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Comments Re DOJ PREA Notice, Just Detention International, 2011

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JUST DETENTION
INTERNATIONAL
RAPE IS NOT PART OF THE PENALTY

Comments Submitted to the Department of Justice
Notice of Proposed Rulemaking on
National Standards to Prevent, Detect, and Respond
to Prison Rape
Docket No. OAG-131; AG Order No. 3244-2011

April 4, 2011

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

TABLE OF CONTENTS

INDEX TO DEPARTMENT’S QUESTIONS…………….………………………………...iv
A. INTRODUCTION..................................................................................................................1
I. About Just Detention International ......................................................................................1
II. The Problem of Prisoner Rape .............................................................................................2
III. Sexual Violence in Federal Detention .................................................................................7
B. DISCUSSION OF PROPOSED STANDARDS .................................................................10
I. Definitions ............................................................................................................................10
Facilities excluded from the proposed standards .................................................................10
§ 115.5 General definitions ..................................................................................................14
§ 115.6 Definitions related to sexual abuse..........................................................................17
II. Prevention Planning ............................................................................................................18
§ 115.11/111/211/311 Zero tolerance of sexual abuse and sexual harassment ...................18
§ 115.12/112/212/312 Contracting with other entities .........................................................19
§ 115.13/113/213/313 Supervision and monitoring .............................................................20
§ 115.14/114/214/314 Limits to cross-gender viewing and searches ..................................28
§ 115.15/115/215/315 Accommodating inmates with special needs ...................................35
§ 115.16/116/216/316 Hiring and promoting decisions .......................................................38
§ 115.17/117/217/317 Upgrades to facilities and technologies ...........................................39
III. Response Planning .............................................................................................................39
§ 115.21/121/221/321 Evidence protocol and forensic medical exams ...............................39
§ 115.22/222/322 Agreements with outside public entities and community service
providers .........................................................................................................................45
§ 115.23/123/223/323 Policies to ensure investigation of allegations .................................47
IV. Training and Education. ....................................................................................................48
§ 115.31/131/231/331 Employee training ............................................................................48
§ 115.32/232/332 Volunteer and contractor training ...........................................................51
§ 115.33/233/333 Inmate/resident education .......................................................................51
§ 115.34/134/234/334 Specialized training: investigations .................................................52
§ 115.35/235/335 Specialized training: medical and mental health care .............................53

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

V. Screening for Risk of Sexual Victimization and Abusiveness. ..........................................54
§ 115.41/241 Screening for risk of victimization and abusiveness ......................................54
§ 115.341 Obtaining information from residents .................................................................54
§ 115.42/242 Use of screening information .........................................................................58
§ 115.342 Placement of residents in housing, bed, program, education, and work
assignments ....................................................................................................................60
§ 115.43/243 Protective custody ..........................................................................................62
VI. Reporting. ..........................................................................................................................65
§ 115.51/151/251/351 Inmate reporting ...............................................................................65
§ 115.52/252/352 Exhaustion of administrative remedies ...................................................67
§ 115.53/253/353 Inmate access to outside confidential support services ...........................73
§ 115.54/154/254/354 Third-party reporting .......................................................................74
VII. Official Response Following Inmate Report. ..................................................................75
§ 115.61/161/261/361 Staff and agency reporting duties ....................................................75
§ 115.62/162/262/362 Reporting to other confinement facilities ........................................77
§ 115.63/163/263/363 Staff first responder duties ...............................................................78
§ 115.64/164/264/364 Coordinated response .......................................................................78
§ 115.65/165/265/365 Agency protection against retaliation ..............................................80
§ 115.66/366 Post-allegation protective custody .................................................................80
VIII. Investigations ..................................................................................................................81
§ 115.71/171/271/371 Criminal and administrative agency investigations .........................81
§ 115.72/172/272/372 Evidentiary standard for administrative investigations....................83
§ 115.73/273/373 Reporting to inmates ...............................................................................84
IX. Discipline...........................................................................................................................84
§ 115.76/176/276/376 Disciplinary sanctions for staff ........................................................84
§ 115.77/277/377 Disciplinary sanctions for inmates ..........................................................85
X. Medical and Mental Health Care ........................................................................................87
§ 115.81/381 Medical and mental health screenings ...........................................................87
§ 115.82/282/382 Access to emergency medical and mental health services ......................89
§ 115.83/283/383 Ongoing medical and mental health care ................................................89
XI. Data Collection ..................................................................................................................91
§ 115.86/186/286/386 Sexual abuse incident reviews .........................................................91
§ 115.87/187/287/387 Data collection .................................................................................92
§ 115.88/188/288/388 Data review for corrective action .....................................................92
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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

§ 115.89 Data storage, publication, and destruction ............................................................92
XII. Audits ...............................................................................................................................93
§ 115.93/193/293/393...........................................................................................................93
C. REGULATORY QUESTIONS.........................................................................................105
D. CONCLUSION...................................................................................................................125
E. APPENDICES ....................................................................................................................126
Appendix A............................................................................................................................127
Characteristics of Sexual Assault in U.S. Detention Facilities: Aggregate 2010
Figures from JDI‘s Survivor Database
Appendix B ............................................................................................................................129
Characteristics of Sexual Assault in Bureau of Prisons (BOP) Detention Facilities:
2002-2010 Figures from JDI‘s Survivor Database
Appendix C ............................................................................................................................131
List of Provisions in the Department of Justice‘s Proposed National Standards to
Prevent, Detect, and Respond to Prison Rape that are Missing from Immigration and
Custom Enforcement‘s Proposed 2010 Performance-Based National Standards
(PBNDS Provision 2.11
Appendix D............................................................................................................................133
Just Detention International‘s Calculation of the Prevalence Rate of Sexual Abuse
in the Top Half Facilities in the BJS Adult Inmate Survey

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

INDEX TO DEPARTMENT’S QUESTIONS
Question 1 ................................................................................................................................15
The Department solicits comments regarding the application of this definition to those States
that operate ―unified systems‖—i.e., States with direct authority over all adult correctional
facilities, as opposed to the more common practice of jails being operated by counties, cities,
or other municipalities. States that operate unified systems may be less likely to adhere to the
traditional distinctions between prisons and jails, and may operate facilities that are
essentially a mixture of the two. Do the respective definitions of jail and prison, and the
manner in which the terms are used in the proposed standards, adequately cover facilities in
States with unified systems? If not, how should the definitions or standards be modified?
Question 2 ................................................................................................................................18
Should the Department modify the full-time coordinator requirement to allow additional
flexibility, such as by requiring only that PREA be the coordinator’s primary responsibility,
or by allowing the coordinator also to work on other related issues, such as inmate safety
more generally?
Question 3 ................................................................................................................................19
Should the final rule provide greater guidance as to how agencies should conduct such
monitoring? If so, what guidance should be provided?
Question 4 ................................................................................................................................23
Should the standard require that facilities actually provide a certain level of staffing,
whether determined qualitatively, such as by reference to ―adequacy,‖ or quantitatively, by
setting forth more concrete requirements? If so, how?
Question 5 ................................................................................................................................23
If a level such as ―adequacy‖ were mandated, how would compliance be measured?
Question 6 ................................................................................................................................24
Various States have regulations that require correctional agencies to set or abide by
minimum staffing requirements. To what extent, if any, should the standard take into account
such State regulations?
Question 7 ................................................................................................................................24
Some States mandate specific staff-to-resident ratios for certain types of juvenile facilities.
Should the standard mandate specific ratios for juvenile facilities?
Question 8 ................................................................................................................................24
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?

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Comments to the Department of Justice
Docket No. OAG–131

Question 9 ................................................................................................................................25
Should the standard require the establishment of priority posts, and if so, how should such a
requirement be structured and assessed?
Question 10 ..............................................................................................................................25
To what extent can staffing deficiencies be addressed by redistributing existing staff
assignments? Should the standard include additional language to encourage such
redistribution?
Question 11 ..............................................................................................................................25
If the Department does not mandate the provision of a certain level of staffing, are there
other ways to supplement or replace the Department’s proposed standard in order to foster
appropriate staffing?
Question 12 ..............................................................................................................................26
Should the Department mandate the use of technology to supplement sexual abuse
prevention, detection, and response efforts?
Question 13 ..............................................................................................................................26
Should the Department craft the standard so that compliance is measured by ensuring that
the facility has developed a plan for securing technology as funds become available?
Question 14 ..............................................................................................................................26
Are there other ways not mentioned above in which the Department can improve the
proposed standard?
Question 15 ..............................................................................................................................27
Should this standard mandate a minimum frequency for the conduct of such rounds, and if
so, what should it be?
Question 16 ..............................................................................................................................32
Should the final rule contain any additional measures regarding oversight and supervision to
ensure that pat-down searches, whether cross-gender or same-gender, are conducted
professionally?
Question 17 ..............................................................................................................................37
Should the final rule include a requirement that inmates with disabilities and LEP inmates be
able to communicate with staff throughout the entire investigation and response process? If
such a requirement is included, how should agencies ensure communication throughout the
process?

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Question 18 ..............................................................................................................................44
Do the standards adequately provide support for victims of sexual abuse in lockups upon
transfer to other facilities, and if not, how should the standards be modified?
Question 19 ..............................................................................................................................46
Should this standard expressly mandate that agencies attempt to enter into memoranda of
understanding that provide specific assistance for LEP inmates?
Question 20 ..............................................................................................................................50
Should the Department further specify training requirements for lockups and if so, how?
Would lockups be able to implement such training in a cost-effective manner via in-person
training, videos, or web-based seminars?
Question 21 ..............................................................................................................................56
Recognizing that lockup detention is usually measured in hours, and that lockups often have
limited placement options, should the final rule mandate rudimentary screening
requirements for lockups, and if so, in what form?
Question 22 ..............................................................................................................................57
Should the final rule provide greater guidance regarding the required scope of the intake
screening, and if so, how?
Question 23 ..............................................................................................................................66
Should the final rule mandate that agencies provide inmates with the option of making a
similarly restricted report to an outside public entity? To what extent, if any, would such an
option conflict with applicable State or local law?
Question 24 ..............................................................................................................................67
Because the Department’s proposed standard addressing administrative remedies differs
significantly from the Commission’s draft, the Department specifically encourages comments
on all aspects of this proposed standard.
Question 25 ..............................................................................................................................79
Does this standard provide sufficient guidance as to how compliance would be measured? If
not, how should it be revised?
Question 26 ..............................................................................................................................80
Should the standard be further refined to provide additional guidance regarding when
continuing monitoring is warranted, or is the current language sufficient?
Question 27 ..............................................................................................................................90
Does the standard that requires known inmate abusers to receive a mental health evaluation
within 60 days of learning the abuse has occurred provide adequate guidance regarding the

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Comments to the Department of Justice
Docket No. OAG–131

scope of treatment that subsequently must be offered to such abusers? If not, how should it
be revised?
Question 28 ..............................................................................................................................97
Should audits be conducted at set intervals, or should audits be conducted only for cause,
based upon a reason to believe that a particular facility or agency is materially out of
compliance with the standards? If the latter, how should such a for-cause determination be
structured?
Question 29 ..............................................................................................................................97
If audits are conducted for cause, what entity should be authorized to determine that there is
reason to believe an audit is appropriate, and then to call for an audit to be conducted?
What would be the appropriate standard to trigger such an audit requirement?
Question 30 ..............................................................................................................................97
Should all facilities be audited or should random sampling be allowed for some or all
categories of facilities in order to reduce burdens while ensuring that all facilities could be
subject to an audit?
Question 31 ..............................................................................................................................97
Is there a better approach to audits other than the approaches discussed above?
Question 32 ............................................................................................................................100
To what extent, if any, should agencies be able to combine a PREA audit with an audit
performed by an accrediting body or with other types of audits?
Question 33 ............................................................................................................................101
To what extent, if any, should the wording of any of the substantive standards be revised in
order to facilitate a determination of whether a jurisdiction is in compliance with that
standard?
Question 34 ............................................................................................................................101
How should ―full compliance‖ be defined in keeping with the considerations set forth in the
above discussion?
Question 35 ............................................................................................................................101
To what extent, if any, should audits bear on determining whether a State is in full
compliance with PREA?
Question 36 ............................................................................................................................103
Should the final rule include a standard that governs the placement of juveniles in adult
facilities?

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Question 37 ............................................................................................................................103
If so, what should the standard require, and how should it interact with the current JJDPA
requirements and penalties mentioned above?
Question 38 ............................................................................................................................105
Has the Department appropriately determined the baseline level of sexual abuse in
correctional settings for purposes of assessing the benefit and cost of the proposed PREA
standards?
Question 39 ............................................................................................................................105
Are there any reliable, empirical sources of data, other than the BJ studies referenced in the
IRIA, that would be appropriate to use in determining the baseline level of prison sexual
abuse? If so, please cite such sources and explain whether and why they should be used to
supplement or replace the BJS data.
Question 40 ............................................................................................................................105
Are there reliable methods for measuring the extent of underreporting and
overreporting in connection with BJS’s inmate surveys?
Question 41 ............................................................................................................................105
Are there sources of data that would allow the Department to assess the prevalence of sexual
abuse in lockups and community confinement facilities? If so, please supply such data. In the
absence of such data, are there available methodologies for including sexual abuse in such
settings in the overall estimate of baseline prevalence?
Question 42 ............................................................................................................................108
Has the Department appropriately adjusted the conclusions of studies on the value of rape
and sexual abuse generally to account for the differing circumstances posed by sexual abuse
in confinement settings?
Question 43 ............................................................................................................................108
Are there any academic studies, data compilations, or established methodologies that can be
used to extrapolate from mental health costs associated with sexual abuse in community
settings to such costs in confinement settings? Has the Department appropriately estimated
that the cost of mental health treatment associated with sexual abuse in confinement settings
is twice as large as the corresponding costs in community settings?
Question 44 ............................................................................................................................108
Has the Department correctly identified the quantifiable costs of rape and sexual abuse? Are
there other costs of rape and sexual abuse that are capable of quantification, but are not
included in the Department’s analysis?

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Comments to the Department of Justice
Docket No. OAG–131

Question 45 ............................................................................................................................111
Should the Department adjust the ―willingness to pay‖ figures on which it relies (developed
by Professor Mark Cohen for purposes of valuing the benefit to society of an avoided
rape10) to account for the possibility that some people may believe sexual abuse in
confinement facilities is a less pressing problem than it is in society as a whole, and might
therefore think that the value of avoiding such an incident in the confinement setting is less
than the value of avoiding a similar incident in the non-confinement setting? Likewise,
should the Department adjust these figures to take into account the fact that in the general
population the vast majority of sexual abuse victims are female, whereas in the confinement
setting the victims are overwhelmingly male? Are such differences even relevant for
purposes of using the contingent valuation method to monetize the cost of an incident of
sexual abuse? If either adjustment were appropriate, how (or on the basis of what empirical
data) would the Department go about determining the amount of the adjustment?
Question 46 ............................................................................................................................111
Has the Department appropriately accounted for the increased costs to the victim and to
society when the victim is a juvenile? Why or why not?
Question 47 ............................................................................................................................113
Are there available methodologies, or available data from which a methodology can be
developed, to assess the unit value of avoiding a nonconsensual sexual act involving
pressure or coercion? If so, please supply them. Is the Department’s estimate of this unit
value (i.e., 20% of the value of a forcible rape) appropriately conservative?
Question 48 ............................................................................................................................113
Are there available methodologies, or available data from which a methodology can be
developed, to assess the unit value of avoiding an ―abusive sexual contact between inmates,‖
as defined in the IRIA? If so, please supply them. Is the Department’s estimate of this unit
value (i.e., $375 for adult inmates and $500 for juveniles) appropriately conservative?
Would a higher figure be more appropriate? Why or why not?
Question 49 ............................................................................................................................114
Are there any additional nonmonetary benefits of implementing the PREA standards not
mentioned in the IRIA?
Question 50 ............................................................................................................................114
Are any of the nonmonetary benefits set forth in the IRIA actually capable of quantification?
If so, are there available methodologies for quantifying such benefits or sources of data from
which such quantification can be drawn?
Question 51 ............................................................................................................................116
Are there available sources of data relating to the compliance costs associated with the
proposed standards, other than the sources cited and relied upon in the IRIA? If so, please
provide them.

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Comments to the Department of Justice
Docket No. OAG–131

Question 52 ............................................................................................................................118
Are there available data as to the number of lockups that will be affected by the proposed
standards, the number of individuals who are detained in lockups on an annual basis, and/or
the anticipated compliance costs for lockups? If so, please provide them.
Question 53 ............................................................................................................................118
Are there available data as to the number of community confinement facilities that will be
affected by the proposed standards, the number of individuals who reside or are detained in
such facilities on an annual basis, or the anticipated compliance costs for community
confinement facilities? If so, please provide them.
Question 54 ............................................................................................................................118
Has the Department appropriately differentiated the estimated compliance costs with regard
to the different types of confinement facilities (prisons, jails, juvenile facilities, community
confinement facilities, and lockups)? If not, why and to what extent should compliance costs
be expected to be higher or lower for one type or another?
Question 55 ............................................................................................................................118
Are there additional methodologies for conducting an assessment of the costs of compliance
with the proposed standards? If so, please propose them.
Question 56 ............................................................................................................................119
With respect to §§ 115.12, 115.112, 115.212, and 115.312, are there other methods of
estimating the extent to which contract renewals and renegotiations over the 15-year period
will lead to costs for agencies that adopt the proposed standards?
Question 57 ............................................................................................................................119
Do agencies expect to incur costs associated with proposed §§ 115.13, 115.113, 115.213,
and 115.313, notwithstanding the fact that it does not mandate any particular level of
staffing or the use of video monitoring? Why or why not? If so, what are the potential cost
implications of this standard under various alternative scenarios concerning staffing
mandates or video monitoring mandates? What decisions do agencies anticipate making in
light of the assessments called for by this standard, and what will it cost to implement those
decisions?
Question 58 ............................................................................................................................119
With respect to §§ 115.14, 115.114, 115.214, and 115.314, will the limitations on crossgender viewing (and any associated retrofitting and construction of privacy panels) impose
any costs on agencies? If so, please provide any data from which a cost estimate can be
developed for such measures.
Question 59 ............................................................................................................................119

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Will the requirement in §§ 115.31, 115.231, and 115.331 that agencies train staff on how to
communicate effectively and professionally with lesbian, gay, bisexual, transgender, or
intersex residents lead to additional costs for correctional facilities, over and above the costs
of other training requirements in the standards? If so, please provide any data from which a
cost estimate can be developed for such training.
Question 60 ............................................................................................................................119
Has the Department accounted for all of the costs associated with §§ 115.52, 115.252, and
115.352, dealing with exhaustion of administrative remedies? If not, what additional costs
might be incurred, and what data exist from which an estimate of those costs can be
developed?
Question 61 ............................................................................................................................119
Is there any basis at this juncture to estimate the compliance costs associated with §§
115.93, 115.193, 115.293, and 115.393, pertaining to audits? How much do agencies
anticipate compliance with this standard is likely to cost on a per-facility basis, under
various assumptions as to the type and frequency or breadth of audits?
Question 62 ............................................................................................................................122
Has the Department used the correct assumptions (in particular the assumption of constant
cost) in projecting ongoing costs in the out years? Should it adjust its projections for the
possibility that the cost of compliance may decrease over time as correctional agencies
adopt new innovations that will make their compliance more efficient? If such an adjustment
is appropriate, please propose a methodology for doing so and a source of data from which
valid predictions as to ―learning‖ can be derived.
Question 63 ............................................................................................................................122
Are there any data showing how the marginal cost of rape reduction is likely to change once
various benchmarks of reduction have been achieved? If not, is it appropriate for the
Department to assume, for purposes of its breakeven analysis, that the costs and benefits of
reducing prison rape are linear, at least within the range relevant to the analysis? Why or
why not?
Question 64 ........................................................................................................................…124
Are the expectations as to the effectiveness of the proposed standards that are subsumed
within the breakeven analysis (e.g., 0.7%-1.7% reduction in baseline prevalence needed to
justify startup costs and 2.06%-3.13% reduction required for ongoing costs) reasonable?
Why or why not? Are there available data from which reasonable predictions can be made as
to the extent to which these proposed standards will be effective in reducing the prevalence
of rape and sexual abuse in prisons? If so, please supply them.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

A.

INTRODUCTION

Just Detention International (JDI) respectfully submits these comments regarding the Department
of Justice‘s proposed standards addressing sexual abuse in detention. In its proposal, the
Department has clarified or strengthened several of the provisions recommended by the National
Prison Rape Elimination Commission (the Commission) and JDI applauds the Department for
those accomplishments. Unfortunately, in its 20 months of review, the Department has also
substantially weakened or removed measures that are urgently needed to keep men, women, and
children in detention safe from sexual abuse.

This submission highlights what JDI has identified as areas of improvement and areas of concern
in the Department‘s proposed standards. It also responds to the questions the Department posed
in its Notice of Proposed Rulemaking. In addition to JDI‘s in-house expertise, these comments
rely heavily on the expertise of dozens of prisoner rape survivors, service providers, and other
advocates with whom JDI collaborates.

I.

About Just Detention International

The only organization in the country exclusively dedicated to ending sexual violence in
detention, JDI has three core goals for its work: to hold government officials accountable for
prisoner rape; to change ill-informed public attitudes about sexual violence behind bars; and to
ensure that those who have survived this type of abuse get the help they need. Founded in 1980
by a prisoner rape survivor, JDI‘s work is driven by the experiences of men, women, and
children who have refused to remain silent about the sexual violence they endured while in the
government‘s custody.

Working with Congressional sponsors on both sides of the aisle and a broad coalition of
advocates, faith-based leaders, corrections experts, and prisoner rape survivors, JDI played a
central role in securing passage of the Prison Rape Elimination Act (PREA). Since the law‘s
enactment, JDI has been involved in all aspects of PREA implementation. In addition to
monitoring and disseminating information about the law‘s progress, JDI has connected federal

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

agencies that have mandates under PREA with survivor advocates, and has provided these
agencies with policy analysis and technical expertise related to all aspects of sexual violence
behind bars.

For the past several years, JDI has also collaborated with state and local corrections agencies in
their implementation efforts, including three jurisdictions – the California Department of
Corrections and Rehabilitation, the Oregon Department of Corrections, and the Macomb County
(Michigan) Sheriff‘s Office – that have agreed to become ―early adopters‖ of the Commission‘s
recommended standards. Through its Raising the Bar Coalition, JDI has mobilized more than 60
organizations – including victim service providers; faith-based groups; advocates for immigrant
populations, youth, and lesbian, gay bisexual and transgender (LGBT) individuals; and other
civil rights organizations – to be engaged in the standards ratification process.

II.

The Problem of Prisoner Rape

The Department‘s own data confirm the pervasiveness of sexual abuse behind bars, with an
estimated 200,000 prison and jail inmates and more than 17,000 juvenile detainees sexually
abused in U.S. facilities in 2008 alone.1 These shocking numbers only begin to illustrate the
problem. Survivors are often abused relentlessly, and marked as fair game for attacks by other
detainees. In the aftermath of an assault, incarcerated survivors experience the same emotional
pain as other victims, which may be exacerbated by prior trauma and the inability to control their
daily surroundings. In addition to physical injuries that are often inflicted during an assault,
prisoner rape survivors are at grave risk of contracting HIV and other sexually transmitted
infections.2

1

U.S. Department of Justice, PREA Notice of Proposed Rulemaking, 76 FED. REG. 6249 (Feb. 3, 2011) (hereinafter
―NPRM‖).
2
HIV and other sexually transmitted infections are significantly more prevalent in corrections settings than in the
general population. See, e.g., Laura Maruschak, Bureau of Justice Statistics, HIV in Prisons, 2007-08 3 (2010)
(estimating HIV rate in U.S. prisons to be 2.4 times the rate in society); Scott A. Allen et al., Hepatitis C Among
Offenders—Correctional Challenge and Public Health Opportunity, 67 Fed. Probation 22 (Sept. 2003) (finding that
Hepatitis C rates were 8 to 20 times higher in prisons than on the outside, with 12 to 35 percent of prison cases
involving chronic infection); see also Centers for Disease Control & Prevention, U.S. Dep‘t Health & Hum. Svcs.,
Sexually Transmitted Disease Surveillance 2007 89 (2008), available at http://www.cdc.gov/std/stats07/Surv2007SpecialFocusProfiles.pdf.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

As the leading advocates addressing the problem of sexual violence in detention, JDI hears from
prisoner rape survivors across the country on a daily basis. JDI does not solicit such
correspondence, and does not conduct outreach to prisoners. Rather, survivors tend to hear about
JDI through word-of-mouth and contact the organization simply because they feel they have
nowhere else to turn.

The following is a small sampling of survivors who have been brave enough to write to JDI (and
who have authorized the organization to share their story publicly):

•

Scott Hill was repeatedly physically and sexually assaulted by his cellmate in protective
custody at USP Victorville. A gay man who had been raped during a prior federal prison
term, Hill was a clear target for abuse. He reported the assaults after he was transferred to
another federal facility, where he was again placed in a protective custody unit. The
Bureau of Prisons (BOP) took more than two weeks to provide Hill with the address for
the FBI so that he could report his assault to them. The BOP also opened his legal mail
and denied him legal calls. At the time of this writing, both BOP and FBI investigations
are ongoing.

•

Kimberly Yates was serving time at FDC-Philadelphia on drug charges when she was
sexually assaulted in the prison warehouse by Officer Theodore Woodson. Yates was
badly injured during the rape and spoke with a captain at the facility, after which she was
taken to the emergency room. A year before Yates‘ rape, the family of another prisoner
had contacted the facility to report Officer Woodson‘s sexual abuse of another woman,
but the BOP never investigated that report. The officer went on to sexually assault at least
four other women, including Yates. Eventually, Officer Woodson pled guilty to engaging
in sexual acts with three women inmates and received a four-month jail sentence and
three years of probation.3

•

Ivory Mitchell was repeatedly sexually assaulted by a female corrections officer at L.C.
Poweldge Unit, a Texas state prison. The officer groped him and forced him to perform
oral sex on her while he was working as a porter. The officer threatened Mitchell that if
he did not do what she demanded, she would report him for inappropriately touching her.
Despite his fears, Mitchell reported the abuse, but was told that there was nothing that
could be done. Eventually, the officer confessed, was terminated from her position, and

3

Further details about Kimberly Yates‘s experience are available in her submission to the Department during its
public comment period on the Commission‘s recommended standards (ID: DOJ-OAG-2010-0001-0190), in a
testimony she prepared for JDI‘s website, www.justdetention.org/en/survivortestimony/stories/kimberly_ky.aspx,
and on two news programs: Survivors speak out after DOJ misses deadline for prisoner rape standards (WUSA
News 9 broadcast, June 25, 2010), available at: http://www.justdetention.org/en/jdinews/2010/06_25_10.aspx (last
accessed April 4, 2011); ; L.I.F.E. After Lockup (WKCTC broadcast, July 10, 2009), available at:
http://tv.westkentucky.kctcs.edu/videoclips/life/16938_kim_yates/video.shtml (last accessed April 4, 2011). She also
participated in the Department‘s listening session with survivors and victim service providers.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

charged with improper sexual activity with a person in custody. The officer claimed that
the abuse was consensual, so Mitchell was punished with a disciplinary infraction, which
halted his parole and resulted in him being transferred to a more dangerous unit where he
was assaulted by gang members.4

•

Valjean Royal has been sexually abused repeatedly in federal, state, and county custody.
A transgender woman, Royal was only 17 years old when she was gang-raped by more
than 20 inmates in a county jail. She continued to be sexually abused while in prison and
was transferred into federal custody for her protection. Royal was again sexually abused
in two different BOP facilities before being returned to Indiana. She has mostly been
targeted by inmates, but officers often contributed to the sexual abuse by looking the
other way while inmates assaulted her, and sometimes by assisting perpetrators in gaining
access to her. Royal contracted hepatitis C and syphilis as a result of the sexual abuse and
describes herself as mentally and emotionally numb from the repeated trauma.5

•

Linda Lamb was raped by her bunkmate and another female inmate in a ―blind spot‖ at
the Plain State Jail in Texas. Other inmates watched the abuse and did nothing to help
her. As a self-identified lesbian, Lamb did not feel safe reporting the assault; she was
afraid no one would believe that she could be raped by another woman. Lamb was
transferred to prison shortly after the assault, and never received medical attention or
mental health counseling. 6

•

Scott Howard was repeatedly raped, assaulted, extorted, and forced into prostitution by a
large, notorious white supremacist prison gang while serving time in Colorado. Because
he is openly gay, officials blamed Howard for the assaults and refused to protect him.
Howard repeatedly requested safe housing but was told that he could enter administrative
segregation only if he named the assailants. On the day he was released from state
custody, Howard was placed in a holding cell with one of his assailants, who beat him
and forced him to perform oral sex. While he was being abused in prison, Howard was
too afraid to leave his cell and considered suicide.7

4

Further details about Ivory Mitchell‘s experience are available in his submission to the Department during the first
comment period (ID: DOJ-OAG-2010-0001-478) and in a written testimony he prepared for JDI‘s website,
http://www.justdetention.org/en/survivortestimony/stories/ivory_tx.aspx.
5
Valjean Royal submitted comment during the Department‘s first comment period in 2010 (ID: DOJ-OAG-20100001-0286), and prepared a written testimony that is available on JDI‘s website at
www.justdetention.org/en/survivortestimony/stories/valjean_in.aspx.
6
Linda Lamb submitted comment during the Department‘s first public comment period (ID: DOJ-OAG-2010-00010276), and prepared a testimony under her Native American name, Soaring Eagle, which is available on JDI‘s
website at http://www.justdetention.org/en/survivortestimony/stories/soaring_tx.aspx
7
Howard‘s story was recently featured in the Denver Westword News. Alan Prendergast, Raped and extorted by a
prison gang, Scott Howard was called a "drama queen" by corrections officials, WESTWORD NEWS, Feb. 2, 2011,
available at
http://www.westword.com/2011-02-03/news/211-crew-rapes-extorts-scott-howard-colorado-prison (last accessed
March 31, 2011); Alan Prendergast, Scott Howard: Inmate's history of obtaining bogus refunds tip of prison-taxfraud iceberg, WESTWORD NEWS BLOG, Feb. 3, 2011, available at
http://blogs.westword.com/latestword/2011/02/scott_howard_prison_tax_fraud.php (last accessed March 31, 2011);
Alan Prendergast, Scott Howard: Does "smoking gun" memo prove he was targeted by prison gang?, WESTWORD

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

•

Troy Isaac was sexually abused repeatedly in California youth and adult facilities
throughout more than two decades. The first attack occurred when he was 12 years old
and detained in a California Youth Authority facility for vandalism. Within days, he was
propositioned for oral sex by a gang member in the showers and was later raped in the
middle of the night by his 16-year-old cellmate. Too scared and confused to report the
abuse, Isaac told staff he was suicidal, hoping to be placed in solitary confinement, but
they ignored him and the sexual abuse continued. For the next twenty years, Isaac was in
and out of youth and adult facilities, where he was repeatedly sexually assaulted.8

•

Frank Mendoza was detained for a non-violent public order offense in the Los Angeles
County Jail. There, he was persistently harassed by corrections officers for being openly
gay. After a particularly intense verbal attack, an officer beat and raped Mendoza, leaving
him naked and bloodied in his cell in the middle of the night. Mendoza reported the abuse
the next morning, but rather than being provided with a forensic exam, he was given a
shower. The officer he told about the abuse did not write a report about the incident, nor
was Mendoza provided with medical or mental health care. He was released a few days
later and filed a formal complaint with the Los Angeles Police Department. The police
conducted a video interview with Mendoza, but because there was no physical evidence,
the police told him that the officer received a verbal warning and nothing else could be
done.9

•

Allison Mitchell was forced to perform oral sex on a male officer while she was detained
at the Rappahannock Regional Jail in Virginia. The officer stalked Mitchell and
threatened to harm her family if she reported the abuse. Other officials knew about the
abuse and stalking, but did nothing to protect Mitchell. Approximately a month after the
abuse began, Mitchell reported the abuse to an officer, who did nothing except ask her
what she expected for him to do. She told a lieutenant a few days later, and was taken to
Internal Affairs, where one of the investigating officers told her that the assault was

NEWS BLOG, Feb. 4, 2011, available at
http://blogs.westword.com/latestword/2011/02/scott_howard_prison_gang_smoking_gun.php (last accessed March
31, 2011). He also submitted comment during the Department‘s first public comment period (ID: DOJ-OAG-20100001-0024), participated in the Department‘s listening session with survivors, and prepared a written statement that
is on JDI‘s website, http://www.justdetention.org/en/survivortestimony/stories/scott_co.aspx.
8
In addition to participating in the Department‘s listening session and submitting comment during the first public
comment period (ID DOJ-OAG-2010-0001-0063), Troy Isaac‘s experience has been featured in the following news
stories: Editorial, Locked Up and Vulnerable, WASHINGTON POST, Feb. 21, 2010, available at
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/20/AR2010022002950.html (last accessed April 4,
2011);Juvenile Inmates Report Sexual Abuse At Detention Centers (NPR broadcast, Jan. 19, 2010) , available at
http://www.npr.org/templates/story/story.php?storyId=122725085 (last accessed April 4, 2011); David Kaiser &
Lovisa Stannow, The Crisis of Juvenile Prison Rape: A New Report, NEW YORK REVIEW OF BOOKS BLOG, Jan. 7,
2010, available at http://blogs.nybooks.com/post/321666354/the-crisis-of-juvenile-prison-rape-a-new-report (last
accessed April 4, 2011).
9
Frank Mendoza submitted comment during the Department‘s first public comment period (DOJ-OAG-2010-00010083). He was also featured in JDI‘s newsletter, Action Update, available at
www.justdetention.org/en/actionupdates/JDIActionUpdateOct10vM.pdf and has provided a verbal statement that is
featured in JDI‘s Portraits of Courage, at www.justdetention.org/en/survivortestimony/portraits_of_courage.aspx.

5

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

consensual. Mitchell was then transferred to another jail where she was retaliated against
by inmates and staff and denied protective custody. She developed severe anxiety/panic
attacks and suffered from nightmares, flashbacks, and chest pains. Mitchell received six
mental health sessions after reporting the abuse; her subsequent requests to meet with a
counselor were denied.10

•

Michelle Branch is a 62-year-old, transgender woman who was arrested in late 2006 and
placed in the men‘s wing of the Los Angeles County Jail. At the time of her arrest, she
had very limited mobility. During Branch‘s confinement, she was denied the use of her
wheelchair. Other detainees were prohibited from helping Branch and she was forced to
move about without assistance, falling on multiple occasions. One day while in the
shower, she was surrounded and threatened with rape by four other inmates. The
attempted sexual assault was interrupted when another inmate entered the shower and
was able to fend off the would-be assailants.11

•

Brian Lee Nestor was raped by another inmate at Fort Dix Federal Correctional
Institution and contracted syphilis as a result of the attack. Immediately following the
sexual assault, Nestor was devastated and in shock and was reluctant to report the rape
for fear of retaliation by inmates and staff. When he finally told a lieutenant, the officer
told Nestor that if he filed any paperwork or otherwise complained he would be
transferred to a prison in the south. After being transferred to New York Medical
Detention Center, Nestor reported the rape to the BOP‘s Special Investigative Services
(SIS). The BOP eventually placed Nestor in administrative segregation for six months.
Nestor has suffered from anxiety and depression, and has attempted suicide, but the BOP
has not responded to his repeated requests for psychological help. Nestor was recently
informed that he cannot file a lawsuit since he did not file a grievance within 20 days of
the incident.

JDI maintains a database that compiles aggregate data from the many letters it receives from
inmates. While JDI‘s database of letters does not permit statistical conclusions about prevalence,
it does provide rare, first-person insights from survivors of horrifying sexual abuse.

In calendar year 2010, JDI received letters from 534 survivors of sexual violence. More than half
(277) of these survivors stated that they reported the assault to prison officials, but an
investigation was undertaken less than half the time (112). Eighty-eight survivors stated that they
were placed in segregation as a result of reporting, more than half of whom (46) were placed
10

A full account of Allison Mitchell‘s abuse, under the name Loretta Mitchell, is available in a written testimony
she provided for JDI‘s website, www.justdetention.org/en/survivortestimony/stories/loretta_va.aspx, and was
featured in JDI‘s newsletter, Action Update, www.justdetention.org/en/actionupdates/AU1009_web.pdf.
11
Michelle Branch provided a verbal testimony that is featured in JDI‘s Portraits of Courage at
www.justdetention.org/en/survivortestimony/audio/Michelle.mp3.

6

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

there involuntarily. Twenty-nine survivors reported having trouble with the grievance system.
(Additional information from JDI‘s 2010 aggregate data is provided in Appendix A.)

III. Sexual Violence in Federal Detention
While the standards will apply to all corrections agencies, the Department in its Notice of
Proposed Rulemaking pays special attention to its own prison system, the Bureau of Prisons
(BOP). BOP financial data – which has not been disclosed publicly – is relied upon in the
Department‘s cost benefit analysis, and the BOP is held up as a model to justify some of the
Department‘s most drastic revisions. Unfortunately, however, despite being part of the
Department, the BOP has not been a leader in PREA implementation and sexual abuse remains a
significant problem in BOP facilities. Reliance on current BOP policies and practices for national
PREA standards is misguided and dangerous.

Although JDI has not worked directly with Bureau of Prisons facilities, approximately eight
percent (110) of the survivors who have written to the organization since 2003 were raped in a
BOP facility. These incidents occurred in facilities that spanned 30 states and Puerto Rico. Of the
survivors who identified the type of person who abused them, 60 percent stated that they were
abused by an inmate, and approximately 10 percent of these victims were assaulted by more than
one inmate at a time. Thirty percent were abused by a corrections officer and seven percent were
abused by non-custody staff members, including a physician‘s assistant and work supervisor.
One BOP survivor who wrote to JDI was abused by both inmates and staff.

Nearly two-thirds (68) of survivors from federal facilities who contacted JDI stated that they
reported the assault to prison officials, but an investigation was undertaken less than half of those
cases (28 cases). A mere ten percent (11) of survivors reported that they were protected
following the assault and only 13 of these men and women reported that a forensic medical exam
was conducted following the assault. Only four survivors (or less than three percent) received
adequate medical or mental health care in the aftermath of the sexual assault(s). HIV tests were
given to survivors in only 11 cases; five survivors reported contracting HIV as a result of the
sexual assault(s), and five reported contracting some other sexually transmitted infection.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

(Additional information from JDI‘s aggregate data from survivors in BOP custody is provided in
Appendix B.)
Confirming the dire picture that emerges in inmates‘ letters to JDI, the Office of the Inspector
General has likewise noted that staff sexual misconduct is a serious problem in BOP facilities.
Following up on a 2005 report, which found that staff sexual abuse in federal prisons was a
serious problem and that many perpetrators were not held accountable for such abuse, the
Inspector General released a 2009 report that highlighted serious deficiencies in BOP policy and
practice regarding staff sexual misconduct.12 Specifically, the Inspector General found that staff
sexual abuse and misconduct allegations in BOP facilities more than doubled from FY2001 to
FY2008, with nearly two-thirds of these allegations involving criminal sexual abuse.13 The
majority of allegations were cross-gender – male staff abusing female inmates and female staff
abusing male inmates – with female staff committing a disproportionate amount of sexual abuse
and misconduct and male staff most often accused of misconduct stemming from pat searches.14
The Inspector General identified deficiencies in several key areas, including staff training, the
use of alternatives to isolating victims, victims‘ access to psychological and medical services, the
extent to which allegations were reported to the Office of the Inspector General and the Office of
Internal Affairs, and oversight of the BOP‘s sexual abuse program.15

While the BOP has not been a leader in PREA implementation, several state and county systems
across the country have chosen to make the effort to end sexual abuse in detention a high
priority. The Commission‘s final report includes a chart of PREA initiatives in state and county
systems nationwide.16 In the nearly two years since that report was released, several state and
local systems have launched new and innovative PREA programs. For example, the California

12

OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE, THE DEPARTMENT‘S EFFORTS TO PREVENT
STAFF SEXUAL ABUSE OF FEDERAL INMATES (2009) (hereinafter ―OIG 2009 REPORT‖). See also OFFICE OF THE
INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE, DETERRING STAFF SEXUAL ABUSE OF INMATES (2005)
(recommending changes to 18 U.S.C. § 2243(b) (sexual abuse of a ward) and 18 U.S.C. § 2244(a) (abusive sexual
contact) to provide for increased penalties and to 18 U.S.C. Chapter 109A to extend federal criminal jurisdiction to
facilities under contract with the Department).
13
OIG 2009 REPORT, supra note 12, at 19.
14
Id. at 26, 30-31
15
Id. at 33-49.
16
See NATIONAL PRISON RAPE ELIMINATION COMMISSION, FINAL REPORT 251-59 (2009).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Department of Corrections and Rehabilitation has established an inmate peer education program
in two of its facilities, in which carefully selected and trained inmates provide information to
other inmates about the right to be free from sexual abuse and the resources available in the
aftermath of an assault. In addition, the Macomb County Sheriff‘s Office, in Michigan, has
incorporated a section labeled ―sexual assault in the jail‖ into its policy for investigations of
sexual assault in the community, acknowledging that jail is another place in their jurisdiction
where assaults occur and that such abuse should be treated in accordance with community
standards.

In short, several state and county corrections systems have emerged as leaders in PREA
implementation and the critically important effort to end sexual abuse in detention. The BOP is
not one of those leaders. JDI urges the Department to reconsider its reliance on BOP‘s current
policies and practices as models. Instead, it should encourage the BOP to embrace best practices
that have been implemented in state and county systems nationwide.

9

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

B.

DISCUSSION OF PROPOSED STANDARDS

As noted above, JDI believes that the Department has made some positive clarifications and
improvements to several of the Commission‘s proposed standards but is deeply concerned about
the substantial weakening of many provisions. This section discusses JDI‘s consideration of each
standard and answers the questions posed by the Department. Unless otherwise noted, JDI‘s
recommendations refer to the corresponding standards for each type of facility – prisons and
jails, lockups, community confinement, and juvenile facilities. For ease of discussion, the term
inmate is used to describe an individual held in any facility; in the recommended language,
inmate should be replaced by detainee in the lockup provisions and by resident in the community
confinement and juvenile facility provisions.

I.

Definitions

Facilities excluded from the proposed standards
Excluding immigration detention and nonresidential probation and parole officers from the
standards contradicts the explicit intent and language of PREA, as well as the Department‘s own
statement that ―[p]rotection from sexual abuse should not depend on where an individual is
incarcerated: It must be universal.‖17
Just Detention International strongly urges the Department to restore the definition of ―prison‖
relied upon by Congress so that – consistent with all other aspects of PREA implementation – the
standards apply to all forms of detention in the U.S.18
Recommendation: Adopt the definition of “prison” that is in PREA:
any confinement facility of a Federal, State, or local government, whether
administered by such government or by a private organization on behalf of such
government.19

17

NRPM, 76 FED. REG. at 6250.
While this discussion focuses on immigration detention, for the same reasons, the proposed standards should
apply to domestic military facilities and tribal facilities. Inmates in these facilities are just as vulnerable to sexual
abuse as other inmates, and these institutions are generally even more isolated and less regulated than corrections
facilities. Be it federal, state or tribal, when the government removes someone‘s liberty, it bears a duty to protect that
person from abuse, no matter what type of detention he or she is in.
19
42 U.S.C. § 15609 (7).
18

10

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

In accordance with the law‘s definition of ―prison,‖ the legislative history of PREA recognized
the law‘s application to both criminal and civil detainees.20 With respect to immigration
detention, Senator Kennedy, a lead co-sponsor of PREA, explicitly noted his satisfaction that the
law would protect immigration detainees, in his remarks at the first hearing of the National
Prison Rape Elimination Commission.21
Consistent with this history, federal entities charged with implementing PREA – in particular the
National Prison Rape Elimination Commission and the Bureau of Justice Statistics – have
included civil detention in their mandate. The Commission held a public hearing that focused on
immigration detention, convened an expert working group on immigration detention, included a
section on immigration detention in its final report, and proposed supplemental standards for
facilities housing immigration detainees in its recommended adult prison and jail standards.22
The Bureau of Justice Statistics similarly included facilities run by Immigration and Customs
Enforcement (ICE) in its collection of statistics on prisoner rape mandated by PREA. Beyond the
urgent need for the standards in immigration detention facilities, where sexual abuse is rife, the
Department‘s dangerous statement that these facilities are beyond the scope of PREA will likely
preclude further collection of vital data from these neglected facilities.

Notably, when PREA was first drafted (in 2002), there was no Department of Homeland Security
(DHS); the Immigration and Naturalization Service, which did then still exist, was a division of
the Department of Justice. While DHS was established by the time PREA passed, the transition
of authority and scope of power were still being defined; even if they had foreseen this issue, the
law‘s drafters would not realistically have been able to amend the statutory language in time.

20

U.S. House Committee on the Judiciary, Report on the Prison Rape Reduction Act of 2003, 108th Cong., 1st sess.,
2003, H. Rept. 108-219, at 14, 115, available at http://frwebgate.access.gpo.gov/cgibin/getdoc.cgi?dbname=108_cong_reports&docid=f:hr219.108.pdf (last accessed February 3, 2011).
21
The Cost of Victimization: Why Our Nation Must Confront Prison Rape, Hearing of the National Prison Rape
Elimination Commission (June 14, 2005) (testimony of Senator Edward M. Kennedy), available on-line at
http://www.cybercemetery.unt.edu/archive/nprec/20090820160727/http://nprec.us/
docs/SenatorEdwardKennedyRemarks_Vol_1.pdf (last accessed February 3, 2011).
22
NATIONAL PRISON RAPE ELIMINATION COMMISSION, supra note 16, at 174-188.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

The Department‘s decision to exclude immigration detention also undermines the
Administration‘s own efforts to reform the immigration detention system.23 Notably, in response
to sexual abuse perpetrated by a transportation officer at Hutto Detention Center – a Corrections
Corporation of America (CCA) facility contracted exclusively with Immigration and Customs
Enforcement (ICE) – ICE requested a ―PREA audit‖ of its CCA-contracted facilities. To assess
these facilities‘ PREA readiness, the recommended standards were a key tool relied upon by the
monitor who conducted those audits.24

If immigration facilities are excluded from the PREA standards, an immigration detainee in a
local jail would be protected by PREA but would lose that protection if transferred to an ICE
facility. It is inconceivable that Congress intended PREA protection for detainees to be a matter
of luck, depending on the facility that happens to confine them.

Efforts by ICE to address sexual assault through its own detention standards are important steps,
but do not obviate the need for its facilities (as well as the Office of Refugee Resettlement
facilities for unaccompanied minors) to be bound by the PREA regulations. ICE‘s performancebased national detention standards are unenforceable, subject to modification through collective
bargaining, and lack the force of law. These provisions also do not include all of the measures
that the Department and the Commission have deemed necessary in the proposed standards,
including a means to ensure oversight and accountability.25

23

See, e.g., Dr. Dora Schriro, Immigration and Customs Enforcement, Immigration Detention Overview and
Recommendations 22 (2009), available at http://www.ice.gov/doclib/about/offices/odpp/pdf/ice-detention-rpt.pdf
(last accessed February 3, 2011) (―The system must make better use of sound practices such as … practices that
comply with the Prisoner [sic] Rape Elimination Act.‖); Nina Bernstein, U.S. to Reform Policy on Detention for
Immigrants, N.Y. TIMES, Aug. 5, 2009 (quoting Assistant Secretary for ICE John Morton as seeking to work toward
a ―truly civil detention system‖ that would demonstrate greater respect for the dignity of individuals held in the
agency‘s custody).
24
This audit was conducted in the fall of 2010, and therefore the Department‘s proposed standards were not yet
available. The auditors relied on the Commission‘s recommendations.
25
For example, the ICE Sexual Abuse and Assault Prevention and Intervention Standard does not require that law
enforcement be informed of a reported rape, that a criminal investigation occur, or that a criminal investigation be
coordinated with any administrative investigation. As ICE‘s standards are nonbinding, they also do not include the
internal and external oversight mechanisms found within the PREA standards. Appendix C, infra, is a list, compiled
by JDI, of major differences between the 2010 PBNDS‘ sexual assault provision and the Department‘s proposed
standards.

12

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Recommendation: Restore the supplemental standards for facilities housing
immigration detainees.
Whether housed in facilities exclusively used for immigration custody or in jails with criminal
detainees, immigration detainees are especially vulnerable to abuse. Language and cultural
barriers, histories of state-sanctioned abuse in their home countries, and a fear that reporting
abuse will result in deportation all increase the likelihood that a non-citizen will not feel safe
reporting sexual abuse and that perpetrators will not be held accountable. Unlike criminal
defendants, immigration detainees have no right to an attorney, and as a result may not be aware
of their right to be free from sexual abuse, nor whom to contact if they are sexually assaulted.
The Commission‘s supplemental standards addressed these disparities in an efficient and
streamlined way. They included basic measures with minimal cost implications, such as
requiring that staff receive cultural sensitivity training, that detainees are informed about how to
contact the DHS Office of the Inspector General and the Office on Civil Rights and Civil
Liberties, and that detainee victims and witnesses are not transferred or deported involuntarily
during the course of a sexual abuse investigation. The Department‘s proposed standards for jails
and other facilities that often house immigration detainees do not include these protections.
Recommendation: Apply relevant community confinement standards to parole and
probation officers.
Excluding non-residential probation and parole officers from the standards is equally
problematic, albeit for different reasons. These officers wield as much, if not more, authority as
other corrections officials do, as they literally have power over the freedom of their probationers
and parolees. Sadly, many probation and parole officers abuse that extraordinary power to extort
sex. Moreover, many people who are victimized while incarcerated will wait to tell someone
until they are released, with their parole or probation officer being an obvious first responder. By
excluding these corrections players, the Department would dramatically limit the standards‘
overall effectiveness, even in residential settings.

Clearly, not all of the standards could, or should, apply to non-residential community
corrections. However, at a minimum, training and education, investigation and response, and

13

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

data collection are urgently needed in these settings. Probation and parole officers are
instrumental in ensuring a consistent and continuous response to sexual abuse in detention
throughout the U.S. criminal justice system. Failing to include them in the scope of the standards
will dangerously and unnecessarily interrupt such urgently needed continuity.

§ 115.5 General definitions
Overall the Department provides sensible and straightforward definitions. However, in addition
to restoring the definitions of prison and community corrections to include immigration detention
facilities and parole and probation officers, respectively, within the scope of the standards, the
definition of juvenile should be modified to include all youth. Also, consistent with the
Department‘s commendable protections for transgender and intersex inmates, these terms should
be defined – and gender non-conformance should be included in relevant protections.
Recommendation: Modify the definition of “juvenile” to:
any person under the age of 18, unless otherwise defined by state law or a person
who is under the jurisdiction of the juvenile justice system,” and modify the
definition of “juvenile detention facility” to specify that it is “a facility primarily
used for the confinement of juveniles, including secure, non-secure, and community
confinement facilities.
All detained youth under the age of 18 are at grave risk of sexual assault by virtue of their stage
of adolescent development and relative vulnerability to adults. According to the most recent BJS
survey of residents in juvenile facilities, a shocking one in eight was sexually assaulted in the
preceding year alone.26 The prisons and jails survey results do not specify the rates of abuse for
youth in adult facilities; however, in a survey of reports lodged with corrections officials, 42
percent of victims of inmate-on-inmate sexual abuse were under the age of 25.27 All youth need
the protections of the provisions for juvenile detention facilities, even if they are deemed adults
by the criminal justice system.

26

ALLEN J. BECK, PAUL GUERINO & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION
IN JUVENILE FACILITIES REPORTED BY YOUTH, 2008-09 (2010) (hereinafter ―YOUTH SURVEY‖).
27
PAUL GUERINO & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION REPORTED BY ADULT
CORRECTIONAL AUTHORITIES, 2007-2008 6 (2011).

14

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

The Department‘s proposed definition for juvenile, which relies on state law definitions, will
create unnecessary confusion. State laws do not define adulthood consistently; a child may be
considered an adult for some purposes, but not others. For example, parental consent laws for
medical treatment may differ from the age of majority established for juvenile justice purposes.
Further, state laws vary considerably on the age at which a youth may be prosecuted in the adult
criminal justice system. More than half the states permit children under the age of 12 to be
treated as adults for certain criminal offenses
The standards‘ definition of juvenile should include all youth under age 18, regardless of whether
they are legally considered adults and prosecuted in the adult criminal justice system. This
definition should also include people over the age of 18 who are currently in the custody of the
juvenile justice system, as many state juvenile justice systems hold people until they reach the
age of 21 or 25 if they were adjudicated as juvenile delinquents. Finally, the definition for
juvenile detention facilities should be clarified to make clear that it concerns all facilities used for
persons under the age of 18, including juvenile community corrections facilities.
Recommendation: Add the following definitions to § 115.5:
• Transgender: A term describing a person whose gender identity (internal,
deeply felt sense of being male or female) is different from his or her assigned
sex at birth.
• Intersex: A term describing a person whose has a sexual or reproductive
anatomy and/or chromosomal pattern that does not fit typical definitions of
male or female. Intersex medical conditions may also be called Disorders of Sex
Development (“DSD”).
• Gender non-conforming: A term describing a person whose gender expression
does not conform to traditional societal gender-role expectations.
The terms transgender and intersex are used throughout the regulations, but are not defined.
Many corrections staff members lack a clear understanding of these terms and therefore, without
further guidance, are likely to misapply the strong protections intended by the Department. As
discussed below (in § 115.41/241/341 and § 115.113), JDI urges that gender non-conformance
be included in the definitions and added to the screening provisions.
Question 1: The Department solicits comments regarding the application of this
definition to those States that operate ―unified systems‖—i.e., States with direct authority

15

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

over all adult correctional facilities, as opposed to the more common practice of jails
being operated by counties, cities, or other municipalities. States that operate unified
systems may be less likely to adhere to the traditional distinctions between prisons and
jails, and may operate facilities that are essentially a mixture of the two. Do the
respective definitions of jail and prison, and the manner in which the terms are used in
the proposed standards, adequately cover facilities in States with unified systems? If not,
how should the definitions or standards be modified?
JDI does not anticipate that the current definitions would pose any problems for unified systems.
If the Department adopts the definition of prison that is used in PREA,28 this term would
encompass both prisons and jails. Regardless of the definitions used, the proposed Adult Prisons
and Jails Standards have only one provision that differentiates based purely on facility type,
rather than rated capacity. Section 115.81 requires that prisons ask inmates about prior sexual
victimization and abusiveness, but requires jails to only ask about victimization. The
Department‘s justification for the reduced requirement for jails is based on a ―disproportional
cost burden on smaller jails.‖ While JDI does not support this revision (see discussion below),
even if it remains, the Department could also limit this provision – as it does § 115.11(c),(d) and
§ 115.13(d) – based on rated capacity.
Recommendation: Clarify that co-located facilities need to implement the appropriate
set of PREA standards at each unit in the co-located complex.
While unified systems should be able to adopt the Department‘s standards without further
guidance, co-located facilities (such as a lockup and a jail or an adult jail and a juvenile unit in
the same building or complex) may not know which standards should apply. In these situations,
officials may choose to apply the standards that impose the least requirements or that apply to the
largest set of their population. While JDI believes that all juveniles should be removed from
adult facilities, to the extent that juveniles remain in adult systems, those youth need the
protections of the juvenile standards. To address these concerns, the Department should clarify
that, while each unit or ward is only bound to one set of standards, a co-located facility may need
to implement more than one set of standards as appropriate. Thus, for example, a juvenile wing
in an adult facility would be bound by the provisions for juvenile facilities, while the rest of the
facility follows the prison and jail provisions.
28

42 U.S.C. § 15609 (7).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

§ 115.6 Definitions related to sexual abuse
JDI applauds the Department for recognizing the importance of distinguishing sexual abuse,
which is covered by PREA, from consensual sexual activity between inmates. Corrections
agencies remain free to establish disciplinary rules and regulations as they see fit, but conflating
consensual sexual activity between inmates with the crime of sexual abuse serves no legitimate
purpose and thwarts many of PREA‘s goals. Indeed, doing so discourages survivors from
reporting abuse or seeking medical assistance, out of fear that the sexual abuse they endured will
be misconstrued as prohibited consensual sexual activity and that they will face punishment if
they file a report.
Recommendation: Remove the subjective intent element in the sexual abuse definitions
by modifying paragraph (4) in the definition for sexual abuse by another inmate,
detainee or resident to:
“Any other intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or the buttocks of any person, excluding
contact incidental to a physical altercation incidents in which the intent of the
sexual contact is solely to harm or debilitate rather than to sexually exploit.”
And modify paragraph (4) in the definition for sexual abuse by staff to:
“Any other intentional touching that is unrelated to official duties, 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 Department‘s definition of sexual abuse requires considering the subjective intent of inmates
and staff who perpetrate sexual abuse. For inmate-on-inmate sexual abuse, the standard excludes
―incidents in which the intent of the sexual contact is solely to harm or debilitate rather than to
sexually exploit.‖ For abuse by staff, contractors or volunteers, the standard requires those
individuals to have ―the intent to abuse, arouse or gratify sexual desire.‖ It is unclear why these
distinctions matter, particularly given that this language will require agencies to engage in a
complicated time- and labor-intensive inquiry into the intent of the perpetrator. The standards
themselves do not include any guidelines that would clarify these difficult inquiries.

Requiring proof of intent to establish sexual abuse contradicts the victim-centered approach that
the standards and PREA appropriately have maintained. Unwanted sexual touching is
unacceptable, regardless of the perpetrator‘s motive. However, the current standards would
deprive a victim of protections under the standards, even if an incident is particularly traumatic,
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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

so long as the perpetrator did not intend to sexually exploit the inmate. The definition of inmateon-inmate sexual abuse already properly excludes consensual contact; the Department should not
further limit the definition.

With respect to staff-on-resident abuse, the Department may have concerns regarding situations
in which staff members intentionally make contact with inmates in accordance with an agency‘s
policies and procedures, such as during a search. However, this concern can be addressed by
excluding touching that is related to official duties.
Recommendation: Amend the definition of voyeurism as follows:
Voyeurism by a staff member, contractor, or volunteer means an invasion of an
inmate’s privacy by staff for reasons unrelated to official duties, such as peering at
an inmate who is using a toilet in his or her cell to perform bodily functions;
requiring an inmate to expose his or her buttocks, genitals or breasts; or taking
images of all or part of an inmate’s naked body or of an inmate performing bodily
functions, and distributing or publishing them.
As written, the definition of voyeurism does not address when a staff member takes pictures of
an inmate performing bodily functions, so long as the staff member does not distribute or publish
those images. Whether or not staff chooses to distribute or publish those types of images is
immaterial; taking such images has no legitimate purpose and clearly constitutes sexual abuse.
II. Prevention Planning
§ 115.11/111/211/311 Zero tolerance of sexual abuse and sexual harassment
JDI commends the Department for requiring that the PREA policy outlines the agency‘s
approach to preventing, detecting, and responding to sexual abuse and sexual harassment. A
mere statement of zero-tolerance is not enough to provide the leadership and guidance needed for
safe facility practices and culture.
Question 2: Should the Department modify the full-time coordinator requirement to allow
additional flexibility, such as by requiring only that PREA be the coordinator’s primary
responsibility, or by allowing the coordinator also to work on other related issues, such
as inmate safety more generally?
The Department may allow for the PREA coordinator to have other responsibilities, as long as
addressing sexual violence remains the highest priority and that other responsibilities address
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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

related issues. The PREA coordinator must be able to provide sufficient focus and attention to
make sexual abuse prevention, detection, and response a high priority in each facility. Larger
agencies and facilities will need a full-time coordinator to implement the standards fully and
meaningfully; smaller facilities may find that a part-time employee is sufficient. Either way,
these responsibilities should not be marginalized from the broader safety concerns to which they
relate. Administrators who fail to recognize that sexual violence, physical violence, corruption,
and other security breaches are all related will fail to address the root causes of these problems,
such as deficiencies in staff training, hiring practices, screening and classification of inmates, and
in investigation and response systems. The PREA coordinator should be able to operate within
that larger framework in a manner that maintains a focus on sexual violence, as he or she assists
with related concerns.
§ 115.12/112/212/312 Contracting with other entities
Question 3: Should the final rule provide greater guidance as to how agencies should
conduct such monitoring? If so, what guidance should be provided?
Inmates and residents need the full protections of the PREA standards, whether they are housed
in public or privately-run facilities. Private agencies may conceal or minimize incidents or risk
factors that could subject them to contractual penalties, result in the cancellation or non-renewal
of contracts, or have an adverse impact on their stock performance or other contract
opportunities.29 Moreover, as private facilities are often outside of the jurisdiction where
detention was imposed, victimized inmates and residents in these facilities are likely to be
especially isolated and conditions in the facility subject to less scrutiny. At a minimum, private
facilities should be monitored for compliance with the standards to the same extent as public
facilities, in accordance with the audit provision.

29

In 2008, for example, a former manager with the Corrections Corporation of America (CCA) revealed that the
company kept two sets of internal audit reports – a detailed version with auditors‘ notes that was for in-house use
only, and another version without the detailed notes, which was provided to government contracting agencies. The
latter audit reports were reportedly ―‗doctored‘ for public consumption, to limit bad publicity, litigation or fines that
could derail CCA‘s multimillion-dollar contracts with federal, state or local agencies.‖ Adam Zagorin, Scrutiny for a
Bush Judicial Nominee, TIME, Mar. 13, 2008, available at
http://www.time.com/time/nation/article/0,8599,1722065,00.html#ixzz1GnQP4EQm (last accessed March 21,
2011).

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Comments to the Department of Justice
Docket No. OAG–131

Recommendation: Add the following paragraphs to this provision:
(c) Private agencies or other entities responsible for the confinement of youth shall
be audited by qualified and independent monitoring entities, in accordance with the
criteria in § 115.93 and related criteria established by the Department of Justice.
The reports and action plans arising from these audits shall be made publicly
available.
(d) Any new contracts or contract renewals with private agencies or other entities
for the confinement of inmates shall include enforcement provisions to ensure that
the private agencies or entities are in compliance with the PREA standards. Such
enforcement provisions shall include but not be limited to financial sanctions for
non-compliance with the standards, as determined by the contracting public
agency.
Sections 115.12, 115.112, 115.212 and 115.312 should include specific guidance on how
government agencies should monitor compliance with the standards in private contract facilities.
While states and counties generally monitor contracts with private agencies, the scope and
expertise involved in the monitoring of the PREA standards is dramatically different from the
audits required by Standard § 115.93 and the corresponding provisions for other facilities. Such
monitoring is not conducted by an independent entity that is qualified to detect sexual abuse and
provide relevant recommendations. It also may not include private communications with inmates
and staff, nor result in any publicly available report or recommendations. Comprehensive
reviews and transparency are as necessary in contracted facilities as they are in facilities run by
the government agency itself.
Worse still, the Department‘s proposed standards do not provide mechanisms for government
agencies to sanction private contractors that fail to comply with the standards. Given the profit
incentives underlying private corrections agencies, this is a dangerous omission indeed; the
standard should make clear that government agencies must enforce non-compliance with the
PREA standards through remedies that include financial sanctions.

§ 115.13/113/213/313 Supervision and monitoring
The Department‘s decision to combine the Commission‘s standards on supervision and
technology has some merit, as the necessary levels of staffing and of surveillance technology
needed are interrelated. Likewise, the additional standard requiring agencies to take sexual abuse

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

prevention into account when designing or expanding facilities or installing or updating
technology (Std. § 115.17/117/217/317) should improve the ability of agencies to deploy staff
and technology appropriately moving forward.
However, to reiterate concerns raised with the Commission‘s standards and with regard to the
Booz Allen Hamilton cost projection study, adequacy in staffing and surveillance technology
must be defined, and agencies must be provided with guidance on how to conduct staffing and
technology analyses – the Department‘s proposed standards do not do these things. Without such
definitions and guidance, concerns about the workability of the standard remain, and the
standard‘s potential to ensure that resources are available and allocated appropriately becomes
significantly weakened. Moreover, the proposed standards allow agencies to subvert this critical
requirement by allowing them to implement a plan for how to conduct staffing and video
monitoring when adequate levels are not attained, without specifying consequences for agencies
that fail to create and/or adhere to such plans.
Recommendation: Remove paragraph (b) and modify the first sentence of paragraph
(a) as follows:
For each facility, the agency shall determine the develop and adhere to a plan to
ensure that facilities establish adequate levels of staffing and, where applicable
video monitoring, to protect inmates against sexual abuse.
The proposed standard lacks sufficient means to ensure that facilities are staffed adequately to
keep inmates safe from abuse. By suggesting that agencies determine their own adequate levels
of staffing and video monitoring and then create a plan for what to do if they fail to achieve those
levels, the Department essentially permits facilities to operate at sub-optimal staffing levels
indefinitely. While creation of a back-up plan is essential, it is not, in itself, enough. At a
minimum, clear accountability measures must be built into this structure, whereby PREA
auditors (see § 115.93/193/293/393 below) have the authority to declare agencies non-compliant
if they fail to create sufficient back-up plans, to adhere to such back-up plans, and/or to work
toward achieving adequate staffing and monitoring levels. The standards should not offer blanket
exemptions from basic constitutional requirements to employ enough personnel to keep inmates
and residents safe from harm. Rather, the standards should help agencies to examine seriously
their deficiencies and, if necessary, engage their legislators in adopting a feasible solution.
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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Whether by re-examining sentencing schemes and incarceration rates, or by re-appropriating
funds, states and counties in such circumstances can often identify workable solutions.
Recommendation: Amend the second sentence of paragraph (a) as follows:
In calculating such levels, agencies shall take into consideration (1) the physical
layout of each facility, (2) the composition of the inmate population, (3) blind spots,
including blind spots in areas not designated for inmates (e.g. closets, rooms and
hallways where staff perpetrators of sexual abuse could bring an inmate); (4) hightraffic locations and busy times, such as when there is movement of a large number
of inmates within the facility and during shift changes; (5) identified “hot spots”
for abuse; (6) the ease with which individual staff members are able to be alone
with individual inmates for extended periods of time; (7) the need to ensure that
known perpetrators are directly observed when interacting with other inmates; (8)
the need to ensure that inmates identified by facility staff as especially vulnerable
receive additional protection without being subject to extended isolation or other
forms of punishment; (9) the ability to establish and retain video and other
evidence of sexual misconduct; (10) compliance with any applicable laws and
regulations on staffing requirements; and (11) any other relevant factors.
As the Department notes, ―determining adequate staffing levels is a complicated, facility-specific
enterprise [that depends on a] variety of factors.‖30 Nonetheless, there are factors that should
always be taken into account when assessing staffing adequacy and that should be incorporated
into the standard. For example, facility blind spots, hot spots for abuse, high traffic areas, and the
ease with which individual staff members can be alone with individual inmates create conditions
that contribute to sexual abuse. Likewise, staffing levels must ensure that known perpetrators are
directly supervised when interacting with other inmates and that victims are not unduly isolated.

Requiring consideration of these factors, which are known to contribute to the levels of sexual
abuse, will help agencies with limited resources figure out how to supervise inmates. JDI‘s
suggested amendments to the standard would also provide auditors with concrete factors to be
taken into account when monitoring compliance with this provision. Agencies should be required
to devise plans for staffing and electronic surveillance that include an assessment of relevant
factors and a plan for redistributing or securing needed funds. Auditors would then review the
sufficiency and feasibility of these plans. The aforementioned considerations would also increase

30

NPRM, 76 FED. REG. at 6252.

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Comments to the Department of Justice
Docket No. OAG–131

the likelihood of securing evidence of abuse, leading to greater agency accountability as well as
protecting staff against false reports.
Recommendation: In § 115.313, the standard should mandate that technology only be
used as a supplement to direct supervision, not as a substitute.
In any facility in which youth are held, they need direct supervision by adults who are attuned to
youth interactions and potential conflicts. Continuous, direct, engaged supervision provides one
of the best forms of protection from abuse, as staff is more likely to identify signs of developing
problems among youth when they interact with them regularly.

Video surveillance cannot create the rehabilitative environment and personal relationships
between youth and staff that are seen as best practice within the juvenile justice system. To
achieve that goal, facilities must deploy trained staff to work directly with youth. The
Department recognized this need in its Notice of Proposed Rulemaking, stating that
―[a]dministrators of juvenile facilities ... are typically more reluctant to rely heavily on video
monitoring given the staff-intensive needs of their residents.‖ Limiting its value, video
surveillance systems rarely capture live audio, which severely diminishes their effectiveness as
surveillance tools. Staff who directly supervise youth rely on what they hear to help prevent
dangerous situations from developing, taking cues from residents‘ conversations and changes in
tone or inflection. Because video surveillance systems usually lack this feature, facilities that rely
too much on such tools are compromised in anticipating and responding to events.
Questions 4-5:
• 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?
• If a level such as ―adequacy‖ were mandated, how would compliance be measured?
A quantitative blanket requirement for staffing at all facilities would not be feasible, given the
wide array of facility-specific factors affecting staffing needs, such as population size, security
levels, and building architecture. However, providing no requirements makes this provision
virtually unenforceable. With proper guidance, a qualitative standard can be established in a
realistic, measureable way.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

As detailed above, many of the factors that contribute to high levels of abuse are known, and can
be accounted for in assessing appropriate staffing levels. The data developed by the Bureau of
Justice Statistics provides some information about when and where abuse is most prevalent. For
example, of the incidents reported in the prisons and jails survey, more than half of all inmateon-inmate assaults occurred in cells between 6:00 p.m. and midnight, while staff sexual
misconduct most often took place in a closet or locked office.31 In juvenile facilities, both
resident-on-resident and staff-on-resident assaults were most prevalent in common areas, and
between 6:00 p.m. and midnight.32 Agencies should be encouraged to consider such data when
assessing the needs in their facilities.
Questions 6-8:
• 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?
• Some States mandate specific staff-to-resident ratios for certain types of juvenile
facilities. Should the standard mandate specific ratios for juvenile facilities?
• 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?
The Department need not require that one state‘s regulation become the standard for the nation.
Rather, if as JDI suggests, the Department specifies factors that must be considered in each
agency‘s annual assessment, applicable state regulations should be a part of that analysis.

The Department should not provide a lengthened time frame for compliance with this standard.
As discussed above, appropriate staffing to keep inmates safe is a basic function of all
corrections settings and a constitutional requirement. Agencies that cannot adequately supervise
the people in their charge must address that problem as a matter of urgency and must be held
accountable to ensure that solutions are implemented. A time frame determined by the
Department would also fail to account for the significant differences between facilities and
agencies. Establishing one time frame to fit all circumstances would set the bar disturbingly low.
31

ALLEN J. BECK & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, SEXUAL VICTIMIZATION IN PRISONS AND
JAILS REPORTED BY INMATES, 2008-09 21-23 (2010) (hereinafter ―ADULT SURVEY‖).
32
YOUTH SURVEY, supra note 26, at 12-14.

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Comments to the Department of Justice
Docket No. OAG–131

To the extent that facilities are unable to provide adequate staffing, such a failure should be
addressed the same way as other forms of noncompliance: requiring the agency to establish a
clear action plan as soon as possible, and having that plan approved and monitored by the PREA
auditor.
Questions 9-11:
• Should the standard require the establishment of priority posts, and if so, how should
such a requirement be structured and assessed?
• To what extent can staffing deficiencies be addressed by redistributing existing staff
assignments? Should the standard include additional language to encourage such
redistribution?
• 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?
Areas of a facility where it is known that sexual abuse is likely to occur must be monitored by
staff, not just cameras. Where known perpetrators are interacting with other inmates, for
example, an officer must be present who can respond immediately to any problems. Given that a
substantial proportion of sexual assaults take place in cells and dormitories, these are also areas
that must be monitored by staff, and not primarily by cameras. Further, cameras should not be
used to monitor areas where inmates are in states of undress (showers, toilets, etc.), unless there
are privacy screens to ensure that cameras do not film an inmate‘s intimate body parts. It may be
helpful for the Department to identify such priority posts – however, agencies should also be
required to do so themselves, and to incorporate this information into their assessment plans, to
account for different cultures and needs of each institution.

In some facilities, redistribution of staff may be the most cost-effective way to ensure adequate
supervision. The Department should encourage the incorporation of such redistribution into
assessments and plans, as appropriate. However, the Department must be clear that agencies are
required to ensure that staff are appropriately trained and qualified for whatever new posts are
created or assigned.

As discussed above, JDI urges the Department to include factors that must be considered in
assessing whether the level of staffing is appropriate. Rather than providing strict formulas, or no

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Comments to the Department of Justice
Docket No. OAG–131

substantive guidance, the inclusion of such factors will help agencies remain focused on what is
needed to keep inmates and residents safe from sexual abuse.
Questions 12-13:
• Should the Department mandate the use of technology to supplement sexual abuse
prevention, detection, and response efforts?
• 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?
There is no one quick fix for agencies to improve their supervision efforts. Technology is an
invaluable supplement to direct supervision when used appropriately in the proper settings. In
juvenile institutions, the Department should emphasize the value and importance of direct
supervision.

In all facilities, the use of technology should be part of the PREA-related supervision
assessments and plans, as deemed appropriate by the agency and the auditor. In addition to
mandating that a plan be developed for adequate supervision generally, the Department should
ensure that the plan is feasible. Limited resources unquestionably create challenges, but states
should be pressured to prioritize these needs in their decision-making. Costs cannot justify any
dereliction of the core duty of corrections agencies to keep inmates safe.33
Question 14: Are there other ways not mentioned above in which the Department can
improve the proposed standard?
As discussed above, the Department must provide criteria for assessing the adequacy of
supervision and the use of technology, including concrete measurable factors, and require
agencies to take steps to achieve these goals.

33

Courts have long rejected insufficient funding as an excuse for unconstitutional conditions of incarceration. See,
e.g., Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 392 (1992); Harris v. Thigben, 941 F.2d 1495, 1509
(11th Cir. 1991); Monmouth County Correctional Institution Inmates v. Lanzarro, 834 F.2d 326, 336-337 (3rd Cir.
1987); Williams v. Edwards, 547 F.2d 1206, 1212-13 (5th Cir. 1977); Detainees of Brooklyn House of Detention v.
Malcolm, 520 F.2d 392, 399 (2d Cir. 1975); Finney v. Ark. Bd. of Correction, 505 F.2d 194, 202 (8th Cir. 1974);
Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Recommendation: All facilities should have a policy and practice of having
intermediate-level or high-level supervisors conduct and document unannounced
rounds on a regular basis, regardless of rated capacity.
Unannounced rounds are an essential part of institutional management and oversight. They
provide a low-cost, high-impact way for agencies to identify problems within their facilities and
to ensure that policies are properly implemented. While the appropriate frequency of such rounds
may vary by facility size and structure, they must be conducted on a regular basis in order to be
effective. There is simply no reason why this form of surveillance should not be required
everywhere as part of a comprehensive plan for ensuring inmate safety.

Question 15: Should this standard mandate a minimum frequency for the conduct of such
rounds, and if so, what should it be?
The practice of conducting unannounced inspections should be normalized through frequent
rounds, and be required in all facilities – regardless of population count. The frequency may vary
by facility size, but even the smallest facility will benefit by having a high-level supervisor
conduct rounds on a regular basis. The diversity among institutions makes it difficult for the
Department to specify a minimum frequency of rounds. Providing a specific frequency may also
take away from the value of having them be unannounced, as regular frequency rounds will
allow staff and inmates to estimate when the next round is likely to occur. Rather, the
Department should require that rounds be staggered (so there is no set time between rounds) and
that they occur often enough to prevent abuse.
Recommendation: Lockups provision § 115.113(d) should identify known vulnerability
factors by adding the following sentence to this paragraph:
Law enforcement staff treat the following as indicators of vulnerability to sexual
abuse: mental or physical disability; young age; slight build; nonviolent history;
identification as lesbian, gay, bisexual, transgender, or intersex; gender nonconforming appearance; prior sexual victimization; and the detainee’s own
perception of vulnerability.
Not all lockup facilities will be able to conduct systematic risk screening for all detainees, or will
need to if they generally have more cells than detainees. Nonetheless, the Department rightly
requires those that do intake screenings to address vulnerabilities to sexual abuse. However, to be
effective, this provision must inform facility staff of what they need to consider in making this

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Comments to the Department of Justice
Docket No. OAG–131

assessment. Accordingly, the standard should list the known indicators of vulnerability that can
be determined by asking the detainee or through observation.

§ 115.14/114/214/314 Limits to cross-gender viewing and searches
The Department recognizes that, ideally, officers supervising inmates of the opposite sex would
not conduct pat searches or view them in states of undress. Nonetheless, the proposed standard
makes no meaningful effort to limit these dangerous practices.

The BJS surveys confirm that sexual abuse of inmates and residents by staff members of the
opposite sex is pervasive in prisons, jails, and juvenile facilities.34 Authorizing officers to touch
inmates of the opposite gender and to view them in states of undress is simply bad policy, often
leading to abuse and a sexualized institutional culture. As the Ninth Circuit recently noted, ―[i]t
is not surprising that a connection has been made between cross-gender searches and the level of
sexual impropriety between inmates and corrections personnel.‖35 In addition to inciting sexual
abuse, the lack of bodily privacy and integrity that stem from cross-gender searches can be
especially problematic to someone with a history of abuse, often triggering prior trauma.36
Recommendation: Limit cross-gender pat searches to emergency situations, by adding
it to the list of searches in paragraph (a), and deleting paragraph (e).
The Department‘s revisions to the limitations on cross-gender searches conform to BOP policy,
but disregard the progression of state agencies toward the best practice of significantly limiting
cross-gender pat searches.37 In relying on the BOP as a model, the Department also ignores

34

ADULT SURVEY, supra note 31, at 5; YOUTH SURVEY, supra note 26 at 1.
Byrd v. Maricopa County Sheriff’s Department, __ F.3d 365, 379 (9th Cir. 2011) (en banc), pet. for cert. pending
(citing Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y. TIMES, Jan. 28, 2010, at A33; Connie Rice
and Pat Nolan, Op-Ed, Policing Prisons, L.A. TIMES, Apr. 5, 2010, at A13). JDI served as amicus curiae in Byrd.
36
In a 1999 BJS survey, just under half of incarcerated women and one-tenth of incarcerated men indicated past
abuse. The survey did not define physical and sexual abuse, instead relying on the definitions of the respondents; the
total number is likely much higher. CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, PRIOR ABUSE
REPORTED BY INMATES AND PROBATIONERS 1 (1999), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/parip.pdf
(last accessed March 27, 2011).
37
In a 1999 prison survey by the National Institute of Corrections, only seven systems reported a policy allowing
routine cross-gender pat-downs in female facilities. By 2001, four of those states began prohibiting male pat
searches of women prisoners, leaving the federal system and two states in the extreme minority. Half of the states
reported prohibiting cross-gender searches in male facilities. National Institute of Corrections Prisons Division and
Information Center, Cross-Sex Pat Search Practices: Findings from NIC Telephone Research (January 6, 1999).
35

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

known problems with the BOP‘s pat search policy. According to a 2009 report by the Inspector
General, ―BOP officials believed that male staff members were most often accused of sexual
misconduct stemming from pat searches.‖38 The BJS prisons and jails survey confirm a similar
link between pat searches and sexual touching by staff39 – indeed, a significant proportion of
sexual abuse in detention begins during pat searches, before escalating into more severe forms of
sexual violence.

As acknowledged in the Notice of Proposed Rulemaking, juvenile systems have largely
restricted cross-gender pat searches and viewing to emergency situations. While adult facilities
face different challenges and generally have more significant security needs than youth facilities,
with proper incentives, they could establish similar solutions to those that have worked for
juvenile agencies.
Outside of the federal system, many women‘s facilities have also limited cross-gender
supervision. When confronted with these issues, judges are increasingly recognizing that limiting
cross-gender viewing and searches may be constitutionally necessary.40 In some jurisdictions
such limitations have been imposed, either as injunctive relief in civil rights litigation or upon the
Department‘s recommendations pursuant to a CRIPA investigation.41 A recent case decided en
banc by the Ninth Circuit Court of Appeals held that the search of a male jail inmate by a female
cadet, who touched his thighs, buttocks, and genital areas over a thin pair of boxer shorts,
amounted to an unreasonable search in violation of the Fourth Amendment.42 Many of these
precedents acknowledge the link between cross-gender supervision and sexual abuse.43

38

OIG 2009 REPORT, supra note 12.
ADULT SURVEY, supra note 31, at 24 (finding that 42.7 percent of inmates who reported sexual touching by a staff
member said that it happened at least once as part of a strip or pat search).
40
See, e.g., Everson v. Mich. Dep’t of Corrections, 391 F.3d 737 (6th Cir. 2004) (holding that gender was a bona
fide occupational qualification for certain positions in Michigan‘s women‘s prisons, based in part on ―the endemic
problem of sexual abuse in Michigan‘s female facilities‖); Tharp v. Iowa Dep’t of Corrections, 68 F.3d 223 (8th Cir.
1995) (upholding facility‘s decision to exclude male employees from posts in female housing unit).
41
See, e.g., Letter from Thomas Perez, Assistant Attorney General, Department of Justice, to Hon. Mitch Davis,
Governor of Indiana 43 (Jan. 29, 2010) (recommending, among other things, that cross-gender strip searches be
prohibited in non-emergencies); Women Prisoners v. District of Columbia, 877 F. Supp. 634, 679-81 (D.D.C. 1994),
vacated in part, modified in part, 899 F. Supp. 659 (D.D.C. 1995).
42
Byrd, __ F.3d 365. Although the Court deemed the search to be a strip search, in light of the minimal amount of
clothing worn by the inmate, neither of the parties had characterized it as such. The Department defines pat searches
39

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

The models and precedents created in juvenile institutions and women‘s prisons should apply to
all facilities. Contrary to widespread misperceptions, the Department itself has found that staff
sexual abuse is even more prevalent in men‘s and boy‘s facilities than in facilities for women and
girls, making clear that these basic measures are urgently needed everywhere.44

The Commission, in its work, was aware of recent judicial precedent (both with respect to
inmates‘ privacy rights and officers‘ employment opportunities) and of the financial and legal
concerns of corrections officials. While it initially sought to limit cross-gender supervision in any
area of a facility where inmates disrobe or perform bodily functions – which, consistent with
international human rights standards,45 is the norm in most Western countries – the Commission
consulted with officials about their concerns and ultimately limited its recommendations to
searches and the actual viewing of inmates who are nude or performing bodily functions. This
compromise is consistent with professional standards and emerging best practices.46

The dangers of cross-gender pat-down searches are not sufficiently mitigated by creating an
exception for inmates who can demonstrate that they have suffered ―documented prior crossgender sexual abuse while incarcerated.‖47 Indeed, this proposal makes a mockery of the realities
of sexual abuse in detention. One drawback of this exception is that it places the burden on
previously victimized inmates to provide documentation and to ensure that officers conducting
searches are aware that they meet the exception, negating any proper checks in place that limit
such information to a need-to-know basis. The Department‘s standards should instead give such
as ―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,‖ NPRM, 76 FED. REG. at 6277, precisely what occurred in Byrd.
43
See, e.g., Byrd, __ F.3d at 379 (citing NATIONAL PRISON RAPE ELIMINATION COMMISSION, supra note 16);
Everson, 391 F. 3d 737 (upholding same sex supervision in the housing units based in part on Michigan‘s long
history of sexual abuse of women in custody).
44
ADULT SURVEY, supra note 31, at 12; YOUTH SURVEY, supra note 26, at 10. In all types of facilities, victimized
inmates and residents reported that the majority of staff sexual abuse was perpetrated by an employee of the
opposite gender. ADULT SURVEY, supra note 31, at 24; YOUTH SURVEY, supra note 26, at 13.
45
See Standard Minimum Rules for the Treatment of Prisoners, ECOSOC Res. 2076 (LXII), P 95, U.N. Doc.
E/RES/2076 ¶ 53 (May 13, 1977).
46
American Bar Association, Criminal Justice Standards on the Treatment of Prisoners, Standard 23-7.9, available
at http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_
treatmentprisoners.html#23-7.9 (last accessed March 27, 2011).
47
Dep‘t of Justice, Proposed Standard § 115.14/214 (e).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

responsibility to corrections agencies, which have a duty to keep inmates safe from abuse. This
exception also requires inmates to have filed and had substantiated a report of abuse, even
though the vast majority of sexual abuse survivors are too afraid to file a report and the vast
majority of those who do so find that their reports are not substantiated. This is especially true in
cases of abusive searches, where there is rarely physical evidence of the abuse. Moreover, this
exception ignores the traumatic and devastating impact of these searches on inmates who were
sexually victimized in the community, as well as the prevalence of staff abuse of inmates who
were not previously assaulted in detention.

In its Initial Regulatory Impact Assessment, the Department justifies its substantial weakening of
the Commission‘s standard by claiming that ―a number of facilities interpreted [this provision] as
requiring them either to hire significant numbers of additional male staff or to lay off significant
numbers of female staff, due to the overwhelmingly male inmate population and substantial
percentage of female staff,‖ which could violate equal employment opportunity laws.48 This
justification underscores serious problems with the data relied upon by the Department. Booz
Allen Hamilton asked officials to estimate what it would cost to comply with the standards,
without providing any incentive for them to think creatively or identify the most cost-effective
way of doing so. Not surprisingly, administrators (who ultimately need to defend their budgets to
appropriators and therefore have no reason to minimize estimated costs) offered what they saw
as the easiest solutions.

However, contrary to the assertions of some corrections officials, these requirements can be met
with low-cost solutions that conform to employment law and do not require significant additional
hiring. For example, ―roving officer‖ positions can be established to ensure that an officer of the
same gender as the inmates is available to conduct searches without requiring significant changes
in personnel.49 In non-emergency situations, intrusive searches that require bodily exposure or
physical contact can be limited to areas that serve as potential entry-points for contraband. While
48

Dep‘t of Justice, Initial Regulatory Impact Analysis for Notice of Proposed Rulemaking, Proposed National
Standards to Prevent, Detect, and Respond to Prison Rape Under the Prison Rape Elimination Act (PREA) 45
(2011) (hereinafter ―IRIA‖).
49
While the gender breakdown of staff may not match the gender breakdown of inmates, facilities generally have
enough officers of each gender to employ roving officers. JDI has been told that such a practice has been accepted in
collective bargaining agreements.

31

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

many agencies conduct frequent cursory pat searches throughout their facilities, focusing staff
efforts by emphasizing thorough searches at key places will aid in the confiscation of contraband
at its point of entry into the facility, reduce complaints about harassing searches, and free up staff
resources for other safety and security measures.
Question 16: Should the final rule contain any additional measures regarding oversight
and supervision to ensure that pat-down searches, whether cross-gender or same-gender,
are conducted professionally?
Regardless of whether cross-gender pat searches are limited, the proposed standard‘s
requirement that security staff receive training in how to conduct cross-gender pat searches
professionally, respectfully, and in the least intrusive manner possible consistent with security
needs remains important – and should be incorporated into the staff training provision. Staff
should also be educated on how to conduct a proper same-gender pat search, as these searches
can also be violating and abusive if performed improperly. Consistent with the government
findings that staff sexual misconduct is often linked to pat searches,50 JDI regularly hears from
inmates who have endured abusive pat searches – both cross-gender and same sex, at men‘s and
women‘s facilities.
Recommendation: Require cross-gender pat searches to be documented, in the same
manner as strip and body cavity searches, by removing the word “such” from
paragraph (b).
The Department should also require documentation of all cross-gender searches. Documenting
these searches can be useful in monitoring staff sexual misconduct, particularly when it arises
from a pat search. Through documentation, supervisors will be able to assess whether officers
accused of sexual misconduct are conducting these searches unnecessarily, and whether there is a
link between the performance of cross-gender pat searches and complaints of sexual misconduct.
Moreover, this procedural step will help dissuade the overuse of such searches, encouraging the
use of same gender officers for pat searches when possible to minimize paperwork.
Recommendation: Do not allow staff to view inmates and residents of the opposite
gender in states of undress “incidental to routine cell checks.”
50

See, e.g., OIG 2009 REPORT, supra note 12, at 26.

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

The Department‘s authorization of cross-gender viewing of inmates and residents in states of
undress ―incidental to routine cell checks‖ negates any practical limitation on cross-gender
viewing and any incentives for agencies to limit this dangerous practice. In many facilities,
inmates and residents undress, use the toilet, and sometimes wash in their cells. Officers should
be prohibited from viewing inmates and residents of the opposite sex at these times in nonemergency situations.

As with cross-gender pat searches, low and no-cost measures can provide a base level of bodily
privacy in detention. For example, officers of the opposite gender can be required to announce
themselves prior to entering the cell block. Alternately, inmates or residents can be provided with
tools to shield their body – e.g. with towels or privacy screens – while performing these
functions.
Recommendation: Do not allow for searches of transgender inmates solely to
determine genital status, by replacing paragraph (d) with the following:
The facility shall not search or physically examine a transgender or intersex inmate
for the sole purpose of determining genital status. If an inmate’s genital status is
unknown, it may be determined during routine intake medical examinations that all
inmates are required to undergo, by reviewing medical records, or by speaking with
the inmate.
The proposed standard rightly recognizes that transgender and intersex inmates are at acute risk
for sexually abusive searches, and that determining an inmate‘s genital status frequently is a
pretext for abuse. Strip searching transgender or intersex inmates (or touching their genitals) for
the sole purpose of determining their genital status is emotionally and sexually abusive, even if
the search is called an examination and is conducted by a medical practitioner in private.
Permitting medical practitioners to touch a transgender or intersex resident‘s genitals or requiring
an inmate to undress in front of a medical practitioner solely so that the practitioner can look at
his or her genitals is an unnecessary and inherently traumatic experience and presents serious
potential for abuse.

33

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

The standard should prohibit searches or medical examinations for the sole purpose of
determining genital status. In the very limited circumstances where this information is needed by
a facility, it should be determined during routine medical examinations at intake or from the
resident, from medical records, or from other reliable sources.
Recommendation: Specify what a cross-gender search means in the context of
transgender and intersex inmates, but adding the following provision to this standard:
For purposes of determining what constitutes a same-gender search of a
transgender or intersex inmate, the facility shall ask the inmate to specify whether
he or she would feel safest being searched by male or female staff and shall
accommodate such requests except in the case of emergency or other unforeseen
circumstances.
With no formal guidance stating who shall administer routine searches of transgender and
intersex inmates, these inmates are likely to be subjected to cross-gender searches from which
the proposed regulations protect other residents. Transgender and intersex inmates are known to
be especially targeted for harassment and abuse, 51 and also have particular privacy and safety
needs that are compromised by cross-gender searches. In order to address the safety concerns of
transgender and intersex inmates and protect their privacy and dignity, the Department should
specify how the restrictions on cross-gender searches and supervision apply to transgender and
intersex inmates.

The best practice for doing so is to ask transgender and intersex individuals by which gender
they would feel most safe being searched, and accommodating this preference whenever
possible. This pragmatic approach is currently used by the New York State Office of Children
and Family Services in its juvenile facilities, and by the Cumberland County Sherriff‘s Office in

See, e.g., SYLVIA RIVERA LAW PROJECT, ―IT‘S WAR IN HERE‖: A REPORT ON THE TREATMENT OF TRANSGENDER
& INTERSEX PEOPLE IN NEW YORK STATE MEN‘S PRISONS 29-31 (2007), available at
http://srlp.org/resources/pubs/warinhere; AMNESTY INTERNATIONAL USA, STONEWALLED: POLICE ABUSE AND
MISCONDUCT AGAINST LESBIAN, GAY, BISEXUAL AND TRANSGENDER PEOPLE IN THE US 54-58 (2005), available at
http://www.amnestyusa.org/outfront/stonewalled/report.pdf; At Risk: Sexual Abuse and Vulnerable Groups Behind
Bars, Hearing Before the National Prison Rape Elimination Commission (August 13, 2005) (testimonies of
Christopher Daley & Dean Spade).
51

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Maine.52 A similar approach has recently been adopted by the UK government for searches by
police and corrections officers.53

However, if a general presumption is needed about who should conduct searches of transgender
and intersex individuals, all such searches should be conducted by female staff. Transgender and
intersex individuals, regardless of gender identities, are often perceived as female and/or
feminine and are at considerably higher risk of being targeted for abuse and harassment by male
staff.

§ 115.15/115/215/315 Accommodating inmates with special needs
As the Department acknowledges, federal civil rights laws require agencies receiving federal
assistance to provide inmates with disabilities or limited English proficiency (LEP) with
meaningful access to programs and services.54 The proposed standards provide LEP inmates,
deaf inmates, and inmates with a disability with education about PREA-related policies.
However, they fall short on ensuring that these inmates have sufficient access to reporting, and
necessary assistance during investigations and response efforts.
Recommendation: Amend paragraph (a) to require agencies:
to ensure that inmates who are limited English proficient, or deaf, or have a
disability disabled are able to report sexual abuse and sexual harassment to staff
directly and through at least one other established reporting mechanism.
Inmates with disabilities and LEP inmates are among the most vulnerable to abuse, in part
because they often contend with barriers to effective communication with facility staff. Ensuring
that special needs inmates can report to staff is an important first step, but accommodations
should be made to ensure that inmates with disabilities, deaf inmates, and LEP inmates have
multiple reporting options. Like other victimized inmates, inmates with disabilities and other
52

It is also used in other settings in the United States, such as by the District of Columbia Police Department. Police
departments in several Canadian jurisdictions, including Toronto, Vancouver, and Edmonton, have adopted a similar
policy following a 2006 ruling by the Ontario Human Rights Commission.
53
Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search (PACE Code A),
Annex F (2010), available at http://www.homeoffice.gov.uk/publications/police/operational-policing/pacecodes/pace-code-a-2011; Prison Service Instruction 48/2010, Search of the Person, Annex H (2010), available at
http://psi.hmprisonservice.gov.uk/psi_2010_48_searching_of_the_person.doc.
54
NPRM, 76 FED. REG. at 26-27 (citing the Americans with Disabilities Act, 42 U.S.C. § 12132, and Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

special needs are unlikely to feel safe reporting staff sexual misconduct if their only option for
reporting is to the perpetrating staff member or a colleague of the perpetrator. Disabilities that
impair an inmate‘s vision, hearing or mobility, for example, may make it particularly difficult to
report sexual abuse or harassment and to comply with administrative exhaustion requirements.
Ideally, all reporting mechanisms would be available to all inmates; at a minimum, however, the
proposed standard should require at least one alternate reporting mechanism to be fully
accessible to inmates with disabilities and LEP inmates.
Recommendation: Only allow inmate translators in adult facilities in “exigent
circumstances and with the expressed voluntary consent of the inmate victim.” In
§ 115.315(a), never allow resident translators to be used in juvenile facilities.
Unlike the Commission‘s recommendation, the proposed standard allows for inmate translators
in exigent circumstances. There may be instances in which an inmate translator is the only, and
best, available option. However, inmate translators should only be used upon the expressed
voluntary consent of the complaining inmate.

Translation is a sensitive task that requires significant skills. The private information contained
in a sexual abuse report is generally not appropriate to share with other inmates; the lack of a
professional translator who speaks the inmate‘s language is not, on its own, sufficient grounds to
justify a breach in confidentiality. Thus, an inmate translator must be subject to the same
guidelines on confidentiality as the formal members of the investigative team.
Moreover, inmate translators may not provide accurate translations – either intentionally in
retaliation for the abuse reported or inadvertently because of limited language skills. There will
inevitably be some level of interpretation on the part of the translator, particularly if the
translator is not a trained professional. Additionally, there is a strong likelihood that inmate
survivors and witnesses will self-censor if the translator is another inmate – due to fear of
retaliation and further victimization, the survivor or witness many not wish to disclose
information about abuse to other inmates.

36

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

If a professional translator is not available, then the victimized inmate is in the best position to
assess the likelihood of retaliation and his or her own level of English fluency in order to
determine whether an inmate translator is a good option. In juvenile facilities, resident translators
should never be allowed: beyond the heightened concerns about sharing sensitive information
among youth in the facility, the likelihood of inaccurate translations is simply too great.
Question 17: Should the final rule include a requirement that inmates with disabilities
and LEP inmates be able to communicate with staff throughout the entire investigation
and response process? If such a requirement is included, how should agencies ensure
communication throughout the process?
Recommendation: Add the following paragraph to the standard on accommodating
inmates with special needs:
(c) The agency shall make accommodations to ensure that inmates who are limited
English proficient, deaf, or have a disability can communicate with facility staff and
supportive service providers throughout the investigative process, when requesting
and receiving medical and mental health care, and during the provision of other
services that may be necessary after an inmate is victimized or witnesses an abusive
event. Agencies shall make such accommodations by utilizing bilingual staff,
providing translation by qualified interpreters, entering into agreements with
community service providers with capabilities in or services to residents with
disabilities, or by other means.
Without effective means to communicate with staff during the investigations and response
processes, inmates who are LEP, deaf or have a disability will not be able to access lifesaving
support services that respond to their changing needs in the weeks and months after an assault.
Moreover, they will be less effective witnesses, decreasing the likelihood that perpetrators are
held accountable. Further, inmates who are LEP, deaf or have a disability will have less reason to
trust these processes, as they will lack any assurance that their complaints are being handled
swiftly and comprehensively. Staff and inmate perpetrators disproportionately target individuals
who are unlikely to report or have their reports credited. By failing to ensure that survivors with
disabilities or LEP are engaged to the same extent as other victimized inmates, the Department in
effect makes these individuals more vulnerable to abuse.

The costs for providing these accommodations should be minimal, particularly relative to the
tremendous benefits for these highly vulnerable inmates. As discussed below (with proposed

37

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Standard § 115.22/222/322), memoranda of understanding with agencies that serve LEP inmates
can ensure professional translation without diverting corrections staff resources. Moreover, many
state and county systems have access to language translation phone services,55 but often fail to
train officers sufficiently on how to use them. Providing key staff with information about how to
access these services is a low-cost, high-gain way of ensuring that all inmates can communicate
effectively throughout the reporting, investigation, and response processes.

§ 115.16/116/216/316 Hiring and promotion decisions
Recommendation: Amend paragraph (a) as follows:
The agency shall not hire or promote anyone who has engaged in sexual abuse or
sexual harassment 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 has otherwise been adjudicated, including civilly or administratively, as
having engaged in sexual abuse; or who has been the subject of a civil protection
order or protection from abuse order granted on the basis of such activity; or who
has been convicted of domestic violence or stalking.
Domestic violence, stalking, and sexual abuse convictions and adjudications provide useful
information regarding a staff member‘s history of or propensity to engage in sexual abuse. The
Department‘s 2000 survey of violence against women concluded that domestic violence ―is often
accompanied by emotionally abusive and controlling behavior‖ and that battering ―is often part
of a systematic pattern of dominance and control.‖56 The connection between these behaviors
and further abuse is particularly well-established in the juvenile context: studies have found that
between 30 and 60 percent of men who batter their partners also abuse their children.57
Moreover, sexual abuse adjudications of any kind (not just those involving use of force or
coercion) and the imposition of civil protective orders should serve as a clear red flag for
agencies charged with ensuring the safety of others.

55

For localities without current access to language translation services, Language Line Services
(www.languageline.com) provides fee-for-usage access to over-the-phone interpreters 24 hours a day/365 days per
year for more than 100 languages.
56
Patricia Tjaden & Nancy Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence: Findings
from the National Violence Against Women Survey iv (2000), available at
http://www.ncjrs.gov/pdffiles1/nij/181867.pdf (last accessed April 4, 2011).
57
See Janet E. Findlater & Susan Kelly, Child Protective Services and Domestic Violence, 9 FUTURE OF CHILDREN
84 (1999).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

Recommendation: Require background checks whenever a staff member is considered
for a promotion.
The proposed standard correctly puts parameters on who can be promoted based on past
behavior, but does not require criminal background checks when individuals are being
considered for promotion. Promotions are intended to reward leadership, work performance, and
professional behavior of individuals who set a worthy example for more junior staff. Agencies
must make every effort to avoid promoting individuals found to have engaged in abusive
behavior.

§ 115.17/117/217/317 Upgrades to facilities and technologies
As noted above (with § 115.13/113/213/313), this new provision will improve the ability of
agency administrators to maintain adequate supervision, and remain current with technological
advancements. JDI commends the Department for adding this standard.

III. Response Planning
§ 115.21/121/221/321 Evidence protocol and forensic medical exams
In general, JDI applauds the Department for retaining key provisions from the Commission‘s
recommendations in its evidence protocol and forensic exams standard – including ensuring that
these exams are performed by a qualified medical practitioner, free of charge – and for
strengthening this provision to provide for exams whenever ―evidentiarily or medically
appropriate.‖
Recommendation: To ensure that pre-pubescent youth receive an appropriate exam,
modify § 115.321(b) as follows:
(b) The protocol shall be developmentally appropriate for all youth – providing for a
pediatric examination for female victims who have not experienced the onset of
menarche and for male victims who have not yet reached puberty, and a medical
forensic examination in accordance with adapted from or otherwise based on the
2004 U.S. Department of Justice’s Office on Violence Against Women publication
“A National Protocol for Sexual Assault Medical Forensic Examinations,
Adults/Adolescents,” subsequent updated editions, or similarly comprehensive and
authoritative protocols developed after 2010 for youth who have reached puberty.
The protocol shall detail policies and procedures for mandatory reporting, consent

39

Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

to treatment, parental notification, and scope of confidentiality in accordance with
applicable laws.
For adults and adolescents, the Department‘s National Protocol for Sexual Assault Medical
Forensic Examinations, Adults/Adolescents is recognized as the definitive guide to conducting
forensic exams. At the time of this writing, that protocol is being revised and a protocol for
confinement facilities is being created. All corrections agencies should be encouraged to
familiarize themselves with the new protocol once it is finalized.

However, this protocol was not intended to be used when examining pre-pubescent youth. As
noted in the National Protocol, it does not address the legal issues regarding child sexual abuse,
mandatory reporting, a child‘s ability to consent to medical treatment and evidence collection
without parental/guardian involvement, and the scope of confidentiality afforded to
minors.58Abused children require a pediatric exam, which is not addressed in the National
Protocol. Currently, there is no national protocol appropriate for use with children, and JDI urges
the Department to develop one. In the interim, several jurisdictions have protocols that
appropriately address the legal and developmental issues unique to forensic examinations of
children.
Recommendation: Require facilities to enter into cooperative agreements with
community sexual assault response teams (SARTs), and allow facility staff to conduct
the examinations only as a last resort, by amending paragraph (c) as follows:
(c) The agency shall offer all victims of sexual abuse access to forensic medical
exams performed by qualified medical practitioners, whether onsite or at an outside
facility, without financial cost, where evidentiarily and medically appropriate.
Agencies shall enter into cooperative agreements with community sexual assault
response teams (SARTs), and when a local SART is not available, explore other
options such as contracting with a mobile SART. Agencies shall conduct
examinations with facility medical personnel only as a last resort.
The community Sexual Assault Response Team (SART) model, in which a multidisciplinary
team meets at a designated, fully equipped site to conduct interviews and complete the sexual
assault forensic exam, is an established best practice across the country. Every state has a sexual
58

Office on Violence Against Women, U.S. Dep‘t of Justice, A National Protocol for Sexual Assault Medical
Forensic Examinations Adults/Adolescents 1 (2004), available at http://www.ncjrs.gov/pdffiles1/ovw/206554.pdf.
(last accessed March 27, 2011)

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

assault coalition or organizing body or state agency that supervises and funds the state's sexual
assault response that could provide an agency with information about how to locate local service
providers.

In most cases, joining the community SART and utilizing the community SART facilities will be
the most efficient and cost-effective option for corrections agencies. Beyond minimizing inhouse costs for forensic examinations and ensuring that corrections staff maintain proper training
and certification, partnering with an experienced community SART will: provide increased
expertise and access to the most recent developments in the field; improve the quality of care
offered; eliminate potential concerns regarding conflicts of interest for facility staff; and increase
the likelihood of successful prosecutions.

Some communities do not have a functioning SART, and some facilities may be located a
prohibitive distance from the nearest certified site. In such cases, having community
organizations come into the facility to conduct medical examinations, interviews, and crisis
counseling and advocacy may be the second best option. In such cases, facilities must be
prepared to: provide an examination room that is private, available on demand, can be sterilized
to prevent cross contamination of evidence, and is large enough to accommodate the forensic
nurse, advocate, and survivor; clear community personnel in advance for entry into the facility
and facilitate their getting to the examination room in a timely manner; and enter into contracts
with Sexual Assault Nurse Examiners (SANEs) or Sexual Assault Forensic Examiners (SAFEs)
and rape crisis programs to provide this service on-site.

If there is no opportunity to make use of either an off-site or a mobile SART, allowing facility
medical staff members to conduct sexual assault examinations should be permitted as a last
resort only. However, the lack of transparency, challenges of maintaining certified staff, and
chilling effect involving facility staff would have on reporting are contrary to the spirit of the
standards and far outweigh the benefits when other options are available. As discussed further
with the specialized training provision for medical and mental health care
(§ 115.35/135/235/335), if staff are charged to perform these duties, they should undergo the
same level of training that is required of forensic examiners in the community, in accordance
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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

with the Department‘s National Training Standards for Sexual Assault Medical Forensic
Examiners.59
Recommendation: Require that outside victim advocates be used, and only allow
properly screened and trained agency staff members to serve in this role when
community advocates are unavailable, by amending paragraph (d) as follows:
(d) The agency shall make available to the victim qualified staff member or a victim
advocate from a community-based organization that provides services to sexual
abuse victims. If a community-based organization is not able to provide victim
advocate services, the agency shall make qualified staff members who have been
screened and trained in accordance with community standards available to provide
these services.
Outside victim advocates serve a vital role in the investigation and response process, which is
significantly weakened when they are replaced by a corrections staff member. Victimized
inmates may have legitimate concerns of retaliation and other reasons not to trust a staff member
advocate, particularly if the designated staff member and/or the staff members‘ colleagues
participated or acquiesced in the assault. They also may not understand the limits to
confidentiality when speaking with an agency staff member.

Even the most well-qualified, committed staff members work within the agency and, particularly
if they are sworn officers, will inevitably experience a conflict between their security obligation
to respond to all disciplinary violations and the requirement to retain certain information
confidentially in their victim advocate role. Staff members also are not likely to be able to spend
sufficient time with an inmate before, during, and after the lengthy (and intrusive) medical
forensic examination process while still performing other required duties. Reliance on staff
member advocates further may not ensure that there is the necessary 24-hour coverage of this
role.

Moreover, allowing a staff member to provide this crucial service is inconsistent with proposed
Standard § 115.22/222/322, which requires agencies to ―maintain or attempt to enter into
memoranda of understanding or other agreements with community service providers that are able
59

Office on Violence Against Women, U.S. Dep‘t of Justice, National Training Standards for Sexual Assault
Medical Forensic Examiners (2006), available at http://www.ncjrs.gov/pdffiles1/ovw/213827.pdf (last visited
March 27, 2011).

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Just Detention International
Comments to the Department of Justice
Docket No. OAG–131

to provide inmates with confidential emotional support services related to sexual abuse.‖ If
agencies are allowed to assign a staff member to provide support services, agencies will have
little incentive to form these agreements with outside organizations, making it even less likely
that incarcerated victims will have access to appropriate services.

As with community SARTs, some facilities may be in areas where there are no available rape
crisis agencies, and in those locations, having a qualified staff member available to provide
support services may be the best option. However, staff should be allowed to serve this role only
as a last resort, in locations where the agency is unable to develop an agreement with a
community-based agency that would cover these services in accordance with standard
§ 115.22/222/322.
The Department‘s requirements for a staff member to be qualified are wholly inadequate for
providing support services to a victim of sexual abuse. Serving as a victim advocate is a
specialized skill that requires training, screening, and sensitivity. Agencies must ensure that staff
members chosen for this important role are carefully screened, to ensure that they are not likely
to be perpetrators of abuse, that they will interact in a professional manner that is respectful of
inmates regardless of sexual orientation or gender identity, and that they are emotionally
prepared to provide support in this very demanding context. The Department details no
requirements for qualification, except for estimating that an eight-hour training course would be
needed.60 Most community-based agencies require that advocates receive a minimum of 40 hours
of training. Staff members should not be considered qualified until they have completed training
similar to that required for advocates in the community.
Recommendation: Require agencies to document their efforts to collaborate with
outside service providers by replacing paragraph (h) with the following:
(h) Agencies shall document their efforts to secure services from a community-based
organization. If relying on staff members to serve as victim advocates, the agency
shall also document that sufficient screening and training were provided to establish
that staff are qualified to perform this role.

60

IRIA, supra note 48, at 47.

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Agencies should be required to collaborate with community providers in conducting forensic
examinations and serving as victim advocates, and only be allowed to rely on facility staff to
perform these sensitive and skilled functions when outside providers are not available. To ensure
that this requirement can be monitored, the Department should require documentation
establishing the agency‘s efforts to enter into relevant agreements and, if agency staff members
are used, showing that they have been properly screened and trained, and are available to provide
sufficient round-the-clock coverage.
Question 18: Do the standards adequately provide support for victims of sexual abuse in
lockups upon transfer to other facilities, and if not, how should the standards be
modified?
The evidence protocol and forensic exam provision for lockups (§ 115.121) do not provide for a
victim advocate to be part of the investigation and response process. Nor are lockups required
even to attempt to enter into agreements with outside public entities and community service
providers, despite the fact that many law enforcement entities with lockups already have such
agreements for investigating sex crimes in the community. These services play an important role
regardless of where an assault occurs. The Department should restore these provisions to the
lockups standards, as the Commission had recommended.
Recommendation: Require lockups to provide an outside victim advocate, just as other
facilities are required to do.
Victims need and deserve an advocate during the investigation process regardless of where they
are held. Lockups should be required to provide the same range of services as other types of
facilities. Notably, as lockups are often run by sheriffs‘ and police departments, they should be
able to utilize the same resources for this purpose that they employ in other sex-crime cases.
Thus, at a minimum, the proposed standard should require lockups to provide for an outside
victim advocate whenever one can be made available. Lockups should be required to establish
memoranda of understanding with outside service providers, when possible. At a minimum, the
proposed standard should require larger law enforcement agencies that have lockup facilities to
modify their contracts and agreements with providers who serve on community response teams
to ensure that victims in lockups receive their services.

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Docket No. OAG–131

Victims who report abuse after they have been transferred to another facility should be afforded
access to the same protections and services that are required when the report is made at the site
of the abuse. Such a practice should be explicitly incorporated into the standards, whether the
transfer is intra-agency (e.g. from one prison to another prison in the same state) or between
agencies (e.g. from lockup to jail; from jail to prison; from prison to community corrections).

§ 115.22/222/322 Agreements with outside public entities and community service providers
Collaborating with outside entities and service providers is a low or no-cost way for facilities to:
maximize their use of limited personnel and resources; dramatically enhance their relevant
expertise; encourage the sharing of information that is not likely to be disclosed to officials;
ensure that they are providing victim-centered care that is similar to what is available in the
community; and provide accountability and integrity to the process. While the Department
recognizes the value of corrections-community partnerships, the standards should be stronger in
requiring these relationships.
Recommendation: Only allow for an internal, operationally independent entity to serve
as the outside reporting mechanism when there is no outside entity available, by
modifying paragraph (a) as follows:
The agency shall maintain or attempt to enter into memoranda of understanding or
other agreements with an outside public entity or office that is able to receive and
immediately forward inmate reports of sexual abuse and sexual harassment to
agency officials pursuant to § 115.51. If no outside entity is available, unless the
agency shall enables inmates to make such reports to an internal entity that is
operationally independent from the agency’s chain of command ….
With respect to reporting entities, the proposed standard allows for agencies to forgo even
attempting to establish an agreement with an outside entity if it ―enables inmates to make reports
to an internal entity that is operationally independent from the agency‘s chain of comment.‖61
This is very problematic. Regardless of how officials view internal entities, inmates are unlikely
to understand or trust the distinction between an operationally independent entity and a more
traditionally internal one. A reporting entity that answers to the same agency head will be seen as
part of the system that failed to protect the inmate in the first place. This perception is legitimate;

61

Dep‘t of Justice, Proposed Standard § 115.22(a).

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Docket No. OAG–131

internal entities are rarely as effective in detecting and responding to sexual abuse as, for
example, outside inspector general offices.62
Recommendation: Require lockups to attempt to enter into agreements with outside
service providers, or to modify current agreements with community providers, by
applying § 115.22(b) and (c) to § 115.122.
As discussed above, lockups should be required to enter into agreements with outside service
providers.63 At a minimum, law enforcement entities that run lockups should be required to
modify any agreements they have with community providers to respond to sexual assaults in the
community, so that survivors of sexual violence in lockups receive the same coordinated
response.
Recommendation: Add sexual harassment to § 155.22/222/322 (b).
Sexual harassment is often a precursor to sexually abusive behavior, particularly if it remains
unchecked. Community service providers are skilled in assisting individuals who are facing a
broad range of unwanted sexual activity. When an inmate is sexually harassed, confidential
emotional support services may provide him or her with the information and safety-planning
tools necessary to end harassment before it escalates into sexual abuse.
Question 19: Should this standard expressly mandate that agencies attempt to enter into
memoranda of understanding that provide specific assistance for LEP inmates?
Recommendation: Add the following paragraph to this standard:
Agencies shall maintain or attempt to enter into memoranda of understanding for
assistance in communicating with LEP inmates in languages commonly spoken
within the facility.

62

In this context, the Department‘s Office of the Inspector General would be considered wholly independent,
because it does not report directly to the head of the Bureau of Prisons. The Attorney General, who oversees both
entities, is analogous to a state governor, who would likewise have the ultimate authority over the state corrections
department and a public oversight entity.
63
While ideally all agencies would collaborate with an outside reporting entity, given the short period of time that
individuals generally spend in lockups, the cost of establishing an outside reporting entity may outweigh the benefits
of doing so. People are generally in lockups only for a matter of hours. As a result, someone victimized in a lockup
facility should be able to report to another entity within the same day (or at least within the 96 hour time period that
generally would allow for a forensic exam).

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Comments to the Department of Justice
Docket No. OAG–131

As discussed above (addressing standard § 115.15/115/215/315), all inmates need to have
effective means of communication throughout the reporting, investigation, and response
processes. Reliance on inmate translators for LEP inmates is an ineffective and dangerous
practice. Agencies should be required to secure professional translation services for the full range
of languages present at the facility. In facilities with a large number of LEP inmates who speak
the same language, efforts should also be made to enter into agreements with agencies that can
provide assistance directly in those languages. As with the other provisions in this proposed
standard, JDI recommends that the Department require documentation of these efforts.

§ 115.23/123/223/323 Policies to ensure investigations of allegations
Recommendation: Ensure that multiple investigations pertaining to the same incident
of sexual abuse are coordinated by adding the following provision:
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.
Beyond identifying the entity with the legal authority to conduct criminal investigations of
sexual misconduct, the agency must ensure that criminal and administrative investigations each
occur in a timely manner, and that they are coordinated. When the victim is a minor, whether in a
juvenile or adult facility, allegations of sexual abuse may also trigger a child abuse investigation
by a state or local entity. Without clearly defined roles and procedures, internal investigations are
often unduly delayed, child abuse allegations are not always investigated, and one entity‘s
approach to the collection of evidence or statements can hinder another entity‘s investigation.
The standard should require that facilities establish clear responsibilities when overlapping
investigations occur, so that staff members understand the actions they should take and on which
they can collaborate with other agencies to ensure timely resolution of all investigations. This
type of coordination is essential to ensuring full and timely investigations of alleged misconduct.

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Docket No. OAG–131

Recommendation: Add sexual harassment to paragraphs (c) and (d).
Paragraph (a) appropriately requires that allegations of both sexual abuse and sexual harassment
be investigated. As a result, state entities and Department of Justice components conducting
administrative investigations should ensure that their policies encompass sexual harassment as
well as sexual abuse.

IV. Training and Education
§ 115.31/131/231/331 Employee training
Recommendation: Add the following topics to employee training, paragraph (a):
how to handle disclosures of victimization sensitively; and
how to distinguish consensual/voluntary sexual activity between inmates from
sexual abuse.
JDI applauds the Department for recognizing the vital importance of sufficient staff training on
critical topics, such as how to maintain appropriate professional boundaries and how to
communicate effectively and professionally with lesbian, gay, bisexual, transgender, and intersex
inmates. However, some additional training topics are warranted. These areas directly respond to
issues identified in the BJS surveys, namely, that a large percentage of all abuse is committed by
staff of the opposite sex to those victimized, without force, and that LGBTI inmates are
disproportionately targeted for abuse.

The proposed standards properly empower all staff to receive reports of sexual abuse and, as a
result, all staff must learn how to respond appropriately. Information about sexual abuse must be
shared discretely and professionally, to protect victims as well as the integrity of investigations.

The Department correctly recognizes that there is a difference between sexual abuse and
consensual sexual activity between inmates. However, employees need to be educated about how
to make this distinction. Coercion tactics can be subtle, making it difficult to recognize when an
inmate is being forced, pressured or threatened into engaging in sexual activity. ―Protective
pairing‖ – in which an inmate provides sex in exchange for protection from other inmates – is
exceptionally common in confinement settings and on the surface often appears consensual when

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Docket No. OAG–131

it is in fact exploitive and abusive. Staff members need to learn about these dynamics so that they
can distinguish between consensual activity and abusive behavior.
Recommendation: Amend paragraph (a)(9) to require training on:
How to communicate effectively and professionally with inmates, including lesbian,
gay, bisexual, transgender, or intersex, or gender non-conforming inmates.
Individuals who do not self-identify as lesbian, gay, bisexual, transgender or intersex (LGBTI)
but are gender non-conforming in appearance and/or mannerisms are often perceived by others
as LGBTI and are frequently targets of sexual abuse. Staff training on effective and professional
communication with gender non-conforming inmates will encourage greater reporting and help
decrease the levels of harassment and abuse that these vulnerable individuals endure.
Recommendation: Add sexual harassment to paragraphs (a)(4) and (a)(5).
As noted in the recommendation for § 115.22/222/322 (b), sexual harassment is often a precursor
to sexual abuse. Therefore, it is important to include sexual harassment in all relevant areas of
employee training. In addition to the zero-tolerance policy and the right of all people to be free
from abuse and harassment, staff should be informed about the dynamics of sexual harassment,
particularly as it relates to sexual abuse, and that retaliation based on reports of sexual
harassment is prohibited.
Recommendation: Add the following provision to ensure that all staff members receive
basic information about sexual abuse in detention:
Agency employees who do not have contact with inmates shall receive information
about the agency’s zero-tolerance policy, employee reporting options, and the
prohibition on retaliation.
Though agency employees who do not have contact with inmates do not need full training about
PREA, they should still receive basic information about sexual violence in detention.
Specifically, all employees should receive information about the agency‘s zero-tolerance policy
regarding sexual abuse so they understand that the agency -- in all of its functions -- will not
tolerate sexual abuse and sexual harassment. All employees also need to understand reporting
options (in some instances non-contact employees may be made aware of sexual abuse) and the
prohibition on retaliation. This basic information will engage all employees, even those who do

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Docket No. OAG–131

not come into regular contact with inmates, in the agency‘s commitment to addressing sexual
abuse.
Question 20: Should the Department further specify training requirements for lockups
and if so, how? Would lockups be able to implement such training in a cost-effective
manner via in-person training, videos, or web-based seminars?
Recommendation: Amend § 115.131(a) as follows:
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: the agency’s
zero-tolerance policy; inmates’ right to be free from sexual abuse and sexual
harassment; the dynamics of sexual abuse and harassment in confinement settings,
including which inmates are most vulnerable in lockup settings; the right of inmates
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
communicate effectively and professionally with all detainees.
The lockup standard should specify topics that must be included in employee training. In order
for training about how to ―fulfill [employees‘] responsibilities‖ and ―communicate effectively
and professionally‖ to be meaningful, lockup employees and volunteers must receive training on:
the agency‘s zero-tolerance policy; inmates‘ right to be free from sexual abuse and sexual
harassment; the dynamics of sexual abuse and harassment in confinement settings, including
which inmates are most vulnerable in lockup settings; the right of inmates and employees to be
free from retaliation for reporting sexual abuse or harassment; and how to detect and respond to
signs of threatened and actual abuse. Given the prevalence of staff sexual misconduct in
detention settings generally, training on professional boundaries should also be required.

Since the proposed standard already requires that lockup employees receive training on agency
policies, adding the topics detailed above should not add a significant amount of training time or
expense.64 The minimal amount of additional training time would be outweighed by the
substantial benefit of ensuring that employees understand which lockup inmates may be the most
vulnerable to sexual abuse and how to prevent and respond to potential abuse.
64

The National Institute of Corrections training ―Your Role: Responding to Sexual Abuse,‖ available on-line at
http://nicic.gov/Training/PREA, is a free, two-hour online training designed to enhance corrections professionals‘
skills in responding to allegations of sexual abuse. One portion of this training involves a review of the dynamics of
sexual violence in confinement and could be used to provide training to lockup employees.

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Comments to the Department of Justice
Docket No. OAG–131

§ 115.32/232/332 Volunteer and contractor training
Recommendation: Modify paragraph (a) to ensure that “all volunteers and contractors
who have substantial contact with inmates have been trained in accordance with the
employee training” and modify paragraph (b) such that “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 abuse.”
In some agencies, contractors and volunteers serve essential corrections functions with
substantial inmate contact. Contracted medical and mental health personnel, religious leaders,
and work supervisors, for example, are at least as likely to receive disclosures about sexual abuse
as corrections staff, and face similar issues with respect to professional boundaries. Thus, these
individuals should receive the full training required for employees who have contact with
inmates. Additionally, all volunteers and contractors – even those who do not have contact with
inmates – should be informed about the agency‘s zero-tolerance policy and the right to be free
from retaliation for reporting sexual abuse.

§ 115.33/233/333 Inmate/resident education
Recommendation: Require that sexual violence education be accessible to all inmates
and residents.
A basic tool for preventing and responding to sexual abuse is to educate inmates about sexual
violence. Sadly, a significant number of individuals in confinement settings have experienced
past sexual or physical abuse, neglect or marginalization. Some inmates have been so
traumatized from past experiences that they may not fully understand their right to bodily
integrity and safety. Many individuals, especially those first entering detention, have an
expectation that sexual abuse is an inevitable part of life behind bars. As such, it is imperative
that all inmates and residents receive clear, age-appropriate, and understandable education about
sexual violence.

Inmate education should be appropriate not just with regard to age, but also to cognitive level.
The language used in adult inmate education sessions and printed materials should be at a fifthgrade reading level, and material for youth should be age-appropriate. Agencies should also be

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Docket No. OAG–131

required to ensure that inmates and residents with cognitive disabilities, limited literacy skills,
limited English proficiency or other challenges receive and understand the information provided.

JDI suggests that agencies be encouraged to work with outside professionals who can advise
them about the development of appropriate and accessible information.JDI also recommends that
the PREA Resource Center be tasked with developing accessible materials that can be used by
agencies for inmate and resident education.

§ 113.34/134/234/334 Specialized training: investigations
Recommendation: Require investigative staff to receive training on how to access and
use available translation services.
As discussed previously (in § 115.15/115/215/315 and § 115.22/222/322), ensuring that LEP
inmates have sufficient means to communicate throughout the investigation process is critical.
Ideally, each facility would have investigators who are fluent in the languages spoken by
inmates. However, there will inevitably be times when the investigator assigned to a sexual
abuse allegation does not speak the language of a victim or witness. Per § 115.22/222/322,
facilities should enter into agreements with translation services for such these occasions. Such
agreements are only effective, however, if investigative staff know how to access the services.
Providing this basic information is a low-cost, high-gain way of ensuring that all inmates are able
to communicate throughout the reporting, investigation, and response processes.
Recommendation: In prisons, jails, lockups, and community confinement facilities,
amend paragraph (b) to include guidance on determining whether sexual activity
between inmates is consensual. In juvenile facilities, require investigators to receive
guidance on how to apply age of consent laws to distinguish between sexual abuse and
voluntary sexual contact between similarly aged residents.
In its definition of sexual abuse, the Department appropriately made clear that consensual sexual
conduct between inmates does not constitute sexual abuse. To ensure that this translates into
appropriate practices, investigators should be trained on how to distinguish between consensual
sexual activity between inmates and sexual abuse. The current standard requires facility staff to
report any suspicion of sexual abuse, leaving it to investigators to determine whether the conduct

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Docket No. OAG–131

constituted sexual abuse for purposes of PREA-mandated responses. Providing investigators
with appropriate training will help ensure that PREA is properly invoked to prevent and respond
to the serious harms and trauma of sexual abuse, and that abuse is not minimized or mistaken for
consensual activity. This training will also lessen the frequency with which LGBTI and other
inmates who engage in consensual sexual activity are labeled as perpetrators of sexual abuse and
penalized as a result.

In juvenile facilities, investigators should also receive specialized training on age of consent laws
to ensure a thorough understanding of the limited circumstances under which juvenile facilities
can treat voluntary sexual contact between residents as abuse, in order to prevent facilities from
using PREA to target LGBTI and other youth for engaging in voluntary sexual contact with
similarly aged residents. Many residents of juvenile facilities are old enough to consent to sexual
activity with other similarly aged youth. 65 With a solid understanding of age of consent laws,
investigators will be less likely to apply the standards incorrectly to voluntary sexual contact
between minors who, under the laws of that state, can legally consent to engage in such contact.

§ 115.35/235/335 Specialized training: medical and mental health care
Recommendation: Amend paragraph (a) to include:
In addition to the general training provided to all employees pursuant to § 115.31,
the agency shall ensure that...
Whether employed directly by the corrections agency or through a contracted provider, medical
and mental health staff has extensive contact with inmates. As such, they are among the most
likely to receive reports of abuse -- and they may also perpetrate abuse. Similar to investigative
staff, all medical and mental health professionals need to receive the full employee training, as
well as specialized information appropriate for their field.

65

In most states the age of consent is 16, and in more than half of states, minors 14 or older can consent to sexual
contact with others who are close to them in age. In addition, some facilities house residents as old as 25. See ASAPH
GLOVER, KAREN GARDINER & MIKE FISHMAN, THE LEWIN GROUP, STATUTORY RAPE: A GUIDE TO STATE LAWS
AND REPORTING REQUIREMENTS, PREPARED FOR THE OFFICE OF ASSISTANT SECRETARY FOR PLANNING &
EVALUATION, DEP‘T OF HEALTH & HUM SVCS. (2004), available at
http://www.4parents.gov/sexrisky/statutoryrapelaws.pdf (last accessed April 1, 2011).

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Docket No. OAG–131

Recommendation: Modify paragraph (b) to read:
If medical staff employed by the agency conduct forensic examinations, such
medical staff shall receive the appropriate training that meets or exceeds the
recommendations in the Department of Justice’s National Training Standards for
Sexual Assault Medical Forensic Examiners to conduct such examinations.
As discussed above (with § 115.21/121/221/321), forensic examinations should only be
performed by facility medical staff as a last resort. Corrections agencies are not likely to have
sufficient in-house expertise to provide the high-level, comprehensive medical education needed
to qualify facility medical staff to conduct a medical forensic exam. When medical staff
employed by the agency are charged with performing these duties, they need the same level of
training and qualifications as community-based sexual assault forensic examiners (SAFEs). To
meet this standard, the Department should require that the training provided to medical staff
conducting forensic examinations meets or exceeds the recommendations found in the
Department‘s National Training Standards for Sexual Assault Medical Forensic Examiners.66

The National Training Standards for Sexual Assault Medical Forensic Examiners is a
companion to the National Protocol for Sexual Assault Medical Forensic Examinations:
Adults/Adolescents, which the Department already relies upon for evidence protocol and forensic
medical examinations.67 The training standards offer a framework for the specialized education
necessary to ensure that providers conducting forensic examinations are able to validate and
address victims‘ health concerns, minimize their trauma, promote their healing, and maximize
the detection, collection, preservation, and documentation of physical evidence related to the
assault.
V. Screening for Risk of Sexual Victimization and Abusiveness
§ 115.41/241 Screening for risk of victimization and abusiveness
§ 115.341 Obtaining information from residents
JDI commends the Department for insisting that the full range of known vulnerability factors be
considered in screenings of all inmates and residents – including those in women‘s prisons and
66

Office on Violence Against Women, National Training Standards for Sexual Assault Medical Forensic
Examiners, supra note 59.
67
See Dep‘t of Justice, Proposed Standard § 115.21/121/221/321.

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Docket No. OAG–131

jails and in juvenile facilities. Many of the factors that make someone especially vulnerable to
sexual abuse behind bars are known. While most research on the question has been conducted in
men‘s prisons, the same characteristics are known to place someone at risk in facilities for
women and girls. An individual‘s self-perception of vulnerability is likewise as important a
consideration in juvenile facilities as it is in adult institutions. The Department‘s application of
these key risk factors to all inmates and residents is an important improvement to the standards.

The explicit prohibition on punishing an inmate for failing to disclose this sensitive information
is also essential. Vulnerable inmates – particularly LGBTI inmates – are understandably
apprehensive about revealing information that might place them at heightened risk for abuse.
Pressuring inmates to answer screening questions related to their identity or past victimization,
and then punishing them if they refuse to provide such information, would further undermine
trust between inmates and corrections staff, making it more difficult for inmates to report abuse.
Recommendation: To ensure that individuals perceived as LGBTI are adequately
protected, regardless of their sexual orientation and gender identity, amend
§ 115.41/241(c)(7) as follows:
“Whether the inmate is gay, lesbian, bisexual, transgender, or intersex, or gender
non-conforming.”
and amend § 115.341 (c)(2) as follows:
“Sexual orientation, transgender or intersex status, or gender non-conformance.”
Inmates and residents who are gender non-conforming are often targeted for sexual abuse and
harassment based solely on the fact that other inmates or staff perceive them to be LGBTI,
regardless of how they self-identify. As a result, gender non-conforming individuals are at just as
high risk of sexual abuse as LGBTI inmates and residents. Including gender non-conformance as
one of the screening criteria for risk of sexual victimization will help ensure that inmates and
residents who are vulnerable to sexual abuse because they are perceived to be LGBTI are
adequately protected.
Recommendation: In light of the lack of a validated screening instrument for juvenile
facilities, modify § 115.341(b) to require the use of a standardized information
gathering tool.

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Docket No. OAG–131

The current standard instructs agencies to attempt to gather a host of different information about
youth during the intake process using ―an objective screening instrument.‖ However, among
professionals familiar with assessment and screening, the term ―objective screening instrument‖
means a tool that has been validated and that differentiates between different levels of risk of
being victimized or engaging in sexual abuse. While youth should be asked a standardized set of
questions during the intake process, JDI (and the juvenile experts with whom it collaborates)
know of no validated objective screening instrument that assesses a resident‘s risk of
victimization or abusive behavior.
Recommendation: Amend § 115.341(d) as follows:
This information shall be ascertained through conversations with residents during
the intake process and medical and mental health screenings; during classification
assessments; and by reviewing court records, case files, facility behavioral records,
and other relevant documentation from the residents’ files. In facilities where
medical and mental health practitioners conduct medical and mental health
screenings during the intake process, these practitioners, and not other facility staff,
should ask residents information about their sexual orientation or gender identity,
prior sexual victimization, mental health status, intersex condition, and mental or
physical disabilities.
As currently drafted, the proposed standards allows intake and security staff to gather
information about sensitive issues from residents, regardless of whether these staff have the
appropriate level of training to do so effectively, safely, and respectfully. Only sufficiently
trained professionals should be asking residents such sensitive questions, both to increase the
likelihood that residents will share this important information and to decrease the risk that they
will be traumatized in the process. Medical and mental health practitioners are in the best
position to gather this information while conducting health assessments during the intake and
classification process.
Question 21: Recognizing that lockup detention is usually measured in hours, and that
lockups often have limited placement options, should the final rule mandate rudimentary
screening requirements for lockups, and if so, in what form?
Recommendation: Add the following provision as § 115.141:
(a) Before detainees are placed together in a cell, they must be screened to ensure
that those at high risk of being sexually abused are not held with those who are
likely to be sexually abusive.

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Docket No. OAG–131

(b) Facility staff shall make reasonable efforts to gather information about and
consider, at a minimum, the following criteria: (1) the age of the detainee, including
whether the detainee is a juvenile; (2) the physical build of the detainee; (3) whether
the detainee has a mental, physical, or developmental disability; (4) whether the
detainee is gay, lesbian, bisexual, transgender, intersex, or gender non-conforming;
(5) the detainee’s criminal history; and (6) the detainee’s own perception of
vulnerability.
Sexual violence does not require days in detention to occur. Indeed, if a vulnerable inmate is left
alone with a likely predator, abuse can occur quickly. To prevent this, lockups should do basic
screening to ensure that highly vulnerable inmates are not left alone with likely perpetrators even
for short periods of time. While a full classification process may not be necessary, lockups
should be required to collect information similar to what the standards require longer-term
facilities to gather, especially if lockups hold multiple inmates in the same cell. Indeed, many
police lockups already employ basic measures aimed at protecting inmates from sexual abuse.68
The Department would be remiss if it did not require that police lockups employ at least a
rudimentary screening.

The shorter time that people generally spend in lockups may justify a more liberal use of
isolation than is appropriate in other types of facilities. As discussed below (in § 115.43), JDI
believes that segregation in prisons and jails needs to be curtailed beyond the limits in the
Department‘s proposed standards. However, in a lockup, keeping someone separated for a few
hours may be the most effective solution and is unlikely to have the traumatizing impact that
arises from extended isolation.
Question 22: Should the final rule provide greater guidance regarding the required scope
of the intake screening, and if so, how?
The proposed standard encourages some consideration of the risk of victimization and
abusiveness at the initial screening, but without additional guidance, agencies may not know how
68

See, e.g., Lockups, Native American Detention Facilities, and Conditions in Texas Penal and Youth Institutions,
Hearing before the National Prison Rape Elimination Commission (March 26, 2007) (Ronald Ruecker, Interim
Police Chief, Sherwood (OR) Police Department, International Association of Chiefs of Police, testifying before that
―where possible, rival gang members should be held separately, as should other persons accused of particularly vile
crimes, such as pedophilia, or any others who by virtue of their criminal charge, physical condition, or lifestyle are
more likely to be victimized by fellow prisoners‖).

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Docket No. OAG–131

to comply with that provision effectively. As discussed below, the intake screening should
attempt to gather all of the information required for the initial classification.
Recommendation: Modify paragraphs (c) and (d) to each begin
“The intake screening and initial classification process shall consider…”
The final rule should require agencies to attempt to gather all information related to risk of
victimization and risk of abusiveness as early as the intake screening. Agencies need to have as
much screening information as possible in order to make safe housing and bed decisions for an
inmate‘s first days in the facility, since vulnerable inmates are often abused sexually soon after
intake. Not all information may be immediately available, but the agency should attempt to
gather this information as expeditiously as possible. Information about an individual‘s physical
build, age, gender non-conformance, criminal history, and immigration status should be readily
available even at this early point, and factored into inmates‘ initial housing assignments. At a
minimum, inmates should also be asked about their own perception of vulnerability, whether
they identify as LGBTI, and whether they have a disability. While some vulnerable individuals
may not feel comfortable answering these questions soon after arriving at a facility, many others
will. In addition, the inclusion of these factors from the moment someone enters the facility will
have a positive impact on the zero-tolerance culture.
§ 115.42/242 Use of screening information
JDI applauds the Department‘s requirement of an individualized assessment to determine
whether a transgender or intersex inmate should be housed in a men‘s or women‘s facility.
Transgender women, who tend to be housed in men‘s facilities in accordance with their birth
gender and/or genitalia, are unquestionably among the most vulnerable to sexual abuse.69 The
standards for adult facilities recognize that, for many transgender and intersex individuals,
housing in a facility aligned with their gender identity may be the safest and most appropriate
option.

69

VALERIE JENNESS ET AL., CENTER FOR EVIDENCE-BASED CORRECTIONS, VIOLENCE IN CALIFORNIA
CORRECTIONAL FACILITIES: AN EMPIRICAL EXAMINATION OF SEXUAL ASSAULT (2007), available at
http://www.justdetention.org/pdf/VJReport2007.pdf.

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On the other hand, JDI disagrees with the Department‘s decision to allow housing determinations
to be based solely on sexual orientation or gender identity. All too often, agencies that have
housed LGBTI inmates based solely on these factors have subjected them to punitive conditions,
typically in isolation. Separate housing also encourages the misperception that LGBTI inmates
are worthy of stigmatization. Furthermore, such separate housing tends inadvertently to house
vulnerable and predatory inmates together, by placing higher importance on LGBTI status.
Recommendation: Prohibit agencies from relying exclusively on sexual orientation and
gender identity to make housing determinations, by adding the following paragraph to
this standard:
“The agency shall not place lesbian, gay, bisexual, transgender, or intersex inmates
in particular facilities, units, or wings solely on the basis of their sexual orientation,
genital status, or gender identity, unless such placement is in a dedicated facility,
unit, or wing established in connection with a consent decree, legal settlement or
judgment for the purpose of protecting inmates.”
Determining safe housing for inmates requires consideration of the full range of relevant
screening criteria. While sexual orientation and gender identity are strong vulnerability factors,
LGBTI inmates need to be housed based on a full assessment of their risks. Even facilities with a
large population of gay and transgender inmates have found that housing based solely on this
status is problematic. Both the San Francisco Sheriff‘s Department and the New York City
Department of Correction have closed the ―gay unit‖ in their facilities in favor of a more
comprehensive strategy for protecting vulnerable inmates, in part due to concerns about security
and abuse in these units. At Fluvanna Correctional Institution in Virginia – which the BJS
identified as having the highest rate of inmate-on-inmate abuse for all prisons and jails and the
second highest rate of staff sexual misconduct among women‘s prisons70 – the previous warden
had purportedly established a ―butch ward,‖ where women who identified as or were perceived
to be lesbian or gender non-conforming were subject to ongoing harassment and punitive
conditions.71
If the Department seeks to preserve the ―K6G unit‖ at the Men‘s County Jail of the Los Angeles
Sheriff‘s Department, it can do so while still protecting against the likelihood that other agencies
70
71

See ADULT SURVEY, supra note 31.
Va. women's prison segregated lesbians, others, ASSOCIATED PRESS, June 11, 2009.

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Docket No. OAG–131

will segregate LGBTI inmates or otherwise place them unnecessarily in punitive conditions. The
K6G unit is unique, in that people housed there retain access to substantial programming—often
more than what is available in the general population—and the jail has a large enough identified
gay and transgender population to fill multiple wings, so that inmates are not isolated and staff
can separate LGBTI inmates from each other when needed. This is not the norm.

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.
Notably, such a separate, protective unit has never been successfully implemented in a women‘s
facility. JDI recommends that placing adult inmates in particular beds, wings or units solely on
the basis of sexual orientation, gender identity, genital status or birth gender be permitted only
when, as in Los Angeles County, such placement is based on a finding, made by a judge or
outside expert, that these inmate groups cannot be housed safely by other means.

§ 115.342 Placement of residents in housing, bed, program, education, and work assignments
JDI commends the Department for prohibiting agencies from placing LGBTI residents in
particular housing, bed or other assignments solely on the basis of such identification or status.
Unfortunately, many juvenile facilities segregate or isolate LGBTI youth, ostensibly for their
own protection, sometimes by placing these residents in sex offender units. While presumably
intended to keep LGBTI youth safer than they would be in general population, this practice
essentially punishes LGBTI youth and denies them access to the same privileges and programs
as other residents. As discussed above, a modified version of this prohibition should be instituted
for adult facilities as well.
Recommendation: Limit the extent to which vulnerable residents are isolated by
amending paragraph (c) as follows:
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.
(1) If isolation is unavoidable, the agency shall review the use of isolation every
24 hours and document the reason for continued isolation.
(2) The agency shall not hold youth in isolation conditions for a continuous
period of more than 72 hours.
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Just Detention International
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Docket No. OAG–131

(3) Residents placed in isolation shall have access to education, recreation,
counseling, and other programming.
The proposed standards appropriately require individualized placements, but should be
strengthened to ensure placements are appropriate and to avoid isolating LGBTI and other
vulnerable residents unnecessarily. Recent research confirms the serious dangers associated with
isolation of youth, including increased suicide risk and long-term psychiatric problems.72
Additionally, isolation deprives youth of programming designed to support their rehabilitation,
such as educational services.73 Isolating residents who may be at risk of victimization has the
effect of singling those youth out for punishment based solely on safety concerns.

The Department should do more to minimize the isolation of vulnerable youth. By limiting
isolation to a maximum of 72 hours, the Department can reduce the negative consequences of
this practice for youth in secure facilities, while providing adequate time for facilities to find
appropriate housing without extended isolation. By requiring that isolated youth enjoy the same
privileges as other residents, the standards will also avoid punishing youth based on their risk of
victimization.

The use of isolation in juvenile facilities should also be subject to oversight and review mandates
similar to those required for the use of protective custody in adult facilities, with shorter time
frames to account for the increased harm of isolating youth. Specifically, juvenile agencies
should review the use of isolation daily, to ensure that it remains the only safe option and is used
purely as a last resort. Juvenile facilities should also be required to document its use of protective
isolation. In addition to creating a record should a youth or his/her legal guardian wish to
72

LINDSAY M. HAYES, NATIONAL CENTER ON INSTITUTIONS AND ALTERNATIVES, OFFICE OF JUVENILE JUSTICE AND
DELINQUENCY PREVENTION REPORT, JUVENILE SUICIDE IN CONFINEMENT: A NATIONAL SURVEY (2009), available
at http://www.ncjrs.gov/pdffiles1/ojjdp/213691.pdf (noting a ―strong relationship between juvenile suicide and room
confinement‖); American Psychiatric Association, Press Release, Incarcerated Juveniles Belong in Juvenile
Facilities (Feb. 27, 2009), available at
http://www.psych.org/MainMenu/Newsroom/NewsReleases/2009NewsReleases/IncarceratedJuveniles.aspx
(―Children should not be subjected to isolation, which is a form of punishment that is likely to produce lasting
psychiatric symptoms.‖); see also Linda M. Finke, Use of Seclusion Is Not Evidence‐Based Practice, 14 J. CHILD &
ADOLESCENT PSYCHIATRIC NURSING 186 (2007).
73
MICHAEL PUISIS, ED., CLINICAL PRACTICE IN CORRECTIONAL MEDICINE 139 (2006) (noting that ―[v]arious
activities, positive relationships between staff and youth, individual attention, and accessible counseling are all
aspects of the general program that help stabilize youth….‖).

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Docket No. OAG–131

challenge such isolation, the documentation will help track the use of protective isolation and
identify whether facilities are employing isolation too readily. Such data may also assist the
Department and other organizations in providing guidance and technical assistance to
jurisdictions on reducing the use of isolation.
Recommendation: Provide greater guidance on how to determine whether a
transgender or intersex resident should be housed in a boys’ or girls’ facility or unit
with the following changes:
(e) The agency shall make an individualized determination about whether a
transgender or intersex resident should be housed with males or with females. Such
a determination shall not be based solely on the resident’s genital status or birth
gender. In deciding whether to assign a transgender or intersex resident to a facility
or unit for male or female residents, and in making other housing and programming
assignments, the agency shall consider on a case-by-case basis whether the
placement would ensure the resident’s health and safety. Transgender and intersex
residents’ own views with respect to their own safety shall be given serious
consideration.
(f) Placement and programming assignments for transgender and intersex residents
shall be reassessed at least twice each year to review any threats to safety
experienced by these residents.
Many juvenile facilities struggle with appropriate housing options for transgender and intersex
residents and will base this determination solely on the resident‘s genital status. These residents
are especially vulnerable to sexual abuse. The standard on this topic for adult prisons and jails
provides better guidance for agencies and better protections for transgender and intersex
individuals than do the juvenile standards. Because inappropriate placements of transgender and
intersex residents greatly increase their risk of victimization, this standard should provide
additional guidance to agencies on what to consider when determining whether a transgender or
intersex resident will be housed in a boys‘ or girls‘ facility or living unit. Considering that many
officials lack experience in working with transgender and intersex residents, it is especially
important that a transgender or intersex resident‘s own views with respect to his or her own
safety be considered seriously in all placement determinations for that resident.

§ 115.43/243 Protective custody
As is true for juvenile detainees, extended isolation of vulnerable adult inmates is
psychologically harmful and rarely an appropriate means of protection. Protective custody is

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Docket No. OAG–131

punitive by default, as it results in a loss of services and programs, can brand someone as a
victim and/or a snitch, and often leaves the inmate with less access to outside support. Relying
on isolation to protect inmates who are vulnerable or have been victimized discourages inmates
generally from informing officials about their vulnerabilities and from reporting abuse. As a
result, involuntary segregated housing must be used for protection only as a last resort.
Ironically, while the Department justified many of its revisions to the Commission‘s
recommendations as a means to reduce costs, it neglected to consider the substantial costs of
segregated housing. In a 2009 report, the California Inspector General estimated that, based on
needs for increased staffing and greater physical space, the annual costs per inmate in
administrative segregation average at least $14,600 more than the annual costs per inmate in the
general population.74 In light of these increased costs, the California Inspector General found that
the overuse of administrative segregation cost the California Department of Corrections and
Rehabilitation nearly $11 million every year.75

While the Department states that the use of protective custody authorized by the proposed
standards will not impose new costs on the BOP, since the proposed standard is consistent with
current BOP policy,76 the BOP and other agencies can, like the CDCR, save millions of dollars
by limiting their use of involuntary segregation, thereby preserving additional funds for more
effective prevention and response measures.
Recommendation: Require further restrictions and documentation requirements on
protective custody by amending paragraphs (c) and (d) as follows:
(c) The agency shall not ordinarily assign such an inmate to segregated housing
involuntarily for a period exceeding 90 ten days.
(d) If an extension is necessary Whenever an inmate is involuntarily placed in
protective custody, the agency shall clearly document:
(1) The basis for the agency’s concern for the inmate’s safety; and
(2) The reason why no alternative means of separation can be arranged;
74

CALIFORNIA OFFICE OF THE INSPECTOR GENERAL, MANAGEMENT OF THE CALIFORNIA DEP'T OF CORRECTIONS AND
REHABILITATION'S ADMINISTRATIVE SEGREGATION POPULATION 21-22 (2009), available at
http://www.oig.ca.gov/media/reports/BOA/reviews/Management%20of%20the%20California%20Department%20o
f%20Corrections%20and%20Rehabilitation's%20Administrative%20Segregation%20Unit%20Population.pdf (last
visited March 26, 2011).
75
Id. at 22.
76
IRIA, supra note 48, at 47 (discussing § 115.43). There is no comparable discussion for § 115.66/366

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Docket No. OAG–131

(3) The extent to which access to programs, privileges, education and work
opportunities have been limited; and
(4) The plan for providing safe, less restrictive housing for the inmate in the
future.
(e) Every 90 10 days, the agency shall afford each such inmate a review to determine
whether there is a continuing need for separation from the general population. Each
review that results in continued segregation should be documented in accordance
with (d).
While the Department specifies some restrictions on the use of involuntary protective custody, its
proposed standard here still allows the indefinite placement of vulnerable inmates in involuntary
segregation, without sufficient access to programming and work assignments – or sufficient
means to challenge this designation. Shorter deadlines are needed to discourage prolonged
isolation. Moreover, agencies must fully document the use of involuntary protective custody – to
allow inmates to challenge this involuntary status; to track the extent to which it is relied upon by
facilities as a means of protecting vulnerable populations; and to enable monitors to review
whether it is overused.
Recommendation: Add the following paragraph to this provision:
(f) When an inmate identified as vulnerable to sexual victimization requests to be
placed in protective custody, the agency shall make a decision as to the individual’s
request within 24 hours. During the period in which the agency makes its decision,
the individual shall be placed in segregation. Should the agency deny the
individual’s request, the agency shall (1) document the grounds for the denial; and
(2) provide for an expedited appeal by the individual requesting protective custody.
While many inmates are involuntarily segregated, some vulnerable individuals do request
housing in protective custody for their own safety. The proposed standards provide no guidance
for agencies on how to handle requests for segregation. Inmates are often in the best position to
assess their safety in general population, but far too often their requests are not seriously
considered until after they have been assaulted. The Department should encourage agencies to
review these requests promptly, as a prevention measure.

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Comments to the Department of Justice
Docket No. OAG–131

VI. Reporting
§ 115.51/151/251/351 Inmate reporting
JDI commends the Department for recognizing the need for both inmates and staff to be able to
report abuse privately.77 Whether as victims or witnesses, inmates need reporting options that
they feel are safe and trustworthy, which for some individuals will only occur with anonymity.
Allowing staff to report the abuse privately will likewise increase a staff member‘s willingness to
address sexual abuse. Corrections culture too often includes a willingness on the part of staff to
―turn a blind eye‖ when a colleague or powerful inmate behaves inappropriately. A private
reporting option, partnered with zero-tolerance for sexual abuse, may encourage staff who would
otherwise remain silent to report sexual abuse and sexual harassment.
Recommendation: Require agencies to make their best efforts to establish an external
reporting option, and to allow reporting to external entities to be anonymous by
amending paragraph (b) as follows:
Pursuant to § 115.22, the agency shall also make its best efforts to provide at least
one way for inmates to report abuse or harassment to an outside governmental entity
that is not affiliated with the agency or that is operationally independent from
agency leadership, such as an inspector general or ombudsperson, and that is able
to receive and immediately forward inmate reports of sexual abuse and sexual
harassment to agency officials, allowing the reporting inmate to remain anonymous
upon request. If there is no outside entity able to accept such reports, the agency
shall establish a reporting mechanism that is operationally independent from agency
leadership.
For the reasons discussed above (addressing standard § 115.22/222/322), the Department‘s
elimination of the requirement that inmates have access to an external, confidential reporting
option is very problematic. Victimized inmates often have legitimate reasons for not trusting
members of the agency that failed to protect them from sexual abuse in the first instance, and an
―operationally independent‖ entity remains part of the agency for these purposes. Moreover, an
77

The term ―confidentially‖ is used throughout the standards, in a few different contexts. Presumably any report
would trigger an investigation and the disclosure of some information. Confidentiality generally precludes sharing
any information provided by a client in the course of requesting or receiving services, except in limited
circumstances such as imminent harm, knowledge of child abuse or with the client's explicit, written permission. For
clarity, the Department may want to use the word ―anonymous‖ when referring to an inmates' ability to report abuse
to a staff member, administrator, ombudsperson or outside entity without revealing their own identity. When staff
members responding to an allegation of sexual abuse are required to safeguard information, including the identity of
the victim and alleged perpetrator, and provide information only to those individuals who need it to complete an
investigation, a more accurate description would be ―report privately.‖

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anonymous reporting option may be the only way for an inmate to feel safe reporting sexual
abuse. Despite the fact that an anonymous report will not allow for a full investigation into the
incident, it will provide facility staff with important information about sexual violence within the
facility, including information that may help officials track trends and become aware of areas in
the facility that are not safe.
In § 115.351, the Department‘s requirement that youth have access to the tools necessary to
make a written report is an important improvement to the Commission‘s recommendations. The
lesser capacity and greater developmental needs of youth are often cited to justify giving them
less access to legal resources than adults have. Nonetheless, the legal system imposes the same
procedural hurdles on juvenile residents as it does on adult inmates. Youth need to be provided
with these basic materials to document their concerns.
Question 23: Should the final rule mandate that agencies provide inmates with the option
of making a similarly restricted report to an outside public entity? To what extent, if any,
would such an option conflict with applicable State or local law?
Though the intention behind the military‘s ―restricted reporting‖ system is good, in practice, it
often creates unnecessary confusion and provides victims with false promises of privacy. For
example, if a survivor in the military system reports sexual abuse to the wrong person, that
person will still have to report the abuse. Commanders who receive reports of sexual abuse are
also free to pursue an investigation, even if that goes against the wishes of the survivor. While
the ―restricted reporting‖ option allows some military personnel to receive medical care
following a sexual assault without triggering an investigation, some states require medical staff
to report all sexual abuse to authorities. Similar concerns are likely to arise in the corrections
context, without survivors understanding the consequences of their reports becoming
―unrestricted‖ until after the fact.
In order to model the intention and most positive aspects of the military‘s ―restricted reporting‖
option without succumbing to its shortcomings, JDI recommends that the Department allow for
anonymity whenever requested by the inmate, as allowed by federal and state law.

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Docket No. OAG–131

§ 115.52/252/352 Exhaustion of administrative remedies
Question 24: Because the Department’s proposed standard addressing administrative
remedies differs significantly from the Commission’s draft, the Department specifically
encourages comments on all aspects of this proposed standard.
As the Department acknowledges, there is ―strong evidence that victims of sexual abuse are
often constrained in their ability to pursue grievances,‖ due to unrealistic and arbitrary deadlines
and requirements.78 As scores of cases have shown, even where sexual abuse committed by
officials is not controverted, adult prisoners and juvenile residents are often denied legal redress
because of hyper-technical requirements.79 Still more cases are never brought to the attention of
officials because, having missed a deadline or other requirement, survivors know that filing a
grievance will yield no positive benefit but may subject them to further abuse and other
retaliation.

Requiring that harsh grievance policies be loosened for complaints of sexual abuse in detention
is not inconsistent with the Prison Litigation Reform Act (PLRA).80 The PLRA created various
barriers to redress by the courts that are unique to inmates, including a requirement that inmates
fully navigate the grievance procedures at their facilities.81 The law provides no mandates on the
content of these grievance procedures. However, in response to the law, agencies nationwide
have avoided responsibility for abuses by erecting harsh requirements for substantive review of
complaints, including unrealistically short deadlines, multiple levels of appeal, and confusing
distinctions between who can receive a report of sexual abuse generally and which reports will
be deemed grievances.

78

NPRM, 76 FED. REG. at 6259.
See, e.g., Tracy v. Coover et al., No. 0-778/09-0931 (Iowa Ct. App. Jan. 20, 2011) (dismissing a prisoner‘s
complaint of sexual abuse because, as suggested in orientation materials provided by the Iowa Department of
Corrections, she complained to a counselor rather than filing an official grievance); Baker v. Chapman, 2010 WL
1258021 (M.D. Ga. 2010) (dismissing allegations of a staff-on-inmate sexual assault for failure to exhaust official
grievance procedures); B, N & G v. Duff, 2009 WL 2147936 at *7-9 (N.D. Ill. 2009) (dismissing a juvenile
plaintiff‘s claim that adult staff had sexually abused her because she had not appealed an adverse determination on
her grievance); Delaney v. Tilton, 2009 WL 1405008 at *4 (E.D. Cal. 2009) (dismissing from the lawsuit a
supervisory defendant because, although the plaintiff had filed a complaint enumerating ―allegations of sexual
assault, battery and misconduct‖ by the perpetrating officer, she did not write in her grievance that she had
previously complained about the assailant‘s behavior and that prison officials had failed to help her).
80
Prison Litigation Reform Act, P.L. No. 104-134, 110 Stat. 1321-73 (1996).
81
42 U.S.C. § 1997e(a).
79

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Docket No. OAG–131

The PLRA was intended to weed out frivolous prisoner lawsuits, not to bar legitimate cases of
sexual abuse and harassment from judicial review. Effective grievance systems and access to
court when officials fail to prevent and respond to sexual violence are important internal
monitoring and external oversight mechanisms – allowing victims to seek redress and
encouraging officials to make the changes necessary to prevent such abuses in the future.
As proposed, the Department‘s standard does not ensure that legitimate claims of sexual abuse
and harassment are substantively reviewed, rather than being derailed by confusing and
unrealistic technical requirements.

Recommendation: Remove the grievance filing deadline by replacing paragraph (a)
with the following:
Under agency policy, an inmate has exhausted his or her administrative remedies
with regard to a claim of sexual abuse or sexual harassment either:
(1) When the agency makes a final decision on the merits of the report of abuse
or harassment, regardless of whether the report was made by the inmate, made
by a third party, or forwarded from an outside official or office; or
(2) When 90 days have passed since the report was made, whichever occurs
sooner.
JDI strongly believes that no survivor of sexual abuse or harassment should be subject to harsh
and arbitrary grievance deadlines. Fear, shame, and the prospect of enduring further abuse and
retaliation are powerful disincentives to filing a grievance, particularly for the many victimized
inmates who have brought prior reports that were ignored or, worse, caused them to be subjected
to punitive and/or more dangerous conditions. Limited education, lack of sufficient support
services, and the triggering of prior trauma further preclude victims from being able to overcome
these barriers within the Department‘s proposed 20-day deadline.

Even if the Department takes the unfortunate position of creating deadlines for adult inmates, it
should not do so for young survivors. Children are especially hesitant to report abuse or to use a
facility‘s grievance system, and their limited cognitive and emotional development may make it
particularly hard for them to do so. It is often difficult for young people to understand their rights
as entitlements that they can exercise without adverse consequences; they are more likely than

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adults to acquiesce to authority figures rather than assert those rights.82 Abusers often convince
young victims that if they reveal the abuse, they will get in trouble or other harm might come to
them or someone they care about. Moreover, youth are generally not held in juvenile facilities
for extended periods of time, further reducing the need for short deadlines.
Recommendation: JDI explicitly opposes the use of filing deadlines. However, if the
Department insists on retaining such requirements, it must provide a more realistic
timeframe by amending paragraph (a) as follows:
(1) The agency shall provide an inmate a minimum of 20 180 days following the
occurrence of an alleged incident of sexual abuse or sexual harassment to file a
grievance regarding such incident.
(2) The agency shall grant an extension of no less than 90 days from the deadline
for filing such a grievance when the inmate provides documentation, such as from a
medical or mental health provider or counselor, that filing a grievance within the
normal time limit was or would likely be impractical, whether due to physical or
psychological trauma arising out of an incident of sexual abuse, the resident having
been held for periods of time outside of the facility, or other circumstances
indicating impracticality. Such an extension shall be afforded retroactively to an
inmate whose grievance is filed subsequent to the normal filing deadline.
The Department relies on the BOP grievance policy as the benchmark for its proposed filing
deadline. Such a baseline will not, however, improve survivors‘ ability to pursue grievances or
access the courts. Worse still, in many systems it may result in grievance requirements becoming
more stringent. In particular, the 20-day deadline for a rape victim to file a grievance, with an
exception only for those who can provide ―documentation … that filing a grievance within the
normal time limit was or would not be practical,‖ is unacceptable.

Like survivors in the community, victimized inmates are typically in shock for months after an
assault. Most incarcerated survivors will ultimately be diagnosed with Rape Trauma Syndrome
(RTS) or Posttraumatic Stress Disorder (PTSD).83 Both conditions include an initial crisis period
82

Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. CRIM. L. &
CRIMINOLOGY 219, 229-30 (2006).
83
AMERICAN PSYCHIATRIC ASSOCIATION. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. text
revised 2000) (―DSM-IV-TR‖); MARY P KOSS & MARY R. HARVEY, THE RAPE VICTIM: CLINICAL AND COMMUNITY
INTERVENTIONS (1991); Ann Wolbert Burgess & Lynda Lytle Holmstrom, Rape Trauma Syndrome, 131 AM J.
PSYCHIATRY 981 (1974). Because of the high level of distress immediately after an assault, these diagnoses
generally are not made until individuals have experienced the full range of symptoms for a period of time.

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Docket No. OAG–131

– known as the ―acute phase‖ – during which survivors experience significant distress that
disrupts all major spheres of life. One of the defining characteristics of acute RTS and acute
PTSD is avoidant behavior – persistent avoidance of thoughts, emotions, and physical sensations
that cause the survivor to recollect the traumatic event. Filing a report and entering into the
grievance process are actions that a survivor would typically avoid while in the acute period.

The duration and severity of the symptoms will vary depending on factors such as prior trauma,
perceived level of helplessness during the traumatic event, relationship to the abuser, and level of
support received after the abuse. However, the most severe symptoms often last for three
months, while many people experience symptoms for longer than twelve months after the
traumatic event.84 These timeframes are based on experiences of victims in the free world and
assume that there are no subsequent traumatic events. As the Department's surveys indicate,
however, prisoner rape survivors are likely to be victimized repeatedly. Moreover, people with
prior victimization or mental illnesses (both of which are dramatically more prevalent among
inmates than in the community) also commonly experience unusually severe symptoms. In light
of these considerations, a deadline of 20 days to file a grievance is woefully inadequate.

The 90-day extension for victims who can document trauma does not negate the inadequacies of
that unrealistic deadline. All survivors of sexual assault can be expected to experience a level of
distress that prevents them from accessing grievance procedures and medical or mental health
care well past the 20-day deadline, and most can be expected to experience severe symptoms
until at least 90 days after the assault. A traumatized prisoner, and especially one who fears
retaliation, is as unlikely to be able to secure timely medical or mental health assistance as she or
he is to be able to file a timely grievance. In the worst systems, even victims who have the
wherewithal to request help still may not be able to access competent services in a timely
manner. In fact, sexual abuse grievances often include complaints that sufficient response
services were not provided. Thus, the ability to file a grievance becomes contingent upon the
ability to access timely assistance.

84

DSM-IV-TR, supra note 83 at 426; KOSS & HARVEY, supra note 83.

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Moreover, creating an evidence-based extension to the harsh 20-day deadline will result in
administrative challenges, and ultimately litigation, focused on the sufficiency of such evidence.
Issues will inevitably arise with respect to a range of questions, including: when must the
documentation be obtained; who is qualified to provide it; what recourse there is for an inmate
who cannot access a qualified provider in time; and how the credibility of the documentation is
established. Rather than creating a system that would generate such issues, a more effective use
of resources would be to recognize that any inmate who has been sexually victimized is likely to
have experienced some trauma. Therefore, at the very minimum, inmates should be provided
with six months to file sexual abuse claims.
Recommendation: Ensure that all timely reports are considered grievances by adding
the following paragraph to this standard:
A complaint lodged with any established reporting entity, including any staff
member or established outside reporting body, shall trigger the highest-level
grievance process in the facility.
While the proposed standard allows for a third-party complaint to begin the grievance process (if
the victimized inmate takes subsequent steps to establish that he or she wants the complaint
pursued), the Department does not make clear that an inmate‘s complaint to any staff member or
established outside reporting entity, in accordance with proposed Standard § 115.51/251/351,
must be treated as a grievance. Nor does the proposed standard ensure that sexual abuse and
harassment grievances will be kept private and afforded the highest level of review.

As the Department recognizes, multiple avenues for reporting are vitally important to
maximizing the information provided to officials and ensuring that survivors have safe and
effective ways of complaining.85 Failing to allow for each reporting mechanism to trigger a
grievance will add further confusion to already complex exhaustion requirements and further
disenfranchise sexually victimized inmates from judicial relief. Recent cases in Iowa and New
York make clear the need for this requirement to be explicit. In both states, female prisoners
relied upon agency materials encouraging them to complain to trusted entities (in Iowa a case
manager, in New York the Inspector General), which they did. In subsequent court action, the

85

See Dep‘t of Justice, Proposed Standard § 115.51/151/251/351.

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agencies successfully argued that because these reporters were not part of the official grievance
system, judicial review was procedurally barred.86

The sensitive information contained in a sexual abuse or harassment grievance needs to be
shared discretely, due to the same safety considerations at issue during an administrative and/or
criminal investigation. While many agencies have grievance systems with multiple levels –
starting with a complaint to an officer, which must be followed by additional filings for review
up the chain of command – complaints pertaining to sexual abuse or harassment, particularly if
staff members are implicated, should go directly to the warden or other high-level official with
final authority over such complaints. Such a practice would help ensure that sexual abuse and
harassment grievances are treated with the appropriate level of seriousness and attention,
consistent with the requirements for investigations.

Recommendation: Do not allow for inmates or residents to be disciplined for filing an
emergency grievance in good faith, by amending paragraph (d)(5) as follows:
An agency may only discipline an inmate for intentionally filing an emergency
grievance where no emergency exists and the agency establishes that the inmate had
no basis to believe that an emergency existed and that such grievance was filed with
the intent to deceive. Such findings must be documented in writing in the inmate’s
file.
As written, the proposed standard authorizes agencies to punish victimized inmates who
reasonably believe that an emergency exists, if the agency ultimately disagrees with the victim‘s
assessment. Such a policy will serve as a significant disincentive to reporting. Inmates are often
hesitant to report legitimate claims of abuse because they think no one will believe them,
particularly when it is their word against a staff member‘s. While the agency should be able to
sanction inmates who misuse the emergency grievance process, it should only be permitted do so
when the inmate is found to have acted in bad faith.

86

See Amador v. Andrews, No. 03 Civ. 0650, 2007 U.S. Dist. LEXIS 89648 (S.D.N.Y. Dec. 5, 2007), pending on
appeal sub nom. Amador v. Superintendents of the Department of Correctional Services, 08-2079 (2d Cir.); Tracy v.
Coover, No. 0-778/09-0931 (Iowa Ct. App. Jan. 20, 2011).

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§ 115.53/253/353 Inmate access to outside confidential support services
Providing inmates with access to trained advocates who can maintain confidentiality helps
ensure that inmates receive compassionate, skilled support services. This, in turn, encourages
victimized inmates to report sexual abuse to officials. Confidential counseling provides survivors
with a safe and trusted way to discuss the sexual violence they have experienced, deal with their
fears, develop appropriate coping skills, and understand that the abuse was not their fault.
Confidential support may also improve a survivor‘s ability to participate in an investigation and
will enhance institutional safety. A survivor who receives quality mental health care services also
is likely to encourage other victimized inmates to come forward.
Recommendation: Modify paragraph (a) to require:
access to outside victim advocates …, and by enabling reasonable communication
between inmates and these organizations, as confidential as possible, to the extent
allowed by law consistent with agency needs.
While the standard here recognizes the benefit of providing access to outside victim advocates
for emotional support services, allowing this communication to be only ―as confidential as
possible, consistent with agency security needs,‖ will dramatically reduce the effectiveness of
this provision and make it difficult for auditors to measure compliance. Worse still, this
provision will enable particularly troubled facilities that are acting in bad faith to refer to ‗agency
needs‘ whenever seeking to prevent information about abuse from reaching outside the facility.

Confidential counseling is one of the most important best practices in the community, and it is
the norm in professional and ethical standards for mental health professionals. Nonetheless, some
corrections agencies refuse to allow service providers to offer confidential counseling based on
the mistaken belief that confidential counseling will limit officials‘ ability to learn about (and
therefore address) crimes within the facility. In practice, however, survivors who are able to
share their ordeal confidentially generally feel safe and supported and, as such, are much more
likely to report abuse and be able to fully cooperate with investigations and prosecution.87

87

See Special Topics in Preventing and Responding to Prison Rape: Medical and Mental Health Care, Community
Corrections Settings, and Oversight, Hearing of the National Prison Rape Elimination Commission (Dec. 5, 2007)
(testimony of Wendy Still, Associate Director, Female Offender Programs and Services, California Dep‘t of
Corrections and Rehabilitation).

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Agencies should not be able to limit these life-saving services based on the common
misperception that confidentiality conflicts with their ‗agency needs.‘

Limitations on confidentiality that have been identified and defined by the relevant legislature
are the result of deliberation that has balanced the benefits of providing safe services, even for
victims who do not want to initiate an investigation, with the value of providing law enforcement
with timely information about ongoing crimes. ‗Agency security needs,‘ in contrast, is a vague
and broad measure. Officials may define this need differently from one another, and health care
professionals are likely to define it differently than officials. On the one hand, any instance of
wrongdoing relates to security and could therefore justify barring any confidentiality. On the
other hand, absolute confidentiality can be justified as a good security measure, as information
provided confidentially is unlikely otherwise to be shared at all. If the standard continues to limit
confidentiality based on ‗agency security needs,‘ how to determine these needs must be
explicitly defined, in advance, both to ensure that service providers (and officials) have sufficient
guidance in providing services and for auditors to be able to monitor compliance with the
standard. Ultimately, given the proven benefits of confidentiality and the professional ethical
obligations of counselors, the legal restrictions on confidentiality should be considered sufficient
for agency security needs.
Recommendation: Add sexual harassment to § 155.53(a).
As discussed above (addressing § 155.22/222/322), sexual harassment frequently escalates into
sexual abuse, and community service providers are skilled in assisting victims who have endured
all forms of unwanted sexual activity. Adding sexual harassment to this provision would help
provide inmates with the information and safety planning tools they need to address sexual
harassment.

§ 115.54/154/254/354 Third-party reporting
JDI commends the Department for recognizing the value of third-party reporting. Some inmates
may be too afraid to report abuse directly to officials, but will tell a trusted family member or
other loved one about their victimization. Allowing third parties to express their concern and

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report sexual abuse on behalf of an inmate is an important way that officials can learn about
sexual abuse in their facilities.

VII. Official Response Following Inmate Report
§ 115.61/161/261/361 Staff and agency reporting duties
The Department makes a commendable effort to balance competing claims here, accommodating
staff‘s need to share knowledge, suspicions, and information about sexual abuse with their
superiors and colleagues while also maintaining some protections against unnecessarily
disclosing sensitive information. Additional protections limiting the amount of information
shared among staff and preserving the confidential relationship between medical and mental
health staff and patients would greatly improve this standard.
Recommendation: Clarify the extent of information provided to staff who “need to
know” about a sexual report by modifying paragraph (b) as follows:
Apart from reporting to designated supervisors or officials, staff shall not reveal any
information related to a sexual abuse report to anyone other than those who need to
know, as specified in agency policy, to make treatment, investigation, and other
security and management decisions. Such personnel shall receive only the
information necessary for them to perform their job functions safely and effectively.
The Department rightly limits the sharing of information about sexual abuse reports to staff who
need this information in order to make treatment, investigation, and other security decisions.
However, 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. Rather, to maintain privacy about
this highly sensitive matter to the fullest extent possible, staff should only receive the
information necessary for them to perform their job functions.
Recommendation: Align medical and mental health staff reporting obligations to the
obligations of analogous professionals in the community by modifying paragraph (c)
as follows:
Unless otherwise precluded by In accordance with Federal, State, or local law, as
well as legal and ethical standards of their professions, medical and mental health
practitioners shall be determine whether they are 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 limits of confidentiality, at the initiation of services and each
time that the practitioner makes the determination that he or she is required or
permitted to breach confidentiality. The agency shall specify as a matter or written
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policy the extent of health providers obligation to report sexual abuse, relying on
existing professional standards and an ethics-based decision model.
JDI commends the Department for requiring medical and mental health practitioners to inform
inmates at the commencement of services of any duty to report they may have, thereby securing
informed consent before inmates disclose any information. However, the standard should allow
for greater confidentiality between inmates and medical and mental health staff, rather than
holding health professionals to reporting obligations that are similar to those of other staff.

In the community, confidentiality is recognized as an important health care practice, as it
encourages full disclosure of information that may be relevant to treatment. While confidentiality
can be breached to share information that places the patient or others at risk of serious harm,
information about prior crimes is generally not disclosed, except when the local law requires
certain injuries resulting from criminal activity, such as gun or knife wounds, to be disclosed to
law enforcement.

The issue of whether medical and mental health practitioners in corrections settings should be
required to report sexual abuse (apart from when such reports are required by law) is a complex
one that remains unresolved in the field.88 Corrections health practitioners have to consider
safety and security issues beyond those facing practitioners in the community, but such
considerations should not preclude treating information confidentially simply because officials
may prefer to receive it. If the confidentiality of medical and mental health communications is
not protected, victimized inmates will be far less likely to seek treatment.

The leading standards for corrections health care recommend confidentiality in prison counseling
sessions, unless the disclosed information concerns a contemplated crime, indicates clear and
imminent danger or is required to be shared by court order.89 While some sexual abuse of
88

See, e.g.,Emil R. Pinta, Decisions to Breach Confidentiality When Prisoners Report Violations of Institutional
Rules, 37 J. AM. ACAD. PSYCH. L. 150 (2009), available at http://www.jaapl.org/cgi/content/full/37/2/150
(considering whether to disclose information about an inmate having sex with a staff member to be a ―grayer area‖).
89
See National Commission on Correctional Health Care, Standards for Mental Health Services in Correctional
Facilities (2008); American Psychiatric Association, Task Force to Revise the APA Guidelines on Psychiatric
Services in Jails and Prisons: Psychiatric Services in Jails and Prisons (2000); see also American Bar Association,
supra note 46, Standard 23-6.8.

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prisoners may create a clear and imminent danger, in light of the frequent targeting of prior
victims, far from all disclosures of abuse will fall into this category. Agencies should be required
to create appropriate policies that balance these concerns, in accordance with relevant state law
and local practices.

§ 115.62/162/262/362 Reporting to other confinement facilities
Many victimized inmates will wait until they have been transferred to another facility before
reporting that they have been sexually abused by a staff member or another inmate. The
Department wisely requires the facility receiving the report to transmit this information to the
facility where the abuse occurred. However, the time frame given for providing the information
conflicts with the requirements of § 115.71/171/271/371, to conduct prompt investigations, and
with those of paragraph (b) of this provision, to ensure that an allegation is investigated in
accordance with the standards.
Recommendation: Ensure that prompt investigations occur by amending paragraph (a)
as follows:
Within 14 days of Immediately 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 in writing the head of the facility or appropriate
central office of the agency where the alleged abuse occurred. Verbal notice shall be
provided within one business day, followed by notice in writing within three business
days.
Law enforcement agencies in the community often have to cross-report information because a
crime occurred in multiple jurisdictions or because of considerable distance between the place
where the crime occurred and where the victim currently resides. Such reporting is generally
required to happen immediately, to allow for prompt investigations.90 Placing similar time
restrictions on cross-reporting among corrections facilities will help ensure that all sexual abuse
reports are treated with the same level of urgency regardless of whether the abuse occurred at the
reporting facility.

90

See, e.g., CAL. PENAL CODE § 11165.9 (requiring verbal notification immediately and written notification within
three days).

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Docket No. OAG–131

§ 115.63/163/263/363 Staff first responder duties
As the Department acknowledges, first responders need specific guidance on what actions to take
to assist in the subsequent investigation and to secure any potential evidence. In most instances,
however, these individuals are not equipped to determine whether the report was made ―within a
time period that still allows for the collection of physical evidence.‖
Recommendation: Amend paragraph (a) as follows:
Upon learning that an inmate was sexually abused within a time period that still
allows for the collection of physical evidence , regardless of when the abuse
occurred, the first security staff member to respond to the report shall be required
to:
(1) Separate the alleged victim and perpetrator;
(2) Seal and preserve any crime scene, keeping in mind the possibility of multiple
crime scenes, until a trained investigator can determine if physical evidence may
be present; and
(3) Request the victim not to take any actions that could destroy physical evidence,
including washing, brushing teeth, changing clothes, urinating, defecating,
smoking, drinking, or eating, until a trained forensic medical professional has
been consulted.
The science of collecting sexual assault evidence is ever-changing and advancing, extending
timeframes in which evidence can still be collected. Many reports of prisoner rape are delayed
disclosures, requiring agencies to take a proactive approach to sexual assault investigations.
Physical evidence might be in the form of clothing, documentable injuries, or notes written
between the perpetrator and victim that persist well after 120 hours. JDI has heard from survivors
who have preserved physical evidence in their cells for months or years.91 Regardless of how
much time has passed, the initial assumption must always be that evidence might be available.

§ 115.64/164/264/364 Coordinated response
Coordinated responses to sexual abuse in detention, such as institution-based sexual assault
response teams (SARTs), ensure that all relevant corrections staff is seamlessly engaged.

91

See, e.g., The Cost of Victimization: Why Our Nation Must Confront Prison Rape, Hearing of the National Prison
Rape Elimination Commission (June 14, 2005) (testimony of Marilyn Shirley).

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Leading researchers have consistently found that a coordinated response is beneficial to
survivors.92 The Department wisely encourages this best practice.
Recommendation: Require agencies to develop an institutional plan for a coordinated
response by amending this provision as follows:
The facility shall develop an 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, using communitybased sexual assault response teams (SARTs) as a model.
The presence of a coordinated team that responds immediately and professionally following a
report of sexual assault is a proven mechanism for encouraging reports and securing the victim‘s
cooperation with an investigation. A number of state corrections departments, including those in
California, Oregon, and Pennsylvania, have developed institution-based SARTs and have seen
first-hand the value of this model for staff and inmates alike. SART members report that they
feel more empowered to respond to sexual abuse reports because they are well trained and work
as a team. Their timely and seamless responses to sexual abuse reports allow them to serve
incarcerated survivors effectively and to fulfill their facilities‘ zero-tolerance policy on sexual
abuse.
Question 25: Does this standard provide sufficient guidance as to how compliance would
be measured? If not, how should it be revised?
In addition to helping in the formalization of a best practice, requiring a written institutional plan
will create a measurable deliverable that can assist with compliance monitoring. This plan should
include a list of staff positions that make up the response team and the duties of response team
members, which the monitor can confirm upon visits to the facility and/or in conversation with
relevant staff.

92

PATRICIA YANCEY MARTIN, RAPE WORK: VICTIMS, GENDER, AND EMOTIONS IN ORGANIZATIONAL AND
COMMUNITY CONTEXT (2005); Rebecca Campbell, The Community Response to Rape: Victims' Experiences with the
Legal, Medical, and Mental Health Systems, 26 AM. J. COMMUNITY PSYCH. 355 (1998).

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Standard 115.65/165/265/365 Agency protection against retaliation
Recommendation: Require a policy detailing who should conduct the monitoring and
how monitoring will take place by amending paragraph (a) as follows:
The agency shall protect all inmates and staff who report sexual abuse or sexual
harassment or cooperate with sexual abuse or sexual harassment investigations
from retaliation by other inmates or staff by establishing a policy that prohibits
retaliation, designates which staff members or departments are charged with
monitoring retaliation, and requires that the inmate or staff member at risk of
retaliation be interviewed regularly during the monitoring period.
The Department laudably requires agencies to address retaliation through concrete measures and
ongoing monitoring. By formalizing this practice into a written policy that specifies who will
conduct the monitoring and mandates that these individuals gather information from the person
at risk of retaliation, the Department can increase the likelihood that this monitoring is conducted
effectively. A written policy will also assist the auditor in measuring compliance with this
provision.
Question 26: Should the standard be further refined to provide additional guidance
regarding when continuing monitoring is warranted, or is the current language
sufficient?
Monitoring should continue until no new incidents of retaliation have occurred for 90 days.
Retaliation may take many forms, some subtle and some that would constitute new criminal acts.
If retaliation rises to the level of additional abuse, or if the inmate or staff member expresses a
fear for her or his safety, that should be considered a new event, and a new 90-day monitoring
period should commence after corrective actions have been taken.

§ 115.66/366 Post-allegation protective custody
Post-allegation protective custody is just as problematic as involuntary protective custody – it
isolates, and essentially punishes, individuals based on their vulnerability to, and willingness to
report, abuse. This provision mandates that post-allegation protective custody meet the
requirements of § 115.43/115.342. The modifications recommended for that standard above are
equally applicable here.

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VIII. Investigations
§ 115.71/171/271/371 Criminal and administrative agency investigations
Investigations are a critical component of preventing and responding to sexual abuse. Sound
investigative policies and practices ensure that perpetrators are held accountable, assure victims
that their complaints will be taken seriously, and set a tone that underscores the zero-tolerance
policy to deter further abuse. While the Department‘s standards includes key provisions
regarding the collection and assessment of evidence, the coordination of criminal and
administrative investigations, and the creation and retention of records, further guidance is
needed to ensure that agencies conduct investigations in a thorough and timely manner.
Recommendation: Amend paragraph (a) as follows:
When the agency conducts its own investigations into allegations of sexual abuse, it
shall initiate a preliminary investigation immediately, by assessing the availability of
physical evidence and determining what crime is alleged, where it occurred, and
who was involved or a witness. The agency shall complete the investigation do so
promptly, thoroughly and objectively, using investigators who have received special
training in sexual abuse investigations pursuant to 115.34, and shall investigate all
allegations of sexual abuse, including third-party and anonymous reports.
Given the nature of physical evidence, the potential for further trauma to the victim, and the cost
to facilities of separating witnesses prior to their interviews, it is essential that an investigation
begins immediately and is completed promptly. The precise speed with which this must occur
will depend on the circumstances of the case, such as the length of time between the assault and
the report, and the number of inmate and staff witnesses. Conducting a preliminary investigation
right away, to determine the specific allegations and what evidence may be available, will also
allow subsequent investigations and actions to be undertaken as urgently as necessary.
Recommendation: Add the following sentence to paragraph (b):
The agency shall base its investigation protocol on available, accepted sexual assault
investigation protocols developed by law enforcement agencies within its state
and/or jurisdiction.
In the evidence protocol and forensic medical exams provision (§ 115.21/112/212), the
Department rightly requires agencies to rely upon the National Protocol for Sexual Assault

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Medical Forensic Examinations, Adults/Adolescents when conducting forensic exams.93
Similarly, the Department should require agencies to rely on established guidelines for their
investigations protocols. While there is no comparable federal protocol for investigations, as
there is for forensic examinations, many states have models that can be relied upon and require
only slight modifications to account for the detention setting.94
Recommendation: Amend paragraph (c) as follows:
When the quality of evidence appears to support criminal prosecution, tThe agency
shall conduct compelled interviews only after consulting with prosecutors as (1) to
determine whether or not the quality of evidence appears to support criminal
prosecution; and (2) prior to conducting compelled interviews, to determine if
compelled interviews may be an obstacle for subsequent criminal prosecution. All
investigations must be completed and documented, and a case summary submitted to
the prosecuting attorney for review.
The Department is correct to stipulate that agency investigators must consult with prosecutors
prior to conducting compelled interviews. While facility investigators should be qualified to
gather and assess information to determine whether the alleged abuse occurred, they generally do
not have the qualifications to determine whether the quality of evidence meets the threshold
needed for prosecution. Investigators should consult with prosecutors to determine whether the
quality of evidence appears to support criminal prosecution. In addition, the data and conclusion
of the investigation should be provided to prosecutors for review – both to make a final
determination about criminal action in that case and as quality assurance to ensure that in-house
investigations are conducted in a manner that encourages criminal prosecution where
appropriate.
Recommendation: Amend paragraph (d) to add the following sentence:
Polygraph testing for inmates who report sexual harassment and abuse is
prohibited.
Polygraph testing often yields inaccurate results and can be traumatizing to a survivor, crippling
the effectiveness of an investigation, and damaging the rapport between an investigator and a
93

As discussed in the section on that provision, this protocol is not appropriate for pre-pubescent youth and
therefore should not be relied upon exclusively in juvenile facilities.
94
See, e.g., Executive Office of Public Safety and Security, Commonwealth of Massachusetts, Adult Sexual Assault
Law Enforcement Guidelines (2009), available at http://www.mass.gov/Eeops/docs/mptc/2009_SA_Final_6-909.pdf.

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survivor. Given their significant flaws, it is not surprising that polygraph test results are often
deemed inadmissible in court, and that the Department prohibits states receiving grants under the
STOP (Services, Training, Officers, Prosecutors) Violence Against Women Formula Grant
Program (VAWA STOP Program) from using polygraph testing for victims of sexual violence.95
The PREA standards should conform to the limitations imposed for VAWA STOP grants.
Recommendation: modify paragraph (k) to require a written plan for coordinating
investigations related to the same abuse:
(k) When outside agencies investigate sexual abuse, the facility shall cooperate with
outside investigators and shall endeavor to remain informed about the progress of
the investigation develop a comprehensive, written plan, including a memorandum
of understanding, to guide the coordination of administrative and criminal
investigations. The plan shall outline how the two entities' investigators will
cooperate around timing, communication, and information sharing throughout and
at the conclusion of both investigations.
Administrative investigations and criminal investigations may need to take place within the same
timeframes and, in such cases, require careful coordination. By developing a plan with outside
police agencies, where applicable, around timing, communication, and information sharing, both
the administrative and criminal investigations will be more effective. Formalizing this plan in
policy and/or a memorandum of understanding with the police agency responsible for
investigations will ensure that both agencies have a thorough understanding of their respective
roles. Such clarity is particularly important as an administrative investigation might conclude
before a decision has been made about whether to prosecute, and the outcome of either
investigation could have an impact on determinations made in the other.
Recommendation: Add sexual harassment to this standard.
This standard should include investigations into allegations of sexual harassment, to ensure that
such claims are taken seriously and to conform to § 115.23/123/223/323.

§ 115.72/172/272/372 Evidentiary standard for administrative investigations
JDI strongly supports establishing that the evidentiary standard for substantiating administrative
investigations shall not be higher than the preponderance of the evidence.
95

42 U.S.C. § 3796gg-8.

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§ 115.73/273/373 Reporting to inmates
JDI commends the Department for requiring that certain information be shared with incarcerated
survivors when the investigation into their report of sexual abuse has been concluded.
Notification of the outcome of an investigation provides victims with closure and peace of mind,
and the knowledge that their allegations were taken seriously and investigated thoroughly. The
standard should be further strengthened by requiring similar notifications when the perpetrator is
another inmate.
Recommendation: Add paragraph (d) to this provision, with the following language:
Following an inmate’s allegation that another inmate(s) has committed sexual
abuse, the agency shall subsequently inform the inmate whenever:
(1) The inmate perpetrator(s) is no longer housed in the inmate’s unit or serving
on the inmate’s work assignment, if applicable;
(2) The inmate perpetrator(s) has been transferred to another facility;
(3) The inmate perpetrator(s) has been indicted on a charge related to the sexual
abuse;
(4) The inmate perpetrator(s) has been convicted on a charge related to the sexual
abuse.
Like victims of staff sexual misconduct, inmates who have been sexually abused by other
inmates will benefit greatly from knowing that the perpetrator is no longer at the facility and that
the abuse is seriously addressed through criminal prosecution. While agencies have legitimate
reasons for not providing inmates with many details about the housing and status of other
individuals, sharing this basic information will not negatively impact security and may be crucial
to a victim‘s ability to heal and feel safe in the facility.

IX. Discipline
§ 115.76/176/276/376 Disciplinary sanctions for staff
Recommendation: Amend paragraph (b) such that:
Termination shall be the presumptive disciplinary sanction for staff who have
engaged in sexual abuse touching.
Any type of sexual abuse by staff is serious, harmful, and inexcusable. The Department‘s
proposed standard creates a presumptive sanction for some forms of staff sexual abuse, but not

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for indecent exposure or voyeurism. Employees found to have committed these forms of abuse
should also be subject to a presumption of termination, however. In addition to the potential
security breaches, triggering of trauma, and other harm that may result from staff exposing
themselves or forcing others to expose themselves, indecent exposure and voyeurism are known
precursors to acts of sexually abusive touching or rape. Retaining employees found to have
committed these forms of sexual abuse puts inmates at risk of further and escalating
victimization, and sends a message that the agency condones such abusive behavior—it is
completely contrary to the requirement that facilities must have zero-tolerance of sexual abuse.

§ 115.77/277/377 Disciplinary sanctions for inmates
The Department rightly prohibits facilities from treating unsubstantiated good faith allegations of
sexual abuse as false reports or lies. Gathering sufficient evidence to substantiate a report is
exceptionally challenging and, as a result, the majority of allegations end up unsubstantiated.96
Physical evidence may not exist, inmate witnesses may be released, transferred, or uncooperative
and, in instances of staff sexual misconduct, officials may withhold information to protect
themselves or their colleagues. As the standard acknowledges, inmates should not be punished
for these evidentiary barriers if their allegations are made in good faith.

JDI also commends the Department for recognizing that inmates cannot consent to sexual
activity with staff, but that consensual sexual activity between inmates is not sexual abuse. Too
often, inmates suffer disciplinary action as a result of staff-on-inmate sexual abuse, when in fact
staff members need to be the ones held accountable for such professional breaches. Punishing
inmates for sexual contact with staff sends a dangerous message that staff-on-inmate sexual
abuse is not taken seriously. It also serves as a serious deterrent to reporting abuse and suggests
to inmates who are sexually abused by staff that it is their fault, disregarding the inherent power
differential between staff and inmates. While inmates cannot legally consent to sexual contact
with staff, consensual sexual activity between inmates is possible. Regardless of whether
disciplinary action is taken in response to such activity, facilities should not waste limited

96

GUERINO & BECK, supra note 27.

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resources to investigate and file reports of abuse in response to consensual sexual activity
between inmates that would not be considered sexual abuse in any other setting.
Recommendation: Prevent staff perpetrators of sexual abuse from retaliating against
reporting inmates by amending paragraph (e) as follows:
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 and that the inmate
used force or threat of force against the staff member.
While sexual assaults against staff members by inmates always should be taken seriously, as
written this standard allows a staff perpetrator to threaten an inmate or otherwise retaliate against
a legitimate report of staff sexual misconduct by claiming that she or he did not consent to the
activity. Requiring a finding of force or threat of force before an inmate is punished recognizes
the limited situations in which an inmate can manipulate the power dynamic to force staff to
engage in sexual activity and provides a clear evidentiary standard for determining staff
victimization.
Recommendation: Add the following paragraph to § 115.377:
In cases involving residents who engage in voluntary, though legally nonconsensual, sexual conduct with other residents, the disciplinary process shall take
into account the voluntary nature of this conduct as a mitigating factor when
determining what type of sanction, if any, should be imposed.
Facilities need specific guidance on how to handle the disciplining of residents who engage in
voluntary sexual conduct with other residents that, due to the ages of those involved, is not
legally consensual. Without such guidance, facilities may fail to consider the voluntary nature of
such conduct and harshly discipline these residents, often based on homophobia or bias.
Specifically, officials may use the standards to target LGBTI youth for harsh sanctions and even
prosecution for engaging in sexual contact with similarly aged residents that is voluntary, but
technically nonconsensual under state law. Unlike sexual activity between inmates and staff – in
which there is an inherent power differential between the person locked up and the person
supervising him or her – residents who are similar in age, but one or both are younger than the
legal age of consent, are not faced with a power differential such that sexual conduct between
two willing youth would be inherently abusive.

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When sexual contact between similarly aged youth is voluntary but legally non-consensual due
to a state‘s age of consent laws, the voluntary nature of the contact should be taken into account
in any disciplinary process. Unfortunately, many facilities fail to consider this. According to a
report by the BJS, in substantiated cases of reported sexual abuse, youth designated as
perpetrators of voluntary sexual contacts with other youth often received harsher sanctions than
those found to be perpetrators of abusive sexual contacts.97 Facilities need additional guidance to
discourage the use of harsh sanctions to punish youth who engage in voluntary, but legally nonconsensual, sexual contact. Specifically, facilities should not treat these youth as sexually
aggressive, violent or deviant, or attempt to ―change‖ their sexual orientation. In addition,
interventions for ―victims‖ and ―perpetrators‖ of voluntary sexual contact should not be more
punitive than those for sexual contact that is forced, aggressive, or violent.

X. Medical and Mental Health Care
§ 115.81/381 Medical and mental health screenings
While this standard is entitled ―medical and mental health screening,‖ the Department has greatly
weakened the Commission‘s recommendations, removing the requirement that these screenings
be conducted by medical and mental health staff. As a result, this provision is, at best, redundant
and, at least in the jail context, contradictory to the screening provision (§ 115.41/341).
Recommendation: Require that medical or mental health practitioners ask about
sexual victimization and abusiveness by replacing paragraph (a) with the following:
In facilities where medical or mental health practitioners conduct medical and
mental health screenings as part of the intake or classification process, these
practitioners shall ask inmates about prior sexual victimization and abusiveness
during intake or classification screenings.
The prisons and jails standard on screening for risk of victimization and abusiveness (§ 115.41)
and the juvenile standard on obtaining information from residents (§ 115.341) already require
facilities to ask during intake and screening processes about the factors known to heighten the
risk of vulnerability and sexual abusiveness, including history of sexual victimization and
97

ALLEN J. BECK ET AL., BUREAU OF JUSTICE STATISTICS, SEXUAL VIOLENCE REPORTED BY JUVENILE
CORRECTIONAL AUTHORITIES, 2005-06 11 (July 2008), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/svrjca0506.pdf. For example, ―perpetrators‖ of voluntary sexual contact
were more than twice as likely to be placed in solitary confinement (25 percent) or referred for prosecution (27
percent) than perpetrators of abusive sexual contact (12 percent and 13 percent respectively). Id.

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abusiveness. Reiterating those two factors here, without any specification about who should be
asking these questions, invites confusion as to why these factors, and not the others in the earlier
provision, are emphasized in this way.

Medical and mental health professionals are the best equipped to ask sensitive but necessary
questions about past victimization and abusiveness. These practitioners are accustomed to
obtaining personal information from patients, are able to identify physical or emotional injuries
that may accompany such disclosures, and are in the best position to assess what treatment
services may be needed.

The tremendous value of having medical and mental health practitioners conduct these inquiries
should outweigh any marginal costs incurred by this obligation.98 This is particularly true for
prisons and large jails that employ or contract with full-time health practitioners. Agencies that
regularly conduct medical and mental health screenings as part of their classification process
have no legitimate basis to exclude these questions from that process.
Recommendation: Require that medical and mental health screenings in jails, like
those in prisons, ask about sexual abusiveness and sexual victimization. In addition to
adopting the language for paragraph (a) as detailed above,99 by deleting paragraphs (c)
and (d), and amending paragraph (b) as follows:
(b) If an prisoner inmate discloses sexual victimization or abusiveness, whether it
occurred in the an institutional setting or in the community, staff shall ensure that
the inmate is offered a follow-up reception with a medical or mental health
practitioner within 14 days of the intake screening.
The need for officials to know about an inmate‘s history of abusiveness is as important in the jail
setting as it is in prisons. To house people awaiting trial and serving shorter sentences safely, jail
administrators need to separate likely victims from likely perpetrators. Such determinations can
only be made if information about victimization and abusiveness is obtained. The Department‘s
decision to limit the inquiry that jails must make is dangerous and arbitrary. As noted above,

98

IRIA, supra note 48, at 59. Notably, while relying on cost to justify this change, the Department also
acknowledges that the Booz Allen Hamilton study considered the costs for this provision to be negligible. Id.
99
If the Department does not adopt JDI‘s proposed language, then paragraph (a) should be amended to read ―All
facilities prisons shall ask inmates about prior sexual victimization and abusiveness during intake or classification
screenings.‖

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removing any inquiry about abusiveness for jails, while retaining it for prisons, is particularly
hard to reconcile with § 115.41, which rightly requires both types of facilities to screen for these
and other factors.

§ 115.82/282/382 Access to emergency medical and mental health services
JDI applauds the Department for preserving the requirement that timely, unimpeded access to
emergency treatment and crisis intervention services be made available free of charge to victims
of sexual abuse in detention, regardless of whether the victim names the abuser, and for further
requiring that victims be given timely information about and access to pregnancy-related medical
services and prophylaxis for sexually transmitted infections.

These basic measures will ensure the well-being of prisoner rape survivors and address the
significant public health concerns that arise from: untreated medical and psychiatric conditions;
inability to access pregnancy-related services; and the spread of sexually transmitted infections.

§ 115.83/283/383 Ongoing medical and mental health care
As with the preceding standard, JDI applauds the Department for ensuring that female survivors
of rape in detention receive access to pregnancy tests and timely information and access to
pregnancy-related services. Requiring a mental health evaluation of known abusers is also
commendable, although this assessment and treatment should not be delayed for 60 days.
Recommendation: Reduce the time period for evaluation and treatment of known
inmate abusers in adult facilities by amending § 115.83/283(d) as follows:
All prisons shall conduct a mental health evaluation of all known inmate abusers
within 60 14 days of learning of such abuse history and offer treatment when
deemed appropriate by qualified mental health practitioners.
Reduce the time period for evaluation and treatment of known resident abusers in
juvenile facilities by amending § 115.383(d) as follows:
The facility shall conduct a mental health evaluation of all known resident abusers
within 60 7 days of learning of such abuse history and offer treatment when deemed
appropriate by qualified mental health practitioners.
In standard § 115.81/381 (b), agencies are given up to 14 days to provide inmates and residents
who disclose sexual abusiveness access to a mental health practitioner. There is no justification
for such a lengthy delay in this provision. In response to a recent incident of sexual assault in
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particular, abusiveness needs to be addressed promptly, with appropriate treatment offered as
soon as possible.

In juvenile facilities, the timeframe for conducting an assessment should be even shorter. The
juvenile justice system was designed to provide a rehabilitative and therapeutic environment for
youth; this mandate cannot be met if youth must wait two months for follow-up evaluations after
disclosures of abusiveness, and even longer for treatment. Furthermore, juvenile residents are
usually held in a facility for a significantly shorter period of time than adult inmates. The
National Commission on Correctional Healthcare (NCCHC) recommends that mental health
assessments be conducted for new residents as soon as possible, but no later than seven calendar
days after admission to a facility.100 A seven-day window for assessing known resident abusers
in juvenile facilities would be comparable to the NCCHC standards and more appropriate than
the 60-day window proposed in the Department‘s draft standard.
Question 27: Does the standard that requires known abusers to receive a mental health
evaluation within 60 days of learning the abuse has occurred provide adequate guidance
regarding the scope of treatment that subsequently must be offered to such abusers? If
not, how should it be revised?
The proposed standard appropriately leaves open the scope of treatment to be offered to abusers.
Currently, there is no validated treatment program for abusers that is uniformly recognized as a
best practice. Sex offender treatment programs in the community have had limited success rates
and minimal proof of effectiveness. Given the state of the field, treatment for known incarcerated
abusers will have to be based on an individualized assessment and treatment plan that conforms
to local practices. Therefore, JDI believes that the Department appropriately defers to the
expertise of the practitioners at the facility.

100

National Commission on Correctional Healthcare, Standards for Health Services in Juvenile Detention and
Confinement Facilities, § Y-E-03 (2004); see also id. at § Y-G-09 (―Immediate response to an act of sexual assault
is of the utmost importance.‖).

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XI. Data Collection
§ 115.86/186/286/386 Sexual abuse incident reviews
The Department laudably requires incident review teams to use information from past sexual
abuse investigations in order to propose ways of preventing future incidents. The proposed
standard requires these teams to consider many important issues, including policies and
procedures, staffing levels, monitoring technology, and limitations of the facility‘s physical
plant. Specifying additional issues to be considered would further strengthen this provision.
Recommendation: Add “gender identity” to (c)(2), and the following provisions to that
paragraph:
(6) Consider how additional or enhanced staff training opportunities could have
prevented abuse and how it can prevent future abuse;
(7) Examine any barriers to reporting or filing grievances;
(8) Incorporate input from inmate victims and witnesses on how to improve the
investigation and response processes; and
(9) Prepare a report of its findings and any recommendations for improvement and
submit such report to the facility head and PREA coordinator, if any.
The Department‘s draft standard requires facilities to consider a number of factors related to the
perpetrator and victim, including sexual orientation. The final standard should also include
consideration of gender identity in this list. In addition, facilities should learn from serious
incidents such as sexual misconduct, and incorporate lessons learned to enhance or add trainings
aimed at preventing, detecting, and responding to incidents. Barriers to reporting or filing
grievances should also be considered. Finally, the incident review should include input from
victims and witnesses on how to improve the investigation and response processes, as they may
have particularly valuable insights as to how to prevent future misconduct.
Recommendation: Add the following as paragraph (d):
After receiving the report, the facility head and PREA coordinator must determine
which of the recommendations to carry out, and document benchmarks and a
timeline for doing so as an addendum to the report.
To ensure that the results of an incident review translate into action, and to assist the auditor in
measuring compliance with this provision, a plan of action should be documented that includes
measurable benchmarks and a timeline.

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Recommendation: Add sexual harassment to paragraphs (a) and (c)(1).
As noted previously, sexual harassment often serves as a precursor to sexual abuse. Agencies
should review incidents of harassment as part of their quality assurance process.
§ 115.87/187/287/387 Data collection
JDI commends the Department for retaining the data collection provisions recommended by the
Commission and requiring agencies to provide the prior year‘s data to the Department upon
request. Data collection should also encompass sexual harassment allegations.

§ 115.88/188/288/388 Data review for corrective action
Collectively, the data collection provisions ensure that agencies gather the information necessary
to learn about problems. The draft standards also recognize that agencies must take appropriate
action based on that information. As written, though, the draft standard on corrective action only
requires agencies to review aggregate data.
Recommendation: Require corrective action based on data incident reviews by
amending paragraph (a) as follows:
(a) Annually and after significant incidents, Tthe agency shall review data and
analyses collected and aggregated pursuant to § 115.86 and § 115.87 in order to
assess and improve the effectiveness of its sexual abuse prevention, detection, and
response policies, practices, and training, including: …
If agencies are only required to compile aggregate data on an annual basis, they may miss critical
opportunities to implement changes to practices, policies, staffing, training or monitoring.
Indeed, it is difficult to imagine how facilities could ―tak[e] corrective action on an ongoing
basis,‖ as the proposed standard currently requires, without reviewing individual incidents as
they arise. The revised language ensures that facilities take corrective action on an ongoing basis,
reviewing both individual and aggregate data.

§ 115.89 Data storage, publication, and destruction
JDI supports the retention of the provisions regarding data storage, publication, and destruction.

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XII. Audits
§ 115.93/193/293/393 Audits
External scrutiny, and the transparency and accountability it brings, are vitally important to the
strength of any public institution – and corrections facilities are no exception. Sound oversight,
conducted by a qualified independent entity, can identify systemic problems and offer solutions.
The Department faces the challenge of establishing regulations that will successfully translate the
oversight function of the standards into policy and practice across the country. Recognizing this
important challenge, a number of advocacy organizations with experience in prison oversight,
investigations of sexual abuse in detention, victims‘ rights, and community responses to sexual
violence,101 came together during the Department‘s public comment period to study this issue
and suggest a practical and effective model to the Department.

The principle guiding this group was that a realistic, cost-effective monitoring system is critical
to the standards‘ overall effectiveness and impact. Outside audits are needed to provide a
credible, objective assessment of a facility‘s safety, and to identify problems that may be more
readily apparent to an outsider than to an official working within the corrections system.
Thorough audits will help prevent abuse and lead to safe facilities, more effective prison
management, and, ultimately, lower fiscal and human costs to the community.
Recommendation: Amend the audit provision as follows:
(a) Agencies shall ensure that all facilities are audited on a triennial basis by an
independent and qualified auditing body.
(1) An audit shall be considered independent if it is conducted by:(1) A a
correctional monitoring body that is not part of the agency but that is part of, or
authorized by, the relevant State or local government; or (2) An auditing entity
that is within the agency but separate from its normal chain of command, such as
an inspector general or ombudsperson who reports directly to the agency head or
to the agency’s governing board; or (3) O other outside individuals with relevant
experience.

101

The following organizations, all members of JDI‘s Raising the Bar Coalition, formed the coalition‘s oversight
working group to develop these recommendations: JDI; the ACLU National Prison Project; the Correctional
Association of New York; Pennsylvania Coalition Against Rape; Prison Legal News; and the Washington Lawyers
Committee for Civil and Urban Affairs. The Raising the Bar Coalition advocates for the U.S. Attorney General‘s
full and swift adoption of the recommended national standards for the prevention, detection, response, and
monitoring of sexual abuse in U.S. detention facilities, as proposed by the National Prison Rape Elimination
Commission.

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(2) To be qualified, the auditing entity must have experience and/or adequate
training in corrections, the dynamics of sexual violence, and the investigation of
sexual abuse, including interviewing victims.
(b) No audit may be conducted by an auditor who has received financial
compensation from the agency being audited within the three years prior to the
agency’s retention of the auditor.
(c) The agency shall not employ, contract with, or otherwise financially compensate
the auditor for three years subsequent to the agency’s retention of the auditor, with
the exception of contracting for subsequent audits.
(d) All auditors shall be certified by the Department of Justice to conduct such
audits, and shall be re-certified every three years.
(e) The Department of Justice shall prescribe methods governing the conduct of
such audits, including provisions for reasonable inspections of facilities, review of
documents, and interviews of staff and inmates. The Department of Justice also
shall prescribe the minimum qualifications for auditors that incorporate sufficient
training and/or expertise in corrections, the dynamics of sexual violence in
detention, and the investigation of sexual abuse, including interviewing traumatized
individuals.
(f) The agency shall enable the auditor to make unannounced visits; enter and tour
all areas of all facilities, including contract facilities; review documents; and
conduct private, confidential interviews with staff and inmates, as deemed
appropriate by the auditor, to conduct a comprehensive audit. The auditor must
have access to all documents and any staff member or inmate, including inmates
held in protective custody or solitary confinement.
(g) During each triennial auditing cycle, every facility shall be visited and have its
policies, records, data, and other documents assessed for compliance with the
standards; however, the auditor may conduct more frequent audits of any facility
when the auditor determines that a visit is necessary as follow-up to a previous
audit, has concerns about compliance with the standards, or based upon a request
for assistance from the facility. All facilities must ensure that staff and inmates are
aware of the audit process and have reasonable means to contact the auditor
confidentially.
(h) The agency shall ensure that the auditor’s final report is provided to the
Department of Justice, made available to staff and inmates, and published on the
agency’s website if it has one or is otherwise made readily available to the public.
This model places central importance on realistic, cost-effective strategies to ensure that every
facility is monitored. The Department should endorse triennial audits of every facility as
proposed by the Commission. Site visits are essential for an auditor meaningfully to assess
whether complaints of sexual abuse are being appropriately filed and facilities are properly
documenting, investigating, and responding to acts of sexual abuse. JDI feels strongly that the
Department must mandate triennial site visits to all facilities. If, however, the Department
chooses to disregard that recommendation, it should at the very least establish a tiered system by
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which at least every three years all facilities are assessed for compliance with the standards
through a review of policies, records, data and other documents, and contacts with facility
administrators, staff, and inmates. Then the standard should also require that a select number of
facilities – chosen by the auditor for cause and also by random selection – are visited for more
comprehensive auditing in an ongoing manner.

These basic reviews and visits must be performed by an entity that is structurally external to the
corrections agency being audited, and by individuals who have no recent relationship with the
agency. The auditors must also have a victim-centered approach that incorporates expertise in
both corrections and sexual violence.

Aside from suggesting that the Department will eventually establish guidelines for determining
who may become a certified auditor and how PREA audits should be conducted, the proposed
standard does not address these issues in any detail. Auditor certification and recertification must
ensure that the monitors are sufficiently qualified and independent. Government entities should
only be considered independent if they are truly separate from the agency being audited – and do
not answer to the agency head for funding or other resources. Expertise in addressing sexual
violence, and especially in working with survivors of sexual victimization, is just as important as
expertise in corrections and, similarly, cannot be fully learned in a brief training course. Audit
teams should include a community member, to add to the integrity and accountability of the
audits. This could be a professional from a partnering organization (such as the local rape crisis
center or state sexual assault coalition) or a volunteer with appropriate background and
commitment. Further, members of the audit teams must be aware of relevant legal requirements,
including civil rights law.

PREA monitors must have free and unfettered access to all facilities. Such access must include
the right to make unannounced visits and to enter and tour all areas of any facility, including
contract facilities.102 Unannounced visits are the cornerstone of effective corrections monitoring.
Such access does not mean that visits will be inconsistent with security needs or that a very brief
102

These requirements are also required in the ABA‘s external monitoring standards. See American Bar
Association, supra note 46, at Standard 23-11(b).

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wait for auditors to comply with security demands, such as facility counts, may not occur.
However, as the American Bar Association‘s Standards for the Treatment of Prisoners note:
―security concerns do not provide a justification for disallowing unannounced inspections, nor do
rationales related to convenience of correctional staff.‖103 Auditors must also be permitted to
review all documents, be able to copy any documents (including documents related to pending
investigations), and take those copies off-site for review. Similarly, they should be able to
conduct private, confidential interviews with staff and prisoners, including prisoners in
protective custody or solitary confinement.104

The agency must ensure that there are accessible mechanisms for inmates and staff to engage in
confidential communication with the auditor (both on-site and via mail/telephone), and that
mechanisms are in place to ward off retaliation for contacting or communicating with the
auditor. In addition to making themselves available to staff and inmates, auditors must publicly
advertise their work and solicit input from the community before and after facility visits as well
as in response to their reports.

In each audit, the monitor should be responsible for independently verifying that the facility is
making reasonable progress toward achieving compliance with the PREA standards and
thereafter maintaining such compliance. Each monitor‘s report shall describe the steps taken to
analyze conditions and assess compliance with the standards, including documents reviewed and
individuals interviewed (unless confidentiality is requested), and the factual basis for each of the
monitor‘s findings. The monitor‘s reports should also include specific recommendations for
actions needed to bring the facility into compliance with the PREA standards.
The monitor‘s findings should be publicly available – except for private information (such as
victims‘ names) – to fulfill the transparency and accountability expectations of such oversight. In
addition to providing hard copies to the facility law libraries and to any inmate who requests one,
the reports should be posted on the websites of the auditor, the agency, the Department, and the
103

Id. at Standard 23-11, Commentary, subdivision (b).
These requirements are further supported in the ABA‘s standards. See id. at Standard 23-11.3(b) (external
monitoring and inspection).
104

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PREA Resource Center, so that they appear in places where stakeholders and other interested
parties are likely to look for them.

Recognizing the enforcement role the Department will play in any audit scheme and the need to
determine the meaning of ―full compliance‖ with the standards, JDI believes that the Department
should use the multi-tiered approach that it employs in other contexts, whereby substantial
compliance means compliance with most components of all of the provisions, partial compliance
is established when the monitor identifies gaps in compliance that go beyond anecdotal incidents,
technicalities, or temporary factors, and non-compliance is a designation of last resort when a
facility refuses to establish and/or implement an action plan to address gaps that have been
previously identified.
Questions 28-31:
• Should audits be conducted at set intervals, or should audits be conducted only for
cause, based upon a reason to believe that a particular facility or agency is
materially out of compliance with the standards? If the latter, how should such a forcause determination be structured?
• If audits are conducted for cause, what entity should be authorized to determine that
there is reason to believe an audit is appropriate, and then to call for an audit to be
conducted? What would be the appropriate standard to trigger such an audit
requirement?
• Should all facilities be audited or should random sampling be allowed for some or all
categories of facilities in order to reduce burdens while ensuring that all facilities
could be subject to an audit?
• Is there a better approach to audits other than the approaches discussed above?
While ―for cause‖ audits have some value, oversight cannot rely exclusively on this method.
Audits based on cause do not serve the important preventative role of identifying problems
before they become serious – one of the greatest cost savings potentially derived from the
standards. Moreover, while criteria for establishing cause can be developed (and suggestions are
provided below), no standard is fool proof. Reporting is inherently unreliable;105 some facilities
may suppress information, such as grievances and other reports, to avoid audits, and facilities
may have systemic problems that directly affect the potential for measuring cause (such as poor
recordkeeping or insufficient access to reporting mechanisms and the auditor). Systems with
105

Compare GUERINO & BECK, supra note 27, with ADULT SURVEY, supra note 31.

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these types of deficiencies would benefit tremendously from random audits, but are unlikely to
be identified as requiring for cause audits.

Despite the limitations of relying exclusively on cause to determine where to audit, for cause
audits should be part of the auditing structure. Facilities with known problems are
unquestionably in need of outside guidance. Mandatory audits of these facilities would help
identify problems and realistic solutions while providing accountability.

A qualified and independent auditor is in the best position to determine when an audit is
appropriate. As the value of audits comes from their external nature, allowing corrections
administrators to choose which facilities to audit would undercut the important oversight role of
the auditor. Officials who fear accountability in poorly performing facilities may avoid
subjecting those facilities to audits. Even where officials seek outside monitoring to address
known dangers, they are unlikely to be able to identify facilities that may have problems that are
unnoticed by staff.

The appropriate standard for the auditor to use in determining when cause has been met depends
on the oversight structure established – specifically, the extent to which this structure relies
exclusively on cause in determining who to audit. If the Department adopts a hybrid structure
that includes both random and for cause audits, then the standard for cause can be fairly lenient –
affording the auditor sufficient discretion to assess what triggering events would amount to
cause. However, if random audits are not being conducted, then the cause determination must be
more inclusive.

Triggering events for determining that cause exists for a full audit should include a range of
justifications, including but not limited to:
(a) agency requests for assistance;
(b) documentation of existing problems or incidents;
(c) reasonable suspicion of any instance of staff-on-inmate abuse, as well as inmate-oninmate abuse that appears to be the result of a deficiency in staff efforts to prevent or
respond to abuse;
(d) follow-ups to previous audits to assess implementation of corrective action plans; and

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(e) an auditor‘s review of documents at a facility or contacts from inmates or staff that
indicates possible non-compliance with the standards.
In order to implement the for cause audit system effectively, the auditing entity must be able to
gather information and intelligence from various sources, including: media reports; facility selfreports; prisoner complaints; family/friend/community concerns; contacts with advocacy groups
and other citizen action efforts; and national reporting and research bodies.

While the Department requests information for establishing for cause audits, JDI and its partners
urge it to mandate that every facility be visited by the auditor at least every three years. Site
visits are vitally important because external reviews of documents concerning sexual abuse
simply are not sufficient to assess compliance with the standards. As the Commission amply
documented, many inmates and staff are extremely reluctant to report sexual abuse; if a
complaint is not filed, there will be no documents for the auditor to review. Unfortunately, nondisclosure of sexual abuse may be greatest at the very facilities where non-compliance exists,
due to intimidation or violence. Similarly, it is difficult to assess the adequacy of investigations
without access to the complainants or witnesses. Finally, it is nearly impossible to determine
whether there is a culture of abuse or intimidation at a facility without a site visit. Conditions
within a system can vary dramatically from one facility to the next; only by visiting each facility
can the monitor fully assess whether inmates are safe.

However, if full audits at every facility are not approved by the Department, JDI urges -- as a
significantly less desirable alternative -- the Department to establish a tiered system that includes
some external monitoring of all facilities with full audits at a selected number. At least every
three years, all facilities should, at a minimum, be assessed for compliance with the standards
through auditor reviews of their policies, records, data and other documents, and remote
contacts with facility administrators, staff, and inmates. A hybrid of random and for cause audits
would provide attention and accountability to the most deficient facilities while keeping all
institutions ‗on their toes‘ to maintain the most effective policies and practices.

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Every facility should also submit a self-assessment of compliance with the standards to the
auditing entity on a yearly basis. Doing so will ensure that corrections administrators are
including the standards in their routine prison management exercises. It will also provide an
ongoing source of information for the auditing entity.

Question 32: To what extent, if any, should agencies be able to combine a PREA audit
with an audit performed by an accrediting body or with other types of audits?
PREA audits can be combined with other audits, but only if they are conducted by auditors who
have sufficient independence from the agency and who are qualified with expertise both about
corrections and sexual violence. Traditional audits – conducted solely by corrections
practitioners and generally linked to voluntary fee-based accreditation – will not suffice.

The importance of independence cannot be overstated. Unless the review is conducted by an
entity that is structurally external to the corrections agency being audited, and by individuals
who have no recent relationship with the agency, the integrity of the audit will be compromised.
To ensure sufficient autonomy, the auditing entity should be appointed or contracted for a fixed
term by the governor/chief executive or the legislature – not the corrections agency. Some
inspectors general and other public monitoring bodies are sufficiently independent, but entities
that report to the head of the agency being audited (as permitted by subsection of
§ 115.93/193/293/393(a)(2)) are by default not qualified as PREA auditors.106 Entities that
ultimately answer to the head of the Department can easily be pressured to minimize or ignore
certain concerns, or be prevented from fully examining conditions through the allocation of
resources.

Ideally, audits would be conducted by teams that include at least one corrections practitioner
(who may also be involved in other types of audits of corrections facilities) and at least one
expert in sexual violence prevention and response from the community (who may be involved in
other audits pertaining to federal funds, as required by VOCA and VAWA). An effective PREA
106

This distinction is consistent with the ABA‘s oversight resolution and its Treatment of Prisoners Standards. See
American Bar Association, supra note 46, at Standard 23-11.3(a) (external monitoring and inspection); AMERICAN
BAR ASSOCIATION, RES. 104B KEY REQUIREMENTS FOR THE EFFECTIVE MONITORING OF CORRECTIONAL AND
DETENTION FACILITIES (2008).

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auditor must also have prior expertise and/or training in both sexual violence dynamics and the
corrections environment. The balance between prior expertise and current training will vary, but
being a retired corrections official, by itself, is not a sufficient qualification. Without state
certification in rape crisis counseling, a corrections-only monitoring entity is unlikely to be
aware of best practices in the community – many of which require only slight modification to
account for the unique concerns in the corrections environment. More importantly, only a crisis
counseling professional will have sufficient expertise in gathering information from traumatized
individuals and picking up cues of possible concerns that inmates and others may not feel
comfortable sharing.
Question 33: To what extent, if any, should the wording of any of the substantive
standards be revised in order to facilitate a determination of whether a jurisdiction is in
compliance with that standard?
The nature of the PREA standards, by necessity, is primarily qualitative. Quantitative indicators
help measure compliance but will not sufficiently measure the overall effectiveness of prevention
and response efforts. As a result, auditors must be provided with a fair amount of discretion to
determine compliance based on overall effectiveness and ultimately, the safety of inmates at
individual facilities.

The ability of the auditor to make these determinations, however, will be greatly enhanced by
requiring further documentation of agency efforts. In particular, documenting facility efforts to
collaborate with outside entities (§ 115.21/121/221/321 and § 115.22/222/322), to avoid crossgender searches and viewing of inmates in states of undress (§ 115.14/114/214/314), to limit the
use of involuntary segregation as a means to protect vulnerable and victimized individuals (§
115.43/243 and § 115.66/366), and to follow-up on the recommendations arising from data
incident reviews (§ 115. 86/186/286/386) will provide concrete deliverables that the auditors can
measure and review.
Questions 34-35:
• How should ―full compliance‖ be defined in keeping with the considerations set forth
in the above discussion?
• To what extent, if any, should audits bear on determining whether a State is in full
compliance with PREA?

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Immediate and absolute compliance with all PREA standards is unlikely to be achieved by all
systems at all times, and both the standards as a whole and the audit provisions in particular
should be seen as a means of trouble-shooting problems and identifying solutions. As a result,
the definition of ―full compliance‖ deserves a nuanced approach. In other contexts, the
Department uses a multi-tiered approach that would be equally effective here. This approach
defines different types of compliance to be determined by the monitor, including the following:
substantial compliance, meaning compliance with most components of all provisions; partial
compliance, resulting when the monitor identifies gaps in compliance that go beyond anecdotal
incidents, technicalities or temporary factors; and non-compliance, being a designation of last
resort when a facility refuses to establish and/or implement an action plan to address gaps that
have previously been identified.

The goal of the standards is to ensure the safety of inmates. Legitimate stakeholders would not
want corrections agencies to lose federal funding except in extraordinary circumstances.
Moreover, relying on the penalty of lost funding – without lesser sanctions available – would
create a strong disincentive among auditors to make a finding of non-compliance. Through a
multi-tiered system, agencies can have ample opportunity to correct deficiencies, with alternative
sanctions providing pressure (and possibly assistance) for coming into compliance, and the loss
of funds can be considered a last resort.
In line with the ABA‘s standards for external monitoring and inspection, corrections facilities
should be required to respond in a public document (that redacts any confidential or securityrelated information) to the findings of the auditing entity, to develop corrective action plans to
address identified problems, and periodically to document compliance with recommendations or
explain non-compliance.107 As mentioned above, follow-up for cause audits should assess and
report on agency efforts to address identified problems and make suggestions for continuing
facility improvement and compliance.

107

See American Bar Association, supra note 46, at Standard 23-11.3(c) (external monitoring and inspection).

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Auditors should be required to make their reports publicly available, and the agency, staff and
inmates within the facility, and the general public should have an opportunity to respond. When
a facility is found to be out of compliance (in full or in part), it must develop an action plan that
sufficiently addresses the concerns raised in the report – after which compliance with the action
plan must be at least as decisive as the initial audit in assessing full compliance with PREA.

Determining full compliance must incorporate the assessment of an outside monitor in order to
have any meaning. In this respect, the audits should play a crucial role. However, they need not
be the only indicia relied upon. While not conducting the reviews itself, the Department should
verify that each inspection was properly conducted by a qualified monitor, and that corrective
action plans are both implemented and monitored.

Additional suggested standard (youth in adult facilities)
Questions 36-37:
• Should the final rule include a standard that governs the placement of juveniles in
adult facilities?
• If so, what should the standard require, and how should it interact with the current
JJDPA requirements and penalties mentioned above?
The Department should create a standard that protects youth in adult facilities.108 Because of the
stage of development and cognitive and social immaturity of adolescents, they have
characteristics that make them particularly vulnerable to abuse. Notably, the Commission stated
that youth incarcerated with adults are at the highest risk for sexual abuse.109 Adult facilities
housing children and adolescents face a dangerous dilemma, as they have to choose between
housing youth in the general adult population where they are at substantial risk of sexual abuse
or housing youth in segregated settings that cause or exacerbate mental health problems. Neither
option is safe and appropriate for youth, nor a good practice for corrections agencies that are illequipped to address the unique needs of minors.

108

Specific language for such a standard has been developed by the Campaign for Youth Justice, and provided to the
Department in a sign-on letter. JDI supports the language proposed in that letter.
109
NATIONAL PRISON RAPE ELIMINATION COMMISSION, supra note 16, at 18.

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The Department should prohibit the placement of youth in adult jails and prisons as a way to
reduce the sexual abuse of youth. At a minimum, the standards should require that jurisdictions
create a presumption that all youth will be housed in juvenile facilities and can only be
transferred to an adult facility after a hearing is conducted to determine whether the interests of
justice require detention in a prison or jail.

These changes would protect all youth under the age of 18 held in adult facilities, and therefore
go beyond the statutory requirements of the existing Juvenile Justice and Delinquency
Prevention Act (JJDPA).110 To the extent that youth are currently housed in adult facilities in
violation of the JJDPA, these facilities should be found out of compliance with both the JJDPA
and the PREA standards. Facilities housing youth in adult facilities in violation of this
recommended approach, but that are not in violation of the JJDPA, should be found out of
compliance with PREA.

110

See 42 U.S.C. §§ 5601-5681.

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C.

REGULATORY QUESTIONS
Questions 38-41:
• Has the Department appropriately determined the baseline level of sexual abuse in
correctional settings for purposes of assessing the benefit and cost of the proposed
PREA standards?
• Are there any reliable, empirical sources of data, other than the BJS studies
referenced in the IRIA, that would be appropriate to use in determining the baseline
level of prison sexual abuse? If so, please cite such sources and explain whether and
why they should be used to supplement or replace the BJS data.
• Are there reliable methods for measuring the extent of underreporting and
overreporting in connection with BJS’s inmate surveys?
• Are there sources of data that would allow the Department to assess the prevalence of
sexual abuse in lockups and community confinement facilities? If so, please supply
such data. In the absence of such data, are there available methodologies for
including sexual abuse in such settings in the overall estimate of baseline prevalence?

As the Department appears to recognize, assessing the prevalence of sexual abuse in detention
facilities is remarkably difficult. As is also the case in the community, there are numerous
reasons why a survivor of sexual abuse in detention is unlikely to disclose such abuse – including
shame, guilt, fear of retaliation, fear of not being believed, and the interruption in cognitive
functioning that is part of a normal trauma reaction. For incarcerated survivors, however, these
concerns are magnified. People raped behind bars cannot escape their attackers and have
legitimate fears about trusting officials who failed to protect them (and who, in many cases, are
the perpetrators or colleagues of the perpetrators). Most prisoner rape survivors endure multiple
attacks, and many of those who are brave enough to report sexual abuse end up in punitive
conditions such as segregation, while their perpetrators are not held accountable.

The Bureau of Justice Statistics (BJS) is the foremost expert on corrections-related data
collection and analysis, and the data from the BJS‘s inmate and resident surveys are the best
available source for determining the baseline level of sexual abuse behind bars. Sexual violence
is one of the least reported crimes, in the community and behind bars. In light of the shame and
stigma associated with this crime, fear of retaliation, and other disincentives to reporting, reports
lodged with officials simply do not capture the extent of sexual violence in detention. (This is
also why multiple reporting mechanisms are necessary, including external reporting options.)

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The BJS‘s inmate and resident surveys are the most comprehensive, credible studies to date that
measure the prevalence of sexual abuse behind bars. However, as the Department notes, the
snapshot nature of the BJS reports – reflecting only the inmates and residents detained on the
given day that each survey was conducted – do not reflect the total number of inmates and
residents incarcerated over the course of a year. While there are no absolute data on the total
number of individuals in detention over the course of a year, the Department makes the best
available flow adjustment based on the BJS calculations.

None of these data include lockups or community corrections, making even the best estimates by
the Department too low. JDI knows of no credible accounting even of the number of such
facilities or the number of inmates in lockups and community confinement, let alone a study of
sexual violence against these individuals. The Department should gather such information, as a
matter of urgency. In community confinement facilities, the BJS can conduct surveys similar to
those already conducted in corrections facilities. Determining prevalence in lockups is especially
difficult because of the rapid turnover of inmate populations there, but preliminary information
could be gathered by incorporating questions about sexual assault while in police custody into
both the prisons and jails surveys (to capture people who were ultimately incarcerated) and the
National Crime Victimization Survey (to capture people who were released). Until these data are
gathered, however, it is unclear how fully to account for these facilities‘ victims, except to note
that the Department‘s estimate of victimization – like its other calculations – is overly
conservative.
Furthermore, the Department‘s focus on the number of victims, rather than the number of
incidents, minimizes the severity of the problem. In the BJS adult inmate survey, between onehalf and two-thirds of those who reported being sexually abused reported that it happened more
than once, with 15 to 40 percent citing six or more incidents.111 In juvenile facilities, 81 percent
of youth who reported sexual abuse by other residents and 88 percent of youth who reported staff
sexual abuse said it happened more than once, with 46 and 49 percent, respectively, saying they

111

ADULT SURVEY, supra note 31, at 21, 23.

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experienced six or more incidents.112 As each incident brings its own fiscal, health-related, and
moral costs, as well as implications for institutional security, the Department‘s calculations
should account for the substantially higher number of incidents than victims.

While the BJS data constitute the best available source of empirical data, several smaller studies
confirm the BJS findings and provide useful additional qualitative analysis. Cindy StruckmanJohnson and David Struckman-Johnson surveyed Midwestern prisoners about their experience of
sexual victimization over the entire course of their incarceration.113 In men‘s prisons, they found
that nearly one in five inmates had been sexually assaulted while in prison. The rates varied
dramatically in women‘s facilities, with one in four inmates being victimized at the worst
institutions.

Researchers from the Center for Evidence-Based Corrections, in a study commissioned by the
California Department of Corrections and Rehabilitation, surveyed inmates in California men‘s
prisons about their experience of inmate-on-inmate sexual abuse.114 In addition to providing
overall data about inmate-on-inmate abuse in these facilities, which conform to the BJS‘s
findings, this study also surveyed all transgender women in the state‘s men‘s facilities, in an
effort to gain insight into the prevalence and trends for this highly vulnerable population. In this
survey, approximately 59 percent of transgender inmates reported having been sexually assaulted
by another inmate during their incarceration, a rate that was more than 13 times higher than that
of the inmate population overall. The BJS surveys did not ask about gender identity so they do
not provide comparable data.

No survey can fully overcome the reality that victimized inmates will not report abuse out of
shame, because it was too painful, or out of fear that the report will not remain anonymous. JDI
believes that the BJS studies most likely undercount the victims of sexual abuse in detention,
perhaps significantly. Nonetheless, JDI urges the Department to defer to the BJS in its approach
112

YOUTH SURVEY, supra note 26, at 12, 14.
Cindy Struckman-Johnson & David Struckman-Johnson, A Comparison of Sexual Coercion Experiences
Reported by Men and Women in Prison, 21 J. INTERPERSONAL VIOLENCE1591 (2006), available at
http://www.justdetention.org/pdf/CoercionCSJ.pdf.
114
JENNESS ET AL., supra note 69.
113

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to addressing under-reporting and over-reporting, both because no good ways have yet been
discovered to establish by how much the surveys undercount the true prevalence of sexual abuse
in detention, and because following the BJS‘s lead in this matter seems appropriately
conservative. The surveys were designed to discourage false reporting, and took several
precautionary measures to address over-reporting and under-reporting beyond those employed by
government surveyors measuring sexual violence in the community.115 The anonymous nature of
the survey, which was established to protect inmates who were too afraid to report abuse to
officials, also precluded any possibility that they could secure a transfer or other personal gain
from false reporting. Likewise, the BJS surveys provided no opportunity to name perpetrators or
otherwise expect that an officer would be penalized in any way based on answers in the surveys.
While some inmates may have fabricated their reports, as many officials fear, it is much more
likely that people who were victimized decided not to disclose their abuse. In sum, relying on the
BJS data without accounting for under-reporting and over-reporting will provide a conservative
estimate of the overall number of victims, in line with the conservatism of the Department‘s
other calculations.
Questions 42-44:
• Has the Department appropriately adjusted the conclusions of studies on the value of
rape and sexual abuse generally to account for the differing circumstances posed by
sexual abuse in confinement settings?
• Are there any academic studies, data compilations, or established methodologies that
can be used to extrapolate from mental health costs associated with sexual abuse in
community settings to such costs in confinement settings? Has the Department
appropriately estimated that the cost of mental health treatment associated with
115

Three leading surveys are: the BJS‘s National Crime Victimization Survey (NCVS), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=245 (last accessed March 14, 2011); the National Institute of
Justice‘s Prevalence, Incidence, and Consequences of Violence Against Women Report, available at
http://www.ncjrs.gov/pdffiles1/nij/183781.pdf (last accessed March 27, 2011); and the FBI‘s Uniform Crime Report,
available at http://www.fbi.gov/about-us/cjis/ucr/ucr (last accessed March 14, 2011). The NCVS asks about crimes
at a particular household in the past six months and is able to compare the answers from the previous set of surveys
to make sure that respondents are not reporting any incidents that occurred outside the six-month time frame. The
NIJ report is generated by phone interviews with individuals at randomly chosen households, without any specific
checks on under-reporting or over-reporting. The FBI report relies solely on crimes reported to law enforcement and
therefore undoubtedly reflects under-reporting. In addition to being an anonymous computer-based survey without
any means to name the perpetrator, the inmate and resident surveys include ―latent class measures‖ to assess
reliability. All interviews are also examined for interview error, interviews completed in too short a time, incomplete
interviews, and inconsistent response patterns –any survey with any of these concerns is excluded from the data set.
See ADULT SURVEY, supra note 31, at 11.

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•

sexual abuse in confinement settings is twice as large as the corresponding costs in
community settings?
Has the Department correctly identified the quantifiable costs of rape and sexual
abuse? Are there other costs of rape and sexual abuse that are capable of
quantification, but are not included in the Department’s analysis?

The Department relies on the best available research to calculate a unit of cost for rape, its first
category of sexual abuse, and consistent with its general approach makes conservative
adjustments to account for the confinement setting. (As discussed in questions 47-48, below, JDI
believes that the Department‘s adjustments for other types of sexual abuse are more problematic
and well below even conservative estimates.) As the Department notes, mental illness and
sexually transmitted infections are more prevalent in detention than they are in the community
and therefore will generate greater associated costs. While the Department chose to double the
estimated costs in the community, prevalence rates in detention settings suggest a more dramatic
multiplication: mental illness is estimated to be four to six times as prevalent in corrections
settings as in the community,116 and HIV and other sexually transmitted infections are estimated
at 2.4 to 20 times the rates in the community.117 Moreover, substance abuse and suicide acts are
also more prevalent among detained populations, and these figures should likewise be adjusted
upward. The repeated rapes that incarcerated victims often endure will also require higher
treatment costs than would be suggested by general estimates from the community. In light of
these distinctions, it is not surprising that, in the litigation context, much higher costs have
already been estimated for detention settings. For example, Terry Kupers, MD, a leading
psychiatric expert on sexual abuse in detention, estimates that, depending on the severity of
emotional problems arising from an assault, the psychotherapy and group therapy sessions
needed could total $26,000 per year for two to three years.118
116

DORIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT, MENTAL HEALTH
PROBLEMS OF PRISON AND JAIL INMATES 3 (updated 2006), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/mhppji.pdf.
117
See, e.g., LAURA MARUSCHAK, BUREAU OF JUSTICE STATISTICS, HIV IN PRISONS, 2007-08 3 (2010) (estimating
HIV rate in U.S. prisons to be 2.4 times the rate in society); Scott A. Allen et al., Hepatitis C Among Offenders—
Correctional Challenge and Public Health Opportunity, 67 Fed. Probation 22 (Sept. 2003) (finding that Hepatitis C
rates were 8 to 20 times higher in prisons than on the outside, with 12 to 35 percent of prison cases involving
chronic infection); see also CENTERS FOR DISEASE CONTROL & PREVENTION, U.S. DEP‘T HEALTH & HUM. SVCS.,
SEXUALLY TRANSMITTED DISEASE SURVEILLANCE 2007 89 (2008), available at
http://www.cdc.gov/std/stats07/Surv2007-SpecialFocusProfiles.pdf (last visited Jan. 22, 2009).
118
According to Dr. Kupers, a victim may need psychotherapy three times per week for three years, with each
session costing $150, and group counseling for two years, at $40-50 per session. In proposing these figures, Dr.

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The Department also presumes that there will be no lost work/productivity for the victim or
earning loss for the perpetrator. While prisoner rape survivors by and large do not generate any
real income while incarcerated, the trauma of their abuse is likely to damage their reentry
significantly, including their ability to secure and maintain employment. This expense may be
lower than for currently employed members of society, but it is far from insignificant. The
Department must also consider that a former inmate who is debilitated by the trauma of rape is
likely to require assistance from public resources, such as community mental health providers,
Medicaid, housing programs, or food stamps, which increase the long-term costs beyond
incarceration. With respect to perpetrator earning loss, in the majority of cases, as the BJS has
confirmed, perpetrators of sexual abuse in detention are staff member who should lose their jobs.
Even in cases of inmate-on-inmate assaults, if the perpetrator is prosecuted and receives
additional prison time, there will be further earning loss.

Consistent with available research, the Department only examined the costs of sexual abuse in
detention to the victim – without factoring in expenses incurred by the agency and by society. In
the free-world context, this makes sense: the government bears significantly fewer costs in
responding to the abuse of someone who is not in its charge, and few law enforcement or other
government officials would seriously suggest that efforts to combat sexual abuse in the
community must be subjected to a cost-benefit analysis like the one here. There are, however,
significant costs for the agency and society when a sexual assault happens in detention; these
expenses can be quantified and should be factored into the analysis. For example, agencies incur
costs related to security breaches, staff turnover, grievances and investigations, increased use of
expensive single-celled beds (for victims or perpetrators), and increased security for
transportation to the hospital and/or another facility. Society also incurs quantifiable costs with
Kupers emphasizes that damage from sexual abuse is long-term and more severe than generally imagined by courts
or mental health professionals, and that these costs do not ―erase‖ the damage but provide a starting-point for
estimating dollar amounts. Email from Terry Kupers, MD, to Linda McFarlane, Deputy Executive Director, Just
Detention International (March 9, 2011) (providing financial estimates); email from Terry Kupers, MD, to Melissa
Rothstein, Senior Program Director, Just Detention International (March 22, 2011) (stating that he provided these
estimates while serving as an expert witness in the following lawsuits: Testimony of Terry Kupers, MD, Neal v.
Michigan Dep’t of Corrections, Case No. 96-6986-CZ (Mich. Circ. Ct. Washtenaw Co. Jan. 30, 2008); Testimony of
Terry Kupers, Neal v. Michigan Dep’t of Corrections, Case No. 96-6986-CZ (second trial) (Mich. Circ. Ct.
Washtenaw Co. Oct. 16, 2008); Deposition of Terry Kupers, Doe v. Clark, No. 07-2-01513-0 (Wash. Sup. Ct.).

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respect to prosecutions for prisoner rape, increased reliance on public assistance by traumatized
inmates upon release, and additional incarceration costs for sentenced perpetrators and for
victims who are too traumatized to reintegrate successfully into the community. This last point
deserves emphasis: former inmates are returned to prison every year in enormous numbers for
technical violations of the terms of their parole – failing a drug test, for example, or missing an
appointment with a parole officer, or failing to maintain employment. But all of these ―failures‖
would, in fact, be entirely typical symptoms of Rape Trauma Syndrome (about which, however,
the Department‘s proposed standards do not require that parole officers be trained).
Questions 45-46:
• Should the Department adjust the ―willingness to pay‖ figures on which it relies
(developed by Professor Mark Cohen for purposes of valuing the benefit to society of
an avoided rape) to account for the possibility that some people may believe sexual
abuse in confinement facilities is a less pressing problem than it is in society as a
whole, and might therefore think that the value of avoiding such an incident in the
confinement setting is less than the value of avoiding a similar incident in the nonconfinement setting? Likewise, should the Department adjust these figures to take into
account the fact that in the general population the vast majority of sexual abuse
victims are female, whereas in the confinement setting the victims are overwhelmingly
male? Are such differences even relevant for purposes of using the contingent
valuation method to monetize the cost of an incident of sexual abuse? If either
adjustment were appropriate, how (or on the basis of what empirical data) would the
Department go about determining the amount of the adjustment?
• Has the Department appropriately accounted for the increased costs to the victim and
to society when the victim is a juvenile? Why or why not?
Federal policy must recognize that all sexual abuse is equally unacceptable, regardless of the
victim‘s gender, custody status or criminal history. If anything, the heightened responsibility of
the government to protect people in its charge should warrant a higher ―willingness to pay‖
figure for people in detention than for people in free society. Minimizing the cost of
victimization of inmates due to a lack of public sympathy for incarcerated people is bad policy –
and undermines the purpose of PREA, which is to ensure that prisoner rape is taken seriously. It
is particularly problematic to do so when considering that 95 percent of inmates eventually return
to their communities, and bring their trauma and abuse with them.

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While all adult victims must be viewed equally, the longer life expectancy of juveniles and the
impact of abuse on their healthy development do warrant increased cost estimates. Again, the
Department‘s estimates are overly conservative here, as they do not clearly account for the
impact that sexual abuse has on the long-term physical, emotional, and mental development and
health of a child, nor any resulting social difficulties, cognitive dysfunction, or participation in
high risk behaviors – outcomes that have been shown to affect children who experience sexual
abuse.119
Increasing the National Institute of Justice‘s adult estimates by 33 percent to serve as the upper
bound cost for youth victims is also too conservative. A recent study employing the willingnessto-pay (WTP) methodology found that society has a higher WTP for reducing child abuse than
abuse of adults.120 To calculate the costs, the researchers doubled the costs identified in the NIJ
study after updating to 2007 dollars.121 The Department should do the same, and double the
lower bound figure (which based on the current figure of $275,000 would increase the upper
bound from $400,000 to $550,000).

The decision to count all incidents of staff-on-youth contact as nonconsensual activity, given that
all staff sexual activity with youth is inherently coerced or pressured and harmful to the youth
and society as a whole, is sound but, as discussed below (in questions 47-48), the value assigned
to sexual assault involving pressure/coercion is too low.

119

According to a 2007 study by Prevent Child Abuse America, children who have been sexually abused are more
likely to experience: poor physical health (e.g., chronic fatigue, altered immune function, hypertension, sexually
transmitted diseases, obesity); poor emotional and mental health (e.g., depression, anxiety, eating disorders, suicidal
thoughts and attempts, post-traumatic stress disorder); social difficulties (e.g., insecure attachments to caregivers,
which may lead to difficulties in developing trusting relationships with peers and adults later in life); cognitive
dysfunction (e.g., deficits in attention, abstract reasoning, language development, and problem-solving skills, which
ultimately may affect academic achievement and school performance); high-risk health behaviors (e.g., a higher
number of lifetime sexual partners, younger age at first voluntary intercourse, teen pregnancy, alcohol and substance
abuse); and behavioral problems (e.g., aggression, delinquency, and adult criminality). CHING-TUNG WANG & JOHN
HOLTON, TOTAL ESTIMATED COST OF CHILD ABUSE AND NEGLECT IN THE UNITED STATES, PREVENT CHILD ABUSE
AMERICA ECONOMIC IMPACT STUDY (2007), available at
http://www.preventchildabuse.org/about_us/media_releases/pcaa_pew_economic_impact_study_final.pdf.
120
Mark A. Cohen et al, Estimating the Costs of Bad Outcomes for At-Risk Youth and the Benefits of Early
Childhood Interventions to Reduce Them, 21 CRIM. JUST. POL‘Y REV. 391, 415 (2010).
121
Id.

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Questions 47-48:
• Are there available methodologies, or available data from which a methodology can
be developed, to assess the unit value of avoiding a nonconsensual sexual act
involving pressure or coercion? If so, please supply them. Is the Department’s
estimate of this unit value (i.e., 20% of the value of a forcible rape) appropriately
conservative?
• Are there available methodologies, or available data from which a methodology can
be developed, to assess the unit value of avoiding an ―abusive sexual contact between
inmates,‖ as defined in the IRIA? If so, please supply them. Is the Department’s
estimate of this unit value (i.e., $375 for adult inmates and $500 for juveniles)
appropriately conservative? Would a higher figure be more appropriate? Why or why
not?
In trying to extrapolate costs for sexual assault involving pressure/coercion, abusive sexual
contacts, and willing sex with staff, the Department grossly underestimates the harm and
resulting costs of these forms of abuse, well below even its other already conservative estimates.
Beyond ignoring the costs to the agency and society that are not factored into the Department‘s
analysis (detailed in our response to Questions 42-44), the Department estimates the unit value of
avoiding nonconsensual sexual acts by relying on an arbitrary percentage of its estimated unit
value for rape and it assigns a unit value for abusive sexual contact without explanation. These
unit value determinations are dangerously low.

With respect to sexual assault involving pressure or coercion, the Department presumes that the
cost is a mere one-fifth of the cost of a forcible rape because there is typically no physical injury.
However, mental trauma and loss of quality of life account for 85 percent of the Department‘s
estimate of the cost of forcible rape, and these expenses will be essentially the same in situations
that do not involve force. Physical injury and level of violence are not the primary factors in
determining the level of trauma; the perception of threat is also key.122 The nature of
incarceration, the absence of confidential support services, and the complete lack of control over
one‘s environment, including the people within it, cause incarcerated victims to feel especially
helpless in the aftermath of any kind of assault. Moreover, regardless of the level of force used,

122

KOSS & HARVEY, supra note 83; see also ROBERT R. HAZELWOOD & ANN WOLBERT BURGESS, PRACTICAL
ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH (2009) (noting helplessness and loss of control
are key contributors to trauma).

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the pre-detention history of victimization prevalent among incarcerated victims123 makes any
incident of abuse likely to trigger prior trauma.124
The values assigned by the Department for ―abusive sexual contact‖ – $375 for an adult and
$500 for a juvenile – are also unreasonably low. It is unclear how the Department arrived at these
numbers, as its calculations in Table 3 place suffering and lost quality of life for sexual abuse at
$386. As is true for the estimate of costs associated with nonconsensual sexual acts, this estimate
completely ignores the trauma resulting from these incidents, and the resulting mental health
costs. It also presumes that victims endured one incident, when in fact abusive sexual contact
often forms part of an ongoing and escalating pattern that results in increasing emotional harm.
Likewise, agencies must be required fully to investigate, adjudicate, and sanction this form of
abuse, and while the costs of so doing may not rise to the level appropriate for incidents
requiring a full forensic medical examination, they are likely to be significant nonetheless.

Finally, while the Department appropriately treats willing sex with staff as nonconsensual sexual
assault in youth facilities, its determination that in adult facilities the cost of this abuse is less
than two percent of the costs estimated for rape is dangerously flawed. As with abusive sexual
contact, these incidents should, at a minimum, trigger investigation/adjudication and sanctioning
costs. Moreover, the earning loss while perpetrators are confined – which the Department
excluded from its matrix – is unquestionably relevant here, as all corrections staff are employed
and should be terminated upon a finding that they have engaged in sexual activity with an
inmate.
Questions 49-50:
• Are there any additional nonmonetary benefits of implementing the PREA standards
not mentioned in the IRIA?

123

In its recent survey of prison and jail inmates, the BJS determined that history of victimization was the most
statistically significant trait of inmates who were sexually victimized at their current facility. See ADULT SURVEY,
supra note 31.
124
Individuals who have experienced previous trauma are significantly more likely to develop Posttraumatic Stress
Disorder than those who have not. See Naomi Breslau, et al., Previous Exposure to Trauma and PTSD Effects of
Subsequent Trauma: Results From the Detroit Area Survey of Trauma, 156 AM. J. PSYCHIATRY 902 (1999).

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•

Are any of the nonmonetary benefits set forth in the IRIA actually capable of
quantification? If so, are there available methodologies for quantifying such benefits
or sources of data from which such quantification can be drawn?

The Department generally does a good job of laying out most of the key benefits of avoiding
prisoner rape with respect to victims, other inmates, families, prison administrators and staff, and
society at large. However, the Department fails to address the moral benefit to society of ending
a form of torture that remains widespread in this country and the related improved standing that
these efforts will confer on the U.S. in the international human rights community.125

The Department also omits the benefits that would stem from the improved transparency,
monitoring, and community collaboration called for by the standards. In addition to the agency
benefit of outside expertise and perspectives – including access to best practices for addressing
sexual abuse – increased transparency and accountability of corrections facilities is generally
beneficial to a democratic society by providing greater access to information about these public
institutions. In the long run, such transparency and accountability will make corrections facilities
better-run and safer institutions.

Many of the benefits identified by the Department as non-monetary can be quantified. For
example, the financial benefits to families and society of preventing former inmates from being
unable to work due to the emotional trauma of sexual abuse can at least partially be measured by
the cost of public assistance and other forms of governmental support that victims will need upon
reentry. Similarly, the lost earning potential and income tax revenue could be estimated. The cost

125

Sexual violence in U.S. detention facilities has been recognized internationally as a form of torture and illtreatment, and U.N. bodies monitoring U.S. compliance with its international human rights obligations have
repeatedly expressed concern about the nation‘s performance on this point. The U.N. Committee Against Torture
recommended that the U.S. design and implement appropriate measures to prevent sexual violence in detention, and
ensure that all allegations of prisoner rape be investigated promptly and independently. Committee Against Torture,
36th Session, Consideration of Reports Submitted by States Parties under Article 19 of the Convention,
CAT/C/USA/CO/2, at ¶ 32 (2006). Similarly, the U.N. Human Rights Committee has expressed concern that male
corrections officers have access to female inmates‘ housing areas. Human Rights Committee, 87th Session,
Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, CCPR/C/USA/CO/3/Rev.1,
at ¶ 33 (2006). Recognizing the urgent need for increased external oversight of detention facilities in light of these
and other pervasive human rights violations, a number of countries, as part of the U.N. Universal Periodic Review,
have urged the U.S. to ratify the Optional Protocol to the Convention Against Torture. Human Rights Council, 16th
Session, Agenda Item 6, Report of the Working Group on the Universal Periodic Review, A/HRC/16/11, at ¶¶
59, 92.2, 92.4, 92.6, 92.16, 92.23 (2011).

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of increased incarceration for perpetrators of sexual abuse in detention can be quantified based
on the rates for housing a prisoner.126

Finally, the Department makes no effort to quantify the benefits of avoiding investigations,
grievances or litigation. Each of these processes requires the dedication of substantial resources
that can be measured, including the cost of staff and attorney time, the development of
documentation, and the likely fees and judgments imposed. Recently, for example, a class action
lawsuit brought by female prisoners who had been sexually abused by corrections staff in
Michigan settled for $100 million, after several trials and more than ten years of active
litigation.127
Question 51: Are there available sources of data relating to the compliance costs
associated with the proposed standards, other than the sources cited and relied upon in
the IRIA? If so, please provide them.
As the Department‘s proposed standards were not publicly disclosed prior to the release of the
Notice of Proposed Rulemaking, there are no data available about the overall compliance costs
associated with these provisions, beyond the data compiled by the Department. While some
agencies have estimated compliance costs for the Commission‘s recommended standards (with
many of these estimates reflected in the surveys conducted by Booz Allen Hamilton), these
anecdotal projections vary widely and are not reliable. Corrections officials charged with
establishing and ultimately defending corrections cost estimates to their appropriators had every
incentive to inflate costs and little motivation to think creatively and strategically about how to
devise low-cost ways to comply with standards that are not yet in force.

The compliance cost data relied upon by the Department are in fact replete with problems. In
addition to depending on estimates provided by corrections officials who had reason to inflate
their projected costs, the Booz Allen Hamilton statistical analysis relies on the following
inaccurate assumptions: (1) that its sample of correctional facilities was random, (2) that the
126

The Department has already identified that, as of 2001, this cost would total $22,600 per prisoner per year, or $62
per day. IRIA, supra note 48, at 30.
127
Class Settlement Agreement, Neal v. Michigan Dep’t of Corrections, Case No. 96-6986-CZ (Mich. Circ. Ct
Washtenaw Co. July 15, 2009), available on-line at http://www.clearinghouse.net/chDocs/public/PC-MI-00210003.pdf (last accessed March 27, 2011).

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sample came from a normal (bell curve) distribution, and (3) that the cost-per-inmate approach
meant that the sample accurately represented the average costs per inmate for all facilities
nationally. In fact, the 49 sites included in Booz Allen Hamilton‘s report were not randomly
selected: many participating agencies volunteered, which makes it very unlikely that they
accurately represent the range of PREA readiness. In fact, given that everyone participating
knew that this information was being gathered to determine whether the Commission‘s
recommended standards were too costly, facilities that were less compliant or otherwise resistant
to the standards had the strongest incentives to participate, as they could skew the results to
indicate higher costs than would otherwise be needed. Given the small sample size, there is also
a risk of over-fitting the data by using them as primary cost-estimates rather than as a robustness
check on other estimates.

In addition to the Booz Allen Hamilton data, the Department relied upon internal assessments
provided by the Bureau of Prisons (BOP) and the U.S. Marshals Service (USMS). The
Department has not disclosed these data publicly. However, even without seeing these
assessments, it if fair to assume that reliance on them is problematic because the participating
agencies have shown a consistent lack of leadership on the issue of preventing and addressing
sexual abuse in detention. As discussed in Section I of this submission, BOP and USMS leaders
have generally not embraced PREA, and federal inmates remain highly vulnerable to abuse.128
Thus, relying on these systems sets a dangerously low bar that, in several cases, provides weaker
protections than those already provided by other corrections agencies.

If the Department wants to establish a valid assessment of compliance costs, it should not rely on
the speculative estimates of corrections administrators. Rather, it should have taken a structural
approach that would have included developing reasonable assumptions about how different
facilities would comply with the regulations and estimating the total costs of compliance over the
entire country, using the statistical estimates as a robustness check. This would have provided
more clarity about the cost of compliance and the assumptions made in developing these
estimates.
128

While Section I, supra, focuses on the BOP, the Inspector General‘s report also discusses the deficiencies in the
USMS‘s efforts to address staff sexual abuse and misconduct. See OIG 2009 REPORT, supra note 12.

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Questions 52-55:
• Are there available data as to the number of lockups that will be affected by the
proposed standards, the number of individuals who are detained in lockups on an
annual basis, and/or the anticipated compliance costs for lockups? If so, please
provide them.
• Are there available data as to the number of community confinement facilities that
will be affected by the proposed standards, the number of individuals who reside or
are detained in such facilities on an annual basis, or the anticipated compliance costs
for community confinement facilities? If so, please provide them.
• Has the Department appropriately differentiated the estimated compliance costs with
regard to the different types of confinement facilities (prisons, jails, juvenile facilities,
community confinement facilities, and lockups)? If not, why and to what extent should
compliance costs be expected to be higher or lower for one type or another?
• Are there additional methodologies for conducting an assessment of the costs of
compliance with the proposed standards? If so, please propose them.
As discussed above (in Questions 38-41), JDI knows of no relevant data regarding the number of
lockups and community confinement facilities or the number of inmates or victims within these
facilities. The BJS should compile data regarding the number of facilities and the number of
people who pass through them on an annual basis, and victimization rates should be established
through inmate surveys (in community confinement facilities) and targeted questions in the
National Crime Victimization Survey.

Given its acknowledged lack of data regarding the number of lockups and community
confinement facilities, it is unclear how the Department came up with its total costs for these
types of facilities. Facility by facility, however, these costs should be lower than the Department
has estimated, as lockups and community confinement facilities are often connected to jails and
prisons that need to comply with the standards. The projected benefits associated with these
facilities, however, should be as high as in a corrections facility or the community, as victims
will experience the same level of suffering and debilitation that was factored into those analyses.
Even with the serious limitations of the Department‘s data in mind, however, it is clear that the
PREA standards will pay for themselves quickly in all types of facilities. The Department
consistently relied on overly conservative data in terms of benefits and generous estimates in
terms of costs, and still found that a mere three percent reduction in abuse is needed for the

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standards to break even in their costs and monetary benefits. As modest as the Department‘s
proposals are, their impact will still easily surpass this low hurdle.
Questions 56-61:
• With respect to §§ 115.12, 115.112, 115.212, and 115.312, are there other methods of
estimating the extent to which contract renewals and renegotiations over the 15-year
period will lead to costs for agencies that adopt the proposed standards?
• Do agencies expect to incur costs associated with proposed §§ 115.13, 115.113,
115.213, and 115.313, notwithstanding the fact that it does not mandate any
particular level of staffing or the use of video monitoring? Why or why not? If so,
what are the potential cost implications of this standard under various alternative
scenarios concerning staffing mandates or video monitoring mandates? What
decisions do agencies anticipate making in light of the assessments called for by this
standard, and what will it cost to implement those decisions?
• With respect to §§ 115.14, 115.114, 115.214, and 115.314, will the limitations on
cross-gender viewing (and any associated retrofitting and construction of privacy
panels) impose any costs on agencies? If so, please provide any data from which a
cost estimate can be developed for such measures.
• Will the requirement in §§ 115.31, 115.231, and 115.331 that agencies train staff on
how to communicate effectively and professionally with lesbian, gay, bisexual,
transgender, or intersex residents lead to additional costs for correctional facilities,
over and above the costs of other training requirements in the standards? If so,
please provide any data from which a cost estimate can be developed for such
training.
• Has the Department accounted for all of the costs associated with §§ 115.52,
115.252, and 115.352, dealing with exhaustion of administrative remedies? If not,
what additional costs might be incurred, and what data exist from which an estimate
of those costs can be developed?
• Is there any basis at this juncture to estimate the compliance costs associated with §§
115.93, 115.193, 115.293, and 115.393, pertaining to audits? How much do agencies
anticipate compliance with this standard is likely to cost on a per-facility basis, under
various assumptions as to the type and frequency or breadth of audits?
In facilities that currently are not taking the measures necessary to protect inmates from abuse,
meeting this basic expectation will undoubtedly require some expense. However, the
Department‘s own analysis also confirms the enormous financial benefit of protecting inmates
from abuse – and in any case, providing such basic protections to inmates is a constitutional and
moral obligation, to which there may also be financial considerations.129 By parsing out the
individual costs of each standard, the Department loses this critical perspective.
129

In this context, it is worth noting that the Supreme Court has unequivocally held that cost cannot be a factor in
refusing to meet Constitutional obligations, such as preserving inmates‘ right to be free from sexual abuse. See, e.g.,

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Nonetheless, as discussed further in the analysis of each of the provisions identified in these
questions, the possible costs of these measures must be considered in relation to the benefits they
will generate. Regarding § 115.12/112/212/312, in light of the conclusions of the Department‘s
break-even analysis – which clearly show that the benefits of the standards will far outweigh
their costs even though the Department used overly conservative assumptions to reach its
conclusions – private prison corporations cannot justify imposing additional costs to implement
these measures. Agencies must demand that all inmates from their jurisdiction are protected from
abuse, whether they are in public or private facilities. Having the force of binding regulation
from the federal government behind these demands should ease any negotiations on this point.
Compliance with the standards cannot be used as a bargaining chip.

With respect to the staffing and technology requirements of § 115.13/113/213/313, it is hard to
imagine how the Department‘s current provision would incur any costs as it lacks any specific
requirements or guidance on what adequate staffing and technology would entail. If JDI‘s
recommendations are adopted, agencies would still not be held to any specific levels of staffing
or camera use. By suggesting a number of concrete and relevant factors in sexual abuse that must
be taken into account when making staffing and technology decisions, agencies should be able to
allocate staff time and cameras efficiently, without incurring undue expense.

Contrary to the claims of some officials, limiting cross-gender supervision to prevent the viewing
or touching of inmates of the opposite gender need not require massive re-staffing. Basic
measures such as installing privacy screens, designating roving officers, limiting pat searches to
places where there is a likelihood of contraband being obtained (and conducting thorough
searches at these locations), and requiring officers to announce themselves just prior to entering
Watson v. City of Memphis, 373 U. S. 526, 537 (1963) (―[I]t is obvious that vindication of conceded constitutional
rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them.‖); Harris v.
Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991) (―[A] lack of funds allocated to prisons by the state legislature . . .
will not excuse the failure of correctional systems to maintain a certain minimum level of medical service necessary
to avoid the imposition of cruel and unusual punishment.‖); Finney v. Arkansas Board of Corr., 505 F.2d 194, 201
(8th Cir. 1974) (―Lack of funds is not an acceptable excuse for unconstitutional conditions of incarceration.‖); Flynn
v. Doyle, 630 F. Supp. 2d 987, 993 (E.D. Wis. 2009) (―Matters of administrative convenience must ultimately give
way when constitutional rights are in jeopardy.‖); Laube v. Haley, 234 F. Supp. 2d 1227, 1250, 1252 (M.D. Ala.
2002) (―It is well-established that funding is not an excuse for constitutional violations.‖).

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cell areas when inmates are likely to be changing or otherwise in states of undress would not
result in significant costs. Doing so, however, would reduce the opportunities for staff sexual
abuse and would help de-sexualize corrections culture – with all the financial benefits that would
be associated with such improvements.
In its cost analysis of the Department‘s proposed standards, the researchers from Booz Allen
Hamilton concluded that the training requirements collectively would not have any cost
impact.130 There is no reason for training on communicating with LGBTI inmates (§
115.31/231/331) to be treated differently than any of the other training topics. Notably, even the
marginal costs that could be incurred from the development of curricula and materials will be
negated by federal efforts already under way to develop training materials on this topic.131
Moreover, given the consistent findings that LGBTI inmates are disproportionately targeted for
sexual abuse, this training is clearly needed and will ultimately save money by reducing
incidents of sexual abuse while increasing reporting of such abuse. The exhaustion provision,
§ 115.52/252/352, does not go far enough to allow for any meaningful cost savings or expenses.
The Department revised the standard essentially to maintain the status quo within the BOP,
whose grievance policy is more stringent than that of 18 states. Easing these procedural
requirements for sexual abuse cases, and ensuring that all reports of sexual violence are afforded
the highest level of review in the first instance, would minimize costs incurred by administrative
and judicial review of whether a survivor complied with arbitrary requirements. It would also
result in the tremendous benefits of encouraging the merits of these claims to be addressed
swiftly and efficiently.

Finally, because most facilities currently are not subject to any relevant external oversight, audits
will invariably require some expense. However, given the lack of specificity in
§ 115.93/193/293/393 about what a PREA audit would entail, the actual costs are impossible to
determine. Booz Allen Hamilton estimated that the cost of triennial audits of every detention
130

See Booz Allen Hamilton, Prison Rape Elimination Act (PREA) Regulatory Impact Analysis (RIA), Cost Impact
of Revised Standards PP4, PP7, PP-2, TR-1, TR-2, TR-3, TR-4, TR-5, MM-3, SC-1, and SC-2, at 5 (prisons), 17
(jails), 29 (community corrections), 40 (juvenile detention).
131
See e.g., National Institute of Corrections & American University Washington College of Law, Project on
Addressing Prison Rape: Preventing the Sexual Abuse of Individuals in Custody, Training Materials, available at
http://www.wcl.american.edu/nic/training.cfm.

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facility would total $77.5 million per year – 14 percent of the compliance cost for the remaining
standards.132 This estimate includes a significant ―level of effort‖ on the part of corrections staff,
assuming that a full-time employee would be needed to support four prison audits per year. This
estimate is excessive, resulting in staffing costs for the audits exceeding the actual auditor costs.
Staff will need to collect most of the necessary data pursuant to other provisions, and the
remaining preparation and response required should not entail more than a week or two of effort.
Moreover, quality audits will substantially improve safety and decrease costs within facilities, by
identifying problems before they escalate and suggesting realistic, cost-effective solutions.
Questions 62-63:
• Has the Department used the correct assumptions (in particular the assumption of
constant cost) in projecting ongoing costs in the out years? Should it adjust its
projections for the possibility that the cost of compliance may decrease over time as
correctional agencies adopt new innovations that will make their compliance more
efficient? If such an adjustment is appropriate, please propose a methodology for
doing so and a source of data from which valid predictions as to ―learning‖ can be
derived.
• Are there any data showing how the marginal cost of rape reduction is likely to
change once various benchmarks of reduction have been achieved? If not, is it
appropriate for the Department to assume, for purposes of its breakeven analysis,
that the costs and benefits of reducing prison rape are linear, at least within the
range relevant to the analysis? Why or why not?
Over time – as the standards become law of the land, best practices become normalized, the
corrections culture becomes safer, incidents of abuse are reduced, and collateral safety concerns
are addressed – the costs of implementing the standards should go down, while the benefits
should go up. Additionally, several of the standards for which major or moderate ongoing costs
have been estimated are also subject to Constitutional requirements. Screening, supervision,
training, and provision of ongoing medical and mental health care are obligations independent of
PREA and their costs should therefore not be associated only with the PREA standards.
Question 64: Are the expectations as to the effectiveness of the proposed standards that
are subsumed within the breakeven analysis (e.g., 0.7%-1.7% reduction in baseline
prevalence needed to justify startup costs and 2.06%-3.13% reduction required for
ongoing costs) reasonable? Why or why not? Are there available data from which
reasonable predictions can be made as to the extent to which these proposed standards
132

IRIA, supra note 48, at 30-31, 59.

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will be effective in reducing the prevalence of rape and sexual abuse in prisons? If so,
please supply them.
The assumptions and valuations the Department has made in estimating the benefits of
preventing sexual abuse in detention are extremely conservative. By erring on the side of great
caution in its projections of those benefits, and then showing that they would still outweigh costs
even if the standards saved only three percent of all victims, the Department‘s analysis makes
clear that, even with additional costs, the net result of the standards will be substantial savings.
The goal of these provisions, as is made clear in the title and language of the Prison Rape
Elimination Act, is not to reduce prison rape marginally, but to eliminate sexual abuse in
detention. If the standards are strengthened in accordance with JDI‘s recommendations and then
fully implemented, the shockingly high rates of abuse would decrease by far more than three
percent.

The additional costs incurred by JDI‘s recommendations will be modest, and will be dramatically
outweighed by the resulting benefits. Fewer incidents of abuse will reduce the costs of the
investigations, grievances, and medical and mental health care required after an assault. Facilities
that are run more safely will have fewer security breaches, less physical violence, greater staff
retention, and ultimately, less litigation. Most importantly, by reducing the extent to which
inmates and residents endure the trauma of sexual abuse in detention, these basic measures will
decrease recidivism and increase the likelihood that detainees become law-abiding and
contributing members of society.

Since the standards are an effort to codify innovations and best practices of facilities that have
already had some success in reducing their rates of sexual abuse, examining the BJS data may
allow for a conservative, but not arbitrary, basis for estimating the impact of the standards.
Specifically, the estimate of possible gains can be based on what has already been accomplished
across the country by taking the average rate of abuse in the best half of the surveyed facilities,

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and assuming that this rate could become the national average. The top half of all facilities have
made their achievements without enforced standards, so there is still plenty of room for them to
improve and every reason to expect that they will once the standards are in place, though
probably not as dramatically as the bottom half of facilities. If the Department issues strong
standards and enforces their compliance, it would not be unrealistic to expect that the national
rate of abuse could be lowered to that of the top quarter or even the top tenth of all facilities.

According the latest BJS data, in adult prisons and jails, 4.4 percent of prisoners and 3.1 percent
of jail inmates are sexually abused nationwide over the course of a year. But in the better half of
all facilities, only 2.069 percent of prisoners are abused, and only 1.436 percent of jail inmates
are sexually abused. 133 Thus, if the standards allowed all facilities to do only as well as the top
half do now, they would be sparing not 3 percent of the people sexually abused in detention, but
more than 53 percent. This means that had the standards been in place in 2008, instead of the
199,500 people who the Department says were abused in adult prisons and jails, there would
have been about 93,100. More than 100,000 adults (as well as many thousands of children)
would have been saved an experience from which few recover emotionally.

133

An explanation of the math behind this number is provided in Appendix D to this submission.

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D.

CONCLUSION

The national standards mandated by the Prison Rape Elimination Act (PREA) have the potential
to become the most important tool so far in the effort to end sexual abuse in U.S. detention.
Strong standards will help spare countless men, women, and children every year an experience
from which few recover emotionally. Indeed, JDI believes that forceful PREA standards should
be able to prevent more than half the sexual abuse that plagues American detention facilities
today. The development of these standards represents a once-in-a-lifetime opportunity for the
Attorney General to end a domestic human rights crisis.

As made clear in this submission, Just Detention International considers several of the
Department‘s proposed standards too weak to offer the protections inmates need, and to which
they have a legal and moral right. The Justice Department's own data, together with its
preliminary cost-benefit analysis of the standards, make abundantly clear that much stronger
standards would be warranted even from a purely financial perspective. Weaker standards would
be arbitrary and capricious in their failure to protect inmates, detainees and residents, particularly
in light of the Department‘s own data and cost analysis.
When the government removes someone‘s freedom, it takes on an absolute responsibility to
protect that person‘s safety. No matter what crime someone might have committed, rape must
not be part of the penalty.

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E.

APPENDICES

Appendix A: Characteristics of Sexual Assault in U.S. Detention Facilities: Aggregate 2010
Figures from JDI‘s Survivor Database
Appendix B: Characteristics of Sexual Assault in Bureau of Prisons (BOP) Detention Facilities:
2002-2010 Figures from JDI‘s Survivor Database
Appendix C: List of Provisions in the Department of Justice‘s Proposed National Standards to
Prevent, Detect, and Respond to Prison Rape that are Missing from Immigration
and Customs Enforcement‘s Proposed 2010 Performance-Based National
Detention Standards (PBNDS) Provision 2.11
Appendix D: Just Detention International‘s Calculation of the Prevalence Rate of Sexual Abuse
in the Top Half of Facilities in the BJS Adult Inmate Survey

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Appendix A
Characteristics of Sexual Assault in U.S. Detention Facilities:
Aggregate 2010 Figures from JDI’s Survivor Database
In 2010, 524 survivors of prison rape from across the country wrote to Just Detention
International (JDI), describing their harrowing experiences. Fifty-six percent of these survivors
were abused while housed in a state corrections facility, while many others were victimized at a
federal facility, jail, private prison or youth detention facility.
JDI does not solicit correspondence, nor does it require specific information from survivors. All
information provided is voluntary and anecdotal. Most figures will not add up to the full number,
as survivors rarely provide all of the information listed below. Percentages are based on the total
number of survivors who provided such information.
Type of facility:
Men‘s facilities………………………………………………………………………….474 (89%)
Women‘s facilities………………………………………………………………………..50 (11%)
Survivor’s Sexual Orientation and Gender Identity:
Heterosexual…………………………………………………………………………….174 (48%)
Gay, lesbian, bisexual or transgender……………………………………………….......161 (42%)
Characteristics of the Assault:
Sexually assaulted by an inmate………………………………………………………...194 (55%)
Perpetrator was a cellmate…………………………………………………………….….85 (24%)
Sexually assaulted by staff (including non-custody staff)………………………………158 (45%)
Assaults carried out by more than one official…………………………………………...43 (12%)
Male perpetrator(s)………………………………………………………………………288 (94%)
Female perpetrator(s)………………………………………………………………………19 (6%)
Assault occurred in the survivor‘s cell…………………………………………………..143 (62%)
Dorm………………………………………………………………………………………16 (7%)
Shower…………………………………………………………………………………….19 (8%)
Work assignment………………………………………………………………………….11 (5%)
Other (e.g. laundry room, warehouse, bathroom, clinic, yard, etc.)……………………...44 (18%)
Impact of Assault on the Survivor:
Survivor experienced emotional trauma………………………………………………...185 (35%)
Survivor experienced physical injury…………………………………………………...129 (24%)
Survivor experienced suicidal ideation…………………………………………………...33 (6%)

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Official Response to the Survivor’s Report of Assault
Survivor reported assault to facility officials……………………………………………277 (52%)
Investigation conducted………………………………………………………………...112 (40%)a
Survivor received forensic medical exam………………………………………………..51 (18%)a
Survivor received adequate medical or mental healthcare………………………………..20 (7%)a
Survivor denied medical and/or mental healthcare…………………………………….101 (36%)a
HIV test provided………………………………………………………………………..39 (14%)a
HIV contracted……………………………………………………………………………………5
Other STD contracted……………………………………………………………………………..9
Survivor placed in segregation…………………………………………………………..88 (32%)a
Steps taken to protect survivor‘s safety...………………………………………………..61 (22%)a
Perpetrator disciplined…..……………………………………………………………….31 (11%)a
Perpetrator charged with a crime……………………………………………………….…22 (8%)a
***

a

Percentage based on the total number of survivors who reported the assault

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Docket No. OAG–131

Appendix B
Characteristics of Sexual Assault in Bureau of Prisons (BOP)
Detention Facilities: 2002-2010 Figures from JDI’s Survivor Database
One hundred and ten survivors of sexual abuse in Bureau of Prisons (BOP) detention facilities
around the country reached out to JDI between 2002 and 2010.b As with the 2010 aggregate data,
the figures provided below are based on anecdotal information that is provided voluntarily and
without any outreach by JDI. Percentages are based on the number who provided relevant
information (typically totaling less than 110).
Type of Facility
Men‘s prison……………………………………………………………………………..96 (87%)
Women‘s prison………………………………………………………………………….14 (13%)
Survivor’s Sexual Orientation and Gender Identity:
Heterosexual……………………………………………………………………...............33 (52%)
Gay, lesbian, bisexual or transgender………………………………………….................31 (48%)
Characteristics of the Assault:
Male perpetrator(s)………………………………………………………………………..71 (93%)
Female perpetrator(s)………………………………………………………………………5 (7%)
Sexually assaulted by an inmate………………………………………………………….54 (60%)
Perpetrator was a cellmate………………………………………………………………..18 (20%)
Sexually assaulted by staff (including non-custody personnel)……………………….….35 (39%)
Sexually assaulted by inmates and staff…………………………………………………….1 (1%)
Assault occurred in the survivor‘s cell…………………………………………………...24 (80%)
Other (e.g. work assignment, shower, warehouse)………………………………………...6 (20%)
Impact of Assault on the Survivor:
Survivor experienced emotional trauma………………………………………………….60 (50%)
Survivor experienced physical injury…………………………………………………….34 (31%)
Survivor experienced suicidal ideation…………………………………………………...10 (9%)
Official Response to the Survivor’s Report of Sexual Assault:
Survivor reported assault to facility officials……………………………………………..68 (62%)
Investigation conducted………………………………………………………………….28 (42%)c
Survivor received forensic medical exam………………………………………………..13 (19%)c

b

Nearly 20 percent of the survivors in JDI‘s database did not indicate in what type of facility they were held at the
time of their assault(s), so it is quite likely that this number is, in fact, even higher.
c
Percentage based on the total number of survivors who reported the assault.

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Survivor placed in segregation…………………………………………………………..29 (43%)d
Steps taken to protect survivor‘s safety...………………………………………………..11 (10%)d
Survivor received adequate medical and mental healthcare……………………………..…4 (6%)d
HIV test provided………………………………………………………………………..11 (10%)d
HIV contracted……………………………………………………………………………………5
Other STD contracted……………………………………………………………………………..5
Perpetrator disciplined…..………………………………………………………………….6 (5%)d
Perpetrator charged with a crime…………………………………………………………...5 (4%)d
***

d

Percentage based on the total number of survivors who reported the assault.

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Comments to the Department of Justice
Docket No. OAG–131

Appendix C
List of Provisions in the Department of Justice’s
Proposed National Standards to Prevent, Detect, and Respond to Prison Rape
that are Missing from Immigration and Customs Enforcement’s
Proposed 2010 Performance-Based National Detention Standards (PBNDS) Provision 2.11e
1.

PBNDS 2.11 does not detail how a detainee can report abuse. As a result, it is unclear
whether there are multiple reporting options (§ 115.51) or if any of them accommodate
inmates with special needs (§ 115.15). PBNDS 2.11 also does not provide for third party
reporting (§ 115.54).

2.

PBNDS 2.11 does not provide for agreements with outside public entities and community
service providers (§ 115.22), nor do detainees have access to confidential support
services (§ 115.53).

3.

PBNDS 2.11 does not provide for confidential staff reporting (§ 115.51(d)), nor does it
detail staff responsibilities in the aftermath of a report, other than to say staff should
follow facility policies (§§ 115.61-115.63).

4.

Aside from stating that retaliation will not be tolerated, PBNDS 2.11 does not detail any
efforts that must be made to ensure that retaliation does not occur. (§ 115.65)

5.

PBNDS 2.11 does not detail who conducts criminal investigations and, if facility officers
are not empowered to do so, what the policy is for contacting the appropriate legal
authority and ensuring that criminal and administrative investigations are coordinated. (§
115.23 and § 115.71). The PBNDS also does not provide for detainees to be informed of
key actions in an investigation/prosecution (§ 115.73).

6.

There is no specialized training for investigative and medical/mental health staff in the
PBNDS 2.11 (§ 115.34 and § 115.35).

7.

The screening portion of PBNDS 2.11 does not include the risk factors delineated in §
115.41.

8.

PBNDS 2.11 does not discuss how screening information would be used (§ 115.42),
particularly (a) whether a detainee‘s own assessment of vulnerability will be given
serious consideration and (b) whether there will be a case-by-case assessment for
transgender or intersex detainees to consider whether placement in a facility for male or
female detainees would best ensure the health and safety of the detainee without
imposing undue management or security problems.

e

While ICE‘s 2010 Performance-Based National Detention Standards are not yet publicly available, they were
leaked to the Houston Chronicle in October 2010 and temporarily made available on its webpage.

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Docket No. OAG–131

9.

PBNDS 2.11 does not provide for incident reviews (§ 115.86) or outside audits (§
115.93).

10.

PBNDS 2.11 does not cover background checks for staff in hiring and promotion
decisions (§ 115.16).

11.

PBNDS 2.11 does not provide for unannounced rounds conducted by intermediate or
higher supervisors in facilities with more than 500 inmates (§ 115.13(d)).

12.

While the PBNDS states that there should be a sexual assault coordinator at each facility,
it does not provide for an upper-level agency-wide PREA coordinator (§ 115.11(b)).

13.

The use of protective custody as a means of protecting detainees (§§ 115.43, 115.66) is
not sufficiently addressed in PBNDS 2.11.

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Docket No. OAG–131

Appendix D
Just Detention International’s Calculation of the
Prevalence Rate of Sexual Abuse in the Top Half of Facilities in the BJS Adult Inmate
Survey
The BJS administered its adult inmate survey at 167 prisons and 286 jails. To calculate
the prevalence rate of the top half of facilities, JDI took the rates of abuse from the better
performing 84 prisons and 143 jails in the BJS study and averaged them. (The figures reached
this way are not weighted averages: JDI did not try to account for the sizes of each different
facility or the number of inmates who responded to the survey in each. With such large sample
sizes, doing so would have made little difference.)
For both prisons and jails, JDI divided the average rate of abuse for the top half of facilities by
the overall rate found by the BJS; then multiplied the numbers this produced by the
Department‘s estimate of the numbers of victims in prisons and jails to reach the absolute
numbers.
JDI did not attempt to perform the same calculation for juvenile facilities out of concern that the
more limited data there might not support such an exercise; however, JDI is confident that strong
standards could make a dramatic difference in juvenile facilities, perhaps an even greater
difference than in adult prisons and jails given the higher overall rates of abuse in juvenile
facilities.
Jails (rate of abuse multiplied by the number of facilities with that rate):
2.8 x 4 = 11.2
2.7 x 7 = 18.9
2.6 x 8 = 20.8
2.5 x 5 = 12.5
2.4 x 5 = 12.0
2.3 x 6 = 13.8
2.2 x 4 = 8.8
2.1 x 6 = 12.6
2.0 x 5 = 10.0
1.9 x 7 = 13.3
1.8 x 4 = 7.2
1.7 x 8 = 13.6
1.6 x 6 = 9.6
1.5 x 3 = 4.5
1.4 x 7 = 9.8
1.3 x 2 = 2.6
1.2 x 3 = 3.6
1.1 x 6 = 6.6
1.0 x 5 = 5.0

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Docket No. OAG–131

.9 x 1 = .9
.8 x 2 = 1.6
.7 x 6 = 4.2
.5 x 3 = 1.5
.4 x 2 = .8
0 x 28 = 0.0
The products in that list all add up to 205.4. The average rate of abuse in these facilities,
calculated by dividing the sum of the averages by the number of facilities (205.4/143), is 1.436.
Dividing this rate of abuse by the rate of abuse in all jails (1.436/3.1) gives 0.46326 – meaning
that the rate of abuse in the better performing half of all jails was only 46.326 percent of the
national rate.
In this scenario, 53.674 percent of victims would be saved by the standards ((1 - 0.46326) x 100).
The number of victims in adult jails would be 50,078 (0.46326 x 108,100).
Prisons:
4.2 x 1 = 4.2
4.1 x 1 = 4.1
4.0 x 1 = 4.0
3.9 x 2 = 7.8
3.8 x 4 = 15.2
3.6 x 1 = 3.6
3.5 x 2 = 7
3.4 x 1 = 3.4
3.2 x 1 = 3.2
3.1 x 4 = 12.4
3.0 x 2 = 6
2.9 x 2 = 5.8
2.8 x 3 = 8.4
2.7 x 1 = 2.7
2.6 x 1 = 2.6
2.5 x 5 = 12.5
2.4 x 2 = 4.8
2.3 x 3 = 6.9
2.2 x 2 = 4.4
2.1 x 1 = 2.1
2.0 x 2 = 4
1.9 x 4 = 7.6
1.8 x 4 = 7.2
1.7 x 3 = 5.1
1.6 x 3 = 4.8
1.5 x 1 = 1.5
1.4 x 6 = 8.4
1.3 x 2 = 2.6
1.2 x 2 = 2.4
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Docket No. OAG–131

1.1 x 1 = 1.1
1.0 x 3 = 3
.9 x 2 = 1.8
.8 x 1 = .8
.7 x 2 = 1.4
.6 x 1 = .6
.4 x 1 = .4
0x6=0
The sum of the products is 173.8. Dividing this sum by the number of prisons (173.8/84) gives
an average rate of abuse for these facilities of 2.069. Dividing this rate of abuse by the rate of
abuse in all prisons (2.069/4.4) we get 0.47023. Multiplying this by the number of prisoners
whom the BJS estimates were sexually assaulted in 2008 (0.47023 x 91,400) gives, as the
estimated number of victims of sexual abuse in prison in 2008 if the national rate of abuse had
been as low as that of the better performing half of all prisons in the BJS study, 42,979.
Adding together the number of victims there would have been in jails and prisons if the national
average had been the average rate of abuse of the better performing half of all facilities (50,078 +
42,979) would result in a total number of 93,057 victims. Rounding to the nearest hundred, as the
Department does, this would be 93,100 victims.
Dividing this number of victims by the number of victims estimated in the Department‘s IRIA
(93,100/199,500) results in a differential of 0.466666667.
Based on these calculations, 53 1/3 percent of adult victims would have been saved (10.466666667 x 100).

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