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Back to Archives | Back to April 2010 Contents 

Update on the Prison Rape Elimination Act

By Michael S. McCampbell, Project Director, Circle Solutions Incorporated, McLean, Virginia


ational standards released in June 2009 by the National Prison Rape Elimination Commission (NPREC), pursuant to the Prison Rape Elimination Act of 2003 (PREA),1 apply to police departments operating temporary lockup, holding facilities for adult arrestees, jails, and juvenile lockups, in addition to departments contracting with outside agencies to hold arrestees. Officers must be aware of the impact the standards will have on their agencies, as no police chief wants to lead an organization that allows sexual abuse of arrestees or staff sexual misconduct. That said, PREA may fundamentally alter individual agencies’ operations.

Legislators signed PREA into law (P.L.108-79) on September 4, 2003. The goal of PREA is to eradicate sexual assaults in all “correctional” facilities in the United States. Police chiefs must note that, under PREA, prison is defined as “any confinement facility of a federal, state, or local government, whether administered by such government or by a private organization on behalf of such government, and includes any local jail or police lockup and any juvenile facility used for the custody or care of juvenile inmates.” A lockup is further defined as “[a] temporary holding facility of a federal, state, or local law enforcement agency to hold

  • inmates pending bail or transport to jail,

  • inebriates until ready for release, or

  • juveniles pending parental custody or shelter placement.”2

In addition, the law addresses all forms of sexual abuse including: sexual acts between a man and another man, a woman and another woman, a man and a woman, a staff member and a detainee, or a detainee and another detainee. Staff includes all police personnel (sworn and nonsworn), volunteers, clergy, correctional staff, and contracted staff, such as nurses, doctors, food service personnel, and mental health workers.3

According to the latest information from the Bureau of Justice Statistics, 25 percent of local police departments operate temporary lockup facilities for overnight detention of adults in a location separate from a jail, 13 percent operate juvenile lockups, and 9 percent of local police departments are responsible for operating a jail.4


Standards Applicable to Police Agencies

The national standards were developed by the nine-member NPREC, chaired by the Honorable Reggie B. Walton, U.S. District Court Judge, District of Columbia. The commission included no law enforcement practicioners. After several years of hearings, NPREC published draft standards in June 2008 for adult prisons and jails, facilities for immigration detainees, lockups, juvenile facilities, and community corrections. After receiving numerous comments from the field, NPREC released 165 final standards on June 23, 2009.5

As provided under the law, the U.S. attorney general has one year from the publication of the draft standards to publish a final rule adopting national standards for the detection, prevention, reduction, and punishment of prison rape. The statute also states that neither NPREC nor the U.S. attorney general shall establish a national standard that imposes substantial additional costs on federal, state, or local prison authorities.6

The standards are available for review and downloading at nprec.us/publication/download. Thirty-three mandatory standards exist for the prevention, detection, response, and monitoring of sexual abuse in lockups:7

  • Prevention and response planning (11 standards)

  • Training and education (3 standards)

  • Detection and response (14 standards)

  • Monitoring (5 standards)

Police chiefs are advised to review all standards, not only to assess their impacts, but also to provide comments to the attorney general.

Zero tolerance of sexual abuse. The agency has a written policy mandating zero tolerance toward all forms of sexual abuse and enforces that policy by ensuring all of its lockups comply with the PREA standards. The agency employs or designates a PREA coordinator to develop, implement, and oversee agency efforts to comply with the PREA standards.

Contracting with other entities for the confinement of detainees. If law enforcement agencies contract for the confinement of their detainees, they do so only with private agencies or other entities, including other government agencies, committed to eliminating sexual abuse in their lockups, as evidenced by their adoption of and compliance with the PREA standards. Any new contracts or contract renewals include the entity’s obligation to adopt and comply with the PREA standards and specify that the law enforcement agency will monitor the entity’s compliance with these standards as part of its monitoring of the entity’s performance.

Limits to cross-gender viewing and searches. Except in the case of an emergency, the agency prohibits cross-gender strip and visual body cavity searches. Except in the case of an emergency or other extraordinary or unforeseen circumstances, the agency restricts law enforcement staff from viewing detainees of the opposite gender who are nude or performing bodily functions and similarly restricts cross-gender pat-down searches. Any examination to determine the genital status of a detainee must be conducted in a private setting by a medical practitioner and only when the genital status is unknown to the agency.

Accommodating detainees with special needs. The agency ensures that detainees who have limited English proficiency (LEP), are deaf, or are disabled are able to report sexual abuse to staff directly, through interpretive technology, or through non-detainee interpreters. Accommodations are made to convey all written information about sexual abuse policies—including how to report sexual abuse—verbally to detainees who have limited reading skills or who are visually impaired.

Assessment and use of monitoring technology. The agency uses video monitoring systems and other cost-effective and appropriate technology to supplement its sexual abuse prevention, detection, and response efforts. The agency assesses, at least annually, the feasibility of and need for new or additional monitoring technology and develops a plan for securing such technology.

Evidence protocol and forensic medical exams. When investigating allegations of sexual abuse in a lockup, the agency follows a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative proceedings and criminal prosecutions. The protocol must be adapted from, or otherwise based on, the 2004 U.S. Department of Justice’s Office on Violence Against Women publication, A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,8 subsequent updated editions, or similarly comprehensive and authoritative protocols developed after 2004. As part of the agency’s evidence collection protocol, all victims of detainee-on-detainee sexually abusive penetration or staff-on-detainee sexually abusive penetration are provided with access and transportation to a community medical provider served by qualified forensic medical examiners. Forensic medical exams are provided free of charge to the victim. The agency makes available a victim advocate to accompany the victim through the forensic medical exam process.

Employee and volunteer training. The agency trains all lockup employees and any volunteers who have contact with detainees to be able to fulfill their responsibilities under agency sexual abuse prevention, detection, and response policies and procedures; the PREA standards; and relevant federal, state, and local law. The agency trains all lockup employees and volunteers who have contact with detainees to communicate effectively and professionally with all detainees. Current lockup employees and volunteers are educated as soon as possible following the agency’s adoption of the PREA standards, and the agency provides periodic refresher information to all lockup employees and volunteers to ensure that they know the agency’s most current sexual abuse policies and procedures. The agency maintains written documentation showing lockup employee and volunteer signatures verifying that they understand the training they have received.

Specialized training: Investigations. In addition to the general training provided to all employees and volunteers, the agency ensures that law enforcement staff members who investigate sexual abuse in lockups have received comprehensive and up-to-date training in conducting such investigations in confinement settings. Specialized training must include techniques for interviewing sexual abuse victims, proper use of Miranda- and Garrity-type warnings, sexual abuse evidence collection in confinement settings, and the criteria and evidence required to substantiate a case for administrative action or prosecution referral. The agency maintains written documentation that investigators have completed the required specialized training in conducting sexual abuse investigations.

Duty to investigate. The agency investigates all allegations of sexual abuse, including third-party and anonymous reports, and notifies victims and other complainants in writing of investigation outcomes and any disciplinary or criminal sanctions, regardless of the source of the allegation. All investigations are carried through to completion, regardless of whether the alleged abuser or victim remains at the lockup.

Data collection. The agency collects accurate, uniform data for every reported incident of sexual abuse using a standardized instrument and set of definitions. The agency aggregates the incident-based sexual abuse data at least annually. The incident-based data collected includes, at a minimum, the data necessary to answer all questions from the most recent version of the Bureau of Justice Statistics Survey on Sexual Violence. Data are obtained from multiple sources, including reports, investigation files, and sexual abuse incident reviews. The agency also obtains incident-based and aggregated data from every agency with which it contracts for the confinement of its detainees.

Data storage, publication, and destruction. The agency ensures that the collected sexual abuse data are properly stored, securely retained, and protected. The agency makes all aggregated sexual abuse data, from lockups under its direct control and those entities with which it contracts, readily available to the public at least annually through its Web site or, if it does not have one, through other means. Before making aggregated sexual abuse data publicly available, the agency removes all personal identifiers from the data. The agency maintains sexual abuse data for at least 10 years after the date of its initial collection unless federal, state, or local law allows for the disposal of official information in fewer than 10 years.

Audits of standards. The public agency ensures that all of its lockups, including contract facilities, are audited to measure compliance with the PREA standards. Audits must be conducted at least every three years by independent and qualified auditors. The public or contracted agency allows the auditor to enter and tour lockups, review documents, and interview staff and detainees, as deemed appropriate by the auditor, to conduct comprehensive audits. The public agency ensures that the report of the auditor’s findings and the public or contracted agency’s plan for corrective action are published on the appropriate agency’s Web site if it has one or are otherwise made readily available to the public.


Conclusion and Next Steps

Compliance with the standards as written may be expensive for agencies. The standard requiring an audit every three years is bound to be costly because qualified, independent auditors must be hired from outside the agency. Also, video technology required for monitoring lockup areas will have a fiscal impact on many agencies. Requirements for training, reporting, and investigating sexual abuse in lockups will also add to agencies’ budgets. Finally, while many police agencies do not have their own lockups and use other agencies (for example, jails operated by sheriff’s offices or regional authorities) to hold their arrestees, they will be required to ensure the contracting agency complies with PREA standards. It remains to be seen if this is a realistic, workable, or cost-effective approach.

As stated in PREA, the governor of each state must certify that agencies are in compliance with applicable standards. Those states with noncompliant agencies will face a 5 percent reduction of their federal correctional funding for each year they fail to meet the standards. Failure to comply could also be evidence in a civil trial that the agency is not meeting the national standard of care necessary to ensure arrestee and detainee safety.

The Office of the Attorney General held a series of listening sessions in early 2010 to gather information and ensure that all stakeholders had the opportunity to provide input in identifying and examining all options before the standards are adopted. Although many in the field have been immersed in PREA since before the law’s passage, police departments that will be impacted by standards have not been as involved or educated and need to be specifically asked to provide input. Police chiefs should work with their state associations, their congressional delegations, the IACP, and other criminal justice partners to ensure their voices are heard. Otherwise, the standards will be imposed on police agencies without the benefit of their input and expertise. ■


Notes:

1The Prison Rape Elimination Act of 2003, Public Law 108-79, 108th Cong., 1st sess., www.nprec.us/docs/Prison_Rape_Elimination_Act_of_2003.pdf (accessed August 3, 2009).
2Ibid, Sec. 10(6) & (7).
3National Prison Rape Elimination Commission, “Glossary,” in Standards: For the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Lockups, last updated August 17, 2009, http://nprec.us/publication/standards/lockups/glossary.php (accessed September 3, 2009).
4Matthew J. Hickman and Brian A. Reaves, Law Enforcement Management and Administrative Statistics: Local Police Departments, 2003, NCJ 210118 (Washington, D.C.: Bureau of Justice Statistics, May 2006), 17, http://bjs.ojp.usdoj.gov/content/pub/pdf/lpd03.pdf (accessed February 23, 2010).
5National Prison Rape Elimination Commission, Standards: For the Prevention, Detection, Response, and Monitoring of Sexual Abuse (June 2009), http://nprec.us/publication/download/ (accessed Aug 3, 2009).
6The Prison Rape Elimination Act of 2003, §§ 7e(3) & 8a(3).
7National Prison Rape Elimination Commission, Standards.
8U.S. Department of Justice Office on Violence Against Women, A National Protocol for Sexual Assault Medical Forensic Examinations Adults/Adolescents, September 2004, NCJ 206554, www.ncjrs.gov/pdffiles1/ovw/206554.pdf (accessed August 9, 2009).

Please cite as:

Michael S. McCampbell, "Update on the Prison Rape Elimination Act," The Police Chief 77 (April 2010): 116–119,
http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=2054&issue_id=42010 (insert access date).

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From The Police Chief, vol. LXXVII, no. 4, April 2010. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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