance policy.
One commenter recommended that, in case agency officials are not
responsive, the outside entity should have the option to take
information to outside law enforcement if deemed in the victim's best
interest and should be allowed not to disclose that information to the
agency.
Response. The Department recognizes the potential tension between
encouraging inmates to report sexual abuse and ensuring that facilities
have sufficient information to investigate allegations and address
safety concerns. The final standard includes language requiring the
outside reporting entity to allow the victim to remain anonymous upon
request and retains the language from the proposed standard that
requires facility staff to accept anonymous reports. Allowing anonymity
protects the inmate's identity, but still provides the facility with
basic information about the allegation. Ideally, a facility would
receive complete information about every alleged incident of sexual
abuse, including a first-hand report from the victim. But an anonymous
report about an incident is preferable to no report at all. As many
commenters noted, reports made anonymously are otherwise unlikely to be
reported; thus, providing this avenue should actually increase the
amount of information available to the facility. In addition, even if
such a report may not allow for a full investigation into the incident,
providing information about an incident generally, without the identity
of the victim, will alert staff to potential concerns and may help
reveal unsafe areas within the facility.
With regard to reporting to law enforcement, nothing precludes an
outside reporting entity from reporting allegations of abuse to the
relevant law enforcement authorities or other entities, as appropriate.
The outside entity should also have the discretion to report specific
incidents at different administrative levels within a facility. If, for
example, the facility investigator is the subject of an inmate report,
the outside entity should forward that report to the facility
superintendent or other agency administrator, instead of to the
investigator.
Comment. Some advocacy groups requested that the standards mandate
entering into a memorandum of understanding with an outside agency to
serve as a third-party reporting entity, and allow reliance on an
independent, internal reporting option only if documented attempts to
enter into such agreements are unsuccessful. On the other hand, many
correctional agencies opposed any requirement for a formal agreement
with an outside entity as unnecessary, expensive, and burdensome. Some
facilities noted that finding a third party to provide such a service
might be difficult in rural areas.
Response. Many facilities would benefit from a formal agreement or
memorandum of understanding to ensure that inmates can effectively
report allegations of sexual abuse and sexual harassment. Indeed, some
correctional agencies noted that they already have in place these types
of agreements. Other facilities are able to provide outside services
without such an agreement, whether through a private entity or through
a government office that is external to and independent from the
correctional agency. Given the varying needs and abilities of different
facilities, the Department has opted to grant agencies discretion to
provide the requisite external reporting mechanism in the most
appropriate manner for the specific facility or incident at issue.
Comment. Some correctional agencies expressed concern that the
proposed standard would conflict with applicable State law. For
example, the Florida Department of Corrections stated that, under
Florida law, it maintains authority over investigations within the
prison system, and that requiring inmates to report allegations to an
entity that has no jurisdiction would conflict with a State statute.
[[Page 37157]]
Response. The standard does not require the external reporting
entity to investigate the allegations of sexual abuse. Rather, the
external entity should receive and immediately forward inmate reports
of sexual abuse and sexual harassment to agency officials, keeping the
name of the inmate anonymous upon request.
Comment. A juvenile justice agency and the Council of Juvenile
Correctional Administrators requested that Sec. 115.351(e) be revised
to require agencies to provide a method for staff to ``officially''
report sexual abuse and sexual harassment of residents, instead of
allowing for staff to report ``privately.'' These commenters stated
that because staff are legally obliged to report sexual abuse and
harassment of youth, there should be no provision for ``private''
reporting.
Response. The Department does not believe that private reporting
conflicts with the obligation to comply with mandatory reporting laws.
In requiring agencies to provide a method for staff to report sexual
abuse and sexual harassment ``privately,'' the Department means that
agencies must enable staff to report abuse or harassment directly to an
investigator, administrator, or other agency entity without the
knowledge of the staff member's direct colleagues or immediate
supervisor. A private reporting mechanism may provide a level of
comfort to staff who are concerned about retaliation, especially where
the staff member reports misconduct committed by a colleague. As some
advocates noted, a private reporting option, partnered with zero
tolerance for sexual abuse, may encourage staff who would otherwise
remain silent, despite mandatory reporting laws, to report sexual abuse
and sexual harassment.
Comment. In the NPRM, the Department noted that the Department of
Defense provides a ``restricted reporting'' option that allows service
members to confidentially disclose the details of a sexual assault to
specified 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. NPRM Question 23 asked whether the final standards should
mandate that agencies provide inmates with the option of making a
similarly restricted report to an outside public entity, and to what
extent, if any, such an option would conflict with applicable State or
local law.
Correctional agencies that responded to this question were
generally opposed to a reporting option that would prohibit an official
investigation. Agencies stressed the need to adequately investigate any
potential abuse in order to ensure inmate safety and compliance with
other standards. Some stated that a restricted reporting option would
conflict with the goals of a zero-tolerance policy; others suggested it
could conflict with State laws requiring mandatory reporting. One
commented that a restricted reporting option would be contrary to the
intent of the Prison Litigation Reform Act, which seeks to encourage
issues to be brought to the attention of prison administrators before
litigation occurs. Advocacy groups generally did not focus on Question
23, but many advocate comments recommended that the standards return to
the NPREC's proposed language that allowed inmates to request
confidentiality or permit confidential reports ``to the extent
allowable by law.'' One law student stated that inmates should be
entitled to separate their need for medical care from the investigation
process, particularly if the inmate believes an investigation is
unlikely to positively affect the situation or may lead to danger.
Response. Restricted reporting represents a tradeoff between the
victim's interest in privacy and preventing retaliation and, on the
other hand, the institution's interest in identifying the abuser for
purposes of discipline and preventing further abuse. In some cases, a
victim will be too fearful to report if he or she knows that the
information will be disseminated beyond medical staff. The Department
recognizes that, in the absence of a restricted reporting policy, some
victims will not seek needed care.
The cost of a restricted reporting policy, however, is that the
institution cannot take steps to prevent the recurrence of the abuse.
The dynamics of sexual abuse in correctional facilities make it quite
likely that an abuser will subsequently abuse other inmates. An agency
that learns of such abuse is far better equipped to prevent future
incidents.
Given the competing costs and benefits of restricted reporting
policies, the Department chooses not to include in the standards a
requirement to adopt a restricted reporting option. Instead, provisions
in other standards are designed to mitigate the risks that inmates may
be too fearful to come forward. The final standard requires each
prison, jail, and juvenile facility to provide multiple ways for
inmates to report sexual abuse and sexual harassment, including at
least one external reporting mechanism. Anonymous reports must be
accepted, but all reports will be forwarded to the facility for
investigation. These requirements will enable some inmates who are
reluctant to report to facility authorities some ability to find
support, and may lead them to reconsider their initial decision not to
come forward. In addition, this system should ensure that the facility
is made aware of allegations of abuse, while protecting the identities
of those inmates who would not come forward if they were not permitted
to report anonymously. Finally, Sec. Sec. 115.82 and 115.83 provide
that facilities may not condition any medical or mental health care on
the victim's cooperation with any ensuing investigation. A victim who
needs care but is reluctant to name the perpetrator of the abuse--or
who may not even admit that the injury occurred as result of a sexual
assault--must be offered the same level of care as any other inmate
presenting similar injuries. Given these requirements, the Department
has determined it is not necessary to include a restricted reporting
option.
Comment. Some advocacy organizations recommended that the
Department include NPREC supplemental immigration standard ID-7, which
would require agencies to provide contact information for relevant
consular and DHS officials to immigration detainees. These commenters
noted that, for these detainees, the DHS Office of the Inspector
General and the Office for Civil Rights and Civil Liberties, as well as
consular offices, serve the ombudsperson function that is contemplated
in the final standard and thus should be made available to immigration
detainees who complain of sexual abuse.
Response. The final standard requires that individuals detained
solely for civil immigration purposes in State, local, or BOP
facilities be provided with information on how to contact relevant
consular officials as well as relevant DHS officials.
Exhaustion of Administrative Remedies (Sec. Sec. 115.52, 115.252,
115.352)
Summary of Proposed Rule
Paragraph (a) of the standard contained in the proposed rule
governed the amount of time allotted inmates to file a request for
administrative remedies (typically known as grievances) following an
incident of
[[Page 37158]]
sexual abuse. The proposed standard set 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.
Paragraph (b) of the proposed standard governed the amount of time
that agencies have to resolve a grievance alleging sexual abuse before
it is deemed to be exhausted, in order to ensure that the agency is
allotted a reasonable amount of time to investigate the allegation,
after which the inmate may seek judicial redress. Paragraph (b)
required that agencies take no more than 90 days to resolve grievances
alleging sexual abuse, unless additional time is needed, in which case
the agency may extend up to 70 additional days. The proposed standard
did not count time consumed by inmates in making appeals against these
time limits.
Paragraph (c) required that agencies treat third-party
notifications of alleged sexual abuse as a grievance or request for
informal resolution submitted on behalf of the alleged inmate victim
for purposes of initiating the agency administrative remedy process.
The proposed standard required reports of sexual abuse to be channeled
into the normal grievance system (including requests for informal
resolution where required) unless the alleged victim requested
otherwise. This requirement exempted reports from other inmates in
order to reduce the likelihood that inmates would attempt to manipulate
staff or other inmates by making false allegations. The proposed
standard permitted agencies to require alleged victims to perform
properly all subsequent steps in the grievance process, unless the
alleged victim of sexual abuse is a juvenile, in which case a parent or
guardian could continue to file appeals on the juvenile's behalf unless
the juvenile does not consent.
Paragraph (d) governed procedures for dealing with emergency claims
alleging imminent sexual abuse. The proposed standard required agencies
to establish emergency grievance procedures resulting in a prompt
response--unless the agency determined that no emergency exists, in
which case the grievance could be processed normally or returned to the
inmate, as long as the agency provides a written explanation of why the
grievance does not qualify as an emergency. To deter abuse, the
proposed standard provided that an agency could discipline an inmate
for intentionally filing an emergency grievance where no emergency
exists.
Changes in Final Rule
The final standard includes numerous changes.
First, the final standard requires that agencies not impose any
deadline on the submission of a request for administrative remedies
regarding sexual abuse incidents.
Second, the final standard no longer requires agencies to treat
third-party notifications of alleged sexual abuse as a grievance or
request for informal resolution submitted on behalf of the alleged
inmate victim for purposes of initiating the agency administrative
remedy process. Rather, the final standard requires agencies to allow
third parties to submit grievances on behalf of inmates. If a third
party submits such a request on behalf of an inmate, the facility may
require as a condition of processing the request that the alleged
victim agree to have the request submitted on his or her behalf, and
may also require the alleged victim to personally pursue any subsequent
steps in the administrative remedy process. The final standard also
provides that third parties, including fellow inmates, staff members,
family members, attorneys, and outside advocates, shall be permitted to
assist inmates in filing requests for administrative remedies relating
to allegations of sexual abuse.
Third, the final standard revises the emergency-grievance
provision, which allows an inmate to seek an expedited response where
the inmate alleges that he or she is subject to a substantial risk of
imminent sexual abuse. As in the proposed standard, the final standard
requires an initial agency response within 48 hours and a final
decision within five days. However, the standard no longer requires
that, if the agency determines that no emergency exists, it must
process the grievance as a non-emergency grievance.
The final standard forbids agencies from requiring inmates to seek
informal resolution of a grievance alleging sexual abuse as a
prerequisite to submitting a formal request for administrative
remedies.
The final standard provides that agencies shall ensure that inmates
may submit requests for administrative remedies without needing to
submit the request to the alleged abuser, and that no request will be
referred to an alleged abuser.
The final standard states expressly that an agency that lacks
administrative procedures to address inmate grievances regarding sexual
abuse need not create such procedures in order to comply with the
standard.
Comments and Responses
Comment. Several State correctional agencies asserted that imposing
a standard governing the exhaustion of administrative remedies would
undermine or violate the Prison Litigation Reform Act (PLRA).
Response. The final standard is not inconsistent with the PLRA. The
PLRA does not require a State to impose any particular administrative
exhaustion requirements. Rather, the PLRA requires that an inmate
exhaust ``such administrative remedies as are available'' before
bringing an action under Federal law. 42 U.S.C. 1997e(a). The PLRA thus
affords States a procedural defense in court by requiring inmates with
grievances to satisfy such administrative exhaustion requirements as
States may adopt. Providing a State with an incentive to structure an
administrative remedy in a particular manner would not relieve an
inmate of the PLRA's requirement that he or she exhaust whatever
administrative remedies a State ultimately chooses to make available.
Furthermore, the PLRA does not immunize from change any exhaustion
requirements that States may adopt, nor does it bar the use of Federal
financial incentives, such as the incentives provided by PREA, to
induce States to revise their requirements.
Comment. Several correctional agency commenters noted that they
either do not have administrative remedy proceedings at all, or
otherwise do not apply their administrative remedy proceedings to
allegations or grievances involving sexual abuse. Some such commenters,
joined by a number of advocacy organizations, suggested that
administrative remedy procedures are not appropriate for grievances
involving sexual abuse.
Response. Paragraph (a) of the final standard clarifies that an
agency need not create administrative procedures to address grievances
involving allegations of sexual abuse if it currently lacks such
procedures. This standard is meant to govern only the contours of
administrative remedy procedures, due to the fact that under the PLRA,
exhaustion of any such procedures is a prerequisite to access to
judicial remedies. The Department leaves to agency discretion whether
to utilize such administrative remedies as part of its procedures to
combat sexual abuse. As noted in Sec. 115.51 and its counterparts,
agencies must provide multiple internal ways to report abuse, as well
as access to an external reporting channel. A grievance system cannot
be the only method--and should not be expected to be the primary
method--for
[[Page 37159]]
inmates to report abuse. Agencies should remain aware that inmates'
concern for confidentiality and fear of retaliation, whether or not
well-founded, may discourage inmates from availing themselves of
administrative remedies.
An inmate in an agency that lacks any administrative remedies may
proceed to court directly. Accordingly, this standard is inapplicable
to agencies that lack administrative remedy schemes. Likewise, if an
agency exempts sexual abuse allegations from its administrative
remedies scheme, an inmate who alleges sexual abuse may proceed to
court directly with regard to such allegations, and this standard would
not apply. Some agencies exempt sexual abuse allegations from their
remedial schemes entirely, such as the West Virginia Division of
Corrections,\33\ while others exempt only such allegations against
staff, such as the City of New York Department of Correction.\34\ In
the latter case, this standard would continue to apply to allegations
against inmates.
---------------------------------------------------------------------------
\33\ See W.Va. Code 25-1A-2(c); White v. Haines, 618 SE.2d 423,
431 (W. Va. 2005).
\34\ See City of New York Department of Correction, Directive
3375R-A, at 2 (2008), available at http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf.
---------------------------------------------------------------------------
Comment. Many advocates recommended that the final standard require
that agencies not impose any time limit for submitting administrative
grievances alleging sexual abuse. These commenters opined that inmates
may take months or even years to report sexual abuse, perhaps waiting
until their abuser is no longer housed or posted in their vicinity.
Commenters stressed that the time limits would pose particular
difficulties for juveniles, who may be more hesitant than adults to
report abuse. Some advocates recommended eliminating the deadline
altogether, while others suggested that if a deadline were required, it
should be 180 days.
The 90-day extension provision received significant criticism.
Advocates asserted that obtaining the documentation required by the
proposed standard to justify such an extension would be difficult at
best and often impossible. Many correctional agency commenters agreed
with advocates that the 90-day extension was unworkable. One State
correctional agency commented that such a requirement might well
subject its counselors and mental health providers to complaints and
lawsuits for failing to provide requested documentation in a timely
manner.
Response. After considering the many comments on this issue, the
Department has revised the standard to require that agencies not impose
any time limit on the filing of a grievance alleging sexual abuse.
While some inmates will submit false grievances, it is unlikely that
the number of such false grievances will rise appreciably if an inmate
is granted more time to submit a grievance regarding sexual abuse. Even
in an agency with a 20-day limit, an inmate who is inclined to invent
an incident of sexual abuse could simply allege that it occurred within
20 days. The Department found merit in comments that expressed concern
that inmates may require a significant amount of time in order to feel
comfortable filing a grievance, and might need to wait until their
abuser is no longer able to retaliate. Requiring the removal of time
limits increases the ability of such inmates to obtain legal redress
and increases the chance that litigation will play a beneficial role in
ensuring that correctional systems devote sufficient attention to
combating sexual abuse.
The Department considered revising the standard to allow a lengthy
time limit, such as 180 days, but concluded that no interest is served
by allowing the filing of grievances up until that point but not
beyond. Importantly, one key time limit will still apply: The statute
of limitations. Federal suits filed against State officials under 42
U.S.C. 1983 are governed by the general State personal injury statute
of limitations, see Owens v. Okure, 488 U.S. 235 (1989), which in the
vast majority of States is three years or less.\35\ Paragraph (b)(4)
clarifies that this standard does not restrict an agency's ability to
defend a lawsuit on the ground that any applicable statute of
limitations has expired. Thus, if the applicable State statute of
limitations is three years, an inmate who files a grievance alleging
that abuse occurred four years ago will be unable to seek judicial
redress after exhausting administrative remedies if the agency asserts
a statute of limitations defense. The statute of limitations provides a
backstop against the filing of stale claims, as it does for analogous
claims of sexual abuse experienced in the community at large.
---------------------------------------------------------------------------
\35\ See Martin A. Schwartz, 1 Section 1983 Litigation Sec.
12.02[B][5] (2007 ed.). Several courts of appeals have held that the
same statute of limitations should apply to actions against Federal
officials filed under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Kelly v.
Serna, 87 F.3d 1235, 1238 (11th Cir. 1996) (citing cases).
---------------------------------------------------------------------------
Paragraph (b)(2) has been added to make clear that paragraph (b)(1)
applies only to those portions of a grievance that actually involve
allegations of sexual abuse. In other words, if an agency applies time
limits to grievances that do not involve allegations of sexual abuse,
inmates may not circumvent those timelines by including such
allegations in a grievance that also alleges sexual abuse.
Comment. Several advocacy groups recommended that the final
standard mandate that agencies allow inmates to submit a formal
grievance without first requiring them to avail themselves of informal
grievance processes. Commenters noted that, in cases where an inmate
alleges sexual abuse by a staff member, informal resolution may require
the inmate to interact with the perpetrator or with a person who may be
complicit in the abuse.
Response. The final standard prohibits requiring inmates to seek
informal resolution of a grievance alleging sexual abuse as a
prerequisite to submitting a formal request for administrative
remedies. Informal resolution typically requires the inmate to discuss
the subject of the grievance with staff. In the case of sexual abuse,
this process is unlikely to resolve the grievance, and may force the
inmate to discuss the grievance with the abuser or with a staff member
who works closely with the abuser.
Comment. Several advocates recommended that the final standard
require that agencies ensure that inmates may file grievances without
having contact with their alleged abusers.
Response. The final standard makes clear that agencies shall
establish procedures pursuant to which inmates can submit grievances
alleging sexual abuse to staff members who are not subjects of the
complaint, and that such grievances may not be referred to any subject
of the complaint. These explicit protections will help ensure that
inmates are not dissuaded from submitting grievances following sexual
abuse, and that staff members who are subjects of such grievances
cannot influence the administrative process that ensues.
Comment. Few comments were received on the elements of the proposed
standard that governed the amount of time to resolve administrative
grievances involving allegations of sexual abuse. A few commenters
believed the timeframe was too long, while one State correctional
agency recommended extending the presumptive time limit from 90 days to
100.
Response. The final standard retains the basic structure of this
provision, with certain changes. Paragraph (d)(2) clarifies that the
90-day time period does not include time consumed by
[[Page 37160]]
inmates ``in preparing any administrative appeal,'' rather than merely
``in appealing any adverse ruling.'' The revised language is more
accurate and inclusive, because in some cases inmates may appeal
rulings that are not necessarily or entirely ``adverse,'' but that do
not afford the inmate the full remedy sought.
The Department added paragraph (d)(4) in the final standard to
address comments that the proposed standard, as written, could be
interpreted to mean that a grievance might not be considered exhausted
if a correctional agency adopted the 90/160-day time limits but
nevertheless failed to timely respond to a grievance alleging sexual
abuse. Paragraph (d)(4) makes clear that, when an agency fails to
respond to an administrative grievance alleging sexual abuse according
to its guidelines, an inmate may consider that failure a denial at the
corresponding level of administrative review, including at the final
level (in which case, the inmate may consider the absence of a timely
response as the final agency decision for purposes of exhaustion).
Comment. Several agency commenters stated that the proposed
standard's requirement that an agency treat any notification of an
alleged sexual assault as a grievance, regardless of the method by
which notification was made (other than by notification by a fellow
inmate), would pose administrative difficulties, particularly when such
notification came from a third party. Commenters suggested that it
would be burdensome and impracticable to require staff to complete a
grievance form on behalf of an inmate whenever staff learns of an
allegation of sexual abuse.
Conversely, several commenters supported a requirement that
agencies treat any notification of alleged sexual assault as a
grievance, including notifications by other inmates. These commenters
stated that complicated administrative processes could frustrate the
ability of victims of sexual abuse to exhaust their remedies and seek
redress in court. Commenters noted that difficulties in filing and
exhausting grievances were particularly acute for complaints involving
sexual abuse. Further, many commenters (including correctional agency
commenters) noted that juveniles may be more susceptible to peer
pressure or other factors that might dissuade them from pursuing a
valid grievance alleging sexual abuse. These commenters expressed
concern over the provision in the proposed standard that allowed
agencies not to treat a notification as a grievance if the alleged
victim requests that it not be processed as such.
Response. The final standard does not require agencies to treat any
notification as a grievance. Rather, paragraph (e)(1) provides that
third parties shall be allowed to submit such grievances on behalf of
inmates (and to assist inmates in submitting grievances alleging sexual
abuse). If a third party files such a request on behalf of an inmate,
the facility may require as a condition of processing the request that
the inmate agree to have the request filed on his or her behalf, and
may also require the inmate to pursue personally any subsequent steps
in the administrative remedy process. If the inmate declines to have
the request processed on his or her behalf, the standard requires that
the agency document the inmate's decision.
With regard to juvenile facilities, the final standard requires
that agencies accept third-party grievances submitted by parents or
guardians regardless of the juveniles' acquiescence. This revision
addresses concerns that juveniles may be particularly reluctant to
agree to the filing of a grievance by a third party. Because parents
and guardians represent reliable sources for such complaints, it is
appropriate to require their complaints to be treated as grievances,
even where the juvenile requests otherwise.
The Department is sympathetic to agency concerns that the
requirement in the proposed standard was impractical. In light of other
changes to the proposed standard, there is less need to require that a
third-party notification be treated as a grievance. By requiring that
agencies not impose a deadline on submitting an administrative
grievance alleging sexual abuse, allowing third parties to submit
grievances on an inmate's behalf, allowing third parties to assist
inmates in filing their own grievances, and requiring agencies to
implement procedures to avoid the submission or referral of complaints
to their subjects, the Department has made it significantly easier for
sexual abuse grievances to be filed by the victim or by someone acting
expressly on the victim's behalf. As a result of these changes, the
Department concludes that it is no longer worthwhile to require agency
staff to file grievances whenever they hear of an allegation.
Comment. Some commenters expressed concern that inmates may attempt
to circumvent otherwise applicable rules by piggybacking grievances
that are governed by those rules onto allegations involving sexual
abuse, which may be treated differently.
Response. The final standard addresses this concern in three
places. As noted above, paragraph (b)(2) states that the agency may
apply otherwise applicable time limits on any portion of a grievance
that does not allege an incident of sexual abuse. The addition of ``any
portion of'' in paragraph (d)(1) makes clear that the 90-day time limit
applies only to those portions of grievances that actually allege
sexual abuse. These changes ensure that inmates cannot circumvent
stricter deadlines for grievances that do not involve sexual abuse by
bootstrapping such grievances onto a grievance that also alleges sexual
abuse. Finally, paragraph (f)(2) clarifies that only the portion of a
grievance that involves an allegation of substantial risk of imminent
sexual abuse need be treated as an emergency grievance.
Comment. Some correctional agency commenters remarked that the
emergency procedures required in these standards will be difficult to
implement.
Response. The Department believes that the time limits in the
emergency procedures provision are reasonable. As noted in the NPRM,
these procedures are modeled on emergency procedures already in place
in several State correctional agencies. Numerous correctional agencies
(and many other commenters) emphasized the need for an immediate
response to serious allegations of imminent sexual abuse, and this
provision should assist such efforts.
Comment. The proposed standard, in paragraphs (d)(3) and (d)(4),
would have permitted agencies to make an initial determination that an
emergency grievance did not involve a substantial risk of imminent
sexual abuse, and thereafter treat the grievance not as an emergency
grievance but rather as an ordinary grievance. Numerous commenters
objected to this provision of the proposed standard, noting that
agencies could make such an initial determination and thus not be
required to provide an initial response within 48 hours or a final
agency decision within 5 calendar days. These commenters expressed
concern that this escape valve for agencies could essentially swallow
the entire rule by allowing agencies to make an initial determination
in response to any emergency grievance and thereafter ignore the
truncated timelines designed to address such grievances. In cases in
which the agency's initial determination was erroneous, these
commenters argued, the consequences could be disastrous for the inmate
involved.
Response. The final standard requires the agency to treat all
grievances alleging the substantial risk of imminent sexual abuse as
emergency grievances,
[[Page 37161]]
even if the agency determines that no such risk exists. In the event
the agency makes that determination, it shall document that decision,
but it must do so within the timeframes required by the emergency
grievance procedure.
Comment. Numerous commenters objected to paragraph (d)(5) of the
proposed standard, noting that it would permit agencies to discipline
inmates who submitted emergency grievances while fearing imminent
sexual abuse, but where the agency determined that no such danger
existed. Commenters stated that such a rule would have a chilling
effect on valid grievances, because inmates would fear reprisal if an
agency made a factual determination that the grievance did not meet the
threshold required for an emergency grievance, even where the inmate
believed he or she was in danger. Some commenters recommended that no
disciplinary measures should be allowed.
Response. Paragraph (g) of the final standard provides that an
agency may discipline an inmate for submitting a grievance alleging
sexual abuse only where the agency can demonstrate that the inmate
submitted the grievance in bad faith. Upon reconsideration, the
Department agrees that the proposed standard erred in allowing
discipline whenever an emergency was found not to exist, without
requiring a showing of bad faith.
However, the Department declines to revise the standard to disallow
disciplinary measures entirely. Agencies should have the discretion to
discipline inmates who are not victims of sexual abuse but who attempt
to circumvent agency rules by making intentionally frivolous
allegations. Such allegations not only waste agency time and resources
but also may make correctional officials more dubious about allegations
of sexual abuse in general, which could lead to valid allegations
receiving insufficient attention.
Access to Outside Support Services (Sec. Sec. 115.53, 115.253,
115.353)
Summary of Proposed Rule
In the standard contained in the proposed rule, paragraphs (b) and
(c) of Sec. Sec. 115.22, 115.222, and 115.322 required agencies to
maintain or attempt to enter into memoranda of understanding or other
agreements with community service providers that could provide inmates
with confidential emotional support services related to sexual abuse.
The proposed standard also required agencies to maintain copies of
agreements or documentation showing attempts to enter into agreements.
Sections 115.53, 115.253, and 115.353 required agencies to provide
inmates access to outside victim advocacy organizations for emotional
support services related to sexual abuse, similar to the NPREC's
recommended standard. The proposed standard required that such
communications be as confidential as possible consistent with agency
security needs. In addition, the proposed standard required that
juvenile facilities be instructed specifically to provide residents
with access to their attorneys or other legal representation and to
their families, in recognition of the fact that juveniles may be
especially vulnerable and unaware of their rights in confinement. The
proposed standard mandated that juvenile facilities provide access that
is reasonable (and, with respect to attorneys and other legal
representation, confidential) rather than unimpeded.
Changes in Final Rule
The final standard includes several small changes.
First, the language from Sec. 115.22(b) and (c) and its
counterparts has been moved into Sec. 115.53(c) and the latter's
counterparts. Only one substantive change has been made in this area:
The final standard requires all juvenile agencies to maintain or
attempt to enter into memoranda of understanding or other agreements
with community service providers that are able to provide residents
with emotional support services related to sexual abuse. The proposed
standard had exempted juvenile agencies that were legally required to
provide such services to all residents.
Second, the final standard includes, in the standards for prisons/
jails and juveniles, access to immigrant services agencies for persons
detained solely for civil immigration purposes in State, local, and BOP
facilities.
Third, where the proposed standard required that the facility
enable reasonable communications with such organizations ``as
confidential as possible, consistent with agency security needs,'' the
final standard requires that such communication be ``in as confidential
a manner as possible.'' The facility is also required to inform the
victim of the extent to which communications will be monitored and the
extent to which reports of abuse will be forwarded to authorities in
accordance with mandatory reporting laws.
Comments and Responses
Comment. As noted above, Sec. 115.22 of the proposed standards
appeared to cause confusion because it covered both agreements
regarding outside reporting and agreements regarding support services
for victims. In addition, commenters were unclear as to how Sec.
115.22 interacted with Sec. 115.53, given the topical overlap.
Response. For clarity, the subject matter covered by proposed
standard Sec. 115.22 has been moved into Sec. Sec. 115.51 and 115.53,
as appropriate.
Comment. Numerous nonprofit organizations and some inmates
supported the requirement in the proposed standard that agencies
maintain or attempt to enter into memoranda of understanding or other
agreements with community service providers that could provide inmates
with confidential emotional support services related to sexual abuse.
These organizations recommended that the agreements between
correctional agencies and victim advocacy organizations clarify the
services that the organizations can provide and the limits to
confidentiality.
Response. The Department agrees that such clarifications are a best
practice and will assist the facilities in meeting their obligation to
inform victims of the extent to which reports of abuse will be
forwarded to authorities in accordance with mandatory reporting laws.
As many service providers noted, affording victims the opportunity for
confidential discussions with advocates will help them feel more
supported and thus more likely to report abuse and cooperate with its
investigation and prosecution.
Comment. A few service providers recommended expanding this
standard to include sexual harassment. One organization also
recommended requiring agreements with agencies that ``help victims of
sexual abuse during their transition from incarceration into the
community.''
Response. The Department welcomes agencies' participation in these
activities. However, the need is greatest with regard to victims of
sexual abuse who are currently incarcerated. Transitioning into the
community is, of course, extremely important, but other programs
currently exist to serve the needs of reentry more generally.
Comment. Some correctional agencies expressed concern that this
standard could threaten the Victims of Crime Act (VOCA) funding of
victim services organizations.
Response. Through a separate rulemaking process, the Department
[[Page 37162]]
intends to propose removing the current ban on VOCA funding for
treatment and rehabilitation services for incarcerated victims of
sexual abuse. In addition, even under current requirements, victim
services organizations can use other funding to serve incarcerated
victims without violating the VOCA requirements.
Comment. The AJA noted that many jails are in rural areas and do
not have local agencies to assist.
Response. In such cases, the jail would need only to document its
efforts to obtain such assistance and show that there are no local
programs that can help.
Comment. One State juvenile justice agency recommended expanding
the exception in proposed standard Sec. 115.322, which required
juvenile facilities to attempt to enter into memoranda of understanding
with community service providers to provide residents with emotional
support services related to sexual abuse. The proposed standard
contained an exception for facilities that were already legally
required to provide such services; the commenter recommended excepting
all agencies that in fact provide such services, whether or not they
are legally required to do so.
Response. The final standard removes this exception. A facility's
own support services may be helpful, but are inherently limited in this
context--through no fault of their own--by being situated in and run by
the facility in which the abuse occurred, and in which the abuser
either lives or works. Whether or not a facility provides such
services, therefore, does not affect the need to allow access to
outside support.
Comment. Most commenters, including some correctional agencies,
expressed support for the requirement that agencies provide inmates
with access to outside victim advocates for emotional support services
related to sexual abuse. Many advocates, inmates, and a United States
Senator expressed concern regarding language in the proposed standard
requiring confidentiality only if ``consistent with agency security
needs.'' These commenters noted that victims who receive confidential
support are more likely to report their assault and cooperate with the
investigation. Some advocacy organizations proposed replacing that
phrase with ``to the extent allowed by the law.'' On the other hand,
one sheriff's department expressed concern about allowing confidential
communications, because it might lead to incidents being reported to
outside organizations without enabling the facility to learn of the
incidents.
Response. The Department believes that it is important for victims
to have access to confidential services. The Department concludes that
``consistent with agency security needs'' should be removed because the
broad phrasing could create a significant potential for overuse by
agencies. The final standard requires agencies to ``enabl[e] reasonable
communication between inmates and these organizations, in as
confidential a manner as possible.'' The final standard does not add
the phrase ``to the extent allowed by law,'' because it may be
difficult for agencies to ensure complete confidentiality with all
forms of communication due to factors such as the physical layout of
the facility or the use of automatic phone monitoring systems, which
may be difficult to suspend for support calls without requiring the
inmate to make a specific request.
Comment. Some advocacy groups also recommended that the juvenile
standard include access to family members and opportunities for family
involvement.
Response. While the Department welcomes agencies and victims
service organizations who are able to integrate family members into the
counseling process, the logistical challenges of doing so counsel
against adding such a requirement to the standard.
Comment. Various inmates and one sheriff's office expressed
concerns with the logistics of allowing victims to contact outside
support services. Many facilities are set up with open phone banks in
common day rooms, and the inmate would have to specifically request to
use a private phone in order to make a completely confidential phone
call.
Response. Providing access to outside support services may involve
surmounting logistical hurdles, but the potential benefits of such
access should make the effort worthwhile. The National Resource Center
for the Elimination of Prison Rape is available to help facilities
develop ways to provide such access.
The Department encourages agencies to establish multiple avenues
for inmate victims of sexual abuse to contact external victim services
agencies. While not ensuring optimal privacy, phones may provide the
best opportunity for inmates to seek help in a timely manner. Privacy
concerns may be allayed through other methods of contacting outside
organizations, such as allowing confidential correspondence,
opportunities for phone contact in more private settings, or the
ability of the inmate to make a request to contact an outside victim
advocate through a chaplain, clinician, or other service provider.
Comment. Another inmate stated that, because he is incarcerated for
a sex crime, he was not able to receive assistance from a sexual
assault services provider.
Response. The Department expects that organizations that enter into
such memoranda of understanding should help victims of sexual abuse
without regard to whether they may have perpetrated sexual abuse in the
past.
Comment. One inmate expressed a preference for in-person
counseling.
Response. The Department is aware that some correctional systems
have been able to offer in-person counseling, and encourages systems to
consider doing so. However, logistical challenges militate against
making this a requirement in the standard.
Comment. One State juvenile justice agency recommended that contact
with outside services be at the discretion of agency mental health
staff.
Response. The purpose of this standard is for victims to be able to
reach out for help without seeking staff approval, which may require
disclosing information to staff that the resident may prefer, at least
for the time being, to remain confidential.
Comment. A regional jail association recommended providing specific
actions or checklists to help guide auditors.
Response. The National Resource Center for the Elimination of
Prison Rape will do so.
Comment. Some advocacy organizations commented that the Department
should adopt NPREC supplemental immigration standard ID-8, which would
require agencies with immigration detainees to provide those
individuals with access to community service providers that specialize
in immigrant services, as well as supplemental standard ID-1, which
would mandate agreements or memoranda of understanding with these
organizations. These commenters noted that immigration detainees who
suffer from sexual abuse may have unique needs that only specialized
service providers can meet.
Response. The Department agrees that agencies covered by these
standards should provide immigration detainees with access to service
providers that can best meet their needs. The final standards require
that State, local, or BOP facilities that detain individuals solely for
civil immigration purposes provide those individuals with access to
immigrant services agencies. It also requires agencies to enter into,
or attempt to enter into, agreements with
[[Page 37163]]
organizations that provide these services.
Third-Party Reporting (Sec. Sec. 115.54, 115.154, 115.254, 115.354)
Summary of Proposed Rule
The standard contained in the proposed rule required facilities to
establish a method to receive third-party reports of sexual abuse and
to distribute publicly information on how to report sexual abuse on
behalf of an inmate. In addition, the proposed standard required
juvenile facilities to distribute such information to residents'
attorneys and parents or legal guardians.
Changes in Final Rule
The final standard includes the proposed requirements and adds
sexual harassment to its scope. The final standard also references
``agency'' instead of ``facility.''
Comments and Responses
Comment. A State association of juvenile justice agencies commented
that the requirement to distribute information on reporting to the
residents' attorneys and their parents or legal guardians would
significantly increase postage expenses and suggested instead that the
information could be posted on a facility's Web site.
Response. This standard does not require mailings. The agency may,
in its discretion, make such information readily available through a
Web site, postings at the facility, printed pamphlets, or other
appropriate means.
Comment. Some advocacy groups for juveniles recommended adding
other family members to the list of people who will receive this
information, because it is common for youth in juvenile facilities to
have been raised by grandparents or other family members.
Response. The Department encourages facilities to provide notice to
other family members at its discretion, but believes that requiring the
provision of such notice to parents and legal guardians, plus
attorneys, is sufficient for the purposes of a national standard.
Comment. Some advocacy organizations recommended adding sexual
harassment to this standard.
Response. Because sexual harassment can lead to further abusive
behavior, the Department agrees that it is appropriate to allow third
parties to report incidents of sexual harassment, as well as sexual
abuse, and has made this change.
Staff and Agency Reporting Duties (Sec. Sec. 115.61, 115.161, 115.261,
115.361)
Summary of Proposed Rule
The standard contained in the proposed rule required that staff be
trained and informed about how to properly report incidents of sexual
abuse while maintaining the privacy of the victim. The proposed
standard also required that staff immediately report (1) Any knowledge,
suspicion, or information regarding incidents of sexual abuse that take
place in an institutional setting, (2) any retaliation against inmates
or staff who report abuse, and (3) any staff neglect or violation of
responsibilities that may have contributed to the abuse. The proposed
standard also required that the facility report all allegations of
sexual abuse to the facility's designated investigators, including
third-party and anonymous reports.
Changes in Final Rule
The final standard includes several small changes. In paragraph
(a), the staff reporting requirements have been expanded to add sexual
harassment, in addition to sexual abuse. This paragraph no longer
refers to incidents that occur in an ``institutional setting,'' but
rather refers to incidents that occurred in a ``facility, whether or
not it is part of the agency.'' In Sec. Sec. 115.61(e), 115.261(e),
and 115.361(f), the final standard requires that the facility report
all allegations of sexual harassment, as well as sexual abuse, to the
facility's designated investigators.
In paragraph (b) of Sec. Sec. 115.61, 115.161, and 115.261, and in
paragraph (c) of Sec. 115.361, the Department has clarified the
exception that allowed staff to reveal information relating to a report
of sexual abuse to ``those who need to know, as specified in agency
policy, to make treatment, investigation and other security and
management decisions.'' The Department has replaced ``those who need to
know'' with ``to the extent necessary'' in order to clarify that staff
should not share information relating to a sexual abuse report unless
necessary for the limited purposes listed in the rule.
In Sec. Sec. 115.61(c) and 115.261(c), the final standard requires
medical and mental health practitioners to inform inmates and residents
of ``the limitations of confidentiality,'' as well as of their duty to
report.
For precision and consistency, the Department has qualified
``victim'' with ``alleged'' in Sec. Sec. 115.61(d), 115.161(c),
115.261(d), and 115.361(d).
Finally, the Department has made several changes to Sec.
115.361(e)(3). The final standard no longer requires that courts
retaining jurisdiction over a juvenile be notified of any allegations
of sexual abuse. Rather, it requires that, where a court retains
jurisdiction over an alleged juvenile victim, the juvenile's attorney
or other legal representative of record be notified within 14 days of
receiving the allegation.
Comments and Response
Comment. Several commenters recommended that the standard apply to
reports relating to sexual harassment as well as sexual abuse.
Response. Sexual harassment can be a predictor of and precursor to
sexual abuse, and should be brought to the attention of agency and
facility leadership who can determine the appropriate response, if any.
The final standard therefore mandates that staff be required to report
any knowledge, suspicion, or information regarding an incident of
sexual harassment that occurred in a facility, retaliation against
inmates or staff who reported such an incident, and any staff neglect
or violation of responsibilities that may have contributed to an
incident of sexual harassment. In addition, the final standard requires
that facilities report allegations of sexual harassment to their
designated investigators.
Comment. A State juvenile justice agency noted that the phrase
``institutional setting'' is undefined and recommended replacing it
with ``facility.''
Response. The Department agrees, and has changed Sec. Sec.
115.61(a), 115.261(a), and 115.361 to clarify that staff must report
any knowledge, suspicion, or information regarding an incident of
sexual abuse or sexual harassment that occurred in a facility, whether
or not it is part of the agency.
Comment. Several commenters requested that the standard allow for
greater confidentiality between inmates and medical and mental health
staff. A State child services agency observed that the requirement that
clinicians disclose their duty to report before providing services
could have a chilling effect on youth's willingness to report, and may
prevent necessary investigation and treatment. An advocacy group
recommended that the standards afford inmates an opportunity to speak
confidentially with medical and mental health staff about sexual abuse.
Other advocacy groups recommended removing the requirement under
Sec. Sec. 115.61(c), 115.161(c), and 115.261(c) that medical and
mental health practitioners report sexual abuse unless otherwise
precluded by State or Federal law. Instead, these commenters would
[[Page 37164]]
require practitioners to determine whether, consistent with Federal,
State, or local law and the standards of their professions, they are
required to report sexual abuse and to disclose these reporting
requirements to patients. In addition, these groups requested that the
standards compel providers to inform patients of any duty to report, as
well as the limits of confidentiality, both at the initiation of
services ``and each time the practitioner makes the determination that
he or she is required or permitted to breach confidentiality.''
Finally, these organizations would add language requiring that the
agency specify in a written policy the extent of health care providers'
obligations to report sexual abuse.
Response. The Department agrees with commenters that it is
essential that victims of sexual abuse feel comfortable seeking medical
and mental health care services, and recognizes that some individuals
may choose not to do so upon learning of their provider's duty to
report. However, it is also critical that incidents of sexual abuse be
brought to the attention of facility and agency staff to enable the
appropriate response measures detailed elsewhere in these standards.
The Department has therefore maintained the reporting requirement for
medical and mental health practitioners, unless otherwise precluded by
law. Because this language is preserved, a requirement that the agency
specify in a written policy the extent of health care providers'
obligations to report sexual abuse is unnecessary. The Department has,
however, accepted the commenters' recommendation that practitioners be
required to inform patients of ``the limitations of confidentiality,''
as well as of the practitioners' duty to report, in order to emphasize
that, while inmates should never be discouraged from reporting abuse,
they must understand that correctional medical and mental health
practitioners cannot ensure complete confidentiality.
Comment. Advocates also recommended adding language to Sec. Sec.
115.61(b), 115.161(b), and 115.261(b) to clarify that personnel who
need to receive information related to a sexual abuse report in order
to make treatment, investigation, and other security and management
decisions shall receive only the information necessary for them to
perform their job functions safely and effectively. These commenters
stated that the fact that a staff member needs some information about a
sexual abuse report does not mean that all such information must, or
should, be shared.
Response. The Department agrees that it is important to limit, to
the extent possible, the information shared relating to a sexual abuse
report. An individual who needs to know certain information relating to
a sexual abuse report should receive only the information necessary to
make treatment, investigation, and other security and management
decisions--and no more. The Department has therefore replaced the
phrase ``other than those who need to know'' under Sec. Sec.
115.61(b), 115.161(b), 115.261(b), and 115.361(c) with ``other than to
the extent necessary.'' This revision makes clear that the standard
requires facilities to prohibit the sharing of any more information
than is necessary to make treatment, investigation, or other security
and management decisions.
Comment. One State correctional agency recommended clarifying that
the facility head is the person responsible for ensuring that all
allegations of sexual abuse, including third-party and anonymous
reports, are reported to appropriate investigative staff.
Response. The Department does not believe clarification is
necessary. To the extent the facility head is responsible for all
facility operations, he or she is responsible for ensuring that
allegations are reported appropriately. The facility head may, of
course, delegate responsibilities to other supervisory staff who
ultimately report to the facility head.
Comment. An inmate and an advocacy organization recommended that
agencies be required to take disciplinary action against staff who do
not report their knowledge, suspicion, or information relating to
sexual abuse.
Response. The Department agrees that discipline may be warranted in
such contexts, but believes that is adequately addressed under
Sec. Sec. 115.76, 115.176, 115.276, and 115.376, which govern
disciplinary sanctions for staff. That standard provides, in paragraph
(a), that ``[s]taff shall be subject to disciplinary sanctions up to
and including termination for violating agency sexual abuse or sexual
harassment policies.''
Comment. A State office of juvenile justice suggested replacing
``promptly'' with ``immediately'' under Sec. 115.361(e)(1), because
``promptly'' is ambiguous and subject to interpretation.
Response. The Department trusts that facilities will accurately
interpret ``promptly'' to mean ``without delay.''
Comment. One commenter recommended that States pursue and
investigate allegations of violence against children through the
relevant agency, such as child welfare agencies, that investigate
analogous allegations in the community.
Response. Each State has its own reporting system for allegations
of child abuse and neglect, and the final standard requires agencies
and staff to comply with the State's child abuse reporting laws. The
final standard allows States appropriate discretion in determining
which agency conducts the investigation; a bright-line rule requiring a
child welfare agency to conduct the investigation would not necessarily
ensure that investigations are conducted optimally.
Comment. Several commenters raised concerns about Sec.
115.361(e)(3). State juvenile justice agencies urged clarification that
notice to the court is required only where the court retains
jurisdiction over an alleged juvenile victim, rather than jurisdiction
over an alleged juvenile perpetrator, in order to avoid undermining the
alleged perpetrator's due process rights. The same commenters
questioned the value of court notification of unsubstantiated
allegations. One agency asked whether notice to a juvenile's attorney
is required; an advocacy group recommended that such notification be
required to facilitate post-dispositional representation.
Response. The final standard clarifies that the notification
requirement in Sec. 115.361(e)(3) applies only to alleged victims, not
alleged perpetrators. The Department agrees that where a court retains
jurisdiction over an alleged juvenile victim, notifying the juvenile's
attorney or other legal representation of record of the allegation is
appropriate, and has added this requirement. Given this revision, the
Department concludes that court notification is no longer necessary.
The Department has therefore replaced the court notification
requirement under Sec. 115.361(e)(3) with a requirement that, where a
juvenile court retains jurisdiction over an alleged juvenile victim,
the facility must report an allegation of sexual abuse to the
juvenile's attorney or other legal representative of record within 14
days of receiving the allegation.
Comment. A coalition of juvenile advocacy organizations proposed
revising the parent/guardian notification exception in Sec.
115.361(e)(1) from ``unless the facility has official documentation
showing the parents or legal guardians should not be notified'' to
``unless the facility has official documentation of parental
termination, or has notice of other circumstances related to a youth's
physical or emotional well-being which indicate that parents or legal
guardians should not be notified.''
Response. The Department concludes that requiring ``official
documentation''
[[Page 37165]]
appropriately defines the scope of agency discretion, and helps ensure
that decisions will be objective and not influenced by a desire to
withhold information that could reflect poorly upon the facility.
Comment. A number of advocates expressed concern that the proposed
standard fails to provide guidance regarding age of consent laws as
they relate to how juvenile facilities should handle the reporting of
incidents of voluntary sexual contact between residents.
Response. The Department believes these concerns are addressed
under the staff training requirements of Sec. 115.331, which requires
specific training on, among other topics, distinguishing between
consensual sexual contact and sexual abuse between residents, relevant
laws regarding the applicable age of consent, and how to comply with
relevant laws related to mandatory reporting of sexual abuse to outside
parties.
Agency Protection Duties (Sec. Sec. 115.62, 115.162, 115.262, 115.362)
The Department has added this standard, which did not appear in the
proposed rule, in order to make explicit what was implicit in the
proposed rule: That an agency must act immediately to protect an inmate
whenever it learns that he or she faces a substantial risk of imminent
sexual abuse.
Reporting to Other Confinement Facilities (Sec. Sec. 115.63, 115.163,
115.263, 115.363)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.62, 115.162, 115.262, and 115.362) required that a facility that
receives an allegation that one of its inmates was sexually abused at
another facility must inform that other facility of the allegation
within 14 days. The proposed standard also required the facility
receiving the information to investigate the allegation.
Changes in Final Rule
The Department has made several small changes to this standard. In
order to ensure that facilities report allegations promptly, the
Department has removed reference to the 14-day timeframe in paragraph
(a) and has added a new paragraph (b) requiring that such notification
be provided as soon as possible, but no later than 72 hours after
receiving the allegation. The final standard no longer requires that
notification be in writing.
In paragraph (a), the Department has removed the word ``central''
from the phrase, ``the head of the facility or appropriate central
office of the agency.'' In the paragraph formerly designated as (b),
now designated as (d), the Department has replaced ``central office''
with ``agency office.''
The Department intends for all facilities, including community
confinement facilities, to report allegations of sexual abuse occurring
at any other facility. Accordingly, in Sec. 115.263, the Department
has replaced the phrase ``while confined at another community
corrections facility'' with ``while confined at another facility.''
In Sec. 115.163, the Department has replaced the phrase ``while
confined at another facility or lockup'' with ``while confined at
another facility,'' to clarify that the definition of facility includes
lockups.
Comments and Responses
Comment. Numerous commenters, including both advocacy groups and
correctional agencies, recommended shortening the 14-day timeframe.
Several commenters suggested replacing ``Within 14 days of * * *'' with
``Immediately upon * * *'' One advocacy group recommended requiring
that verbal notice be provided within one business day, followed by
notice in writing within three business days. However, one county
probation department recommended extending the timeframe by allowing
for a written report within 30 days, noting that there may be occasions
where the initial fact-gathering takes additional time, especially if
the complaint is against the facility manager.
Response. The Department is persuaded that a 14-day timeframe for
reporting to other facilities is too long, and that facilities should
be required to report allegations of sexual abuse occurring at other
facilities to those facilities as soon as possible to encourage and
facilitate a prompt investigation. The Department has therefore revised
the standard to require that facilities provide notification as soon as
possible, but no later than 72 hours after receiving an allegation.
Because written notification may not be as prompt as other means of
notification, the Department has removed the requirement that
notification be in writing. Facilities are encouraged, however, to
document such notification in writing as a supplement to other
notification.
Comment. Several commenters expressed concern about the logistics
of the notification requirement in paragraph (a). A juvenile detention
center and an association of juvenile justice administrators remarked
that they would not necessarily be able to identify the appropriate
investigative staff at the other facility, and did not believe they
should have to attempt to do so. A county sheriff's office suggested
clarifying that notification be made to the other facility's PREA
coordinator.
Response. Commenters' confusion about whom to contact may stem from
the reference to the ``appropriate central office.'' The Department has
therefore removed the term ``central'' from the phrase ``appropriate
central office of the agency'' in paragraph (a), and has replaced
``central'' with ``agency'' in paragraph (c). The Department has also
removed the word ``central'' from Sec. 115.61(e)(1).
The Department does not expect facilities to be able to identify
the appropriate investigative staff, especially at facilities operated
by other agencies. Where a facility is uncertain about whom to contact,
it may simply contact the facility head.
Staff First Responder Duties (Sec. Sec. 115.64, 115.164, 115.264,
115.364)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.63, 115.163, 115.263, and 115.363) set forth staff first responder
responsibilities, recognizing that staff must be able to adequately
counsel victims while maintaining security and control over the crime
scene so that any physical evidence is preserved until an investigator
arrives. Specifically, the standard required that the first responder
separate abuser and victim, seal and preserve any crime scene, and
request that the victim not take any actions that could destroy
physical evidence. Where the first staff responder is not a security
staff member, the proposed standard required that the responder be
required to request that the victim not take any actions that could
destroy physical evidence, and then notify security staff.
Changes in Final Rule
The Department has made several clarifying changes to this
standard. The Department has removed the phrase ``within a time period
that still allows for the collection of physical evidence'' from
paragraph (a) and added language to paragraphs (a)(3) and (a)(4)
stating: ``If the abuse occurred within a time period that still allows
for the collection of physical evidence.''
The Department has replaced ``seal and preserve any crime scene''
in paragraph (a)(2) with ``preserve and protect any crime scene,''
which is more
[[Page 37166]]
appropriate for non-law-enforcement staff members, and has clarified
that any evidence must be preserved until appropriate steps can be
taken to collect it. In paragraph (a)(3), the Department has clarified
that victims must be instructed to avoid actions that could destroy
physical evidence, such as urinating or defecating, only where
appropriate given the incident alleged. The Department has also added a
new paragraph (a)(4), which requires the responder to ensure that the
abuser not take any actions that could destroy physical evidence.
Finally, the Department has clarified that the standard applies
after learning ``of an allegation'' that an inmate was sexually abused,
and, as elsewhere in the final standards, has qualified ``victim'' with
``alleged.''
Comments and Responses
Comment. Two advocacy groups expressed concern over the phrase
``within a time period that still allows for the collection of physical
evidence,'' noting that physical evidence may persist for a long time
and urging that staff assume that evidence may still be available in
all cases.
Response. The Department agrees that paragraph (a)(1), which
requires the first responder to separate the alleged victim and the
alleged abuser, and paragraph (a)(2), which requires that any crime
scene be protected until appropriate steps can be taken to collect any
evidence, should not be contingent upon the amount of time that has
passed between the alleged incident of sexual abuse and the allegation.
However, the Department remains of the view that it is appropriate to
request that the alleged victim, and ensure that the alleged abuser,
not take certain actions--such as brushing teeth, urinating, or
drinking--only when the abuse occurred within a time period that still
allows for the collection of physical evidence. Accordingly, the
Department has removed the phrase ``within a time period that still
allows for the collection of physical evidence'' from paragraph (a) and
has added comparable language to paragraphs (a)(3) and (a)(4).
Comment. An inmate recommended that the final standard require that
first responders make arrangements to have the victim transported
within 4-6 hours of notification for screening, evidence collection,
and treatment for sexually transmitted diseases.
Response. The Department agrees that it is critical that victims
receive emergency medical care after an incident of sexual abuse, but
believes that this need is adequately addressed under Sec. Sec.
115.82, 115.182, 115.282, and 115.382.
Comment. A State juvenile justice agency recommended that Sec.
115.364(c) remove smoking from the list of activities that victims
should be requested to avoid post-incident. The commenter suggested
that references to smoking would be inapplicable in juvenile
facilities.
Response. Because juveniles are sometimes able to smuggle
contraband cigarettes into facilities, the Department has retained
language requiring first responders to request alleged juvenile victims
and abusers not to take any actions that could destroy physical
evidence, including smoking.
Comment. A county juvenile justice agency suggested that this
standard conflicts with Sec. 115.351(e), which requires agencies to
provide a method for staff to privately report sexual abuse and sexual
harassment of residents. The commenter inquired whether a staff member
could choose to abandon the responsibilities outlined in this standard
and privately report the matter instead.
Response. The requirement that agencies provide a method for staff
to privately report sexual abuse and sexual harassment of residents is
consistent with the staff first responder duties outlined in this
standard. By ``first responder,'' the Department means the first
security staff member to respond to a report of sexual abuse. The first
responder need not be the same staff member who initially reports the
allegation. For example, if a staff member privately reports alleged
sexual abuse to an investigator pursuant to Sec. Sec. 115.51, 115.151,
115.251, or 115.351, the investigator would then initiate protocols for
responding to the allegation, including assigning appropriate staff to
fulfill the requirements set out in Sec. Sec. 115.64, 115.164,
115.264, and 115.364.
Coordinated Response (Sec. Sec. 115.65, 115.165, 115.265, 115.365)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.64, 115.164, 115.264, and 115.364) required a coordinated response
among first responders, medical and mental health practitioners,
investigators, and facility leadership whenever an incident of sexual
abuse occurs.
Changes in the Final Rule
The final standard requires the development of a written
institutional plan to coordinate responses.
Comments and Responses
Comment. NPRM Question 25 asked whether the proposed standard
provided sufficient guidance as to how compliance would be measured.
Many commenters, including both agency commenters and advocacy
organizations, suggested that having a written plan would be a good way
to assess compliance. Other suggestions included documentation of
responses or meeting minutes.
Response. After reviewing the responses to this question, the
Department concludes that requiring a written plan would be the
simplest and most effective way to document compliance, and has revised
the standard accordingly.
Comment. Former members of the NPREC recommended that specific
details be added to the standard, such as a list of actions to be
coordinated, and that victim advocates be included where the victim is
a juvenile.
Response. The Department believes that it is not necessary to
specify the set of actions to be coordinated. As a general guide to
ensuring that the victim receives the best possible care and that
investigators have the best chance of apprehending the perpetrator--and
as noted in the discussion of this standard in the NPRM--the Department
recommends, but does not mandate, coordination of the following
actions, as appropriate: (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 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. The use of
victim advocates is discussed in response to the comments on Sec.
115.21 and its counterparts.
Comment. Other advocate commenters recommended that the Department
specifically require formal coordinated response teams and that the
written plan include a specific list of staff positions that make up
the teams and their duties.
Response. While facilities are encouraged to formalize the
composition of their response teams, the Department believes that it is
not necessary to mandate a specific list of staff positions and duties,
which may change based upon experience and personnel adjustments.
[[Page 37167]]
Comment. Many agency commenters supported the standard, but some
expressed concerns. One agency commenter suggested that the eight
actions to be coordinated might fall exclusively within the purview of
the outside criminal investigating agency.
Response. This standard would not require any agency to take
actions outside the scope of its own authority, but only to coordinate
with all responders involved.
Comment. Another agency commenter requested a definition of ``first
responder.''
Response. The Department intends for this term to have its usual
meaning: the staff person or persons who first arrive at the scene of
an incident.
Comment. One correctional agency stated that the use of a sexual
assault response team should be a recommendation rather than a mandate.
Response. As noted in the NPRM, this standard was 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. However, whether a facility formally designates its
responders as a SART is at its discretion. As noted in the NPRM,
agencies are encouraged to work with existing community SARTs or may
create their own plan for a coordinated response.
Comment. In response to NPRM Question 25, which asked whether this
standard provided sufficient guidance as to how compliance would be
measured, many commenters, including agency commenters and advocacy
organizations, suggested that the existence of a written plan should
constitute compliance. Other suggestions recommended using
documentation of responses or meeting minutes as proof of compliance.
Response. The final standard requires facilities to develop a
written institutional plan to coordinate responsive actions. An auditor
will measure compliance by ensuring that a facility has such a plan in
place and that the plan is sufficient to ensure a coordinated response.
For example, the auditor will assess whether the plan includes
appropriate personnel or whether additional facility staff should be
involved.
Preservation of Ability To Protect Inmates From Contact With Abusers
(Sec. Sec. 115.66, 115.166, 115.266, 115.366)
Summary of Proposed Rule
A paragraph within a standard contained in the proposed rule
(numbered as Sec. Sec. 115.65(d), 115.165(d), 115.265(d), and
115.365(d)) prohibited agencies from entering into or renewing any
collective bargaining agreements or other agreements that limit the
agency's ability to remove alleged staff abusers from contact with
victims pending an investigation.
Changes in Final Rule
The final rule breaks out this provision as a separate standard,
and strengthens the standard by (1) covering the agency's ability to
limit contact with any inmate, not only alleged victims; and (2)
extending the period of time within which the agency may remove staff
from contact with victims to include the pendency of a determination of
whether and to what extent discipline is warranted. In addition, the
final standard extends to any government agency negotiating collective
bargaining agreements on the correctional agency's behalf, in
recognition of the fact that correctional agencies often do not conduct
their own collective bargaining.
The final standard adds language to clarify that this standard is
not intended to restrict agreements that govern the conduct of the
disciplinary process or that address whether a no-contact assignment
that is imposed pending the outcome of an investigation shall be
expunged from or retained in the staff member's personnel file
following a determination that the allegation of sexual abuse is not
substantiated.
Comments and Responses
Comment. One county sheriff's office suggested that this provision
be converted into a separate standard.
Response. The Department agrees that it is more appropriate to
treat this requirement as a separate standard, as it is a precursor to
the requirement in Sec. 115.67 that the agency take protective
measures against retaliation.
Comment. Two State correctional agencies and a county sheriff's
office commented that correctional agencies typically are not
responsible for negotiating employee contracts.
Response. The Department has revised the standard to apply to any
governmental entity responsible for collective bargaining on an
agency's behalf.
Comment. One advocacy group recommended amending the proposed
standard to make clear that agencies may not enter into or renew
contracts with private prison companies that limit the agency's ability
to remove the alleged staff abusers from contact with victims pending
an investigation.
Response. While the standard emphasizes collective bargaining
agreements, the standard also expressly includes any ``other agreement
that limits the agency's ability to remove alleged staff abusers from
contact with inmates pending the outcome of an investigation or of a
determination of whether and to what extent discipline is warranted.''
The Department intends the standard to preclude agencies from entering
into any agreements that would limit the agency's ability to place
alleged staff abusers on no-contact status during the investigatory or
disciplinary process.
Comment. One sheriff's office predicted that this standard will
limit collective bargaining agreements.
Response. The Department does not believe that this standard will
impede agencies and unions from reaching agreements. To the extent that
it does, such an (unlikely) outcome is necessary in order to ensure
that alleged staff abusers are kept out of contact with alleged
victims.
Comment. A State juvenile justice agency recommended that the
contract language in collective bargaining agreements include the
following specific language: ``prohibit alleged staff abusers from
contact with residents pending the results of an investigation or
placing a staff abuser on administrative leave pending the results of
the investigation.''
Response. The Department does not find it necessary to require
agencies to adopt specific contract language in order to meet their
obligations under this standard.
Comment. A legal services organization asserted that the proposed
standard would be ineffective because it aimed only at preserving
agencies' ability to protect inmates from contact with abusers pending
an investigation. In the commenter's view, investigations are often
little more than whitewashes and only a small fraction of complaints
are substantiated. Moreover, the commenter asserted that corrections
officials will still claim that they cannot remove staff from a bid
position unless an arbitrator agrees with their position. The commenter
recommended that the standard require facilities to prevent contact
between staff and an inmate when the administrator has an objectively
reasonable belief that the staff member poses a risk to the inmate's
safety. If the facility cannot do so because of an employment contract,
the commenter recommended that the agency be required to take all legal
steps to re-negotiate that contract during its term and, at a minimum,
be directed not to enter again into such a contract.
Response. Upon reconsideration, the Department concludes that the
proposed
[[Page 37168]]
standard was insufficiently broad in that it applied only ``pending an
investigation.'' In addition, the proposed standard did not
appropriately address agencies' ability to provide such protection to
all inmates. The Department has therefore extended the standard to
prohibit agencies, or governmental entities negotiating on the agency's
behalf, from entering into or renewing agreements that limit the
agency's ability to remove alleged staff abusers from contact with any
inmate pending the outcome of an investigation or a disciplinary
determination.
This standard does not mandate that an agency take any specific
action against alleged staff abusers; rather, it requires that the
agency not tie its hands by entering into a collective bargaining
agreement that limits the agency's ability to remove a staff member
from a post that involves contact with inmates, as a prophylactic
measure, while the agency determines what happened and what measure of
discipline is warranted. An agency may determine, consistent with the
standard, that it is best to decide on a case-by-case basis, taking
into account the gravity and credibility of the allegations, whether to
place a staff member in a no-contact status pending such
determinations. The Department notes that placing staff accused of
sexual misconduct or other serious inmate abuse on no-contact status is
a common practice in many facilities and is consistent with best
practices. This is particularly true in the context of juvenile justice
facilities, where it would be extremely unusual to permit staff accused
of serious resident abuse to continue supervising residents pending the
outcome of an administrative assessment and, if appropriate, an
internal or criminal investigation.
This standard is limited in scope in that it does not purport to
govern agreements regarding the conduct of the disciplinary process, as
long as such agreements are consistent with Sec. Sec. 115.72, 115.172,
115.272, and 115.372, which forbid imposition of a standard higher than
a preponderance of the evidence in determining whether allegations of
sexual abuse or sexual harassment are substantiated, and with
Sec. Sec. 115.76, 115.176, 115.276, and 115.376, which generally
govern disciplinary sanctions for staff and which provide that
termination shall be the presumptive disciplinary sanction for staff
who have engaged in sexual abuse. In addition, the standard does not
restrict entering into agreements that address whether and in what form
the record of the staff member's no-contact assignment will be retained
in the employee's personnel file if the allegations against the
employee are not substantiated.
The Department declines to impose further restrictions on the use
of arbitration in discipline determinations. What is crucial is
establishing proper ground rules to govern the disciplinary process,
pursuant to Sec. Sec. 115.72, 115.172, 115.272, and 115.372, and
Sec. Sec. 115.76, 115.176, 115.276, and 115.376, and ensuring that the
agency has the ability to take prophylactic action while the
disciplinary process runs its course. With those conditions in place,
the Department does not believe that the final standards need restrict
the use of arbitrators to review factual findings or disciplinary
determinations in order to ensure that the interests of inmates are
protected.
Agency Protection Against Retaliation (Sec. Sec. 115.67, 115.167,
115.267, 115.367)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.65, 115.165, 115.265, and 115.365) required that the agency protect
all inmates and staff from retaliation for reporting sexual abuse or
for cooperating with sexual abuse investigations, in recognition of the
fact that retaliation for reporting instances of sexual abuse and for
cooperating with sexual abuse investigations is a serious concern in
correctional facilities. The proposed standard required agencies to
adopt policies that help ensure that persons who report sexual abuse
are properly monitored and protected, including but not limited to
providing information in training sessions, enforcing strict reporting
policies, imposing strong disciplinary sanctions for retaliation,
making housing changes or transfers for inmate victims or abusers,
removing alleged staff or inmate abusers from contact with victims, and
providing emotional support services for inmates or staff who fear
retaliation.
The proposed standard also required that agencies monitor the
conduct and treatment of inmates and staff who have reported sexual
abuse or cooperated with investigations for at least 90 days to see if
there are changes that may suggest possible retaliation by inmates or
staff, and act promptly to remedy any such retaliation. In addition,
the proposed standard required that monitoring continue beyond 90 days
if the initial monitoring conducted during the initial 90-day period
indicated concerns that warranted further monitoring.
Changes in Final Rule
In paragraph (a), the final standard specifies that an agency shall
``establish a policy'' to protect against retaliation, ``and shall
designate which staff members or departments are charged with
monitoring retaliation.''
In paragraph (c), the final standard clarifies that the agency must
monitor the conduct and treatment of inmates who have been reported to
have suffered sexual abuse, in addition to inmates and staff who have
reported sexual abuse directly. The final standard adds language in
Sec. Sec. 115.67(d), 115.267(d), and 115.367(d) requiring that
monitoring of inmates include periodic status checks.
In addition, the final standard specifies that an agency need not
continue monitoring if it determines that an allegation is unfounded.
The final standard also includes various clarifying changes. In
paragraph (b), the phrase ``including housing changes or transfers''
has been changed to ``such as housing changes or transfers,'' and in
Sec. Sec. 115.67(c), 115.267(c), and 115.367(c), ``including any
inmate disciplinary reports, housing or program changes'' has been
changed to ``[i]tems the agency should monitor include any inmate
disciplinary reports * * *'' In Sec. Sec. 115.67(c), 115.267(c), and
115.367(c), the list of actions that should be considered possible
evidence of retaliation now includes examples of retaliation against
staff.
Comments and Responses
Comment. A few correctional agencies recommended replacing ``[t]he
agency shall protect all inmates and staff who report'' with ``the
agency shall reasonably protect'' or ``shall establish an adequate
level of protection against retaliation.'' Two advocacy organizations
recommended requiring that the agency establish a written policy on
retaliation and designate who is responsible for monitoring.
Response. In order to make the requirements of this standard more
concrete, the Department has revised this language to require agencies
to establish a policy to protect all inmates and staff, including
designating which staff members or departments are charged with
monitoring retaliation.
Comment. While many correctional agencies expressed general
satisfaction with the proposed standard, several expressed concern that
the requirement that agencies monitor for 90 days all individuals who
have cooperated with an investigation was excessively burdensome,
particularly in large prison systems where hundreds of people
[[Page 37169]]
could be involved in investigations at any given time. One sheriff's
office stated that identifying for monitoring purposes all inmates who
have cooperated with an investigation could raise confidentiality
concerns.
Commenters offered a range of suggestions for limiting the scope of
monitoring requirements. Some correctional agencies recommended that
monitoring not be required where allegations are determined to be
unfounded; another agency recommended that monitoring not be required
either for unfounded or unsubstantiated allegations. Some agency
commenters suggested that monitoring be required only of persons who
``materially'' cooperate with investigations, and recommended
clarifying that the provision applies to inmates who report abuse
during their present term of incarceration. Another agency would limit
the monitoring requirement to the inmate or staff member who made the
report, or, if the report was made by a third party, to the alleged
victim if he or she cooperated with the investigation.
Response. Upon reconsideration, the Department has modified the
monitoring requirements in order to focus resources where monitoring is
likely to be most important.
First, the Department has removed the requirement that agencies
automatically monitor all individuals who cooperate with an
investigation. Instead, the final standard requires agencies to take
appropriate measures to protect any individual who has cooperated with
an investigation and expresses a fear of retaliation. The final
standard retains the requirement to monitor inmates and staff who have
reported sexual abuse, and adds a requirement to monitor victims who
have been reported to have suffered sexual abuse.
Second, the Department has added language terminating the agencies'
obligation to monitor if the agency determines that the allegation is
unfounded. Monitoring remains appropriate where an agency has
classified an allegation as ``unsubstantiated''--which means, as
defined in Sec. 115.5, that the investigation produced insufficient
evidence to enable the agency to make a final determination as to
whether or not the event occurred.
The Department understands the concern that identifying individuals
for monitoring may raise confidentiality issues, but believes that this
risk can be managed. The Department encourages agencies, in developing
their policies, to limit the number of staff with access to the names
of individuals under monitoring and to be mindful of situations in
which a staff member who poses a threat of retaliation may also be
entrusted with monitoring responsibilities.
Comment. Several commenters suggested adding the NPREC's
recommended language requiring that the agency discuss any changes in
treatment of inmates or staff with the appropriate inmate or staff
member as part of its efforts to determine if retaliation is occurring.
Response. The Department agrees that monitoring of inmates who have
reported sexual abuse or who have been reported to have suffered sexual
abuse should also include periodic status checks, and has revised the
standard accordingly.
Comment. A few agencies, joined by the AJA, recommended that the
standards account for the physical limitations of smaller jails and
juvenile detention centers. The AJA recommended adding language to
clarify that housing changes would occur ``to the extent the physical
layout of the jail will allow.'' Another commenter suggested
substituting ``such as'' for ``including'' in paragraph (b), to account
for facilities that cannot make housing changes.
Response. The Department recognizes that, because of space
constraints, some facilities will not be able to accommodate housing
changes, and may need to employ alternative protection measures. To
clarify that the measures included in the standard are examples rather
than requirements, the final standard replaces ``including'' with
``such as.''
Comment. Several agency commenters recommended clarifying how staff
should be protected from retaliation. One suggested that negative
performance reviews or reassignment could indicate retaliation against
cooperating staff.
Response. To better clarify what monitoring of staff should entail,
the Department has added ``negative performance reviews or
reassignments of staff'' to Sec. Sec. 115.67(c), 115.267(c), and
115.367(c) as examples of conduct or treatment that might indicate
retaliation against staff. Of course, these are merely examples;
agencies should be mindful that retaliation may be manifested in other
ways.
Comment. The Department received numerous responses to NPRM
Question 26, which asked whether the standard should be revised to
provide additional guidance regarding when continuing monitoring is
warranted. Most commenters found the current language sufficient,
including many agency commenters. However, several State correctional
agencies requested additional guidance. Specific requests included:
clarification of what monitoring consists of and how it differs from
general monitoring of offenders and staff; examples of what level of
monitoring would be acceptable to meet the standard and what incidents
would warrant continued monitoring; and detailed training on how to
monitor. In addition, an advocacy organization suggested that agencies
restart the 90-day clock after each new incident of retaliation; an
inmate recommended that monitoring be mandated for eight months; an
anonymous commenter proposed that the standard require that monitoring
continue until the agency is reasonably certain that retaliation has
ceased; and an agency asked whether the 90-day monitoring needed to be
documented in any particular way.
Response. In light of the fact that most commenters expressed
satisfaction with the level of detail included in this standard, and in
order to afford agencies flexibility to develop a monitoring policy
consistent with their existing operations and professional judgment,
the Department declines to provide a detailed definition of monitoring
or to list scenarios in which continuing monitoring would be warranted.
However, the Department expects that the final standards' addition of
examples of how staff might experience retaliation, as well as the new
requirement that monitoring for certain individuals include periodic
status checks, will assist agencies in developing their policies to
protect against retaliation.
The Department does not find it necessary to specify that a new
incident of retaliation must restart the 90-day clock, as the final
standard requires agencies to continue monitoring beyond 90 days if the
initial monitoring indicates a continuing need. The Department trusts
that agencies will recognize that an incident of retaliation indicates
a continuing need for monitoring. Finally, in light of the requirement
that agencies continue monitoring beyond 90 days if the initial
monitoring indicates a continuing need, as well as agencies' concerns
about the cost and burden of a monitoring requirement, the Department
declines to revise the standard to require agencies to monitor for
eight months.
[[Page 37170]]
Criminal and Administrative Agency Investigations (Sec. Sec. 115.71,
115.171, 115.271, 115.371)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies
that conduct their own investigations do so promptly, thoroughly, and
objectively. The proposed standard required investigations whenever an
allegation of sexual abuse is made, including third-party and anonymous
reports, and prohibited the termination of an investigation on the
ground that the alleged abuser or victim is no longer employed or
housed by the facility or agency. The proposed standard required that
investigators gather and preserve all available direct and
circumstantial evidence.
The proposed standard required that investigators be trained in
conducting sexual abuse investigations in compliance with Sec. Sec.
115.34, 115.134, 115.234, and 115.334.
To ensure an unbiased evaluation of witness credibility, the
standard required that credibility assessments be made objectively
rather than on the basis of the individual's status as an inmate or a
staff member.
In addition, the proposed standard required that all
investigations, whether administrative or criminal, be documented in
written reports, which must be retained for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years.
Changes in Final Rule
The final standard contains several small changes.
In paragraph (a), the duty to investigate allegations promptly,
thoroughly, and objectively has been extended to sexual harassment in
addition to sexual abuse.
In paragraph (e) of Sec. Sec. 115.71, 115.171, and 115.271, and
paragraph (f) of Sec. 115.371, the final standard provides that no
agency shall require an inmate who alleges sexual abuse to submit to a
polygraph examination or other truth-telling device as a condition for
proceeding with the investigation of such an allegation.
In paragraph (f) of Sec. Sec. 115.71, 115.171, and 115.271, and
paragraph (g) of Sec. 115.371, the final standard provides that
administrative investigations should endeavor to determine whether
staff actions or failures to act ``contributed to'' the abuse, rather
than ``facilitated to'' as in the proposed standard.
In paragraph (i) of Sec. Sec. 115.71, 115.171, and 115.271, the
final standard provides that the duty to retain documents applies to
``all written reports referenced in paragraphs (f) and (g),'' rather
than ``such investigative records'' as in the proposed standard. The
final standard for juvenile facilities makes a similar change in Sec.
115.371(j).
In paragraph (j) of the standard for juvenile facilities, the final
standard allows for a shorter retention period for written reports
regarding abuse committed by residents where the retention for the time
period otherwise required by the standard is prohibited by law.
Comments and Responses
Comment. One commenter expressed concern that the restriction on
conducting compelled interviews until prosecutors are consulted failed
to account for the fact that it is not always known if a criminal
prosecution is a possibility when an investigation begins.
Response. This standard requires consultation with prosecutors
before conducting compelled interviews when the quality of existing
evidence would support a criminal prosecution. The standard would not
prohibit an administrative investigation when evidence does not support
a criminal prosecution. If that assessment changes during the course of
an administrative investigation due to new evidence, prosecutors should
be consulted at that time. In case of doubt at any point in the
investigation, prosecutors should be consulted.
Comment. Some advocates suggested strengthening this standard in
various ways, including by requiring consultation with prosecutors to
determine whether the quality of evidence appears to support criminal
prosecution.
Response. While the Department recommends consultations with
prosecutors in case of doubt, it is not necessary to require such
consultation during all investigations. Agencies usually will be able
to determine whether the contours of an incident indicate that criminal
wrongdoing may have occurred, and are encouraged to consult with
prosecutors in case of doubt.
Comment. Some advocates suggested requiring that a preliminary
investigation commence immediately upon receiving an allegation of
sexual abuse.
Response. The standard requires investigations to be conducted
``promptly,'' which is intended to emphasize the importance of
investigating without delay.
Comment. Some advocates suggested requiring agencies to rely on
available, accepted sexual assault protocols.
Response. Section 115.21 requires that agencies responsible for
investigating allegations of sexual abuse follow a uniform evidence
protocol that maximizes the potential for obtaining usable physical
evidence for administrative proceedings and criminal prosecutions.
Section 115.21 requires that the protocol be adapted from or otherwise
based on the Department's SAFE Protocol, or similarly comprehensive and
authoritative protocols developed after 2011.
Comment. Some advocates recommended requiring a comprehensive
written plan--including a memorandum of understanding--to guide the
coordination of administrative and criminal investigations.
Response. In the interest of affording agencies flexibility in
implementing these standards, the Department declines to mandate such a
plan or memorandum, although it encourages agencies to consider whether
doing so will help coordinate its investigatory efforts.
Comment. A number of inmates stressed the importance of the
provision requiring that credibility be assessed on an individual
basis, as opposed to the person's status as inmate or staff, given
that, in their view, agencies inappropriately favor staff over inmates
when their statements conflict. One agency commenter recommended that
this standard be removed, on the grounds that it is not measurable and
constitutes a best practice.
Response. Objective assessments of credibility are crucial in
investigations of sexual abuse in correctional settings, especially
when abuse by staff is alleged. While this standard is not easily
quantifiable, it is quite possible that a blatant failure to abide by
it will be readily evident. For example, when an inmate makes an
allegation of staff abuse, and there is no objective evidence that the
allegation is false, the investigator should attempt to find other
avenues to corroborate or disprove the allegation rather than assessing
the allegation in a vacuum. In such cases, indications in the
investigative file as to whether the investigator interviewed
witnesses, reviewed the staff member's disciplinary history, and
reviewed the inmate's history of lodging complaints would assist the
auditor in determining whether the accuser's status as an inmate
compromised the investigation's objectivity.
Comment. An inmate recommended that the standards be amended to
allow victims the opportunity to take a
[[Page 37171]]
polygraph test to prove the truth of their statements. However, many
advocates opposed polygraph testing because it often yields inaccurate
results and can be traumatizing for a victim. They also noted that the
Department prohibits States receiving grants under the STOP (Services,
Training, Officers, Prosecutors) Violence Against Women Formula Grant
Program from using polygraph testing for victims of sexual violence.
These advocates recommended that the standard be amended to explicitly
prohibit polygraph testing for inmates who report abuse.
Response. The Department has amended the standard so that it
prohibits agencies from requiring inmates who allege sexual abuse to
submit to a polygraph examination or other truth-telling device as a
condition for proceeding with the investigation of such an allegation.
This requirement corresponds to a similar condition on the receipt of
certain VAWA grants awarded by the Department. See 42 U.S.C. 3796gg-8.
The Department recognizes that polygraph examinations are imperfect
assessors of credibility. Given that States are precluded from
receiving certain funds if they condition investigations upon the
alleged victim's agreement to submit to a polygraph test, the
Department concludes that a corresponding requirement is appropriate in
the PREA context. However, this does not prohibit the administration of
such tests to victims who request them.
Comment. A few inmates recommended that the standard be
strengthened by adding language expressly prohibiting staff from
attempting to coerce inmates into not reporting sexual abuse.
Response. A prohibition against coercion of inmates is implicit in
the standards, including in the requirement in this standard to
investigate all inmate accusations of sexual abuse, and in the standard
that provides for protection against retaliation.
Comment. A number of advocates recommended that the standard also
encompass investigations into allegations of sexual harassment.
Response. The Department agrees that the requirement to investigate
allegations promptly, thoroughly, and objectively should apply to
allegations of sexual harassment as well, and has amended paragraph (a)
accordingly.
Comment. Some stakeholders commented that the use of the word
``facilitated'' in Sec. Sec. 115.71(f)(1), 115.171(f)(1),
115.271(f)(1), and 115.371(g)(1) appears to require a determination of
whether staff acted in a manner that encouraged or directly resulted in
the occurrence of the abuse.
Response. The final standard clarifies this provision by replacing
``facilitated'' with ``contributed to.''
Comment. A State correctional agency commented that its
administrative investigations determine facts, but do not result in
``findings.''
Response. For clarity, the Department has amended Sec. Sec.
115.71(f)(2), 115.171(f)(2), 115.271(f)(2), and 115.371(g)(2) to
include both investigative ``facts'' as well as ``findings.''
Comment. A number of correctional commenters asserted that the
record retention requirements in paragraph (h) of the proposed standard
(paragraph (i) in the juvenile standard) conflicted with applicable
State or local law, including State or local records retention
schedules. One noted that records may not be under the full control of
the agencies. In some States, the commenter noted, juvenile records are
under the control of the juvenile court and can be purged at the
request of the juvenile offender. Another commenter suggested that this
requirement would be difficult to implement, as the juvenile facility
would not know when or if a person incarcerated in an adult facility is
released. A number of such commenters recommended allowing agencies to
retain records in a manner consistent with State law. One commenter
expressed concern about the cost and administrative burden of
maintaining all investigative records beyond the period of employment
or incarceration, and recommended that it should suffice to retain the
final report. Another recommended that the standard require that such
records be kept confidential and not be subject to public inspection
under the Freedom of Information Act or similar State laws.
Response. The recordkeeping requirement of this standard, now
contained in paragraph (i) (paragraph (j) in the juvenile standard)
applies only to records generated pursuant to paragraphs (f) and (g)
(paragraphs (g) and (h) in the juvenile standard), which are within the
agencies' control. There is no barrier to retaining these records
beyond the length of time mandated by this standard if required by
State or local regulation (or if the agency chooses to do so for its
own reasons). To the extent that State or local laws mandate the
disposal of these records within a shorter period, agencies are
encouraged to seek revisions of such laws to the extent necessary in
order to retain these documents. To reduce potential conflicts, the
Department has amended the standard to allow for a shorter retention
span when the abuser is a juvenile resident and when retention of
records for the time period mandated by the standard is prohibited by
law.
The Department does not believe that the requirement of maintaining
the records generated pursuant to paragraphs (f) and (g) will prove
overly burdensome, especially in light of the clarification in the
final standard that only the written reports documenting investigations
need be retained.
Finally, the Department lacks the authority to determine whether
these records should be subject to public inspection under freedom of
information laws, which will depend upon the relevant laws of the
jurisdiction in which the custodian of the records is located.
Comment. One agency recommended defining ``State entity'' in Sec.
115.71(k) to make clear to which specific entity this requirement
applies.
Response. As noted above, the use of ``State entity'' in this
context refers to any division of the State government, as opposed to
local government.
Evidentiary Standard for Administrative Investigations (Sec. Sec.
115.72, 115.172, 115.272, 115.372)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies
not impose a standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse are substantiated.
Changes in Final Rule
The final standard encompasses allegations of sexual harassment.
Comments and Responses
Comment. Correctional agencies and advocates generally supported
this standard, though a few agencies expressed uncertainty as to
whether it applied to criminal investigations as well as administrative
investigations.
Response. As the title of the standard indicates, this standard
applies only to administrative investigations.
Comment. Some advocates recommended that sexual harassment be added
to this standard, noting that allegations of sexual harassment
typically would be dealt with through administrative investigations.
Response. Upon reconsideration, the Department agrees with this
recommendation and has amended the standard to include sexual
harassment.
[[Page 37172]]
Reporting to Inmates (Sec. Sec. 115.73, 115.273, 115.373)
Summary of Proposed Rule
The standard contained in the proposed rule required that, upon
completion of an investigation into an inmate's allegation that he or
she suffered sexual abuse in an agency facility, the agency must inform
the inmate whether the allegation was deemed substantiated,
unsubstantiated, or unfounded. If the agency itself did not conduct the
investigation, the proposed standard required that the agency request
the relevant information from the investigating entity in order to
inform the inmate. The proposed standard further provided that, if an
inmate alleges that a staff member committed sexual abuse, the agency
must inform the inmate whenever (1) The staff member is no longer
posted in the inmate's unit, (2) the staff member is no longer employed
at the facility, (3) the staff member has been indicted on a charge
related to the reported conduct, or (4) the indictment results in a
conviction. The proposed standard did not apply to allegations that
have been determined to be unfounded, and did not apply to lockups, due
to the short-term nature of lockup detention.
Changes in Final Rule
The final standard adds a requirement that all such notification or
attempted notification must be documented. The final standard also
expands the requirement to inform the inmate if his or her abuser is
indicted or convicted to apply where the abuser is a fellow inmate. In
addition, the final standard clarifies that the agency's duty to report
to an alleged victim terminates if the victim is released from the
agency's custody, and terminates with regard to notifications regarding
staff reassignments, departures, indictments, or convictions if the
allegation is determined to be unfounded.
Comments and Responses
Comment. Several agency commenters expressed concern with the
proposed standard on human resource practice, security, or privacy
grounds. These commenters questioned the wisdom of providing written
information to victims and third-party complainants given that, in
their view, such information could easily become widely known
throughout the facility, possibly endangering other inmates or staff.
Response. The Department does not believe that notifying an inmate
that a staff member is no longer posted within the unit or facility
would imperil other inmates or staff.
Comment. Some agency commenters asserted that privacy laws may
restrict the dissemination of certain information about staff members.
Response. The Department does not believe that the disclosure of
information referenced in this standard implicates any privacy
interests. Importantly, this standard does not require that the
facility disclose the reason why the staff member is no longer posted
within the inmate's facility or unit. Thus, the facility need not
reveal whether the staff member's absence is due to a voluntary
departure or an adverse employment action. Indictments and convictions,
of course, are public facts in which an employee or former employee has
no privacy interest.
Comment. Other agency commenters suggested that gathering this
information would impose administrative difficulties, and some
recommended that the investigating or prosecuting agency be tasked with
informing the inmate about indictments or convictions. One commenter
recommended that the information reported to the inmate be limited to
information that was publicly available.
Response. It is highly unlikely that an indictment or conviction
would result without the agency learning about it. Even so, the
standard does not impose any affirmative burden upon agencies to gather
information for the purpose of informing inmates. Rather, it requires
that the agency inform the inmate whenever ``[t]he agency learns'' that
a staff member has been indicted or convicted on a charge related to
sexual abuse within the facility (emphasis added).
Comment. A number of advocates recommended that the standard be
amended to provide additional information to inmates. They recommend
requiring that the agency, in the case of substantiated claims, inform
the victim what the agency has done in response to the abuse, whether
administrative sanctions have been imposed, whether the agency has
reported the abuse to prosecutors, and the results of any criminal
proceeding. These advocates also recommended requiring disclosure to
third-party complainants.
Response. The final standard does not incorporate these
suggestions. First, while the Department encourages agencies to
communicate with victims regarding remedial action taken, it would be
an inappropriate intrusion upon agency operations to require agencies
to disclose the actions they have taken. Second, disclosing the
imposition of administrative sanctions may implicate employees' privacy
rights under governing laws. The victim's interests in safety are
served by requiring disclosure of whether the staff member is no longer
posted on the victim's unit or in the victim's facility, and the
victim's interest in justice is served by requiring disclosure of any
indictments or convictions. Third, for similar reasons, the Department
declines to revise the standard to mandate disclosure of whether the
agency has reported the abuse to prosecutors, or of the results of
criminal proceedings beyond the fact of a conviction. Fourth, such
interests do not support requiring disclosure to third-party
complainants, who are not similarly situated to the victim. Of course,
agencies may choose to disclose additional information, even if such
disclosure is not covered by this standard.
Comment. Advocates recommended requiring documentation, signed by
the inmate, that he or she received the required information.
Response. The Department finds merit in the suggestion that such
notifications be documented and has incorporated this into the final
standard. However, the Department does not believe it is necessary to
require that the inmate sign such notifications.
Comment. Some commenters expressed concern that the standard could
be read to require that information be reported to the accuser as the
investigation unfolds.
Response. The final standard requires an agency to report to an
inmate who has alleged sexual abuse when the allegation has been
determined to be substantiated, unsubstantiated, or unfounded, if the
abuser has been indicted or convicted on a charge related to sexual
abuse within the facility, and, if the alleged abuse was committed by a
staff member, when the staff member is no longer posted within the
inmate's unit or is no longer employed at the facility. While agencies
may determine it is prudent to provide an inmate with additional
updates if an investigation is prolonged, the standard does not require
an agency to provide information during the course of the
investigation.
Comment. Some commenters recommended that the standard define
``unfounded'' and ``unsubstantiated.''
Response. Section 115.5 contains definitions of ``unfounded
allegation'' and ``unsubstantiated allegation.''
Comment. Some commenters asserted that the terms ``substantiated''
and ``unsubstantiated'' apply only to
[[Page 37173]]
administrative investigations and therefore recommended that paragraph
(a) be amended to apply only to administrative investigations.
Response. These terms, as defined in the final rule, are applicable
to all types of investigations. Indeed, the BJS Survey of Sexual
Violence, which for several years has been collecting data from
agencies regarding substantiated, unsubstantiated, and unfounded
allegations, does not limit its inquiries to administrative
investigations.
Comment. Some commenters recommended that staff be required to
explain to inmates the meaning of substantiated, unsubstantiated, and
unfounded.
Response. The Department believes that the reporting requirement
implicitly requires staff to ensure that inmates understand the result
of the investigation.
Comment. Other commenters recommended that the Department adopt a
standard requiring juvenile facilities to report this information to
parents and legal guardians of juvenile victims.
Response. The Department encourages juvenile facilities to share
such information with parents and legal guardians in accordance with
the facility's general policies regarding communication with parents
and legal guardians. However, because the interests implicated in these
disclosures most directly impact the victim, the Department declines to
require agencies to do so.
Comment. Some advocates recommended requiring notifications
analogous to those required by paragraph (c) when the perpetrator is
another inmate.
Response. Because staff members exert complete authority over
inmates, safety interests compel the notification of inmates regarding
the transfer or departure of a staff member. Because fellow inmates
lack such authority over other inmates, the Department has chosen not
to require similar notification when the perpetrator is another inmate.
However, the final standard expands the indictment/conviction
notification requirement to cover cases in which the defendant abuser
is an inmate.
Comment. One correctional commenter recommended that the standard
require only ``reasonable efforts'' to inform an inmate, because the
inmate may be released while an investigation is still ongoing and may
be difficult to locate.
Response. The final standard states that an agency has no
obligation to report to inmates who have been released from its
custody.
Comment. A few correctional commenters recommended that this
standard exempt allegations that have been determined to be
unsubstantiated.
Response. The Department disagrees with this recommendation. By
definition, an unsubstantiated allegation is one in which there is
insufficient evidence to determine whether or not the event occurred.
The possibility that the event occurred justifies the minimal burden of
informing the inmate that the staff member is no longer posted within
the inmate's unit. In addition, an inmate who is informed that his or
her allegation is unsubstantiated may wish to provide, or attempt to
obtain, additional evidence that would benefit the investigation.
Disciplinary Sanctions for Staff (Sec. Sec. 115.76, 115.176, 115.276,
115.376)
Summary of Proposed Rule
The standard contained in the proposed rule provided that staff
shall be subject to disciplinary sanctions up to and including
termination for violating agency sexual abuse or sexual harassment
policies, and that termination shall be the presumptive disciplinary
sanction for staff who have engaged in sexual touching.
The proposed standard further provided that sanctions be
commensurate with the nature and circumstances of the acts committed,
the staff member's disciplinary history, and the sanctions imposed for
comparable offenses by other staff with similar histories. If a staff
member is terminated for violating such policies, or if a staff member
resigns in lieu of termination, the proposed standard required that a
report be made to law enforcement agencies (unless the activity was
clearly not criminal) and to any relevant licensing bodies.
Changes in Final Rule
The final standard provides that termination shall be the
presumptive disciplinary sanction for staff who have engaged in sexual
abuse, not only sexual touching.
Comments and Responses
Comment. Several advocate commenters stated that termination should
be the mandatory sanction for employees that have engaged in sexual
abuse, rather than a presumptive sanction.
Response. The Department believes that a change is not warranted,
for the reasons stated by the NPREC in the discussion section that
accompanied its corresponding standard, labeled as DI-1:
This standard requires that termination be the ``presumptive''
but not the mandatory sanction for certain types of sexual abuse in
recognition of the fact that disciplinary sanctions must be
determined on a case-by-case basis. Establishing termination as a
presumption places a heavy burden on the staff person found to have
committed the abuse to demonstrate why termination is not the
appropriate sanction. This presumption also requires that
termination should be the rule for the referenced types of sexual
abuse, with exceptions made only in extraordinary circumstances.\36\
---------------------------------------------------------------------------
\36\ NPREC, Standards for the Prevention, Detection, Response,
and Monitoring of Sexual Abuse in Adult Prisons and Jails, 47,
available at http://www.ncjrs.gov/pdffiles1/226682.pdf.
Comment. A number of agency commenters expressed concern that
collective bargaining agreements may limit their ability to assure
termination.
Response. The Department is aware that, pursuant to collective
bargaining agreements, final decisions regarding termination may rest
in the hands of an arbitrator. This standard is intended to govern the
sanction sought by the agency, recognizing that, in some circumstances,
the agency may not have the authority to make the final determination.
Comment. A large number of commenters across all commenter types
requested that the standard be revised to provide that termination
shall be the presumptive disciplinary sanction not only for staff who
have engaged in sexual touching, but also for staff who have engaged in
other types of sexual misconduct such as indecent exposure and
voyeurism.
Response. The Department has changed the term ``sexual touching''
to ``sexual abuse.''
Comment. Some advocate commenters expressed concern that the range
of discipline contemplated in paragraph (c) was too broad. In addition,
one agency commenter suggested that the inclusion of a range of
discipline was not consistent with a zero-tolerance policy.
Response. The Department has revised paragraph (c) to make clear
that it refers to policy violations that do not constitute sexual
abuse. Coupled with the shift from ``sexual touching'' to ``sexual
abuse'' in paragraph (b), the final standard draws a line between
sexual abuse by staff, for which termination is the presumptive
sanction, and other policy violations, for which agencies are afforded
discretion to impose discipline as warranted. Such violations may
include, for example, a failure to take required responsive
[[Page 37174]]
actions following an incident, negligent supervision that led to or
could have led to an incident, or willfully ignoring evidence that a
colleague has abused an inmate.
Comment. An advocate commenter suggested that the final standard
mandate disciplinary sanctions for staff who regularly work on shifts
when incidents of sexual abuse occur, noting that ``standing by while
assaults happen is a violation of staff responsibility.''
Response. The Department agrees that a staff member's failure to
act to prevent sexual abuse merits discipline. However, a blanket rule
mandating sanctions for staff who work on shifts when incidents occur
would not be appropriate. Rather, a determination whether to impose
discipline should be made on a case-by-case basis.
Comment. Commenters in all categories requested that this standard
be expanded to include volunteers and contractors.
Response. The final rule adds a new standard, discussed immediately
below, to address this concern.
Corrective Action for Contractors and Volunteers (Sec. Sec. 115.77,
115.177, 115.277, 115.377)
The final rule adds a new standard requiring that an agency or
facility prohibit from contact with inmates any contractor or volunteer
who engages in sexual abuse. The standard also requires that any
incident of sexual abuse be reported to law enforcement agencies,
unless the activity was clearly not criminal, and to relevant licensing
bodies. With regard to any other violation of agency sexual abuse or
sexual harassment policies by a contractor or volunteer, the new
standard requires that the facility take appropriate remedial measures
and consider whether to prohibit further contact with inmates.
The wording of this standard takes into account that contractors
and volunteers are not employees and thus are not subject to
termination or discipline as those terms are typically construed.
However, the consequences set forth in this standard parallel the
consequences for staff members, with discretion left to agencies and
facilities to take appropriate remedial measures commensurate with the
nature of the violation.
Disciplinary Sanctions, Interventions, and Prosecutorial Referrals for
Inmates (Sec. Sec. 115.78, 115.178, 115.278, 115.378)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as Sec. Sec.
115.77, 115.177, 115.277, and 115.377) mandated that inmates be subject
to disciplinary sanctions pursuant to a formal disciplinary process
following a finding that the inmate sexually abused another inmate. The
standard mandated that sanctions be appropriate for the offense, taking
into account the inmate's history and whether any mental disabilities
or mental illness contributed to the behavior.
As with sanctions against staff, the proposed standard required
that sanctions against inmates be fair and proportional, taking into
consideration the inmate's actions, disciplinary history, and sanctions
imposed on other inmates in similar situations. The proposed standard
also required that the disciplinary process take into account any
mitigating factors, such as mental illness or mental disability, and
that it consider whether to incorporate therapy, counseling, or other
interventions that might help reduce recidivism.
The proposed standard provided that inmates shall not be
disciplined for sexual contact with staff without a finding that the
staff member did not consent to such contact. The standard further
provided that inmates may not be punished for making good-faith
allegations of sexual abuse, even if the allegation is not
substantiated following an investigation. Finally, the standard
provided that an agency must not consider consensual sexual contact
between inmates to constitute sexual abuse.
With regard to lockups, which generally do not hold inmates for
prolonged periods of time and thus do not impose discipline, the
proposed standard required a referral to the appropriate prosecuting
authority when probable cause exists to believe that one lockup
detainee sexually abused another. If the lockup is not responsible for
investigating allegations of sexual abuse, the standard required that
it inform the responsible investigating entity. The proposed standard
also applied to any State entity or Department of Justice component
that is responsible for investigating sexual abuse in lockups.
Changes in Final Rule
The final standard makes clear that it does not limit an agency's
ability to prohibit sexual activity among inmates, or to discipline
inmates for violating such a prohibition.
Comments and Responses
Comment. A large number of advocate commenters objected to the
provision that allowed discipline of inmates for sexual contact with
staff ``upon a finding that the staff member did not consent to such
contact.'' Commenters criticized this language as easily exploitable by
an abusive staff member, who could coerce an inmate into sexual
activity and then falsely claim that she or he did not consent to sex
with the inmate. Fearing that the language in the proposed standard
could discourage inmates from reporting staff sexual abuse, several
advocate commenters recommended allowing discipline of inmates for
sexual contact with staff only if the inmate used or threatened to use
force against the staff member.
Response. As stated in the NPRM, the responsibility for preventing
inmate-staff sexual contact presumptively rests with the staff member,
due to the vast power imbalance between staff and inmates. Even if it
appears that a staff member and an inmate willingly engaged in sexual
activity, the very real possibility that the inmate was coerced into
doing so militates against automatically disciplining both parties for
such behavior. Otherwise, inmates may be reluctant to report being
coerced into sexual activity by staff, for fear of discipline. For this
reason, the proposed standard required the facility to make a finding
that the staff member did not consent, rather than merely taking the
word of the staff member.
However, exempting from discipline non-consensual activity that did
not involve force or threat of force would tilt too far in the opposite
direction. Such a rule would exempt from discipline, for example, a
large and muscular inmate who did not use or threaten force but who
coerced a physically slight staff member into sexual activity by
trapping her in a confined space. Likewise, an inmate who drugged a
staff member and sexually abused her while she was unconscious would be
immune from discipline. Finally, it is doubtful that the language
suggested by advocates would eliminate the risk of false allegations by
staff members. A staff member who would falsely allege that he or she
did not consent to sexual activity with an inmate could, if this
language were adopted, instead falsely assert that the inmate had
threatened to use force. For these reasons, the Department rejects this
proposed change.
Comment. Many commenters, of various types, expressed confusion
over the requirement in the proposed standard that ``[a]ny prohibition
on inmate-on-inmate sexual activity shall not consider consensual
sexual activity to constitute sexual abuse.'' A number of commenters
appeared to interpret the
[[Page 37175]]
use of ``consensual'' in the proposed standard as indicating a
permissive attitude toward inmates engaging in sexual activity.
Response. The Department did not intend to limit agencies' ability
to prohibit or otherwise restrict inmate sexual activity. Rather, the
Department meant to ensure that such activity is not automatically
classified as ``sexual abuse.'' The Department recognizes that it may
be difficult to discern whether sexual activity between inmates is
truly consensual; activity that may seem to be voluntary may actually
be coerced. Yet it is essential that staff make individualized
assessments regarding each inmate's behavior, and not simply label as
an abuser every inmate caught having sex with another inmate. The
Department has revised this language to make clear that the standard
does not limit an agency's ability to prohibit sexual activity among
inmates, or to discipline inmates for violating such a prohibition.
However, while consensual sexual activity between inmates may be
prohibited, it should not be viewed as sexual abuse unless the activity
was coerced.
Comment. Many commenters, including advocates and agencies alike,
criticized the proposed standard for juveniles as setting an
inappropriately punitive tone. Some comments interpreted the proposed
standard to require disciplinary sanctions for residents.
Response. Unlike many adult correctional systems, juvenile agencies
typically operate on a rehabilitative model, and focus on positive
programming and treatment rather than punishment. The Department agrees
that juvenile agencies should have discretion as to the types of
interventions they find most appropriate in responding to sexually
abusive behavior. For example, rather than imposing a disciplinary
sanction, the agency might choose to direct the juvenile perpetrator to
a sex offender treatment program aimed at rehabilitation.
In consideration of these concerns, Sec. 115.378 is now titled
``Interventions and disciplinary sanctions for residents.'' Further,
the Department has reworded Sec. 115.378 to make clear that the
standard does not require any particular type of intervention or
discipline, and that juvenile agencies retain discretion to determine
the most appropriate response. When agencies choose to impose
discipline, the sanction must be commensurate with the nature of the
offense and must take into consideration other relevant factors.
Comment. Advocate commenters strongly objected to the lack of
restrictions on the use of isolation in disciplining juveniles in the
proposed standards. Some specifically requested a 72-hour time limit on
the use of isolation in juvenile facilities.
Response. The final standard requires that residents in isolation
shall not be denied daily large-muscle exercise or access any to
legally required education programming or special education services.
In addition, such residents must receive daily visits from a medical or
mental health care clinician, as well as access to other programs and
work opportunities to the extent possible.
The Department did not incorporate a time limit into the final
standard, recognizing that agencies must balance the well-being of
sexually abusive youth with that of other youth in its custody. In rare
cases, a facility may find it necessary to isolate youth beyond 72
hours due to safety and security concerns. However, isolated youth
remain subject to the protections discussed above. The Department
encourages facilities to minimize their reliance on isolation for
juveniles to the greatest extent possible.
Comment. Advocate commenters also objected to language in Sec.
115.378(d) of the proposed standards regarding a facility's ability to
limit access to programming for abusers who refuse to participate in
therapy, counseling or interventions designed to address or correct
underlying reasons for the abuse.
Response. In recognition of the fact that some sex offender
treatment programs require admission of the underlying act, and that
such an admission could have consequences for any subsequent criminal
case, the Department believes that youth should not be punished for
failing to participate. Accordingly, the Department has revised Sec.
115.378(d) to clarify that a facility may limit an abuser's access to
rewards-based management or behavior-based incentives due to their
failure to participate in therapeutic interventions, but may not limit
access to general programming and education. This revision is
consistent with a rehabilitative approach to juvenile corrections.
Comment. Many advocate commenters expressed concern with the
Department's lack of guidance to juvenile agencies regarding adherence
to and interpretation of State age of consent laws and mandatory
reporting requirements.
Response. The Department believes it has appropriately addressed
these concerns by expanding and specifying the training requirements in
Sec. 115.331, which now mandates training on how to distinguish
between abusive and non-abusive sexual contact between residents and on
how to comply with relevant age of consent laws and mandatory
reporting. The Department intends for these standards to be read in
conjunction with, rather than to supersede, existing State laws
regarding mandatory reporting and age of consent.
Medical and Mental Health Screenings (Sec. Sec. 115.81, 115.381)
Summary of Proposed Rule
The standard in the proposed rule required that inmates be asked
about any prior history of sexual victimization and abusiveness during
intake or classification screenings. The proposed standard further
required that inmates be offered a follow-up meeting with a medical or
mental health practitioner within 14 days of the intake screening. The
proposed standard also limited the inquiry required in jails by not
requiring an inquiry about prior sexual abusiveness.
The proposed standard did not apply to lockups, given the
relatively short time that they are responsible for inmate care, or to
community confinement facilities, which do not undertake a similar
screening process.
Changes in Final Rule
The final standard no longer requires that facilities make these
inquiries during intake screenings. Rather, the Department has replaced
this language with a reference to the screening conducted pursuant to
Sec. Sec. 115.41 and 115.341. The Department has also revised the
standard to require that inmates be offered a follow-up meeting when
screening indicates that they have experienced prior sexual
victimization or perpetrated sexual abuse, rather than only when the
inmate discloses such information. Finally, for clarity, the Department
has changed ``follow-up reception'' to ``follow-up meeting.''
Comments and Responses
Comment. Numerous commenters, including correctional agencies and
advocacy organizations, asserted that the screening requirements under
Sec. Sec. 115.81(a) and 115.381(a) were duplicative of--and
inconsistent with--the screening requirements under Sec. Sec. 115.41
and 115.341. These commenters requested that the two standards be
consolidated.
Response. The Department is persuaded that the separate screening
requirement under Sec. Sec. 115.81(a) and 115.381(a) is unnecessary in
light of
[[Page 37176]]
Sec. Sec. 115.41 and 115.341. Accordingly, the Department has replaced
this screening requirement with a reference to screenings conducted
pursuant to Sec. Sec. 115.41 and 115.341.
Comment. Several commenters criticized the 14-day timeframe for a
follow-up meeting where there is an indication of prior sexual
victimization or abusiveness. Several advocates and a State council on
juvenile detention suggested that 14 days was too long for victims and
abusers to wait for treatment; some commenters requested that, at a
minimum, the timeframe be shortened in juvenile facilities because of
the urgency of addressing these issues among juveniles and because of
the shorter average length of stay at juvenile facilities. A State
juvenile justice agency recommended that, for youth in short-term
facilities, the standard mandate a follow-up meeting within 10 days of
release from the facility or within 14 days of intake for youth that
remain in the facility. A State correctional agency recommended that
treating victims receive priority, and criticized the proposed standard
for providing the same 14-day timeframe for victims and abusers,
without distinguishing between the two.
Finally, some juvenile justice agencies asserted that the 14-day
timeframe under Sec. Sec. 115.81 and 115.381 is inconsistent with the
requirement under Sec. Sec. 115.83 and 115.383 that facilities conduct
a mental health evaluation of all known abusers within 60 days of
learning of such abuse history.
Response. The Department agrees that an inmate with a history of
victimization or abuse should receive a follow-up meeting with a health
care practitioner as soon as possible. However, some facilities,
particularly smaller facilities, have limited access to medical and
mental health practitioners. While the Department encourages facilities
to arrange for follow-up meetings as soon as possible, the final
standard preserves the 14-day deadline in order to accommodate these
staffing challenges.
The requirement that prisons provide follow-up meetings within 14
days for inmates whose intake screenings indicate prior abusiveness is
distinct from--and consistent with--the requirement that prisons
attempt to conduct mental health evaluations within 60 days. The
follow-up meeting is intended to emphasize immediate mental health
needs and security risks, while the evaluation is a comprehensive
mental health assessment intended to inform future treatment plans.
Comment. A State correctional agency argued that it is appropriate
to require facilities to offer a follow-up meeting to an inmate with a
history of victimization but that it should be left to the facility's
discretion to determine whether to offer a follow-up meeting to an
inmate whose screening indicates prior abusiveness.
Response. The Department believes that the potential for reducing
future incidents of sexual abuse and creating an improved overall sense
of safety within a facility justifies the burden of requiring the
facility to offer a follow-up meeting to an inmate whose screening
indicates prior abusiveness. However, as reflected in Sec. Sec.
115.83, 115.283, and 115.383, the Department agrees that it should be
left to the discretion of a mental health practitioner to determine,
following a mental health evaluation, whether treatment is appropriate
for a known inmate-on-inmate or resident-on-resident abuser.
Comment. Advocacy organizations and a county sheriff's office
questioned the Department's decision to exclude jails from the
requirement to inquire about past sexual abusiveness. The sheriff's
office asserted that, in light of the safety risks posed by an
individual who has previously perpetrated abuse, it is especially
critical that jails consider that history. By contrast, several
juvenile justice agencies and advocacy groups requested an analogous
carve-out for short-term juvenile facilities.
Response. The Department has preserved the exemption for jails from
the requirement under Sec. 115.81 that inmates whose screenings
indicate prior sexual abusiveness be offered a follow-up meeting with a
medical or mental health practitioner within 14 days, as well as the
requirement under Sec. 115.83 that known inmate-on-inmate abusers be
offered a mental health evaluation and treatment, where deemed
appropriate. Because of the smaller capacity of many jails and high
inmate turnover, it would be overly burdensome to require jails to
provide mental health follow-up meetings or evaluations for individuals
whose screenings indicate prior sexual abusiveness.
In light of the importance of providing mental health support to
youth who have reported sexual abusiveness--a point underscored by
numerous commenters who requested that the 14-day timeframe for a
follow-up meeting be reduced for juveniles--the final standard does not
exempt any juvenile facilities from the medical and mental health care
requirements for abusers.
Comment. Two State juvenile justice agencies raised concerns about
the standard's interaction with mandatory reporting laws. One
recommended that the standard require staff members conducting
screenings to provide appropriate notice regarding the agency's
mandatory reporting obligations under State law; another suggested that
the standards offer guidance on following such laws.
Response. The Department recognizes the importance of providing
staff with guidance on how to comply with State-mandated reporting
laws. However, given the range of State mandatory reporting laws and
agency policies for complying with such laws, the Department is not in
a position to provide detailed instructions for compliance. Instead,
the Department has revised Sec. Sec. 115.31, 115.131 and 115.231 to
require that staff receive training on how to comply with relevant laws
relating to mandatory reporting of sexual abuse.
Comment. A State juvenile justice agency recommended adding
language to the standard to specify the distinction between previously
reported and never-before-reported sexual victimization.
Response. The Department does not find it necessary to distinguish
in the standard between new reports of sexual victimization and
previously reported sexual victimization. A resident's history of prior
sexual victimization or abusive behavior may contribute to medical or
mental health concerns, regardless of whether such victimization was
previously reported upon a prior admission to the facility. The
resident should be offered a follow-up meeting with a medical or mental
health practitioner within 14 days of the new intake screening, but if
the practitioner determines through such follow-up meeting that
treatment is not warranted, the facility need not provide such
services. The requirements relating to mandatory reporting laws,
confidentiality, and informed consent under the paragraphs newly
designated as Sec. 115.381(c) and (d) adequately address any legal
issues that could arise pertaining to a new report of sexual
victimization.
Comment. Two commenters raised concerns about confidentiality. A
State juvenile justice agency recommended modifying the confidentiality
provisions (designated in the final rule as Sec. Sec. 115.81(c) and
115.381(c)) to specify that any information relating to sexual
victimization or abusiveness may be provided to staff only on a need-
to-know basis to inform treatment plans and security and management
decisions. A county sheriff argued that an inmate should not be able to
maintain confidentiality regarding his or her prior abusiveness in
institutional settings, as it could imperil other inmates.
[[Page 37177]]
In addition, a State sheriffs' association raised concerns that
inquiring about an inmate's sexual history in a public setting, where
intake screenings are currently conducted, would violate the inmate's
privacy. The association expressed apprehension that facilities would
be required to build private screening rooms, which the association
suggested would raise issues of cost and space.
Response. The final standard requires that dissemination of
information related to sexual victimization or abusiveness be
``strictly limited'' to medical and mental health practitioners and
other staff, as necessary, to inform treatment plans and security and
management decisions, or as otherwise required by Federal, State, or
local law. The Department interprets this to mean that such information
shall be shared only to the extent necessary to ensure inmate safety
and proper treatment and to comply with the law. The facility retains
discretion in how to provide the necessary degree of confidentiality
while still accounting for safety, treatment, and operational issues.
Sections 115.41, 115.141, 115.241, and 115.341 do not require that
intake screenings occur in private rooms. However, the Department
expects that screening will be conducted in a manner that is conducive
to eliciting complete and accurate information.
Comment. A State juvenile probation commission requested that the
Department define the terms ``abusiveness'' and ``victimization.''
Response. In light of the rule's detailed definition of sexual
abuse, the Department does not find it necessary to define sexual
abusiveness or sexual victimization.
Comment. A State juvenile justice agency recommended replacing
``follow-up reception'' with ``follow-up appointment,'' and suggested
adding a requirement to paragraph (b) that staff ensure that the inmate
or resident is offered a follow-up appointment with a medical or mental
health provider ``and is referred to a medical practitioner when
indicated.''
Response. The Department agrees that the phrase ``follow-up
reception'' is unclear and has changed ``reception'' to ``meeting.'' As
discussed above, the Department intends for a ``follow-up meeting,'' in
contrast to an evaluation, to entail an interaction between a health
care provider and inmate or resident in which the provider focuses on
mitigating immediate mental health concerns and assessing security
risks, as well as informing decisions with regard to further treatment.
In light of the requirements for ongoing medical and mental health care
under Sec. Sec. 115.83 and 115.383, the Department does not find it
necessary for the standard to require that inmates or residents be
referred to a medical practitioner when indicated.
Access to Emergency Medical and Mental Health Services (Sec. Sec.
115.82, 115.182, 115.282, 115.382)
Summary of Proposed Rule
The standard contained in the proposed rule required that victims
of sexual abuse receive free access to emergency medical treatment and
crisis intervention services.
Changes in Final Rule
The Department has added a requirement for prisons, jails,
community confinement facilities, and juvenile facilities that victims
of sexual abuse while incarcerated be offered timely information about
and timely access to emergency contraception, in accordance with
professionally accepted standards of care.
In addition, the Department has made four clarifying changes.
First, the Department has specified that sexually transmitted
infections prophylaxis must be offered where ``medically'' appropriate,
to clarify that the assessment of whether to offer prophylaxis should
be based solely on a medical judgment. Second, the final standard
specifies that such prophylaxis must be offered in accordance with
professionally accepted standards of care. Third, the final standard
clarifies that a victim cannot be charged for any of the services
described in this standard, or required to name the abuser as a
condition of receipt of care. Finally, the Department has qualified the
word ``access'' with ``timely'' to underscore the time-sensitive nature
of emergency contraception and sexually transmitted infections
prophylaxis and to ensure that drugs are provided within their window
of efficacy.
Comments and Responses
Comment. A number of advocacy organizations commented that major
medical organizations and sexual assault treatment guides recommend the
provision of emergency contraception as a standard part of treatment
for rape victims. These commenters requested (1) that the standards
provide specific guidance regarding the provision of emergency
contraception at no cost to inmate victims who may be at risk of
pregnancy, and (2) in light of the contraceptive's time-sensitive
nature, that the standards explicitly require facilities to stock an
adequate supply of emergency contraception so that it will be
immediately available. In addition, an advocacy organization requested
that the Department clarify that pregnancy-related services and
sexually transmitted infections prophylaxis be offered without cost,
and recommended that the phrase ``where appropriate'' be replaced with
``where medically appropriate.'' Finally, one commenter remarked that
the requirement that female victims be given access to pregnancy-
related services is duplicative of Sec. Sec. 115.83, 115.283, and
115.383.
Response. The Department agrees that it is essential that inmates
at risk of pregnancy following an incident of sexual abuse be given
timely access to emergency contraception. Accordingly, the Department
has modified the standard to specify that such inmates shall be offered
timely information about and timely access to emergency contraception,
in accordance with professionally accepted standards of care, where
medically appropriate. The Department declines to specify that
facilities must stock a particular drug, but has clarified that access
to emergency contraception must be ``timely''; certainly, timeliness is
achieved only if the contraceptive is provided within its window of
efficacy. To ensure that emergency contraception and sexually
transmitted infections prophylaxis are available at no cost to the
victim, the Department has moved to the end of the standard the clause
requiring that treatment services be provided to the victim without
financial cost; the Department intends for the phrase ``treatment
services'' to encompass the provision of medical drugs. The Department
has also clarified that the determination of whether emergency
contraception or sexually transmitted infections prophylaxis should be
offered to a victim must be based solely on whether the drug is
``medically'' appropriate. Finally, to avoid duplication of Sec. Sec.
115.83, 115.283, and 115.383, the Department has eliminated the
reference to pregnancy-related services in this standard.
Comment. Some advocacy groups recommended expanding the lockup
standard to require facilities to offer detainee victims of sexual
abuse timely information about and access to all pregnancy-related
services and sexually transmitted infections prophylaxis, where
appropriate.
Response. In light of the very short-term nature of lockup
detention, the Department does not believe that it is necessary to
require lockups to provide emergency contraception or sexually
transmitted infections prophylaxis. Consistent with its obligation to
provide
[[Page 37178]]
appropriate emergency care, a lockup would transfer such a detainee to
an appropriate emergency medical provider, which would be expected to
provide such care as appropriate.
Comment. One State correctional agency remarked that ``unimpeded
access'' is nearly impossible to ensure, even in the community.
Response. The Department has preserved the requirement that access
to emergency medical and mental health care services for sexual abuse
victims be ``unimpeded'' to make clear that agencies may not impose
administrative hurdles that could delay access to these critical
services.
Comment. A State correctional agency recommended that the
Department define the term ``sexually transmitted infections
prophylaxis.''
Response. The Department intends for ``sexually transmitted
infections prophylaxis'' to encompass appropriate post-incident
treatment to reduce the risk of sexually transmitted diseases resulting
from an incident of sexual abuse, and does not find it necessary to
include a definition for that term in the final rule.
Ongoing Medical and Mental Health Care for Sexual Abuse Victims and
Abusers (Sec. Sec. 115.83, 115.283, 115.383)
Summary of Proposed Rule
The standard contained in the proposed rule required that victims
of sexual abuse receive access to ongoing medical and mental health
care, and that abusers receive access to care as well. The standard
required facilities to offer ongoing medical and mental health care
consistent with the community level of care for as long as such care is
needed.
The standard also required that known inmate abusers receive a
mental health evaluation within 60 days of the facility learning that
the abuse had occurred.
In addition, with respect to victims, the standard required that
agencies provide, where relevant, pregnancy tests and timely
information about and access to all pregnancy-related medical services
that are lawful in the community. The Department also proposed
requiring the provision of timely information about and access to
sexually transmitted infections prophylaxis where appropriate.
Changes in Final Rule
The Department has expanded the duty to provide non-emergency
medical and mental health care to victims of sexual abuse by requiring
care for individuals who were victimized in any prison, jail, lockup,
or juvenile facility rather than only for those who were victimized
``during their present term of incarceration.'' However, the Department
has clarified that such care need not be ``ongoing'' but need be
provided only ``as appropriate.''
The final standard adds a requirement that victims of sexual abuse
while incarcerated be offered tests for sexually transmitted infections
as medically appropriate, and clarifies that information about
pregnancy-related medical services must be ``comprehensive'' and access
to pregnancy-related medical services must be ``timely.''
For clarity, the Department has replaced the reference to access to
``all pregnancy-related medical services that are lawful in the
community'' with ``all lawful pregnancy-related medical services.''
The Department has also added language, identical to a provision in
Sec. 115.82, that requires that all treatment services under this
standard be made available without financial cost to the victim and
regardless of whether the victim names the abuser or cooperates with
any investigation arising out of the incident.
Finally, the Department has made several clarifying changes to the
requirement that facilities conduct mental health evaluations of inmate
abusers and offer treatment when deemed appropriate: The final standard
specifies that facilities need only ``attempt'' to conduct mental
health evaluations; indicates that this clause applies only to inmate-
on-inmate abusers; and no longer requires that only ``qualified''
mental health practitioners be permitted to determine whether it is
appropriate to offer treatment. The final standard also clarifies the
wording of references to sexual abuse victims.
Comments and Responses
Comment. A State juvenile justice agency noted that the phrase
``resident victims'' could refer to individuals who were victimized
prior to placement in the facility. For clarity, the commenter also
requested that the standard uniformly refer to victims of sexual abuse
as ``residents who, during their term of incarceration, have been
victimized.''
Response. The Department intends for the standard to encompass
individuals who were victimized while in another facility. Accordingly,
the final standard clarifies that medical and mental health evaluation
and, as appropriate, treatment must be offered to all inmates or
residents who have been victimized by sexual abuse in any facility.
Comment. A county sheriff predicted that a large percentage of
inmates will claim to have been victimized, which would overload the
system and impose substantial additional costs.
Response. The final standard requires an evaluation and treatment
``as appropriate.'' To the extent that an inmate falsely alleges prior
victimization, such treatment would not be appropriate. Furthermore,
all facilities are already obligated to provide adequate care to meet
inmates' serious mental health needs. See Estelle v. Gamble, 429 U.S.
97, 104 (1976). By providing evaluation and treatment to sexual abuse
victims ``as appropriate,'' facilities are simply providing
constitutional conditions of care.
Comment. Numerous commenters expressed support for the requirement
that women who become pregnant as a result of rape receive access to
pregnancy tests and timely information about and access to pregnancy-
related services. Several commenters requested that the standard be
clarified to reflect the fact that female inmates retain the right to
an abortion. These commenters recommended modifying the standard to
ensure that victims who become pregnant as a result of sexual abuse
receive adequate information to make decisions about their pregnancy as
well as any assistance necessary to carry out those decisions.
In particular, a group of women's rights organizations requested
that a woman who becomes pregnant as a result of sexual abuse while
incarcerated be provided with comprehensive and unbiased counseling on
options, including information on how pregnancy will affect the
conditions of her confinement and information on the full spectrum of
her parental rights and responsibilities.
These commenters also requested that the standards specify that an
incarcerated rape victim be able to terminate her pregnancy at no
financial cost, and that counseling include an explanation that she
will not have to pay for her medical care, whether she chooses to
terminate the pregnancy or carry to term. In addition, these commenters
requested that facilities be required to protect from coercion and
retaliation women who accuse staff members of rape and then choose to
carry to term, and that the standards specify that facilities must
provide transportation for abortion care, distance and cost
notwithstanding.
Finally, the commenters criticized as excessively vague the
proposed standard's requirement that pregnant
[[Page 37179]]
rape victims receive timely information about and access to all
pregnancy-related medical services ``that are lawful in the
community.'' Commenters expressed concern that facility staff may take
an unduly narrow view in evaluating which services are ``lawful in the
community,'' possibly concluding that because there is no abortion
provider in the county, abortion services are not ``lawful in the
community.'' These commenters requested that the standard be revised to
clarify that victims have access to all pregnancy-related medical
services, including the right to terminate a pregnancy or carry to
term.
Response. The Department agrees that women who are sexually abused
while incarcerated and become pregnant as a result must receive
comprehensive information about and meaningful access to all lawful
pregnancy-related medical services at no financial cost. The final
standard includes several clarifying revisions. First, the Department
has specified that such victims must receive timely and comprehensive
information about all lawful pregnancy-related medical services, and
that access to pregnancy-related medical services must be timely.
Second, the Department has removed the phrase ``that are lawful in the
community'' and instead required facilities to provide information
about and access to ``all lawful'' pregnancy-related medical services.
Third, the Department has added a requirement that treatment services
provided under this standard be made available without financial cost
and regardless of whether the victim names the abuser. This provision
mirrors the requirement under Sec. Sec. 115.82, 115.282, and 115.382
that emergency services must be made available at no financial cost to
the victim.
The Department believes that the commenters' requests regarding the
provision of specific information are encompassed by the requirement
that facilities provide ``comprehensive'' information about all lawful
pregnancy-related medical services, and that additional guidance on
transportation is unnecessary given the requirement that victims be
provided ``timely access'' to all lawful pregnancy-related medical
services--which necessarily includes transportation. Finally, while the
Department appreciates commenters' concern about the risk of coercion
or retaliation by staff members accused of sexual abuse in cases where
a victim becomes pregnant, the Department believes that the protections
against retaliation provided in Sec. Sec. 115.67, 115.167, 115.267,
and 115.367 are adequate to address this risk.
Comment. A national coalition of LGBTI advocacy organizations
recommended that the standards expressly require facilities to offer
testing for HIV and other sexually transmitted infections, accompanied
by counseling before and after the test and contingent upon written
consent from the inmate. However, they urged that victims should not be
required to undergo testing and not be punished for declining testing.
A State juvenile justice agency also recommended testing for sexually
transmitted infections.
Response. The Department agrees that the standards should expressly
require that facilities offer testing for sexually transmitted
infections, and has added a new paragraph (f) that requires facilities
to offer such tests, as medically appropriate, to victims of sexual
abuse while incarcerated. The language stating that victims ``shall be
offered'' tests makes clear that victims are not required to undergo
such testing. The Department trusts that medical practitioners
administering such tests will adhere to professionally accepted
standards for pre- and post-test counseling and written consent.
Comment. Several State correctional agencies, sheriff's offices,
and sheriff's associations asserted that conducting a mental health
evaluation of abusers and offering treatment where deemed appropriate
would be prohibitively costly. A State correctional agency stated that
the mental health care requirements for abusers could be burdensome and
that victims should remain the top priority. However, an advocacy
organization agreed with the Department's statement in the NPRM that
the benefit of reducing future abuse by known abusers justifies the
additional costs.
Response. The Department remains of the view that the benefit of
reducing future abuse by known inmate-on-inmate or resident-on-resident
abusers--by avoiding incidents and improving the perception of safety
within the facility--justifies the cost of mental health evaluations
and, where appropriate, treatment. However, the Department underscores
that, as stated in the NPRM, the standard is not intended to require a
specialized comprehensive sex offender treatment program, which could
impose a significant financial burden. The Department believes that
requiring agencies to offer reasonable treatment, when deemed
appropriate by a mental health practitioner, is justifiable in light of
the anticipated costs and benefits.
The Department agrees that mental health care for victims should be
the priority and accordingly has provided more detail on the minimum
standards of care for victims than for abusers. The standard specifies
that evaluation and treatment of sexual abuse victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody. The standard
further requires that facilities provide victims of sexual abuse with
medical and mental health services consistent with the community level
of care.
Comment. Numerous commenters expressed concern over the requirement
that facilities provide a mental health evaluation of all known inmate-
on-inmate abusers within 60 days. Several correctional agency
commenters suggested that 60 days is too long, and recommended reducing
the timeframe to 30 days, 14 days, 7 days, or 72 hours. An advocacy
organization stated that the 60-day requirement is incompatible with
the shorter average length of stay in juvenile facilities and
recommended a seven-day timeframe for juveniles, which the commenter
asserted is in line with the relevant standards established by the
National Commission on Correctional Healthcare.
Several commenters took the opposite position, and recommended
extending the timeframe or removing it all together. A State
correctional agency observed that this requirement might pose
difficulties for smaller agencies, which may lack in-house staff
capable of conducting a mental health evaluation; as a compromise, the
commenter recommended requiring agencies to arrange for an evaluation
within 60 days and to conduct the evaluation as soon as practicable
thereafter.
One State correctional agency suggested that conducting an
evaluation within 60 days is unrealistic due to a State law requirement
that, where a determination that an inmate is a sex offender is made
pursuant to procedures established by the State department of
corrections, such determination must be made following an adversarial
hearing conducted by a licensed attorney serving as an administrative
hearing officer.
Response. The Department has preserved the 60-day requirement as
the best balance of the various concerns noted by commenters. The
Department acknowledges that certain inmates with a history of
abusiveness will be transferred or released from the facility before
undergoing a mental health
[[Page 37180]]
evaluation or receiving treatment. However, smaller facilities may find
it challenging to find a practitioner equipped to provide treatment to
abusers, and very short-term treatment is likely to be ineffective. The
Department has therefore constructed the standard so as to afford
facilities some flexibility.
The 60-day clock starts only upon the agency's ``learning of such
abuse history''; thus, where an agency is required to hold a hearing in
order to determine whether an inmate is an abuser, the treatment need
not be offered until the determination is made.
Comment. Two State correctional agencies recommended that
facilities be required only to perform mental health assessments,
rather than evaluations, on known inmate-on-inmate abusers.
Response. An assessment is unlikely to provide a mental health
practitioner with sufficient information on which to base a
determination about future treatment. Thus, the final standard retains
the evaluation requirement.
Comment. Several agency commenters raised concerns about the
requirement that known abusers be offered treatment where deemed
appropriate by a mental health practitioner, asserting that many
facilities lack the time or expertise to provide effective treatment to
abusers. One agency suggested that ``supportive therapy'' would be a
better requirement than ``treatment.'' Another State correctional
agency worried about the legal implications of compelling an alleged
abuser with a criminal case pending to participate in this program.
Response. The final standard requires only that the facility offer
an evaluation and, if the inmate consents to that evaluation, offer
treatment ``when deemed appropriate by mental health practitioners.''
The standard does not mandate the type or extent of treatment, but
leaves it to the discretion of the mental health practitioner to
recommend therapy, a structured treatment program, medication, or
whatever course of action is best suited for the needs of the specific
inmate and the capabilities of the facility. The standard does not
require that abusers be compelled to participate in treatment.
The Department notes that the standard only requires that a known
inmate-on-inmate or resident-on-resident abuser be offered treatment
where deemed appropriate by a mental health practitioner. The standard
does not require the agency to compel participation.
Comment. A county correctional agency asked how long a facility
would be required to provide treatment.
Response. The standard's reference to treatment that is
``appropriate'' leaves it to the facility's mental health practitioners
to determine the length of treatment.
Comment. A State sheriff's association and a county correctional
agency asked whether the standard requires the agency to provide
treatment for abuse that did not occur in the facility. A State
juvenile justice agency observed that the standard does not distinguish
between abuse that occurred prior to incarceration and abuse that
occurred during incarceration.
Response. The final standard clarifies that facilities must offer
medical and mental health evaluation and, as appropriate, treatment to
all inmates or residents who have been victimized by sexual abuse in
any prison, jail, lockup, or juvenile facility.
Comment. A State correctional agency suggested that the standard
refer to ``inmate-on-inmate'' and ``resident-on-resident abusers''
rather than ``inmate abusers'' and ``resident abusers''. One State
correctional agency wondered why the standard seemingly applied to
staff members who have abused inmates or residents. An individual
commenter proposed classifying individuals as ``known resident
abusers'' by three measures: Criminal history indicating that the
resident has been found guilty of a felony sex offense or a misdemeanor
sex offense involving sexual abuse; an admission at any time to having
committed sexual abuse regardless of prosecution; or a finding of abuse
following a sexual abuse allegation and subsequent investigation. A
State department of corrections asked whether ``known inmate abuser''
includes someone who committed inmate-on-inmate abuse many years ago.
An organization that advocates for disability rights proposed adding a
statement that the relevant abuse be defined as having occurred within
the past two years in the facility in which the individual is currently
confined, and two State juvenile justice agencies requested revising
the standard to define ``known resident abusers'' as residents who have
committed sexual abuse or sexual harassment during their present term
of incarceration.
Response. The final standard clarifies that evaluation and
treatment for abusers is intended for ``known inmate-on-inmate
abusers'' or ``known resident-on-resident abusers.'' It does not
encompass inmates or residents who committed a sex offense in the
community, or staff who have abused inmates or residents. However, the
Department declines to impose a time limit on classification as an
inmate-on-inmate or resident-on-resident abuser, or a requirement that
the abuse must have occurred in the facility in which the individual is
currently confined. The safety risks posed by an individual who has
previously committed sexual abuse while in a confinement facility, and
the need for mental health care, may persist regardless of where or
when the incident occurred.
Finally, in light of the unfortunate reality that sexual harassment
is pervasive among inmates and residents, the Department believes that
a requirement to provide mental health evaluations and treatment for
all inmates and residents who have committed sexual harassment would
impose an excessive burden upon facilities.
Comment. A State correctional agency requested that the standard
allow for mental health evaluations to be conducted by staff other than
medical and mental health practitioners.
Response. While the standard does not specify that only medical and
mental health practitioners may conduct the mental health evaluation,
generally accepted professional standards dictate that only a qualified
and trained medical or mental health practitioner can adequately
evaluate an individual's mental health needs and determine when it is
appropriate to offer treatment.
Comment. A company that owns and manages prisons and detention
centers asserted that the requirement that mental health practitioners
have special qualifications is too great a burden to meet. A State
correctional agency recommended expanding the definition of ``qualified
mental health practitioner'' to include a provider ``who has also
successfully completed specialized training for treating sexual
abusers.''
Response. The Department agrees that it may be challenging for
smaller facilities to employ mental health practitioners with
documented expertise in sexual victimization or sexual abuse, and has
removed the phrase ``qualified mental health practitioner.'' The final
standard requires facilities to offer treatment to an inmate-on-inmate
or resident-on-resident abuser when deemed appropriate by ``mental
health practitioners.''
Comment. The AJA and a State jail wardens' association commented
that it would be difficult for small, rural jails to provide treatment
to abusers. They stated that jails are unlikely to have on-site mental
health services, and that the nearest mental health facility may object
to treating inmates on their premises
[[Page 37181]]
due to the lack of a secure area. On the other hand, a county sheriff's
office questioned why jails were excluded from the provision relating
to the evaluation and treatment of abusers.
Response. The Department agrees it may be difficult for some jails
to evaluate and treat abusers. Accordingly, the final standard
preserves the exemption for jails from the provision requiring
facilities to attempt to conduct a mental health evaluation for known
abusers and to offer treatment when deemed appropriate by mental health
practitioners.
Comment. A State juvenile justice agency recommended that treatment
of resident-on-resident abusers in juvenile facilities not be
identified as sex offender treatment unless the resident has been
adjudicated for the offense.
Response. The Department trusts that facilities will refer to the
treatment of known resident-on-resident abusers in a manner that is
accurate and considerate of the resident's privacy needs.
Comment. A juvenile detention center recommended that the
Department promulgate separate standards for short- and long-term
juvenile facilities.
Response. The Department concludes that it is essential that all
juvenile facilities comply with the standard for ongoing medical and
mental health care, including the provisions relating to treatment for
known resident-on-resident abusers. The final standard requires
agencies to attempt to conduct a mental health evaluation of known
abusers within 60 days, recognizing that facilities that house inmates
for shorter periods of time may not be able to provide such an
evaluation. While ideally all known abusers would be offered such
evaluations, the Department notes also that those who are confined for
shorter periods of time present a smaller risk of committing further
abuse.
Sexual Abuse Incident Reviews (Sec. Sec. 115.86, 115.186, 115.286,
115.386)
Summary of Proposed Rule
The standard contained in the proposed rule set forth requirements
for sexual abuse incident reviews, including when reviews should take
place and who should participate. Unlike the sexual abuse
investigation, which is intended to determine whether the abuse
occurred, the sexual abuse incident review is intended to evaluate
whether the facility's policies and procedures need to be changed in
light of the alleged incident. The Department proposed that a review
occur at the conclusion of every investigation of an alleged incident,
unless the investigation concludes that the allegation was unfounded.
The Department further required the review to consider: (1) Whether
changes in policy or practice are needed to improve the prevention,
detection, or response to sexual abuse incidents similar to the alleged
incident; (2) whether race, ethnicity, sexual orientation, gang
affiliation, or group dynamics in the facility played a role; (3)
whether physical barriers in the facility contributed to the incident;
(4) whether staffing levels need to be changed in light of the alleged
incident; and (5) whether more video monitoring is needed.
Changes in Final Rule
In order to ensure that an incident review results in timely
action, the final standard includes a new paragraph (b) specifying that
the review should ordinarily occur within 30 days of the conclusion of
the investigation. In the paragraph formerly designated as (b), now
designated as (c), the Department has replaced ``upper'' with ``upper-
level.'' In what was paragraph (c)(2), now (d)(2), the Department has
revised the list of factors to be considered during the review by
replacing ``sexual orientation'' with ``gender identity; lesbian, gay,
bisexual, transgender, or intersex identification, status, or perceived
status.'' In what was paragraph (c)(6), now (d)(6), ``PREA coordinator,
if any'' has been changed to ``PREA compliance manager,'' and the
Department has clarified that the review team's report must include any
determinations made pursuant to paragraphs (d)(1)-(d)(5). In addition,
the final standard requires the facility either to implement the review
team's recommendations for improvement or document its reasons for not
doing so.
Comments and Responses
Comment. Several commenters recommended that the standard specify a
timeline for the review. Two advocacy organizations suggested, in
particular, that the Department implement measurable benchmarks,
including a timeline, in order to ensure that the results of an
incident review translate into action and to assist the auditor in
measuring compliance with the review provision.
Response. The final standard states that the sexual abuse incident
review shall ordinarily occur within 30 days of the conclusion of the
sexual abuse investigation.
Comment. An advocacy group recommended requiring the facility head
and PREA coordinator to determine, after receiving the report, which
recommendations to carry out and to document benchmarks and a timeline
for doing so as an addendum to the report.
Response. The Department believes that the timeline added as the
new paragraph (b) will suffice to ensure timely compliance with the
standard. The required submission of the report of the review team's
findings and any recommendations to both the facility head and the PREA
compliance manager also ensures effective oversight. In addition,
facilities must either implement the recommendations for improvement or
document the reasons for not doing so, which will encourage thoughtful
reform. While the Department encourages facilities to develop a plan
for implementing any revisions to their policies, the Department
concludes that it is not necessary to require documentation of
benchmarks and a timeline.
Comment. Some commenters recommended that the Department add sexual
harassment to this standard, because sexual harassment is often a
precursor to sexual abuse.
Response. The Department has incorporated coverage of sexual
harassment into the final standards where feasible. The Department
concludes that adding sexual harassment to the incidents requiring
review would needlessly complicate the process by introducing a
separate process for sexual harassment incidents. Under Sec. 115.11,
facilities are already required to maintain a written zero-tolerance
policy toward sexual harassment. The Department believes that the cost
of requiring review of sexual harassment incidents, which may be far
more numerous than incidents of sexual abuse, could impose an
unnecessary burden upon facilities and make compliance with the
standard more difficult.
Comment. Commenters recommended defining ``substantiated,''
``unsubstantiated,'' and ``unfounded'' to ensure that the meaning of
the findings is understood.
Response. Section 115.5 contains definitions of ``substantiated
allegation,'' ``unfounded allegation,'' and ``unsubstantiated
allegation.''
Comment. Some commenters recommended that the Department require
review teams to consider, in addition to the areas listed in the
standard, whether training curricula should be modified or expanded. A
juvenile advocacy organization also recommended that incident reviews
include input from victims, witnesses, family members, and guardians on
how
[[Page 37182]]
to improve the investigation and response processes.
Response. The Department concludes that the limited benefits from
these recommended revisions would be outweighed by the additional
burdens that would be imposed by adding such requirements for every
post-incident review. Of course, the Department encourages facilities
to reexamine training curricula periodically based upon accumulated
knowledge gleaned from the facilities' experience in combating sexual
abuse. And, as the commenter suggests, facilities may wish to solicit
input from victims and witnesses as a guide to improving their
practices.
Comment. Several commenters recommended that the Department clarify
who constitutes an ``upper-level management official'' for purposes of
participating in a sexual abuse incident review.
Response. This term cannot be defined with precision; it properly
affords facilities discretion to make reasonable judgments as to which
officials should participate.
Comment. A victim services organization recommended requiring that
the upper-level management responsible for review be independent from
the investigation and have authority to make agency-level changes in
response to information received from the reviews.
Response. The Department believes that it is unnecessary for the
standard to regulate at this level of detail. Rather, it is preferable
to leave sufficient flexibility to the facility to organize its staff
and resources to conduct an effective review. In particular, it is
impractical to require the involvement of an administrator with the
authority to make agency-level changes, given that the review is
intended to occur at the facility level.
Comment. Commenters suggested that, in order to ensure compliance
with the review's findings, the review team should include the
facility's PREA coordinator, and the report should be submitted to the
agency head for review and implementation of recommended changes.
Response. The Department declines to revise the relevant provision,
which requires that the review team's findings and recommendations for
improvement be submitted to the facility head and to the PREA
coordinator (renamed as the PREA compliance manager in the final
standards). The Department believes that oversight by the facility head
and PREA compliance manager will ensure implementation without
needlessly micromanaging the facility's review process.
Comment. Some commenters questioned whether the consideration of
race, ethnicity, sexual orientation, gang affiliation, and other group
dynamics as possible motivations for an alleged incident may require
special training and, if so, whether the cost of that training would
hinder compliance.
Response. The Department believes that additional training is
unnecessary in light of the range of training topics already required
in Sec. 115.31.
Comment. A juvenile justice agency questioned whether the review
should make such a determination if a criminal investigation is
proceeding at the same time.
Response. The final standard states that the incident review should
occur at the conclusion of every sexual abuse investigation, unless the
allegation has been determined to be unfounded. If the facility's
investigation is put on hold during a criminal investigation, the
facility can wait to conduct the incident review until the
investigation has concluded. Furthermore, the incident review required
by this standard is intended to allow the facility to identify systemic
problems in policies, practices, dynamics, physical barriers, staffing
levels, and monitoring that may have contributed to an incident or
allegation of sexual abuse, so that the facility can improve conditions
to avoid future incidents or allegations. Such a review should not
interfere with a criminal investigation.
Comment. Several advocates recommended that gender identity be
included in the list of possible motivating factors to be considered.
Response. The Department has added gender identity to the list of
possible motivating factors to be considered.
Data Collection (Sec. Sec. 115.87, 115.187, 115.287, 115.387)
Summary of Proposed Rule
The standard contained in the proposed rule specified the incident-
based data that each agency is required to collect in order to detect
possible patterns and to help prevent future incidents. The Department
proposed that the agency be required to collect, at a minimum,
sufficient data to answer fully all questions in the most recent
revision of the Survey of Sexual Violence (SSV) conducted by BJS. The
Department further proposed that the agency collect data from multiple
sources (e.g., reports, investigation files, and sexual abuse incident
reviews), that it aggregate the data at least annually, that it obtain
the corresponding data from all private facilities with which it
contracts for confinement, and that it make this data available to the
Department upon request.
Changes in Final Rule
The final standard includes three small changes. Paragraph (c) now
refers to the Department as whole rather than BJS. In paragraph (d),
``collect data from multiple sources'' has been changed to ``maintain,
review, and collect data as needed from all available incident-based
documents.'' In paragraph (f), ``calendar'' has been added before
``year.''
Comments and Responses
Comment. Several commenters asserted that the data collection and
review requirements in this standard, and in Sec. Sec. 115.88 and
115.89, would be overly burdensome. Some State correctional agencies
and a county sheriffs' association suggested that the large collection
of data would require significant hiring of new staff or staff
reallocation. A State juvenile justice agency stated that meeting the
standard would require it to redesign its computer systems and purchase
data collection software.
A county juvenile justice agency suggested that this standard would
be especially burdensome for smaller juvenile facilities such as group
homes and private placement facilities. The commenter remarked that if
those facilities are deemed non-compliant with the PREA standards due
to an inability to provide data under Sec. 115.387, the agency would
likely need to cancel contracts with those facilities in order to
protect itself and the county from liability. The commenter suggested
that canceling contracts with such facilities would exacerbate
difficulties in placing minors ordered removed from parents' custody.
Furthermore, the commenter stated, delays could result in longer waits
in juvenile detention facilities and in the occupation of beds needed
for pre-adjudication minors, and the cost of having to provide more
beds long-term would be substantial. Two State correctional agencies
objected that the standard would require the agencies to increase or
realign staff, without funding to match.
Response. The Department acknowledges that facilities may need to
incur costs to comply with the standards for data review and
collection. Yet these costs should be manageable, and exceeded by the
benefits that will accrue from managing and publishing the data in
accordance with these standards. Many, if not all, of these agencies
have existing reporting
[[Page 37183]]
requirements and may, therefore, have existing support staff that can
be trained to fulfill the functions outlined in these standards. The
Department is not persuaded that this standard will impose a
disproportionate cost on smaller agencies and facilities--which, in
keeping with their size, should have correspondingly fewer allegations
to document and report.
Comment. Several commenters recommended adding sexual harassment to
this standard.
Response. The Department declines to make this change, largely for
the same reasons discussed above with respect to Sec. 115.86. While
sexual harassment may be a precursor to sexual abuse, it is both more
frequent and less damaging than sexual abuse. Requiring the collection
of incident-based data on sexual harassment would therefore impose a
greater burden and result in fewer benefits than requiring the same
data for incidents of sexual abuse.
Comment. Some commenters expressed concern that because the data
collection requirement applies to all allegations regardless of
legitimacy, it could overburden facilities. One juvenile agency
recommended restricting the requirement to substantiated allegations.
Response. For allegations that are not substantiated, the data
collection burden is minimal: to collect data necessary to answer all
questions from the most recent version of the SSV.\37\ The SSV requests
detailed information only for substantiated incidents; for incidents
that are determined to be unsubstantiated or unfounded, or subject to
an ongoing investigation, the current SSV requires only that the
facility list the number of each type of allegation, divided into
sexual abuse and sexual harassment.
---------------------------------------------------------------------------
\37\ The latest version of the SSV can be found at http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=406.
---------------------------------------------------------------------------
Comment. A few juvenile agencies questioned the requirement in
paragraph (d) that data be collected from multiple sources, because
multiple sources may not always be needed to compile the requisite
aggregate data.
Response. The Department agrees and has revised paragraph (d)
accordingly.
Comment. An administrative office of the courts suggested that
``Survey of Sexual Violence'' should read ``Survey on Sexual
Violence.''
Response. The Department has not made this change; the BJS data
collection is titled ``Survey of Sexual Violence.''
Comment. Some commenters suggested broadening the scope of who is
deemed in compliance with the regulation. A State juvenile justice
agency recommended, in particular, that jurisdictions that currently
use standardized instruments such as the Performance-based Standards
(PbS) and Community-based Standards (CbS) should be deemed
automatically in compliance for purposes of data collection. The
commenter noted that standardized instruments and uniform sexual abuse
definitions are already used by PbS and CbS programs operating in 28
States and the District of Columbia and suggested that States
participating in PbS or CbS programs should be considered to be in
compliance with this standard by virtue of their participation.
Response. The Department sees no reason for States that have PbS
and CbS programs to be deemed automatically in compliance. However,
such States, like all entities that currently compile data, may not
need to make significant adjustments to their data collection policies
if their collections currently include, as required by the standard,
data necessary to answer all questions from the most recent version of
the SSV.
Comment. A county sheriff's office noted that paragraph (e)
requires agencies to collect data from private facilities with which
they contract for confinement, whereas the most recent revision to the
SSV excludes contracted facilities because BJS contacts these
facilities directly.
Response. The Department believes that making public agencies
responsible for collecting data from facilities that they supervise
directly and from private facilities with whom they contract for
confinement is the best way to ensure compliance. Centralizing data
collection in this way will maximize the likelihood of effective
oversight by the agency and the Department.
Comment. The same commenter requested clarification as to whether
paragraph (f) requires a separate report or the information will be
provided by BJS to the relevant Department components. The commenter
also inquired as to whether, if the Department intends to contact
agencies directly, it will request information different from the
information required by the SSV.
Response. Pursuant to the wording of the standard, the Department
reserves the right to request all data compiled by the agency. The data
will not be obtained from BJS. Under its authorizing legislation, BJS
is not allowed to release publicly information that could identify
victims or perpetrators. In addition, PREA provides that BJS must
ensure the confidentiality of participants in the PREA-related surveys
that it conducts. See 42 U.S.C. 15603(a)(1).
Comment. A State juvenile justice agency recommended deleting
paragraph (f) as duplicative of reporting requirements in other
standards. If the paragraph is retained, the commenter recommended that
the Department define ``all such data'' and clarify facilities'
reporting obligations by specifying how far in advance and under what
circumstances a request for data may be made (e.g., annually or only in
connection with an audit). The commenter further proposed amending the
paragraph to provide a specific timeframe for an agency to prepare and
provide its responses. Additionally, the commenter recommended that the
Department require that (as in Sec. 115.89(c)) ``when data is
aggregated, confidential information shall be redacted and personal
identifiers shall be removed.''
Response. The Department does not believe that paragraph (f) is
duplicative. Rather, it serves an additional function in requiring that
the agency make its data available to the Department upon request. By
``all such data,'' the Department references all data collected
pursuant to this standard. The Department declines to create a separate
framework for the timing of requests from the Department, which could
unnecessarily hamper the Department's flexibility in obtaining data as
needed. Furthermore, pursuant to Sec. 115.88, each agency will be
required to review the data, prepare an annual report of its findings,
and make that report available to the public through the agency's Web
site. Finally, the Department declines to add a redaction requirement--
the interest in confidentiality regarding a release of data to the
public does not apply to the release of information to the Department.
Comment. The same agency recommended that the Department add
``calendar'' after ``previous'' in paragraph (f) to clarify the meaning
of ``previous year.'' Because the SSV requires aggregated data for the
previous calendar year, the commenter suggested that the Department use
the same period for data collection.
Response. The Department agrees and has revised paragraph (f)
accordingly.
Comment. A State juvenile justice agency asked that data collected
by the State agency from private facilities be limited to those that
are in the same jurisdiction, because allegations of abuse reported
from an out-of-State provider will be investigated by that
jurisdiction's law enforcement. The commenter further recommended that
[[Page 37184]]
data requested by the Department be limited to information provided in
the SSV and that the Department provide sufficient advance time to
submit this information.
Response. The Department believes that proper oversight of the
collection and review of data must come through the agencies, in
conjunction with the Department. Because agencies contract with private
entities for confinement, they are responsible for reviewing the data
from these entities, even where a private facility may belong to a
different jurisdiction. The Department further observes that limiting
the information that the Department can seek to what is required by the
SSV, and limiting the timeframe in which this information can be
sought, would diminish the Department's effectiveness in assessing data
collected by agencies under this standard.
Comment. Several advocates recommended that the Department adopt
NPREC supplemental immigration standard ID-11, which would require
that, for each incident of alleged sexual abuse, data be collected
regarding whether the alleged perpetrator or victim is an immigration
detainee.
Response. The most recent version of the SSV does not contain
``immigration detainee'' as a data point, and the Department declines
to impose this additional burden on correctional agencies.
Data Review for Corrective Action (Sec. Sec. 115.88, 115.188, 115.288,
115.388)
Summary of Proposed Rule
The standard contained in the proposed rule described how the
collected data should be analyzed and reported. The Department proposed
that agencies be required to use the data to identify problem areas, to
take ongoing corrective action, and to prepare an annual report for
each facility and for the agency as a whole. In order to promote agency
accountability, the proposed standard further mandated that the report
compare the current year's data with data from prior years and provide
an assessment of the agency's progress in addressing sexual abuse. The
proposed standard required that the agency make its report publicly
available through its Web site or other means. The proposed standard
allowed agencies to redact specific material when publication would
present a clear and specific threat to the safety and security of a
facility, as long as the nature of the redacted material is indicated.
Changes in Final Rule
The Department has reviewed and considered commenters' suggested
changes to this standard but has made no substantive changes.
Comments and Responses
Comment. A State sheriffs' association contended that making
agencies include an annual comparison would be labor-intensive; the
association recommended that, instead, the Department set a broader
timeframe for evaluating an agency's progress in addressing sexual
abuse. The commenter noted that annual reports may be appropriate for
agencies with higher incidence of sexual abuse, but would be
impracticable for smaller facilities.
Response. The Department has weighed the costs and benefits of
various timelines for reporting and believes that an annual report will
best fit the various purposes of the reporting requirements, including
effective oversight, transparency in making information regularly
available to the public, and uniformity across agencies and facilities.
Because data collection is keyed to the calendar year, it is
appropriate for the reporting requirement to be annual as well. To vary
the timelines of the reporting requirement on the basis of facility
size would introduce needless complexity and make it more difficult for
agencies that supervise facilities of varying sizes to perform the
essential task of reviewing data to implement needed improvements in
policies and practices. Additionally, facilities of all sizes already
have annual review requirements in a wide range of other areas.
Requiring an annual report will ensure consistency with other reporting
requirements and will help assess progress in meeting the goals of
PREA.
Comment. A State juvenile justice agency suggested that the
Department specify what ``other means'' would be acceptable for making
the annual report readily available to the public. A State sheriffs'
association also noted that the preparation of the annual report would
impose extra costs for support staffing and that additional funds would
be needed to cover the cost of changing the Web site and adding
material to it.
Response. Posting the annual report online will maximize public
visibility and accessibility. Only agencies that lack a Web site may
make the report available to the public through other means. Such means
might include, for example, submitting the report to the relevant
legislative body.
The Department recognizes that the preparation of the report will
incur support staff time and effort, but believes that the cost of
adding material to the Web site will be minimal and outweighed by the
benefits of public accessibility.
Comment. Various commenters recommended that the Department revise
the standard to encourage facilities to implement changes in response
to sexual abuse incidents in an ongoing manner, rather than in response
to data aggregated annually. An advocacy organization stated that if
agencies are required to compile aggregate data only once per year,
they might miss critical opportunities to implement changes to
practices, policies, staffing, training, and monitoring. Accordingly,
the commenter recommended that paragraph (a) be revised by adding at
the beginning ``[a]nnually and after significant incidents.'' A
juvenile advocacy organization suggested deleting ``and aggregated''
and encouraging facilities to make appropriate changes to policies and
practices on an ongoing, rather than yearly, basis.
Response. The requirement that data be collected and aggregated
annually is a floor, not a ceiling. Requiring an annual report will
properly facilitate compliance with the data reporting and review
requirements without overly burdening agencies. Mandating a more
frequent review could prove costly for some agencies and may be of
little additional benefit. The standard appropriately leaves to agency
discretion whether to collect aggregate data more frequently and how to
respond to incidents and concerns in an ongoing way. Implementing the
commenters' proposals would restrict agencies' ability to comply with
the standard in a manner that most effectively utilizes their limited
resources.
Data Storage, Publication, and Destruction (Sec. Sec. 115.89, 115.189,
115.289, 115.389)
Summary of Proposed Rule
The standard contained in the proposed rule provided guidance on
how to store, publish, and retain data. The Department proposed that
data must be securely retained for at least ten years after the date of
initial collection unless Federal, State, or local law requires
otherwise. In addition, the proposed standard required that agencies
make aggregated data publicly available through their Web sites or
other means, after removing all personal identifiers.
[[Page 37185]]
Changes in Final Rule
The Department has added language to clarify that ``sexual abuse
data'' in paragraph (d) refers to data collected pursuant to Sec. Sec.
115.87, 115.187, 115.287, and 115.387.
Comments and Responses
Comment. A county sheriff's office questioned whether ``sexual
abuse data'' refers to the sexual abuse incident review, the data
reported to BJS through the SSV, or the public reports published on the
agency's Web site. The commenter noted that if ``sexual abuse data''
refers to all records created during the sexual abuse investigation,
then the standard would conflict with the record-retention requirement
of Sec. 115.71.
Response. The Department has revised the standard to clarify that
``data'' refers to data that the agency collects pursuant to Sec.
115.87. Section 115.71 covers a different set of records and therefore
does not conflict with Sec. 115.87. Specifically Sec. 115.71 requires
that agencies retain written reports that document administrative and
criminal investigations for the duration of the alleged abuser's
incarceration or employment by the facility, plus five years. Section
115.89, by contrast, requires that the agency retain for at least ten
years after the date of its initial collection (unless otherwise
required by law) accurate uniform data for each allegation, using a
standardized instrument and set of definitions, including at a minimum
the data necessary to answer all questions from the most recent version
of the SSV. Put differently, Sec. 115.71 covers written reports and
the associated records; Sec. 115.89 covers statistics. While it is
true that the agency can consult investigative findings as part of its
review and collection of incident-based and aggregate data, the latter
data are separate from the investigative records themselves and give
rise to the different reporting requirements contained in this
standard. The differing retention requirements, therefore, do not
conflict.
Comment. Two juvenile justice agencies recommended deleting
paragraph (b) on the basis that the requirement in Sec. 115.388 to
publish an annual report and to make the report available on the
agency's Web site already includes a requirement to publish the
aggregated sexual abuse data.
Response. Section 115.388 requires agencies to create an annual
report documenting their findings and corrective actions based on the
aggregated data, but does not require publication of the actual data.
The instant standard, by contrast, governs the retention and
publication of the data. Specifying a separate requirement for the
publication of the data will ensure that agencies can be held
accountable for their findings and corrective actions by allowing the
public to inspect the data on which these findings and actions were
based.
Auditing and State Compliance (Sec. Sec. 115.93, 115.193, 115.293,
115.393, 115.401, 115.402, 115.403, 115.404, 115.405, 115.501)
Summary of Proposed Rule
In the proposed rule, the Department declined to resolve how
frequently, and on what basis, audits should be conducted. Determining
that further discussion was necessary in order to assess these issues,
the Department included in the NPRM several questions regarding the
nature and scope of audits.
The standard contained in the proposed rule did specify the
requirements for an audit to be considered independent. If an agency
uses an outside auditor, the proposed standard required that the agency
ensure that it not have a financial relationship with the auditor for
three years before or after the audit, other than payment for the audit
conducted. The proposed standard also specified that the audit may be
conducted by an external monitoring body that is part of, or authorized
by, State or local government, such as a government agency or nonprofit
entity whose purpose is to oversee or monitor correctional facilities.
In addition, the proposed standard allowed an agency to utilize an
internal inspector general or ombudsperson who reports directly to the
agency head or to the agency's governing board.
The proposed standard further stated that the Department will
prescribe methods governing the conduct of such audits, including
provisions for reasonable inspections of facilities, review of
documents, and interviews of staff and inmates, as well as the minimal
qualifications for auditors.
The proposed standard provided that an agency shall enable the
auditor to enter and tour facilities, review documents, and interview
staff and inmates to conduct a comprehensive audit.
Finally, the proposed standard provided that an agency shall ensure
that the auditor's final report is published on the agency's Web site
if it has one, or is otherwise made readily available to the public.
Changes in Final Rule
In the final rule, the Department creates a single, unified
auditing system for all facilities, except for lockups that do not hold
detainees overnight, such as court holding facilities. The final
standard addresses the frequency and scope of audits, required auditor
qualifications, audit report contents and findings, audit corrective
action plans, the audit appeals process, and the effect of the audit
results on the Governor's certification of compliance.
The final standard provides that audits shall be conducted on a
three-year cycle, with the first auditing period commencing one year
after the effective date of the standards. Each year, the agency shall
ensure that at least one-third of each facility type operated by the
agency, or by a private organization on behalf of the agency, is
audited. During the three-year cycle, the agency shall ensure that each
facility operated by the agency, or by a private organization on behalf
of the agency, is audited at least once. In some cases, the Department
may recommend that an agency conduct an expedited audit if the
Department has reason to believe that a particular facility may be
experiencing problems relating to sexual abuse. The recommendation may
also include referrals to resources that may assist the agency with
PREA-related issues.
The Department will develop and issue an audit instrument that will
provide guidance on the conduct of and contents of the audit.
The auditor shall review all relevant agency-wide policies,
procedures, reports, internal and external audits, and accreditations
for each facility type, as well as, at a minimum, a sampling of
relevant documents and other records and information for the most
recent one-year period. The auditor shall be permitted to request and
receive copies of any relevant documents (including electronically
stored information), and shall retain and preserve all documentation
(such as video tapes and interview notes) relied upon in making audit
determinations. Such documentation shall be provided to the Department
upon request. The auditor shall interview a representative sample of
inmates, staff, supervisors, and administrators, and shall have access
to and observe all areas of the audited facilities.
The auditor shall be permitted to conduct private interviews with
inmates, and inmates shall be permitted to send confidential
information or correspondence to the auditor in the same manner as if
they were
[[Page 37186]]
communicating with legal counsel. Auditors shall attempt to communicate
with community-based or victim advocates who may have insight into
relevant conditions in the facility.
The final standard provides that an audit shall be conducted by:
(1) A member of a correctional monitoring body that is not part of, or
under the authority of, the agency (but may be part of, or authorized
by, the relevant State or local government); (2) a member of an
auditing entity such as an inspector general's or ombudsperson's office
that is external to the agency; or (3) other outside individuals with
relevant experience. Thus, the final standard differs from the proposed
standard in that it does not allow audits to be conducted by an
internal inspector general or ombudsperson who reports directly to the
agency head or to the agency's governing board.
Auditors shall be certified by the Department, pursuant to
procedures to be developed, including training requirements.
For each standard, the auditor shall determine whether the audited
facility reaches one of the following findings: ``Exceeds Standard''
(substantially exceeds requirement of standard); ``Meets Standard''
(substantial compliance; complies in all material ways with the
standard for the relevant review period); or ``Does Not Meet Standard''
(requires corrective action). The audit summary shall indicate, among
other things, the number of provisions the facility has achieved at
each grade level.
A finding of ``Does Not Meet Standard'' with one or more standards
shall trigger a 180-day corrective action period. The auditor and the
agency shall jointly develop a corrective action plan to achieve
compliance. The auditor shall take necessary and appropriate steps to
verify implementation of the corrective action plan, such as reviewing
updated policies and procedures or re-inspecting portions of a
facility. After the 180-day corrective action period ends, the auditor
shall issue a final determination as to whether the facility has
achieved compliance with those standards requiring corrective action.
If the agency does not achieve compliance with each standard, it may
(at its discretion and cost) request a subsequent audit once it
believes that it has achieved compliance.
An agency may lodge an appeal with the Department regarding any
specific audit finding that it believes to be incorrect. If the
Department determines that the agency has stated good cause for a re-
evaluation, the agency may commission a re-audit by an auditor mutually
agreed upon by the Department and the agency, at the agency's cost. The
findings of the re-audit shall be final.
Section 115.501(a) provides that, in determining pursuant to 42
U.S.C. 15607(c)(2) whether the State is in full compliance with the
PREA standards, the Governor shall consider the results of the most
recent agency audits. Section 115.501(b) provides that the Governor's
certification shall apply to all facilities in the State under the
operational control of the State's executive branch, including
facilities operated by private entities on behalf of the State's
executive branch.
Comments and Responses
Comment. A wide range of comments were received on the question of
whether audits should be conducted at set intervals or, alternatively,
whether audits should 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. Many comments recommended audits be
conducted at set intervals; most such comments recommended audits occur
on a three-year cycle, as the NPREC had recommended. A number of
comments proposed a combination of automatic periodic audits plus for-
cause audits. Two commenters recommended that audits be conducted both
at random intervals and for cause. A number of comments recommended
that audits be performed for cause only, or where a facility has
received a large number of complaints regarding sexual abuse.
Several comments recommended various hybrid thresholds and
timeframes for required audits. Some suggested a combination of
``streamlined'' audits and full audits, more frequent or less frequent
audits depending upon prior audit results or reasons to suspect
noncompliance, and different audit timelines for smaller agencies.
Several comments recommended audits only for a random sampling of
all facilities, or of facilities not otherwise subject to
accreditation. Several comments suggested that all facilities be
audited. A number of other comments suggested various hybrid
approaches, including: statistical reporting with random audits to
confirm data; auditing of all large facilities and random sampling of
small facilities; differential auditing cycles for large and small
facilities; auditing of all facilities during the first auditing cycle
with various triggers or random selection for subsequent audits; or
annual internal audits with random sampling for external PREA audits or
as requested by the agency.
A comment submitted by former members of the NPREC recommended that
all facilities be audited within the first three years to establish a
``baseline'' that would guide future audits. Performance on the
baseline audit would determine when the next regular audit would occur.
The members suggested that if an agency or facility's compliance with
the standards was determined to exceed 85 percent, the subsequent audit
would occur five years later. If compliance was between 50 and 85
percent, the next audit would be in three years, and if compliance was
less than 50 percent the next audit would be one year later. Former
NPREC members further recommended that a random sample of agencies and
facilities receive unscheduled audits after the initial baseline audit.
In addition, the members recommended for-cause audits based upon
reasons to suspect problems in specific agencies or facilities.
Response. The Department has determined that all facilities should
be subject to audits, and that audits should occur at all facilities at
least every three years, and at least one third of the facilities
operated by an agency must be audited every year. The standard thus
allows agencies substantial flexibility in scheduling audits within
each three-year cycle while ensuring that facility audits occur
regularly.
The Department has chosen not to require audits only for cause, as
this would make it difficult to determine whether a broad range of
facilities are complying with the standards, and would make it harder
to assess whether a State is in full compliance with the statute. Under
PREA, certification of full compliance by the Governor of a State is
necessary in order to avoid a reduction in certain grant funding from
the Department, unless the Governor commits to using the amount that
otherwise would be forfeited for the purpose of enabling the State to
achieve full compliance in future years. See 42 U.S.C. 15607(c)(2). In
addition, requiring audits to be conducted only for cause could
discourage agencies from strengthening their reporting and
investigating procedures, for fear that revelation of incidents could
result in an audit that the facility would otherwise escape.
The final standard does incorporate the concept of a for-cause
audit by providing a mechanism through which the Department can
recommend to an agency that an expedited audit be conducted on any
facility if the Department has reason to believe that
[[Page 37187]]
the facility is experiencing problems related to sexual abuse. However,
the Department concludes that a hybrid audit scheme would prove
unnecessarily complex and would lack the required predictability and
flexibility to permit agencies to budget and plan for the audits.
The Department believes that audits conducted through random
sampling would be insufficient to assess the scope of compliance with
the PREA standards. The Department is cognizant of the burden that
audits pose on institutions but believes that the triennial cycle
appropriately balances the level of effort and resources that will need
to be expended. In addition, the Department anticipates that the actual
audit complexity and duration will be scaled to the size and type of
facility.
Comment. Many agency commenters recommended that agencies be
allowed to audit themselves; by contrast, many advocacy commenters
criticized the proposed standard for allowing internal inspectors
general or ombudspersons to conduct audits, out of concern that
permitting agency employees to audit the agency's facilities could
compromise the objectivity and credibility of the auditing process. One
commenter suggested that audits performed by an auditor within the
agency should be subject to review by an independent agency or elected
body.
Response. While internal audits may prove helpful in assessing an
institution's performance, the Department believes that external audits
are necessary to ensure that the audits are conducted, and are
perceived to be conducted, independently and objectively. Accordingly,
the final standard requires that the audit be performed by an auditor
external to the agency. An audit may, however, be conducted by a sister
governmental agency, including by an entity that ultimately reports to
the same overarching department as the agency under audit.
Comment. Comments varied in response to NPRM Question 32, which
asked to what extent, if any, agencies should be able to combine a PREA
audit with an audit performed by an accrediting body or with other
types of audits. A number of comments recommended that audits not be
combined with other types of audits. Several comments suggested that
PREA audits should be incorporated with accreditation or other audit
types. A number of comments stated that State bodies that inspect local
jails should be able to include PREA audits in the inspection process.
Response. The final standard places no restriction on auditor
certification for individuals who are employed by an accrediting or
oversight entity that is separate and independent from the agency. For
example, a qualified individual within a State office of inspector
general (if outside the agency) or a member of an accrediting body
could obtain Department certification and, if not otherwise conflicted,
would be permitted to conduct the PREA audit, or incorporate the PREA
audit as part of a more comprehensive facility inspection program.
Comment. NPRM Question 33 asked whether the wording of any of the
substantive standards should be revised in order to facilitate a
determination of whether a jurisdiction is in compliance with the
standard. Some comments suggested that the standards be expressed using
objective criteria. Other comments recommended that the standards be
written in a performance-based format, or subject to specific outcome
measures. Still others suggested a combination of qualitative and
quantitative standards. A number of comments suggested requiring that
agencies fully document their efforts to comply with the standards.
Finally, one comment recommended that the auditor have discretion to
determine whether a facility is complying with the standard.
Response. The Department has attempted to incorporate objective
criteria and written documentation requirements wherever practicable,
although auditors will necessarily have some discretion to determine
compliance regarding certain standards. The Department intends to
jointly develop, with the National Resource Center for the Elimination
of Prison Rape, comprehensive auditing instruments for the various
facility types and sizes that will provide guidance to the auditor on
determining compliance. In addition, the Department will develop
uniform training and certification requirements for individual
auditors, and may periodically issue interpretive guidance regarding
the PREA standards.
The Department declines to incorporate into the standards specific
outcome measures. While performance-based standards facilitate
compliance assessments, it is difficult to employ such standards
effectively to combat sexual abuse in confinement facilities. An
increase in incidents reported to facility administration may reflect
increased abuse due to the facility's inability to protect inmates from
harm. Alternatively, it might reflect inmates' increased willingness to
report abuse, due to the facility's success at assuring inmates that
reporting abuse will yield positive outcomes and not result in
retaliation.
Comment. Several commenters recommended that auditors have
expertise in, or receive specialized training in, such topics as
working with victims of sexual abuse, applicable civil rights laws,
adolescent and child development, and crisis counseling.
Response. The Department intends to develop and issue auditor
training requirements, and will work with the National Resource Center
for the Elimination of Prison Rape (or other contracted entity) to
develop an audit training curriculum.
Comment. A number of comments recommended that the auditor receive
unfettered facility access, including access to inmates, full access to
a facility's physical plant and documents, the ability to consult with
the PREA coordinator, access to facility personnel, and the ability to
conduct unannounced inspections.
Response. The final standard incorporates many of these elements to
enable thorough audits. However, the Department declines to require
that auditors be permitted to conduct unannounced facility audits, as
this could prove inordinately burdensome for facility and agency
personnel.
Comment. Former NPREC members recommended that the Department's
Office of the Inspector General conduct audits of BOP facilities.
Response. BOP facilities will be audited pursuant to the auditing
standard. However, the Department declines to mandate in the standard
the specific entity that will conduct BOP audits.
Comment. Two commenters recommended that the audit reports describe
the auditor's methodology, the evidence used to support each audit
finding, and recommendations for any required corrective action.
Response. The final standard includes these elements.
Comments. NPRM Question 35 asked to what extent, if any, audits
should bear on determining whether a State is in full compliance with
PREA. Several comments recommended that the audits be the primary basis
for determining ``full compliance.'' A number of other comments
suggested that the audit results be one of a number of factors in
determining ``full compliance.'' Some comments suggested that audit
results have only a marginal bearing on the determination, or be
relevant to determining only State-level compliance. A number of
comments suggested that audit results, combined with appropriate and
verified corrective
[[Page 37188]]
action, determine State-level ``full compliance.'' One comment
suggested that the audit results, combined with an appropriate
explanation from the Governor, enable the State to certify ``full
compliance.''
Response. The Department intends the audits to be a primary factor
in determining State-level ``full compliance.'' Accordingly, the final
rule requires the Governor to consider the most recent audit results in
making his or her certification determination, which shall apply to
facilities under the operational control of the State's executive
branch, including facilities operated by private entities on behalf of
the State's executive branch.
IV. Regulatory Certifications
Executive Orders 13563 and 12866--Regulatory Planning and Review
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' as recently
reaffirmed and supplemented by Executive Order 13563, ``Improving
Regulation and Regulatory Review.'' The Department has determined that
this final rule is a ``significant regulatory action'' under Executive
Order 12866, Sec. 3(f)(1), and accordingly has submitted it to the
Office of Management and Budget (OMB) for review.
Executive Order 12866 requires Federal agencies to conduct a
regulatory impact assessment (benefit-cost analysis) for any
``significant regulatory action'' likely to result in a rule that may
have an annual impact on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. See Executive Order 12866, Sec. 6(a)(3)(C).
The Department has concluded that the economic impact of its
adoption of the final rule, if complied with by all entities to which
it applies, is likely to exceed this $100 million threshold. Assuming
full nationwide compliance, the standards would affect the management
of all State, local, privately operated, and Department of Justice
confinement facilities, which collectively house over 2.4 million
individuals at any given time and which spent more than $79.5 billion
in 2008. See BJS, Justice Expenditure and Employment Extracts 2008,
advance estimate (unpublished).
The final rule, moreover, ``materially alters * * * the rights and
obligations of grant recipients,'' and ``raise[s] novel legal or policy
issues.'' Executive Order 12866, Secs. 3(f)(3), (4). Accordingly, in
compliance with OMB Circular A-4, the Department has prepared a
Regulatory Impact Assessment (RIA) to accompany the final rule.
Regulatory Impact Assessment
The RIA is available in full at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and is summarized here. The RIA assesses, and
monetizes to the extent feasible, the benefits of combating rape and
sexual abuse in America's prisons, jails, lockups, community
confinement facilities, and juvenile facilities, and the costs of full
nationwide compliance with the final rule. It also summarizes the
comments relating to the costs and benefits of the standards that the
Department received in response to the NPRM and the Initial Regulatory
Impact Assessment (IRIA).
The cost estimates set forth in the RIA are the costs of full
nationwide compliance with all of the standards and their
implementation in all covered facilities. The Department concludes that
full nationwide compliance with the standards would cost the
correctional community, in the aggregate, approximately $6.9 billion
over the period 2012-2026, or $468.5 million per year when annualized
at a 7 percent discount rate. The average annualized cost per facility
of compliance with the standards is approximately $55,000 for prisons,
$50,000 for jails, $24,000 for community confinement facilities, and
$54,000 for juvenile facilities. For lockups, the average annualized
cost per agency is estimated at $16,000.
However, these figures are potentially misleading. PREA does not
require full nationwide compliance with the Department's standards, nor
does it enact a mechanism for the Department to direct or enforce such
compliance; instead, the statute provides certain incentives for State
(but not local or privately operated) confinement facilities to
implement the standards. Fiscal realities faced by confinement
facilities throughout the country make it virtually certain that the
total actual outlays by those facilities will, in the aggregate, be
less than the full nationwide compliance costs calculated in this RIA.
Actual outlays incurred will depend on the specific choices that State,
local, and private correctional agencies make with regard to adoption
of the standards, and correspondingly on the annual expenditures that
those agencies are willing and able to make in choosing to implement
the standards in their facilities. The Department has not endeavored in
the RIA to project those actual outlays.
Summary of Cost Justification Analysis
In developing the final rule, the Department was constrained by two
separate and independent limitations relating to the potential costs of
the standards. The first was the requirement, set forth in Executive
Order 12866, that each agency ``propose or adopt a regulation only upon
a reasoned determination that its benefits justify its costs,''
recognizing that some benefits and costs are difficult to quantify.
Executive Order 12866, Sec. 1(b)(6). Executive Order 13563, moreover,
directs agencies ``to use the best available techniques to quantify
anticipated present and future benefits and costs as accurately as
possible.'' Executive Order 13563, Sec. 1(c). The second was the
provision, set forth in PREA itself, prohibiting the Attorney General
from adopting any standards ``that would impose substantial additional
costs compared to the costs presently expended by Federal, State, and
local prison authorities.'' 42 U.S.C. 15607(a)(3). The RIA addresses
both sets of limitations and concludes that the final rule does not
contravene either constraint, and is in fact fully justified under both
analyses.
With respect to the analysis called for by the Executive Orders,
the RIA undertakes a break-even analysis to demonstrate that the
anticipated costs of full nationwide compliance with the PREA standards
are amply justified by the anticipated benefits. The results of this
break-even analysis are summarized in Table 2. As shown there, using
the Department's preferred estimation method, for the costs of full
nationwide compliance to break even with the monetized benefits of
avoiding prison rape, the standards would have to be successful in
reducing the annual number of prison sexual abuse victims by about
1,671, for a total reduction from the baseline over fifteen years of
about 25,000 victims.\38\ As a
[[Page 37189]]
comparison, the RIA estimates that in 2008 more than 209,400 persons
were victims of sexual abuse in America's prisons, jails, and juvenile
centers, of which at least 78,500 prison and jail inmates and 4,300
youth in juvenile facilities were victims of the most serious forms of
sexual abuse, including forcible rape and other nonconsensual sexual
acts involving injury, force, or high incidence.
---------------------------------------------------------------------------
\38\ These figures include all facility types and all types of
sexual abuse (from the most to the least severe), and take into
account the fact that many victims are victimized multiple times
(i.e., an avoided victim subsumes all of the incidents of sexual
abuse that victim experiences). In the RIA, the Department
calculates the break-even figures in six different ways
corresponding to different methods of calculating the baseline
prevalence of prison sexual abuse and different approaches to
monetizing the value of avoiding prison sexual abuse. The figures in
Table 2 reflect the Department's preferred approach among these six
alternatives. When reflected as a range, the six approaches
collectively provide that, for the costs of full nationwide
compliance to break even with the monetized benefits of avoiding
prison rape, the standards would have to be successful in reducing
the annual number of prison sexual abuse victims by between 1,667
and 2,329, for a total reduction from the baseline over fifteen
years of about 25,000-35,000 victims.
Table 2--Summary of Break-Even Analysis for PREA Standards \39\
[In millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Community confinement
Prisons Jails Lockup facilities Juvenile Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prevalence............................... 89,688 109,181 Unknown..................... Unknown.................... 10,553 209,422
Value of 1% Reduction.................... $206.4 $260.1 Unknown..................... Unknown.................... $52.4
Value of 1 Victim Avoided................ ........... ........... $0.25....................... $0.25...................... ........... ...........
Cost..................................... $64.9 $163.4 $95.5....................... $12.8...................... $131.9 $468.5
Breakeven Percent........................ 0.32% 0.64% Unknown..................... Unknown.................... 2.55% ...........
Breakeven Number of Victims.............. 282 686 385......................... 52......................... 266 1671
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Department believes it reasonable to expect that the standards,
if fully adopted and complied with, would achieve at least this level
of reduction in the prevalence of prison sexual abuse. Taking into
account the considerable non-monetized benefits of avoiding prison
rape, the justification for the standards becomes even stronger. Of
course, if the nation's confinement facilities spend less annually than
full nationwide compliance is estimated to require, then the annual
reduction in the number of prison sexual abuse victims that would need
to be achieved in order for actual outlays to break even with benefits
would be correspondingly lower.
---------------------------------------------------------------------------
\39\ Prevalence figures reflect the Department's ``principal''
approach to determining prevalence (among the three alternative
approaches discussed below) and include all forms of sexual abuse.
As explained in the RIA, prevalence figures for lockups and
community confinement facilities are unknown; the total for prisons,
jails, and juvenile centers under the principal approach is 209,422.
The ``value of 1% reduction'' row sets forth the RIA's estimate
of the monetizable value (in millions of dollars) of the benefit of
a 1% reduction from the baseline annual prevalence of sexual abuse
in prisons, jails, and juvenile centers, using the Department's
preferred methodology, the victim compensation model, and taking
into account the fact that many victims of prison rape are
victimized multiple times. The ``value of 1 victim avoided'' row
sets forth the corresponding estimate for lockups and community
confinement facilities, but sets forth the value (again in millions)
of avoiding a single victim of abuse.
Cost figures represent the cost of full nationwide compliance
with all of the PREA standards, in the aggregate, in millions of
dollars. ``Breakeven percent,'' for prisons, jails, and juvenile
centers, shows the total percentage reduction from the baseline
annual prevalence of prison sexual abuse that the standards would
have to achieve in each sector in order for their annual benefits,
in monetary terms, to break even with their annual costs, again
assuming full nationwide compliance. ``Breakeven Number of Victims''
shows how many individual victims of prison sexual abuse the
standards would have to be successful in preventing each year, in
each sector (again taking into account the phenomenon of serial
victimization), for the standards' annual benefits, in monetary
terms, to break even with the annual costs of full nationwide
compliance.
---------------------------------------------------------------------------
With respect to the analysis that Congress required in PREA, the
RIA concludes that the costs of full nationwide compliance do not
amount to ``substantial additional costs'' when compared to total
national expenditures on correctional operations. In the most recent
tabulation, correctional agencies nationwide spent approximately $79.5
billion on correctional operations in 2008. As noted, the RIA estimates
that full nationwide compliance with the final standards would cost
these agencies approximately $468.5 million per year, when annualized
over 15 years at a 7 percent discount rate, or a mere 0.6 percent of
total annual correctional expenditures in 2008. The Department
concludes that this does not amount to substantial additional costs.
Measuring the Relevant Baseline
As a starting point, the RIA measures the baseline level of prison
rape and sexual abuse in prisons, jails, and juvenile facilities. It
estimates the annual prevalence of six categories of inappropriate
sexual contact in adult prisons and jails, and five different
categories in juvenile facilities. The precise definitions of these
categories are set forth in detail in the RIA, but these types of
sexual contact are essentially differentiated based on the existence
and nature of force or threat of force, the nature and intrusiveness of
the physical contact, and how often the victim has experienced abuse
(i.e., whether the victim has experienced a low or high incidence of
contact), among other factors.
Relying largely on tabulations made by BJS and the Office of
Juvenile Justice and Delinquency Prevention, the RIA examines the
available statistics on the prevalence of each type of inappropriate
sexual contact \40\ and addresses a number of issues with those
statistics, including the problem of serial victimization (prevalence
vs. incidence),\41\ cross-section vs. flow,\42\ underreporting of
sexual victimization (false negatives), and false allegations
(overreporting). The RIA also describes difficulties in measuring the
prevalence of sexual abuse in community confinement facilities and
lockups.\43\
---------------------------------------------------------------------------
\40\ 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).
\41\ Prevalence essentially measures the number of victims of
sexual abuse over a period of time, whereas incidence refers to the
number of discrete victimizations over that period. The difference
between the two arises from the fact that many prison rape victims
are victimized many times.
\42\ The estimates of prevalence are based on surveys of
inmates, who are asked to state whether, as of the date the survey
is administered, they have experienced sexual abuse in that facility
during the previous twelve months. If the answer is affirmative, the
inmate is asked follow-up questions about the nature and frequency
of the abuse. In a cross-section (also known as ``stock'') approach
to estimating prevalence, the estimates are based on the responses
given by the inmates who happen to be at the facility on the day the
survey was administered. However, this approach risks significantly
understating the actual prevalence, especially in jails, because the
majority of inmates remain in their facility for less than one year,
and there will have been many inmates who were at the facility
earlier during the twelve-month survey period but who are no longer
there when the survey is administered. A flow approach to estimating
prevalence compensates for this phenomenon by extrapolating from the
cross-sectional figures an estimate of the total number of victims
among the total population of inmates who flowed through the
facility during the twelve-month period.
\43\ At the time the RIA was prepared, the Department lacked
data regarding the prevalence of sexual abuse in community
confinement facilities. A BJS study of former State prisoners that
was finalized in May 2012, too late for incorporation into the
prevalence assessments of the RIA, provides for the first time some
data regarding such prevalence. See BJS, Sexual Victimization
Reported by Former State Prisoners, 2008 (NCJ 237363) (May 2012).
The Department remains unaware of any data regarding the prevalence
of sexual abuse in lockups.
---------------------------------------------------------------------------
[[Page 37190]]
The RIA presents three alternatives for estimating the prevalence
of sexual abuse, each relying on different assumptions to account for
the possibility of underreporting (false negatives) and overreporting
(false positives) of sexual abuse. Under the ``principal'' method--the
one the Department prefers among the three--no adjustment is made to
the prevalence estimates to account either for false negatives (sexual
abuses that occurred but were never reported) or false positives
(sexual abuses that were reported by inmates but that did not actually
occur). The ``adjusted'' approach uses an upper bound assumption as to
the number of false negatives and a conservative approach to the
adjustment for false positives; the ``lower bound'' approach uses a
lower bound assumption as to the number of false negatives and a less
conservative approach to adjusting for false positives. Under the
principal approach, the RIA concludes that in 2008 more than 209,400
persons were victims of sexual abuse in America's prisons, jails, and
juvenile centers. Of these, at least 78,500 were prison and jail
inmates and 4,300 were youth in juvenile facilities who were victims of
the most serious forms of sexual abuse, including forcible rape and
other nonconsensual sexual acts involving injury, force, or high
incidence.
Table 3 shows the estimated baseline prevalence of rape and sexual
abuse in adult prison and jail facilities under each of the RIA's
prevalence estimation methods. Table 4 shows the corresponding
estimates for juvenile facilities, and Table 5 shows the composite
prevalence estimates among all facility types.\44\
---------------------------------------------------------------------------
\44\ For the definitions of the various types of sexual conduct
listed in these tables, see Tables 1.1 and 1.2 in the RIA.
Table 3--Baseline Prevalence of Sexual Abuse, Adult Prison and Jail Facilities, Using Alternative Prevalence
Estimation Approaches, by Type of Incident, 2008
----------------------------------------------------------------------------------------------------------------
Adult prisons Adult jails
-----------------------------------------------------------------------------
Principal Adjusted Lower bound Principal Adjusted Lower bound
----------------------------------------------------------------------------------------------------------------
Nonconsensual Sexual Acts--High... 32,900 33,100 25,600 45,600 43,000 26,000
Nonconsensual Sexual Acts--Low.... 11,300 11,600 8,800 8,900 7,900 5,000
``Willing'' Sex with Staff........ 17,600 17,800 13,500 15,500 14,800 10,400
Abusive Sexual Contacts--High..... 7,300 7,000 6,100 8,500 7,800 6,300
Abuse Sexual Contacts--Low........ 10,900 11,200 9,000 14,400 13,600 10,700
Staff Sexual Misconduct Touching 9,700 9,400 7,500 16,300 14,200 10,800
Only.............................
-----------------------------------------------------------------------------
Total......................... 89,700 90,100 70,500 109,200 101,300 69,200
----------------------------------------------------------------------------------------------------------------
Table 4--Baseline Prevalence of Sexual Abuse, Juvenile Facilities, Using
Alternative Prevalence Estimation Approaches, by Type of Incident, 2008
------------------------------------------------------------------------
Principal Adjusted Lower bound
------------------------------------------------------------------------
Serious Sexual Acts--High........ 4,300 4,600 3,800
``Willing'' Sex With Staff--High. 2,800 2,700 2,500
Serious Sexual Acts--Low......... 2,000 2,700 1,800
Other Sexual Acts--High.......... 600 600 500
Other Sexual Acts--Low........... 900 1,000 900
--------------------------------------
Total........................ 10,600 11,600 9,500
------------------------------------------------------------------------
Table 5--Baseline Prevalence of Sexual Abuse, Summary Chart
------------------------------------------------------------------------
Principal Adjusted Lower bound
------------------------------------------------------------------------
Prisons.......................... 89,700 90,100 70,500
Jails............................ 109,200 101,300 69,200
Juveniles........................ 10,600 11,600 9,500
--------------------------------------
Total........................ 209,400 203,000 149,200
------------------------------------------------------------------------
Estimating the Monetized Unit Benefit of Avoiding a Prison Rape or
Sexual Abuse
As a number of commenters observed, placing a monetary value on
avoided sexual abuse confronts considerable methodological
difficulties. One commenter remarked that ``estimating the monetary
`costs' of crime is at best a fraught and imperfect effort,
particularly when dealing with crimes such as sexual abuse whose
principal cost is due to the pain, suffering, and quality of life
diminution of the victims.'' Executive Order 12866 nevertheless
instructs agencies to measure quantifiable benefits ``to the fullest
extent that [they] can be usefully estimated.'' Executive Order 12866,
Sec. 1(a); see also Executive Order 13563, Sec. 1(c) (``[E]ach agency
is directed to
[[Page 37191]]
use the best available techniques to quantify anticipated present and
future benefits and costs as accurately as possible.''). Some
uncertainty in such estimates is not itself reason to abandon the
effort.
The RIA estimates the monetary value of certain benefits of
avoiding prison sexual abuse using values derived from general
literature assessing the cost of rape,\45\ with adjustments made to
account for the unique characteristics of sexual abuse in the prison
setting. Using an approach known as the willingness to pay (WTP) model,
the RIA first monetizes the benefit of avoiding sexual abuse in a
confinement facility by consulting studies that have estimated how much
society is willing to pay for the reduction of various crimes,
including rape, and then assessing whether the conclusions of those
studies would be different in the specific context of sexual abuse in
confinement facilities. This approach yields a reliable estimate of the
costs of the most serious categories of sexual abuse assessed in the
RIA,\46\ but because of limitations in the way the underlying studies
were conducted, it cannot be effectively used to monetize the cost of
the less serious categories of sexual abuse.
---------------------------------------------------------------------------
\45\ 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., Minn. Dep't of Health, Costs of Sexual Violence in
Minnesota (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).
\46\ These costs translate to benefits for the purpose of the
RIA--i.e., the benefits that would accrue from avoiding such
incidents.
---------------------------------------------------------------------------
In part because of these limitations, the RIA also uses an
alternative approach known as the victim compensation or willingness-
to-accept (WTA) model, which estimates how much the average victim of
prison rape would be willing to accept as compensation for injuries
suffered in the assault, including intangible injuries such as pain,
suffering, and diminished quality of life. To do this, the RIA assesses
certain monetizable costs of prison rape to the victim, such as the
costs of medical and mental health care, and adds an element, drawn
primarily from jury verdicts, to cover the intangible costs associated
with pain and suffering. All of these costs were identified by
reviewing the literature on the cost of rape generally, and then
extrapolating the analogous costs in confinement facilities. Although
the RIA calculates avoidance benefits on a per victim basis, it
accounts for the fact that many victims of prison rape are victimized
multiple times.
Thus, the RIA essentially uses a hybrid approach that combines the
WTP and WTA elements: For the one category of sexual conduct as to
which an estimate using the WTP was possible (the most serious category
for adult victims), it identifies a range of avoidance benefit values,
with the WTP estimate at one bound and the WTA estimate on the other;
for the remaining categories of conduct, as to which a WTP estimate was
not possible, the RIA uses only the WTA estimate. Using this approach,
the RIA derives monetized values for avoiding each of the six types of
sexual contact (five for juveniles), depending upon whether the victim
is a juvenile or an adult. These values are depicted in Tables 6 and 7.
The RIA estimates the monetizable benefit to an adult of avoiding the
highest category of prison sexual misconduct (nonconsensual sexual acts
involving injury or force, or no injury or force but high incidence) as
worth about $310,000 per victim using the willingness to pay model and
$480,000 per victim under the victim compensation model. For juveniles,
who typically experience significantly greater injury from sexual abuse
than adults, the corresponding category is assessed as worth $675,000
per victim under the victim compensation model. (A willingness to pay
estimate was not calculated for juveniles.) These estimates are higher
than in the IRIA because of changes the Department made, in response to
public comments, to the definitions of the different types of sexual
abuse and to the methodologies for monetizing the benefit of avoiding
each type.
Table 6--Avoidance Benefit Values for Sexual Abuse, Adult Prison and
Jail Facilities, by Victimization Type and Valuation Method
------------------------------------------------------------------------
Victim
WTP compensation
(WTA)
------------------------------------------------------------------------
Nonconsensual Sexual Acts--High................ $310,000 $480,000
Nonconsensual Sexual Acts--Low................. ......... 160,000
``Willing'' Sex With Staff..................... ......... 160,000
Abusive Sexual Contacts--High.................. ......... 5,200
Abusive Sexual Contacts--Low................... ......... 600
Staff Sexual Misconduct Touching Only.......... ......... 600
------------------------------------------------------------------------
Table 7--Unit Avoidance Values for Sexual Abuse, Juvenile Facilities, by
Victimization Type
------------------------------------------------------------------------
Victim
compensation
(WTA)
------------------------------------------------------------------------
Serious Sexual Acts--High............................... $675,000
``Willing'' Sex With Staff--High........................ 672,000
Serious Sexual Acts--Low................................ 225,000
Other Sexual Acts--High................................. 7,300
Other Sexual Acts--Low.................................. 900
------------------------------------------------------------------------
The RIA next calculates the maximum monetizable benefit to society
of totally eliminating each of the types of inappropriate sexual
contact, by multiplying the baseline prevalence of such events by the
unit benefit of an avoided victim. As depicted in Table 8, under the
Department's principal approach for estimating prevalence, and using
the victim compensation model, the RIA determines that the maximum
monetizable cost to society of prison rape and sexual abuse (and
correspondingly, the total maximum benefit of eliminating it) is about
$46.6 billion annually for prisons and jails, and an additional $5.2
billion annually for juvenile facilities.\47\
---------------------------------------------------------------------------
\47\ The RIA calculates these figures six different ways, using
the three different prevalence estimation approaches (principal,
adjusted, and lower bound), and the two different approaches to
monetizing avoidance benefit values (WTP and WTA). Expressed as a
range that captures all six approaches, the RIA determines that the
maximum monetizable cost to society of rape and sexual abuse in
prisons, jails, and juvenile facilities (and correspondingly, the
total maximum benefit of eliminating it from those facilities)
ranges from $26.9 billion to $51.9 billion. These figures exclude
the cost to society of rape and sexual abuse in community
confinement facilities and lockups because of the unavailability of
data regarding the prevalence of sexual abuse in those facilities.
---------------------------------------------------------------------------
It bears cautioning, however, that the Department has not estimated
in the RIA the expected monetized benefit of the standards themselves
but has instead opted for a break-even approach that estimates the
number of victims that would need to be avoided (taking into account
the fact that many victims are victimized multiple times) for the
benefits of the standards to break even with the costs of full
nationwide compliance. Thus, the RIA does not estimate that the
standards will actually yield an annual monetized benefit of $52
billion, except in the hypothetical scenario where the standards would,
by themselves, lead to the complete elimination of prison rape and
sexual abuse. The actual monetized benefit of the standards will
certainly be less than this hypothetical figure and will depend on a
number of factors, including the extent to which facilities comply with
[[Page 37192]]
the standards, and the extent to which the standards are effective in
achieving their goals.
Table 8--Total Cost of Sexual Abuse, Across Prisons, Jails, and Juvenile
Facilities, Victim Compensation Method, by Prevalence Approach
[In millions of dollars]
------------------------------------------------------------------------
Principal Adjusted Lower bound
------------------------------------------------------------------------
Prisons.......................... $20,637 $20,814 $16,051
Jails............................ 26,011 24,493 15,083
Juveniles........................ 5,239 5,532 4,654
--------------------------------------
Total........................ 51,887 50,839 35,788
------------------------------------------------------------------------
Non-Monetizable Benefits
Executive Order 13563 states that, ``[w]here appropriate and
permitted by law, each agency may consider (and discuss qualitatively)
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.'' Executive Order
13563, Sec. 1(c). Under Executive Order 12866, costs and benefits must
``include both quantifiable measures (to the fullest extent that these
can be usefully estimated) and qualitative measures of costs and
benefits that are difficult to quantify but nevertheless essential to
consider.'' Executive Order 12866, Sec. 1(a). Benefits of regulatory
action include ``the enhancement of health and safety, the protection
of the natural environment, and the elimination or reduction of
discrimination or bias.'' Id.
In concluding its assessment of the benefits of prison rape
avoidance, the RIA identifies a number of benefits that cannot be
monetized. These are some of the most important and consequential
benefits of the final rule, and the discussion in the RIA describes
both the nature and scale of those benefits so that they can be
appropriately factored into the analysis. For example, the RIA examines
benefits for rape victims, for inmates who are not rape victims, for
families of victims, for prison administrators and staff, and for
society at large. These benefits include those relating to public
health and public safety, as well as economic benefits and existence
value benefits. The RIA also describes benefits to inmates in lockups
and community confinement facilities, as to which information was
lacking relating to the baseline prevalence of sexual abuse.
Additionally, Congress predicated PREA on its conclusion--
consistent with decisions by the Supreme Court--that ``deliberate
indifference to the substantial risk of sexual assault violates
prisoners' rights under the Cruel and Unusual Punishment Clause of the
Eighth Amendment.'' 42 U.S.C. 15601(13) (citing Farmer v. Brennan, 511
U.S. 825 (1994)). The individual rights enshrined in the Constitution
express our nation's deepest commitments to human dignity and equality,
and American citizens place great value on knowing that their
government aspires to protect those rights to their fullest extent. In
thinking about the qualitative benefits that will accrue from the
implementation of the final rule, these values carry great weight.
Cost Analysis
The RIA presents a detailed analysis of the costs of full
nationwide compliance with the standards in the final rule. The RIA
concludes that full nationwide compliance with the standards would cost
the correctional community approximately $6.9 billion over the period
2012-2026, or $468.5 million per year when annualized at a 7 percent
discount rate. The details of the RIA's cost estimates are summarized
in Tables 9-14:
---------------------------------------------------------------------------
\48\ For detailed sources, see RIA, at p. 70, n. 108.
Table 9: Number of Facilities Assumed To Adopt and Implement the
Standards, for Cost Analysis Purposes 48
------------------------------------------------------------------------
Number of
Type facilities
------------------------------------------------------------------------
Prisons (Federal)....................................... 117
Prisons (State)......................................... 1,190
Jails................................................... 2,860
Lockups (Police)........................................ 3,753
Lockups (Court)......................................... 2,330
Community Confinement................................... 529
Juvenile................................................ 2,458
------------------------------------------------------------------------
[[Page 37193]]
[GRAPHIC] [TIFF OMITTED] TR20JN12.000
Table 11--Estimated Cost of Full State and Local Compliance With the PREA Standards, in the Aggregate, by Year
and by Facility Type
[In Millions of dollars]
----------------------------------------------------------------------------------------------------------------
Community
Year Prisons Jails Lockups confinement Juveniles Total all
facilities facilities
----------------------------------------------------------------------------------------------------------------
2012.............................. $87.2 $254.6 $180.1 $27.8 $196.0 $745.8
2013.............................. 55.2 161.0 122.0 16.8 93.3 448.5
2014.............................. 58.3 157.9 106.6 14.2 92.1 429.2
2015.............................. 59.2 154.6 93.7 12.1 94.9 414.5
2016.............................. 61.3 153.5 87.3 11.1 109.3 422.6
2017.............................. 61.5 152.4 83.6 10.6 151.9 460.1
2018.............................. 62.9 151.3 80.1 10.1 147.3 451.8
2019.............................. 63.1 150.7 77.5 9.8 144.7 445.8
2020.............................. 64.3 150.1 75.0 9.4 142.2 441.0
2021.............................. 65.7 149.9 73.2 9.2 140.4 438.3
2022.............................. 65.9 150.1 72.0 9.0 139.2 436.2
2023.............................. 67.1 150.1 70.8 8.9 138.0 434.9
2024.............................. 67.1 149.9 69.6 8.7 136.7 432.0
2025.............................. 67.9 149.5 68.4 8.5 135.5 429.8
2026.............................. 67.6 148.8 67.2 8.4 134.3 426.3
-----------------------------------------------------------------------------
15-yr Total................... 974.2 2,384.6 1,327.3 174.8 1,995.8 6,856.7
----------------------------------------------------------------------------------------------------------------
Present Value..................... 591.2 1,488.4 869.8 116.6 1,201.4 4,267.4
Annual............................ 64.9 163.4 95.5 12.8 131.9 468.5
----------------------------------------------------------------------------------------------------------------
Table 12--Estimated Average Annualized Compliance Cost per Unit
Facility, by Type
------------------------------------------------------------------------
Cost per unit
Type facility
------------------------------------------------------------------------
Prisons................................................. $54,546
Jails................................................... 49,959
Lockups (per Agency).................................... 15,700
Community Confinement Facilities........................ 24,190
Juvenile Facilities..................................... 53,666
------------------------------------------------------------------------
[[Page 37194]]
[GRAPHIC] [TIFF OMITTED] TR20JN12.001
[GRAPHIC] [TIFF OMITTED] TR20JN12.002
Again, these tables reflect the estimated costs of full nationwide
compliance, which will occur only if all State, local, and private
confinement facilities adopt the standards contained in the final rule
and then immediately and fully implement them. In this sense, the cost
impact of the final rule, as represented here, is essentially
theoretical--in effect treating the standards as if they were binding
regulations on State and local confinement facilities.
The true cost impact (which the RIA does not purport to assess),
like the true impact of the final rule on preventing, detecting, and
minimizing the effects of sexual abuse, will depend on the specific
choices and expenditures that State, local, and private correctional
agencies make with regard to adoption and implementation of the
standards.
In assessing the nationwide compliance costs for many of the
standards, the RIA relies on work performed by the consulting firm Booz
Allen Hamilton, with which the Department contracted to undertake cost
analyses, first of the standards recommended by the NPREC, then of the
standards proposed in the NPRM, and finally of the standards contained
in the final rule. Booz Allen's initial cost analysis was based on a
field study in which it surveyed 49 agencies of various types from
across the country about the costs they would incur to comply with
various aspects of the NPREC's recommended standards. Each of the final
standards is examined in detail in the RIA to determine the full
implementation costs of that standard. Where possible, the RIA
distinguishes among costs applicable to prisons, jails, juvenile
facilities, community confinement facilities, and lockups.
Many of the standards are assessed as likely having minimal to no
associated
[[Page 37195]]
compliance costs, including Sec. Sec. 115.15, 115.215, and 115.315,
which, among other things, impose a general ban on cross-gender pat-
down searches of female inmates in adult prisons and jails and in
community confinement facilities, and of male and female residents in
juvenile facilities; and Sec. Sec. 115.83, 115.283, and 115.383, which
requires agencies to provide medical and mental health care assessments
and treatment to victims and to certain abusers. The conclusion of zero
cost for these standards is predicated on a high level of baseline
compliance and on the expectation that agencies will adopt the least
costly means of complying with requirements when given flexibility to
determine how to apply those requirements to the specific
characteristics of their agencies.
On an annualized basis, the most expensive standards, by the RIA's
estimate, are: Sec. Sec. 115.13, 115.113, 115.213, and 115.313, which
relate to staffing, supervision, and video monitoring and would impose
annual compliance costs of $120 million per year if fully adopted;
Sec. Sec. 115.11, 115.111, 115.211, and 115.311, which establish a
zero-tolerance policy and require agencies to designate an agency-wide
PREA coordinator and facilities to designate a PREA compliance manager,
and would cost $110 million annually if fully adopted; the training
standards (Sec. Sec. 115.31-115.35, 115.131-115.132, 115.134, 115.231-
115.235, and 115.331-115.335), which the RIA estimates would cost $82
million per year if fully adopted; and the screening standards
(Sec. Sec. 115.41-115.42, 115.141, 115.241-115.242, and 115.341-
115.342), which would have an estimated $61 million in annual costs if
there were full nationwide compliance. Together, full nationwide
compliance with these four sets of standards would cost $372 million
annually, or about 80 percent of the total for all of the standards.
Booz Allen's analyses assessed only the costs that State, local,
and private agencies would incur if they adopted and implemented the
standards in their own facilities. Thus, Booz Allen's analyses do not
include the compliance costs of those Federal facilities to which the
final rule applies. The RIA supplements these analyses with the
Department's own internal assessments of the costs that its two
relevant components--the Bureau of Prisons and the United States
Marshals Service--would incur in implementing the standards in the
facilities they operate or oversee. As shown in Table 15, these two
components expect to spend approximately $1.75 million per year over
fifteen years to comply with the standards.
Table 15--Estimated Cost of Compliance With PREA Standards for
Department of Justice Entities, by Standard, Annualized Over 2012-2026
at 7% Discount Rate
------------------------------------------------------------------------
Standard BOP USMS
------------------------------------------------------------------------
115.11 Zero Tolerance......................... $797,000 $445,000
115.21 Evidence Protocol...................... 37,000 0
115.31-.35 Training........................... 20,000 103,000
115.41 Screening.............................. 500 0
115.53 Inmate Reporting....................... 9,500 0
115.93, .402-.405 Audits...................... 312,000 0
-------------------------
Total..................................... 1,176,000 548,000
------------------------------------------------------------------------
Comparison to Alternatives
Executive Order 13563 calls upon agencies, ``in choosing among
alternative regulatory approaches,'' to select ``those approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity).'' Executive Order 13563, sec. 1(b)(3). The Attorney
General has concluded that, among the available alternatives, the
standards in the final rule define measures and programs that, when
implemented, will prove effective in accomplishing the goals of the
statute while also promoting flexible decisions by the affected
agencies on how to achieve compliance in a manner that works best given
their unique circumstances and environments. Standards that could
potentially maximize net benefits in the abstract would risk actually
being less effective, either due to the failure of States and
localities to adopt them at all, or due to the damaging consequences
that the full costs of compliance could have on funding available for
other critical correctional programs.
The RIA examines the cost implications of the two most obvious
alternatives to the final standards--the NPREC's recommended standards,
which are more stringent than the final rule in many respects, and the
standards proposed in the NPRM, which by and large are less stringent--
and finds that the standards in the final rule are the most effective
and cost-effective among the three alternatives. As shown in Table 16,
the final standards are the least expensive of the three alternatives.
Table 16--Comparison of Projected Nationwide Full Compliance Costs,
Final Rule vs. NPRM vs. NPREC Recommendations, in Thousands of
Annualized Dollars
------------------------------------------------------------------------
NPREC NPRM Final rule
------------------------------------------------------------------------
Prisons.......................... $1,018,301 $53,318 $64,910
Jails............................ 2,278,566 332,106 163,416
Lockups.......................... 2,246,775 72,914 95,504
Community Confinement Facilities. 235,884 2,147 12,797
Juvenile Facilities.............. 188,215 50,002 131,912
--------------------------------------
Total........................ 5,967,741 510,487 468,539
------------------------------------------------------------------------
[[Page 37196]]
Executive Order 13132--Federalism
In drafting the standards, the Department was mindful of its
obligation to meet the objectives of PREA while also minimizing
conflicts between State law and Federal interests. In accordance with
Executive Order 13132, it is determined that this final rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Notwithstanding the determination that the formal consultation
process described in Executive Order 13132 is not required for this
final rule, the Department's PREA Working Group consulted with
representatives of State and local prisons and jails, juvenile
facilities, community confinement programs, and lockups--among other
individuals and groups--during the listening sessions the Working Group
conducted in 2010. The Department also solicited and received input
from numerous public entities at several levels of government in both
the ANPRM and the NPRM stages of this rulemaking.
Insofar as it sets forth national standards that apply to
confinement facilities operated by State and local governments, this
final rule has the potential to affect the States, the relationship
between the national government and the States, and the distribution of
power and responsibilities among the various levels of government.
However, with respect to the thousands of State and local agencies, and
private companies, that own and operate confinement facilities across
the country, PREA provides the Department with no direct authority to
mandate binding standards for their facilities. Instead, PREA depends
upon State and local agencies to make voluntary decisions to adopt and
implement them.
For State agencies that receive grant funding from the Department
to support their correctional operations, Congress has provided that
the Department shall withhold 5 percent of prison-related grant funding
to any State that fails to certify that it ``has adopted, and is in
full compliance with, the national standards,'' or that fails to
alternatively provide ``an assurance that not less than 5 percent'' of
the relevant grant funding ``shall be used only for the purpose of
enabling the State to adopt, and achieve full compliance with, those
national standards, so as to ensure that a certification [of
compliance] may be submitted in future years.'' 42 U.S.C. 15607(c)(2).
For county, municipal, and privately run agencies that operate
confinement facilities, PREA lacks any corresponding sanctions for
facilities that do not adopt or comply with the standards.\49\
---------------------------------------------------------------------------
\49\ A small number of States operate unified correctional
systems, in which correctional facilities typically administered by
counties or cities--such as jails--are operated instead by State
agencies. See Barbara Krauth, A Review of the Jail Function Within
State Unified Corrections Systems (Sept. 1997), available at http://static.nicic.gov/Library/014024.pdf. In such States, an assessment
of whether the State is in full compliance would encompass those
facilities as well.
---------------------------------------------------------------------------
Despite the absence of statutory authority to promulgate standards
that would bind State, local, and private agencies, other consequences
may flow from the issuance of national standards, which could provide
incentives for voluntary compliance. For example, these standards may
influence the standard of care that courts will apply in considering
legal and constitutional claims brought against corrections agencies
and their employees arising out of allegations of sexual abuse.
Moreover, agencies seeking to be accredited by the major accreditation
organizations may need to comply with the standards as a condition of
accreditation.\50\
---------------------------------------------------------------------------
\50\ The statute provides that 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 unless it adopts accreditation standards consistent with the
standards in the final rule. 42 U.S.C. 15608.
---------------------------------------------------------------------------
Nevertheless, pivotal to the statutory scheme is a voluntary
decision by State, county, local, and private correctional agencies to
adopt the standards and to comply with them (or alternatively, for
States, to commit to expending 5 percent of Department of Justice
prison-related grant funds to come into compliance in future years). In
deciding whether to adopt these standards, agencies will of necessity
conduct their own analyses of whether they can commit to adopting the
standards in light of other demands on their correctional budgets.
The Department cannot assume that all agencies will choose to adopt
and implement these standards. An agency assessing whether to do so may
choose not to based upon an assessment that, with regard to that
specific agency, the costs outweigh the benefits. Such a course of
action would be regrettable. The Department certainly hopes that it
will not be common, and that agencies will instead consider the
benefits of prison rape prevention not only to the agencies themselves
but also to the inmates in their charge and to the communities to which
the agencies are accountable.
Nevertheless, the Department cannot ignore the straitened fiscal
realities confronting many correctional agencies. Congress was acutely
aware of these circumstances in passing PREA, which authorized the
Department to make grants to States ``to assist those States in
ensuring that budgetary circumstances (such as reduced State and local
spending on prisons) do not compromise efforts to protect inmates
(particularly from prison rape).'' 42 U.S.C. 15605(a). Congress did not
intend for the Department to impose unrealistic or unachievable
standards but rather expected it to partner with those agencies in
adopting and implementing policies that will yield successes at
combating sexual abuse in confinement facilities, while enabling State
and local correctional authorities to continue other correctional
programs vital to protecting inmates, staff, and the community, and
ensuring that inmates' eventual reintegration into the community is
successful.
The statute does not mandate any specific approach in developing
the standards, but instead relies upon the Attorney General to exercise
his independent judgment. The Attorney General has concluded that the
standards in the final rule define measures and programs that, when
implemented, will prove effective in accomplishing the goals of the
statute while also promoting voluntary compliance decisions by State
and local agencies.
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 final PREA
standards and, as is more fully described in the RIA, believes that
these standards, if fully adopted and implemented by all State, local,
and private operators of confinement facilities, would theoretically
result in an aggregate expenditure by such operators of approximately
$467 million annually (i.e., the total of $468.5 million annually set
forth above, minus $1.75 million annually attributable to Department of
Justice entities), when annualized over fifteen years at a 7 percent
discount rate.
[[Page 37197]]
However, the Department concludes that the requirements of the UMRA
do not apply to the PREA standards because UMRA excludes from its
definition of ``Federal intergovernmental mandate'' those regulations
imposing an enforceable duty on other levels of government which are
``a condition of Federal assistance.'' 2 U.S.C. 658(5)(A)(i)(I). PREA
provides that any amount that a State would otherwise receive for
prison purposes from the Department in a given fiscal year shall be
reduced by 5 percent unless the chief executive of the State certifies
either that the State is in ``full compliance'' with the standards or
that not less than 5 percent of such amount shall be used to enable the
State to achieve full compliance with the standards. Accordingly,
compliance with these PREA standards is a condition of Federal
assistance for State governments.
While the Department does not believe that a formal statement
pursuant to the UMRA is required, it has, for the convenience of the
public, summarized as follows various matters that are discussed at
greater length elsewhere in this rulemaking and that would have been
included in a UMRA statement should that have been required:
These national standards are being issued pursuant to the
requirements of the Prison Rape Elimination Act of 2003, 42 U.S.C.
15601 et seq.;
A qualitative and quantitative assessment of the
anticipated costs and benefits of these national standards appears
above in the section on Executive Order 12866, as elaborated in the
RIA;
The Department does not believe that these national
standards will have an effect on national productivity, economic
growth, full employment, creation of productive jobs, or international
competitiveness of United States goods and services, except to the
extent described in the RIA, which postulates inter alia that some
agencies may add staff in order to comply with some of the standards;
Notwithstanding how limited the Department's obligations
may be under the formal requirements of UMRA, the Department has
engaged in a variety of contacts and consultations with State and local
governments, including during the listening sessions the Working Group
conducted in 2010. In addition, the Department solicited and received
input from public entities in both its ANPRM and its NPRM. The
Department received numerous comments on its NPRM from State and local
entities, the vast majority of which addressed the potential costs
associated with certain of the proposed standards. Standards of
particular cost concern included the training standards, the auditing
standard, and the standards regarding staff supervision and video
monitoring. The Department has altered various standards in ways that
it believes will appropriately mitigate the cost concerns identified in
the comments. State and local entities also expressed concern that the
standards were overly burdensome on small correctional systems and
facilities, especially in rural areas. The Department's final standards
include various revisions to the proposed rule to address this issue.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. It may result in an annual effect on the economy of $100,000,000
or more, although it will not result in a major increase in costs or
prices, or significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
Regulatory Flexibility Act
The Department of Justice drafted this final rule so as to minimize
its impact on small entities, in accordance with the Regulatory
Flexibility Act, 5 U.S.C. 601-612, while meeting PREA's intended
objectives. The Department has conducted an extensive consideration of
the impact of this rule on small governmental entities, and available
alternatives, as elaborated in the RIA and in the above discussions of
Federalism and UMRA.
The Department provided notice of the proposed standards to
potentially affected small governments by publishing the ANPRM and
NPRM, by conducting listening sessions, and by other activities;
enabled officials of affected small governments to provide meaningful
and timely input through the methods listed above; and worked (and will
continue to work) to inform, educate, and advise small governments on
compliance with the requirements.
As discussed in the RIA summarized above, the Department has
identified and considered a reasonable number of regulatory
alternatives and from those alternatives has attempted to select the
least costly, most cost-effective, and least burdensome alternative
that achieves the objectives of PREA.
Paperwork Reduction Act
This final rule contains a new ``collection of information''
covered by the Paperwork Reduction Act of 1995 (PRA), as amended, 44
U.S.C. 3501-3521. Under the PRA, a covered agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid control number
assigned by OMB. 44 U.S.C. 3507(a)(3), 3512.
The information collections in this final rule require covered
facilities to retain certain specified information relating to sexual
abuse prevention planning, responsive planning, education and training,
and investigations, as well as to collect and retain certain specified
information relating to allegations of sexual abuse within the
facility.
At the time of the proposed rule, the Department submitted an
information collection request to OMB for review and approval in
accordance with the review procedures of the PRA.
As part of the comment process on the NPRM, the Department received
a few comments pertaining to the PRA, mostly raising questions whether
certain recordkeeping requirements of the PREA standards duplicated in
part the recordkeeping requirements imposed by other Department
regulations. These comments and the Department's responses thereto are
discussed above in the SUPPLEMENTARY INFORMATION portion of this
preamble and in the RIA.
Changes to the PREA standards made in response to comments on the
NPRM and due to additional analysis resulted in the total PRA burden
hours being greater than those estimated in the Department's initial
information collection request. None of the comments received on the
NPRM pertaining to the PRA aspects of the rule necessitated any changes
in the PRA burden hours estimated by the Department. However, the
Department has submitted to OMB a revised information collection
request with the new burden estimates for review and approval.
List of Subjects in 28 CFR Part 115
Community confinement facilities, Crime, Jails, Juvenile
facilities, Lockups, Prisons, Prisoners.
0
Accordingly, part 115 of Title 28 of the Code of Federal Regulations is
added as follows:
PART 115--PRISON RAPE ELIMINATION ACT NATIONAL STANDARDS
Sec.
[[Page 37198]]
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; PREA
coordinator.
115.12 Contracting with other entities for the confinement of
inmates.
115.13 Supervision and monitoring.
115.14 Youthful inmates.
115.15 Limits to cross-gender viewing and searches.
115.16 Inmates with disabilities and inmates who are limited English
proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.
Responsive Planning
115.21 Evidence protocol and forensic medical examinations.
115.22 Policies to ensure referrals of allegations for
investigations.
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.
115.62 Agency protection duties.
115.63 Reporting to other confinement facilities.
115.64 Staff first responder duties.
115.65 Coordinated response.
115.66 Preservation of ability to protect inmates from contact with
abusers.
115.67 Agency protection against retaliation.
115.68 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 Corrective action for contractors and volunteers.
115.78 Disciplinary sanctions for inmates.
Medical and Mental Care
115.81 Medical and mental health screenings; history of sexual
abuse.
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 Juveniles and youthful detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Detainees with disabilities and detainees who are limited
English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.
Responsive Planning
115.121 Evidence protocol and forensic medical examinations.
115.122 Policies to ensure referrals of allegations for
investigations.
Training and Education
115.131 Employee and volunteer training.
115.132 Detainee, contractor, and inmate worker notification of the
agency's zero-tolerance policy.
115.133 [Reserved]
115.134 Specialized training: Investigations.
115.135 [Reserved]
Screening for Risk of Sexual Victimization and Abusiveness
115.141 Screening for risk of victimization and abusiveness.
115.142 [Reserved]
115.143 [Reserved]
Reporting
115.151 Detainee reporting.
115.152 [Reserved]
115.153 [Reserved]
115.154 Third-party reporting.
Official Response Following a Detainee Report
115.161 Staff and agency reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Staff first responder duties.
115.165 Coordinated response.
115.166 Preservation of ability to protect detainees from contact
with abusers.
115.167 Agency protection against retaliation.
115.168 [Reserved]
Investigations
115.171 Criminal and administrative agency investigations.
115.172 Evidentiary standard for administrative investigations.
115.173 [Reserved]
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.
115.178 Referrals for prosecution for detainee-on-detainee sexual
abuse.
Medical and Mental Care
115.181 [Reserved]
115.182 Access to emergency medical services.
115.183 [Reserved]
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 [Reserved]
115.215 Limits to cross-gender viewing and searches.
115.216 Residents with disabilities and residents who are limited
English proficient.
115.217 Hiring and promotion decisions.
115.218 Upgrades to facilities and technologies.
Responsive Planning
115.221 Evidence protocol and forensic medical examinations.
115.222 Policies to ensure referrals of allegations for
investigations.
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.
115.243 [Reserved]
Reporting
115.251 Resident reporting.
115.252 Exhaustion of administrative remedies.
[[Page 37199]]
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 Agency protection duties.
115.263 Reporting to other confinement facilities.
115.264 Staff first responder duties.
115.265 Coordinated response.
115.266 Preservation of ability to protect residents from contact
with abusers.
115.267 Agency protection against retaliation.
115.268 [Reserved]
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 Corrective action for contractors and volunteers.
115.278 Disciplinary sanctions for residents.
Medical and Mental Care
115.281 [Reserved]
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 [Reserved]
115.315 Limits to cross-gender viewing and searches.
115.316 Residents with disabilities and residents who are limited
English proficient.
115.317 Hiring and promotion decisions.
115.318 Upgrades to facilities and technologies.
Responsive Planning
115.321 Evidence protocol and forensic medical examinations.
115.322 Policies to ensure referrals of allegations for
investigations.
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.
Screening for Risk of Sexual Victimization and Abusiveness
115.341 Obtaining information from residents.
115.342 Placement of residents in housing, bed, program, education,
and work assignments.
115.343 [Reserved]
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 Agency protection duties.
115.363 Reporting to other confinement facilities.
115.364 Staff first responder duties.
115.365 Coordinated response.
115.366 Preservation of ability to protect residents from contact
with abusers.
115.367 Agency protection against retaliation.
115.368 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 Corrective action for contractors and volunteers.
115.378 Interventions and 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.
Subpart E--Auditing and Corrective Action
115.401 Frequency and scope of audits.
115.402 Auditor qualifications.
115.403 Audit contents and findings.
115.404 Audit corrective action plan.
115.405 Audit appeals.
Subpart F--State Compliance
115.501 State determination and certification of full compliance.
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), other than a juvenile
facility, in which individuals 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 nonresidential
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.
Direct staff supervision means that security staff are in the same
room with, and within reasonable hearing distance of, the resident or
inmate.
Employee means a person who works directly for the agency or
facility.
Exigent circumstances means any set of temporary and unforeseen
circumstances that require immediate action in order to combat a threat
to the security or institutional order of a facility.
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.
Full compliance means compliance with all material requirements of
each standard except for de minimis violations, or discrete and
temporary violations during otherwise sustained periods of compliance.
[[Page 37200]]
Gender nonconforming means a person whose appearance or manner does
not conform to traditional societal gender expectations.
Inmate means any person incarcerated or detained in a prison or
jail.
Intersex means a person whose sexual or reproductive anatomy or
chromosomal pattern does not seem to fit typical definitions of male or
female. Intersex medical conditions are sometimes referred to as
disorders of sex development.
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 under adult
court supervision and confined or detained in a prison or jail.
Juvenile facility means a facility primarily used for the
confinement of juveniles pursuant to the juvenile justice system or
criminal justice system.
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.
Secure juvenile facility means a juvenile facility in which the
movements and activities of individual residents may be restricted or
subject to control through the use of physical barriers or intensive
staff supervision. A facility that allows residents access to the
community to achieve treatment or correctional objectives, such as
through educational or employment programs, typically will not be
considered to be a secure juvenile 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.
Transgender means a person whose gender identity (i.e., internal
sense of feeling male or female) is different from the person's
assigned sex at birth.
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.
Youthful inmate means any person under the age of 18 who is under
adult court supervision and incarcerated or detained in a prison or
jail.
Youthful detainee means any person under the age of 18 who is under
adult court supervision and detained in a lockup.
Sec. 115.6 Definitions related to sexual abuse.
For purposes of this part, the term--
Sexual abuse includes--
(1) Sexual abuse of an inmate, detainee, or resident by another
inmate, detainee, or resident; and
(2) Sexual abuse of an inmate, detainee, or resident by a staff
member, contractor, or volunteer.
Sexual abuse of an inmate, detainee, or resident 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:
(1) Contact between the penis and the vulva or the penis and the
anus, including penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration of the anal or genital opening of another person,
however slight, by a hand, finger, object, or other instrument; and
(4) Any other intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or the
buttocks of another person, excluding contact incidental to a physical
altercation.
Sexual abuse of an inmate, detainee, or resident by a staff member,
contractor, or volunteer includes any of the following acts, with or
without consent of the inmate, detainee, or resident:
(1) Contact between the penis and the vulva or the penis and the
anus, including penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Contact between the mouth and any body part where the staff
member, contractor, or volunteer has the intent to abuse, arouse, or
gratify sexual desire;
(4) Penetration of the anal or genital opening, however slight, by
a hand, finger, object, or other instrument, that is unrelated to
official duties or where the staff member, contractor, or volunteer has
the intent to abuse, arouse, or gratify sexual desire;
(5) Any other intentional contact, either directly or through the
clothing, of or with the genitalia, anus, groin, breast, inner thigh,
or the buttocks, that is unrelated to official duties or where the
staff member, contractor, or volunteer has the intent to abuse, arouse,
or gratify sexual desire;
(6) Any attempt, threat, or request by a staff member, contractor,
or volunteer to engage in the activities described in paragraphs (1)
through (5) of this definition;
(7) Any display by a staff member, contractor, or volunteer of his
or her uncovered genitalia, buttocks, or breast in the presence of an
inmate, detainee, or resident, and
[[Page 37201]]
(8) Voyeurism by a staff member, contractor, or volunteer.
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 privacy of an inmate, detainee, or resident 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.
Subpart A--Standards for Adult Prisons and Jails
Prevention Planning
Sec. 115.11 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 with sufficient time and authority to develop,
implement, and oversee agency efforts to comply with the PREA standards
in all of its facilities.
(c) Where an agency operates more than one facility, each facility
shall designate a PREA compliance manager with sufficient time and
authority to coordinate the facility's efforts to comply with the PREA
standards.
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 contract or contract
renewal the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contract or contract renewal shall provide for agency
contract monitoring to ensure that the contractor is complying with the
PREA standards.
Sec. 115.13 Supervision and monitoring.
(a) The agency shall ensure that each facility it operates shall
develop, document, and make its best efforts to comply on a regular
basis with a staffing plan that provides for adequate levels of
staffing, and, where applicable, video monitoring, to protect inmates
against sexual abuse. In calculating adequate staffing levels and
determining the need for video monitoring, facilities shall take into
consideration:
(1) Generally accepted detention and correctional practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight
bodies;
(5) All components of the facility's physical plant (including
``blind-spots'' or areas where staff or inmates may be isolated);
(6) The composition of the inmate population;
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents
of sexual abuse; and
(11) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with,
the facility shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year,
for each facility the agency operates, in consultation with the PREA
coordinator required by Sec. 115.11, the agency shall assess,
determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this
section;
(2) The facility's deployment of video monitoring systems and other
monitoring technologies; and
(3) The resources the facility has available to commit to ensure
adherence to the staffing plan.
(d) Each agency operating a facility shall implement a policy and
practice of having intermediate-level or higher-level supervisors
conduct and document unannounced rounds to identify and deter staff
sexual abuse and sexual harassment. Such policy and practice shall be
implemented for night shifts as well as day shifts. Each agency shall
have a policy to prohibit staff from alerting other staff members that
these supervisory rounds are occurring, unless such announcement is
related to the legitimate operational functions of the facility.
Sec. 115.14 Youthful inmates.
(a) A youthful inmate shall not be placed in a housing unit in
which the youthful inmate will have sight, sound, or physical contact
with any adult inmate through use of a shared dayroom or other common
space, shower area, or sleeping quarters.
(b) In areas outside of housing units, agencies shall either:
(1) Maintain sight and sound separation between youthful inmates
and adult inmates, or
(2) Provide direct staff supervision when youthful inmates and
adult inmates have sight, sound, or physical contact.
(c) Agencies shall make best efforts to avoid placing youthful
inmates in isolation to comply with this provision. Absent exigent
circumstances, agencies shall not deny youthful inmates daily large-
muscle exercise and any legally required special education services to
comply with this provision. Youthful inmates shall also have access to
other programs and work opportunities to the extent possible.
Sec. 115.15 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
cross-gender visual body cavity searches (meaning a search of the anal
or genital opening) except in exigent circumstances or when performed
by medical practitioners.
(b) As of August 20, 2015, or August 21, 2017 for a facility whose
rated capacity does not exceed 50 inmates, the facility shall not
permit cross-gender pat-down searches of female inmates, absent exigent
circumstances. Facilities shall not restrict female inmates' access to
regularly available programming or other out-of-cell opportunities in
order to comply with this provision.
(c) The facility shall document all cross-gender strip searches and
cross-gender visual body cavity searches, and shall document all cross-
gender pat-down searches of female inmates.
(d) The facility shall implement policies and procedures that
enable inmates to shower, perform bodily functions, and change clothing
without nonmedical staff of the opposite gender viewing their breasts,
buttocks, or genitalia, except in exigent circumstances or when such
viewing is incidental to routine cell checks. Such policies and
procedures shall require staff of the opposite gender to announce
[[Page 37202]]
their presence when entering an inmate housing unit.
(e) The facility shall not search or physically examine a
transgender or intersex inmate for the sole purpose of determining the
inmate's genital status. If the inmate's genital status is unknown, it
may be determined during conversations with the inmate, by reviewing
medical records, or, if necessary, by learning that information as part
of a broader medical examination conducted in private by a medical
practitioner.
(f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex
inmates, in a professional and respectful manner, and in the least
intrusive manner possible, consistent with security needs.
Sec. 115.16 Inmates with disabilities and inmates who are limited
English proficient.
(a) The agency shall take appropriate steps to ensure that inmates
with disabilities (including, for example, inmates who are deaf or hard
of hearing, those who are blind or have low vision, or those who have
intellectual, psychiatric, or speech disabilities), have an equal
opportunity to participate in or benefit from all aspects of the
agency's efforts to prevent, detect, and respond to sexual abuse and
sexual harassment. Such steps shall include, when necessary to ensure
effective communication with inmates who are deaf or hard of hearing,
providing access to interpreters who can interpret effectively,
accurately, and impartially, both receptively and expressively, using
any necessary specialized vocabulary. In addition, the agency shall
ensure that written materials are provided in formats or through
methods that ensure effective communication with inmates with
disabilities, including inmates who have intellectual disabilities,
limited reading skills, or who are blind or have low vision. An agency
is not required to take actions that it can demonstrate would result in
a fundamental alteration in the nature of a service, program, or
activity, or in undue financial and administrative burdens, as those
terms are used in regulations promulgated under title II of the
Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse and sexual harassment to inmates who are
limited English proficient, including steps to provide interpreters who
can interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary.
(c) The agency shall not rely on inmate interpreters, inmate
readers, or other types of inmate assistants except in limited
circumstances where an extended delay in obtaining an effective
interpreter could compromise the inmate's safety, the performance of
first-response duties under Sec. 115.64, or the investigation of the
inmate's allegations.
Sec. 115.17 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with inmates, and shall not enlist the services of any
contractor who may have contact with inmates, who--
(1) Has engaged in sexual abuse in a prison, jail, lockup,
community confinement facility, juvenile facility, or other institution
(as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in
sexual activity in the community facilitated by force, overt or implied
threats of force, or coercion, or if the victim did not consent or was
unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have
engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in
determining whether to hire or promote anyone, or to enlist the
services of any contractor, who may have contact with inmates.
(c) Before hiring new employees who may have contact with inmates,
the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best
efforts to contact all prior institutional employers for information on
substantiated allegations of sexual abuse or any resignation during a
pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records
check before enlisting the services of any contractor who may have
contact with inmates.
(e) The agency shall either conduct criminal background records
checks at least every five years of current employees and contractors
who may have contact with inmates or have in place a system for
otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have
contact with inmates directly about previous misconduct described in
paragraph (a) of this section in written applications or interviews for
hiring or promotions and in any interviews or written self-evaluations
conducted as part of reviews of current employees. The agency shall
also impose upon employees a continuing affirmative duty to disclose
any such misconduct.
(g) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse or sexual harassment
involving a former employee upon receiving a request from an
institutional employer for whom such employee has applied to work.
Sec. 115.18 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 examinations.
(a) To the extent the agency is responsible for investigating
allegations of sexual abuse, the agency shall follow a uniform evidence
protocol that maximizes the potential for obtaining usable physical
evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth
where applicable, and, as appropriate, shall be adapted from or
otherwise based on the most recent edition of the U.S. Department of
Justice's Office on Violence Against Women publication, ``A National
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols
developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to
forensic medical examinations, whether on-site or at an outside
facility, without financial cost, where evidentiarily or medically
appropriate. Such examinations shall be performed by Sexual Assault
Forensic Examiners (SAFEs) or Sexual Assault Nurse
[[Page 37203]]
Examiners (SANEs) where possible. If SAFEs or SANEs cannot be made
available, the examination can be performed by other qualified medical
practitioners. The agency shall document its efforts to provide SAFEs
or SANEs.
(d) The agency shall attempt to make available to the victim a
victim advocate from a rape crisis center. If a rape crisis center is
not available to provide victim advocate services, the agency shall
make available to provide these services a qualified staff member from
a community-based organization, or a qualified agency staff member.
Agencies shall document efforts to secure services from rape crisis
centers. For the purpose of this standard, a rape crisis center refers
to an entity that provides intervention and related assistance, such as
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of
sexual assault of all ages. The agency may utilize a rape crisis center
that is part of a governmental unit as long as the center is not part
of the criminal justice system (such as a law enforcement agency) and
offers a comparable level of confidentiality as a nongovernmental
entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified
agency staff member, or qualified community-based organization staff
member shall accompany and support the victim through the forensic
medical examination process and investigatory interviews and shall
provide emotional support, crisis intervention, information, and
referrals.
(f) To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section
shall also apply to:
(1) Any State entity outside of the agency that is responsible for
investigating allegations of sexual abuse in prisons or jails; and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in prisons or jails.
(h) For the purposes of this section, a qualified agency staff
member or a qualified community-based staff member shall be an
individual who has been screened for appropriateness to serve in this
role and has received education concerning sexual assault and forensic
examination issues in general.
Sec. 115.22 Policies to ensure referrals of allegations for
investigations.
(a) The agency shall ensure that an administrative or criminal
investigation is completed for all allegations of sexual abuse and
sexual harassment.
(b) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are referred for
investigation to an agency with the legal authority to conduct criminal
investigations, unless the allegation does not involve potentially
criminal behavior. The agency shall publish such policy on its Web site
or, if it does not have one, make the policy available through other
means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal
investigations, such publication shall describe the responsibilities of
both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in prisons
or jails shall have in place a policy governing the conduct of such
investigations.
(e) Any Department of Justice component responsible for conducting
administrative or criminal investigations of sexual abuse or sexual
harassment in prisons or jails shall have in place a policy governing
the conduct of such investigations.
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
and sexual harassment prevention, detection, reporting, and response
policies and procedures;
(3) Inmates' right to be free from sexual abuse and sexual
harassment;
(4) The right of inmates and employees to be free from retaliation
for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in
confinement;
(6) The common reactions of sexual abuse and sexual harassment
victims;
(7) How to detect and respond to signs of threatened and actual
sexual abuse;
(8) How to avoid inappropriate relationships with inmates;
(9) How to communicate effectively and professionally with inmates,
including lesbian, gay, bisexual, transgender, intersex, or gender
nonconforming inmates; and
(10) How to comply with relevant laws related to mandatory
reporting of sexual abuse to outside authorities.
(b) Such training shall be tailored to the gender of the inmates at
the employee's facility. The employee shall receive additional training
if the employee is reassigned from a facility that houses only male
inmates to a facility that houses only female inmates, or vice versa.
(c) All current employees who have not received such training shall
be trained within one year of the effective date of the PREA standards,
and the agency shall provide each employee with refresher training
every two years to ensure that all employees know the agency's current
sexual abuse and sexual harassment policies and procedures. In years in
which an employee does not receive refresher training, the agency shall
provide refresher information on current sexual abuse and sexual
harassment policies.
(d) The agency shall document, through employee signature or
electronic verification, that employees understand the training they
have received.
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 and sexual harassment prevention,
detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and
contractors shall be based on the services they provide and level of
contact they have with inmates, but all volunteers and contractors who
have contact with inmates shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and
informed how to report such incidents.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.33 Inmate education.
(a) During the intake process, inmates shall receive information
explaining the agency's zero-tolerance policy regarding sexual abuse
and sexual harassment and how to report incidents or suspicions of
sexual abuse or sexual harassment.
(b) Within 30 days of intake, the agency shall provide
comprehensive education to inmates either in person or through video
regarding their rights to be free from sexual abuse and sexual
harassment and to be free from retaliation for reporting such
incidents, and regarding agency policies and
[[Page 37204]]
procedures for responding to such incidents.
(c) Current inmates who have not received such education shall be
educated within one year of the effective date of the PREA standards,
and shall receive education upon transfer to a different facility to
the extent that the policies and procedures of the inmate's new
facility differ from those of the previous facility.
(d) The agency shall provide inmate education in formats accessible
to all inmates, including those who are limited English proficient,
deaf, visually impaired, or otherwise disabled, as well as to inmates
who have limited reading skills.
(e) The agency shall maintain documentation of inmate participation
in these education sessions.
(f) In addition to providing such education, the agency shall
ensure that key information is continuously and readily available or
visible to inmates through posters, inmate handbooks, or other written
formats.
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 and sexual
harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of
sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual
abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic
examinations, such medical staff shall receive the appropriate training
to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental
health practitioners have received the training referenced in this
standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive
the training mandated for employees under Sec. 115.31 or for
contractors and volunteers under Sec. 115.32, depending upon the
practitioner's status at the agency.
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.41 Screening for risk of victimization and abusiveness.
(a) All inmates shall be assessed during an intake screening and
upon transfer to another facility for their risk of being sexually
abused by other inmates or sexually abusive toward other inmates.
(b) Intake screening shall ordinarily take place within 72 hours of
arrival at the facility.
(c) Such assessments shall be conducted using an objective
screening instrument.
(d) The intake screening shall consider, at a minimum, the
following criteria to assess inmates for risk of sexual victimization:
(1) Whether the inmate has a mental, physical, or developmental
disability;
(2) The age of the inmate;
(3) The physical build of the inmate;
(4) Whether the inmate has previously been incarcerated;
(5) Whether the inmate's criminal history is exclusively
nonviolent;
(6) Whether the inmate has prior convictions for sex offenses
against an adult or child;
(7) Whether the inmate is or is perceived to be gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the inmate has previously experienced sexual
victimization;
(9) The inmate's own perception of vulnerability; and
(10) Whether the inmate is detained solely for civil immigration
purposes.
(e) The initial screening shall consider prior acts of sexual
abuse, prior convictions for violent offenses, and history of prior
institutional violence or sexual abuse, as known to the agency, in
assessing inmates for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the
inmate's arrival at the facility, the facility will reassess the
inmate's risk of victimization or abusiveness based upon any
additional, relevant information received by the facility since the
intake screening.
(g) An inmate's risk level shall be reassessed when warranted due
to a referral, request, incident of sexual abuse, or receipt of
additional information that bears on the inmate's risk of sexual
victimization or abusiveness.
(h) Inmates may not be disciplined for refusing to answer, or for
not disclosing complete information in response to, questions asked
pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this
section.
(i) The agency shall implement appropriate controls on the
dissemination within the facility of responses to questions asked
pursuant to this standard in order to ensure that sensitive information
is not exploited to the inmate's detriment by staff or other inmates.
Sec. 115.42 Use of screening information.
(a) The agency shall use information from the risk screening
required by Sec. 115.41 to inform housing, bed, work, education, and
program assignments with the goal of keeping separate those inmates at
high risk of being sexually victimized from those at high risk of being
sexually abusive.
(b) The agency shall make individualized determinations about how
to ensure the safety of each inmate.
(c) In deciding whether to assign a transgender or intersex inmate
to a facility for male or female inmates, and in making other housing
and programming assignments, the agency shall consider on a case-by-
case basis whether a placement would ensure the inmate's health and
safety, and whether the placement would present management or security
problems.
(d) Placement and programming assignments for each transgender or
intersex inmate shall be reassessed at least twice each year to review
any threats to safety experienced by the inmate.
(e) A transgender or intersex inmate's own views with respect to
his or her own safety shall be given serious consideration.
(f) Transgender and intersex inmates shall be given the opportunity
to shower separately from other inmates.
[[Page 37205]]
(g) The agency shall not place lesbian, gay, bisexual, transgender,
or intersex inmates in dedicated facilities, units, or wings solely on
the basis of such identification or status, unless such placement is in
a dedicated facility, unit, or wing established in connection with a
consent decree, legal settlement, or legal judgment for the purpose of
protecting such inmates.
Sec. 115.43 Protective custody.
(a) Inmates at high risk for sexual victimization shall not be
placed in involuntary segregated housing unless an assessment of all
available alternatives has been made, and a determination has been made
that there is no available alternative means of separation from likely
abusers. If a facility cannot conduct such an assessment immediately,
the facility may hold the inmate in involuntary segregated housing for
less than 24 hours while completing the assessment.
(b) Inmates placed in segregated housing for this purpose shall
have access to programs, privileges, education, and work opportunities
to the extent possible. If the facility restricts access to programs,
privileges, education, or work opportunities, the facility shall
document:
(1) The opportunities that have been limited;
(2) The duration of the limitation; and
(3) The reasons for such limitations.
(c) The facility shall assign such inmates to involuntary
segregated housing only until an alternative means of separation from
likely abusers can be arranged, and such an assignment shall not
ordinarily exceed a period of 30 days.
(d) If an involuntary segregated housing assignment is made
pursuant to paragraph (a) of this section, the facility shall clearly
document:
(1) The basis for the facility's concern for the inmate's safety;
and
(2) The reason why no alternative means of separation can be
arranged.
(e) Every 30 days, the facility shall afford each such inmate a
review to determine whether there is a continuing need for separation
from the general population.
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 such incidents.
(b) The agency shall also provide at least one way for inmates to
report abuse or harassment to a public or private entity or office that
is not part of the agency, and that is able to receive and immediately
forward inmate reports of sexual abuse and sexual harassment to agency
officials, allowing the inmate to remain anonymous upon request.
Inmates detained solely for civil immigration purposes shall be
provided information on how to contact relevant consular officials and
relevant officials at the Department of Homeland Security.
(c) Staff shall accept reports made verbally, in writing,
anonymously, and from third parties and shall promptly document any
verbal reports.
(d) The agency shall provide a method for staff to privately report
sexual abuse and sexual harassment of inmates.
Sec. 115.52 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not
have administrative procedures to address inmate grievances regarding
sexual abuse.
(b)(1) The agency shall not impose a time limit on when an inmate
may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits to any
portion of a grievance that does not allege an incident of sexual
abuse.
(3) The agency shall not require an inmate to use any informal
grievance process, or to otherwise attempt to resolve with staff, an
alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to
defend against an inmate lawsuit on the ground that the applicable
statute of limitations has expired.
(c) The agency shall ensure that--
(1) An inmate who alleges sexual abuse may submit a grievance
without submitting it to a staff member who is the subject of the
complaint, and
(2) Such grievance is not referred to a staff member who is the
subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits
of any portion of a grievance alleging sexual abuse within 90 days of
the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time
consumed by inmates in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to
70 days, if the normal time period for response is insufficient to make
an appropriate decision. The agency shall notify the inmate in writing
of any such extension and provide a date by which a decision will be
made.
(4) At any level of the administrative process, including the final
level, if the inmate does not receive a response within the time
allotted for reply, including any properly noticed extension, the
inmate may consider the absence of a response to be a denial at that
level.
(e)(1) Third parties, including fellow inmates, staff members,
family members, attorneys, and outside advocates, shall be permitted to
assist inmates in filing requests for administrative remedies relating
to allegations of sexual abuse, and shall also be permitted to file
such requests on behalf of inmates.
(2) If a third party files such a request on behalf of an inmate,
the facility may require as a condition of processing the request that
the alleged victim agree to have the request filed on his or her
behalf, and may also require the alleged victim to personally pursue
any subsequent steps in the administrative remedy process.
(3) If the inmate declines to have the request processed on his or
her behalf, the agency shall document the inmate's decision.
(f)(1) The agency shall establish procedures for the filing of an
emergency grievance alleging that an inmate is subject to a substantial
risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging an inmate is
subject to a substantial risk of imminent sexual abuse, the agency
shall immediately forward the grievance (or any portion thereof that
alleges the substantial risk of imminent sexual abuse) to a level of
review at which immediate corrective action may be taken, shall provide
an initial response within 48 hours, and shall issue a final agency
decision within 5 calendar days. The initial response and final agency
decision shall document the agency's determination whether the inmate
is in substantial risk of imminent sexual abuse and the action taken in
response to the emergency grievance.
(g) The agency may discipline an inmate for filing a grievance
related to alleged sexual abuse only where the agency demonstrates that
the inmate filed the grievance in bad faith.
Sec. 115.53 Inmate access to outside confidential support services.
(a) The facility shall provide inmates with access to outside
victim advocates for emotional support services related to sexual abuse
by giving inmates mailing
[[Page 37206]]
addresses and telephone numbers, including toll-free hotline numbers
where available, of local, State, or national victim advocacy or rape
crisis organizations, and, for persons detained solely for civil
immigration purposes, immigrant services agencies. The facility shall
enable reasonable communication between inmates and these organizations
and agencies, in as confidential a manner as possible.
(b) The facility shall inform inmates, prior to giving them access,
of the extent to which such communications will be monitored and the
extent to which reports of abuse will be forwarded to authorities in
accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers that
are able to provide inmates with confidential emotional support
services related to sexual abuse. The agency shall maintain copies of
agreements or documentation showing attempts to enter into such
agreements.
Sec. 115.54 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse and sexual harassment and shall distribute publicly
information on how to report sexual abuse and sexual harassment on
behalf of an inmate.
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 or sexual harassment that
occurred in a facility, whether or not it is part of the agency;
retaliation against inmates or staff who reported such an incident; and
any staff neglect or violation of responsibilities that may have
contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials,
staff shall not reveal any information related to a sexual abuse report
to anyone other than to the extent necessary, as specified in agency
policy, to make treatment, investigation, and other security and
management decisions.
(c) Unless otherwise precluded by Federal, State, or local law,
medical and mental health practitioners shall be required to report
sexual abuse pursuant to paragraph (a) of this section and to inform
inmates of the practitioner's duty to report, and the limitations of
confidentiality, at the initiation of services.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and
sexual harassment, including third-party and anonymous reports, to the
facility's designated investigators.
Sec. 115.62 Agency protection duties.
When an agency learns that an inmate is subject to a substantial
risk of imminent sexual abuse, it shall take immediate action to
protect the inmate.
Sec. 115.63 Reporting to other confinement facilities.
(a) Upon receiving an allegation that an inmate was sexually abused
while confined at another facility, the head of the facility that
received the allegation shall notify the head of the facility or
appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no
later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such
notification.
(d) The facility head or agency office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.64 Staff first responder duties.
(a) Upon learning of an allegation that an inmate was sexually
abused, the first security staff member to respond to the report shall
be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps
can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request that the alleged
victim not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member,
the responder shall be required to request that the alleged victim not
take any actions that could destroy physical evidence, and then notify
security staff.
Sec. 115.65 Coordinated response.
The facility shall develop a written institutional plan to
coordinate actions taken in response to an incident of sexual abuse,
among staff first responders, medical and mental health practitioners,
investigators, and facility leadership.
Sec. 115.66 Preservation of ability to protect inmates from contact
with abusers.
(a) Neither the agency nor any other governmental entity
responsible for collective bargaining on the agency's behalf shall
enter into or renew any collective bargaining agreement or other
agreement that limits the agency's ability to remove alleged staff
sexual abusers from contact with any inmates pending the outcome of an
investigation or of a determination of whether and to what extent
discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or
renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such
agreements are not inconsistent with the provisions of Sec. Sec.
115.72 and 115.76; or
(2) Whether a no-contact assignment that is imposed pending the
outcome of an investigation shall be expunged from or retained in the
staff member's personnel file following a determination that the
allegation of sexual abuse is not substantiated.
Sec. 115.67 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all inmates and
staff who report sexual abuse or sexual harassment or cooperate with
sexual abuse or sexual harassment investigations from retaliation by
other inmates or staff, and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as
housing changes or transfers for inmate victims or abusers, removal of
alleged staff or inmate abusers from contact with victims, and
emotional support services for inmates or staff who fear retaliation
for reporting sexual abuse or sexual harassment or for cooperating with
investigations.
(c) For at least 90 days following a report of sexual abuse, the
agency shall monitor the conduct and treatment of inmates or staff who
reported the sexual abuse and of inmates who were reported to have
suffered sexual abuse to see if
[[Page 37207]]
there are changes that may suggest possible retaliation by inmates or
staff, and shall act promptly to remedy any such retaliation. Items the
agency should monitor include any inmate disciplinary reports, housing,
or program changes, or negative performance reviews or reassignments of
staff. The agency shall continue such monitoring beyond 90 days if the
initial monitoring indicates a continuing need.
(d) In the case of inmates, such monitoring shall also include
periodic status checks.
(e) If any other individual who cooperates with an investigation
expresses a fear of retaliation, the agency shall take appropriate
measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency
determines that the allegation is unfounded.
Sec. 115.68 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 and sexual harassment, it shall do so
promptly, thoroughly, and objectively for all allegations, including
third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use
investigators who have received special training in sexual abuse
investigations pursuant to Sec. 115.34.
(c) Investigators shall gather and preserve direct and
circumstantial evidence, including any available physical and DNA
evidence and any available electronic monitoring data; shall interview
alleged victims, suspected perpetrators, and witnesses; and shall
review prior complaints and reports of sexual abuse involving the
suspected perpetrator.
(d) When the quality of evidence appears to support criminal
prosecution, the agency shall conduct compelled interviews only after
consulting with prosecutors as to whether compelled interviews may be
an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall
be assessed on an individual basis and shall not be determined by the
person's status as inmate or staff. No agency shall require an inmate
who alleges sexual abuse to submit to a polygraph examination or other
truth-telling device as a condition for proceeding with the
investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a
description of the physical and testimonial evidence, the reasoning
behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report
that contains a thorough description of physical, testimonial, and
documentary evidence and attaches copies of all documentary evidence
where feasible.
(h) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in
paragraphs (f) and (g) of this section for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the
employment or control of the facility or agency shall not provide a
basis for terminating an investigation.
(k) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(l) When outside agencies investigate sexual abuse, the facility
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
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 or
sexual harassment 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 against the inmate, the agency shall
subsequently inform the inmate (unless the agency has determined that
the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the inmate's unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a
charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a
charge related to sexual abuse within the facility.
(d) Following an inmate's allegation that he or she has been
sexually abused by another inmate, the agency shall subsequently inform
the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on
a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on
a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be
documented.
(f) An agency's obligation to report under this standard shall
terminate if the inmate is released from the agency's custody.
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 abuse.
(c) Disciplinary sanctions for violations of agency policies
relating to sexual abuse or sexual harassment (other than actually
engaging in sexual abuse) shall be commensurate with the nature and
circumstances of the acts committed, the staff member's disciplinary
history, and the sanctions imposed for comparable offenses by other
staff with similar histories.
(d) All terminations for violations of agency sexual abuse or
sexual harassment policies, or resignations by staff who would have
been terminated if not for their resignation, shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to any relevant licensing bodies.
Sec. 115.77 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall
be
[[Page 37208]]
prohibited from contact with inmates and shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with inmates, in the
case of any other violation of agency sexual abuse or sexual harassment
policies by a contractor or volunteer.
Sec. 115.78 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) An agency may, in its discretion, prohibit all sexual activity
between inmates and may discipline inmates for such activity. An agency
may not, however, deem such activity to constitute sexual abuse if it
determines that the activity is not coerced.
Medical and Mental Care
Sec. 115.81 Medical and mental health screenings; history of sexual
abuse.
(a) If the screening pursuant to Sec. 115.41 indicates that a
prison inmate has experienced prior sexual victimization, whether it
occurred in an institutional setting or in the community, staff shall
ensure that the inmate is offered a follow-up meeting with a medical or
mental health practitioner within 14 days of the intake screening.
(b) If the screening pursuant to Sec. 115.41 indicates that a
prison inmate has previously perpetrated sexual abuse, whether it
occurred in an institutional setting or in the community, staff shall
ensure that the inmate is offered a follow-up meeting with a mental
health practitioner within 14 days of the intake screening.
(c) If the screening pursuant to Sec. 115.41 indicates that a jail
inmate has experienced prior sexual victimization, whether it occurred
in an institutional setting or in the community, staff shall ensure
that the inmate is offered a follow-up meeting with a medical or mental
health practitioner within 14 days of the intake screening.
(d) Any information related to sexual victimization or abusiveness
that occurred in an institutional setting shall be strictly limited to
medical and mental health practitioners and other staff, as necessary,
to inform treatment plans and security and management decisions,
including housing, bed, work, education, and program assignments, or as
otherwise required by Federal, State, or local law.
(e) Medical and mental health practitioners shall obtain informed
consent from inmates before reporting information about prior sexual
victimization that did not occur in an institutional setting, unless
the inmate is under the age of 18.
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) 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. 115.62 and shall immediately notify the appropriate medical
and mental health practitioners.
(c) Inmate victims of sexual abuse while incarcerated shall be
offered timely information about and timely access to emergency
contraception and sexually transmitted infections prophylaxis, in
accordance with professionally accepted standards of care, where
medically appropriate.
(d) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
Sec. 115.83 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer medical and mental health evaluation
and, as appropriate, treatment to all inmates who have been victimized
by sexual abuse in any prison, jail, lockup, or juvenile facility.
(b) The evaluation and treatment of such victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental
health services consistent with the community level of care.
(d) Inmate victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from the conduct described in paragraph
(d) of this section, such victims shall receive timely and
comprehensive information about and timely access to all lawful
pregnancy-related medical services.
(f) Inmate victims of sexual abuse while incarcerated shall be
offered tests for sexually transmitted infections as medically
appropriate.
(g) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
(h) All prisons shall attempt to conduct a mental health evaluation
of all known inmate-on-inmate abusers within 60 days of learning of
such abuse history and offer treatment when deemed appropriate by
mental health practitioners.
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) Such review shall ordinarily occur within 30 days of the
conclusion of the investigation.
(c) The review team shall include upper-level management officials,
with
[[Page 37209]]
input from line supervisors, investigators, and medical or mental
health practitioners.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a
need to change policy or practice to better prevent, detect, or respond
to sexual abuse;
(2) Consider whether the incident or allegation was motivated by
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender,
or intersex identification, status, or perceived status; or gang
affiliation; or was motivated or otherwise caused by other group
dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly
occurred to assess whether physical barriers in the area may enable
abuse;
(4) Assess the adequacy of staffing levels in that area during
different shifts;
(5) Assess whether monitoring technology should be deployed or
augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily
limited to determinations made pursuant to paragraphs (d)(1) through
(d)(5) of this section, and any recommendations for improvement and
submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for
improvement, or shall document its reasons for not doing so.
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.
(d) The agency shall maintain, review, and collect data as needed
from all available incident-based documents, including reports,
investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data
from every private facility with which it contracts for the confinement
of its inmates.
(f) Upon request, the agency shall provide all such data from the
previous calendar year to the Department of Justice no later than June
30.
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 by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective
actions for each facility, as well as the agency as a whole.
(b) Such report shall include a comparison of the current year's
data and corrective actions with those from prior years and shall
provide an assessment of the agency's progress in addressing sexual
abuse.
(c) The agency's report shall be approved by the agency head and
made readily available to the public through its Web site or, if it
does not have one, through other means.
(d) The agency may redact specific material from the reports when
publication would present a clear and specific threat to the safety and
security of a facility, but must indicate the nature of the material
redacted.
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 collected pursuant
to Sec. 115.87 for at least 10 years after the date of the initial
collection unless Federal, State, or local law requires otherwise.
Audits
Sec. 115.93 Audits of standards.
The agency shall conduct audits pursuant to Sec. Sec. 115.401
through 115.405.
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 with sufficient time and authority 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
contract or contract renewal the entity's obligation to adopt and
comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency
contract monitoring to ensure that the contractor is complying with the
PREA standards.
Sec. 115.113 Supervision and monitoring.
(a) For each lockup, the agency shall develop and document a
staffing plan that provides for adequate levels of staffing, and, where
applicable, video monitoring, to protect detainees against sexual
abuse. In calculating adequate staffing levels and determining the need
for video monitoring, agencies shall take into consideration;
(1) The physical layout of each lockup;
(2) The composition of the detainee population;
(3) The prevalence of substantiated and unsubstantiated incidents
of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with,
the lockup shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year,
the lockup shall assess, determine, and document whether adjustments
are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this
section;
(2) Prevailing staffing patterns;
(3) The lockup's deployment of video monitoring systems and other
monitoring technologies; and
(4) The resources the lockup has available to commit to ensure
adequate staffing levels.
(d) If vulnerable detainees are identified pursuant to the
screening required by Sec. 115.141, security staff shall provide such
detainees with
[[Page 37210]]
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.
Sec. 115.114 Juveniles and youthful detainees.
Juveniles and youthful detainees shall be held separately from
adult detainees.
Sec. 115.115 Limits to cross-gender viewing and searches.
(a) The lockup shall not conduct cross-gender strip searches or
cross-gender visual body cavity searches (meaning a search of the anal
or genital opening) except in exigent circumstances or when performed
by medical practitioners.
(b) The lockup shall document all cross-gender strip searches and
cross-gender visual body cavity searches.
(c) The lockup shall implement policies and procedures that enable
detainees to shower, perform bodily functions, and change clothing
without nonmedical staff of the opposite gender viewing their breasts,
buttocks, or genitalia, except in exigent circumstances or when such
viewing is incidental to routine cell checks. Such policies and
procedures shall require staff of the opposite gender to announce their
presence when entering an area where detainees are likely to be
showering, performing bodily functions, or changing clothing.
(d) The lockup shall not search or physically examine a transgender
or intersex detainee for the sole purpose of determining the detainee's
genital status. If the detainee's genital status is unknown, it may be
determined during conversations with the detainee, by reviewing medical
records, or, if necessary, by learning that information as part of a
broader medical examination conducted in private by a medical
practitioner.
(e) The agency shall train law enforcement staff in how to conduct
cross-gender pat-down searches, and searches of transgender and
intersex detainees, in a professional and respectful manner, and in the
least intrusive manner possible, consistent with security needs.
Sec. 115.116 Detainees with disabilities and detainees who are
limited English proficient.
(a) The agency shall take appropriate steps to ensure that
detainees with disabilities (including, for example, detainees who are
deaf or hard of hearing, those who are blind or have low vision, or
those who have intellectual, psychiatric, or speech disabilities), have
an equal opportunity to participate in or benefit from all aspects of
the agency's efforts to prevent, detect, and respond to sexual abuse
and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with detainees who are deaf or hard of
hearing, providing access to interpreters who can interpret
effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition,
the agency shall ensure that written materials are provided in formats
or through methods that ensure effective communication with detainees
with disabilities, including detainees who have intellectual
disabilities, limited reading skills, or who are blind or have low
vision. An agency is not required to take actions that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity, or in undue financial and administrative
burdens, as those terms are used in regulations promulgated under title
II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse and sexual harassment to detainees who are
limited English proficient, including steps to provide interpreters who
can interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary.
(c) The agency shall not rely on detainee interpreters, detainee
readers, or other types of detainee assistants except in limited
circumstances where an extended delay in obtaining an effective
interpreter could compromise the detainee's safety, the performance of
first-response duties under Sec. 115.164, or the investigation of the
detainee's allegations.
Sec. 115.117 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with detainees, and shall not enlist the services of any
contractor who may have contact with detainees, who--
(1) Has engaged in sexual abuse in a prison, jail, lockup,
community confinement facility, juvenile facility, or other institution
(as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in
sexual activity in the community facilitated by force, overt or implied
threats of force, or coercion, or if the victim did not consent or was
unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have
engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in
determining whether to hire or promote anyone, or to enlist the
services of any contractor, who may have contact with detainees.
(c) Before hiring new employees who may have contact with
detainees, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best
efforts to contact all prior institutional employers for information on
substantiated allegations of sexual abuse or any resignation during a
pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records
check before enlisting the services of any contractor who may have
contact with detainees.
(e) The agency shall either conduct criminal background records
checks at least every five years of current employees and contractors
who may have contact with detainees or have in place a system for
otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have
contact with detainees directly about previous misconduct described in
paragraph (a) of this section in written applications or interviews for
hiring or promotions and in any interviews or written self-evaluations
conducted as part of reviews of current employees. The agency shall
also impose upon employees a continuing affirmative duty to disclose
any such misconduct.
(g) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse or sexual harassment
involving a former employee upon receiving a request from an
institutional employer for whom such employee has applied to work.
Sec. 115.118 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
[[Page 37211]]
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 examinations.
(a) To the extent the agency is responsible for investigating
allegations of sexual abuse in its lockups, the agency shall follow a
uniform evidence protocol that maximizes the potential for obtaining
usable physical evidence for administrative proceedings and criminal
prosecutions.
(b) The protocol shall be developmentally appropriate for youth
where applicable, and, as appropriate, shall be adapted from or
otherwise based on the most recent edition of the U.S. Department of
Justice's Office on Violence Against Women publication, ``A National
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols
developed after 2011. As part of the training required in 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 examinations whether on-site or at an outside
facility, without financial cost, where evidentiarily or medically
appropriate. Such examinations shall be performed by Sexual Assault
Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs)
where possible. If SAFEs or SANEs cannot be made available, the
examination can be performed by other qualified medical practitioners.
The agency shall document its efforts to provide SAFEs or SANEs.
(d) If the detainee is transported for a forensic examination to an
outside hospital that offers victim advocacy services, the detainee
shall be permitted to use such services to the extent available,
consistent with security needs.
(e) To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (d) of this section.
(f) The requirements in paragraphs (a) through (e) of this section
shall also apply to:
(1) Any State entity outside of the agency that is responsible for
investigating allegations of sexual abuse in lockups; and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in lockups.
Sec. 115.122 Policies to ensure referrals of allegations for
investigations.
(a) The agency shall ensure that an administrative or criminal
investigation is completed for all allegations of sexual abuse and
sexual harassment.
(b) If another law enforcement agency is responsible for conducting
investigations of allegations of sexual abuse or sexual harassment in
its lockups, the agency shall have in place a policy to ensure that
such allegations are referred for investigation to an agency with the
legal authority to conduct criminal investigations, unless the
allegation does not involve potentially criminal behavior. The agency
shall publish such policy, including a description of responsibilities
of both the agency and the investigating entity, on its Web site, or,
if it does not have one, make available the policy through other means.
The agency shall document all such referrals.
(c) Any State entity responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in lockups
shall have in place a policy governing the conduct of such
investigations.
(d) Any Department of Justice component responsible for conducting
administrative or criminal investigations of sexual abuse or sexual
harassment in lockups shall have in place a policy governing the
conduct of such investigations.
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, including training on:
(1) The agency's zero-tolerance policy and detainees' right to be
free from sexual abuse and sexual harassment;
(2) The dynamics of sexual abuse and harassment in confinement
settings, including which detainees are most vulnerable in lockup
settings;
(3) The right of detainees and employees to be free from
retaliation for reporting sexual abuse or harassment;
(4) How to detect and respond to signs of threatened and actual
abuse;
(5) How to communicate effectively and professionally with all
detainees; and
(6) How to comply with relevant laws related to mandatory reporting
of sexual abuse to outside authorities.
(b) All current employees and volunteers who may have contact with
lockup detainees shall be trained within one year of the effective date
of the PREA standards, and the agency shall provide annual refresher
information to all such employees and volunteers to ensure that they
know the agency's current sexual abuse and sexual harassment policies
and procedures.
(c) The agency shall document, through employee signature or
electronic verification, that employees understand the training they
have received.
Sec. 115.132 Detainee, 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 and sexual
harassment.
(b) The agency shall ensure that, upon entering the lockup,
contractors and any inmates who work in the lockup are informed of the
agency's zero-tolerance policy regarding sexual abuse and sexual
harassment.
Sec. 115.133 [Reserved]
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
[[Page 37212]]
sexual abuse in lockups shall provide such training to their agents and
investigators who conduct such investigations.
Sec. 115.135 [Reserved]
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.141 Screening for risk of victimization and abusiveness.
(a) In lockups that are not utilized to house detainees overnight,
before placing any detainees together in a holding cell, staff shall
consider whether, based on the information before them, a detainee may
be at a high risk of being sexually abused and, when appropriate, shall
take necessary steps to mitigate any such danger to the detainee.
(b) In lockups that are utilized to house detainees overnight, all
detainees shall be screened to assess their risk of being sexually
abused by other detainees or sexually abusive toward other detainees.
(c) In lockups described in paragraph (b) of this section, staff
shall ask the detainee about his or her own perception of
vulnerability.
(d) The screening process in the lockups described in paragraph (b)
of this section shall also consider, to the extent that the information
is available, the following criteria to screen detainees for risk of
sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental
disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated; and
(5) The nature of the detainee's alleged offense and criminal
history.
Sec. 115.142 [Reserved]
Sec. 115.143 [Reserved]
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 such incidents.
(b) The agency shall also inform detainees of at least one way to
report abuse or harassment to a public or private entity or office that
is not part of the agency, and that is able to receive and immediately
forward detainee reports of sexual abuse and sexual harassment to
agency officials, allowing the detainee to remain anonymous upon
request.
(c) Staff shall accept reports made verbally, in writing,
anonymously, and from third parties and promptly document any verbal
reports.
(d) The agency shall provide a method for staff to privately report
sexual abuse and sexual harassment of detainees.
Sec. 115.152 [Reserved]
Sec. 115.153 [Reserved]
Sec. 115.154 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse and sexual harassment in its lockups and shall
distribute publicly information on how to report sexual abuse and
sexual harassment on behalf of a detainee.
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 or sexual harassment that
occurred in an agency lockup; retaliation against detainees or staff
who reported such an incident; and any staff neglect or violation of
responsibilities that may have contributed to an incident or
retaliation.
(b) Apart from reporting to designated supervisors or officials,
staff shall not reveal any information related to a sexual abuse report
to anyone other than to the extent necessary, as specified in agency
policy, to make treatment and investigation decisions.
(c) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
(d) The agency shall report all allegations of sexual abuse,
including third-party and anonymous reports, to the agency's designated
investigators.
Sec. 115.162 Agency protection duties.
When an agency learns that a detainee is subject to a substantial
risk of imminent sexual abuse, it shall take immediate action to
protect the detainee.
Sec. 115.163 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually
abused while confined at another facility, the head of the facility
that received the allegation shall notify the head of the facility or
appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no
later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such
notification.
(d) The facility head or agency office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.164 Staff first responder duties.
(a) Upon learning of an allegation that a detainee was sexually
abused, the first law enforcement staff member to respond to the report
shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps
can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request that the alleged
victim not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff
member, the responder shall be required to request that the alleged
victim not take any actions that could destroy physical evidence and
then notify law enforcement staff.
Sec. 115.165 Coordinated response.
(a) The agency shall develop a written institutional plan to
coordinate actions taken in response to a lockup incident of sexual
abuse, among staff first responders, medical and mental health
practitioners, investigators, and agency leadership.
(b) If a victim is transferred from the lockup to a jail, prison,
or medical facility, the agency shall, as permitted by law, inform the
receiving facility of the incident and the victim's potential need for
medical or social services, unless the victim requests otherwise.
[[Page 37213]]
Sec. 115.166 Preservation of ability to protect detainees from
contact with abusers.
(a) Neither the agency nor any other governmental entity
responsible for collective bargaining on the agency's behalf shall
enter into or renew any collective bargaining agreement or other
agreement that limits the agency's ability to remove alleged staff
sexual abusers from contact with detainees pending the outcome of an
investigation or of a determination of whether and to what extent
discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or
renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such
agreements are not inconsistent with the provisions of Sec. Sec.
115.172 and 115.176; or
(2) Whether a no-contact assignment that is imposed pending the
outcome of an investigation shall be expunged from or retained in the
staff member's personnel file following a determination that the
allegation of sexual abuse is not substantiated.
Sec. 115.167 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all detainees
and staff who report sexual abuse or sexual harassment or cooperate
with sexual abuse or sexual harassment investigations from retaliation
by other detainees or staff, and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as
housing changes or transfers for detainee victims or abusers, removal
of alleged staff or detainee abusers from contact with victims, and
emotional support services for staff who fear retaliation for reporting
sexual abuse or sexual harassment or for cooperating with
investigations.
(c) The agency shall monitor the conduct and treatment of detainees
or staff who have reported sexual abuse and of detainees who were
reported to have suffered sexual abuse, and shall act promptly to
remedy any such retaliation.
(d) If any other individual who cooperates with an investigation
expresses a fear of retaliation, the agency shall take appropriate
measures to protect that individual against retaliation.
(e) An agency's obligation to monitor shall terminate if the agency
determines that the allegation is unfounded.
Sec. 115.168 [Reserved]
Investigations
Sec. 115.171 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse and sexual harassment, it shall do so
promptly, thoroughly, and objectively for all allegations, including
third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use
investigators who have received special training in sexual abuse
investigations pursuant to Sec. 115.134.
(c) Investigators shall gather and preserve direct and
circumstantial evidence, including any available physical and DNA
evidence and any available electronic monitoring data; shall interview
alleged victims, suspected perpetrators, and witnesses; and shall
review prior complaints and reports of sexual abuse involving the
suspected perpetrator.
(d) When the quality of evidence appears to support criminal
prosecution, the agency shall conduct compelled interviews only after
consulting with prosecutors as to whether compelled interviews may be
an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall
be assessed on an individual basis and shall not be determined by the
person's status as detainee or staff. No agency shall require a
detainee who alleges sexual abuse to submit to a polygraph examination
or other truth-telling device as a condition for proceeding with the
investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a
description of the physical and testimonial evidence, the reasoning
behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report
that contains a thorough description of physical, testimonial, and
documentary evidence and attaches copies of all documentary evidence
where feasible.
(h) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in
paragraphs (f) and (g) of this section for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the
employment or control of the lockup or agency shall not provide a basis
for terminating an investigation.
(k) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(l) When outside agencies investigate sexual abuse, the agency
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
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 or
sexual harassment are substantiated.
Sec. 115.173 [Reserved]
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 abuse.
(c) Disciplinary sanctions for violations of agency policies
relating to sexual abuse or sexual harassment (other than actually
engaging in sexual abuse) shall be commensurate with the nature and
circumstances of the acts committed, the staff member's disciplinary
history, and the sanctions imposed for comparable offenses by other
staff with similar histories.
(d) All terminations for violations of agency sexual abuse or
sexual harassment policies, or resignations by staff who would have
been terminated if not for their resignation, shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to any relevant licensing bodies.
Sec. 115.177 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall
be prohibited from contact with detainees and shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with detainees, in
the case of any other violation of agency sexual abuse or
[[Page 37214]]
sexual harassment policies by a contractor or volunteer.
Sec. 115.178 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 and Mental Care
Sec. 115.181 [Reserved]
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 or
cooperates with any investigation arising out of the incident.
Sec. 115.183 [Reserved]
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) Such review shall ordinarily occur within 30 days of the
conclusion of the investigation.
(c) The review team shall include upper-level management officials,
with input from line supervisors and investigators.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a
need to change policy or practice to better prevent, detect, or respond
to sexual abuse;
(2) Consider whether the incident or allegation was motivated by
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender,
or intersex identification, status, or perceived status; or gang
affiliation; or was motivated or otherwise caused by other group
dynamics at the lockup;
(3) Examine the area in the lockup where the incident allegedly
occurred to assess whether physical barriers in the area may enable
abuse;
(4) Assess the adequacy of staffing levels in that area during
different shifts;
(5) Assess whether monitoring technology should be deployed or
augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily
limited to determinations made pursuant to paragraphs (d)(1) through
(d)(5) of this section, and any recommendations for improvement and
submit such report to the lockup head and agency PREA coordinator.
(e) The lockup shall implement the recommendations for improvement,
or shall document its reasons for not doing so.
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, or any subsequent form developed by the
Department of Justice and designated for lockups.
(d) The agency shall maintain, review, and collect data as needed
from all available incident-based documents, including reports,
investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data
from any private agency with which it contracts for the confinement of
its detainees.
(f) Upon request, the agency shall provide all such data from the
previous calendar year to the Department of Justice no later than June
30.
Sec. 115.188 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant
to Sec. 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 collected pursuant
to Sec. 115.187 for at least 10 years after the date of the initial
collection unless Federal, State, or local law requires otherwise.
Audits
Sec. 115.193 Audits of standards.
The agency shall conduct audits pursuant to Sec. Sec. 115.401
through 115.405. Audits need not be conducted of individual lockups
that are not utilized to house detainees overnight.
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, with sufficient time and authority to develop,
implement, and oversee agency efforts to comply
[[Page 37215]]
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 contract or contract
renewal the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contract or contract renewal shall provide for agency
contract monitoring to ensure that the contractor is complying with the
PREA standards.
(c) Only in emergency circumstances in which all reasonable
attempts to find a private agency or other entity in compliance with
the PREA standards have failed, may the agency enter into a contract
with an entity that fails to comply with these standards. In such a
case, the public agency shall document its unsuccessful attempts to
find an entity in compliance with the standards.
Sec. 115.213 Supervision and monitoring.
(a) For each facility, the agency shall develop and document a
staffing plan that provides for adequate levels of staffing, and, where
applicable, video monitoring, to protect residents against sexual
abuse. In calculating adequate staffing levels and determining the need
for video monitoring, agencies shall take into consideration:
(1) The physical layout of each facility;
(2) The composition of the resident population;
(3) The prevalence of substantiated and unsubstantiated incidents
of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with,
the facility shall document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year,
the facility shall assess, determine, and document whether adjustments
are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this
section;
(2) Prevailing staffing patterns;
(3) The facility's deployment of video monitoring systems and other
monitoring technologies; and
(4) The resources the facility has available to commit to ensure
adequate staffing levels.
Sec. 115.214 [Reserved]
Sec. 115.215 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
cross-gender visual body cavity searches (meaning a search of the anal
or genital opening) except in exigent circumstances or when performed
by medical practitioners.
(b) As of August 20, 2015, or August 21, 2017 for a facility whose
rated capacity does not exceed 50 residents, the facility shall not
permit cross-gender pat-down searches of female residents, absent
exigent circumstances. Facilities shall not restrict female residents'
access to regularly available programming or other outside
opportunities in order to comply with this provision.
(c) The facility shall document all cross-gender strip searches and
cross-gender visual body cavity searches, and shall document all cross-
gender pat-down searches of female residents.
(d) The facility shall implement policies and procedures that
enable residents to shower, perform bodily functions, and change
clothing without nonmedical staff of the opposite gender viewing their
breasts, buttocks, or genitalia, except in exigent circumstances or
when such viewing is incidental to routine cell checks. Such policies
and procedures shall require staff of the opposite gender to announce
their presence when entering an area where residents are likely to be
showering, performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a
transgender or intersex resident for the sole purpose of determining
the resident's genital status. If the resident's genital status is
unknown, it may be determined during conversations with the resident,
by reviewing medical records, or, if necessary, by learning that
information as part of a broader medical examination conducted in
private by a medical practitioner.
(f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex
residents, in a professional and respectful manner, and in the least
intrusive manner possible, consistent with security needs.
Sec. 115.216 Residents with disabilities and residents who are
limited English proficient.
(a) The agency shall take appropriate steps to ensure that
residents with disabilities (including, for example, residents who are
deaf or hard of hearing, those who are blind or have low vision, or
those who have intellectual, psychiatric, or speech disabilities), have
an equal opportunity to participate in or benefit from all aspects of
the agency's efforts to prevent, detect, and respond to sexual abuse
and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with residents who are deaf or hard of
hearing, providing access to interpreters who can interpret
effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition,
the agency shall ensure that written materials are provided in formats
or through methods that ensure effective communication with residents
with disabilities, including residents who have intellectual
disabilities, limited reading skills, or who are blind or have low
vision. An agency is not required to take actions that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity, or in undue financial and administrative
burdens, as those terms are used in regulations promulgated under title
II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse and sexual harassment to residents who are
limited English proficient, including steps to provide interpreters who
can interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary.
(c) The agency shall not rely on resident interpreters, resident
readers, or other types of resident assistants except in limited
circumstances where an extended delay in obtaining an effective
interpreter could compromise the resident's safety, the performance of
first-response duties under Sec. 115.264, or the investigation of the
resident's allegations.
Sec. 115.217 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with residents, and shall not enlist the services of any
contractor who may have contact with residents, who--
(1) Has engaged in sexual abuse in a prison, jail, lockup,
community confinement facility, juvenile facility, or other institution
(as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in
sexual activity in the community facilitated by force, overt or implied
threats of force, or
[[Page 37216]]
coercion, or if the victim did not consent or was unable to consent or
refuse; or
(3) Has been civilly or administratively adjudicated to have
engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in
determining whether to hire or promote anyone, or to enlist the
services of any contractor, who may have contact with residents.
(c) Before hiring new employees who may have contact with
residents, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best
efforts to contact all prior institutional employers for information on
substantiated allegations of sexual abuse or any resignation during a
pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records
check before enlisting the services of any contractor who may have
contact with residents.
(e) The agency shall either conduct criminal background records
checks at least every five years of current employees and contractors
who may have contact with residents or have in place a system for
otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may
have contact with residents directly about previous misconduct
described in paragraph (a) of this section in written applications or
interviews for hiring or promotions and in any interviews or written
self-evaluations conducted as part of reviews of current employees. The
agency shall also impose upon employees a continuing affirmative duty
to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse or sexual harassment
involving a former employee upon receiving a request from an
institutional employer for whom such employee has applied to work.
Sec. 115.218 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 examinations.
(a) To the extent the agency is responsible for investigating
allegations of sexual abuse, the agency shall follow a uniform evidence
protocol that maximizes the potential for obtaining usable physical
evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth
where applicable, and, as appropriate, shall be adapted from or
otherwise based on the most recent edition of the U.S. Department of
Justice's Office on Violence Against Women publication, ``A National
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' or similarly comprehensive and authoritative protocols
developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to
forensic medical examinations whether on-site or at an outside
facility, without financial cost, where evidentiarily or medically
appropriate. Such examinations shall be performed by Sexual Assault
Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs)
where possible. If SAFEs or SANEs cannot be made available, the
examination can be performed by other qualified medical practitioners.
The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a
victim advocate from a rape crisis center. If a rape crisis center is
not available to provide victim advocate services, the agency shall
make available to provide these services a qualified staff member from
a community-based organization or a qualified agency staff member.
Agencies shall document efforts to secure services from rape crisis
centers. For the purpose of this standard, a rape crisis center refers
to an entity that provides intervention and related assistance, such as
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of
sexual assault of all ages. The agency may utilize a rape crisis center
that is part of a governmental unit as long as the center is not part
of the criminal justice system (such as a law enforcement agency) and
offers a comparable level of confidentiality as a nongovernmental
entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified
agency staff member, or qualified community-based organization staff
member shall accompany and support the victim through the forensic
medical examination process and investigatory interviews and shall
provide emotional support, crisis intervention, information, and
referrals.
(f) To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section
shall also apply to:
(1) Any State entity outside of the agency that is responsible for
investigating allegations of sexual abuse in community confinement
facilities; and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in community confinement
facilities.
(h) For the purposes of this standard, a qualified agency staff
member or a qualified community-based staff member shall be an
individual who has been screened for appropriateness to serve in this
role and has received education concerning sexual assault and forensic
examination issues in general.
Sec. 115.222 Policies to ensure referrals of allegations for
investigations.
(a) The agency shall ensure that an administrative or criminal
investigation is completed for all allegations of sexual abuse and
sexual harassment.
(b) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are referred for
investigation to an agency with the legal authority to conduct criminal
investigations, unless the allegation does not involve potentially
criminal behavior. The agency shall publish such policy on its Web site
or, if it does not have one, make the policy available through other
means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal
investigations, such publication shall describe the responsibilities of
both the agency and the investigating entity.
[[Page 37217]]
(d) Any State entity responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in
community confinement facilities shall have in place a policy governing
the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting
administrative or criminal investigations of sexual abuse or sexual
harassment in community confinement facilities shall have in place a
policy governing the conduct of such investigations.
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
and sexual harassment prevention, detection, reporting, and response
policies and procedures;
(3) Residents' right to be free from sexual abuse and sexual
harassment;
(4) The right of residents and employees to be free from
retaliation for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in
confinement;
(6) The common reactions of sexual abuse and sexual harassment
victims;
(7) How to detect and respond to signs of threatened and actual
sexual abuse;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with
residents, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory
reporting of sexual abuse to outside authorities.
(b) Such training shall be tailored to the gender of the residents
at the employee's facility. The employee shall receive additional
training if the employee is reassigned from a facility that houses only
male residents to a facility that houses only female residents, or vice
versa.
(c) All current employees who have not received such training shall
be trained within one year of the effective date of the PREA standards,
and the agency shall provide each employee with refresher training
every two years to ensure that all employees know the agency's current
sexual abuse and sexual harassment policies and procedures. In years in
which an employee does not receive refresher training, the agency shall
provide refresher information on current sexual abuse and sexual
harassment policies.
(d) The agency shall document, through employee signature or
electronic verification, that employees understand the training they
have received.
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 and sexual harassment prevention,
detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and
contractors shall be based on the services they provide and level of
contact they have with residents, but all volunteers and contractors
who have contact with residents shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and
informed how to report such incidents.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.233 Resident education.
(a) During the intake process, residents shall receive information
explaining the agency's zero-tolerance policy regarding sexual abuse
and sexual harassment, how to report incidents or suspicions of sexual
abuse or sexual harassment, their rights to be free from sexual abuse
and sexual harassment and to be free from retaliation for reporting
such incidents, and regarding agency policies and procedures for
responding to such incidents.
(b) The agency shall provide refresher information whenever a
resident is transferred to a different facility.
(c) The agency shall provide resident education in formats
accessible to all residents, including those who are limited English
proficient, deaf, visually impaired, or otherwise disabled as well as
residents who have limited reading skills.
(d) The agency shall maintain documentation of resident
participation in these education sessions.
(e) In addition to providing such education, the agency shall
ensure that key information is continuously and readily available or
visible to residents through posters, resident handbooks, or other
written formats.
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 and sexual
harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of
sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual
abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic
examinations, such medical staff shall receive the appropriate training
to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental
health practitioners have received the training referenced in this
standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive
the training mandated for employees under Sec. 115.231 or for
contractors and volunteers under Sec. 115.232, depending upon the
practitioner's status at the agency.
[[Page 37218]]
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.241 Screening for risk of victimization and abusiveness.
(a) All residents shall be assessed during an intake screening and
upon transfer to another facility for their risk of being sexually
abused by other residents or sexually abusive toward other residents.
(b) Intake screening shall ordinarily take place within 72 hours of
arrival at the facility.
(c) Such assessments shall be conducted using an objective
screening instrument.
(d) The intake screening shall consider, at a minimum, the
following criteria to assess residents for risk of sexual
victimization:
(1) Whether the resident has a mental, physical, or developmental
disability;
(2) The age of the resident;
(3) The physical build of the resident;
(4) Whether the resident has previously been incarcerated;
(5) Whether the resident's criminal history is exclusively
nonviolent;
(6) Whether the resident has prior convictions for sex offenses
against an adult or child;
(7) Whether the resident is or is perceived to be gay, lesbian,
bisexual, transgender, intersex, or gender nonconforming;
(8) Whether the resident has previously experienced sexual
victimization; and
(9) The resident's own perception of vulnerability.
(e) The intake screening shall consider prior acts of sexual abuse,
prior convictions for violent offenses, and history of prior
institutional violence or sexual abuse, as known to the agency, in
assessing residents for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the
resident's arrival at the facility, the facility will reassess the
resident's risk of victimization or abusiveness based upon any
additional, relevant information received by the facility since the
intake screening.
(g) A resident's risk level shall be reassessed when warranted due
to a referral, request, incident of sexual abuse, or receipt of
additional information that bears on the resident's risk of sexual
victimization or abusiveness.
(h) Residents may not be disciplined for refusing to answer, or for
not disclosing complete information in response to, questions asked
pursuant to paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) of this
section.
(i) The agency shall implement appropriate controls on the
dissemination within the facility of responses to questions asked
pursuant to this standard in order to ensure that sensitive information
is not exploited to the resident's detriment by staff or other
residents.
Sec. 115.242 Use of screening information.
(a) The agency shall use information from the risk screening
required by Sec. 115.241 to inform housing, bed, work, education, and
program assignments with the goal of keeping separate those residents
at high risk of being sexually victimized from those at high risk of
being sexually abusive.
(b) The agency shall make individualized determinations about how
to ensure the safety of each resident.
(c) In deciding whether to assign a transgender or intersex
resident to a facility for male or female residents, and in making
other housing and programming assignments, the agency shall consider on
a case-by-case basis whether a placement would ensure the resident's
health and safety, and whether the placement would present management
or security problems.
(d) A transgender or intersex resident's own views with respect to
his or her own safety shall be given serious consideration.
(e) Transgender and intersex residents shall be given the
opportunity to shower separately from other residents.
(f) The agency shall not place lesbian, gay, bisexual, transgender,
or intersex residents in dedicated facilities, units, or wings solely
on the basis of such identification or status, unless such placement is
in a dedicated facility unit, or wing established in connection with a
consent decree, legal settlement, or legal judgment for the purpose of
protecting such residents.
Sec. 115.243 [Reserved]
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 such incidents.
(b) The agency shall also inform residents of at least one way to
report abuse or harassment to a public or private entity or office that
is not part of the agency and that is able to receive and immediately
forward resident reports of sexual abuse and sexual harassment to
agency officials, allowing the resident to remain anonymous upon
request.
(c) Staff shall accept reports made verbally, in writing,
anonymously, and from third parties and shall promptly document any
verbal reports.
(d) The agency shall provide a method for staff to privately report
sexual abuse and sexual harassment of residents.
Sec. 115.252 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not
have administrative procedures to address resident grievances regarding
sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident
may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any
portion of a grievance that does not allege an incident of sexual
abuse.
(3) The agency shall not require a resident to use any informal
grievance process, or to otherwise attempt to resolve with staff, an
alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to
defend against a lawsuit filed by a resident on the ground that the
applicable statute of limitations has expired.
(c) The agency shall ensure that--
(1) A resident who alleges sexual abuse may submit a grievance
without submitting it to a staff member who is the subject of the
complaint, and
(2) Such grievance is not referred to a staff member who is the
subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits
of any portion of a grievance alleging sexual abuse within 90 days of
the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time
consumed by residents in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to
70 days, if the normal time period for response is insufficient to make
an appropriate decision. The agency shall notify the resident in
writing of any such extension and provide a date by which a decision
will be made.
(4) At any level of the administrative process, including the final
level, if the resident does not receive a response within the time
allotted for reply, including any properly noticed extension, the
resident may consider the absence of a response to be a denial at that
level.
[[Page 37219]]
(e)(1) Third parties, including fellow residents, staff members,
family members, attorneys, and outside advocates, shall be permitted to
assist residents in filing requests for administrative remedies
relating to allegations of sexual abuse, and shall also be permitted to
file such requests on behalf of residents.
(2) If a third party files such a request on behalf of a resident,
the facility may require as a condition of processing the request that
the alleged victim agree to have the request filed on his or her
behalf, and may also require the alleged victim to personally pursue
any subsequent steps in the administrative remedy process.
(3) If the resident declines to have the request processed on his
or her behalf, the agency shall document the resident's decision.
(f)(1) The agency shall establish procedures for the filing of an
emergency grievance alleging that a resident is subject to a
substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is
subject to a substantial risk of imminent sexual abuse, the agency
shall immediately forward the grievance (or any portion thereof that
alleges the substantial risk of imminent sexual abuse) to a level of
review at which immediate corrective action may be taken, shall provide
an initial response within 48 hours, and shall issue a final agency
decision within 5 calendar days. The initial response and final agency
decision shall document the agency's determination whether the resident
is in substantial risk of imminent sexual abuse and the action taken in
response to the emergency grievance.
(g) The agency may discipline a resident for filing a grievance
related to alleged sexual abuse only where the agency demonstrates that
the resident filed the grievance in bad faith.
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, in
as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them
access, of the extent to which such communications will be monitored
and the extent to which reports of abuse will be forwarded to
authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers that
are able to provide residents with confidential emotional support
services related to sexual abuse. The agency shall maintain copies of
agreements or documentation showing attempts to enter into such
agreements.
Sec. 115.254 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse and sexual harassment and shall distribute publicly
information on how to report sexual abuse and sexual harassment on
behalf of a resident.
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 or sexual harassment that
occurred in a facility, whether or not it is part of the agency;
retaliation against residents or staff who reported such an incident;
and any staff neglect or violation of responsibilities that may have
contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials,
staff shall not reveal any information related to a sexual abuse report
to anyone other than to the extent necessary, as specified in agency
policy, to make treatment, investigation, and other security and
management decisions.
(c) Unless otherwise precluded by Federal, State, or local law,
medical and mental health practitioners shall be required to report
sexual abuse pursuant to paragraph (a) of this section and to inform
residents of the practitioner's duty to report, and the limitations of
confidentiality, at the initiation of services.
(d) If the alleged victim is under the age of 18 or considered a
vulnerable adult under a State or local vulnerable persons statute, the
agency shall report the allegation to the designated State or local
services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and
sexual harassment, including third-party and anonymous reports, to the
facility's designated investigators.
Sec. 115.262 Agency protection duties.
When an agency learns that a resident is subject to a substantial
risk of imminent sexual abuse, it shall take immediate action to
protect the resident.
Sec. 115.263 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a resident was sexually
abused while confined at another facility, the head of the facility
that received the allegation shall notify the head of the facility or
appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no
later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such
notification.
(d) The facility head or agency office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.264 Staff first responder duties.
(a) Upon learning of an allegation that a resident was sexually
abused, the first security staff member to respond to the report shall
be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps
can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request that the alleged
victim not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member,
the responder shall be required to request that the alleged victim not
take any actions that could destroy physical evidence and then notify
security staff.
Sec. 115.265 Coordinated response.
The facility shall develop a written institutional plan to
coordinate actions taken in response to an incident of sexual abuse,
among staff first responders, medical and mental health practitioners,
investigators, and facility leadership.
[[Page 37220]]
Sec. 115.266 Preservation of ability to protect residents from
contact with abusers
(a) Neither the agency nor any other governmental entity
responsible for collective bargaining on the agency's behalf shall
enter into or renew any collective bargaining agreement or other
agreement that limits the agency's ability to remove alleged staff
sexual abusers from contact with residents pending the outcome of an
investigation or of a determination of whether and to what extent
discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or
renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such
agreements are not inconsistent with the provisions of Sec. Sec.
115.272 and 115.276; or
(2) Whether a no-contact assignment that is imposed pending the
outcome of an investigation shall be expunged from or retained in the
staff member's personnel file following a determination that the
allegation of sexual abuse is not substantiated.
Sec. 115.267 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all residents
and staff who report sexual abuse or sexual harassment or cooperate
with sexual abuse or sexual harassment investigations from retaliation
by other residents or staff and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as
housing changes or transfers for resident victims or abusers, removal
of alleged staff or resident abusers from contact with victims, and
emotional support services for residents or staff who fear retaliation
for reporting sexual abuse or sexual harassment or for cooperating with
investigations.
(c) For at least 90 days following a report of sexual abuse, the
agency shall monitor the conduct and treatment of residents or staff
who reported the sexual abuse and of residents who were reported to
have suffered sexual abuse to see if there are changes that may suggest
possible retaliation by residents or staff, and shall act promptly to
remedy any such retaliation. Items the agency should monitor include
any resident disciplinary reports, housing, or program changes, or
negative performance reviews or reassignments of staff. The agency
shall continue such monitoring beyond 90 days if the initial monitoring
indicates a continuing need.
(d) In the case of residents, such monitoring shall also include
periodic status checks.
(e) If any other individual who cooperates with an investigation
expresses a fear of retaliation, the agency shall take appropriate
measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency
determines that the allegation is unfounded.
Sec. 115.268 [Reserved]
Investigations
Sec. 115.271 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into
allegations of sexual abuse and sexual harassment, it shall do so
promptly, thoroughly, and objectively for all allegations, including
third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use
investigators who have received special training in sexual abuse
investigations pursuant to Sec. 115.234.
(c) Investigators shall gather and preserve direct and
circumstantial evidence, including any available physical and DNA
evidence and any available electronic monitoring data; shall interview
alleged victims, suspected perpetrators, and witnesses; and shall
review prior complaints and reports of sexual abuse involving the
suspected perpetrator.
(d) When the quality of evidence appears to support criminal
prosecution, the agency shall conduct compelled interviews only after
consulting with prosecutors as to whether compelled interviews may be
an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall
be assessed on an individual basis and shall not be determined by the
person's status as resident or staff. No agency shall require a
resident who alleges sexual abuse to submit to a polygraph examination
or other truth-telling device as a condition for proceeding with the
investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a
description of the physical and testimonial evidence, the reasoning
behind credibility assessments, and investigative facts and findings.
(g) Criminal investigations shall be documented in a written report
that contains a thorough description of physical, testimonial, and
documentary evidence and attaches copies of all documentary evidence
where feasible.
(h) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(i) The agency shall retain all written reports referenced in
paragraphs (f) and (g) of this section for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years.
(j) The departure of the alleged abuser or victim from the
employment or control of the facility or agency shall not provide a
basis for terminating an investigation.
(k) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(l) When outside agencies investigate sexual abuse, the facility
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
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 or
sexual harassment 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 against the resident, the agency shall
subsequently inform the resident (unless the agency has determined that
the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident's
unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a
charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a
charge related to sexual abuse within the facility.
(d) Following a resident's allegation that he or she has been
sexually abused by another resident, the agency shall subsequently
inform the alleged victim whenever:
[[Page 37221]]
(1) The agency learns that the alleged abuser has been indicted on
a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on
a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be
documented.
(f) An agency's obligation to report under this standard shall
terminate if the resident is released from the agency's custody.
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 abuse.
(c) Disciplinary sanctions for violations of agency policies
relating to sexual abuse or sexual harassment (other than actually
engaging in sexual abuse) shall be commensurate with the nature and
circumstances of the acts committed, the staff member's disciplinary
history, and the sanctions imposed for comparable offenses by other
staff with similar histories.
(d) All terminations for violations of agency sexual abuse or
sexual harassment policies, or resignations by staff who would have
been terminated if not for their resignation, shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to any relevant licensing bodies.
Sec. 115.277 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall
be prohibited from contact with residents and shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with residents, in
the case of any other violation of agency sexual abuse or sexual
harassment policies by a contractor or volunteer.
Sec. 115.278 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) An agency may, in its discretion, prohibit all sexual activity
between residents and may discipline residents for such activity. An
agency may not, however, deem such activity to constitute sexual abuse
if it determines that the activity is not coerced.
Medical and Mental Care
Sec. 115.281 [Reserved]
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) 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. 115.262 and shall immediately notify the appropriate medical
and mental health practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be
offered timely information about and timely access to emergency
contraception and sexually transmitted infections prophylaxis, in
accordance with professionally accepted standards of care, where
medically appropriate.
(d) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
Sec. 115.283 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer medical and mental health evaluation
and, as appropriate, treatment to all residents who have been
victimized by sexual abuse in any prison, jail, lockup, or juvenile
facility.
(b) The evaluation and treatment of such victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental
health services consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of
this section, such victims shall receive timely and comprehensive
information about and timely access to all lawful pregnancy-related
medical services.
(f) Resident victims of sexual abuse while incarcerated shall be
offered tests for sexually transmitted infections as medically
appropriate.
(g) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
(h) The facility shall attempt to conduct a mental health
evaluation of all known resident-on-resident abusers within 60 days of
learning of such abuse history and offer treatment when deemed
appropriate by mental health practitioners.
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.
[[Page 37222]]
(b) Such review shall ordinarily occur within 30 days of the
conclusion of the investigation.
(c) The review team shall include upper-level management officials,
with input from line supervisors, investigators, and medical or mental
health practitioners.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a
need to change policy or practice to better prevent, detect, or respond
to sexual abuse;
(2) Consider whether the incident or allegation was motivated by
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender,
or intersex identification, status, or perceived status; or gang
affiliation; or was motivated or otherwise caused by other group
dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly
occurred to assess whether physical barriers in the area may enable
abuse;
(4) Assess the adequacy of staffing levels in that area during
different shifts;
(5) Assess whether monitoring technology should be deployed or
augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily
limited to determinations made pursuant to paragraphs (d)(1) through
(d)(5) of this section, and any recommendations for improvement, and
submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for
improvement, or shall document its reasons for not doing so.
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.
(d) The agency shall maintain, review, and collect data as needed
from all available incident-based documents including reports,
investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data
from every private facility with which it contracts for the confinement
of its residents.
(f) Upon request, the agency shall provide all such data from the
previous calendar year to the Department of Justice no later than June
30.
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.
(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 collected pursuant
to Sec. 115.287 for at least 10 years after the date of the initial
collection unless Federal, State, or local law requires otherwise.
Audits
Sec. 115.293 Audits of standards.
The agency shall conduct audits pursuant to Sec. Sec. 115.401
through 115.405.
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 with sufficient time and authority to develop,
implement, and oversee agency efforts to comply with the PREA standards
in all of its facilities.
(c) Where an agency operates more than one facility, each facility
shall designate a PREA compliance manager with sufficient time and
authority to coordinate the facility's efforts to comply with the PREA
standards.
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 contract or contract
renewal the entity's obligation to adopt and comply with the PREA
standards.
(b) Any new contract or contract renewal shall provide for agency
contract monitoring to ensure that the contractor is complying with the
PREA standards.
Sec. 115.313 Supervision and monitoring.
(a) The agency shall ensure that each facility it operates shall
develop, implement, and document a staffing plan that provides for
adequate levels of staffing, and, where applicable, video monitoring,
to protect residents against sexual abuse. In calculating adequate
staffing levels and determining the need for video monitoring,
facilities shall take into consideration:
(1) Generally accepted juvenile detention and correctional/secure
residential practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight
bodies;
(5) All components of the facility's physical plant (including
``blind spots'' or areas where staff or residents may be isolated);
(6) The composition of the resident population;
[[Page 37223]]
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents
of sexual abuse; and
(11) Any other relevant factors.
(b) The agency shall comply with the staffing plan except during
limited and discrete exigent circumstances, and shall fully document
deviations from the plan during such circumstances.
(c) Each secure juvenile facility shall maintain staff ratios of a
minimum of 1:8 during resident waking hours and 1:16 during resident
sleeping hours, except during limited and discrete exigent
circumstances, which shall be fully documented. Only security staff
shall be included in these ratios. Any facility that, as of the date of
publication of this final rule, is not already obligated by law,
regulation, or judicial consent decree to maintain the staffing ratios
set forth in this paragraph shall have until October 1, 2017, to
achieve compliance.
(d) Whenever necessary, but no less frequently than once each year,
for each facility the agency operates, in consultation with the PREA
coordinator required by Sec. 115.311, the agency shall assess,
determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this
section;
(2) Prevailing staffing patterns;
(3) The facility's deployment of video monitoring systems and other
monitoring technologies; and
(4) The resources the facility has available to commit to ensure
adherence to the staffing plan.
(e) Each secure facility shall implement a policy and practice of
having intermediate-level or higher level supervisors conduct and
document unannounced rounds to identify and deter staff sexual abuse
and sexual harassment. Such policy and practice shall be implemented
for night shifts as well as day shifts. Each secure facility shall have
a policy to prohibit staff from alerting other staff members that these
supervisory rounds are occurring, unless such announcement is related
to the legitimate operational functions of the facility.
Sec. 115.314 [Reserved]
Sec. 115.315 Limits to cross-gender viewing and searches.
(a) The facility shall not conduct cross-gender strip searches or
cross-gender visual body cavity searches (meaning a search of the anal
or genital opening) except in exigent circumstances or when performed
by medical practitioners.
(b) The agency shall not conduct cross-gender pat-down searches
except in exigent circumstances.
(c) The facility shall document and justify all cross-gender strip
searches, cross-gender visual body cavity searches, and cross-gender
pat-down searches.
(d) The facility shall implement policies and procedures that
enable residents to shower, perform bodily functions, and change
clothing without nonmedical staff of the opposite gender viewing their
breasts, buttocks, or genitalia, except in exigent circumstances or
when such viewing is incidental to routine cell checks. Such policies
and procedures shall require staff of the opposite gender to announce
their presence when entering a resident housing unit. In facilities
(such as group homes) that do not contain discrete housing units, staff
of the opposite gender shall be required to announce their presence
when entering an area where residents are likely to be showering,
performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a
transgender or intersex resident for the sole purpose of determining
the resident's genital status. If the resident's genital status is
unknown, it may be determined during conversations with the resident,
by reviewing medical records, or, if necessary, by learning that
information as part of a broader medical examination conducted in
private by a medical practitioner.
(f) The agency shall train security staff in how to conduct cross-
gender pat-down searches, and searches of transgender and intersex
residents, in a professional and respectful manner, and in the least
intrusive manner possible, consistent with security needs.
Sec. 115.316 Residents with disabilities and residents who are
limited English proficient.
(a) The agency shall take appropriate steps to ensure that
residents with disabilities (including, for example, residents who are
deaf or hard of hearing, those who are blind or have low vision, or
those who have intellectual, psychiatric, or speech disabilities), have
an equal opportunity to participate in or benefit from all aspects of
the agency's efforts to prevent, detect, and respond to sexual abuse
and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with residents who are deaf or hard of
hearing, providing access to interpreters who can interpret
effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition,
the agency shall ensure that written materials are provided in formats
or through methods that ensure effective communication with residents
with disabilities, including residents who have intellectual
disabilities, limited reading skills, or who are blind or have low
vision. An agency is not required to take actions that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity, or in undue financial and administrative
burdens, as those terms are used in regulations promulgated under title
II of the Americans With Disabilities Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful
access to all aspects of the agency's efforts to prevent, detect, and
respond to sexual abuse and sexual harassment to residents who are
limited English proficient, including steps to provide interpreters who
can interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary.
(c) The agency shall not rely on resident interpreters, resident
readers, or other types of resident assistants except in limited
circumstances where an extended delay in obtaining an effective
interpreter could compromise the resident's safety, the performance of
first-response duties under Sec. 115.364, or the investigation of the
resident's allegations.
Sec. 115.317 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have
contact with residents, and shall not enlist the services of any
contractor who may have contact with residents, who--
(1) Has engaged in sexual abuse in a prison, jail, lockup,
community confinement facility, juvenile facility, or other institution
(as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in
sexual activity in the community facilitated by force, overt or implied
threats of force, or coercion, or if the victim did not consent or was
unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have
engaged in the activity described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in
determining whether to hire or promote anyone, or to enlist the
services of any
[[Page 37224]]
contractor, who may have contact with residents.
(c) Before hiring new employees who may have contact with
residents, the agency shall:
(1) Perform a criminal background records check;
(2) Consult any child abuse registry maintained by the State or
locality in which the employee would work; and
(3) Consistent with Federal, State, and local law, make its best
efforts to contact all prior institutional employers for information on
substantiated allegations of sexual abuse or any resignation during a
pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records
check, and consult applicable child abuse registries, before enlisting
the services of any contractor who may have contact with residents.
(e) The agency shall either conduct criminal background records
checks at least every five years of current employees and contractors
who may have contact with residents or have in place a system for
otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may
have contact with residents directly about previous misconduct
described in paragraph (a) of this section in written applications or
interviews for hiring or promotions and in any interviews or written
self-evaluations conducted as part of reviews of current employees. The
agency shall also impose upon employees a continuing affirmative duty
to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision
of materially false information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information
on substantiated allegations of sexual abuse or sexual harassment
involving a former employee upon receiving a request from an
institutional employer for whom such employee has applied to work.
Sec. 115.318 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 examinations.
(a) To the extent the agency is responsible for investigating
allegations of sexual abuse, the agency shall follow a uniform evidence
protocol that maximizes the potential for obtaining usable physical
evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth
and, as appropriate, shall be adapted from or otherwise based on the
most recent edition of the U.S. Department of Justice's Office on
Violence Against Women publication, ``A National Protocol for Sexual
Assault Medical Forensic Examinations, Adults/Adolescents,'' or
similarly comprehensive and authoritative protocols developed after
2011.
(c) The agency shall offer all residents who experience sexual
abuse access to forensic medical examinations whether on-site or at an
outside facility, without financial cost, where evidentiarily or
medically appropriate. Such examinations shall be performed by Sexual
Assault Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners
(SANEs) where possible. If SAFEs or SANEs cannot be made available, the
examination can be performed by other qualified medical practitioners.
The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a
victim advocate from a rape crisis center. If a rape crisis center is
not available to provide victim advocate services, the agency shall
make available to provide these services a qualified staff member from
a community-based organization or a qualified agency staff member.
Agencies shall document efforts to secure services from rape crisis
centers. For the purpose of this standard, a rape crisis center refers
to an entity that provides intervention and related assistance, such as
the services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of
sexual assault of all ages. The agency may utilize a rape crisis center
that is part of a governmental unit as long as the center is not part
of the criminal justice system (such as a law enforcement agency) and
offers a comparable level of confidentiality as a nongovernmental
entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified
agency staff member, or qualified community-based organization staff
member shall accompany and support the victim through the forensic
medical examination process and investigatory interviews and shall
provide emotional support, crisis intervention, information, and
referrals.
(f) To the extent the agency itself is not responsible for
investigating allegations of sexual abuse, the agency shall request
that the investigating agency follow the requirements of paragraphs (a)
through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section
shall also apply to:
(1) Any State entity outside of the agency that is responsible for
investigating allegations of sexual abuse in juvenile facilities; and
(2) Any Department of Justice component that is responsible for
investigating allegations of sexual abuse in juvenile facilities.
(h) For the purposes of this standard, a qualified agency staff
member or a qualified community-based staff member shall be an
individual who has been screened for appropriateness to serve in this
role and has received education concerning sexual assault and forensic
examination issues in general.
Sec. 115.322 Policies to ensure referrals of allegations for
investigations.
(a) The agency shall ensure that an administrative or criminal
investigation is completed for all allegations of sexual abuse and
sexual harassment.
(b) The agency shall have in place a policy to ensure that
allegations of sexual abuse or sexual harassment are referred for
investigation to an agency with the legal authority to conduct criminal
investigations, unless the allegation does not involve potentially
criminal behavior. The agency shall publish such policy on its Web site
or, if it does not have one, make the policy available through other
means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal
investigations, such publication shall describe the responsibilities of
both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in
juvenile facilities shall have in place a policy governing the conduct
of such investigations.
(e) Any Department of Justice component responsible for conducting
administrative or criminal investigations of sexual abuse or sexual
[[Page 37225]]
harassment in juvenile facilities shall have in place a policy
governing the conduct of such investigations.
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
and sexual harassment prevention, detection, reporting, and response
policies and procedures;
(3) Residents' right to be free from sexual abuse and sexual
harassment;
(4) The right of residents and employees to be free from
retaliation for reporting sexual abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in juvenile
facilities;
(6) The common reactions of juvenile victims of sexual abuse and
sexual harassment;
(7) How to detect and respond to signs of threatened and actual
sexual abuse and how to distinguish between consensual sexual contact
and sexual abuse between residents;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with
residents, including lesbian, gay, bisexual, transgender, intersex, or
gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory
reporting of sexual abuse to outside authorities;
(11) Relevant laws regarding the applicable age of consent.
(b) Such training shall be tailored to the unique needs and
attributes of residents of juvenile facilities and to the gender of the
residents at the employee's facility. The employee shall receive
additional training if the employee is reassigned from a facility that
houses only male residents to a facility that houses only female
residents, or vice versa.
(c) All current employees who have not received such training shall
be trained within one year of the effective date of the PREA standards,
and the agency shall provide each employee with refresher training
every two years to ensure that all employees know the agency's current
sexual abuse and sexual harassment policies and procedures. In years in
which an employee does not receive refresher training, the agency shall
provide refresher information on current sexual abuse and sexual
harassment policies.
(d) The agency shall document, through employee signature or
electronic verification, that employees understand the training they
have received.
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 and sexual harassment prevention,
detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and
contractors shall be based on the services they provide and level of
contact they have with residents, but all volunteers and contractors
who have contact with residents shall be notified of the agency's zero-
tolerance policy regarding sexual abuse and sexual harassment and
informed how to report such incidents.
(c) The agency shall maintain documentation confirming that
volunteers and contractors understand the training they have received.
Sec. 115.333 Resident education.
(a) During the intake process, residents shall receive information
explaining, in an age appropriate fashion, the agency's zero tolerance
policy regarding sexual abuse and sexual harassment and how to report
incidents or suspicions of sexual abuse or sexual harassment.
(b) Within 10 days of intake, the agency shall provide
comprehensive age-appropriate education to residents either in person
or through video regarding their rights to be free from sexual abuse
and sexual harassment and to be free from retaliation for reporting
such incidents, and regarding agency policies and procedures for
responding to such incidents.
(c) Current residents who have not received such education shall be
educated within one year of the effective date of the PREA standards,
and shall receive education upon transfer to a different facility to
the extent that the policies and procedures of the resident's new
facility differ from those of the previous facility.
(d) The agency shall provide resident education in formats
accessible to all residents, including those who are limited English
proficient, deaf, visually impaired, or otherwise disabled, as well as
to residents who have limited reading skills.
(e) The agency shall maintain documentation of resident
participation in these education sessions.
(f) In addition to providing such education, the agency shall
ensure that key information is continuously and readily available or
visible to residents through posters, resident handbooks, or other
written formats.
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 and sexual
harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to juvenile
victims of sexual abuse and sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual
abuse and sexual harassment.
(b) If medical staff employed by the agency conduct forensic
examinations, such medical staff shall receive the appropriate training
to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental
health practitioners have received the training referenced in this
standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive
the training mandated for employees under Sec. 115.331 or for
contractors and volunteers under Sec. 115.332, depending
[[Page 37226]]
upon the practitioner's status at the agency.
Screening for Risk of Sexual Victimization and Abusiveness
Sec. 115.341 Obtaining information from residents.
(a) Within 72 hours of the resident's arrival at the facility and
periodically throughout a resident's confinement, the agency shall
obtain and use information about each resident's personal history and
behavior to reduce the risk of sexual abuse by or upon a resident.
(b) Such assessments shall be conducted using an objective
screening instrument.
(c) At a minimum, the agency shall attempt to ascertain information
about:
(1) Prior sexual victimization or abusiveness;
(2) Any gender nonconforming appearance or manner or identification
as lesbian, gay, bisexual, transgender, or intersex, and whether the
resident may therefore be vulnerable to sexual abuse;
(3) Current charges and offense history;
(4) Age;
(5) Level of emotional and cognitive development;
(6) Physical size and stature;
(7) Mental illness or mental disabilities;
(8) Intellectual or developmental disabilities;
(9) Physical disabilities;
(10) The resident's own perception of vulnerability; and
(11) Any other specific information about individual residents that
may indicate heightened needs for supervision, additional safety
precautions, or separation from certain other residents.
(d) This information shall be ascertained through conversations
with the resident during the intake process and medical and mental
health screenings; during classification assessments; and by reviewing
court records, case files, facility behavioral records, and other
relevant documentation from the resident's files.
(e) The agency shall implement appropriate controls on the
dissemination within the facility of responses to questions asked
pursuant to this standard in order to ensure that sensitive information
is not exploited to the resident's detriment by staff or other
residents.
Sec. 115.342 Placement of residents in housing, bed, program,
education, and work assignments.
(a) The agency shall use all information obtained pursuant to Sec.
115.341 and subsequently to make housing, bed, program, education, and
work assignments for residents with the goal of keeping all residents
safe and free from sexual abuse.
(b) Residents may be isolated from others only as a last resort
when less restrictive measures are inadequate to keep them and other
residents safe, and then only until an alternative means of keeping all
residents safe can be arranged. During any period of isolation,
agencies shall not deny residents daily large-muscle exercise and any
legally required educational programming or special education services.
Residents in isolation shall receive daily visits from a medical or
mental health care clinician. Residents shall also have access to other
programs and work opportunities to the extent possible.
(c) Lesbian, gay, bisexual, transgender, or intersex residents
shall not be placed in particular housing, bed, or other assignments
solely on the basis of such identification or status, nor shall
agencies consider lesbian, gay, bisexual, transgender, or intersex
identification or status as an indicator of likelihood of being
sexually abusive.
(d) In deciding whether to assign a transgender or intersex
resident to a facility for male or female residents, and in making
other housing and programming assignments, the agency shall consider on
a case-by-case basis whether a placement would ensure the resident's
health and safety, and whether the placement would present management
or security problems.
(e) Placement and programming assignments for each transgender or
intersex resident shall be reassessed at least twice each year to
review any threats to safety experienced by the resident.
(f) A transgender or intersex resident's own views with respect to
his or her own safety shall be given serious consideration.
(g) Transgender and intersex residents shall be given the
opportunity to shower separately from other residents.
(h) If a resident is isolated pursuant to paragraph (b) of this
section, the facility shall clearly document:
(1) The basis for the facility's concern for the resident's safety;
and
(2) The reason why no alternative means of separation can be
arranged.
(i) Every 30 days, the facility shall afford each resident
described in paragraph (h) of this section a review to determine
whether there is a continuing need for separation from the general
population.
Sec. 115.343 [Reserved]
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 such incidents.
(b) The agency shall also provide at least one way for residents to
report abuse or harassment to a public or private entity or office that
is not part of the agency and that is able to receive and immediately
forward resident reports of sexual abuse and sexual harassment to
agency officials, allowing the resident to remain anonymous upon
request. Residents detained solely for civil immigration purposes shall
be provided information on how to contact relevant consular officials
and relevant officials at the Department of Homeland Security.
(c) Staff shall accept reports made verbally, in writing,
anonymously, and from third parties and shall promptly document any
verbal reports.
(d) The facility shall provide residents with access to tools
necessary to make a written report.
(e) The agency shall provide a method for staff to privately report
sexual abuse and sexual harassment of residents.
Sec. 115.352 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not
have administrative procedures to address resident grievances regarding
sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident
may submit a grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any
portion of a grievance that does not allege an incident of sexual
abuse.
(3) The agency shall not require a resident to use any informal
grievance process, or to otherwise attempt to resolve with staff, an
alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency's ability to
defend against a lawsuit filed by a resident on the ground that the
applicable statute of limitations has expired.
(c) The agency shall ensure that--
(1) A resident who alleges sexual abuse may submit a grievance
without submitting it to a staff member who is the subject of the
complaint, and
[[Page 37227]]
(2) Such grievance is not referred to a staff member who is the
subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits
of any portion of a grievance alleging sexual abuse within 90 days of
the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time
consumed by residents in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to
70 days, if the normal time period for response is insufficient to make
an appropriate decision. The agency shall notify the resident in
writing of any such extension and provide a date by which a decision
will be made.
(4) At any level of the administrative process, including the final
level, if the resident does not receive a response within the time
allotted for reply, including any properly noticed extension, the
resident may consider the absence of a response to be a denial at that
level.
(e)(1) Third parties, including fellow residents, staff members,
family members, attorneys, and outside advocates, shall be permitted to
assist residents in filing requests for administrative remedies
relating to allegations of sexual abuse, and shall also be permitted to
file such requests on behalf of residents.
(2) If a third party, other than a parent or legal guardian, files
such a request on behalf of a resident, the facility may require as a
condition of processing the request that the alleged victim agree to
have the request filed on his or her behalf, and may also require the
alleged victim to personally pursue any subsequent steps in the
administrative remedy process.
(3) If the resident declines to have the request processed on his
or her behalf, the agency shall document the resident's decision.
(4) A parent or legal guardian of a juvenile shall be allowed to
file a grievance regarding allegations of sexual abuse, including
appeals, on behalf of such juvenile. Such a grievance shall not be
conditioned upon the juvenile agreeing to have the request filed on his
or her behalf.
(f)(1) The agency shall establish procedures for the filing of an
emergency grievance alleging that a resident is subject to a
substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is
subject to a substantial risk of imminent sexual abuse, the agency
shall immediately forward the grievance (or any portion thereof that
alleges the substantial risk of imminent sexual abuse) to a level of
review at which immediate corrective action may be taken, shall provide
an initial response within 48 hours, and shall issue a final agency
decision within 5 calendar days. The initial response and final agency
decision shall document the agency's determination whether the resident
is in substantial risk of imminent sexual abuse and the action taken in
response to the emergency grievance.
(g) The agency may discipline a resident for filing a grievance
related to alleged sexual abuse only where the agency demonstrates that
the resident filed the grievance in bad faith.
Sec. 115.353 Resident access to outside support services and legal
representation.
(a) The facility shall provide residents with access to outside
victim advocates for emotional support services related to sexual
abuse, by providing, posting, or otherwise making accessible mailing
addresses and telephone numbers, including toll free hotline numbers
where available, of local, State, or national victim advocacy or rape
crisis organizations, and, for persons detained solely for civil
immigration purposes, immigrant services agencies. The facility shall
enable reasonable communication between residents and these
organizations and agencies, in as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them
access, of the extent to which such communications will be monitored
and the extent to which reports of abuse will be forwarded to
authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers that
are able to provide residents with confidential emotional support
services related to sexual abuse. The agency shall maintain copies of
agreements or documentation showing attempts to enter into such
agreements.
(d) The facility shall also provide residents with reasonable and
confidential access to their attorneys or other legal representation
and reasonable access to parents or legal guardians.
Sec. 115.354 Third-party reporting.
The agency shall establish a method to receive third-party reports
of sexual abuse and sexual harassment and shall distribute publicly
information on how to report sexual abuse and sexual harassment on
behalf of a resident.
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 or sexual harassment
that occurred in a facility, whether or not it is part of the agency;
retaliation against residents or staff who reported such an incident;
and any staff neglect or violation of responsibilities that may have
contributed to an incident or retaliation.
(b) The agency shall also require all staff to comply with any
applicable mandatory child abuse reporting laws.
(c) Apart from reporting to designated supervisors or officials and
designated State or local services agencies, staff shall be prohibited
from revealing any information related to a sexual abuse report to
anyone other than to the extent necessary, as specified in agency
policy, to make treatment, investigation, and other security and
management decisions.
(d)(1) Medical and mental health practitioners shall be required to
report sexual abuse to designated supervisors and officials pursuant to
paragraph (a) of this section, as well as to the designated State or
local services agency where required by mandatory reporting laws.
(2) Such practitioners shall be required to inform residents at the
initiation of services of their duty to report and the limitations of
confidentiality.
(e)(1) Upon receiving any allegation of sexual abuse, the facility
head or his or her designee shall promptly report the allegation to the
appropriate agency office and to the alleged victim's parents or legal
guardians, unless the facility has official documentation showing the
parents or legal guardians should not be notified.
(2) If the alleged victim is under the guardianship of the child
welfare system, the report shall be made to the alleged victim's
caseworker instead of the parents or legal guardians.
(3) If a juvenile court retains jurisdiction over the alleged
victim, the facility head or designee shall also report the allegation
to the juvenile's attorney or other legal representative of record
within 14 days of receiving the allegation.
(f) The facility shall report all allegations of sexual abuse and
sexual harassment, including third-party and anonymous reports, to the
facility's designated investigators.
[[Page 37228]]
Sec. 115.362 Agency protection duties.
When an agency learns that a resident is subject to a substantial
risk of imminent sexual abuse, it shall take immediate action to
protect the resident.
Sec. 115.363 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a resident was sexually
abused while confined at another facility, the head of the facility
that received the allegation shall notify the head of the facility or
appropriate office of the agency where the alleged abuse occurred and
shall also notify the appropriate investigative agency.
(b) Such notification shall be provided as soon as possible, but no
later than 72 hours after receiving the allegation.
(c) The agency shall document that it has provided such
notification.
(d) The facility head or agency office that receives such
notification shall ensure that the allegation is investigated in
accordance with these standards.
Sec. 115.364 Staff first responder duties.
(a) Upon learning of an allegation that a resident was sexually
abused, the first staff member to respond to the report shall be
required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps
can be taken to collect any evidence;
(3) If the abuse occurred within a time period that still allows
for the collection of physical evidence, request that the alleged
victim not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows
for the collection of physical evidence, ensure that the alleged abuser
does not take any actions that could destroy physical evidence,
including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member,
the responder shall be required to request that the alleged victim not
take any actions that could destroy physical evidence, and then notify
security staff.
Sec. 115.365 Coordinated response.
The facility shall develop a written institutional plan to
coordinate actions taken in response to an incident of sexual abuse
among staff first responders, medical and mental health practitioners,
investigators, and facility leadership.
Sec. 115.366 Preservation of ability to protect residents from
contact with abusers.
(a) Neither the agency nor any other governmental entity
responsible for collective bargaining on the agency's behalf shall
enter into or renew any collective bargaining agreement or other
agreement that limits the agency's ability to remove alleged staff
sexual abusers from contact with residents pending the outcome of an
investigation or of a determination of whether and to what extent
discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or
renewal of agreements that govern:
(1) The conduct of the disciplinary process, as long as such
agreements are not inconsistent with the provisions of Sec. Sec.
115.372 and 115.376; or
(2) Whether a no-contact assignment that is imposed pending the
outcome of an investigation shall be expunged from or retained in the
staff member's personnel file following a determination that the
allegation of sexual abuse is not substantiated.
Sec. 115.367 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all residents
and staff who report sexual abuse or sexual harassment or cooperate
with sexual abuse or sexual harassment investigations from retaliation
by other residents or staff and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as
housing changes or transfers for resident victims or abusers, removal
of alleged staff or resident abusers from contact with victims, and
emotional support services for residents or staff who fear retaliation
for reporting sexual abuse or sexual harassment or for cooperating with
investigations.
(c) For at least 90 days following a report of sexual abuse, the
agency shall monitor the conduct or treatment of residents or staff who
reported the sexual abuse and of residents who were reported to have
suffered sexual abuse to see if there are changes that may suggest
possible retaliation by residents or staff, and shall act promptly to
remedy any such retaliation. Items the agency should monitor include
any resident disciplinary reports, housing, or program changes, or
negative performance reviews or reassignments of staff. The agency
shall continue such monitoring beyond 90 days if the initial monitoring
indicates a continuing need.
(d) In the case of residents, such monitoring shall also include
periodic status checks.
(e) If any other individual who cooperates with an investigation
expresses a fear of retaliation, the agency shall take appropriate
measures to protect that individual against retaliation.
(f) An agency's obligation to monitor shall terminate if the agency
determines that the allegation is unfounded.
Sec. 115.368 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 and sexual harassment, it shall do so
promptly, thoroughly, and objectively for all allegations, including
third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use
investigators who have received special training in sexual abuse
investigations involving juvenile victims pursuant to Sec. 115.334.
(c) Investigators shall gather and preserve direct and
circumstantial evidence, including any available physical and DNA
evidence and any available electronic monitoring data; shall interview
alleged victims, suspected perpetrators, and witnesses; and shall
review prior complaints and reports of sexual abuse involving the
suspected perpetrator.
(d) The agency shall not terminate an investigation solely because
the source of the allegation recants the allegation.
(e) When the quality of evidence appears to support criminal
prosecution, the agency shall conduct compelled interviews only after
consulting with prosecutors as to whether compelled interviews may be
an obstacle for subsequent criminal prosecution.
(f) The credibility of an alleged victim, suspect, or witness shall
be assessed on an individual basis and shall not be determined by the
person's status as resident or staff. No agency shall require a
resident who alleges sexual abuse to submit to a polygraph examination
or other truth-telling device as a condition for proceeding with the
investigation of such an allegation.
(g) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or
[[Page 37229]]
failures to act contributed to the abuse; and
(2) Shall be documented in written reports that include a
description of the physical and testimonial evidence, the reasoning
behind credibility assessments, and investigative facts and findings.
(h) Criminal investigations shall be documented in a written report
that contains a thorough description of physical, testimonial, and
documentary evidence and attaches copies of all documentary evidence
where feasible.
(i) Substantiated allegations of conduct that appears to be
criminal shall be referred for prosecution.
(j) The agency shall retain all written reports referenced in
paragraphs (g) and (h) of this section for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years,
unless the abuse was committed by a juvenile resident and applicable
law requires a shorter period of retention.
(k) The departure of the alleged abuser or victim from the
employment or control of the facility or agency shall not provide a
basis for terminating an investigation.
(l) Any State entity or Department of Justice component that
conducts such investigations shall do so pursuant to the above
requirements.
(m) When outside agencies investigate sexual abuse, the facility
shall cooperate with outside investigators and shall endeavor to remain
informed about the progress of the investigation.
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 or
sexual harassment 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 against the resident, the agency shall
subsequently inform the resident (unless the agency has determined that
the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident's
unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a
charge related to sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a
charge related to sexual abuse within the facility.
(d) Following a resident's allegation that he or she has been
sexually abused by another resident, the agency shall subsequently
inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on
a charge related to sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on
a charge related to sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be
documented.
(f) An agency's obligation to report under this standard shall
terminate if the resident is released from the agency's custody.
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 abuse.
(c) Disciplinary sanctions for violations of agency policies
relating to sexual abuse or sexual harassment (other than actually
engaging in sexual abuse) shall be commensurate with the nature and
circumstances of the acts committed, the staff member's disciplinary
history, and the sanctions imposed for comparable offenses by other
staff with similar histories.
(d) All terminations for violations of agency sexual abuse or
sexual harassment policies, or resignations by staff who would have
been terminated if not for their resignation, shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to any relevant licensing bodies.
Sec. 115.377 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall
be prohibited from contact with residents and shall be reported to law
enforcement agencies, unless the activity was clearly not criminal, and
to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and
shall consider whether to prohibit further contact with residents, in
the case of any other violation of agency sexual abuse or sexual
harassment policies by a contractor or volunteer.
Sec. 115.378 Interventions and disciplinary sanctions for residents.
(a) A resident may be subject to disciplinary sanctions only
pursuant to a formal disciplinary process following an administrative
finding that the resident engaged in resident-on-resident sexual abuse
or following a criminal finding of guilt for resident-on-resident
sexual abuse.
(b) Any disciplinary sanctions shall be commensurate with the
nature and circumstances of the abuse committed, the resident's
disciplinary history, and the sanctions imposed for comparable offenses
by other residents with similar histories. In the event a disciplinary
sanction results in the isolation of a resident, agencies shall not
deny the resident daily large-muscle exercise or access to any legally
required educational programming or special education services.
Residents in isolation shall receive daily visits from a medical or
mental health care clinician. Residents shall also have access to other
programs and work opportunities to the extent possible.
(c) The disciplinary process shall consider whether a resident's
mental disabilities or mental illness contributed to his or her
behavior when determining what type of sanction, if any, should be
imposed.
(d) If the facility offers therapy, counseling, or other
interventions designed to address and correct underlying reasons or
motivations for the abuse, the facility shall consider whether to offer
the offending resident participation in such interventions. The agency
may require participation in such interventions as a condition of
access to any rewards-based behavior management system or other
behavior-based incentives, but not as a condition to access to general
programming or education.
(e) The agency may discipline a resident for sexual contact with
staff only upon a finding that the staff member did not consent to such
contact.
(f) For the purpose of disciplinary action, a report of sexual
abuse made in good faith based upon a reasonable belief that the
alleged conduct occurred shall not constitute falsely reporting an
incident or lying, even if an investigation does not establish evidence
sufficient to substantiate the allegation.
[[Page 37230]]
(g) An agency may, in its discretion, prohibit all sexual activity
between residents and may discipline residents for such activity. An
agency may not, however, deem such activity to constitute sexual abuse
if it determines that the activity is not coerced.
Medical and Mental Care
Sec. 115.381 Medical and mental health screenings; history of sexual
abuse.
(a) If the screening pursuant to Sec. 115.341 indicates that a
resident has experienced prior sexual victimization, whether it
occurred in an institutional setting or in the community, staff shall
ensure that the resident is offered a follow-up meeting with a medical
or mental health practitioner within 14 days of the intake screening.
(b) If the screening pursuant to Sec. 115.341 indicates that a
resident has previously perpetrated sexual abuse, whether it occurred
in an institutional setting or in the community, staff shall ensure
that the resident is offered a follow-up meeting with a mental health
practitioner within 14 days of the intake screening.
(c) Any information related to sexual victimization or abusiveness
that occurred in an institutional setting shall be strictly limited to
medical and mental health practitioners and other staff, as necessary,
to inform treatment plans and security and management decisions,
including housing, bed, work, education, and program assignments, or as
otherwise required by Federal, State, or local law.
(d) Medical and mental health practitioners shall obtain informed
consent from residents before reporting information about prior sexual
victimization that did not occur in an institutional setting, unless
the resident is under the age of 18.
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) 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. 115.362 and shall immediately notify the appropriate medical
and mental health practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be
offered timely information about and timely access to emergency
contraception and sexually transmitted infections prophylaxis, in
accordance with professionally accepted standards of care, where
medically appropriate.
(d) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
Sec. 115.383 Ongoing medical and mental health care for sexual abuse
victims and abusers.
(a) The facility shall offer medical and mental health evaluation
and, as appropriate, treatment to all residents who have been
victimized by sexual abuse in any prison, jail, lockup, or juvenile
facility.
(b) The evaluation and treatment of such victims shall include, as
appropriate, follow-up services, treatment plans, and, when necessary,
referrals for continued care following their transfer to, or placement
in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental
health services consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while
incarcerated shall be offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of
this section, such victims shall receive timely and comprehensive
information about and timely access to all lawful pregnancy-related
medical services.
(f) Resident victims of sexual abuse while incarcerated shall be
offered tests for sexually transmitted infections as medically
appropriate.
(g) Treatment services shall be provided to the victim without
financial cost and regardless of whether the victim names the abuser or
cooperates with any investigation arising out of the incident.
(h) The facility shall attempt to conduct a mental health
evaluation of all known resident-on-resident abusers within 60 days of
learning of such abuse history and offer treatment when deemed
appropriate by mental health practitioners.
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) Such review shall ordinarily occur within 30 days of the
conclusion of the investigation.
(c) The review team shall include upper-level management officials,
with input from line supervisors, investigators, and medical or mental
health practitioners.
(d) The review team shall:
(1) Consider whether the allegation or investigation indicates a
need to change policy or practice to better prevent, detect, or respond
to sexual abuse;
(2) Consider whether the incident or allegation was motivated by
race; ethnicity; gender identity; lesbian, gay, bisexual, transgender,
or intersex identification, status, or perceived status; or, gang
affiliation; or was motivated or otherwise caused by other group
dynamics at the facility;
(3) Examine the area in the facility where the incident allegedly
occurred to assess whether physical barriers in the area may enable
abuse;
(4) Assess the adequacy of staffing levels in that area during
different shifts;
(5) Assess whether monitoring technology should be deployed or
augmented to supplement supervision by staff; and
(6) Prepare a report of its findings, including but not necessarily
limited to determinations made pursuant to paragraphs (d)(1) through
(d)(5) of this section, and any recommendations for improvement and
submit such report to the facility head and PREA compliance manager.
(e) The facility shall implement the recommendations for
improvement, or shall document its reasons for not doing so.
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.
(d) The agency shall maintain, review, and collect data as needed
from all available incident-based documents, including reports,
investigation files, and sexual abuse incident reviews.
(e) The agency also shall obtain incident-based and aggregated data
from every private facility with which it contracts for the confinement
of its residents.
[[Page 37231]]
(f) Upon request, the agency shall provide all such data from the
previous calendar year to the Department of Justice no later than June
30.
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 collected pursuant
to Sec. 115.387 for at least 10 years after the date of its initial
collection unless Federal, State, or local law requires otherwise.
Audits
Sec. 115.393 Audits of standards.
The agency shall conduct audits pursuant to Sec. Sec. 115.401
through 115.405.
Subpart E--Auditing and Corrective Action
Sec. 115.401 Frequency and scope of audits.
(a) During the three-year period starting on August 20, 2013, and
during each three-year period thereafter, the agency shall ensure that
each facility operated by the agency, or by a private organization on
behalf of the agency, is audited at least once.
(b) During each one-year period starting on August 20, 2013, the
agency shall ensure that at least one-third of each facility type
operated by the agency, or by a private organization on behalf of the
agency, is audited.
(c) The Department of Justice may send a recommendation to an
agency for an expedited audit if the Department has reason to believe
that a particular facility may be experiencing problems relating to
sexual abuse. The recommendation may also include referrals to
resources that may assist the agency with PREA-related issues.
(d) The Department of Justice shall develop and issue an audit
instrument that will provide guidance on the conduct of and contents of
the audit.
(e) The agency shall bear the burden of demonstrating compliance
with the standards.
(f) The auditor shall review all relevant agency-wide policies,
procedures, reports, internal and external audits, and accreditations
for each facility type.
(g) The audits shall review, at a minimum, a sampling of relevant
documents and other records and information for the most recent one-
year period.
(h) The auditor shall have access to, and shall observe, all areas
of the audited facilities.
(i) The auditor shall be permitted to request and receive copies of
any relevant documents (including electronically stored information).
(j) The auditor shall retain and preserve all documentation
(including, e.g., video tapes and interview notes) relied upon in
making audit determinations. Such documentation shall be provided to
the Department of Justice upon request.
(k) The auditor shall interview a representative sample of inmates,
residents, and detainees, and of staff, supervisors, and
administrators.
(l) The auditor shall review a sampling of any available videotapes
and other electronically available data (e.g., Watchtour) that may be
relevant to the provisions being audited.
(m) The auditor shall be permitted to conduct private interviews
with inmates, residents, and detainees.
(n) Inmates, residents, and detainees shall be permitted to send
confidential information or correspondence to the auditor in the same
manner as if they were communicating with legal counsel.
(o) Auditors shall attempt to communicate with community-based or
victim advocates who may have insight into relevant conditions in the
facility.
Sec. 115.402 Auditor qualifications.
(a) An audit shall be conducted by:
(1) A member of a correctional monitoring body that is not part of,
or under the authority of, the agency (but may be part of, or
authorized by, the relevant State or local government);
(2) A member of an auditing entity such as an inspector general's
or ombudsperson's office that is external to the agency; or
(3) Other outside individuals with relevant experience.
(b) All auditors shall be certified by the Department of Justice.
The Department of Justice shall develop and issue procedures regarding
the certification process, which shall include training requirements.
(c) No audit may be conducted by an auditor who has received
financial compensation from the agency being audited (except for
compensation received for conducting prior PREA audits) within the
three years prior to the agency's retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise
financially compensate the auditor for three years subsequent to the
agency's retention of the auditor, with the exception of contracting
for subsequent PREA audits.
Sec. 115.403 Audit contents and findings.
(a) Each audit shall include a certification by the auditor that no
conflict of interest exists with respect to his or her ability to
conduct an audit of the agency under review.
(b) Audit reports shall state whether agency-wide policies and
procedures comply with relevant PREA standards.
(c) For each PREA standard, the auditor shall determine whether the
audited facility reaches one of the following findings: Exceeds
Standard (substantially exceeds requirement of standard); Meets
Standard (substantial compliance; complies in all material ways with
the standard for the relevant review period); Does Not Meet Standard
(requires corrective action). The audit summary shall indicate, among
other things, the number of provisions the facility has achieved at
each grade level.
(d) Audit reports shall describe the methodology, sampling sizes,
and basis for the auditor's conclusions with regard to each standard
provision for each
[[Page 37232]]
audited facility, and shall include recommendations for any required
corrective action.
(e) Auditors shall redact any personally identifiable inmate or
staff information from their reports, but shall provide such
information to the agency upon request, and may provide such
information to the Department of Justice.
(f) The agency shall ensure that the auditor's final report is
published on the agency's Web site if it has one, or is otherwise made
readily available to the public.
Sec. 115.404 Audit corrective action plan.
(a) A finding of ``Does Not Meet Standard'' with one or more
standards shall trigger a 180-day corrective action period.
(b) The auditor and the agency shall jointly develop a corrective
action plan to achieve compliance.
(c) The auditor shall take necessary and appropriate steps to
verify implementation of the corrective action plan, such as reviewing
updated policies and procedures or re-inspecting portions of a
facility.
(d) After the 180-day corrective action period ends, the auditor
shall issue a final determination as to whether the facility has
achieved compliance with those standards requiring corrective action.
(e) If the agency does not achieve compliance with each standard,
it may (at its discretion and cost) request a subsequent audit once it
believes that is has achieved compliance.
Sec. 115.405 Audit appeals.
(a) An agency may lodge an appeal with the Department of Justice
regarding any specific audit finding that it believes to be incorrect.
Such appeal must be lodged within 90 days of the auditor's final
determination.
(b) If the Department determines that the agency has stated good
cause for a re-evaluation, the agency may commission a re-audit by an
auditor mutually agreed upon by the Department and the agency. The
agency shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.
Subpart F--State Compliance
Sec. 115.501 State determination and certification of full
compliance.
(a) In determining pursuant to 42 U.S.C. 15607(c)(2) whether the
State is in full compliance with the PREA standards, the Governor shall
consider the results of the most recent agency audits.
(b) The Governor's certification shall apply to all facilities in
the State under the operational control of the State's executive
branch, including facilities operated by private entities on behalf of
the State's executive branch.
Dated: May 17, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-12427 Filed 6-19-12; 8:45 am]
BILLING CODE 4410-05-P; 4410-18-P