ACLU - PREA LGBTI Toolkit, 2014 | Criminal Legal News

ACLU - PREA LGBTI Toolkit, 2014

• Locations: United States of America • Topics: Staff-Prisoner Assault, Prisoner-Prisoner Assault, Staff-Prisoner Harassment, Prisoner-Prisoner Harassment, Gay/Lesbian, Discrimination (Transgender), Failure to Protect (Transgender)

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PRISON RAPE ELIMINATION ACT (PREA) TOOLKIT

END THE ABUSE
Protecting LGBTI Prisoners from Sexual Assault

END THE ABUSE

Protecting LGBTI Prisoners from Sexual Assault
Introduction

prison or jail sentence should never include sexual assault. On May 17, 2012,
the Department of Justice released the final federal regulations implementing

the Prison Rape Elimination Act (PREA). These regulations apply to federal,
state and local correctional facilities and lock-ups and include key protections for
Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) individuals. Despite—
or likely because of—the decade-long process leading up to the passage of the
final regulations, much confusion remains about how PREA’s protections can be
leveraged to protect LGBTI individuals from sexual assault. This four-part toolkit is
designed for advocates both in and outside of correctional settings to use PREA’s
requirements to end the abuse of LGBTI individuals. As federal, state and local
agencies reassess their policies and practices to come into compliance with PREA,
there will be key opportunities to make important policy changes that will impact all
individuals in confinement settings. The time to act is now.

Photo: istockphoto / snapperharmer

END THE ABUSE

Protecting LGBTI Prisoners from Sexual Assault
Advocacy Guide

he Prison Rape Elimination Act (PREA) was signed into
law in 2003.1 The Act charged the Department of Justice
(DOJ) with gathering data on the incidence of prison rape,2
and created the National Prison Rape Elimination Commission (NPREC) to study the problem and recommend national
standards to DOJ.3 After nine years of study and commentary by experts, the DOJ promulgated a comprehensive
set of regulations implementing the Act in May 2012.4 The
Department of Justice in its summary of the final PREA
regulations recognized “the particular vulnerabilities of
inmates who are [Lesbian, Gay, Bisexual, Transgender and
Intersex] LGBTI or whose appearance or manner does not
conform to traditional gender expectations” and included
landmark protections against the types of assault, harassment, and prolonged isolation that are commonly experienced by LGBTI individuals in custody.5
While the Federal government was immediately bound to
implement the PREA regulations in federal prisons and
with respect to individuals in the custody of the United
States Marshal Service,6 states had until August 2013 to
certify compliance with the regulations or potentially lose
five percent of any DOJ grant funds directed towards prison
funding.7 The Department of Homeland Security (DHS) and
the Department of Health and Human Services (DHHS)
were charged by Executive Order with promulgating PREAcompliant regulations within 180 days of the final DOJ
regulations. Those regulations are still under review.
The PREA regulations primarily rely on an audit system
and PREA coordinators to monitor and track compliance.
The regulations require agencies to conduct one audit
per year of at least one third of each facility type (prison,
jail, juvenile facility, overnight lockup, and community
confinement facility) operated by the agency.8 Over the
course of three years beginning August 20, 2013, state
and local agencies must audit every facility operated
by the agency.9 Under PREA, governors are responsible
for certifying the state’s compliance with the standards
imposed by the regulations and must consider the results
of the most recent audits in determining the state’s
compliance status.10
All agencies subject to PREA must identify a PREA
coordinator to monitor and implement compliant policies.

The coordinator must have “sufficient time and authority to
develop, implement, and oversee agency efforts to comply
with the PREA standards in all of its facilities.”11
The PREA regulations set forth new national standards that
apply to federal, state and local agencies. State agencies
face the loss of five percent of their federal funding if they
fail to comply with PREA.12 However, states can avoid
that penalty if they promise to use their federal funding
to conform to PREA standards in the future,13 and PREA
provides no penalties for local agencies that fail to meet
its standards.14 Due to the lack of a penalty mechanism
at the local level, some local agencies may try to ignore
PREA or be slow to comply with the regulations. This is
another reason why advocacy and outside pressure is
especially important for the success of PREA, and can make
an enormous difference for the safety and security of all
prisoners.
The PREA Regulations Offer Key Opportunities for
Reducing Violence against LGBTI individuals.
Reports of harassment, assault and prolonged isolation
of LGBTI individuals in custody are staggering. LGBTI
individuals are often placed against their will in highly
isolating and restrictive settings that not only fail to keep
them safe, particularly from staff-perpetrated sexual
abuse, but that also damage their health and reduce
their chances of early release because of significant
limitations imposed on educational, program and work
opportunities in these settings. Transgender and intersex
individuals are often assigned to placements based
solely on an examination of their genital characteristics
without accounting for the particular safety needs of
each individual. There is rarely any guidance on how and
when searches of transgender individuals should be
done. The final PREA regulations include key protections
against the common and abusive practices that individuals
experience in different custodial settings and can be used
to create meaningful changes for LGBTI prisoners who are
particularly vulnerable.

DOCUMENTING VIOLATIONS
Ask your state or local corrections agency for the schedule

As the nation’s largest public interest law organization, with affiliate offices in every state and a legislative office in Washington D.C., the
ACLU works daily in courts, legislatures, and communities to promote more effective criminal justice policies.

To learn more visit www.aclu.org/preatoolkit

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of PREA audits and contact information for the auditors.
Once you have this information, you can report violations
to the auditors. Facilities are also required to post notice
of upcoming audits and contact information for auditors
six weeks prior to the audit.15 People in custody should
be advised to look out for audit notices and contact the
auditors with any information about PREA violations.
If there are any facilities that are particularly noncompliant, that information can also be reported to the
Special Litigation Division of the Office of Civil Rights at
the DOJ. The Special Litigation Division has the power
to monitor conditions of confinement in state and local
facilities under the Civil Rights of Institutionalized Persons
Act (CRIPA). Where systemic violations are occurring, the
Special Litigation Division may take action. Reports should
be made directly to the Special Litigation Section here:
U.S. Department of Justice
Civil Rights Division—Special Litigation Section
950 Pennsylvania Avenue NW
Washington, D.C. 20530
(202) 514-6255 or (877) 218-5228

POLICY & LEGISLATIVE CHANGE
The final PREA regulations can be leveraged to reduce
the violence and other common problems that LGBTI
individuals experience while incarcerated. State and local
agencies must now be in compliance with PREA but some
facilities or systems may not have updated their policies
yet. If you discover from a prisoner or through a public
records request that an agency or facility has maintained
PREA non-compliant policies, you should alert them to
the violation and remind them of their obligation to be in
compliance with the PREA regulations. Another strategy
would be to write your state Department of Corrections or
local jail or juvenile detention center to ask about changes
in policy and practice that have been made to comply with
their obligations under PREA. Such an inquiry may start
a dialogue and put corrections leaders on notice that the
advocacy community in their jurisdiction is prepared to
hold them accountable to PREA’s mandates.
The PREA regulations also require that at the conclusion
of any investigation of sexual abuse, regardless of whether
the allegation was substantiated, that the facility conduct
an incident review that includes upper-level management
and assesses whether the alleged incident was motivated
by race, ethnicity, actual or perceived LGBTI status or
gender identity and whether any policy changes need to

PREA • Advocacy Guide

be made to protect against future abuse.16 Ensuring that
these reviews are mandated by actual policy and that they
are conducted thoroughly and seriously should be part of
your advocacy strategy.
In addition to agency advocacy, some states are moving
to pass state legislation that would clarify state and local
agency obligations to eliminate sexual violence. Several
states have passed their own PREA laws. In May 2013,
Colorado’s Governor signed into law a bill that makes
PREA regulations binding for prisoners under age 18 who
are being held in any of the state’s correctional facilities.17
Just over two weeks later, Texas passed a piece of
legislation that mandates PREA training for correctional
officers who work in juvenile facilities.18 Connecticut has
passed an even broader law: in 2011, that state adopted
the full PREA regulations in all facilities that hold adult
prisoners and detainees, including local jails.19
As of June 2013, a number of states have active PREArelated legislation in their legislatures. The California State
Senate approved a comprehensive PREA bill on May 29,
2013, which is now pending in the Assembly.20 New York,21
North Carolina,22 and Texas23 each had PREA laws pending
in committee prior to the close of this legislative session.
Several other states, such as Nevada,24 New Mexico,25 and
West Virginia,26 introduced PREA laws in the last year and
a half.
Passing state legislation to guarantee PREA compliance,
monitoring and enforcement is the best way to ensure
that all facilities and agencies in the state implement
and rigorously follow the PREA regulations and require
independent, outside audits.

LITIGATION
Though PREA does not create a private right of action to
sue for violations of the Act or regulations,27 there may
be room for litigants to argue that noncompliance with
the PREA standards presents evidence that facilities are
not meeting their constitutional obligations. If a state,
agency or facility has maintained PREA non-compliant
policies or practices, this may be evidence that officials
have been deliberately indifferent to an objectively serious
risk of harm. The data that was collected by Congress,
the NPREC and the DOJ during the passage of PREA and
the implementing regulations effectively put agencies and
officials on notice of the particular vulnerability of LGBTI
prisoners.

American Civil Liberties Union

KEY LGBTI ISSUES TO MONITOR IN
CUSTODIAL SETTINGS
Definitions
What To Look For
Many state and local corrections agencies will develop
PREA directives. The directives may include definitions
related to sexual abuse and reporting mechanisms but
may leave out definitions related to LGBTI individuals.
What You Can Do
Advocate with these agencies for the inclusion of clear
definitions related to LGBTI individuals in custody.
• Gender nonconforming means a person whose
appearance or manner does not conform to traditional
societal gender expectations.
• Intersex means a person whose sexual or reproductive
anatomy or chromosomal pattern does not seem to fit
typical definitions of male or female. Intersex medical
conditions are sometimes referred to as disorders of sex
development.
• Transgender means a person whose gender identity (i.e.,
internal sense of feeling male or female) is different
from the person’s assigned sex at birth.
• Gender Expression means the manner in which a person
expresses his or her gender identity to others.
• Gender Identity means a person’s internal, deeply felt
sense of being male or female, or in between, regardless
of the person’s sex at birth.
• Questioning means a person, often a younger person,
who is exploring or unsure about their sexual
orientation, gender identity and/or gender expression.
• Sexual orientation means the internal experience that
determines one’s physical, emotional or other attraction
to men, women, both or neither (asexual). Everyone has
a sexual orientation.
Individualized assessments for placement of LGBTI
individuals.
The final PREA regulations require adult prisons and jails
and juvenile detention facilities to screen individuals within
72 hours of intake to assess the individual’s risk for sexual
victimization or abuse.29 This screening “shall consider,

PREA • Advocacy Guide

at a minimum…whether the inmate is or is perceived
to be gay, lesbian, bisexual, transgender, intersex or
gender nonconforming.”30 Agencies are then charged
with using this screening information to “inform housing,
bed, work, education, and program assignments with the
goal of keeping separate those inmates at high risk of
being sexually victimized from those at high risk of being
sexually abusive.”31 Safety determinations must be made
on an individualized basis.32
The regulations also require agencies to make
individualized housing and program placements for all
transgender and intersex individuals.33 This includes
assignment of transgender and intersex individuals to
male or female facilities.34 All such program and housing
assignments must “be reassessed at least twice each year
to review any threats to safety experienced by the inmate”35
and an individual’s “own views with respect to his or her
own safety shall be given serious consideration” in these
assessments.36 Given that corrections agencies in the
United States almost universally assign people to male or
female facilities based solely on genital characteristics or
birth assigned sex, this standard marks an important and
significant departure from current practice and will require
oversight and pressure from advocates to ensure that it is
effectively implemented.
What To Look For
• Any policy that mandates placement of transgender and
intersex individuals based solely on a person’s genital
characteristics or gender designation on state issued
identification presents a clear PREA violation.
• Any policy or practice that determines facility, housing,
work or bed assignments solely on the basis of an individual’s actual or perceived LGBTI status violates PREA.
What You Can Do
• Work with the agency to implement policies that identify
transgender and intersex individuals through respectful
and affirming intake procedures.
• Sample language:“Transgender individuals may be
identified during admission/intake based on:
A statement that he or she is transgender, is
‘trapped in the wrong body,’ or is really a different
sex than his or her birth sex;
A request to be called by a name that is not
traditionally associated with his or her birth sex;

American Civil Liberties Union

Any statements in arrest reports/jail or court
records indicating the person is transgender or
that the police were unsure of the person’s sex.”
• No one should inquire about an individual’s medical
transition, genital characteristics or surgical status
unless necessary for a medical evaluation.
• Advocate for policies that trigger regular and
individualized assessments for the placement and
program assignments of transgender and intersex
individuals. This means that transgender women must
be considered for placement in women’s facilities and
transgender men for placement in men’s facilities.

PREA further mandates that facilities implement policies
to ensure that individuals are able to shower and undress
without being viewed by staff of the opposite gender and
that staff of the opposite gender announce themselves
prior to entering any housing area.41 Agencies are required
to provide transgender and intersex individuals with access
to private showers in all circumstances.42

A preferred pronoun,

The PREA regulations do not offer clear guidance on
what constitutes a cross-gender search or cross-gender
viewing for transgender and intersex individuals. The
PREA Resource Center identifies three policy options
for conducting searches of transgender and intersex
individuals: “1) searches conducted only by medical staff;
2) searches conducted by female staff only, especially
given there is no prohibition on the pat-searches female
staff can perform (except in juvenile facilities); and 3)
asking inmates/residents to identify the gender of staff
with whom they would feel most comfortable conducting
the search.”43

Where the person would feel safest being housed;

What To Look For

The sex of staff that the person would feel safest
performing searches and/or urine testing.”

• Policies requiring genital searches by staff solely to
determine the genital characteristics of a transgender or
intersex person are prohibited by PREA.

• Individual assessments should also include an
individual’s sense of his or her own safety in
different placement options (i.e., male vs. female
facilities, general population, protective custody).
• Sample Language: “A transgender or intersex
individual shall be provided with a form or screening
questionnaire to be conducted or filled out in private
that will allow the person to select the following:
A preferred name,

• Monitor individual placements that are based solely on
an individual’s genital characteristics and report such
placements and the underlying policies and practices to
auditors.
Searches and supervision of transgender individuals.
The PREA regulations prohibit any search that is conducted
for the sole purpose of determining an individual’s genital
status.37
All cross-gender pat, strip and cavity searches are subject
to strict guidelines under PREA but restrictions on crossgender pat searches of female individuals do not go into
effect until August 2015.38 Even though agencies are not
required to be in compliance with all search provisions,
all agencies should be taking steps to implement policies
consistent with the cross-gender pat and strip search
prohibitions prior to the 2015 effective date. Under the
regular effective dates for PREA compliance, agencies
are prohibited from conducting cross-gender strip and
4

cavity searches except in exigent circumstances or when
performed by a medical practitioner.39 Agencies are also
required to effectively train staff to conduct professional
and respectful searches of transgender and intersex
persons.40

PREA • Advocacy Guide

• Regardless of where transgender and intersex
individuals are housed, any policy or practice that forces
transgender or intersex individuals to shower in group
shower settings violates PREA.
• Policies or practices that treat transgender and intersex
individuals as the sex of their housing assignment for
purposes of triggering cross-gender search protections.
• Policies and practices that do not provide for an
individualized determination of cross-gender search
protections for transgender and intersex individuals.
What You Can Do
• Advocate for clear guidelines on searches of transgender
individuals including prohibitions on any searches for the
sole purpose of examining or determining a transgender
or intersex person’s genital characteristics.

American Civil Liberties Union

• Sample language: “Under no circumstances
shall any search be conducted solely for the
purpose of determining a prisoner or detainee’s
genital characteristics.
• Advocate for policies that allow transgender and
intersex individuals to identify upon intake the
gender of the officer that they would feel safest
searching them.
• Sample language: “If a prisoner has been
identified as transgender or intersex, he or she
shall be asked at intake to indicate his or her
preference as to the gender of the officer that
will perform searches in the event searches are
required, and that preference will be honored
absent exigent circumstances.”
• Advocate for the agency to remove any policies that
require transgender individuals to automatically be
treated as the gender of their housing assignment
for the purposes of triggering cross-gender search
protections.
• Advocate for policies that permit all transgender and
intersex individuals to access private showers.
Strict limits on the use of protective custody
The PREA regulations strictly regulate the use of
protective custody (separation from others to address
a current need for protection). This regulation arises
from the serious concern that protective custody in
jails, prisons and juvenile detention centers is often
synonymous with isolation or solitary confinement so
that individuals subject to it are frequently harmed
or “punished” as a result of their vulnerable status.
Under PREA prisoners cannot be placed in “involuntary
segregated housing” unless (1) an assessment of all
available alternatives is made AND (2) a determination
has been made that no alternative means of separation
is available (and this determination must be made
within the first 24 hours of involuntary segregation).44
Under the PREA regulations, involuntary segregated
housing should generally not exceed 30 days.45 When
prisoners are placed in protective custody, they must
be given access to “programs, privileges, education,
and work opportunities to the extent possible.”46
Though agencies are given significant latitude with
restrictions because of the “to the extent possible”
qualification, the nature of, reason for and duration of
any restrictions to program, privilege, education and

PREA • Advocacy Guide

work opportunities must be documented.47
The regulations also prohibit agencies from “plac[ing]
lesbian, gay, bisexual, transgender, or intersex inmates in
dedicated facilities, units, or wings solely on the basis of
such identification or status, unless such placement is in
a dedicated facility, unit, or wing established in connection
with a consent decree, legal settlement, or legal judgment
for the purpose of protecting such inmates.”48 In juvenile
facilities, no such placement based solely on LGBTI status
may be made regardless of prior legal settlements or
judgments. This includes placements in particular units or
wings, including placement in protective custody or other
isolated setting. Where such placement is made voluntarily
it should be considered permissible under this standard.
What To Look For
• Any protective custody policy that does not have clear
time limits and procedures for documenting the use
of protective custody for vulnerable prisoners violates
PREA’s mandate.
• Any protective custody policy that limits or otherwise
restricts access to programs, work assignments,
educational opportunities and/or other privileges should
be reviewed for PREA compliance.
• Any involuntary placement in protective custody or
administrative segregation solely on the basis of one’s
actual or perceived LGBTI status or gender expression is
inconsistent with the final PREA standards.
What You Can Do
• Advocate for policies that eliminate the use of prolonged
involuntary protective custody.
• Advocate for clear policies on the availability of
programming and services to all individuals housed in
restrictive settings including voluntary protective custody
and involuntary protective custody.
• Monitor reports by transgender prisoners that they are
being placed involuntarily in protective custody or other
restrictive housing setting based solely on their gender
identity or expression.
Mis-Use of PREA That Harms LGBTI Individuals
Though the PREA regulations include vitally important
protections for LGBTI individuals in custodial settings,
some agencies have adopted policies that harm LGBTI and

American Civil Liberties Union

other individuals as part of the larger effort to end prison
sexual abuse.
What To Look For
• Policies or practices that limit “cross-gender”
expression because such expression “invites” sexual
assault.
• Policies or practices that treat consensual contact
between prisoners as sexual abuse.
• Policies or practices that prohibit the possession of
condoms, lubricant or other safer sex items.
What You Can Do
• Advocate for policies that permit transgender, gender
non-conforming and intersex individuals to access
grooming items and accessories consistent with their
gender identity regardless of where they are housed
(i.e., transwomen in men’s facilities should have access
to mailroom, property, clothing, commissary and other
items available to women in women’s facilities).
• Advocate for the removal of policies treating consensual
contact between individuals in custody as sexual abuse.
Under PREA consensual contact between two individuals
in custody is not considered sexual abuse.
• Advocate for policies that make condoms, lubricant and
other safer sex items available to individuals in custody
and forbid officers from using condoms as evidence of
sexual abusiveness or victimization.

PREA • Advocacy Guide

CONTACTS
The ACLU is collecting information about individual PREA
violations, non-compliant policies and other systemic
violations of the rights of LGBTI persons in prison, jail,
juvenile detention and community corrections.
Please contact the LGBT & AIDS Project,
cstrangio@aclu.org, or the National Prison Project,
afettig@aclu.org, with any questions about monitoring
PREA compliance in your city, county or state or to identify
violations in a specific facility or jurisdiction.

American Civil Liberties Union

ENDNOTES

Prison Rape Elimination Act of 2003 (PL 108-79), codified at 42
U.S.C. §§ 15601 et. seq.

For data collected, see Prison Rape Elimination Act (Sexual
Violence in Correctional Facilities), Bureau of Justice Statistics (last
visited November 18, 2013), available at http://www.bjs.gov/index.
cfm?ty=tp&tid=20 (listing Bureau of Justice Statistics data gathered
since the act’s passage).

Nat’l Prison Rape Elimination Comm’n., Nat’l Prison Rape
Elimination Comm’n Rep. 1 (June 2009), available at https://www.
ncjrs.gov/pdffiles1/226680.pdf.

See Press Release, Department of Justice, Justice Department
Releases Final Rule to Prevent, Detect and Respond to Prison Rape
(May 17, 2012), available at http://www.justice.gov/opa/pr/2012/
May/12-ag-635.html (summary of regulations).

National Prison Rape Elimination Commission, Report 73 (June
2009) (hereinafter Commission Report); A. Beck et al., Sexual
Victimization in Jails and Prisons Reported by Inmates, 2008-09
14-15 (Bureau of Justice Statistics, Aug. 2010), available at http://
bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf; V. Jenness et al.,
Violence in California correctional facilities: An empirical examination
of sexual assault (Center for Evidence-Based Corrections 2009); 16768; J.M. Grant et al., Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey 167-68 (Washington: National
Center for Transgender Equality and National Gay and Lesbian Task
Force, 2011), available at http://endtransdiscrimination.org/PDFs/
NTDS_Report.pdf.

42 U.S.C. 15607 (b) (2003). See also Memorandum from the
President of the United States Implementing the Prison Rape
Elimination Act (May 17, 2012), available at http://www.whitehouse.
gov/the-press-office/2012/05/17/presidential-memorandumimplementing-prison-rape-elimination-act.

42 U.S.C. 15607 (e)(2) (2003). States must also audit state facilities
every three years. See 28 C.F.R. §§ 115.93, 115.193, 115.293, 115.393,
115.401, 115.402, 115.403, 115.404, 115.405, 115.501 (2012), available
at http://www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf.

28 C.F.R. §§ 115.401(b).

28 C.F.R. §§ 115.401(a).

S.B. 716, 2013-2014 Leg., Reg. Sess. (Cal. 2013).
S.B. 1394, 2013 Leg., 236th Sess. (N.Y. 2013).
H.B. 585, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013).

23
H.B. 990, 83d Leg., Reg. Sess. (Tex. 2013); see also H.B. 3634, 83d
Leg., Reg. Sess. (Tex. 2013).

S.B. 33, 77th Leg., Reg. Sess. (Nev. 2013).

S.B. 526, 51st Leg. Sess., 1st Sess. (N.M. 2013).

S.B. 427, 80th Leg., Reg. Sess. (W. Va. 2012).

27
See Alexander v. Sandoval, 532 U.S. 275, 291 (2003) (holding that, in
the absence of explicit authorization by Congress, no private right of
action is created simply by statute). 42 U.S.C. § 15602(3)(7) (2003).

28 C.F.R. § 115.5

29
28 C.F.R. § 115.41(b); 28 C.F.R. § 115.241 (b); 28 C.F.R. §
115.341(a).

28 C.F.R. § 115.41(d)(7).

28 C.F.R. § 115.42 (a)

28 C.F.R. § 115.42 (b)

28 C.F.R. § 115.42 (c) (“In deciding whether to assign a
transgender or intersex inmate to a facility for male or female
inmates, and in making other housing and programming
assignments, the agency shall consider on a case-by-case basis
whether a placement would ensure the inmate’s health and safety,
and whether the placement would present management or security
problems.”).
33

Id.

28 C.F.R. § 115.42 (d).

28 C.F.R. § 115.42 (e).

28 C.F.R. § 115.15 (e)

28 C.F.R. § 115.15 (b) and 28 C.F.R. §115.215(b)

28 C.F.R. § 115.15 (a)

42 U.S.C. 15607(c)(2); 28 C.F.R. §§ 115.501(a).

28 C.F.R. § 115.15 (f)

28 C.F.R. §§ 115.11, 115.111, 115.211, 115.311.

28 C.F.R. § 115.15 (d).

See PREA Standards, supra note 4, at §115(A).

28 C.F.R. § 115.42 (f).

Id.

15
PREA Resource Center, “Audit Process” http://www.
prearesourcecenter.org/audit/audit-process (last visited November
18, 2013).

28 C.F.R. § 115.86(2), 28 C.F.R. § 115.186(2), 28 C.F.R. § 115.286(2),
28 C.F.R. § 115.386(2).
16

43
PREA Resource Center, “Frequently Asked Questions,” http://
www.prearesourcecenter.org/faq#n1069 (last visited November 18,
2013).
44

28 C.F.R. § 115.43 (a).

28 C.F.R. § 115.43 (c).

28 C.F.R. § 115.43 (b).

2013 Colo. Legis. Serv. Ch. 171 § 17–1–115.7 (West).

S.B. 653, 82d Leg., Reg. Sess. (Tex. 2011).

17
18

Conn. Gen. Stat. § 18-81cc (Conn. 2012). Bill text available at http://
www.cga.ct.gov/2012/sup/chap325.htm#Sec18-81cc.htm.
19

PREA • Advocacy Guide

28 C.F.R. § 115.43 (b).
28 C.F.R. § 115.42 (g).

END THE ABUSE

Protecting LGBTI Prisoners from Sexual Assault
Overview
WHAT IS PREA?
The Prison Rape Elimination Act (PREA) was passed by
Congress and signed into law in 2003. The Act charged
the Department of Justice (DOJ) with gathering data on
the incidence of prison rape,1 and created the National
Prison Rape Elimination Commission (NPREC) to study
the problem and recommend national standards to DOJ.2
After nine years of study and commentary by experts,
the DOJ promulgated a comprehensive set of regulations
implementing the Act in May 2012.3

ARE LGBTI INDIVIDUALS PARTICULARLY
VULNERABLE IN PRISON, JAIL AND JUVENILE
DETENTION?
Yes. Reports of harassment and sexual abuse of LGBTI
individuals in custody are staggering.4 Transgender and
intersex individuals are at especially high risk because
they are often assigned to placements based solely on
an examination of their genital characteristics without
accounting for the particular safety needs of each
individual. There is also rarely any guidance offered to staff
on how and when searches of transgender and intersex
individuals should be done, which leave them particularly
susceptible to abusive searches.
In addition, LGBTI individuals are often placed against
their will in highly isolating and restrictive settings that
not only fail to keep them safe, particularly from staffperpetrated sexual abuse, but that also damage their
health and reduce their chances of early release because
of significant limitations imposed on educational, program
and work opportunities in these settings.

DO THE PREA REGULATIONS INCLUDE
PROTECTIONS FOR LGBTI INDIVIDUALS?
Yes. The Department of Justice in its summary of the final
PREA regulations recognized “the particular vulnerabilities
of inmates who are [Lesbian, Gay, Bisexual, Transgender
and Intersex] LGBTI or whose appearance or manner
does not conform to traditional gender expectations” and
included landmark protections against the types of assault,

harassment, and prolonged isolation that are commonly
experienced by LGBTI individuals in custody.5

HOW SHOULD FACILITIES PROTECT LGBTI
INDIVIDUALS FROM ABUSE?
The final PREA regulations impose affirmative obligations
on agencies to reduce the risk of sexual abuse of LGBTI
individuals.
Agencies can take the following steps to follow PREA’s
mandates and reduce the violence experienced by LGBTI
individuals in custody.
Eliminate searches for the sole purpose of determining
genital characteristics.
Under the PREA regulations, facilities cannot “search
or physically examine a transgender or intersex inmate
for the sole purpose of determining the inmate’s genital
status.”6 Any policy or practice that permits this type of
search must be changed. If the genital status of a person
is unknown and that information is relevant, it can be
obtained by speaking with the individual, examining
medical records or as part of a routine medical exam that
all individuals undergo as part of intake.7
Institute Individualizing Housing, Program and Work
Assignments for Transgender & Intersex Individuals
The PREA regulations require agencies to make
individualized housing and program placements for
all transgender and intersex individuals. This includes
assignment of transgender and intersex individuals to
male or female facilities. All such program and housing
assignments must “be reassessed at least twice each
year to review any threats to safety experienced by the
inmate”8 and an individual’s “own views with respect to his
or her own safety shall be given serious consideration”9
in these assessments. Any policy or practice that houses
individuals based solely on their genital status must be
changed.
To ensure a meaningful assessment of the housing and
program needs of transgender and intersex individuals,
upon intake, all transgender or intersex individuals should

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be provided with a form or screening questionnaire to be
conducted or filled out in private that will allow the person
to select the following: a preferred name, a preferred
pronoun, where the person would feel safest being housed.
Those preferences should be honored.
Institute procedures governing the searches of
transgender and intersex individuals
The PREA regulations require agencies to effectively train
staff to conduct professional and respectful searches of
transgender and intersex persons.10
The PREA Resource Center identifies three options
for conducting searches of transgender and intersex
individuals that would comply with PREA: “1) searches
conducted only by medical staff; 2) searches conducted by
female staff only, especially given there is no prohibition
on the pat-searches female staff can perform (except in
juvenile facilities); and 3) asking inmates/residents to
identify the gender of staff with whom they would feel most
comfortable conducting the search.”11
The PREA regulations also require that transgender and
intersex individuals be permitted to shower privately.12
Limit the use of protective custody.
The PREA regulations strictly regulate the use of
protective custody (separation from others to address
a current need for protection) because such housing
often amounts to isolation or solitary confinement and
therefore creates hardship for the vulnerable individual.
Under PREA prisoners cannot be placed in “involuntary
segregated housing” unless (1) an assessment of all
available alternatives is made AND (2) a determination
has been made that no alternative means of separation
is available (and this determination must be made within
the first 24 hours of involuntary segregation).13 Under
the PREA regulations, involuntary segregated housing
should generally not exceed 30 days.14 When prisoners are
placed in protective custody, they must be given access to
“programs, privileges, education, and work opportunities
to the extent possible.”15 Though agencies are given
significant latitude with restrictions because of the “to
the extent possible” qualification, the nature of, reason
for and duration of any restrictions to program, privilege,
education and work opportunities must be documented.16

PREA • Overview

ENDNOTES
See Prison Rape Elimination Act (Sexual Violence in Correctional

Facilities), Bureau of Justice Statistics (last visited November 18,
2013), available at http://www.bjs.gov/index.cfm?ty=tp&tid=20 (listing
Bureau of Justice Statistics data gathered since the act’s passage).
Nat’l Prison Rape Elimination Comm’n., Nat’l Prison Rape

Elimination Comm’n. Rep. 1 (June 2009), available at https://www.
ncjrs.gov/pdffiles1/226680.pdf.
See Press Release, Department of Justice, Justice Department

Releases Final Rule to Prevent, Detect and Respond to Prison Rape
(May 17, 2012), available at http://www.justice.gov/opa/pr/2012/
May/12-ag-635.html (summary of regulations).
National Prison Rape Elimination Commission, Report 73 (June

2009); A. Beck et al., Sexual Victimization in Jails and Prisons
Reported by Inmates, 2008-09, 14-15 (Bureau of Justice Statistics,
Aug. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/
svpjri0809.pdf; V. Jenness et al., Violence in California correctional
facilities: An empirical examination of sexual assault (Center for
Evidence-Based Corrections 2009); 167-68; J.M. Grant et al., Injustice
at Every Turn: A Report of the National Transgender Discrimination
Survey 166-68 (National Center for Transgender Equality and
National Gay and Lesbian Task Force, 2011), available at http://
endtransdiscrimination.org/PDFs/NTDS_Report.pdf.
77 FR 37105 (June 20, 2012).

28 C.F.R. § 115.15 (e).

Id.

28 C.F.R. § 115.42 (d).

28 C.F.R. § 115.42 (e).

28 C.F.R. § 115.15 (f).

PREA Resource Center, “Frequently Asked Questions,” http://

www.prearesourcecenter.org/faq#n1069 (last visited November 18,
2013).
12

28 C.F.R. § 115.42 (f).

28 C.F.R. § 115.43 (a).

28 C.F.R. § 115.43 (c).

28 C.F.R. § 115.43 (b).

Id.

END THE ABUSE

Protecting LGBTI Prisoners from Sexual Assault
Know Your Rights
WHAT IS PREA?
The Prison Rape Elimination Act (PREA) is a federal
law passed by Congress in 2003. In May of 2012, after
nine years of study and commentary by experts and
stakeholders, many of whom are currently or were
formerly incarcerated, the Department of Justice
(DOJ) published a comprehensive set of regulations
implementing the Act. These regulations are currently in
effect.

DO THE PREA REGULATIONS APPLY TO ALL
PRISONS & JAILS?
The PREA regulations apply to prisons, jails, police
lock-ups, juvenile detention centers and community
confinement facilities. The regulations apply to the
federal government, states, and local governments like
cities and counties and to private prisons contracted with
government agencies. The DOJ PREA regulations do not
apply to federal immigration detention facilities or federal
Health & Human Services (HHS) facilities. These agencies
were directed by the President to promulgate their own
PREA regulations.

HOW DOES PREA PROTECT LGBTI
INDIVIDUALS?
The DOJ in its summary of the final PREA regulations
recognized “the particular vulnerabilities of inmates who
are [Lesbian, Gay, Bisexual, Transgender and Intersex]
LGBTI or whose appearance or manner does not conform
to traditional gender expectations” and included specific
protections against the types of assault, harassment, and
prolonged isolation that are commonly reported by LGBTI
individuals in custody.
Three key areas of protection included in the final
standards relate to the housing of LGBTI individuals,
searches of transgender and intersex individuals, and use
of protective custody placements.
Housing & Placement
• The final PREA standards require adult prisons and jails
to screen individuals within 72 hours of intake to assess

the individual’s risk for sexual victimization or abuse.1
This screening “shall consider, at a minimum…whether
the inmate is or is perceived to be gay, lesbian, bisexual,
transgender, intersex or gender nonconforming.”2
• Agencies are then charged with using this screening
information to “inform housing, bed, work, education,
and program assignments with the goal of keeping
separate those inmates at high risk of being sexually
victimized from those at high risk of being sexually
abusive.”3 Safety determinations must be made on an
individualized basis.4
• The regulations require agencies to make individualized
housing and program placements for all transgender
and intersex individuals.5 This includes assignment of
transgender and intersex individuals to male or female
facilities.6 All such program and housing assignments
must “be reassessed at least twice each year to review
any threats to safety experienced by the inmate”7 and an
individual’s “own views with respect to his or her own
safety shall be given serious consideration” in these
assessments.8
Searches
• The PREA regulations prohibit any search that is
conducted for the sole purpose of determining an
individual’s genital status.9
• Agencies are prohibited from conducting cross-gender
strip and cavity searches except in exigent circumstances
or when performed by a medical practitioner.10
• Agencies must train staff to conduct professional
and respectful searches of transgender and intersex
individuals.11
• PREA further mandates that facilities implement
policies to ensure that individuals are able to shower
and undress without being viewed by staff of the
opposite gender and that staff of the opposite gender
announce themselves prior to entering any housing
area.12 Agencies are required to provide transgender and
intersex individuals with access to private showers in all
circumstances.13

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American Civil Liberties Union

Protective Custody
• Under the PREA regulations, you cannot be placed
in involuntary segregated housing unless (1) an
assessment of all available alternatives is made AND
(2) a determination is made that no alternative means
of separation is available (and this determination
must be made within the first 24 hours of involuntary
segregation).14
• Under the PREA standards, involuntary segregated
housing should generally not exceed 30 days.15
• If you are placed in restrictive housing for your own
protection, you must be given access to “programs,
privileges, education, and work opportunities to the
extent possible.”16 Unfortunately, agencies are given
significant latitude with restrictions because of the “to
the extent possible” qualification, but the nature of,
reason for and duration of any restrictions to program,
privilege, education and work opportunities must be
documented.17

WHAT CAN I DO IF THE FACILITY WHERE I AM
HOUSED IS NOT FOLLOWING PREA?
• Report the violation to an outside auditor.
• The PREA regulations require agencies to conduct
one audit (or review) per year of at least one third
of each facility type (prison, jail, juvenile facility,
overnight lockup, and community confinement
facility) operated by the agency.18
• Over the course of three years beginning August
20, 2013, state and local agencies must audit every
facility operated by the agency.19
• Six weeks prior to any audit of your facility, notice
of the audit and contact information for the auditors
must be prominently displayed.20
• Contact the PREA coordinator.
• All agencies subject to PREA must identify a PREA
coordinator to monitor and implement compliant
policies.21
• File a grievance.
• If you have been sexually assaulted, placed
involuntarily in protective custody, searched or
housed solely based on your genital characteristics

PREA • Know Your Rights

or been subject to any other abusive practice,
and you believe it is safe to do so, file a grievance
through the proper channels at your facility.
• To preserve your right to file a lawsuit, you
generally must exhaust your administrative
remedies. This means you must file grievances and
appeal each decision to the highest decision maker
within the timeframes given. Under the PREA
regulations, you are not required to file grievances
related to sexual assault within any specific
timeframe.22
• File a lawsuit.
• A violation of the PREA regulations by the facility
may not be itself legally sufficient for a lawsuit in
federal court but it can be evidence that the facility
did not otherwise meet its obligations under the
Constitution.
• For example, if you are transgender and are
sexually assaulted in a group shower setting, this
may be evidence that the facility was deliberately
indifferent and failed to protect you from a serious
risk of harm – a violation of your rights under the
Eighth Amendment.
• Contact outside service providers
• PREA mandates that correctional facilities provide
prisoners with access to outside victim advocates
for emotional support services related to sexual
abuse by giving mailing addresses and telephone
numbers, including toll-free hotline numbers
where available.23

American Civil Liberties Union

ENDNOTES
28 C.F.R. § 115.41 (b); 28 C.F.R. § 115.241 (b).

28 C.F.R. § 115.41 (d)(7).

28 C.F.R. § 115.42 (a).

28 C.F.R. § 115.42 (b).

Id.

28 C.F.R. § 115.42 (d).

28 C.F.R. § 115.42 (e).

28 C.F.R. § 115.15 (e).

28 C.F.R. § 115.15 (a).

28 C.F.R. § 115.15 (f).

28 C.F.R. § 115.15 (d).

28 C.F.R. § 115.42 (f).

28 C.F.R. § 115.43 (a).

28 C.F.R. § 115.43 (c).

28 C.F.R. § 115.43 (b).

Id.

28 C.F.R. § 115.401 (b).

28 C.F.R. § 115.401 (a).

PREA Resource Center, “Audit Process”
http://www.prearesourcecenter.org/audit/audit-process.
20

28 C.F.R. §§ 115.11 (c), 115.111(b), 115.211(b), 115.311(c).

28 C.F.R. §§ 115.52 (b)(1).

28 C.F.R. §§ 115.53(a).

PREA • Know Your Rights

END THE ABUSE

Protecting LGBTI Prisoners from Sexual Assault
Regulations

he final PREA regulations are codified at 28 C.F.R. 115.
The full text and summary of changes was published
in the Federal Register at 77 FR 37105. This is also
available online here: https://www.federalregister.gov/
articles/2012/06/20/2012-12427/national-standards-toprevent-detect-and-respond-to-prison-rape.

buttocks, or genitalia, except in exigent circumstances
or when such viewing is incidental to routine cell
checks. Such policies and procedures shall require
staff of the opposite gender to announce their
presence when entering an inmate housing unit.

The regulations are organized with definitions at the
beginning, 28 C.F.R. 115.5, 28 C.F.R. 115.6, and then
separated by the standards for different types of facilities,
prisons (28 C.F.R. 115.11 et seq.), lockups (28 C.F.R.
115.111 et seq.), community confinement facilities (28
C.F.R. 115.211 et seq.), and juvenile detention facilities (28
C.F.R. 115.311 et seq.).

e. The facility shall not search or physically examine a
transgender or intersex inmate for the sole purpose of
determining the inmate’s genital status. If the inmate’s
genital status is unknown, it may be determined during
conversations with the inmate, by reviewing medical
records, or, if necessary, by learning that information
as part of a broader medical examination conducted in
private by a medical practitioner.

The full text of key LGBTI provisions is below.

CROSS-GENDER SEARCHES
§§ 115.15, 115.115, 115.215, 115.315 Limits to crossgender viewing and searches.

The agency shall train security staff in how to conduct
cross-gender pat-down searches, and searches of
transgender and intersex inmates, in a professional
and respectful manner, and in the least intrusive
manner possible, consistent with security needs.

a. The facility shall not conduct cross-gender strip
searches or cross-gender visual body cavity searches
(meaning a search of the anal or genital opening)
except in exigent circumstances or when performed by
medical practitioners.

TRAINING

b. As of August 20, 2015, or August 21, 2017 for a
facility whose rated capacity does not exceed 50
inmates, the facility shall not permit cross-gender
pat-down searches of female inmates, absent exigent
circumstances. Facilities shall not restrict female
inmates’ access to regularly available programming or
other out-of-cell opportunities in order to comply with
this provision.

…

c. The facility shall document all cross-gender strip
searches and cross-gender visual body cavity
searches, and shall document all cross-gender patdown searches of female inmates.

§§ 115.41, 115.241 Screening for risk of victimization and
abusiveness.

d. The facility shall implement policies and procedures
that enable inmates to shower, perform bodily
functions, and change clothing without nonmedical
staff of the opposite gender viewing their breasts,

§§ 115.31, 115.231, 115.331 Employee training
a. The agency shall train all employees who may have
contact with inmates on:

9. How to communicate effectively and professionally
with inmates, including lesbian, gay, bisexual,
transgender, intersex, or gender nonconforming
inmates;

SCREENING

a. All inmates shall be assessed during an intake
screening and upon transfer to another facility for
their risk of being sexually abused by other inmates or
sexually abusive toward other inmates.
b. Intake screening shall ordinarily take place within 72

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10. The resident’s own perception of vulnerability;

hours of arrival at the facility.
c. Such assessments shall be conducted using an
objective screening instrument.
d. The intake screening shall consider, at a minimum, the
following criteria to assess inmates for risk of sexual
victimization:
…
7. Whether the inmate is or is perceived to be gay,
lesbian, bisexual, transgender, intersex, or gender
nonconforming;
8. Whether the inmate has previously experienced
sexual victimization;
9. The inmate’s own perception of vulnerability; and

This information shall be ascertained through
conversations with the resident during the intake process
and medical and mental health screenings; during
classification assessments; and by reviewing court
records, case files, facility behavioral records, and other
relevant documentation from the resident’s files.
The agency shall implement appropriate controls on the
dissemination within the facility of responses to questions
asked pursuant to this standard in order to ensure that
sensitive information is not exploited to the resident’s
detriment by staff or other residents.

HOUSING & ASSIGNMENTS BASED ON
VULNERABILITY

…

§ 115.42 Use of screening information.

Inmates may not be disciplined for refusing to answer, or
for not disclosing complete information in response to,
questions asked pursuant to paragraphs (d)(1), (d)(7), (d)
(8), or (d)(9) of this section.

a. The agency shall use information from the risk
screening required by § 115.41 to inform housing, bed,
work, education, and program assignments with the
goal of keeping separate those inmates at high risk
of being sexually victimized from those at high risk of
being sexually abusive.

The agency shall implement appropriate controls on the
dissemination within the facility of responses to questions
asked pursuant to this standard in order to ensure that
sensitive information is not exploited to the inmate’s
detriment by staff or other inmates.
§ 115.341 Obtaining information from residents.
Within 72 hours of the resident’s arrival at the facility
and periodically throughout a resident’s confinement,
the agency shall obtain and use information about each
resident’s personal history and behavior to reduce the risk
of sexual abuse by or upon a resident.
Such assessments shall be conducted using an objective
screening instrument.
At a minimum, the agency shall attempt to ascertain
information about:
…
2. Any gender nonconforming appearance or
manner or identification as lesbian, gay, bisexual,
transgender, or intersex, and whether the resident
may therefore be vulnerable to sexual abuse;

c. In deciding whether to assign a transgender or
intersex inmate to a facility for male or female
inmates, and in making other housing and
programming assignments, the agency shall consider
on a case-by-case basis whether a placement would
ensure the inmate’s health and safety, and whether
the placement would present management or security
problems.
d. Placement and programming assignments for each
transgender or intersex inmate shall be reassessed
at least twice each year to review any threats to safety
experienced by the inmate.
e. A transgender or intersex inmate’s own views with
respect to his or her own safety shall be given serious
consideration.
f.

Transgender and intersex inmates shall be given the
opportunity to shower separately from other inmates.

g. The agency shall not place lesbian, gay, bisexual,

…

b. The agency shall make individualized determinations
about how to ensure the safety of each inmate.

PREA • Regulations

American Civil Liberties Union

transgender, or intersex inmates in dedicated
facilities, units, or wings solely on the basis of such
identification or status, unless such placement is
in a dedicated facility, unit, or wing established in
connection with a consent decree, legal settlement,
or legal judgment for the purpose of protecting such
inmates.
§ 115.242 Use of screening information (content is the
same as 115.42 but does not have (d))
§ 115.342 Placement of residents in housing, bed,
program, education, and work assignments.
a. The agency shall use all information obtained pursuant
to § 115.341 and subsequently to make housing,
bed, program, education, and work assignments for
residents with the goal of keeping all residents safe
and free from sexual abuse.
b. Residents may be isolated from others only as a last
resort when less restrictive measures are inadequate
to keep them and other residents safe, and then only
until an alternative means of keeping all residents
safe can be arranged. During any period of isolation,
agencies shall not deny residents daily largemuscle exercise and any legally required educational
programming or special education services. Residents
in isolation shall receive daily visits from a medical or
mental health care clinician. Residents shall also have
access to other programs and work opportunities to
the extent possible.
c. Lesbian, gay, bisexual, transgender, or intersex
residents shall not be placed in particular housing,
bed, or other assignments solely on the basis of such
identification or status, nor shall agencies consider
lesbian, gay, bisexual, transgender, or intersex
identification or status as an indicator of likelihood of
being sexually abusive.
d. In deciding whether to assign a transgender or
intersex resident to a facility for male or female
residents, and in making other housing and
programming assignments, the agency shall consider
on a case-by-case basis whether a placement would
ensure the resident’s health and safety, and whether
the placement would present management or security
problems.
e. Placement and programming assignments for each
transgender or intersex resident shall be reassessed

PREA • Regulations

at least twice each year to review any threats to safety
experienced by the resident.
f.

A transgender or intersex resident’s own views with
respect to his or her own safety shall be given serious
consideration.

g. Transgender and intersex residents shall be given the
opportunity to shower separately from other residents.
h. If a resident is isolated pursuant to paragraph (b) of
this section, the facility shall clearly document:
1. The basis for the facility’s concern for the
resident’s safety; and
2. The reason why no alternative means of separation
can be arranged.
i.

Every 30 days, the facility shall afford each resident
described in paragraph of this section a review to
determine whether there is a continuing need for
separation from the general population.

PROTECTIVE CUSTODY
§ 115.43 Protective custody.
a. Inmates at high risk for sexual victimization shall not
be placed in involuntary segregated housing unless
an assessment of all available alternatives has been
made, and a determination has been made that there
is no available alternative means of separation from
likely abusers. If a facility cannot conduct such an
assessment immediately, the facility may hold the
inmate in involuntary segregated housing for less than
24 hours while completing the assessment.
b. Inmates placed in segregated housing for this purpose
shall have access to programs, privileges, education,
and work opportunities to the extent possible. If
the facility restricts access to programs, privileges,
education, or work opportunities, the facility shall
document:
1. The opportunities that have been limited;
2. The duration of the limitation; and
3. The reasons for such limitations.
c. The facility shall assign such inmates to involuntary
segregated housing only until an alternative means

American Civil Liberties Union

of separation from likely abusers can be arranged,
and such an assignment shall not ordinarily exceed a
period of 30 days.
d. If an involuntary segregated housing assignment is
made pursuant to paragraph (a) of this section, the
facility shall clearly document:
1. The basis for the facility’s concern for the inmate’s
safety; and
2. The reason why no alternative means of separation
can be arranged.
e. Every 30 days, the facility shall afford each such
inmate a review to determine whether there is a
continuing need for separation from the general
population.

AUDITS & OVERSIGHT
§§ 115.11, 115.111, 115.211, 115.311 Zero tolerance of
sexual abuse and sexual harassment; PREA coordinator.
a. An agency shall have a written policy mandating zero
tolerance toward all forms of sexual abuse and sexual
harassment and outlining the agency’s approach to
preventing, detecting, and responding to such conduct.
b. An agency shall employ or designate an upper-level,
agency-wide PREA coordinator with sufficient time and
authority to develop, implement, and oversee agency
efforts to comply with the PREA standards in all of its
facilities.
c. Where an agency operates more than one facility, each
facility shall designate a PREA compliance manager
with sufficient time and authority to coordinate the
facility’s efforts to comply with the PREA standards.
§§ 115.86, 115.186, 115.286, 115.386 Sexual abuse
incident reviews.
a. The facility shall conduct a sexual abuse incident
review at the conclusion of every sexual abuse
investigation, including where the allegation has not
been substantiated, unless the allegation has been
determined to be unfounded.
b. Such review shall ordinarily occur within 30 days of the
conclusion of the investigation.
c. The review team shall include upper-level
management officials, with input from line
4

PREA • Regulations

supervisors, investigators, and medical or mental
health practitioners.
d. The review team shall:
1. Consider whether the allegation or investigation
indicates a need to change policy or practice to
better prevent, detect, or respond to sexual abuse;
2. Consider whether the incident or allegation was
motivated by race; ethnicity; gender identity;
lesbian, gay, bisexual, transgender, or intersex
identification, status, or perceived status; or gang
affiliation; or was motivated or otherwise caused
by other group dynamics at the facility;
3. Examine the area in the facility where the incident
allegedly occurred to assess whether physical
barriers in the area may enable abuse;
4. Assess the adequacy of staffing levels in that area
during different shifts;
5 . Assess whether monitoring technology should be
deployed or augmented to supplement supervision
by staff; and
6. Prepare a report of its findings, including but
not necessarily limited to determinations made
pursuant to paragraphs (d)(1) through (d)(5)
of this section, and any recommendations for
improvement and submit such report to the facility
head and PREA compliance manager.
e. The facility shall implement the recommendations for
improvement, or shall document its reasons for not
doing so.
§ 115.401 Frequency and scope of audits.
a. During the three-year period starting on August 20,
2013, and during each three-year period thereafter,
the agency shall ensure that each facility operated by
the agency, or by a private organization on behalf of
the agency, is audited at least once.
b. During each one-year period starting on August 20,
2013, the agency shall ensure that at least one-third
of each facility type operated by the agency, or by a
private organization on behalf of the agency, is audited.
c. The Department of Justice may send a
recommendation to an agency for an expedited audit if
the Department has reason to believe that a particular

American Civil Liberties Union

facility may be experiencing problems relating to
sexual abuse. The recommendation may also include
referrals to resources that may assist the agency
with PREA-related issues.
d. The Department of Justice shall develop and issue
an audit instrument that will provide guidance on the
conduct of and contents of the audit.
e. The agency shall bear the burden of demonstrating
compliance with the standards.
f.

The auditor shall review all relevant agency-wide
policies, procedures, reports, internal and external
audits, and accreditations for each facility type.

g. The audits shall review, at a minimum, a sampling
of relevant documents and other records and
information for the most recent one-year period.
h. The auditor shall have access to, and shall observe,
all areas of the audited facilities.
i.

The auditor shall be permitted to request and
receive copies of any relevant documents (including
electronically stored information).

The auditor shall retain and preserve all
documentation (including, e.g., video tapes and
interview notes) relied upon in making audit
determinations. Such documentation shall be
provided to the Department of Justice upon request.

k. The auditor shall interview a representative sample
of inmates, residents, and detainees, and of staff,
supervisors, and administrators.
l. The auditor shall review a sampling of any available
videotapes and other electronically available
data (e.g., Watchtour) that may be relevant to the
provisions being audited.
m. The auditor shall be permitted to conduct private
interviews with inmates, residents, and detainees.
n. Inmates, residents, and detainees shall be permitted
to send confidential information or correspondence
to the auditor in the same manner as if they were
communicating with legal counsel.
o. Auditors shall attempt to communicate with
community-based or victim advocates who may have
insight into relevant conditions in the facility.

PREA • Regulations

§ 115.501 State determination and certification of full
compliance.
a. In determining pursuant to 42 U.S.C. 15607(c)(2)
whether the State is in full compliance with the PREA
standards, the Governor shall consider the results of
the most recent agency audits.
b. The Governor’s certification shall apply to all
facilities in the State under the operational control
of the State’s executive branch, including facilities
operated by private entities on behalf of the State’s
executive branch.

The Habeas Citebook Ineffective Counsel Side