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National Disability Rights Network Comments on Prea 2011

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NATIONAL

DISABILITY RIGHTS
NETWORK
Protection & Advocacy for Individuals with Disabilities

Executive Committee
President
V. Colleen Miller (VA)
(804) 225-2042
President Elect
Michael Bailey (OR)
(503) 504-0318
Secretary
Gloria Prevost (SC)
(803) 782-0639
Treasurer
Shirley Shea (TN)
(615) 298-1080
Regional Officers
Region I
Michael Bailey (OR)
Mary Faithfull (TX)
Bernadine Chavez (NM)
Region II
Ellen Gillespie (AL)
Amelia Headley LaMont (VI)
Gloria Prevost (SC)
Beverly Sheriff (MS)
Region III
Virginia Knowlton (MD)
V. Colleen Miller (VA)
Ed Paquin (VT)
Tasha Jones (NJ)
Region IV
Rocky Nichols (KS)
Shirley Shea (TN)
Gerry Gordon-Brown (KY)
Region V
Elmer Cerano (MI)
Teresa Larsen (ND)
At-Large
Stoney Polman (MI)
Fred Friedman (IL)
Peg Kepner (AZ)
Executive Director
Curtis L. Decker, J.D.

Submitted via www.regulations.gov

April 4, 2011
Attorney General Eric H. Holder, Jr.
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530
RE: National Standards to Prevent, Detect, and Respond to
Prison Rape, Docket No. OAG-131; AG Order No. 3244-2011
Dear Attorney General Holder:
On behalf of the National Disability Rights Network and the 57 Protection
and Advocacy Systems (P&As) that NDRN represents nationwide, we
thank you for the opportunity to submit these comments regarding the
proposed National Standards to Prevent, Detect, and Respond to
Prison Rape (herein “the Proposed Standards”). We appreciate your
leadership in acknowledging that sexual victimization of prisoners is
unacceptable – whether they be children, juveniles, or adults, and
regardless the reason they are confined in juvenile or adult correctional
1
facilities.
The Proposed Standards recognize that an ever-increasing number of
prisoners, especially those in jails and juvenile justice facilities, are
2
individuals who have disabilities and other special needs (e.g., prisoners
who have limited English proficiency). Due to the presence of increasingly
large numbers of vulnerable prisoners, it is imperative that the final
standards reflect best practices in disability and effective communication
accommodations – matters which we address below.
Importantly, the Proposed Standards take into account the welldocumented scientific evidence that children, adolescents, and juvenile
offenders are different from adults in their brain development, maturation,
and vulnerability to being exploited and victimized.3 The Proposed
Standards also recognize what is now known about the lifelong effects of
trauma experiences during childhood, and gender differences with regard

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to trauma histories and their influence on behaviors. By taking these and related
behavioral health issues into account, confinement facilities can create environments
that are safer and healthier for security staff and those who they are charged to confine
and protect.
The National Disability Rights Network (NDRN) is the membership organization for
the Protection and Advocacy (P&A) Systems, a nationwide network of
Congressionally mandated, legally-based disability rights agencies operating
independently in every state and territory in the United States. 4 P&A agencies have the
authority to provide legal representation and advocacy services to all individuals with
disabilities in any type of facility or community setting -- including prisons, jails, juvenile
justice facilities, schools, and community correctional facilities. The federal authorizing
statutes for the P&A Systems authorize them to monitor facilities, investigate
complaints of abuse and neglect, and provide training and technical assistance to
facility administrators to correct deficiencies found.5
In light of the extensive disability expertise of the P&A network, our comments about the
Proposed Standards primarily address special needs prisoners in general (Part C) as
well as specific categories of special needs (Section D), and related first responder
issues (Part E).
That information provides the framework for our comments regarding:
 Question 17 (Part F),
 exhaustion of remedies, and additional accommodations needed to safeguard
special needs prisoners (Part G), and
 related cost issues (Section H).
In addition, we have signed on to comments submitted by other organizations that raise
other concerns and suggestions about the Proposed Standards.

A. Proposed standards of note
The Proposed Standards incorporate important improvements over the ANPRM
circulated for comment last year. We support using “sexual abuse” in lieu of “rape” as
well as the proposed definition of “sexual abuse” (§ 115.6) which excludes consensual
sexual activity while not excluding sexual activity with those “unable to consent.” State
statutes and common laws typically deem certain individuals unable to consent due to
their age, the existence of certain disabilities, and when government employees have
abused their authority. To the extent that state laws vary widely on this issue, including
guidance regarding “consent” might help provide uniformity in the protections for
vulnerable populations across our nation.6
We also support the proposed definition of “juvenile facility” (§ 115.5) to refer to
anyone confined in it. This broad definition ensures that the standards apply to and
protect all children and youth confined in juvenile facilities, not just those who are
2

accused of or been adjudicated for having engaged in a delinquent act or criminal
offense.7
Victims of sexual abuse (“sexual abuse” is used collectively herein to refer to sexual
abuse or harassment), particularly those who are vulnerable due to age, disability, or
communication impairments, often are reluctant to report abuse. The Proposed
Standards include several provisions that will make it more likely that sexual abuse will
be disclosed, investigated, and addressed. These include: providing multiple reporting
options, including external abuse hotlines [e.g., §§ 115.15(a) &115.53(a)], accepting
third party and anonymous reports [e.g., §§ 115.54, 115.61(e) & 115.71(a)], providing
access to confidential emotional support services and victim advocates [e.g., §§
115.21(d)&(e), 115.53(a) & 115.55(b)] as well as prompt, unimpeded access to
emergency medical and mental health services [e.g., §§ 115.53(a) & 115.82(a)] along
with appropriate follow-up care [§§ 115.83}, and limiting access to confidential
information [e.g., §§ 115.41(g), 115.61(b) & 115.81(e)].
Other important provisions in the proposed standards require correctional facilities to:
identify prisoners with special needs [e.g., § 115.15], improve hiring processes to
minimize the opportunity for sexual perpetrators to work in their facilities [e.g., §
115.16], and provide private methods for staff to report abuse [e.g., § 115.51(d)]. In
addition, staff are required to accept reports made in any form by any person [e.g., §
115.51(c)]., and prisoners are to be informed of the results of investigations [e.g., §
115.73].
We also support your suggestion to remove the current ban on using Victims of Crime
Act (VCA) funding for treatment and rehabilitation services provided to incarcerated
victims of sexual abuse. To the extent that the ban has been applied to those victimized
while incarcerated who are no longer in confinement, VCA funding should also be
allowed for treatment and rehabilitation services provided to them.

B. Proposed standards that need fine tuning
The definition of juvenile facility is limited to facilities that are “primarily” used to
confine juveniles under the age of 18. Presumably “primarily” is used as a qualifier in
recognition that many juvenile facilities confine individuals who are older than 18,
including adjudicated juveniles who turn 18 while confined in a juvenile facility.
While we concur with the proposed definitions for “detainee,” “inmate,” and “resident,”
there appears to be a need to use terminology that refers to them collectively.
“Offender” is too narrow to serve that purpose (e.g., defendants confined in a jail
pending trial are not “offenders,” delinquent youth are not offenders, nor are nonadjudicated youth confined in detention facilities), but is used sporadically in the
Proposed Standards. Using “prisoner” is a better term to refer to all confined persons,
juveniles, and adults, who are confined for any reason in any type of secure
confinement facility. For example, the definition of “community confinement facility”
uses the word “offender” which has the unintended effect of excluding those confined in
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juvenile community confinement facilities. The final rules should delete the use of
“offender” and replace it with “prisoner.”
Two changes are needed regarding facility obligations to perform criminal background
checks before hiring [see, e.g., § 115.16(b)]. First, in addition to performing criminal
background checks, facilities should be required to check any abuse and neglect
registries maintained in their state regarding caretakers of vulnerable populations who
have been found to have abused, neglected, or exploited a person in their charge. 8
Secondly, the background check provisions should be reworded to require criminal and
abuse registry background checks only after making a qualified offer of employment
contingent on passing these background checks, rather than doing checks on everyone
who applies for a job. There are constitutional impediments to the latter. Since
background checks are not always free, the former also saves money.
The Proposed Standards include a comprehensive list of useful topics to be covered
during employee training [e.g., § 115.31]. However, the list does not include several
topics relating to special needs prisoners that are critically important because those with
special needs are more vulnerable to being victimized than other prisoners. Additional
topics for employee training include:
 Identifying special needs prisoners who have disabilities or effective communication
needs.
 Disability sensitivity training.
 Communicating with special needs prisoners.
 The effects of trauma histories and trauma informed practices.
 Dealing with the “code of silence” that often exists in institutional settings, and
avoiding retaliation from co-workers for complying with sexual abuse reporting
obligations.
The prisoner education obligations of facilities appropriately include refresher
information to be provided yearly as well as upon transfer to a different facility [e.g., §
115.33(c)], and importantly require this education be provided in accessible formats for
prisoners who have special needs [e.g., § 115.33(d)]. We offer some additional
comments about accessible formats in Part E below.
The Proposed Standards require specialized training for “medical and mental health
care” practitioners [e.g., § 115.35], and require them to report sexual abuse of which
they become aware [e.g., §151.61(c)]. However, the definition of “medical
practitioners” on its face does not include the dental professions. The final standards
need to also apply to dentists and dental hygienists who, as employees or contractors,
provide dental services in a confinement facility on a reoccurring basis.
Screening prisoners for risk of victimization or threat of abusiveness is a critical
component of a strong abuse prevention strategy. However, this screening needs to
take place much sooner than the “within 30 days of confinement” allowed by the
Proposed Standards [e.g., § 115.41(e)] – particularly for juveniles in any kind of facility.
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The 30-days timeframe is likely to be sufficient for rescreening prisoners who are being
transferred from a facility when the transferred prisoner has been screened within the
past six months and the results of that screening are provided to the receiving facility
contemporaneously with the prisoner‟s arrival. Although the unique design
characteristics and prisoner demographics in each facility make it necessary for
transferred prisoners to be rescreened on admission, the 30-day window for that
rescreening is less problematic than it is for new or transferred prisoners who have no
recent history of having been screened.
The protective custody standards [e.g., § 115.43] include important protections to
avoid unnecessary isolated confinement, which is especially important given what is
now known about the severe mental health effects of prolonged isolation, especially for
special needs prisoners. 9 These provisions only address, however, situations when
“involuntary” segregated housing might be appropriate, but does not provide guidance
regarding voluntary requests for protection due to fears of being victimized.
The reporting provisions focus on how prisoners can report abuse and harassment,
retaliation, or staff actions that may have contributed to abuse [e.g., § 115.51(a) & (b)].
They importantly require all staff to report any knowledge, suspicion, or information
regarding sexual abuse [e.g., § 115.61(a)], and likewise medical and mental health care
practitioners unless precluded by law [e.g., § 115.61(c)]. However, the Proposed
Standards fail to affirmatively require reporting by contractors, volunteers (e.g., clergy,
tutors, and mentors), and other third parties (e.g., visitors, staff of social services
agencies).
The Proposed Standards require disciplinary sanctions to be taken against staff and
other prisoners for violating sexual abuse or harassment policies [e.g., §§ 115.76 &
115.77], but are silent about sanctions against contractors and volunteers beyond
reporting them to law enforcement authorities. At a minimum, it should be clear in the
final rules that substantiated allegations should result in immediate suspension and
termination of any contract, agreement, or arrangement pursuant to which individual
contractors, volunteers, and third parties had direct contact with prisoners.
The Proposed Standards are silent about failure to report. The final rules should
require that substantiated failure to report should result in disciplinary action against
staff (up to and including discharge), and appropriate corrective action taken with
contractors (including termination of their contract) and volunteers (including revocation
of volunteer privileges). Anyone, other than prisoners and legal counsel for prisoners,
who has cause to believe that sexual abuse has occurred should have a reporting
obligation, and failure to report should result in meaningful consequences. 10
No time frames are provided for completing administrative investigations [e.g., §§
115.21 & 115.71]. This is inconsistent with best practices for sexual abuse
investigations by child protective and adult protective service agencies. In addition to a
prompt initial response, 30 calendar days to complete an investigation and reach a
finding is a best practice in abuse investigations involving children or adults. While more
5

than 30 days might be needed to finalize the written investigation report, it is feasible
and important for many reasons to arrive at a finding within 30 calendar days, and then
promptly inform the facility and the alleged victim of that finding.
Requiring administrative investigations to be completed within 30 calendar days is
important for a broad spectrum of reasons, especially given that not all allegations will
be substantiated and some will result in an “unfounded” finding [e.g., § 115.73(a)].






Accused employees may have been temporarily suspended or reassigned pending
the results of the investigation, which might result in staffing problems for the facility.
The results of the investigation allow the facility to make permanent staffing
decisions.
Wrongfully accused employees who are exonerated by an investigation need
prompt closure to clear their names and return to work.
Accused prisoners may be locked down in isolation cells pending the results of an
investigation and, if cleared of the accusations, be allowed back into the general
population.
Victimized prisoners often experience considerable anxiety about whether the
investigation will result in an unsubstantiated finding, which could mean ongoing
exposure to victimization or retaliation by the accused perpetrator (staff or prisoner)
and the need to request protective custody.

The data collection provisions [e.g., § 115.387(a)] should be revised to require that
information about the disability and special needs status of alleged and confirmed
victims be included in the required data collection and analysis.

C. Disability and effective communication accommodations –
general considerations
For purposes of these comments, special needs prisoners include confined youth and
adults who: are deaf or hard of hearing; are living with mental illness; or have a
physical, sensory, intellectual, developmental, cognitive, or psychiatric disability that
impairs communication. “Special needs prisoners” also includes prisoners who have
limited English proficiency (LEP). In addition to general comments about special needs
prisoners, we offer more specific comments in Part E below with regard to several
specific categories of special needs.
Impaired communication skills increase vulnerability to being abused and exploited.
Providing disability and effective communication accommodations is critically important
to ensuring the ability to:
 Comprehend the training provided about the facilities policies and procedures
relating to sexual abuse and harassment [e.g., § 151.33].
 Effectively report abuse that has occurred.
 Provide accurate information to first responders.
 Assist in investigations.
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 Meaningfully understand and access grievance and informal resolution processes.
As a result, a range of accommodations will be necessary for special needs prisoners in
order to ensure that the final rules accord them protections, safeguards, and due
process equal to those provided to other prisoners.
Effective communication needs and accommodations for prisoners in any special
needs category are not identical. There is rarely an approach to effective
communication that serves as a one-size-fits-all for every individual in the same special
needs category. Similarly, all prisoners without special needs who speak English as
their primary language do not have the same maturity and literacy to read or
comprehend the spoken language at the same grade level. As a result, it is a best
practice to adopt universal precautions for communicating with all prisoners – such as
11
using a sixth grade reading level for written materials intended for adults, and a third
12
grade reading level for confined juveniles. In addition to universal precautions
designed to be effective for the largest number of communications, policies and
practices need to be in place to provide accommodations for the smaller number of
individuals who need them.
In any institutional environment with a diverse population, it is crucial for all staff to be
sensitive to the importance, and individualized nature, of effective communication in
promoting security and effective behavior management. This necessary staff
sensitivity and communication competence is achieved by:
 Pertinent policies, procedures, and practices that emphasize effective
communication in all areas prisoner interactions.
 Training for all new staff during an orientation curriculum that needs to be completed
before working in positions with direct prisoner contact, along with annual refresher
training.
 On-going supervision of staff to ensure communication competence, including
debriefing sentient incidents, and requiring participation in self-improvement training
as needed.
 Oversight and quality assurance.
All confinement facilities are likely to have special needs prisoners in their custody –
whether known or unknown to the facility. As a result, the best way to meet the effective
communication needs of all prisoners is to have in place best practices that are
minimally necessary for a broad range of special needs, consistent with concepts of
13
“universal design.”
Best practices in correctional facilities with regard to disability and effective
communication accommodations include:


Adopting and implementing policies, procedures, and practices that emphasize
effective communication in all aspects of prisoner interactions (e.g., intake,
classification, health care, disciplinary proceedings).
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


















Identifying during the intake/booking/admission process those prisoners who have
special needs, including accommodations for effective communication, by providing
specialized training for intake/booking/admissions staff on effective approaches to
obtaining this information from prisoners to ensure it is accurate and complete, and
using appropriate questionnaires and screening tools that are available in various
accessible formats.
Documenting this information in each prisoner‟s files and facility records in a manner
that makes it available only to facility staff who have a need to know the information
(e.g., classification staff, medical and mental health care staff, ADA coordinators,
grievance staff, and those who will have contact with the prisoners in due process
settings).
Maintaining a database in which to promptly enter this information, and making it
easily accessible to security and other staff who might need to use that information
on short notice (e.g., during the initial response to the reporting of a sexual abuse
incident when forensic evidence might still be available).
Training staff about confidentiality and privacy issues, taking prompt disciplinary
action for violations, and ensuring that information about disabilities and mental
health diagnoses are disclosed only on a need-to-know basis.
Forwarding information in a timely manner when a prisoner is transferred to another
facility, agency, or service delivery system.
Having services and contracts in place for routine accommodations to ensure
effective communication with common special needs populations (e.g., a contract
with providers of foreign-language interpretation services by video conferencing; a
contract with a service provider of video relay services for communicating with
persons who are deaf; in larger facilities, hire designated staff who are certified ASL
interpreters and on call 24/7).
Having processes in place, including specialized training for designated staff who
will review information received about prisoners who have effective communication
needs, in order to identity additional non-routine communication services that need
to be put in place (e.g., a prisoner who has expressive aphasia who needs
individualized supports to communicate;14 a prisoner with a significant traumatic
brain injury who needs specific accommodations to understand communications).
Having processes and on-going training in place to collect, record, and enter in the
facility‟s database any effective communication needs that become known or are
developed subsequent to being admitted to the facility (e.g., a prisoner who
develops a speech disability due to a stroke, an aging prisoner who develops
dementia, prisoners who become actively psychotic while in long-term isolation).
Ensuring all staff, contractors, and volunteers who have contact with prisoners are
provided periodic sensitivity training on effective communication with special needs
populations.
Educating prisoners and those who visit them about the facility‟s commitment to
providing disability and effective communication accommodations, what
accommodations are available, and how to make confidential requests for
individualized accommodations.
Educating all prisoners and staff about the facility‟s zero tolerance policy (e.g.,
§115.11) and related matters, including: the rights of prisoners to be free from
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sexual abuse and harassment, their rights to same gender searches and viewing,
reporting obligations of staff who have reason to believe that sexual abuse or
harassment has occurred, how victims can report sexual abuse or harassment, how
third parties can make reports, the rights of victims, and the facility‟s response and
investigation process.
These best practices need to be in place for a variety of penological purposes
unrelated to sexual abuse prevention and interdiction, including:
 Making classification and housing decisions.
 Providing accommodations for activities, programming and services that a facility
makes available to prisoners who do not have special needs.
 Providing special education services required by the Individuals with Disabilities
Education Act (IDEA).
 In connection with due process proceedings (e.g., probation/parole hearings,
disciplinary proceedings, processing of grievances).
 Dental, health and mental health care.
Since these practices should already be in place in every well-run facility, extending
them to preventing and responding to sexual abuse incidents is relatively simple and
inexpensive.

D. Disability and effective communication accommodations –
specific special needs populations.
Confinement facilities that have adopted and implemented the best practices outlined in
Part C, above, will be well-prepared to provide accommodations on short notice to
ensure effective communication with special needs prisoners when responding to
sexual abuse allegations. That includes necessary accommodations identified when
prisoners are first admitted to the facility (as discussed in Part C, above) as well as
those that prisoners subsequently acquire while incarcerated due to aging, injury, or
disease.
The proposed guidelines importantly require facilities to avoid using other prisoners as
interpreters absent exigent circumstances [e.g., § 115.15(a)]. Similarly, family members
and acquaintances of special needs prisoners should not be used as interpreters
except in emergency situations when no viable alternative option exists. These
requirements are necessary to protect the confidentiality, privacy, dignity, and safety of
prisoners, and to ensure objectivity and fidelity of interpretation.
It is important to recognize that, due to the stigma of having disabilities or being
perceived as “different” in our culture, many individuals work hard to hide their
communication needs. They often adopt coping skills that are used to fake
competence in communicating using English. Often eager to obtain approval and pass
as competent, some persons who have communication impairments will try to guess
9

what the other person has said, and then respond (sometimes nods of their head to
indicate “yes” or “no”) by providing an answer that they think the other person wants. 15
1. Effective communication with prisoners who are blind or have low vision.
Accommodations needed by prisoners who are blind or have low vision often depend
on the age of onset. Some prisoners serving long sentences might develop low-vision
as they age. Absent another special need (e.g., low literacy or limited English
proficiency, cognitive disabilities), blind or low vision prisoners might not require any
accommodations during exclusively verbal interviews – unless there is a need for the
prisoner to read text, view photos or other physical items, or review and sign
documents. Accommodations needed to access written materials and objects vary
depending on individual needs and abilities.
Effective communication strategies for making forms, notices, documents, and
other written materials accessible for blind or low vision prisoners
 Providing large print versions (14 point font size or larger as needed by an
individual) on plain light-colored paper using a dark-colored sans serif font (e.g.,
Arial, Tahoma) and providing captions to describe photos, graphs, and other nontext information as warranted, avoiding the use of Italics and justified text.
 Providing a Braille copy for those who are proficient in reading using Braille.
 Providing an electronic device that will read the document to the prisoner; e.g., a
tape-recorded version, or voice recognition software on a laptop or computer
(provided the document is accessible for the software to read).16
 Having another person, such as a trained staff member of the same gender, read
out loud to the prisoner, taking into account whether the communication involves
confidentiality, privacy, or trauma issues making this an inappropriate
accommodation.
 When an outside third-party is assisting a special needs prisoner in accessing and
using a grievance system [e.g., § 115.352(c)(4)], allowing that person to read and
discuss it with the prisoner.
 Allow a service animal to accompany the prisoner,17 particularly if the animal
reduces anxiety and emotional distress that would interfere with effective
communication.
2. Effective communication with prisoners who are deaf or hard of hearing
As with other special needs, deaf prisoners are not a homogeneous group, and
stereotypical assumptions about effective communication should not be made about
deaf or hard of hearing prisoners.
Due to age of onset and other factors, there will be individualized differences in the
accommodations needed to ensure effective communication. For example:

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 Persons who were born deaf or became deaf early in life before acquiring English
language skills and who use American Sign Language (ASL) with varying
proficiency.
 Persons who do not use ASL for communication, and have learned to read lips and
who voice in English with varying degrees of ability and intelligibility.
 Persons who do not use ASL but have developed a system of home signs – hand
gestures unique to them and known only to some family members and friends. 18
 Persons who became deaf or hard of hearing later in life, after having acquired
English language skills. Assuming the person is proficient in English and has no
other impairments that need to be accommodated, communicating with them can
often be accomplished by texting or other written communication methods.
 Deaf persons from other countries who use a sign language or a mode of signing
other than ASL.
 Older prisoners losing their hearing later in life may not acknowledge their hearing
loss and, due to difficulty hearing, may simply answer yes or no, when they in fact
have not heard the question. They also might be more withdrawn from
conversations. This withdrawal and lack of communication may be misinterpreted
either as tacit understanding of instruction or acceptance of the conditions around
them, or as oppositional and lack of cooperation – when, in fact, their silence and
lack of engagement is actually due to loss of hearing.
Effective communication considerations and strategies
ASL is a language with its own vocabulary, grammar, and syntax. It is not the English
language converted to hand gestures and movements. Persons who are fluent in
English and also in using ASL are bilingual. When using an ASL interpreter as an
accommodation, only qualified ASL interpreters should be used. 19 Other prisoners,
staff, volunteers, and third parties should not be used as ASL interpreters without
documented qualifications. Many prisoners who communicate using ASL have limited
or no ability to read and write in English such that attempting to use written notes is not
an effective option.
Smaller facilities are more likely to contract with an ASL service that has certified ASL
interpreters available 24/7 via video teleconferencing using electronic devices. Video
interpretation using a remote interpreter has some limitations, and it is critical for facility
staff to have proper training on the use of the equipment.
Communication is more effective if the qualified ASL interpreter is physically present in
the same room as the deaf or hard of hearing prisoner. Larger facilities might hire staff
qualified to interpret ASL who are paid to be on call as needed on short notice. In some
large urban areas, there are rape crisis centers that use certified ASL interpreters who
go to emergency rooms, jails, and other locations on short notice.

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3. Effective communication with prisoners who have limited English proficiency
(LEP)
Prisoners with LEP are unable to communicate effectively in English because their
primary language is not English and they have not developed fluency in the English
language. They may have difficulty understanding and speaking or reading and writing
in English, or both. Just because prisoners can adequately communicate verbally in
English, that does not mean they can read and write in English. When English is not a
prisoner‟s primary language, vigilance is needed to identify when the prisoner is
attempting to fake an ability to read and understand English - due to embarrassment,
pride, or another reason.
Absent clear evidence of a prisoner‟s competency to communicate using English, a
qualified bilingual interpreter should be used during important communication events
(e.g., responding to and investigating abuse incidents, obtaining information for use in
screening and classification decisions, grievance processes) to translate verbal
communications, as well as written materials not already available in the prisoner‟s
primary language.
Bilingual family members and friends of prisoners who can communicate with them in
their primary language should not be used for communication absent exigent
circumstances.20 Other prisoners, facility staff, volunteers, and third parties should not
be used as foreign language interpreters without documented qualifications.
Facilities can contract with a provider of online interpretation services for a wide range
of languages. Some providers charge an affordable monthly service fee for access to
their services, and also charge by the hour for interpretation services provided via video
teleconferencing. Interpretation services in many languages are provided 24/7, but
some languages less common in a jurisdiction might require advance notice.
It can be harder for facilities to identify non-visible communication impairments of
prisoners who are LEP, such as cognitive, intellectual, and mental disabilities, and
traumatic brain injury. Silence and maladaptive behaviors that are the product of
communication impairments might be misperceived as malingering. Facility staff, as
well as first responders and investigators, need to be trained in identifying these
additional communication impairments and the accommodations necessary to ensure
effective communication.
4. Effective communication with prisoners who have intellectual disabilities
The caveat noted above about the broad spectrum of capabilities and disabilities in any
special needs category is especially true for prisoners who have intellectual or other
developmental disabilities. The causes of intellectual disabilities include brain
abnormality, diseases and injuries. Some causes happen before birth (e.g., Down
Syndrome, fetal alcohol syndrome, Prader-Willi syndrome, fragile X syndrome), some
12

occur during birth (e.g., asphyxia, hydrocephalus, cortical atrophy), and others happen
during childhood (e.g., infections meningitis, serious head injuries, strokes).
Speech and language difficulties are common. Impairments in other areas of
functioning (e.g., sensory and physical impairments) also can affect communication.
The “moderate” and “severe” ranges of intellectual disabilities typically affect cognitive
(thinking) abilities. Accommodations need to be individualized to each prisoner‟s needs
and abilities.
It is important not to make assumptions based one aspect of a prisoner‟s language
skills. The ability to communicate information to others does not necessarily correlate
with receptive language skills, and language competence might vary depending on the
context (e.g., the subject matter or level of emotional stress). In addition, many
prisoners with intellectual disabilities also have a dual diagnosis of a co-occurring
psychiatric disorder which can compromise communication.
Understanding the role of behavior as communication is especially important in helping
prisoners with intellectual disabilities disclose abuse they have experienced. Out of
frustration, anxiety, or an inability to express what has happened, communication might
be expressed via maladaptive behaviors, including self-harm, or by shutting down. Staff
with specialized training to support and communicate with prisoners who have
intellectual disabilities can better understand the subtext of behaviors. Using
deescalation skills to calm prisoners down, trained staff can assist them in reporting
victimization.


Effective communication considerations and strategies

 There are inexpensive tools that facilities can use to identify the reading, writing, and
communication abilities of prisoners with intellectual disabilities on admission.
 During an interview, prisoners might tell what they think the interviewer wants to
hear. To elicit accurate information, questions should be phrased in a neutral way
Responses can be verified by repeating questions in a different way.
 Information needs to be provided in a form, language and manner (verbal and nonverbal) that the prisoner can understand.
 Augmentative or alternative communication systems can be used to communicate
with prisoners who are minimally verbal, and those who have extremely poor speech
which is unintelligible.
 Interviewers must avoid contributing to a prisoner‟s communication difficulties –
essentials are patience, respect, a supportive environment, and taking the time
necessary for communication to occur.
 It is often helpful to offer prisoners the option to have someone they trust to be
present (e.g., a facility employee, a clergy member).
Many prisoners with intellectual disabilities do not have literacy skills. Some lack the
ability to acquire them, and others have never been taught how to read and write.
Effective accommodations for prisoners who cannot read or write vary depending on
13

their skills and abilities. Some can understand written information by listening to a
recorded version or having it read to them. Others need the information to be
paraphrased for them -- some requiring information to be explained in simplistic terms speaking slowly, using short sentences and short words, one idea at a time, and
continuously testing comprehension by asking open ended questions.
5. Effective communication with prisoners who have psychiatric disabilities
There is enormous variability in mental health and psychiatric problems that present
themselves in individual prisoners. Symptoms affecting communication for the same
individual can vary in intensity and kind at different times. Brain disorders can affect
cognition, comprehension, and coherent expression of thoughts, especially when
symptoms are acute. Prisoners who had been stabilized through the use of particular
medications before confinement often have their medications discontinued or abruptly
changed after confinement. Over time, this can lead to decompensation and the
emergence of psychiatric symptoms. Some symptoms are not visible and cannot be
detected based on external appearance. This variability in symptoms can lead to
erroneous assumptions that a prisoner is malingering or faking symptoms, and incorrect
conclusions about the quality of receptive communication at a particular time.
People with psychiatric disabilities in general have average to above average
intelligence in comparison to the general population. Mental illness is not related to
intellectual disabilities and vice-versa, although some individuals are dually diagnosed
with co-occurring disorders. It should not be assumed that someone who has a
psychiatric disability is violent – they typically are more likely to be victims than
perpetrators of violence.
Specialized training should be provided to first responders, investigators, grievance
coordinators, and other designated staff in order to equip them to communicate
effectively with prisoners who have mental health problems.


Effective communication considerations and strategies

 Some mental health issues can cause confusion or sensory overload. It can be
helpful to conduct the interview in a space free of extraneous noise and distractions.
Accommodations include: speaking slowly and softly in a calm and normal voice;
keeping communications simple, clear, and brief; ask or state one thing at a time;
verifying comprehension of what has been said by using open ended questions.
 Other accommodations include: not rushing the interview, giving the prisoner time to
collect their thoughts and express themselves, repeating information several times,
and explain things that might seem obvious.
 If a prisoner says things that are superfluous or makes bizarre statements, it‟s best
to let such comments pass without disagreeing, redirecting the prisoner to keep
them on topic.
 Persons with psychiatric disabilities often know what is best for them and can
demonstrate good judgment, including how to cope with stress. If prisoners seem
14

stressed or agitated, it can be helpful to calmly ask if there is anything you can do to
help them.
 If paranoia appears to be a factor, interviewers should keep a respectful distance,
avoid invading the prisoner‟s space or making unnecessary movements, and
conduct the interview in a supportive environment to help the prisoner feel
comfortable and safe in responding to questions.
 It might be helpful to offer the prisoner the opportunity to have someone present
(other than another prisoner) who the individual knows and trusts (e.g., a facility
employee or volunteer, a mental health case manager, the Grievance Coordinator).
 If the interview is not resulting in productive information due to the prisoner‟s mental
state at the moment, ending the interview and resuming it awhile later in time can
help. Several approaches might be needed before the prisoner is ready to
communicate about the reported incident.
6. Effective communication with prisoners who have speech disabilities
A number of disabilities that affect a prisoner‟s receptive communication skills or ability
to speak. Some prisoners with speech disabilities are individuals who have cerebral
palsy (CP) affecting their ability to control speech production. 21 When this is the reason
for the speech impairment, the problem typically is unrelated to intellectual functioning
or hearing abilities. Persons living with CP typically have average to above average
intellectual functioning. Interviewers should speak with them as normally as possible
without treating them as if they are deaf or hard of hearing (e.g., by not talking louder)
or as if they have intellectual or cognitive disabilities (e.g., by not talking unnecessarily
slowly) unless an accommodation is indicated.
Patience is needed in giving the individual as much time as needed to physically
express themselves. The person should be allowed to speak for themselves and
complete the communication, without the interviewer doing it for them. When the
interviewer is unsure about having understood what has been said, it is appropriate to
ask the person to repeat themselves, or to check understanding by repeating what the
person has said to verify it is correct.


Effective communication considerations and strategies

 Using an augmentative or alternative communication system consistent with the
individual prisoner‟s needs and abilities.
 Using as an interpreter someone competent to understand the person‟s speech and
qualified to repeat it accurately, and asking the person being interviewed to affirm
the accuracy of the interpreter„s understanding, sentence by sentence if needed.
 Using another effective accommodation suggested by the individual, a family
member or other person who knows the individual well enough to provide useful
information, or a qualified expert who has evaluated the individual‟s effective
communication needs.

15

Other prisoners have speech impairments due to brain damage from a stroke, an
illness (e.g., encephalitis, bacterial meningitis), or external trauma that has affected
their ability to communicate (e.g., a traumatic brain injury). The damage might have
impaired their receptive language abilities (i.e., to receive and understand messages) or
their expressive language abilities (i.e., to clearly verbalize and articulate what they
want to say), or both. Having these types of speech disabilities can cause a prisoner to
be especially vulnerable to abuse by others.
Accommodations that they need to communicate often are highly individualized, often
requiring the involvement of appropriate experts. Accommodations for some persons
with only an impairment in expressive abilities might include giving them more time to
express themselves, allowing them the opportunity to write down what they want to say,
or using one of the accommodations indicated above for individuals whose speech is
22
impaired due to CP.
7. Effective communication with prisoners who have traumatic brain injuries (TBI)
Any injury to the head can result in a traumatic brain injury (TBI). The incidence of TBI
is rising among prisoners due to the increase in the number of military veterans with
service-related injuries coming into contact with the criminal justice system. Other
frequent causes of TBI are domestic violence and sports injuries prior to incarceration,
and altercations and physical abuse while incarcerated.
Individuals living with a brain injury can have significant cognitive and communication
impairments depending on the location of the injury in the brain and how severe it is.
Survivors of a brain injury might have trouble finding words they need to express an
idea or explain something, especially under stress or when rushed, and they might
experience difficulty with writing and reading as well. Communication problems that
facilities might encounter with prisoners who have a TBI include: trouble taking turns
during a conversation, difficulty staying on a topic, using an inappropriate tone of voice,
and an inability to interpret conversation subtleties or facial expressions. 23 In addition,
their reactions and affect might be disproportionate to the situation – either being
overemotional and overreacting, or having a flat emotionless affect. Persons with TBI
might have little to no awareness of their communication difficulties. Those with trauma
histories often exhibit unusually high anxiety during a restraint, which can trigger a
“flight or fight” syndrome.
Cognitive problems experienced by Individuals who have had a TBI often include:
attention to tasks, memory, reasoning, problem solving, planning, an awareness of
surroundings, trouble concentrating when there are distractions, slower processing or
"taking in" of new information, completing tasks, and reacting impulsively.


Effective communication strategies

 Removing distractions (e.g., noises, other people and activities in the area).
16






Breaking information down into smaller pieces.
Talking about one thing at a time.
Giving the prisoner time to process crucial information.
Slowing down the rate of speech, having patience and giving them time to respond
to questions,
 Redirecting them when they stray from the topic.
 Not making assumptions based on the prisoner‟s visible affect or body language.
 Deescalating overly emotional and inappropriate reactions.

E. Disability and effective communication accommodations –
reporting and responding considerations
When a correctional facility receives a report that a prisoner might have been the victim
of sexual abuse – whether the report comes from the victimized prisoner or someone
else with knowledge of the incident --, it is important to promptly obtain vital information
and forensic evidence. There might be safety issues that need immediate attention
(e.g., the reporting prisoner might have immediate health and mental health needs;
accused staff might need to be suspended pending an investigation or reassigned to a
non-prisoner contact position; or an accused prisoner might need to be sequestered
pending the investigation). Potential eyewitnesses need to be promptly identified and
interviewed in a timely manner before memories fade, or collusion or coercion can take
place.
The prisoner alleged to have been victimized (“the alleged victim”), eyewitnesses,
collateral witnesses, and the accused (whether staff or prisoners) need to be
interviewed in a manner most likely to result in obtaining accurate and complete
information without contaminating their memories or causing them to feel coerced into
recanting or concealing critical information. In correctional settings that have
appropriate policies and procedures in place as described in Part C, above, first
responders can have immediate access to necessary information about the disability
and effective communication needs of each prisoner to be interviewed.
Best practices during the initial response include three basic elements
1. The initial responder needs to promptly identify from the facility‟s records and
database whether the alleged victim is a special needs prisoner, and make
immediate arrangements for the accommodations and supports needed for
effective communication.
2. Interviews with the alleged victim and other prisoners and staff take place in a
private and confidential space to ensure persons being interviewed are not
adversely affected by outside influences – such as fear of retaliation by staff or other
prisoners – or placed in harm‟s way by being marked as a “victim” or a “snitch.”
3. There needs to be enough time for the interview to take place without being
rushed. Communicating with special needs prisoners often requires great patience
by trained staff who will take the time needed for accurate and complete
communication. First responders and other staff who are not experienced in using
17

alternative forms of communication and other accommodations might become
annoyed by the slow pace of the communication process with some special needs
prisoners. Prisoners who sense that irritation or who feel hurried can become
flustered, agitated, or upset. This can result in prisoners rushing over important
details, losing their train of thought, shutting down, or communicating via
maladaptive behaviors. All of which is counterproductive to obtaining the accurate
information needed for a sexual abuse investigation.


Accommodation issues

Most facilities place the burden on prisoners to request accommodations. They have a
process in place for requesting reasonable accommodations, which begins with the
prisoner obtaining, filling out, and submitted a form to the ADA Coordinator. If the
request is denied, the prisoner has a right to appeal. These processes can take months
to complete. They also require a degree of sophistication and cognitive functioning on
the part of prisoners to know what accommodations to request and how to request
them. For this reason, it is a best practice for facilities to initiate the accommodation
identification process, and to do so shortly after a prisoner‟s admission to a facility.
When this has not been done in advance, a facility might not be able to ascertain on
short notice what effective communication approaches might be needed to quickly
obtain crucial information during the initial response to a sexual abuse incident. In those
situations, a facility‟s formal process for requesting ADA accommodations should be
superseded when time is of the essence. The first responders should have completed
appropriate disability sensitivity training to help them identify when accommodations are
needed, and what immediate accommodations can be provided in order to obtain
needed information when time is of the essence. However, the accuracy and
completeness of the information so obtained is likely to be compromised. The better
practice is for the facility to already have needed accommodations identified and in
place as described in Part C above.


Confidentiality issues

When special needs prisoners have been victimized, it is especially important to protect
the confidentiality of written information generated during the initial response and
investigation of alleged sexual abuse. This includes how documents are handled, where
they are stored, and who has access to them. Alleged victims and eyewitnesses (staff
as well as prisoners) can be placed in harm‟s way if information and documentation is
available to those who do not have a need to know. In addition to adopting appropriate
confidentiality precautions and educating staff about them, as required by the Proposed
Standards, the final rules should require confidentiality violations to be promptly
investigated and appropriate disciplinary actions taken as warranted.

18



Cross-gender considerations

The same-gender and cross-gender considerations relating to pat downs and body
searches [e.g., § 115.314] should apply to non-medical first responders and those who
investigate reported incidents of sexual abuse or harassment. They also should apply in
general to interpreters and persons who provide communication supports for effective
communication purposes. For example, when a female LEP prisoner who has
experienced sexual victimization in a correctional setting is interviewed using a videoconferencing interpreter service, the interpreter should presumptively be a female.
Research shows that the overwhelming majority of female prisoners have trauma
histories.24 Similarly, most individuals with intellectual and other developmental
disabilities have been victims of physical and sexual abuse. 25 Female prisoners are
more vulnerable to victimization in general, and special-needs female prisoners can be
especially vulnerable. These dynamics make it less likely that female prisoners will
report sexual victimization, and will more easily feel coerced into recanting or not
cooperating with an investigation absent effective communication. Given these
demographics, it is a best practice to presume that same-gender staff should be used
to effectively communicate with female prisoners when responding to sexual abuse
incidents (except for health and mental health professionals, or family members and
others who a prisoner specifically is allowed to request to assist with communication)
[see, e.g., § 115.352(c)(4)]. The final rules or implementing regulations should so
provide.

F. Question 17
Your notice and request for comments regarding the Proposed Standards include 64
specific questions, some of which directly or indirectly relate to special needs prisoners.
Question 17 asks the following:
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?
With the assumption that this question pertains to all special needs prisoners (not just
“inmates” as defined by the Proposed Standards), our response is in the affirmative –
the final rules should require disability and effective communication accommodations
through the entire investigation and response process. This is not only a best practice in
efficient operation of correctional facilities; it is legally required by state and federal
laws.
19

The purpose of a response and investigation is to obtain accurate information as swiftly
as possible in order to reach the most accurate finding possible. Accurate findings:
 identify the guilty and protect the innocent (whether they be prisoners or staff);
 identify dangerous conditions in order to rectify them rather than increasing the risk
of further victimization; and
 protect victims from being retraumatized and giving them the opportunity to have
their needs addressed (whether emotional, psychological, health, or mental health).
Meeting the disability and effective communication needs of prisoners (whether victims,
accused, or witnesses) promotes swift access to accurate information needed for a fair
resolution of sexual abuse allegations.
In response to your query about how to accomplish this, we refer you to the information
provided in Parts C, D, and E, above, as a starting place.
Special needs prisoners need and are entitled to the same access to the
response and investigation process that prisoners without special needs have.
Equal access requires disability and effective communication accommodations, some
of which are described above. Not only is equal access needed for the response and
investigation process, it is also needed with regard to every other aspect of sound
sexual abuse elimination (e.g., screening, prisoner education, reporting, and
prevention).
In order to meet their legal and Constitutional obligations, confinement facilities need
to provide effective communication accommodations known to them to exist
based on requests from individual prisoners as well other information sources. Facilities
cannot ignore effective communication needs known to them. There are many
compelling reasons why the final rules should explicitly require facilities to adopt and
implement effective practices to identify special needs prisoners and their
communication needs and abilities, and ensure that effective communication
accommodations are in place for use on an as needed basis.
The problem of sexual abuse of prisoners by other prisoners and correctional staff is of
such a magnitude, and the potential collateral consequences to the victims and society
so significant and life-long, that the costs of doing nothing can substantially outweigh
the costs of having policies, processes, and accommodations in place
Important note: While prisoners should be provided the accommodations and
supports necessary to effectively report and assist in a sexual abuse
investigation, they should not be required to do so. Facilities should not be allowed
to discipline and punish prisoners for not reporting or assisting (e.g., in the guise of
writing the prisoner up for “disobeying an order.” etc.), given the dynamics of the prison
culture and the very real danger of retaliation by staff or fellow prisoners. However,
prisoner fears of repercussions might be attenuated if the initial response and
20

investigation is handled by an independent entity and accompanied by necessary
confidentiality safeguards.

G. Exhaustion of administrative remedies
Several accommodations need to be added to the exhaustion of administrative
remedies provisions in the Proposed Standards as necessary protections for special
needs prisoners who have experienced sexual abuse by other prisoners or staff.
Special needs prisoners face many barriers to filing and processing of grievances in
general, without the added challenges of using a grievance system for sexual abuse
and harassment incidents.
 FIRST ALTERNATIVE: Exempt all sexual abuse and sexual harassment
allegations from being processed by a facility’s grievance system to exhaust
administrative remedies
There are numerous valid reasons for this exemption. The most compelling is the
danger that the grievance process will contaminate the “administrative investigations”
conducted by the facility [e.g., § 115.71(f)], whether handled internally or referred to an
independent entity (such as an Internal Affairs Office), and “criminal investigations”
[e.g., § 115.71(g)] conducted by state or local law enforcement agencies, or the
Department of Justice.26 Research has shown that memories are not stable, and that
there is potential for contamination of memories every time individuals are questioned
about or talk about an event.27
Additional reasons for exempting sexual abuse allegations from being processed as
grievances, as opposed to being investigated independently of the grievance system,
include:
 When staff are implicated as perpetrators, many facilities are likely to refer the
investigation to a specialized internal or external governmental entity such as Office
of Public Integrity, Office of Inspector General, an Internal Affairs Office, or other
appropriate entity. As noted above, it is detrimental to process a grievance
simultaneously with an ongoing separate investigation.
 The near impossibility of filing a grievance privately. Grievance boxes often are
located in common areas. Grievance forms often are only available on request, and
requests often have to be made in common areas or otherwise within earshot of
others.
 The number of staff involved in processing and responding to a grievance, and the
various levels of appeal, make confidentiality challenging if not impossible.
 It is not uncommon for facilities to use prisoners to assist with the processing of
grievances, which gives them access to sensitive information.
 The well-founded fears of further victimization or retaliation, and the danger to
prisoners of filing grievances against staff using a staff-managed grievance system
– which act as a disincentive to victimized prisoners from filing grievances. 28
 The many obstacles to filing a timely grievance that exist in many facilities.
21

 The absence of national standards and guidance regarding effective correctional
grievance systems and practices, resulting in many facilities having arbitrary,
discriminatory, and grossly inadequate grievance practices.
 The barriers that some facility staff pose to processing particular grievances, such
as grievances mysteriously becoming lost and appeals taking years to process.
If sexual abuse and sexual harassment claims are exempted from the grievance
system, administrative remedies can be considered exhausted upon the conclusion of
the administrative or criminal investigation, or 120 days from the facility‟s receipt of the
first verbal or written report about the incident, whichever comes first.
 SECOND ALTERNATIVE: Exempt all sexual abuse or sexual harassment
complaints of special needs prisoners from using the facility’s grievance
system to exhaust administrative remedies
Reasons listed above for supporting a broader exemption are incorporated in support of
this more narrow exemption. Other support includes the following.
 Many special needs prisoners face enormous challenges in understanding a
facility‟s grievance system, complying with time frames and other procedural
requirements, and accessing it in a way that maximizes confidentiality and privacy.
 Many special needs prisoners need effective communication accommodations (see
Part C, above, for examples) in order to meaningfully understand and access the
facility‟s grievance system.
 Due to the nature of their special needs, coupled with their confinement and the
resulting lack of access to families and third parties to assist them, special needs
prisoners are particularly disadvantaged, compared to other prisoners without
special needs, in their ability to exhaust administrative remedies via a grievance
system.
 THIRD ALTERNATIVE: Grievances involving a sex abuse or harassment
allegation should be expedited by immediately advancing them to the finallevel or step in a facility’s grievance process (i.e., treated as a grievance to the
highest authority).
Reasons for eliminating lower level grievance steps include the following.
 Given that lower level decisionmakers do not have the authority to offer a
meaningful response, the earlier steps are unnecessary. When sexual abuse
allegations are involved, the generic response of lower level decisonmakers typically
is: “The matter has been referred for investigation.”
 The fewer the steps or levels in a grievance process, the fewer the number of staff
and prisoners who handle the grievance, which reduces the risks of confidentiality
violations that place the alleged victim at risk of retaliation.
 Simplifying the grievance system for these kinds of allegations, especially when the
alleged victim is a special needs prisoner – coupled with the traumatic after-effects
22

of sexual victimization --, is a necessary accommodation to protect due process and
related rights. Grievance systems with multiple levels, varying deadlines, different
forms and processes, frequent extensions of time (which can occur without notice to
the grievant), etc., can be challenging and overwhelming – making it difficult or
impossible for individual prisoners to know exactly when exhaustion of remedies has
occurred.
 Without this type of effective accommodation, an important component of a
meaningful rape elimination system is rendered invalid: judicial review.
 FOURTH ALTERNATIVE: The time frame for filing a grievance involving sexual
abuse or sexual harassment should be tolled
As a less effective accommodation alternative, the time frame for filing a grievance
regarding sexual abuse should be tolled until after a prisoner has received notification
that the primary internal or external investigation has been concluded, and the results of
that investigation have been reported to the prisoner. This will eliminate the danger of
contamination of evidence due to overlapping and conflicting dual investigations.
 FIFTH ALTERNATIVE: Extend the proposed 20 days (presumably calendar days)
time limit for the filing a grievance [e.g., §115.52(a)]: (a) for all sexual abuse and
sexual harassment claims by or on behalf of any prisoner; or (b) for such claims
made by special needs prisoners.
The proposed 20 calendar days is far too short for all prisoners, and particularly
prisoners who are vulnerable and likely have communication deficits due to age (young
or elderly), disabilities, or another special need. It is especially true with regard to
prisoners who have just experienced the trauma of being sexually abused, and even
more so for those who have trauma histories before their incarceration. Additionally, 20
days is far too short for juveniles and special needs prisoners who might be too scared
to disclose victimization until released from confinement.
At a minimum, longer time frames should be provided for filing grievances by
prisoners with documented special needs, including those who are juveniles at the time
of the abuse. Longer time frames generally are also needed for sexual abuse incidents
due to, inter alia:
 The enormous pressure from staff and other prisoners to not report these incidents.
 The emotional and psychological effects of sexual victimization (particularly for
juveniles, special needs prisoners, and those who have trauma histories).
 Mistaken beliefs by depressed victims in denial that the abuse was an isolated
incident that will not reoccur, prompting them to think that reporting the incident is
unnecessary.
 The longer processing time that many vulnerable prisoners need to be ready to
disclose the incident.

23

 For juveniles, the lack of privacy in speaking with family and guardians by phone,
and, for juveniles confined long distances from home, the infrequency of visits with
family.
OTHER NECESSARY ACCOMMODATIONS FOR SPECIAL NEEDS PRISONERS
As with the requirement that training for prisoners be provided in accessible formats
[e.g., 115.33(d)], the final standards should specify that information about grievance
systems, grievance forms, and responses to grievances should be made available in
accessible formats. Accessible formats are discussed in Part E, above, and include
universal accommodations for reading levels, and accommodations provided for LEP
prisoners, illiterate prisoners, and other special needs prisoners.
The Proposed Standards appropriately recognize that juveniles have an impaired ability
to use a facility‟s grievance system, and therefore allow “parents or legal guardians” to
file a grievance on their behalf [§ 115.52(c)(4), 115.252(c)(4) & 115.352(c)(4)].
However, many special needs adult prisoners also are unable to effectively understand
and use a facility‟s grievance system. The revised rules should specify designated
persons (e.g., attorneys, legal advocates, clergy, or other third parties) who are allowed
to file grievances on behalf of any special needs prisoner. This would be consistent with
the requirements that facilities accept third-party reports of sexual abuse [e.g., §
115.254], and that all reports should be treated as a grievance [e.g., § 115.52(c)].
Additionally, time frames for filing a grievance as well as for every step in the process
should be tolled when it is not feasible for a prison to access a facility‟s grievance
system, such as when a prisoner is on suicide watch; has been transferred to an
outside in-patient facility for medical or mental health treatment; is unconscious or in a
coma; or is moved to a mental health unit at the facility due to an acute psychiatric
episode.
Time frames should be restarted from the date that a prisoner discovers new and
material information about the role of staff in contributing to the occurrence of the
incident (e.g., neglect of supervisory obligations creating opportunities for abuse to
occur, actively encouraging the perpetrator to engage in the abuse).
To the extent the final rules require special needs prisoners to exhaust administrative
remedies regarding sexual abuse, the facility should be required to prioritize processing
sexual abuse grievances. The final rules can promote prioritizing such grievances by
specifying maximum time frames for the facility to process and respond to the initial
grievance (e.g., 60 days), and each subsequent step in the process (e.g., 20 days), and
the grievance deemed denied when no response is received by the prisoner by a
specified deadline (and no notice is received that the facility has extended the deadline
for cause).
Grievances involving sexual abuse need to be prioritized in order to prevent evidence
from being lost or becoming stale (e.g., memories becoming corrupted, witnesses
24

becoming unavailable), and ensuing swift access to state and federal courts as needed
to secure immediate orders. Swift justice is also needed to protect other prisoners from
risk of victimization by the perpetrator, whether staff or another prisoner.
In addition, without hard deadlines for the facility to respond to a grievance at each step
in the process, there will be ambiguity and confusion about when administrative
remedies have been exhausted. That forces prisoners to choose between waiting for a
response well past the deadline for a response at the risk of the statute of limitations
expiring, or proceeding to initiate litigation that might be dismissed for failure to exhaust.
Either of these scenarios sabotages efforts to eliminate sexual abuse of prisoners by
staff or other prisoners.
In addition to all of the foregoing, the final rules should indicate which time frames are
calendar days or business days and, if used, business days should be defined.

H. Disability and effective communication accommodations
do not impose ‘‘substantial additional costs”
As described in Part C, above, there are a number of routine activities, services, and
events for which confinement facilities need qualified interpreters and other effective
communication accommodations for special needs prisoners. Responding to sexual
abuse incidents is just one of many other activities that require quality communication
with special needs prisoners. Any additional costs to appropriately respond to and
investigate sexual abuse are not substantial in comparison to the many other daily
effective communication needs in confinement facilities.
Facilities should already have in place disability and effective communication
accommodations as required by various state and federal laws. These include the
Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Title VI of the Civil
Rights Act of 1964, as well as the due process and equal protection guarantees of the
Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The
Proposed Standards do not impose any new burdens or mandates, but rather reaffirm
the applicability of existing accommodations to this urgently needed Federal effort to
eradicate a well-documented blight on the United States human rights record.
In addition, sexual victimization of prisoners is already prohibited in confinement
facilities. It is inconsistent with accepted penological goals and Constitutional
guarantees applicable to prisoners, including safety and freedom from cruel and
unusual punishment. The Proposed Standards fill in the gaps in current efforts of some
facilities to protect prisoners, prevent sexual abuse, and appropriately respond to
incidents. Filling those gaps does not involve substantial additional costs in comparison
to the costs of meeting existing obligations.
Sexual victimization bears costs of its own, which are eliminated when steps are taken
to prevent it. In addition to eliminating victimization costs, providing prisoners with safe
environments reduces the potential for expensive litigation. It also can reduce
25

maladaptive behaviors by prisoners and increase morale for both prisoners and staff.
Improved working conditions for staff reduces staff use of sick leave and turnover, and
the costs of hiring and training new staff.
Furthermore, the costs of implementing the Proposed Standards can be minimized by
initiatives at the national level to provide confinement facilities with resources via grants
and contracts, including generic resources that facilities can adapt for their use, such
as:





Questionnaires and checklists for use in identifying special needs prisoners,
including those who have individualized communication needs.
A series of guiding principles and fact sheets on effective communication with
specific special needs prisoners (such as the categories discussed below);
Informational materials, training curricula for specific staff, and train the trainer
modules.
Best practices toolkits, and implementation technical assistance.

While beyond the scope of the Proposed Standards, it merits mentioning that one of the
most effective ways to reduce the costs of implementing the Proposed Standards is to
maximize the opportunities to divert special needs populations to home and communitybased alternatives proven to be consistent with holding offenders accountable while
protecting public safety.
I. Additional Observations about the Proposed Standards
As noted in our introduction to these comments, above, there is a Protection &
Advocacy agency with disability expertise in every state, the District of Columbia, and
five U.S. Territories. P&A agencies are a resource for facilities on disability issues,
including accessible formats for providing prisoner education [115.33(d)] and effective
communication accommodations during responses to and investigations of sexual
abuse or harassment reports. In addition to being available for consultation regarding
disability issues in general, P&As also can provide training for facility staff and
contractors on a range of disability and effective communication issues, including: state
and federal disability laws and requirements (e.g., the Americans with Disabilities Act,
the Rehabilitation Act, the Individuals with Disabilities Education Act, the Hate Crime
Act); signs and symptoms of disabilities; communicating with persons who have
disabilities; and disability and effective communication accommodations. They can also
consult on discharge planning and aftercare services for prisoners with disabilities.
Every P&A agency has an intake unit for receiving reports and complaints about
violations of disability rights. Some P&As might serve as independent reporting
mechanisms for some special needs prisoners and others making reports on their
behalf.
P&As are authorized to conduct abuse and neglect investigations and secondary
investigations involving individuals with disabilities, and have considerable experience
26

doing so. Facilities can enter into agreements with the P&A in their jurisdiction to
conduct independent investigations involving prisoners with disabilities on request by
the facility. P&As also are authorized to monitor state and local correctional facilities for
dangerous conditions and rights violations, and are available to consult with
confinement facilities about implementation of the final rules after they have been
issued.
External scrutiny is vitally important to safety in any institution providing congregate
care – and juvenile and adult correctional facilities are no exception. Sound oversight,
conducted by a qualified independent entity, can identify non-compliance issues that
can then be corrected before incidents might occur. By identifying areas of
noncompliance with the final rules and related legal requirements, facilities can address
potential hazards proactively, ineffective and dangerous practices will be corrected, and
abuse will be prevented -- resulting in fiscal savings, improved safety for staff and
prisoners, and reduced risks of liability.
Adoption of the final rules will represent an important step forward in efforts to ensure
that special needs prisoners are spared the trauma of experiencing sexual abuse during
their confinement. We strongly urge you to give due consideration to our comments,
and to promulgate the final rules without undue delay.
If our offices can be of any assistance in providing further information, please do not
hesitate to contact me, or NDRN‟s staff attorney for juvenile and criminal justice issues,
Judith Storandt (202-567-3518, judith.storandt@ndrn.org).
Respectfully,

Curtis L. Decker, JD
Executive Director
curt.decker@ndrn.org
Attachments:
 The National P&A/CAP System at a Glance (NDRN, 2008)
 History of NDRN and the P&A/CA System (NDRN, 2008)
 Federal Grant Programs Supporting the National P&A/CAP System (NDRN, 2009)
 Addressing Sexual Assaults in Juvenile Justice Facilities: The Need for a National
P&A Program (NDRN, 2011)

27

1

In these comments, we use “prisoner” and “prisoners” to refer collectively to persons of any age who are
confined in any type of correctional facility, including “inmates”, “detainees” and “residents” as defined in
the Proposed Standards. We also use “facility” to refer collectively to jails, prisons, community
confinement facilities, and juvenile facilities as defined in the Proposed Standards.
2
See, e.g.: Prevalence of Youth with Disabilities in the Juvenile Justice System (NDRN, 2007), at:
http://www.ndrn.org/images/Documents/Issues/Juvenile_Justice/NDRN_JDAI_handout_prevalence_9260
7.pdf
3
See, e.g.: Neurobiology and the Law: A Role in Juvenile Justice?, by S. A. Gruber & D.A. Yurgelun-Todd
(2006), Ohio State Jo. of Crim. Law, vol. 3:321, available at:
http://stiglerlawoffice.us/public/gruber%20and%20yurgulen-todd-2006.pdf
4
For additional information, see The National P&A/CAP System at a Glance (NDRN, 2008), and History of
NDRN and the National P&A/CAP System (NDRN, 2008) – both of which are attached. A list of the
Protection & Advocacy agency in each state, D.C., and U.S. territories is available at www.NDRN.org
using the map under “Find Help in Your State.”
5
For a list of the eight federal grant programs supporting the P&A/CAP system, see the attached
resource: Federal Grant Programs Supporting the National P&A/CAP System (NDRN, 2009).
6
We note in particular that most offenders convicted and sentenced in the District of Columbia are
incarcerated in federal prisons located throughout the country, and many states transfer prisoners for
confinement in other jurisdictions. These dynamics underscore the importance of uniformity in protections
throughout the nation.
7
For example, many jurisdictions hold in secure juvenile facilities children who are waiting for mental
health services (until bed space opens in residential facilities) who are not accused of delinquent or
criminal acts. Two thirds of detention facilities have reported holding children, sometimes as young as
seven, who are there just waiting for a mental health placement. A 2004 report to Congress documented
that about 7 percent of youth in detention were being held simply awaiting an appropriate treatment
placement. See: “Incarceration of youth who are waiting for community mental health services in the
United States” (2004), Washington, DC: House of Representatives Committee on Governmental Reform,
at: http://www.senate.gov/~govt-aff/_files/040707juvenilereport.pdf.
8
For example, Oklahoma has a Community Services Worker Registry, 56 O.S. § 1025.1 et seq., listing
caretakers found, after investigation and due process based on clear and convincing evidence, to have
engaged in abuse of vulnerable populations. It also maintains a Certified Nurse Aide Registry that notes
which ones have abuse or criminal convictions, 310 O.S. § 677.1 et seq. In addition, it has a Child Abuse
and Neglect Central Registry Statewide Central Registry for Child Abuse, Sex Abuse, and Neglect, 10
O.S. § 7111. By asking correctional agencies and contractors to check abuse registries maintained in their
jurisdiction, it becomes harder for predators to move from one type of employment to another in search of
vulnerable populations to victimize.
9
See, e.g., The Psychiatric Effects of Solitary Confinement (2006), Stuart Grassian, MD, Wash. Univ.
Journal of Law & Policy, Vol. 22:325 (prepared from a statement given to the Commission on Safety and
Abuse in America‟s Prisons).
10
By statute in Oklahoma, for example, failure to report is a misdemeanor. 10 O.S. § 7103(C).
11
The average adult reading level in the United States is 8th to 9th grade. However, nearly 1 in 5 adults
read at or below the 5th grade level; and nearly 2 out of 5 older individuals and minorities read at or below
that level. See: Adult Literacy in America." National Center for Education Statistics, U.S. Dept of
Education, Office of Educational Research and Improvement (NCES 1993-275), April 2002.
12
A substantial number of youth in juvenile facilities read below the fourth-grade level, and are deemed to
be functionally illiterate. According to a study conducted by Project READ, a national program designed to
improve reading skills, youth that are confined to correctional facilities at the median age of 15.5 years and
in the ninth grade read, on average, at the fourth grade level. More than one-third of all juvenile offenders
of this age group read below the fourth grade level. Education as Crime Prevention (1997), at:
http://www.prisonpolicy.org/scans/research_brief__2.pdf. See also, Brunner, M.S. (1993). National survey
of reading programs for incarcerated juvenile offenders. (NCJ Publication No. 144017). Washington, DC:
Office of Juvenile Justice and Delinquency Prevention.
13
Universal design refers to products, buildings, environments, activities and services that are usable and
accessible by the largest universe of individuals feasible including those who do or do not have disabilities
or other special needs.

28

14

Persons who have eexpressive aphasia know what they want to say but have difficulty communicating it
to others. See, e.g., American Speech-Language-Hearing Association (ASHA), at:
http://www.asha.org/public/speech/disorders/aphasia.htm.
15
Research also indicates that people who have mental retardation are especially likely to confess falsely
because of their tendency to acquiesce to authority figures even when the resulting statements are
inaccurate and detrimental to their interests. The Death Penalty in Florida (2009), by Christopher Slobogin,
Elon Law Review, vol. 1:17, 22, available at: http://www.elon.edu/docs/eweb/law/law_review/Issues/Slobogin.pdf
16
More information about accessibility of documents for persons who are blind or have low visions is
available from NDRN as well as other advocacy organizations that serve or advocate on behalf of persons
with these special needs.
17
This is a logical accommodation in light of the increasing number of correctional facilities that now have
programs for prisoners to train guide dogs. This emerging best practice has the potential of reducing the
vulnerability of blind and low vision prisoners to being exploited and abused physically and sexually.
thereby increasing prison safety in general.
18
There are specialized communication practices when using interpreters to interview deaf prisoners who
primarily rely on a “home sign” system for communication.
19
Qualification and certification standards vary by jurisdiction; see, e.g.: State Regulations Governing
Interpreter Requirements, State-by-State http://www.360translations.com/burnsat/stateregs.htm .
20
Qualification and certification standards for foreign language interpreters vary by jurisdiction; see, e.g.:
Limited English Proficiency (LEP) on HHS.gov available at:
http://www.hhs.gov/ocr/civilrights/resources/specialtopics/lep/index.html
21
Cerebral palsy (CP) is a group of disorders that can involve brain and nervous system functions such as
movement, learning, hearing, seeing, and thinking. There are several different types of cerebral palsy,
including spastic, dyskinetic, ataxic, hypotonic, and mixed. CP is caused by injuries or abnormalities of the
brain. Most of these problems occur as the baby grows in the womb, but they can happen at any time
during the first years of life, while the baby's brain is still developing. In some people with cerebral palsy,
parts of the brain are injured due to low levels of oxygen (hypoxia) in the area. It is not known why this
occurs. PubMed website at: http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001734/
22
See, e.g.: In re: McDonough,__N.E.2d___, 457 Mass.512, 2010 WL 3124062, a case involving the rape
of a nursing home resident by a nurse aide. After criminal charges were filed against the aide, the trial
court denied the victim‟s request for accommodations when testifying, and then dismissed the criminal
charges due to lack of evidence. The victim petition for relief in the Supreme Judicial Court of
Massachusetts. Exercising its general supervisory power, the Court set out procedures to be followed
when a witness' accommodation request is denied, thereby precluding the witness from testifying.
23
See, e.g.: Traumatic Brain Injury (TBI), on the American Speech-Language-Hearing Association (ASHA)
website: http://www.asha.org/public/speech/disorders/tbi.htm and Communication Facts: Special
Populations: Traumatic Brain Injury (2010 Edition) at: http://www.asha.org/research/reports/tbi.htm
24
See, e.g.: Survivors of Abuse in Prison Fact Sheet (2008), Women in Prison Project, available at:
http://sistersinc.org/Resources/documents/Survivors_Prison.pdf
25
The sexual abuse of people with developmental disabilities is unusually common because of the greater
risk of victimization of such people. More than 90 percent of people with developmental disabilities will
experience sexual abuse at some point in their lives. See, e.g., “Retardation and Abuse” by Leigh Ann
Reynolds, at: http://www.wsf.org/behavior/guidelines/sexualabuse.htm.
26
By way of example, the grievance system for adjudicated juveniles confined in correctional facilities
operated by the Oklahoma Office of Juvenile Affairs provides for grievances about reportable incidents of
abuse, neglect or exploitation to be investigated by an outside independent agency, the Oklahoma Office
of Client Advocacy. Okla. Admin. Code § 340:2-3-45 (2011).
27
See, e.g.: Our changeable memories: legal and practical implications (2003), by Elizabeth Loftus,
available at: http://faculty.washington.edu/eloftus/Articles/2003Nature.pdf .
28
The danger of retaliation also applies to whistleblowers – prisoners who expose sex rings that staff
allow to exist in correctional facilities; see, e.g.: “Massachusetts Prison Whistleblower Is Punished
and Silenced” (2-25-2011), at: http://solitarywatch.com/2011/02/15/massachusetts-prison-whistleblower-ispunished-and-silenced/.

29

 

 

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