Stop Prisoner
Rape: A Brief
Background
Stop Prisoner
Rape (SPR), an
international human
rights organization,
seeks to end sexual
abuse in all forms of
detention. SPR has
three core goals: to
ensure government
accountability for
prisoner rape; to
transform negative
stereotypes about
inmates and their right
to be free from sexual
abuse; and to promote
access to resources
for those who have
survived this form
of violence.
SPR was instrumental
in securing passage
of the Prison Rape
Elimination Act
(PREA), the first
federal legislation
addressing sexual
violence in detention.
Since PREA was
signed into law in
2003, SPR has led the
call for its meaningful
implementation.
SPR provides expert
analysis, survivor
accounts, training, and
technical assistance
to federal agencies
with mandates
under the law, and
to policymakers and
corrections officials at
the federal, state, and
county levels.
SPR’s work takes place
within the framework
of international
human rights law and
norms.The sexual
assault of prisoners,
whether perpetrated
by corrections officials
or by inmates with
the acquiescence
of staff, is a crime
and is recognized
internationally as a
form of torture.

PREA Update

by Stop Prisoner Rape

Unique Opportunity to Stimulate Reform

O

n May 5, 2008, the National Prison
Rape Elimination Commission
(NPREC) released a draft of its
“Standards for the Prevention, Detection,
Response, and Monitoring of Sexual
Abuse in Adult Prisons and Jails.” To
ensure transparency and public support
for this effort, the draft standards are open
for public comment for
60 days. (Because of the
July 4th holiday, the public
comment period will end
on July 7, 2008.)
Stop Prisoner Rape (SPR)
considers these standards
a crucial step forward
in the effort to establish
zero-tolerance toward
rape and other forms of
sexual violence in U.S.
corrections facilities.
SPR strongly encourages
current and former
prisoners, their loved ones, advocates
for inmates, sexual abuse survivors, and
others with an interest in protecting the
safety of inmates to submit comments on
the draft standards (see sidebar on page 3
for more information about submitting
comments).
This PREA Update focuses on several
of the issues and provisions in the draft
standards that SPR has identified as

pivotal to preserving the inalienable right
of inmates to be free from sexual abuse,
many of which are controversial within the
corrections field. The PREA Update does
not summarize the complete set of draft
standards. Rather, it is intended to provide
guidance for organizations and individuals
who would like to participate in the
public comment period.
In addition to offering
recommendations that
would strengthen the
draft standards, SPR has
highlighted provisions
which should remain in
the final version but are
likely to face resistance
from corrections officials.
At the end of the public
comment period, the
NPREC will review all
comments it has received
and revise the standards.
The final version will be submitted by the
NPREC to the Attorney General in early
2009. The Attorney General will have one
year to publish a final rule adopting the
national standards. Once the standards
are adopted, all corrections systems will
be required to comply with them. The
Attorney General will establish procedures
to ensure compliance, and reduce by five
percent the discretionary grants of states
that fail to adhere to the standards.1

S t o p P r i s o n e r R a p e • P R EA U p d a t e • J u n e 2 0 0 8

The NPREC Standards –
A Tool for Ending Sexual Abuse

T

he goal of these new national standards,
as described by the NPREC, is “to
establish policies and practices that, if
implemented properly, will enable agencies to
improve safety and eliminate sexual abuse.”2
The standards are divided into four categories:
leadership and accountability, prevention,
detection and response, and monitoring.
Each standard has three parts: a statement, a
discussion, and a compliance checklist. The
statement is “the broadest articulation of what
every agency is required to achieve.”3 The
discussion provides clarification, explanation,

and suggested strategies for compliance.
The checklist specifies the actions needed
to establish compliance. The statement and
the checklist portions of each standard are
mandatory and must be read together.
SPR commends the NPREC for recognizing that both PREA and its draft standards
are, in essence, human rights documents. As
noted in the introduction to the draft standards, “Sexual abuse of people in confinement
violates their basic human rights, impedes the
likelihood of their successful reentry into the
community, and violates the government’s

PREA and the NPREC

T

he Prison Rape Elimination Act (PREA) of 2003, the first civil law to address sexual
violence in detention, requires a zero-tolerance approach to this type of violence, provides for the gathering of information about the prevalence of sexual abuse, and calls for
the development of policies and practices to combat the problem. In addition to the development of the national standards that are the focus of this PREA Update, the law requires:
• Annual statistical reviews by the Bureau of Justice Statistics (BJS), including nationwide
anonymous inmate surveys;
• Annual hearings by the Review Panel on Prison Rape focusing on facilities found by the
BJS to have the highest and lowest incidence of sexual abuse;
• Federally funded technical assistance to prevent and prosecute sexual abuse in detention;
• Federally funded grants for states to protect inmates and safeguard communities;
• Federally funded contracts for research; and
• A comprehensive study of sexual abuse in detention by the National Prison Rape Elimination Commission (NPREC), culminating in a final report to be issued together with
the finalized national standards.
The NPREC is a bipartisan commission created by PREA and mandated by the law to
develop binding standards for detention systems to address sexual violence behind bars.
To help develop the standards, the NPREC held public hearings throughout the country
and convened several expert committees in Washington, DC. Representatives from SPR
worked closely with the NPREC throughout this process, by serving on the expert committees and by enabling more than a dozen prisoner rape survivors to testify at the public
hearings.

P a g e 2

•

S t o p

P r i s o n e r

R a p e

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

obligation to provide safe and humane
conditions of confinement.”4

whether a facility, or a corrections system, is
in compliance with the standards. SPR also
supports the requirement that chief executives
certify in writing the compliance of corrections systems within their jurisdictions. However, SPR urges the NPREC to strengthen the
standards in the following ways.

I. Leadership and
Accountability
A. Safety, Oversight, and Transparency
Strong enforcement and oversight mechanisms are essential to ensure that the standard
requirements are taken seriously by all levels
of corrections staff. In this section of the draft
standards, the NPREC recognizes the important role of independent auditors, state chief
executives, corrections agency leaders, and facility heads in securing implementation of the
standards. SPR appreciates the NPREC’s foresight in highlighting the need for oversight,
but urges that this issue be taken further.
The term ‘oversight’ encompasses various
functions, such as regulation, audit, accreditation, reporting, investigation, and
monitoring.5 No one method of oversight
can effectively serve all of these functions. A
combination of internal and external oversight
measures is essential to putting an end to the
sexual abuse that continues to plague U.S.
detention facilities. Indeed, the historical lack
of transparency of U.S. prisons and jails has
been a major contributor to the widespread
human rights crisis that the standards seek to
eliminate.
The draft standards focus primarily on internal oversight—audits and assessments done
(or commissioned) by agency and facility
leaders. These tools will help administrators
identify and correct systemic problems, but
they cannot provide the credible, objective
assessment of an outside entity. According to
one scholar, “External scrutiny is essential any
time that a closed institution is responsible for
the control of individuals; it is a linchpin in
any effort to ensure the safety of prisoners.”6

P r i s o n e r

R a p e

• Chief executives must be required to
publish the results of independent audits
(SA-2). Similarly, agency heads should be
required to publish all assessments and
action plans (SA-3). Broad publication,
including through the internet, would
ensure that this information can be accessed
by advocacy organizations, journalists, and
others. If there are well-founded concerns
that such publication would “jeopardize the
safety and security of the facility” (SA-3),
documents should be redacted, rather than
kept entirely out of the public’s view.
• Because a majority of inmates do not file
formal complaints in the aftermath of sexual
abuse,7 the independent auditor designated
by the chief authority must not rely solely
on official data. Rather, standard SA-2 and
compliance checklist 2 should require that
auditors interview a sample of staff and
inmates at all audited facilities.

A copy of the draft
standards can be
downloaded from the
NPREC’s website at:
http://www.nprec.us/
UpcomingEvents/5.1_
MasterAdultPrison_
andJail_andImmigration
StandardsClean.pdf.
The NPREC has created
a form for submitting
comments, which is
available on its website at:
http://www.nprec.us/
Upcoming Events/
PUBLIC_COMMENTS_
FORM_MAY2008.doc.
Comments should be
entered onto the form
and submitted in one of
the following manners:          
• By email:
comments@nprec.us   
• By fax:
(202) 233-1089
• By mail:
National Prison
Rape Elimination
Commission
1440 New York Ave, NW
Suite 200
Washington, D.C.
20005-2111    
Anyone providing
feedback to the NPREC
must provide his/her
name and contact
information.The content
of all comments will be
made publicly available,
but the NPREC will
respect requests for
anonymity.

• Relevant outside organizations should be
able to speak directly and confidentially
with inmates, and corrections management

SPR agrees with the NPREC that independent audits are a key tool for determining
S t o p

• Under the draft standards, the chief executive (Governor, for state prisons) is the only
person required to certify in writing that the
corrections agency within his/her jurisdiction is in compliance with the standards
(SA-2). However, an elected official cannot know what is going on in each facility.
As the person who is responsible for the
day-to-day operations of a prison or jail,
each facility head should be held publicly
accountable in a similar fashion. By adding
a written certification requirement at the
facility level to standard SA-3 and compliance checklist 3, genuine accountability is
more likely to occur.

Commenting on
the Standards

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 3

must ensure access for this type of oversight.
As part of the certification of the chief
executive (mandated by SA-2) and the facility head (proposed by SPR for SA-3), these
officials should be required to attest to the
availability of external oversight, including specifying how inmates can provide
confidential complaints to outside entities
and how these independent bodies can raise
concerns with the corrections administration.
B. Prevention Planning
SPR commends the NPREC for establishing
firm requirements for sight and sound supervision of all inmates, especially of those who
have been identified as vulnerable to sexual
abuse. Compliance checklist 5, for standard
PP-2, is particularly strong and illustrates the
NPREC’s recognition of the extreme dangers
facing certain detainees based on known risk
factors, such as sexual orientation, gender
identity, disability, and youth. Unfortunately,
the draft standards do not spell out how to
handle predatory inmates.
• In order for prevention planning efforts to
be successful, the NPREC should develop
a standard and compliance checklist for
the identification and housing of predatory
inmates.
Corrections staff are the ultimate enforcers
of human rights in detention and, as such,
must adhere to the highest possible professional and ethical standards. Hiring decisions
must be based on a thorough review of an
applicant’s background. The draft standard for
staff qualifications (PP-5) screens for egregious
concerns, such as criminal history, history
of engaging in sexual abuse, and other prior
conduct suggesting a likelihood of engaging
in abuse, but SPR urges the NPREC to make
this standard broader.
• Corrections systems should be required to
examine an applicant’s employment history.
Based on the draft standards (specifically
PP-5), officials who engaged in sexual abuse
and then resigned in lieu of disciplinary
P a g e 4

•

S t o p

P r i s o n e r

R a p e

•

action will easily be able to obtain employment in another corrections system.
• Criminal history should be clearly identified as a basis for termination during staff
performance reviews, rather than merely
“taken into account,” as stated in compliance checklist 8, for standard PP-5.
The draft standards emphasize the need for
corrections agencies to develop integrated
information systems, which would allow
for the tracking and sharing of data related
to the problem of sexual abuse (PP-6). The
creation of such systems will be an important
step forward in the effort to eliminate sexual
violence, but they must be developed across
agency lines, in recognition of the fact that the
vast majority of inmates have been held both
in jails and in prisons.
• State and county agencies in the same
geographic jurisdiction should be required
to develop integrated information systems,
allowing for the tracking of information related to sexual abuse throughout an inmate’s
tenure behind bars.
C. Response Planning
An appropriate and swift response in the aftermath of sexual abuse is essential to protect the
well-being of survivors, to gather the evidence
necessary to investigate assaults fully, and to
hold perpetrators accountable. Unfortunately,
SPR hears on a daily basis from survivors who
describe officials taking no action when faced
with incidents of sexual abuse—or worse,
subjecting victims to retaliation for filing
complaints.
• The coordinated sexual assault response
team (SART) should include an advocate, in
addition to medical, mental health, security,
and investigations specialists (RP-1). While
the discussion section of RP-1 notes the
value of an advocate, compliance checklist
11 only requires an advocate to be included
if the victim undergoes a forensic exam.
Community SARTs—the model suggested

P R E A

U p d a t e

•

J u n e

2 0 0 8

in the checklist—always include an
advocate. Advocates are trained in providing
crisis intervention and in advocating on
behalf of sexual abuse survivors, a role that
is particularly important in the detention
setting. SART advocates would help to
ensure that survivors who choose not to
undergo forensic exams nevertheless are
treated with respect. An advocate may also
be able to alleviate survivor concerns about
forensic exams, thereby encouraging them
to undergo this important procedure.
• SPR applauds the NPREC’s recognition of
the importance of community-based agencies—particularly rape crisis centers—in the
aftermath of a sexual assault. Such agencies have the capacity to provide incarcerated survivors with support similar to that
available in the community. In particular,
SPR believes it is of utmost importance to
maintain the requirement in standard RP-5
that corrections agencies sign memoranda
of understanding (MOUs) with community
agencies and advocates.
• SPR also believes it essential to maintain the
requirement in standard RP-8 that prisons
and jails enter into formal agreements with
qualified, independent medical examiners
who can perform forensic exams of sexual
abuse victims. The best practice is for the
full forensic exam to be conducted outside
of the prison or jail. When that is not
feasible, facilities should still retain outside
contractors to perform these examinations
on-site, rather than have them done by
facility medical staff.
• SPR urges the NPREC to clarify item (g)
of compliance checklist 15 (for standard
RP-5), which appears to limit the ability
of community service providers, such as
rape crisis counselors, to abide by their
professional standards with regard to client
confidentiality. If prison and jail agency
rules do not allow outside counselors
to maintain confidentiality in their
interactions with inmates, such agency rules
should be changed. Outside mental health
S t o p

P r i s o n e r

R a p e

•

counselors must not be expected to lower
their professional standards in order to work
in a prison or jail.

II. Prevention
A. Training and Education
Policies aimed at eliminating sexual abuse
in detention become meaningful only if
corrections staff, contractors, and volunteers
are appropriately trained to take action
to prevent and address incidents of sexual
violence. Similarly, inmates must be aware
of their absolute right to be free from sexual
abuse, and of their responsibility not to engage
in predatory behavior. Both of these points are
duly recongnized in the draft standards.
Unfortunately, references to international human rights principles are glaringly absent in
compliance checklist 20 (for standards TR-1
and TR-4)—principles to which the U.S. is
legally bound, through its ratification of the
Convention Against Torture and the International Covenant on Civil and Political Rights
and through international customary law.
SPR believes that it is essential to include the
full legal framework—including international
human rights law—in training that addresses
sexual abuse.
• The NPREC should add explicit references
to the international human rights framework in standards TR-1 (staff and volunteer
training) and TR-4 (inmate education) and
in compliance checklist 20, which covers
both these standards. Specifically, training
sessions should highlight the inalienable
right of all inmates to be free from sexual
abuse. They should recognize the important
role of corrections officials in the protection
and enforcement of human rights, and how
this role relates to PREA, to policies and
practices addressing sexual violence, and to
criminal law. The draft training standards
and compliance checklists should also reference the constitutional protection against
cruel and unusual punishment.
P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 5

• SPR also urges that trainings and workshops
be supplemented with written materials.
The standards require that paper copies
of the agency’s sexual abuse policies be
available to staff, volunteers, and inmates
(TR-1, TR-4, TR-5), but policies alone
will not provide sufficient information
about issues such as the dynamics of
sexual violence in detention and red flags
for possible abuse. Moreover, policies
are rarely written in simple language nor
are they tailored to highlight the most
relevant information. At a minimum, staff
should receive, and verify in writing that
they have read, materials explaining their
responsibilities in eliminating sexual abuse

and the protocol for addressing reports of
abuse. Inmates should be provided with
a written statement of their right to be
free from sexual assault and the avenues
available if they have been assaulted and/or
fear abuse.
B. Classification
Inmate classification is one of the most critical
tools for preventing sexual abuse in detention.
If done properly, classification ensures that
potential predators and potential victims are
housed apart. Appropriate classification can
also break the insidious and common prison
practice, following an incident of sexual abuse,

The Targets of Sexual Abuse

W

hile any inmate can become the victim of sexual abuse, marginalized and special
needs populations are at heightened risk. Among women, typical survivors of
sexual abuse are non-violent, young, and mentally ill inmates. Among men, non-violent,
young inmates, and gay and transgender prisoners have the highest rates of victimization.
Once raped, an inmate is likely to be marked as a victim and abused repeatedly.
In a recent academic study,1 funded by the Cali­fornia Department of Corrections and
Rehabilitation and conducted at seven California men’s prisons, 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 for the inmate population over­all. Of
the more than 900 survivors who have contacted SPR in the past few years, approximately
20 percent openly identify as lesbian, gay, bisexual or transgender (LGBT).
For many LGBT survivors, the trauma of sexual abuse is further aggravated by pervasive
homophobia among staff. Corrections officials often confuse homosexuality and transgender status with consent to rape, and LGBT inmates describe officials ignoring or laughing at their reports, or subjecting them to further attacks, humiliating strip searches, and
punitive segregation. Gay and transgender inmates who seek protective custody because of
their risk for abuse often find themselves placed in solitary confinement, locked in a cell
for 23 hours a day, and losing access to programming and other services.
To address the unique safety concerns of LGBT inmates, SPR has developed a set of
policy recommendations entitled Call for Change that, if fully implemented, would significantly decrease the incidence of sexual violence against LGBT inmates. More than 80 LGBT
and allied organizations have signed onto the Call for Change. The policy recommendations are available on SPR’s website at http://www.spr.org/pdf/Call_for_Change.pdf.
1. Valerie Jenness et al., Center for Evidence-Based Corrections, Violence in California Correctional Facilities:
An Empirical Examination of Sexual Assault 27 (2007).

P a g e 6

•

S t o p

P r i s o n e r

R a p e

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

of automatically placing the victim in administrative segregation. Such isolation is punitive
by default as it results in a loss of services and
programs. SPR hears on a regular basis from
survivors of sexual abuse in detention who decided against filing a formal complaint for fear
of being placed in segregation.

the classification officer does not agree with
an inmate’s assessment of his or her own
vulnerability.

III. Detection and Response

SPR is pleased to note that the NPREC recognizes that classification is a dynamic process
and that housing decisions must be revisited
regularly to ensure that inmates remain safe.
The NPREC’s willingness to identify specific
factors that contribute to vulnerability to sexual abuse, such as physical stature and sexual
orientation, is particularly encouraging. SPR is
concerned, however, that the NPREC has not
paid enough attention to factors that contribute to an inmate’s propensity to commit
sexual abuse. SPR recommends the following
additions to the standards.

A. Reporting
In order for efforts to prevent and respond to
sexual violence to succeed, inmates must be
able to report abuse safely and to receive competent, compassionate care. Inmates tend not
to report sexual abuse out of fear of retaliation, shame, or a lack of trust that prison staff
will respond appropriately. An outside entity
for reporting, such as an Inspector General’s
office or ombudsperson, is an invaluable resource for obtaining and responding to sexual
abuse complaints.

• The NPREC should develop concrete
criteria for identifying potentially predatory
inmates. By identifying inmates who are
likely to perpetrate an assault, and separating them from inmates who are likely to be
targeted for abuse, corrections officials can
effectively protect vulnerable inmates without subjecting them to segregation or other
punitive, isolating conditions.

While rape survivors in the community are
generally able to access rape crisis counseling,
incarcerated survivors have little or no access
to outside services. The counseling that is
available is typically not confidential, as the
majority of corrections counselors are obliged
to report to prison administrators any crime
within their facility. (For more information
about the importance of confidential counseling, see ‘Need to Know’ versus Confidentiality, on page 13).

• Classification reassessments (CL-2) should
include specific factors, such as an inmate’s
perception of vulnerability, any disciplinary
involvement, dramatic changes to commissary accounts, and medical needs. Without
specific criteria, the reassessment process
may amount to a pro forma continuation of
the current classification, even in the aftermath of an assault.

SPR applauds the NPREC for recognizing
the vital role that outside entities play, both in
providing avenues for reporting abuse and in
ensuring that incarcerated survivors can access
care similar to what is available on the outside.
These standards would be further strengthened by adding the following provisions.

• The inmate management plan (CL-3)
should be modified whenever a reassessment
results in a classification change.
• Classification decisions should have an appeals process, so that an inmate’s safety does
not rest solely on the decision of one officer.
Such review is particularly important when
S t o p

P r i s o n e r

R a p e

•

• In developing external reporting
mechanisms, agencies must accept
responsibility for abuses reported to
government officials outside the traditional
grievance system—and not seek to avoid
judicial accountability. While standard RE1 notes that the avenues provided should
all meet any exhaustion requirements,
compliance checklist 28 does not include a
P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 7

Bringing Survivors to the Table

S

PR believes that any serious effort to
end sexual violence in detention must
include survivors of such abuse. The role
of survivors goes beyond adding a human
face to the discussion. Individuals who
have endured shocking abuses, often at
the hands of corrections staff or with
their acquiescence, are able to offer firsthand experiences and wisdom that have
the potential to improve substantially
corrections policy and practice.

Since 2005, SPR has enabled more than
a dozen prisoner rape survivors to testify
at the NPREC’s public hearings. In
addition, in March 2007, SPR gathered
survivors from across the country to
develop their own recommendations—to
advise the NPREC in its development
of the national standards. These
recommendations were presented in a
publication entitled In Our Experience
(available on SPR’s website at: http://
www.spr.org/pdf/InOurExperience.
pdf.) Highlights of the recommendations
include:
• Corrections facilities should utilize
designs that increase lines of sight and
hearing in housing units.
• Corrections officials should consult
with outside organizations that have
regular contact with vulnerable inmates, or that focus on the prevention
of sexual assault and domestic violence,
to obtain feedback on the content and
practical implementation of classification procedures.

These portraits of the 2007 Survivor
Summit participants were taken
by photographer James Stenson, to
document the dignity and courage of
men and women across the country who
have refused to be silenced by the abuses
they endured while incarcerated.
(Above: Esmeralda Soto.)

P a g e 8

•

S t o p

P r i s o n e r

R a p e

•

• Housing for inmates who fear sexual
assault or who have been assaulted
should not involve isolation, punitive
conditions or discrimination in
the form of loss of privileges or
programming, as these practices greatly
deter inmates from reporting assault.
• Applicants for employment involving
inmate contact should be carefully
screened, including a mental health
screening and a criminal background
check.

P R E A

U p d a t e

•

J u n e

2 0 0 8

performed off-site at an independent
medical facility whenever possible.
• Sexual assault survivors should never
be required to make a report of sexual
abuse or to fill out documentation of
any sort in order to access medical and
mental health counseling services.
• As part of reentry planning, corrections
facilities should provide inmates with
information about free or low-cost
mental health care in the communities
to which they are returning.
In late June 2008, SPR will again convene
a group of survivors of sexual abuse in
detention, who will have an opportunity
to comment on the draft standards,
suggest improvements, and meet with
NPREC Commissioners for a roundtable
discussion. SPR applauds the NPREC
for its willingness to listen to—and learn
from—those who have endured sexual
abuse while behind bars.

From top left: Chino Hardin, Garrett
Cunningham, Thomas Clinton, Bryson
Martel.
• Orientation should be provided for
all inmates, emphasizing the human
dignity of their fellow inmates, their
inalienable human right not to be
subjected to sexual abuse or coercion,
and how the system will respond to
such abuse.
• Reports of sexual abuse or threats
thereof should be handled in a truly
confidential manner, such that only
personnel who have an active role in
an investigation have access to the
information.
• Inmates who choose to report their
abuse to facility staff should be able
to file a formal complaint to any staff
member, bypassing the usual chain of
command, so that nobody is faced with
the unacceptable scenario of having to
report an assault to the perpetrator.

From top left: Keith DeBlasio, Erica Hejnar,
Michael Williams, Jason Lydon.

• In order to maintain transparency,
sexual assault examinations should be

S t o p

P r i s o n e r

R a p e

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 9

PREA, the NPREC Standards,
and the Prison Litigation Reform Act (PLRA)

M

any prisoners who have en­dured sexual abuse cannot hold corrections officials
ac­countable because of the Prison Litigation Reform Act (PLRA), a federal law
passed in 1996. Intended to limit the number of frivolous lawsuits filed by inmates, the
PLRA has instead greatly undermined the crucial oversight role played by courts in addressing sexual assault and other consti­tutional violations in corrections facilities. SPR
believes that the new national standards have the potential to help ensure that survivors of
sexual violence in detention are not barred from seeking judicial relief based on unrealistic
and often insurmountable procedural requirements.
The PLRA established a number of procedural hurdles that an inmate must overcome
before filing a civil rights complaint in federal court. Arguably the most dramatic of these
provisions is the so-called exhaustion requirement. Before filing suit, an inmate must
‘exhaust’ administrative remedies by completing the facility’s internal grievance process.
Prison and jail grievance procedures tend to be complex and unclear. Worse still, many include deadlines for filing a complaint that are as short as a few days. An inmate must fully
and properly navigate this internal system, even when it is clearly futile to do so, when
there is a risk of retaliation by staff, or when there is an immediate threat to the inmate’s
health or safety. Moreover, some facilities’ proce­dures require that grievances be submit­ted
directly to a specific officer—without regard to whether that officer is implicated in the
complaint. Not surprisingly, numerous claims of serious and unconstitutional abuse of
prisoners have been dismissed for lack of proper exhaustion, meaning that there was never
an inquiry into the truth of the allegations.
Allowing corrections officials an initial oppor­tunity to resolve an inmate’s complaint, before it is brought to the courts, eases the burden on the judicial system. However, inmates
who have been sexually assaulted are in urgent need of options for reporting their abuse
—options that take into account their safety needs and their medical and mental health
concerns. The draft standards recognize these concerns by mandating multiple reporting
options. The requirement that corrections agencies recognize these alternative avenues
of reporting as sufficient for exhaustion is just as critical. In addition to providing survivors with a forum for relief that they deserve, officials will become better informed about
sexual violence in their facilities and can be held accountable for policies and practices
that allow for sexual abuse to continue.

corresponding requirement. As the checklist
is the portion ultimately signed by the
facility chief, it too should specify that all
avenues for reporting satisfy exhaustion
requirements for getting into court.
• In addition to being provided with
contact information for confidential
P a g e 10

•

S t o p

P r i s o n e r

R a p e

•

P R E A

counseling (RE-2), inmates should be
informed about the extent (and limits) of
confidentiality and the distinction between
outside confidential support—which will
not trigger an investigation or serve as a
grievance for exhaustion purposes—
and utilizing the agency’s reporting
procedures.
U p d a t e

•

J u n e

2 0 0 8

• Compliance checklist 29 of standard
RE-2 should require agencies to sign a
memorandum of understanding (MOU)
with each organization whose contact
information is provided to inmates. In
doing so, the agency can gain assurance that
the services advertised are truly available
and the counseling agency will be informed
about the parameters of providing services
in the detention setting.

D. Investigations and Discipline

B. Staff Duties Following an Inmate Report
C. Agency Duty to Protect Against Retaliation

For the past three years, the BJS has received
administrative records of reported sexual violence in prisons and jails, and found that most
sexual abuse-related investigations result in an
unsubstantiated finding.9 In many facilities,
physical evidence is required for a claim of
sexual abuse to be substantiated, even though
many forms of sexual abuse will never result in
physical evidence. The following recommendations would help ensure that more sexual
abuse reports result in a definitive finding that
they were either credible or unfounded.

SPR regularly hears from survivors who did
not receive any support after reporting sexual
abuse. Indeed, many survivors have told
SPR that they were further traumatized in
the aftermath of an assault, as officers ridiculed them or suggested that the assault was
somehow warranted. Alarmingly, in its study
of sexual violence reported to corrections
authorities in 2006, the Bureau of Justice
Statistics (BJS) found that, in cases of substantiated sexual misconduct or abuse committed
by a staff member, only 6 percent of inmates
were given a medical exam and only 12 percent were offered counseling.8 SPR encourages
the NPREC to highlight the following in its
standards.

Sexual abuse in detention is a human rights
violation, a crime, and a breach of prison
rules. The draft standards require that every
report of sexual assault be thoroughly investigated in a uniform manner by an investigator
who has received training specific to sexual assault cases, and that the administrative process
does not jeopardize any criminal prosecution.

• The first responding officer must treat
the survivor with dignity and respect and
initiate the coordinated response team to
ensure that the survivor receives necessary
medical and mental health attention (SD-1).

• Inmate testimonies should be reviewed
for credibility on its merits and never
automatically be discounted because
they are presented by someone who is
incarcerated (IN-2). Many facilities refuse
to credit inmate statements as a matter
of course, even if the inmate is not the
complaining victim and has no incentive
to participate in the investigation. As a
result, an abusive officer is able to act with
impunity so long as he or she is faced only
with an inmate’s verbal claims.

• Protections against retaliation should be
expanded to include explicit references
to the right to be free from intimidation
and threats (AD-1). While the draft
standards address the most blatant forms
of retaliation—such as placement in harsh
conditions or permitting further attacks
and verbal abuse—the pressures against
reporting abuse tend to be more subtle and
insidious. Because of the extensive power
that officials have over inmates in their
charge, coercion against reporting rarely
needs to be overly aggressive.

• In addition to terminating staff who
sexually abuse inmates (DI-1), staff
perpetrators should be referred for
prosecution. Sexual violence behind bars
is subject to the same laws as sex crimes in
the community. Moreover, all fifty states
as well as the federal government and the
District of Columbia have custodial sexual
misconduct laws which make it a crime for
a corrections official to have sexual contact
with an inmate, regardless of consent.10
To establish a zero-tolerance approach to
sexual violence, agencies must help enforce

S t o p

P r i s o n e r

R a p e

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 11

these laws and ensure that custodial sexual
misconduct is treated like comparable
crimes in the community.
E. Medical and Mental Health Care
SPR commends the NPREC for providing clear requirements that prisons and jails
provide high quality, confidential medical
and mental health services free of charge in
the aftermath of sexual abuse. Survivors who
write to SPR frequently explain that they
were unable to receive a forensic exam, obtain
post-assault treatment, or see a mental health
practitioner because they could not afford the
fees to do so.
The value of confidential services cannot be
overstated. (See ‘Need to Know’ versus
Confidentiality, on page 13.) While the draft
standards seek to make certain that inmates
can access confidential services, additional
clarity is needed to ensure that the services available are truly confidential and that
inmates fully understand the extent of the
confidentiality provided. SPR recommends
the following revisions.
• The standards should more clearly defer
to confidentiality standards for medical
professionals in the community, rather than
agency-created reporting requirements. As
currently written, standard MM-3 requires
medical practitioners to report suspected
abuse unless the inmate affirmatively
requests that they not do so. Standard MM3 further suggests that, even if the inmate
tells the practitioner not to report, instances
of suspected staff-on-inmate sexual abuse
must still be reported. Instead, SPR suggests
that whether the suspected perpetrator
is a staff member or an inmate, medical
practitioners should be required to maintain
confidentiality. While they should offer
to report, such reports should require the
inmate’s consent.

P a g e 12

•

S t o p

P r i s o n e r

R a p e

•

• Reporting requirements created by
the agency should never trump the
confidentiality standards within the
medical and mental health professions.
Medical practitioners should not have
reporting requirements, as suggested by
section (e) of compliance checklist 40
(for standard MM-3).
• Written informed consent must be
obtained from inmates before the start of
any counseling services. While the draft
standards take an important step forward
by requiring medical and mental health
practitioners to obtain written consent
before reporting sexual abuse (MM-3,
compliance checklist 40), information
about the extent and limit of confidentiality
should never occur after a disclosure.
Rather, in accordance with community
practices, service providers (medical and
mental health) should be required to discuss
the extent and limits of their confidentiality
at the onset of services.

IV. Monitoring
The draft standards require each agency to
collect standardized data for every incident
of sexual abuse in its facilities (DC-1) and to
retain this data for at least ten years (DC-2).
For effective transparency and monitoring,
outside advocacy groups should have easy
access to this information, with identifying
information redacted to protect the safety and
privacy of any individuals named.
• In addition to publishing the aggregate data,
ideally on a website, standard DC-2 and
compliance checklist 44 should explicitly
stipulate that requests for information be
granted to the greatest extent possible, with
the most minimal redactions necessary to
protect the safety and security of the facility
and individuals.

P R E A

U p d a t e

•

J u n e

2 0 0 8

‘Need to Know’ versus Confidentiality

S

urvivors of sexual violence behind bars typically have access to scant mental health
counseling. To the extent that post-trauma coun­seling is available, it is usually not fully
confidential. Counseling sessions often occur in view or within earshot of correc­tions
officials, who may have participated or acquiesced in the assault. Moreover, once an inmate shares information about being attacked, the vast majority of prison and jail counselors are obliged to report the abuse to prison administrators. As a result, a prisoner seeking
mental health as­sistance in the aftermath of a sexual assault becomes a ‘snitch,’ risking
serious retaliation from the perpetrator and possibly others.
Many prisons and jails have responded to the tension between the need for inmate confidentiality in the aftermath of abuse and the policy that all crimes occurring in an institution be reported by specifying that only those who ‘need to know’ should receive information about sexual abuse allegations. While often well-intended, most facilities do not
offer a concrete definition of the ‘need to know’ concept, leaving it up to individual staff
members to decide with whom to share information. This lack of a clear definition renders
many ‘need to know’ policies largely meaningless, often causing information about sexual
abuse to spread rapidly and widely within prisons and jails—including to inmates. SPR
urges any corrections system using such a policy to provide all staff with a clear definition
of who truly does need to know that a sexual assault has occurred.
Medical and mental health providers should not be covered by regular reporting requirements, including ‘need to know’ policies. They must instead be obliged to provide inmates
with confidentiality comparable to that offered to survivors on the outside. In the community, a sexual assault survivor can receive services at a rape crisis center without filing
a report to the police. Unfortunately, most inmates have no access to practitioners in the
community and most medical professionals employed by a corrections department are still
required to report sexual abuse.
In SPR’s experience, victimized inmates are much more likely ultimately to report a sexual
assault if they are able to receive confidential counseling. In other words, a high confidentiality standard leads to more secure facilities. SPR’s pilot program Paths to Recovery has
proven that point. Through this initiative, sexual assault survivors at two California state
prisons—California Correctional Institution and California Institution for Women—are
able to access confidential rape crisis counseling provided by community counselors. The
availability of non-corrections counselors who are able to maintain the strong confidentiality standards that govern counselors in the community has enabled victimized inmates
at both prisons to talk through their options and to begin healing, which in turn has led
several such inmates to come forward and report their abuse.

S t o p

P r i s o n e r

R a p e

•

P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 13

Police lockups and immigration,
juvenile, and community detention

I

n addition to national standards for adult prisons and jails, the NPREC is mandated
to develop supplemental standards for immigration detention, juvenile detention,
community corrections, and lockups. The supplemental standards for immigration
detention were released on May 5, 2008, together with the standards for prisons and jails,
and have the same public comment period. This section of the PREA Update discusses
the immigration detention standards. The remaining supplemental standards are due to
be released on June 16, 2008, and will have a 45-day public comment period that will
end on August 1, 2008.

Immigration Detainees –
An Exceptionally Vulnerable Community
I. Compliance with PREA 		
Standards
Facilities housing immigration detainees are
bound by additional standards created by
the NPREC. Many immigration detainees
are held in state or county facilities, and the
units housing immigration detainees must
meet the applicable standards for prisons,
jails, or lockups that are required for the
rest of the facility. Detention facilities run
by Immigration and Customs Enforcement
(ICE), Border Patrol, or the Office of Refugee
Resettlement (ORR) are likewise subject
to the standards of the most analogous
type of corrections facility. The NPREC is
also specifically requesting input on which
standards would be most appropriate for ICE’s
family facilities, in which adult detainees are
housed with their children.

II. Supplemental PREA 		
Standards
In addition to the issues that arise in any
detention facility, immigration custody
P a g e 14

•

S t o p

P r i s o n e r

R a p e

•

triggers unique concerns. Unlike prisons and
jails, which are run by corrections officials
who have no control over a detainee’s
conviction or sentence, the Department of
Homeland Security serves as both custodian
and prosecutor. Moreover, most immigration
detainees do not have lawyers and, unlike
criminal defendants, have no right to have one
appointed. Thus, in addition to the general
concerns about reporting sexual violence,
immigration detainees may have a heightened
fear of retaliation in the form of deportation.
While many inmates face language barriers
and other cultural issues, such concerns
are exacerbated in immigration detention.
Immigration detainees generally have fewer
avenues of support in the community and
are unlikely to know how to access service
providers. Many immigration detainees have
experienced torture or other human rights
abuses in their native countries, and most
have limited understanding of how the U.S.
government and legal system work.
To account for these extreme vulnerabilities
among immigration detainees, SPR makes
the following recommendations to the
supplemental draft standards.

P R E A

U p d a t e

•

J u n e

2 0 0 8

• Standard ID-1 requires compliance with
relevant portions of the ICE Detention
Standards, but compliance checklist 1 does
not include all of the relevant provisions,
nor does it account for the upcoming revision to the ICE Detention Standards,
which will add several relevant categories.
If the NPREC is not going to mandate
compliance with all of the ICE Detention
Standards, at a minimum checklist 1 should
include the standards for sexual abuse and
assault awareness and prevention; detainee
handbook; staff/detainee communications;
searches; staff training; and transfers.
• Standard ID-1 should also include a
certification requirement, similar to
SA-3 in the draft standards for adult prisons
and jails, requiring facility heads to attest
to their compliance with the standards to
the Attorney General and the Secretary
of Homeland Security, and to prepare an
action plan to remedy any deficiencies.
• Immigration detainees must be able to
access outside confidential resources for
their legal and emotional needs. Standard
ID-3 and compliance checklist 3 allow
the facility to decide what type of outside
services will be available. The standard
should more clearly require that facilities
enter into agreements to ensure that
detainees can access both confidential
counseling and legal advocacy services.
• Compliance checklist 3 (for standard
ID-3) must be revised, making clear that
“facility rules” never trump the need for
confidentiality in the aftermath of sexual

S t o p

P r i s o n e r

R a p e

•

abuse. As it stands, compliance checklist 3
conflicts clearly with standard ID-7, which
makes clear the requirement to provide
“confidential emotional support services
related to sexual abuse.” If facility rules do
not allow for the provision of confidential
services in the aftermath of a sexual assault,
such facility rules must be changed.
• Transferring immigration detainees can have
a devastating punitive effect—separating
them from whatever contacts they do have,
possibly severing attorney-client relationships, and changing the jurisdictions (and
corresponding laws) in which their immigration cases will be decided. SPR applauds
the NPREC for limiting the transfer of
immigration detainees who report abuse to
those who request such a transfer (ID-8).
• SPR also commends the NPREC for
accounting for the impact that an
investigation and/or prosecution could have
on the length of detention. Detainees who
would otherwise be deported may need
to remain in the country in order for an
investigation and prosecution to continue.
The provision within standard ID-8 that
requires ICE officials to consider releasing
survivors and witnesses to sexual violence
and monitoring them in the community is
very important. While compliance checklist
8 mandates that ICE develop criteria for
release when needed to protect “the safety of
an immigration detainee victim or witness,”
criteria for release should be considered for
all detainees for whom continued detention
is solely to secure their participation in an
investigation or prosecution.

P R E A

U p d a t e

•

J u n e

2 0 0 8

•

P a g e 15

Endnotes
1. See 42 U.S.C. § 15607.
2. National Prison Rape Elimination Commission, Standards for the prevention, detection,
response, and monitoring of sexual abuse in adult prisons and jails 6 (2008) (hereinafter “NPREC
Standards”).
3. NPREC Standards at 8.
4. NPREC Standards at 6.
5. Michele Deitch, Prison Oversight and Systems of Accountability, Testimony before the National Prison
Rape Elimination Commission, New Orleans, LA, December 6, 2007.
6. Id.
7. Compare Allen J. Beck & Paige M. Harrison, Bureau of Justice Statistics, Sexual Victimization in
State and Federal Prisons Reported by Inmates, 2007 (2007) (estimating 60,500 incidents of sexual
violence during twelve-month period in 2006-2007, based on survey results) with Allen J. Beck, Paige
M. Harrison, & Devon B. Adams, Sexual Violence Reported by Correctional Authorities, 2006
(2007) (estimating 3,774 reported allegations of inmate-on-inmate nonconsensual sexual acts, inmateon-inmate abusive sexual contacts, and staff sexual misconduct at prisons nationwide in 2006).
8. Beck, Harrison, & Adams, supra note 7, at 8-9.
9. Id. at 3.
10. A review of the relevant criminal laws by jurisdiction is available on SPR’s website at http://www.spr.
org/en/state_by_state_laws.asp.

STOP PRISONER RAPE
Los Angeles Headquarters
3325 Wilshire Blvd., Suite 340
Los Angeles, CA 90010
Tel: (213) 384-1400
Fax: (213) 384-1411
East Coast Office
1025 Vermont Ave., NW, Third Floor
Washington, DC 20005
Tel: (202) 580-6971
Fax: (202) 638-6056
www.spr.org