Justice Department Releases Proposed Rule in Accordance with the Prison Rape Elimination Act
Proposed Regulation Contains Four Sets of Standards Aimed at Combating Sexual Abuse in Prisons
WASHINGTON - The Justice Department today released a proposed rule that aims to prevent and respond to sexual abuse in incarceration settings, in accordance with the Prison Rape Elimination Act (PREA). Based on recommendations of the National Prison Rape Elimination Commission (NPREC), the proposed rule contains four sets of national standards aimed at combating sexual abuse in four types of confinement facilities: adult prisons and jails, juvenile facilities, lockups and community confinement facilities.
A 60-day public comment period will follow publication in the Federal Register, after which the department will make revisions as warranted and the standards will be published as a final rule. The department expects the final rule will be published by the end of the year.
“Sexual abuse is a crime, not punishment for a crime,” said Attorney General Eric Holder. “The Department of Justice’s goal is to eliminate these acts of violence by taking deliberative and concrete steps to ensure the health and safety of prisoners. In crafting our proposed rule, we have aimed to build a durable set of standards that are attainable, effective and consistent with the Prison Rape Elimination Act’s requirements and goals.”
In developing the proposed rule, the department convened listening sessions with key stakeholders, performed an extensive analysis of the anticipated costs and benefits of the standards, and reviewed more than 650 comments that were submitted in response to an Advance Notice of Proposed Rulemaking. The standards are based on recommendations by the NPREC, which was created by PREA to study sexual abuse in confinement settings and disbanded in 2009 after issuing its final report, which included recommended standards. The department’s revisions aim to make the standards more effective, clarify the responsibilities imposed on correctional agencies, and comply with relevant law, including PREA’s requirement that the new standards not “impose substantial additional costs compared to the costs presently expended by federal, state and local prison authorities.” In addition, the department attempted to ensure that correctional agencies will be able to implement these standards without jeopardizing other programs vital to protecting inmates and ensuring their eventual reintegration into society.
The standards seek to prevent sexual abuse and to reduce the harm that it causes when it occurs. Each of the four sets of standards consists of 11 categories: prevention planning; responsive planning; training and education; screening for risk of sexual victimization and abusiveness; reporting; official response following an inmate report; investigations; discipline; medical and mental care; data collection and review; and audits.
Among other things, the proposed standards would require correctional agencies to:
- Ban cross-gender strip searches, and for juveniles, cross-gender pat-down searches;
- Check the backgrounds of new hires and not hire past abusers;
- Establish an evidence protocol to preserve evidence following an incident and train investigators to act promptly and diligently;
- Screen inmates through a process that takes into account their safety and assign them to housing in a way that best protects them;
- Provide multiple methods to report sexual abuse;
- Provide inmates access to outside victim advocates for emotional support services related to sexual abuse;
- Provide appropriate medical and mental health care to victims;
- Prepare a written policy mandating zero tolerance toward all forms of sexual abuse and sexual harassment;
- Discipline staff and inmate assailants appropriately, with termination as the presumptive disciplinary sanction for staff who have engaged in sexual touching;
- Train employees on their responsibilities in preventing, recognizing and responding to sexual abuse;
- Allow inmates a reasonable amount of time to file grievances so as to preserve their ability to seek legal redress after exhausting administrative remedies; and
- Conduct audits to assess compliance.
The Justice Department’s complete rule can be found online at: www.ojp.usdoj.gov/programs/pdfs/prea_nprm.pdf . Following publication in the Federal Register, the proposed rule will be available at www.regulations.gov , through which comments on the proposed rule may be submitted.
Once published, the standards will be immediately binding on the federal Bureau of Prisons. States that do not comply with the standards are subject to a five percent reduction in funds they would otherwise receive for prison purposes from the department unless the governor certifies that five percent of such funds will be used to enable compliance in future years.