The following is the text of the rule signed by the Attorney General on May 16, 2012, which has
been sent to the Federal Register for publication. The Federal Register will update this
document to include dates that are keyed to the date of Federal Register publication.
BILLING CODE 4410-05; 4410-18
DEPARTMENT OF JUSTICE
28 CFR Part 115
Docket No. OAG-131; AG Order No.
RIN 1105-AB34
National Standards to Prevent, Detect, and Respond to Prison Rape
AGENCY: Department of Justice.
ACTION: Final rule; request for comment on specific issue.
SUMMARY: The Department of Justice (Department) is issuing a final rule adopting national
standards to prevent, detect, and respond to prison rape, pursuant to the Prison Rape Elimination
Act of 2003 (PREA). The Department is requesting comment on one issue relating to staffing in
juvenile facilities.
DATES: This rule is effective [INSERT DATE 60 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER]. Comments on the juvenile staffing ratios
set forth in § 115.313 must be submitted electronically or postmarked no later than 11:59 p.m. on
[INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL
REGISTER.]
ADDRESSES: To ensure proper handling of solicited additional comments, please reference
“Docket No. OAG-131” on all written and electronic correspondence. Written comments being
sent through regular or express mail should be sent to Robert Hinchman, Senior Counsel, Office
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW, Room 4252,
Washington, DC 20530. Comments may also be sent electronically through
http://www.regulations.gov using the electronic comment form provided on that site. An
electronic copy of this document is also available at the http://www.regulations.gov website. The
Department will accept attachments to electronic comments in Microsoft Word, WordPerfect,
Adobe PDF, or Excel file formats only. The Department will not accept any file formats other
than those specifically listed here.
Please note that the Department is requesting that electronic comments be submitted
before midnight Eastern Time on the day the comment period closes because
http://www.regulations.gov terminates the public’s ability to submit comments at midnight
Eastern Time on the day the comment period closes. Commenters in time zones other than
Eastern Time may want to consider this so that their electronic comments are received. All
comments sent through regular or express mail will be considered timely if postmarked on or
before the day the comment period closes.
FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, Office of
Legal Policy, Department of Justice, 950 Pennsylvania Avenue, NW, Room 4252, Washington,
DC 20530; telephone: (202) 514-8059. This is not a toll-free number.

POSTING OF SOLICITED ADDITIONAL PUBLIC COMMENTS: Please note that all
comments received are considered part of the public record and made available for public
inspection online at http://www.regulations.gov and in the Department’s public docket. Such
information includes personal identifying information (such as your name, address, etc.)
voluntarily submitted by the commenter.
You are not required to submit personal identifying information in order to comment on
this rule. Nevertheless, if you still want to submit personal identifying information (such as your
name, address, etc.) as part of your comment, but do not want it to be posted online or made
available in the public docket, you must include the phrase “PERSONAL IDENTIFYING
INFORMATION” in the first paragraph of your comment. You must also place all the personal
identifying information you do not want posted online or made available in the public docket in
the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment, but do
not want it to be posted online or made available in the public docket, you must include the
phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your
comment. You must also prominently identify confidential business information to be redacted
within the comment. If a comment has so much confidential business information that it cannot
be effectively redacted, all or part of that comment may not be posted online or made available in
the public docket.
Personal identifying information and confidential business information identified and
located as set forth above will be redacted and the comment, in redacted form, will be posted
online and placed in the Department’s public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to inspect the agency’s public
docket file in person by appointment, please see the “FOR FURTHER INFORMATION”
paragraph.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Overview
The goal of this rulemaking is to prevent, detect, and respond to sexual abuse in
confinement facilities, pursuant to the Prison Rape Elimination Act of 2003. For too long,
incidents of sexual abuse against incarcerated persons have not been taken as seriously as sexual
abuse outside prison walls. In popular culture, prison rape is often the subject of jokes; in public
discourse, it has been at times dismissed by some as an inevitable—or even deserved—
consequence of criminality.
But sexual abuse is never a laughing matter, nor is it punishment for a crime. Rather, it is
a crime, and it is no more tolerable when its victims have committed crimes of their own. Prison
rape can have severe consequences for victims, for the security of correctional facilities, and for
the safety and well-being of the communities to which nearly all incarcerated persons will
eventually return.
In passing PREA, Congress noted that the nation was “largely unaware of the epidemic
character of prison rape and the day-to-day horror experienced by victimized inmates.” 42
2

U.S.C. 15601(12). The legislation established a National Prison Rape Elimination Commission
(NPREC) to “carry out a comprehensive legal and factual study of the penalogical [sic], physical,
mental, medical, social, and economic impacts of prison rape in the United States” and to
recommend to the Attorney General “national standards for enhancing the detection, prevention,
reduction, and punishment of prison rape.” 42 U.S.C. 15606(d)(1), (e)(1). The statute defines
“prison” as “any confinement facility,” including jails, police lockups, and juvenile facilities, and
defines “rape” to include a broad range of unwanted sexual activity. 42 U.S.C. 15609(7) & (9).
After over four years of work, the NPREC released its recommended national standards in June
2009 and subsequently disbanded, pursuant to the statute.
The statute directs the Attorney General to publish a final rule adopting “national
standards for the detection, prevention, reduction, and punishment of prison rape . . . based upon
the independent judgment of the Attorney General, after giving due consideration to the
recommended national standards provided by the Commission . . . and being informed by such
data, opinions, and proposals that the Attorney General determines to be appropriate to
consider.” 42 U.S.C. 15607(a)(1)-(2). However, the standards may not “impose substantial
additional costs compared to the costs presently expended by Federal, State, and local prison
authorities.” 42 U.S.C. 15607(a)(3).
The standards are to be immediately binding on the Federal Bureau of Prisons. 42 U.S.C.
15607(b). A State whose Governor does not certify full compliance with the standards is subject
to the loss of five percent of any Department of Justice grant funds that it would otherwise
receive for prison purposes, unless the Governor submits an assurance that such five percent will
be used only for the purpose of enabling the State to achieve and certify full compliance with the
standards in future years. 42 U.S.C. 15607(c). The final rule specifies that the Governor’s
certification applies 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.
In addition, any correctional accreditation organization that seeks Federal grants must
adopt accreditation standards regarding sexual abuse that are consistent with the national
standards in this final rule. 42 U.S.C. 15608.
In drafting the final rule, the Department balanced a number of competing
considerations. In the current fiscal climate, governments at all levels face budgetary constraints.
The Department has aimed to craft standards that will yield the maximum desired effect while
minimizing the financial impact on jurisdictions. In addition, recognizing the unique
characteristics of individual facilities, agencies, and inmate populations, the Department has
endeavored to afford discretion and flexibility to agencies to the extent feasible.
The success of the PREA standards in combating sexual abuse in confinement facilities
will depend on effective agency and facility leadership, and the development of an agency
culture that prioritizes efforts to combat sexual abuse. Effective leadership and culture cannot, of
course, be directly mandated by rule. Yet implementation of the standards will help foster a
change in culture by institutionalizing policies and practices that bring these concerns to the
fore.
Notably, the standards are generally not outcome-based, but rather focus on policies and
procedures. While performance-based standards generally give regulated parties the flexibility
to achieve regulatory objectives in the most cost-effective way, it is difficult to employ such
standards effectively to combat sexual abuse in confinement facilities, where significant barriers
exist to the reporting and investigating of such incidents. An increase in incidents reported to
3

facility administrators might reflect increased abuse, or it might just reflect inmates’ increased
willingness to report abuse, due to the facility’s success at assuring inmates that reporting will
yield positive outcomes and not result in retaliation. Likewise, an increase in substantiated
incidents could mean either that a facility is failing to protect inmates, or else simply that it has
improved its effectiveness at investigating allegations. For these reasons, the standards generally
aim to inculcate policies and procedures that will reduce and ameliorate bad outcomes,
recognizing that one possible consequence of improved performance is that evidence of more
incidents will come to light.
The standards are not intended to define the contours of constitutionally required
conditions of confinement. Accordingly, compliance with the standards does not establish a safe
harbor with regard to otherwise constitutionally deficient conditions involving inmate sexual
abuse. Furthermore, while the standards aim to include a variety of best practices, they do not
incorporate every promising avenue of combating sexual abuse, due to the need to adopt national
standards applicable to a wide range of facilities, while taking costs into consideration. The
standards consist of policies and practices that are attainable by all affected agencies, recognizing
that agencies can, and some currently do, exceed the standards in a variety of ways. The
Department applauds such efforts, encourages agencies to adopt or continue best practices that
exceed the standards, and intends to support further the identification and adoption of innovative
methods to protect inmates from harm. As described in the Background section, the Department
is continuing its efforts to fund training, technical assistance, and other support for agencies,
including through a National Resource Center for the Elimination of Prison Rape.
Because the purposes and operations of various types of confinement facilities differ
significantly, there are four distinct sets of standards, each corresponding to a different type of
facility: Adult prisons and jails (§§ 115.11–.93); lockups (§§ 115.111–.193); community
confinement facilities (§§ 115.211–.293); and juvenile facilities (§§ 115.311–.393). The
standards also include unified sections on definitions (§§ 115.5–.6) and on audits and State
compliance (§§ 115.401–.405, 115.501). 1
The standards contained in this final rule apply to facilities operated by, or on behalf of,
State and local governments and the Department of Justice. However, in contrast to the
proposed rule, the final rule concludes that PREA encompasses all Federal confinement
facilities. Given their statutory authorities to regulate conditions of detention, other Federal
departments with confinement facilities (including but not limited to the Department of
Homeland Security) will work with the Attorney General to issue rules or procedures that will
satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
B. Summary of Major Provisions
This summary of the major provisions of the standards does not include every single
aspect of the standards, nor does it capture all distinctions drawn in the standards on the basis of
facility type or size. Agencies that are covered by each set of standards should read them in full
rather than rely exclusively on this summary.
1

The standards themselves refer to persons confined in prisons and jails as “inmates,” persons confined in lockups as
“detainees,” and persons confined in juvenile facilities or community confinement facilities as “residents.” For
simplicity, however, the discussion and explanation of the standards refer collectively to all such persons as
“inmates” except where specifically discussing lockups, juvenile facilities, or community confinement facilities.
4

General Prevention Planning. To ensure that preventing sexual abuse receives
appropriate attention, the standards require that each agency and facility designate a PREA point
person with sufficient time and authority to coordinate compliance efforts. Facilities may not
hire or promote persons who have committed sexual abuse in an institutional setting or who have
been adjudicated to have done so in the community, and must perform background checks on
prospective and current employees, unless a system is in place to capture such information for
current employees. A public agency that contracts for the confinement of its inmates with
outside entities must include in any new contracts or contract renewals the entity’s obligation to
adopt and comply with the PREA standards.
Supervision and Monitoring. The standards require each facility to develop and
document a staffing plan, taking into account a set of specified factors, that provides for adequate
levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual
abuse. The staffing standard further requires all agencies to annually assess, determine, and
document whether adjustments are needed to the staffing levels or deployment of monitoring
technologies.
Due to the great variation across facilities in terms of size, physical layout, and
composition of the inmate population, it would be impractical to require a specified level of
staffing. Likewise, mandating a subjective standard such as “adequate staffing” would be
extremely difficult to measure. Instead, the final standard requires that prisons and jails use their
best efforts to comply with the staffing plan on a regular basis and document and justify any
deviations. Given that staffing increases often depend on budget approval from an external
legislative or other governmental entity, this revision is designed to support proper staffing
without discouraging agencies from attempting to comply with the PREA standards due to
financial concerns.
The “best efforts” language encourages agencies to compose the most appropriate
staffing plan for each facility without incentivizing agencies to set the bar artificially low in
order to avoid non-compliance. But if the facility’s plan is plainly deficient on its face, the
facility is not in compliance with this standard even if it adheres to its plan.
In addition, the standards contained in the final rule require that supervisors conduct and
document unannounced rounds to identify and deter staff sexual abuse and sexual harassment.
Staffing of Juvenile Facilities. The standards set minimum staffing levels for certain
juvenile facilities. As discussed in greater detail in the appropriate section below, the
Department seeks additional comment on this aspect of the standards, and may make changes if
warranted in light of public comments received. Specifically, the standards require secure
juvenile facilities—i.e., those that do not allow residents access to the community—to maintain
minimum security staff ratios of 1:8 during resident waking hours, and 1:16 during resident
sleeping hours, except during limited and discrete exigent circumstances; deviations from the
staffing plan in such circumstances must be documented. Because increasing staffing levels
takes time and money, this requirement does not go into effect until October 2017 except for
facilities that are already obligated by law, regulation, or judicial consent decree to maintain at
least 1:8 and 1:16 ratios.
Juveniles in Adult Facilities. The final rule, unlike the proposed rule and the NPREC’s
recommended standards, contains a standard that governs the placement of juveniles in adult
facilities. The standard applies only to persons under the age of 18 who are under adult court
supervision and incarcerated or detained in a prison, jail, or lockup. Such persons are, for the
purposes of this standard, referred to as “youthful inmates” (or, in lockups, “youthful
5

detainees”). By contrast, youth in the juvenile justice system are already protected by the
Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. 5601 et seq., which
provides formula grants to States conditioned on (subject to minimal exceptions) separating
juveniles from adults in secure facilities and removing juveniles from adult jails and lockups.
This standard imposes three requirements. First, no inmate under 18 may be placed in a
housing unit where contact will occur with adult inmates in a common space, shower area, or
sleeping quarters. Second, outside of housing units, agencies must either maintain “sight and
sound separation”—i.e., preventing adult inmates from seeing or communicating with youth—or
provide direct staff supervision when the two are together. Third, agencies must make their best
efforts to avoid placing youthful inmates in isolation to comply with this provision and, absent
exigent circumstances, must afford them daily large-muscle exercise and any legally required
special education services, and must provide them access to other programs and work
opportunities to the extent possible.
While some commenters asserted that, in addition to increasing risk of victimization,
confining youth in adult facilities impedes access to age-appropriate programming and services
and may actually increase recidivism, the Department is cognizant that its mandate in
promulgating these standards extends only to preventing, detecting, and responding to sexual
abuse in confinement facilities. In addition, imposing a general prohibition on the placement of
youth in adult facilities, or disallowing such placements unless a court finds that the youth has
been violent or disruptive in a juvenile facility, would necessarily require a fundamental
restructuring of existing State laws that permit or require such placement. Given the current state
of knowledge regarding youth in adult facilities, and the availability of more narrowly tailored
approaches to protecting youth, the Department has decided not to impose a complete ban at this
time through the PREA standards. The Department has supported, however, congressional
efforts to amend the JJDPA to extend its jail removal requirements to apply to youth under adult
criminal court jurisdiction awaiting trial, unless a court specifically finds that it is in the interest
of justice to incarcerate the youth in an adult facility.
Cross-Gender Searches and Viewing. In a change from the proposed standards, the final
standards include a phased-in ban on cross-gender pat-down searches of female inmates in adult
prisons, jails, and community confinement facilities absent exigent circumstances—which is
currently the policy in most State prison systems. However, female inmates’ access to
programming and out-of-cell opportunities must not be restricted to comply with this provision.
For juvenile facilities, however, the final standards, like the proposed standards, prohibit
cross-gender pat-down searches of both female and male residents. And for all facilities, the
standards prohibit cross-gender strip searches and visual body cavity searches except in exigent
circumstances or when performed by medical practitioners, in which case the searches must be
documented.
The standards also require facilities to 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, buttocks, or genitalia, except in exigent circumstances
or when such viewing is incidental to routine cell checks. In addition, facilities must require
staff of the opposite gender to announce their presence when entering an inmate housing unit.
Training and Education. Proper training is essential to combating sexual abuse in
correctional facilities. The standards require staff training on key topics related to preventing,
detecting, and responding to sexual abuse. Investigators and medical practitioners will receive
training tailored to their specific roles.
6

Inmates, too, must understand a facility’s policies and procedures in order to know that
they will be kept safe and that the facility will not tolerate their committing sexual abuse. The
standards require that facilities explain their zero-tolerance policy regarding sexual abuse and
sexual harassment educate inmates on how to report any such incidents.
Screening. The standards require that inmates be screened for risk of being sexually
abused or sexually abusive and that screening information be used to inform housing, bed, work,
education, and program assignments. The goal is to keep inmates at high risk of victimization
away from those at high risk of committing abuse. However, facilities may not simply place
victims in segregated housing against their will unless a determination has been made that there
is no available alternative means of separation, and even then only under specified conditions
and with periodic reassessment.
Reporting. The standards require that agencies provide at least two internal reporting
avenues, and at least one way to report abuse to a public or private entity or office that is not part
of the agency and that can allow inmates to remain anonymous upon request. An agency must
also provide a way for third parties to report such abuse on behalf of an inmate.
In addition, agencies are required to provide inmates with access to outside victim
advocates for emotional support services related to sexual abuse, by giving inmates contact
information for local, State, or national victim advocacy or rape crisis organizations and by
enabling reasonable communication between inmates and these organizations, with as much
confidentiality as possible.
Responsive Planning. The standards require facilities to prepare a written plan to
coordinate actions taken among staff first responders, medical and mental health practitioners,
investigators, and facility leadership in response to an incident of sexual abuse. Upon learning of
an allegation of abuse, staff must separate the alleged victim and abuser and take steps to
preserve evidence.
The standards also require agencies to develop policies to prevent and detect any
retaliation against persons who report sexual abuse or who cooperate with investigations.
Allegations must be investigated properly, thoroughly, and objectively, and documented
correspondingly, and must be deemed substantiated if supported by a preponderance of the
evidence. No agency may require an inmate to submit to a polygraph examination as a condition
for proceeding with an investigation. Nor may an agency enter into or renew any agreement that
limits its ability to remove alleged staff abusers from contact with inmates pending an
investigation or disciplinary determination.
Investigations. Investigations are required to follow a uniform evidence protocol that
maximizes the potential for obtaining usable physical evidence for administrative proceedings
and criminal prosecutions. The agency must offer victims no-cost access to forensic medical
examinations where evidentiarily or medically appropriate. In addition, the agency must attempt
to make available a victim advocate from a rape crisis center. If that option is not available, the
agency must provide such services through either (1) qualified staff from other community-based
organizations or (2) a qualified agency staff member.
Discipline. The standards require that staff be subject to discipline for violating agency
policies regarding sexual abuse, with termination the presumptive discipline for actually
engaging in sexual abuse. Terminations or resignations linked to violating such policies are to be
reported to law enforcement (unless the conduct was clearly not criminal) and to relevant
licensing bodies.
7

Inmates also will be subject to disciplinary action for committing sexual abuse. Where
an inmate is found to have engaged in sexual contact with a staff member, the inmate may be
disciplined only where the staff member did not consent. Where two inmates have engaged in
sexual contact, the agency may (as the final rule clarifies) impose discipline for violating any
agency policy against such contact, but may deem such activity to constitute sexual abuse only if
it determines that the activity was not consensual. In other words, upon encountering two
inmates engaging in sexual activity, the agency cannot simply assume that both have committed
sexual abuse.
Medical and Mental Health Care. The standards require that facilities provide timely,
unimpeded access to emergency medical treatment and crisis intervention services, whose nature
and scope are determined by practitioners according to their professional judgment. Inmate
victims of sexual abuse while incarcerated must be offered timely information about, and timely
access to, emergency contraception and sexually transmitted infections prophylaxis, where
medically appropriate. Where relevant, inmate victims must also receive comprehensive
information about, and timely access to, all lawful pregnancy-related medical services. In
addition, facilities are required to offer a follow-up meeting if the initial screening at intake
indicates that the inmate has experienced or perpetrated sexual abuse.
Grievances. If an agency has a grievance process for inmates who allege sexual abuse,
the agency may not impose a time limit on when an inmate may submit a grievance regarding
such allegations. To be sure, a grievance system cannot be the only method—and should not be
the primary method—for inmates to report abuse. As noted above, agencies must provide
multiple internal ways to report abuse, as well as access to an external reporting channel.
This standard exists only because the Prison Litigation Reform Act, 42 U.S.C. 1997e,
requires that inmates exhaust any available administrative remedies as a prerequisite to filing suit
under Federal law with respect to the conditions of their confinement. The final standard
contains a variety of other provisions aimed at ensuring that grievance procedures that cover
sexual abuse provide inmates with a full and fair opportunity to preserve their ability to seek
judicial review, without imposing undue burdens on agencies or facilities. However, agencies
that exempt sexual abuse allegations from their remedial schemes are exempt from this standard,
because their inmates may proceed directly to court.
Audits. The final rule resolves an issue left undecided in the proposed rule by including
standards that require that agencies ensure that each of their facilities is audited once every three
years. Audits must be conducted by: (1) a member of a correctional monitoring body that is not
part of, or under the authority of, the agency (but may be part of, or authorized by, the relevant
State or local government); (2) a member of an auditing entity such as an inspector general’s or
ombudsperson’s office that is external to the agency; or (3) other outside individuals with
relevant experience. Thus, the final standards differ from the proposed standards in that audits
may not be conducted by an internal inspector general or ombudsperson who reports directly to
the agency head or to the agency’s governing board.
The Department will develop and issue an audit instrument that will provide guidance on
the conduct of and contents of the audit. All auditors must be certified by the Department,
pursuant to procedures, including training requirements, to be issued subsequently.
Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) and Gender Nonconforming
Inmates. The standards account in various ways for the particular vulnerabilities of inmates who
are LGBTI or whose appearance or manner does not conform to traditional gender expectations.
The standards require training in effective and professional communication with LGBTI and
8

gender nonconforming inmates and require the screening process to consider whether the inmate
is, or is perceived to be, LGBTI or gender nonconforming. The standards also require that postincident reviews consider whether the incident was motivated by LGBTI identification, status, or
perceived status.
In addition, in a change from the proposed rule, the final standards do not allow
placement of LGBTI inmates in dedicated facilities, units, or wings in adult prisons, jails, or
community confinement facilities 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. As in the
proposed standards, such placement is not allowed at all in juvenile facilities.
The standards impose a complete ban on searching or physically examining a transgender
or intersex inmate for the sole purpose of determining the inmate’s genital status. Agencies must
train security staff in conducting professional and respectful cross-gender pat-down searches and
searches of transgender and intersex inmates.
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, an agency may not
simply assign the inmate to a facility based on genital status. Rather, the agency must 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, giving serious
consideration to the inmate’s own views regarding his or her own safety. In addition,
transgender and intersex inmates must be given the opportunity to shower separately from other
inmates.
Inmates with Disabilities and Limited English Proficient (LEP) Inmates. The standards
require agencies to develop methods to ensure effective communication with inmates who are
deaf or hard of hearing, those who are blind or have low vision, and those who have intellectual,
psychiatric, or speech disabilities. Agencies also must take reasonable steps to ensure
meaningful access to all aspects of the agency’s efforts to prevent, detect, and respond to sexual
abuse and sexual harassment to inmates who are LEP. Agencies may not rely on inmate
interpreters or readers except in limited circumstances where an extended delay in obtaining an
effective interpreter could compromise the inmate’s safety, the performance of first-response
duties, or an investigation.
C. Costs and Benefits
The anticipated costs of full nationwide compliance with the final rule, as well as the
benefits of reducing the prevalence of prison rape, are discussed at length in the Regulatory
Impact Assessment (RIA), which is available at
http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and is summarized below in section IV,
entitled “Executive Orders 13563 and 12866 - Regulatory Planning and Review.” As shown in
Table 1, the Department estimates that the costs of these standards to all covered facilities,
assuming full nationwide compliance, would be approximately $6.9 billion over the period 20122026, or $468.5 million per year when annualized at a 7 percent discount rate. The average
annualized cost per facility of compliance with the standards is approximately $55,000 for
prisons, $50,000 for jails, $24,000 for community confinement facilities, and $54,000 for
juvenile facilities. For lockups, the average annualized cost per agency is estimated at $16,000.
9

Table 1: Estimated Cost of Full State and Local Compliance with the PREA Standards, in
the Aggregate, by Year and by Facility Type, in Millions of Dollars
Year

Prisons Jails

Lockups CCF

2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
15-yr Total

$87.2
$55.2
$58.3
$59.2
$61.3
$61.5
$62.9
$63.1
$64.3
$65.7
$65.9
$67.1
$67.1
$67.9
$67.6
$974.2

$180.1
$122.0
$106.6
$93.7
$87.3
$83.6
$80.1
$77.5
$75.0
$73.2
$72.0
$70.8
$69.6
$68.4
$67.2
$1,327.3

$254.6
$161.0
$157.9
$154.6
$153.5
$152.4
$151.3
$150.7
$150.1
$149.9
$150.1
$150.1
$149.9
$149.5
$148.8
$2,384.6

$27.8
$16.8
$14.2
$12.1
$11.1
$10.6
$10.1
$9.8
$9.4
$9.2
$9.0
$8.9
$8.7
$8.5
$8.4
$174.8

Total
All Facilities
$196.0 $745.8
$93.3
$448.5
$92.1
$429.2
$94.9
$414.5
$109.3 $422.6
$151.9 $460.1
$147.3 $451.8
$144.7 $445.8
$142.2 $441.0
$140.4 $438.3
$139.2 $436.2
$138.0 $434.9
$136.7 $432.0
$135.5 $429.8
$134.3 $426.3
$1,995.8 $6,856.7
Juveniles

Present Value $591.2 $1,488.4 $869.8

$116.6 $1,201.4 $4,267.4

Annual

$12.8 $131.9

$64.9

$163.4

$95.5

$468.5

However, these figures are potentially misleading. PREA does not require State and
local facilities to comply with the Department’s standards, nor does it enact a mechanism for the
Department to direct or enforce such compliance; instead, the statute provides certain incentives
for such confinement facilities to implement the standards. Fiscal realities faced by confinement
facilities throughout the country make it virtually certain that the total actual outlays by those
facilities will, in the aggregate, be less than the full nationwide compliance costs calculated in
the RIA. Actual outlays incurred will depend on the specific choices that State and local
correctional agencies make with regard to adoption of the standards, and correspondingly on the
annual expenditures that those agencies are willing and able to make in choosing to implement
the standards in their facilities. The Department has not endeavored in the RIA to project those
actual outlays.
With respect to benefits, the RIA conducts what is known as a “break-even analysis,” by
first estimating the monetary value of preventing various types of prison sexual abuse (from
incidents involving violence to inappropriate touching) and then, using those values, calculating
the reduction in the annual number of victims that would need to occur for the benefits of the
rule to equal the cost of full nationwide compliance.
This analysis begins by estimating the current levels of sexual abuse in covered facilities.
The RIA concludes that in 2008 more than 209,400 persons were victims of sexual abuse in
prisons, jails, and juvenile facilities, of which at least 78,500 prison and jail inmates and 4,300
10

youth in juvenile facilities were victims of the most serious forms of sexual abuse, including
forcible rape and other nonconsensual sexual acts involving injury, force, or high incidence.
Next, the RIA estimates how much monetary benefit (to the victim and to society)
accrues from reducing the annual number of victims of prison rape. This is, of course, an
imperfect endeavor, given the inherent difficulty in assigning a dollar figure to the cost of such
an event. Executive Order 13563 states that agencies “may consider (and discuss qualitatively)
values that are difficult or impossible to quantify, including equity, human dignity, fairness, and
distributive impacts.” Each of these values is relevant here, including human dignity, which is
offended by acts of sexual violence. While recognizing the limits of monetary measures and the
difficulty of translation into dollar equivalents, the RIA extrapolates from the existing economic
and criminological literature regarding rape in the community. On the basis of such
extrapolations, it finds that the monetizable benefit to an adult of avoiding the highest category
of prison sexual misconduct (nonconsensual sexual acts involving injury or force, or no injury or
force but high incidence) is worth $310,000 to $480,000 per victim; for juveniles, who typically
experience significantly greater injury from sexual abuse than do adults, the corresponding
category is assessed as worth $675,000 per victim. Lesser forms of sexual abuse have
correspondingly lower avoidance benefit values. The RIA thus determines that the maximum
monetizable cost to society of prison rape and sexual abuse (and correspondingly, the total
maximum benefit of eliminating it) is about $46.6 billion annually for prisons and jails, and an
additional $5.2 billion annually for juvenile facilities.
The RIA concludes that the break-even point would be reached if the standards reduced
the annual number of victims of prison rape by 1,671 from the baseline levels, which is less than
1 percent of the total number of victims in prisons, jails, and juvenile facilities. The Department
believes it reasonable to expect that the standards, if fully adopted and complied with, would
achieve at least this level of reduction in the prevalence of sexual abuse, and thus the benefits of
the rule justify the costs of full nationwide compliance.
As noted, this analysis inevitably excludes benefits that are not monetizable, but still
must be included in a cost-benefit analysis. These include the values of equity, human dignity,
and fairness. Such non-quantifiable benefits will be received by victims who receive proper
treatment after an assault; such treatment will in turn enhance their ability to re-integrate into the
community and maintain stable employment upon their release from prison. Furthermore,
making prisons safer will increase the general well-being and morale of staff and inmates alike.
Finally, non-quantifiable benefits will accrue to society at large, by ensuring that inmates reentering the community are less traumatized and better equipped to support their community.
Thus, the true break-even level would likely be lower and perhaps significantly lower than 1,671,
if it were possible to account for these non-quantifiable benefits.
II. Background
The Prison Rape Elimination Act of 2003, 42 U.S.C. 15601 et seq., requires the Attorney
General to promulgate regulations that adopt national standards for the detection, prevention,
reduction, and punishment of prison rape. PREA established the National Prison Rape
Elimination Commission to carry out a comprehensive legal and factual study of the penological,
physical, mental, medical, social, and economic impacts of prison rape in the United States, and
to recommend national standards to the Attorney General and to the Secretary of Health and
Human Services. The NPREC released its recommended national standards in a report dated
11

June 23, 2009, and subsequently disbanded, pursuant to the statute. The NPREC’s report and
recommended national standards are available at http://www.ncjrs.gov/pdffiles1/226680.pdf.
The NPREC set forth four sets of recommended national standards for eliminating prison
rape and other forms of sexual abuse. Each set applied to one of the following four confinement
settings: (1) adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities;
and (4) lockups (i.e., temporary holding facilities). The NPREC recommended that its standards
apply to Federal, State, and local correctional and detention facilities, including immigration
detention facilities operated by the Department of Homeland Security and the Department of
Health and Human Services. In addition to the standards themselves, the NPREC prepared
assessment checklists, designed as tools to provide agencies and facilities with examples of how
to meet the standards’ requirements; glossaries of key terms; and discussion sections providing
explanations of the rationale for each standard and, in some cases, guidance for achieving
compliance. These are available at http://www.ncjrs.gov/pdffiles1/226682.pdf (adult prisons and
jails), http://www.ncjrs.gov/pdffiles1/226684.pdf (juvenile facilities),
http://www.ncjrs.gov/pdffiles1/226683.pdf (community corrections), and
http://www.ncjrs.gov/pdffiles1/226685.pdf (lockups).
Pursuant to PREA, the final rule adopting national standards “shall be based upon the
independent judgment of the Attorney General, after giving due consideration to the
recommended national standards provided by the Commission . . . and being informed by such
data, opinions, and proposals that the Attorney General determines to be appropriate to
consider.” 42 U.S.C. 15607(a)(2). PREA expressly mandates that the Department not establish
a national standard “that would impose substantial additional costs compared to the costs
presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3). The
Department “may, however, provide a list of improvements for consideration by correctional
facilities.” 42 U.S.C. 15607(a)(3).
The Attorney General established a PREA Working Group, chaired by the Office of the
Deputy Attorney General, to review each of the NPREC’s proposed standards and to assist him
in preparing rulemaking materials. The Working Group included representatives from a wide
range of Department components, including the Access to Justice Initiative, the Bureau of
Prisons (including the National Institute of Corrections), the Civil Rights Division, the Executive
Office for United States Attorneys, the Office of Legal Policy, the Office of Legislative Affairs,
the Office of Justice Programs (including the Bureau of Justice Assistance, the Bureau of Justice
Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency
Prevention, and the Office for Victims of Crime), the Office on Violence Against Women, and
the United States Marshals Service.
The Working Group conducted an in-depth review of the standards proposed by the
NPREC. As part of that process, the Working Group conducted a number of listening sessions in
2010, at which a wide variety of individuals and groups provided preliminary input prior to the
start of the regulatory process. Participants included representatives of State and local prisons
and jails, juvenile facilities, community corrections programs, lockups, State and local sexual
abuse associations and service providers, national advocacy groups, survivors of prison rape, and
members of the NPREC.
Because, as noted above, PREA prohibits the Department from establishing a national
standard that would impose substantial additional costs compared to the costs presently expended
by Federal, State, and local prison authorities, the Working Group carefully examined the
potential cost implications of the standards proposed by the NPREC. As part of that process, the
12

Department commissioned an independent contractor to perform a cost analysis of the NPREC’s
proposed standards.
On March 10, 2010 (75 FR 11077), while awaiting completion of the cost analysis, the
Department published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting public
input on the NPREC’s proposed national standards. Approximately 650 comments were
received on the ANPRM, including comments from current or formerly incarcerated individuals,
county sheriffs, State correctional agencies, private citizens, professional organizations, social
service providers, and advocacy organizations concerned with issues involving inmate safety and
rights, sexual violence, discrimination, and juvenile justice.
In general, commenters supported the broad goals of PREA and the overall intent of the
NPREC’s recommendations. However, comments were sharply divided as to the merits of a
number of standards. Some commenters, particularly those whose responsibilities involve the
care and custody of inmates or juvenile residents, expressed concern that the NPREC’s
recommended national standards implementing PREA would impose unduly burdensome costs
on already tight State and local government budgets. Other commenters, particularly advocacy
groups concerned with protecting the health and safety of inmates and juvenile residents,
expressed concern that the NPREC’s standards did not go far enough, and, therefore, would not
fully achieve PREA’s goals.
After reviewing the comments on the NPREC’s proposed standards, and after receiving
and reviewing the cost analysis of those standards, the Department published a Notice of
Proposed Rulemaking (NPRM) on February 3, 2011 (76 FR 6248). The scope and content of the
Department’s standards differed substantially from the NPREC’s proposals in a variety of areas.
The Department revised each of the NPREC’s recommended standards, weighing the logistical
and financial feasibility of each standard against its anticipated benefits. At the same time, the
Department published an Initial Regulatory Impact Analysis (IRIA), which presented a
comprehensive assessment of the benefits and costs of the Department’s proposed standards in
both quantitative and qualitative terms. The IRIA was summarized in the NPRM and was
published in full on the Department’s website at
http://www.ojp.usdoj.gov/programs/pdfs/prea_nprm_iria.pdf.
The NPRM solicited comments on the Department’s proposed standards, and posed 64
specific questions on the proposed standards and the IRIA. In response, the Department received
over 1,300 comments, representing the same broad range of stakeholders as comments on the
ANPRM. Commenters provided general assessments of the Department’s efforts as well as
specific and detailed recommendations regarding each standard. The Department also received a
range of comments responding to the 64 questions posed in the NPRM and on the assumptions,
calculations, and conclusions contained in the IRIA. As in the comments on the ANPRM, the
changes recommended by commenters reflected a diverse array of views. Many commenters
asserted that the proposed standards provided insufficient protection against sexual abuse, while
others expressed the view that the proposed standards would be too onerous for correctional
agencies.
Following the public comment period, the Department carefully reviewed each comment
and deliberated internally on the revisions that the commenters proposed and on the critiques of
the IRIA’s benefit-cost analysis. In addition, the Department once again commissioned an
independent contractor to assist the Department in assessing the costs of revisions to the
standards.
13

The final standards reflect a considered analysis of the public comments and a rigorous
assessment of the estimated benefits and costs of full nationwide compliance with the standards.
The Department has revised the IRIA correspondingly; the final Regulatory Impact Analysis is
available at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
This is a final rule; however, the Department has identified one provision for which it is
considering making changes to the final rule, if warranted by public comments received. The
discrete provision open for additional comment does not affect the finality of the rule.
To assist agencies in their compliance efforts, the Department has funded the National
Resource Center for the Elimination of Prison Rape to serve as a national source for online and
direct support, training, technical assistance, and research to assist adult and juvenile corrections,
detention, and law enforcement professionals in combating sexual abuse in confinement.
Focusing on areas such as prevention strategies, improved reporting and detection, investigation,
prosecution, and victim-centered responses, the Resource Center will identify promising
programs and practices that have been implemented around the country and demonstrate models
for keeping inmates safe from sexual abuse. It will offer a full library, webinars, and other
online resources on its website, and will provide direct assistance in the field through skilled and
experienced training and technical assistance providers. The Department also funds the National
Center for Youth in Custody, which will partner closely with the Resource Center to assist
facilities in addressing sexual safety for youth.
The Department is also continuing its grantmaking, through its Bureau of Justice
Assistance, to support State and local demonstration projects aimed at combating sexual abuse in
confinement facilities. In addition, the Department’s National Institute of Corrections, which has
provided substantial PREA-related training and technical assistance since passage of the Act,
will be developing electronic and web-based resource materials aimed at reaching a broad
audience.

III. Overview of PREA National Standards.
Scope of Standards: Application to Other Federal Confinement Facilities
The proposed rule interpreted the statute to bind only facilities operated by the Bureau of
Prisons, and extended the standards to United States Marshals Service facilities under other
authorities of the Attorney General. In light of comments on the proposed rule, the Department
has re-examined whether PREA extends to Federal facilities beyond those operated by the
Department of Justice. The Department now concludes that PREA does, in fact, encompass any
Federal confinement facility “whether administered by [the] government or by a private
organization on behalf of such government,” 42 U.S.C. 15609(7).
With respect to Bureau of Prisons facilities, the Act explicitly provides that the national
standards apply immediately. 42 U.S.C. 15607(b). However, the statute does not address how it
will be implemented at other Federal confinement facilities. In general, each Federal agency is
accountable for, and has statutory authority to regulate, the operations of its own facilities and,
therefore, is best positioned to determine how to implement the Federal laws and rules that
govern its own operations, the conduct of its own employees, and the safety of persons in its
custody. For example, the Department of Homeland Security possesses great knowledge and
experience regarding the specific characteristics of its immigration facilities, which differ in
14

certain respects from Department of Justice, State, and local facilities with regard to the manner
in which they are operated and the composition of their populations. Indeed, the NPREC
expressly recognized these distinctions by including a supplemental set of 15 standards
applicable only to facilities with immigration detainees. Similarly, the Department of the
Interior’s Bureau of Indian Affairs (BIA) possesses expertise regarding the various confinement
facilities in Indian country, which are owned and operated pursuant to numerous different
arrangements by BIA and the tribes, and which also differ in certain respects from Department of
Justice, State, and local facilities.
Given their statutory authorities to regulate conditions of detention, other Federal
departments with confinement facilities will work with the Attorney General to issue rules or
procedures that will satisfy the requirements of PREA. 42 U.S.C. 15607(a)(2).
Scope of Standards: Pretrial Release, Probation, Parole, and Related Programs
In the proposed rule, the Department declined to adopt the NPREC’s recommendation
that the Department adopt a set of standards for community corrections, which the NPREC had
recommended defining as follows: “Supervision of individuals, whether adults or juveniles, in a
community setting as a condition of incarceration, pretrial release, probation, parole, or
post-release supervision. These settings would include day and evening reporting centers.”2 The
Department determined that to the extent this definition included supervision of individuals in a
non-residential setting, it exceeded the scope of PREA’s definitions of jail and prison, which
include only “confinement facilit[ies].” 42 U.S.C. 15609(3), (7). Accordingly, the proposed rule
did not reference community corrections, but instead proposed adopting a set of standards for
“community confinement facilities,” defined as
a community treatment center, halfway house, restitution center, mental health facility,
alcohol or drug rehabilitation center, or other community correctional facility (including
residential re-entry centers) in which offenders or defendants reside as part of a term of
imprisonment or as a condition of pre-trial release or post-release supervision, while
participating in gainful employment, employment search efforts, community service,
vocational training, treatment, educational programs, or similar facility-approved
programs during nonresidential hours.
Several commenters criticized the proposed rule for excluding individuals who are not
incarcerated but are subject to pretrial release, probation, parole, or post-release supervision.
These commenters included advocacy groups, certain former members of the NPREC, and two
trade organizations, the American Probation and Parole Association and the International
Community Corrections Association. Commenters observed that parole and probation officers
play a significant role in the lives of their charges, and that such power includes the potential for
abuse. Some suggested that the Department should adopt all of the NPREC’s recommendations
with regard to pretrial release, probation, parole, or post-release supervision, while others
proposed including only certain training requirements related to handling disclosures of sexual
abuse and avoiding inappropriate relationships with probationers and parolees.
2

NPREC, Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Community
Corrections, 5, available at http://www.ncjrs.gov/pdffiles1/226683.pdf.
15

The final rule does not include these suggested changes and instead retains the definition
quoted above. The Department recognizes, of course, that staff involved in pretrial release,
probation, parole, or post-release supervision exert great authority. The same is true, however,
of numerous other government officials, including police officers who operate in the community,
law enforcement investigators, and certain categories of civil caseworkers. While any abuse by
law enforcement officials or other government agents is reprehensible, PREA appropriately
addresses the unique vulnerability of incarcerated persons, who literally cannot escape their
abusers and who lack the ability to access community resources available to most victims of
sexual abuse.
One commenter observed that PREA defines “prison rape” as including “the rape of an
inmate in the actual or constructive control of prison officials,” 42 U.S.C. 15609(8), and
suggested that a probationer or parolee should be considered to be under the constructive control
of correctional officials. This suggestion, however, neglects the statute’s definition of “inmate”
as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced
for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary program.” 42 U.S.C. 15609(2). An inmate by
definition is “incarcerated or detained in [a] facility”; the inclusion of inmates who are “under
the constructive control of correctional officials” presumably refers to inmates who are
temporarily supervised by others, such as inmates on work details. Furthermore, the reference to
parole, probation, and related programs in the definition of “inmate” indicates that only a person
who “violate[s] . . . the terms and conditions” of such a program, rather than any person who is
subject to such terms and conditions, qualifies as an inmate. Indeed, with the exception of an
unrelated grant program to safeguard communities,3 the statute makes no other reference to
parole, probation, pretrial release, or diversionary programs.
The same commenter noted that PREA instructed the NPREC to recommend to the
Attorney General national standards on, in addition to specifically enumerated topics, “such
other matters as may reasonably be related to the detection, prevention, reduction, and
punishment of prison rape.” 42 U.S.C. 15606(e)(2)(M). The Department agrees with the
commenter that this language, by extension, provides the Attorney General with a broad scope of
authority to combat sexual abuse in confinement facilities. However, this language does not
necessitate the adoption of standards to govern probation, parole, pretrial release, or diversionary
programs. To be sure, former inmates may report to a parole officer sexual abuse that occurred
while they were in a confinement facility. However, former inmates—unlike current inmates—
generally possess ample ability to report abuse through the same channels as any other person
living in the community.
Still, the Department encourages probation and parole departments to take active steps to
ensure that any information they learn about sexual abuse in confinement facilities is transmitted
to law enforcement authorities or correctional agencies, as appropriate. The Department
recommends that such departments train their officers as needed to facilitate proper investigation
of allegations.
3

The statute authorizes the Attorney General to make grants to States to “safeguard the communities to which
inmates return” by, among other things, “preparing maps demonstrating the concentration, on a community-bycommunity basis, of inmates who have been released, to facilitate the efficient and effective . . . deployment of law
enforcement resources (including probation and parole resources),” and “developing policies and programs that
reduce spending on prisons by effectively reducing rates of parole and probation revocation without compromising
public safety.” 42 U.S.C. 15605(b)(2)(C), (E).
16

Finally, one commenter suggested that probation departments should be included because
some probation departments operate residential facilities, including juvenile detention facilities.
No change is warranted, because the proposed rule already included any agency that operates
residential facilities. For example, to the extent that a probation department operates a juvenile
detention facility, it is covered by the Standards for Juvenile Facilities, § 115.311 et seq.
Scope of Standards: Categorization of Prisons and Jails
The Department received a significant number of comments from jails regarding the
ways in which their operations differ from prisons. Jail commenters noted that prisons, unlike
jails, generally receive individuals after sentencing. Thus, prison inmates have already been
stabilized medically and been searched before being transported to the prison. Commenters
noted that the prison intake unit or facility, unlike its jail counterpart, will often have received
information from the sentencing court, and may have received records documenting medical and
mental health conditions, criminal and institutional histories, and in some cases, program or
treatment histories.
The American Jail Association (AJA), plus several sheriffs and jail administrators,
recommended that the Department develop separate standards for jails and prisons, due to
differences in facility size, mission, length of stay, and operational considerations.
The Department recognizes the various differences between jails and prisons, but
concludes that these differences do not warrant a separate set of standards. Rather, the
Department has endeavored to provide sufficient flexibility such that the standards can be
adopted by both prisons and jails. Where appropriate, various standards impose different
requirements upon prisons and jails, while others differentiate on the basis of facility size.
General Definitions (§ 115.5)
Community confinement facility. Several commenters expressed uncertainty as to
whether group homes that house juveniles would be governed by the standards for community
confinement facilities, the standards for juvenile facilities, or both. For clarity, the final rule
revises the definition of community confinement facility to expressly exclude juvenile facilities.
All juvenile facilities, including group homes and halfway houses, are governed by the Standards
for Juvenile Facilities, § 115.311 et seq.
Exigent circumstances. The final rule adds a definition of this term, which is used in
several standards. The term is defined to mean “any set of temporary and unforeseen
circumstances that require immediate action in order to combat a threat to the security or
institutional order of a facility.” Such circumstances include, for example, the unforeseen
absence of a staff member whose presence is indispensible to carrying out a specific standard, or
an outbreak of violence within the facility that requires immediate action.
Full compliance. The final rule adds a definition of this statutory term. As discussed
above in the Executive Summary and below in the section titled Executive Order 13132 –
Federalism, PREA provides that the Governor of each State must certify “full compliance” with
the standards or else forfeit five percent of any Department of Justice grant funds that the State
would otherwise receive for prison purposes, unless the Governor submits an assurance that such
17

five percent will be used only for the purpose of enabling the State to achieve and certify full
compliance with the standards in future years. 42 U.S.C. 15607(c).
NPRM Question 34 solicited comments on how the final rule should define “full
compliance.” Several commenters recommended that full compliance be measured by a
percentage of each standard complied with. These recommendations were generally between 80
and 100 percent. One commenter suggested that each standard be designated as either
mandatory or non-mandatory, with differential percentages for each category. A number of
comments recommended that full compliance mean complete compliance, with exceptions for de
minimis violations.
A number of commenters recommended that “full compliance” be fully or partially
contingent on certain outcome measures. In other words, “full compliance” could only be
achieved if a certain objective level of safety and security is achieved in a facility.
Other commenters suggested that, instead of relying on “full compliance,” the standards
should be measured using a multi-tiered approach, such as “substantial compliance,” “partial
compliance,” “non-compliance with progress,” and “non-compliance.” One commenter
recommended that “full compliance” be regarded as achieved when the facility meets the spirit
of the standard. Another suggested that “full compliance” be regarded as achieved when an
agency adopts adequate policies and procedures, and has demonstrated its intention to comply
with those policies.
Finally, a number of comments suggested that the standards be “fully” complied with,
and two suggested that “full compliance” mean complete compliance with the critical elements
of the standard.
The final rule defines “full compliance” as “compliance with all material requirements of
each standard except for de minimis violations, or discrete and temporary violations during
otherwise sustained periods of compliance.” The Department concludes that a requirement for
specific outcome measures would be impractical to implement across a broad spectrum of
facility types, and further notes that compliance with procedural mandates is usually more within
the control of a facility than achieving specific outcome measures. Furthermore, a definition that
allows for some standards to be non-mandatory, or that defines full compliance as a percentage
or by reference to substantial compliance, is not compatible with the plain meaning of the
statutory term “full compliance.” Accordingly, the Department lacks the discretion to adopt such
a definition.
Below is a nonexhaustive set of examples of violations that would be consistent with full
compliance:





A temporary vacancy in the PREA coordinator’s position that the agency is
actively seeking to fill;
A small number of instances in which an agency fails by a number of days to
meet a 14-day deadline imposed by the rule;
Occasional noncompliance with staffing ratios in juvenile facilities due to
disturbances in other housing units or staff illnesses;
A short-term telephone malfunction that prevents inmate access to a confidential
reporting hotline, which the agency acts promptly to restore once the malfunction
is brought to its attention.
18

Generally speaking, the intent of this definition is to make clear that a Governor may certify “full
compliance” even if, in circumstances that are not reasonably foreseeable, certain of the State’s
facilities are at times unable to comply with the letter of certain standards for some short period
of time, but then act promptly to remedy the violation. This definition is in keeping with
Congress’s view that States would be able—and should be encouraged—to achieve full
compliance.
The final rule also provides, in § 115.501(b), that the Governor’s certification applies 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 certification,
by its terms, does not encompass facilities under the operational control of counties, cities, or
other municipalities.
Gender nonconforming. The final rule adds a definition of this term, which is used in
several standards. The term is defined to mean “a person whose appearance or manner does not
conform to traditional societal gender expectations.”
Intersex. Various commenters, including both correctional agencies and advocates,
requested a definition of this term, and several advocates suggested definitions. The final rule
defines the term as “a person whose sexual or reproductive anatomy or chromosomal pattern
does not seem to fit typical definitions of male or female.” The definition also notes that
“[i]ntersex medical conditions are sometimes referred to as disorders of sex development.”
Juvenile. Several commenters criticized the proposed rule’s definition of juvenile as any
person under the age of 18 unless otherwise defined by State law. One commenter noted that
State law may be inconsistent, defining a person as a juvenile for some purposes and as an adult
for others. For clarity, the final rule revises the definition by changing “unless otherwise defined
by State law” to “unless under adult court supervision and confined or detained in a prison or
jail.” For reasons explained at greater length below, the Department has rejected the suggestion
by some commenters to define juvenile as any person under the age of 18.
Some commenters recommended that the definition of juvenile include persons over the
age of 18 who are currently in the custody of the juvenile justice system, because some State
juvenile justice systems hold persons beyond that age who were originally adjudicated as
juvenile delinquents. The final rule does not make that change. The set of standards for juvenile
facilities refers throughout to “residents.” A “resident” is defined as “any person confined or
detained in a juvenile facility.” Thus, the standards already cover over-18 persons confined in a
facility that is primarily used for the confinement of under-18 persons, and the commenters’
proposed change is not needed. In the rare instance that an over-18 person in the custody of the
juvenile justice system is confined in an adult facility, it is appropriate for that person to be
treated the same as others of similar age.
Juvenile facility. For clarifying purposes, the final rule adds language to make clear that
a juvenile facility is one that is primarily used to confine juveniles “pursuant to the juvenile
justice system or criminal justice system.” A facility that confines juveniles pursuant to a social
services system, or for medical purposes, is beyond the scope of these regulations, regardless of
whether it is administered or licensed by a Federal, State, or local government or a private
organization on behalf of such government.
19

One commenter suggested amending the definition of juvenile facility to clarify that it
includes all youth confined in juvenile facilities, not just those who are accused of, or have been
adjudicated for committing, a delinquent act or criminal offense. The commenter noted that, as a
result of shortages in residential mental health facilities, juvenile facilities may temporarily hold
youth who are not accused of delinquent or criminal acts, while waiting for bed space to open up
in residential mental health facilities. The Department has not made this change, because such
youth are already covered to the extent that they are housed in a facility that primarily confines
juveniles pursuant to the juvenile justice system or criminal justice system.
A State juvenile agency requested that the standards exempt community-based facilities
that are not “physically restricting” and that serve juvenile delinquents as well as non-delinquent
youth. The Department has not made this change. As stated above, the definition of juvenile
facility includes any facility “primarily used for the confinement of juveniles pursuant to the
juvenile justice system or criminal justice system.” If a non-secure residential facility fits this
definition, it will fall within the scope of the standards, even if it also holds some non-delinquent
youth. Youth who are legally obligated to return to a facility in the evening are at risk of sexual
abuse and therefore warrant protection under these standards. Furthermore, where a facility is
primarily used to confine juvenile delinquents, it would be illogical to exempt from coverage
those facilities that happen to confine some non-delinquent youth as well.
Transgender. As with “intersex,” both agency and advocacy commenters requested that
the final rule define this term. The definition adopted in the final rule—“a person whose gender
identity (i.e., internal sense of feeling male or female) is different from the person’s assigned sex
at birth”—reflects the suggestions of numerous advocacy commenters.
Other terms. The Department has not adopted the suggestion of one commenter to define
a variety of additional terms including jail booking, intake, initial screening, and risk assessment.
These terms are in common usage in correctional settings and have meanings that are generally
understood, even if facility practices may vary in certain respects. To define these terms would
risk confusion by imposing a one-size-fits-all definition on facilities that employ these terms in
slightly different ways.
Definitions Related to Sexual Abuse (§ 115.6)
The final rule makes various changes to terms related to sexual abuse that were defined in
the proposed rule.
Sexual abuse. Various commenters criticized the proposed definition for referencing the
intent of the abuser. These commenters expressed the view that including an intent element
would, in the words of one, “require agencies to engage in a complicated time- and laborintensive inquiry into the intent of the perpetrator.” The final rule revises the definition to limit
the relevance of intent.
With regard to sexual abuse by an inmate, the proposed rule had excluded “incidents in
which the intent of the sexual contact is solely to harm or debilitate rather than to sexually
exploit.” The purpose of that language was to exclude physical altercations that incidentally
resulted in injuries to an inmate’s genitalia. While correctional agencies should, of course,
endeavor to protect inmates from physical harm of all sorts, such incidental injury is beyond the
20

scope of PREA. To eliminate the intent element while still preserving this exclusion, the final
rule replaces the language quoted above with “contact incidental to a physical altercation.”
With regard to abuse by staff, the proposed rule included contact between the penis and
the vulva or anus; contact between the mouth and the penis, vulva, or anus; penetration of the
anal or genital opening; and “[a]ny other intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of any person with the
intent to abuse, arouse, or gratify sexual desire.” The final rule replaces the intent clause with
the following language: “that is unrelated to official duties or where the staff member, contractor,
or volunteer has the intent to abuse, arouse or gratify sexual desire.” Thus, if the touching is
unrelated to official duties, no finding as to intent is necessary. If the touching is related to
official duties—such as a strip search—the touching qualifies as sexual abuse only if it is
performed in a manner that evidences an intent to abuse, arouse, or gratify sexual desire.
One agency recommended replacing “sexual abuse” with “rape.” The Department has
not made this change. PREA defines “rape” broadly, in a manner that is more consistent with
the customary definition of sexual abuse. For example, PREA includes “sexual fondling” in its
definition of rape, see 42 U.S.C. 15609(9), (11), even though that term is typically associated
with sexual abuse rather than with rape. The Department concludes that sexual abuse is a more
accurate term to describe the behaviors that Congress aimed to eliminate.
An advocate for disability rights recommended that the Department define what it means
for an inmate to be “unable to consent,” due to variations in State law on this issue. The
Department has not done so, concluding that correctional agencies should use their judgment,
taking into account any applicable State law.
One advocacy organization recommended that kissing be added to the definition of
sexual abuse or sexual harassment, due to the possibility that kissing could be used as a
“grooming” technique leading to other sexual activities. The Department concludes that it is
appropriate to consider kissing to constitute sexual abuse in certain contexts where committed by
a staff member. Accordingly, the final rule adds to the definition of sexual abuse by a staff
member “[c]ontact between the mouth and any body part where the staff member, contractor, or
volunteer has the intent to abuse, arouse, or gratify sexual desire.”
Finally, the Department has made various nonsubstantive changes to the definition of
sexual abuse, including simplifying its structure. In addition, the final rule provides that sexual
abuse is not limited to incidents where the staff member touches the inmate’s genitalia, breasts,
anus, groin, inner thigh, or buttocks, but also includes incidents where the staff member induces
the inmate to touch the staff member in such a manner.
Sexual harassment. Several correctional agencies recommended that the final rule
remove sexual harassment from the scope of the standards. The Department has not done so.
Although PREA does not reference sexual harassment, it authorized the NPREC to propose, and
by extension authorized the Attorney General to adopt, standards relating to ‘‘such other matters
as may reasonably be related to the detection, prevention, reduction, and punishment of prison
rape.’’ 42 U.S.C. 15606(e)(2)(M). Certain standards reference sexual harassment in order to
combat what may be a precursor to sexual abuse.
One commenter took issue with the categorization of “repeated verbal comments or
gestures of a sexual nature . . . including demeaning references to gender, sexually suggestive or
derogatory comments” as sexual harassment rather than sexual abuse. The commenter suggested
that this categorization inappropriately downplayed the harm associated with such conduct,
21

especially because many of the standards in the proposed rule referenced only sexual abuse and
not sexual harassment. The Department has not made this change, largely because such
activities fit the textbook definition of sexual harassment. To label comments and gestures as
sexual harassment is not meant to belittle the harm that may ensue. (The question of whether
specific standards should include sexual harassment as well as sexual abuse is a separate issue
and is discussed below in reference to specific standards.) However, similar activity, when
performed by a staff member, does constitute sexual abuse. This distinction recognizes that staff
exert tremendous authority over every aspect of inmates’ lives—far more authority than
employers exert over employees in a workplace context. An attempt, threat, or request to engage
in sexual contact, even if it does not result in actual sexual contact, may lead to grave
consequences for an inmate, and deserves to be treated seriously. Indeed, in many States, such
contact is considered to be a crime.4
The same commenter also recommended defining sexual harassment to include all
comments of a sexual nature, not just repeated comments. One correctional agency made the
same recommendation with regard to comments made by staff. The Department has not made
this change. Various standards require remedial action in response to sexual harassment; while
correctional agencies may take appropriate action in response to a single comment, a concern for
efficient resource allocation suggests that it is best to mandate such action only where comments
of a sexual nature are repeated.
Voyeurism. Some correctional agencies recommended removing voyeurism from the
scope of the standards, fearing that its inclusion would result in groundless accusations against
staff members merely for performing their jobs. This change has not been made. The
Department notes that voyeurism is limited to actions taken “for reasons unrelated to official
duties”—which constitutes a significant limitation. A staff member who happens to witness an
inmate in a state of undress while conducting rounds has not engaged in voyeurism. The risk of
false accusations is an inevitable consequence of imposing limits upon staff members’ actions,
and is neither limited to, nor unusually problematic in, the context of voyeurism.
One correctional agency recommended that voyeurism be considered as a subset of
sexual harassment and be limited to repeated actions, as with sexual harassment. The
Department has not made this change. Voyeurism is appropriately considered to be a more
serious offense than sexual harassment, and indeed is often a crime. The same commenter
suggested that by placing voyeurism within the category of sexual abuse, “there is no
differentiation between incidences of voyeurism and rape.” This is incorrect; sexual abuse
appropriately encompasses a broad range of incidents of varying degrees of severity. The
standards oblige correctional agencies to take certain actions in response to all incidents of
sexual abuse, but the appropriate response will vary greatly depending upon the nature of the
incident.
Some advocacy commenters, and one sheriff’s office, criticized the proposed rule for
providing that taking images of all or part of an inmate’s naked body, or of an inmate performing
bodily functions, constituted voyeurism only if the staff member also distributed or published

4

See National Institute of Corrections/Washington College of Law Project on Addressing Prison Rape, Fifty-State
Survey of Criminal Laws Prohibiting Sexual Abuse of Individuals in Custody, available at
http://www.wcl.american.edu/endsilence/documents/50StateSurveyofSSMLawsFINAL2009Update.pdf.
22

them. The final rule removes that limitation. Under the revised definition, taking such images
constitutes voyeurism regardless of what the staff member does with the images afterwards.
Zero Tolerance; PREA Coordinator (§§ 115.11, 115.111, 115.211, 115.311)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies establish a zerotolerance policy toward sexual abuse and harassment that outlines the agency’s approach to
preventing, detecting, and responding to such conduct. The Department also proposed that
agencies employ or designate an upper-level, agency-wide PREA coordinator to oversee efforts
to comply with the standards. The proposed standard specified that the agency-wide PREA
coordinator would be a full-time position in all agencies that operate facilities whose total rated
capacity—i.e., an objective determination of available bed space in a facility—exceeds 1,000
inmates, but could be a part-time position in other agencies. The proposed standard also required
that agencies whose total capacity exceeds 1,000 inmates must designate an existing full-time or
part-time employee at each facility to serve as that facility’s PREA coordinator.
Changes in Final Rule
The final standard no longer requires that the agency-wide PREA coordinator be a fulltime position for large agencies. Instead, the standard provides that the PREA coordinator must
have “sufficient time and authority” to perform the required responsibilities, which have not been
changed from the proposed standard.
The final standard also requires that any agency that operates more than one facility
(regardless of agency size) designate a PREA compliance manager at each facility with sufficient
time and authority to coordinate the facility’s efforts to comply with the PREA standards.
Comments and Responses
Comment. Numerous commenters criticized the proposed standard for requiring that the
PREA coordinator be a full-time position. Such commenters indicated that establishing a fulltime position would be cost-prohibitive and would inappropriately divert resources from other
important efforts. Some recommended that agencies be given discretion in how to structure their
PREA oversight and that coordinators be given flexibility to work on related tasks. One
commenter suggested that the standard mandate that the PREA coordinator devote a specified
minimum percentage of time to PREA-related work. Another commenter proposed that a fulltime PREA coordinator be required only if a threshold level of verified sexual abuse incidents is
reached.
Response. Designating a specific staff person to be accountable for PREA development,
implementation, and oversight will help ensure the success of such efforts. However, agencies
should have discretion in how to manage their PREA initiatives. Therefore, the final standard
does not require that the PREA coordinator be a full-time position. Similarly, mandating a
minimum percentage of staff time to be spent on PREA would be too stringent, and would not
provide sufficient flexibility. Rather, the final standard requires that the agency designate a
23

PREA coordinator with sufficient time and authority to develop, implement, and oversee agency
efforts to comply with the PREA standards.
As for the suggestion that a full-time coordinator be required only if verified incidents
exceed a specified threshold, it is important to note that a low level of verified incidents does not
necessarily mean that sexual abuse is not a concern. If an agency is not appropriately
investigating allegations of sexual abuse, or if victims do not feel comfortable reporting such
incidents, the level of verified incidents may not accurately reflect the agency’s success at
combating sexual abuse.
Comment. Various agency commenters requested additional flexibility with respect to
the requirement that agencies with aggregate rated capacities of over 1,000 inmates designate
facility-level PREA coordinators. Some commenters suggested raising or lowering the
population threshold for this requirement.
Response. Where an agency operates multiple facilities, the final standard requires that
all such facilities, regardless of size, designate a PREA compliance manager with sufficient time
and authority to coordinate the facility’s efforts to comply with the PREA standards. Having a
“point person” at each facility will be beneficial regardless of the size of the agency or facility.
(The PREA coordinator would serve as the “point person” at single-facility agencies.) The
language in the final standard appropriately balances the need for accountability with the
flexibility that sound correctional management requires.
Comment. One commenter inquired as to whether separate smaller facilities could share
one PREA coordinator, to accommodate workload and cost concerns.
Response. With the additional flexibility provided in the final standard, such
arrangements should not be necessary. Facilities are encouraged to collaborate on PREA efforts
to the extent feasible, but ultimately each facility will need to ensure that effective practices and
procedures are in place. For this reason, the final standard requires each facility in a multifacility agency to have its own PREA compliance manager.
Comment. One commenter requested clarification as to the requirement that the PREA
coordinator be an “upper-level” staff member.
Response. While it is not possible to define “upper-level” with precision, the PREA
coordinator should have access to agency and facility leadership on a regular basis, and have the
authority to work with other staff, managers, and supervisors to effectuate change if necessary.
By contrast, the facility-specific PREA compliance manager need not be “upper-level,” but
should have access to facility staff, managers, and supervisors in order to guide implementation.
Contracting With Other Entities for Confinement of Inmates (§§ 115.12, 115.112, 115.212,
115.312)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies that contract with
outside entities include in any new contract or contract renewal the entity’s obligation to comply
with the PREA standards.
Changes in Final Rule
No substantive changes have been made to the proposed standard.
24

Comments and Responses
Comment. Numerous advocates urged that the standard be revised to require government
agencies to impose financial sanctions on private contractors that fail to comply with the
standards. These commenters also argued that contract entities should be held to the same
auditing standards as agency-run facilities.
Response. As discussed below, the auditing standard (§ 115.401) requires that every
facility operated by an agency, or by a private organization on behalf of an agency, be audited
for PREA compliance at least once in every three-year auditing cycle. The auditing
requirements are the same, as are the effects of such audits: The Governor of each State is
required to consider the audits of facilities within the operational control of the State’s executive
branch, including the audits of private facilities operated by a contract entity on behalf of such
agencies, in determining whether to certify that the State is in full compliance with the PREA
standards. However, the final standard does not require agencies to impose financial sanctions
on non-compliant private contractors. The standard requires that new contracts or contract
renewals include a provision that obligates the entity to adopt and comply with the PREA
standards. Beyond that, the Department sees no need to specify the manner in which an agency
enforces such compliance.
Supervision and Monitoring (§§ 115.13, 115.113, 115.213, 115.313)
Summary of Proposed Rule
The standard in the proposed rule contained four requirements. First, it required the
agency to make an assessment of adequate staffing levels, taking into account its use, if any, of
video monitoring or other technology, and the physical layout and inmate population of the
facility. Second, it required agencies to devise a plan for how to best protect inmates from
sexual abuse should staffing levels fall below an adequate level. Third, it required agencies to
reassess at least annually the identified adequate staffing levels, as well as the staffing levels that
actually prevailed during the previous year, and the facility’s use of video monitoring systems
and other technologies. Fourth, it required prisons, juvenile facilities, and jails whose rated
capacity exceeds 500 inmates to implement a policy of unannounced rounds by supervisors to
identify and deter staff sexual abuse and sexual harassment.
Changes in Final Rule
The final standard requires each prison, jail, and juvenile facility to develop and
document a staffing plan that provides for adequate levels of staffing, and, where applicable,
video monitoring, to protect inmates against sexual abuse. In calculating adequate staffing levels
and determining the need for video monitoring, facilities must consider several factors,
including: (1) generally accepted detention and correctional practices; (2) any judicial findings of
inadequacy; (3) any findings of inadequacy from Federal investigative agencies; (4) any findings
of inadequacy from internal or external oversight bodies; (5) all components of the facility’s
physical plant (including “blind spots” or areas where staff or inmates may be isolated); (6) the
composition of the inmate population; (7) the number and placement of supervisory staff; (8)
25

institution programs occurring on a particular shift; (9) any applicable State or local laws,
regulations, or standards; (10) the prevalence of substantiated and unsubstantiated incidents of
sexual abuse; and (11) any other relevant factors. Prisons and jails must use “best efforts to
comply with the staffing plan on a regular basis” and are required to document and justify
deviations from the staffing plan.
Like the proposed standard, the final standard requires all agencies to annually assess,
determine, and document for each facility whether adjustments are needed to (1) the staffing
levels established pursuant to this standard; (2) prevailing staffing patterns; and (3) the facility’s
deployment of video monitoring systems and other monitoring technologies. The final standard
also adds a requirement that the annual assessment examine the resources the facility has
available to commit to ensure adequate staffing levels.
The final standard requires lockups and community confinement facilities to develop and
document a staffing plan that provides for adequate levels of staffing, and, where applicable,
video monitoring, to protect inmates against sexual abuse. In circumstances where the staffing
plan is not complied with, lockups and community confinement facilities must document and
justify all deviations from the plan. The final standard, like the proposed standard, requires
lockup and community confinement agencies to consider the facility’s physical layout, the
composition of its population, the prevalence of substantiated and unsubstantiated incidents of
sexual abuse, and any other relevant factors. If vulnerable detainees are identified pursuant to
the lockup screening process set forth in § 115.141, security staff must provide such detainees
with heightened protection, including continuous direct sight and sound supervision, single-cell
housing, or placement in a cell that is actively monitored, unless no such option is determined to
be feasible.
The final standard sets specific minimum staffing levels for certain juvenile facilities. As
set forth below at the end of the discussion of the Supervision and Monitoring standard, the
Department seeks additional comment on this aspect of the standard. Specifically, the final
standard requires secure juvenile facilities to maintain minimum security staff ratios of 1:8
during resident waking hours, and 1:16 during resident sleeping hours, except during limited and
discrete exigent circumstances, and to fully document deviations from the minimum ratios
during such circumstances. However, any secure juvenile facility that, as of the date of
publication of the final rule, is not already obligated by law, regulation, or judicial consent
decree to maintain the required staffing ratios shall have until October 1, 2017, to achieve
compliance. A secure facility is one that typically does not allow its residents to leave the
facility without supervision.5 Group homes and other facilities that allow residents access to the
community to achieve treatment or correctional objectives, such as through educational or
employment programs, typically will not be considered to be secure facilities. For juvenile
facilities, the final standard omits the requirement to plan for staffing levels that do not meet the
identified adequate levels.
The final standard also extends to all jails (rather than, as in the proposed standards, only
those jails whose rated capacity exceeds 500 inmates) the requirement of unannounced
5

The full definition is as follows: “Secure juvenile facility means a juvenile facility in which the movements and
activities of individual residents may be restricted or subject to control through the use of physical barriers or
intensive staff supervision. A facility that allows residents access to the community to achieve treatment or
correctional objectives, such as through educational or employment programs, typically will not be considered to be
a secure juvenile facility.” § 115.5.
26

supervisory rounds to identify and deter staff sexual abuse and sexual harassment. In order to
address concerns that some staff members might prevent such rounds from being “unannounced”
by providing surreptitious warnings, the final standard adds a requirement that agencies have a
policy to prohibit staff members from alerting their colleagues that such supervisory rounds are
occurring, unless such announcement is related to the legitimate operational functions of the
facility.
Comments and Responses
The NPRM posed several questions regarding staffing. Below is a summary of all
comments received regarding this standard, keyed to the question to which they correspond, and
the Department’s responses.
NPRM Question 4: Should the standard require that facilities actually provide a certain
level of staffing, whether determined qualitatively, such as by reference to ‘‘adequacy,’’ or
quantitatively, by setting forth more concrete requirements? If so, how?
Comment. Commenters were nearly unanimous in opposing a quantitative staffing
requirement for adult facilities. Numerous adult correctional agencies expressed a strong
preference for deference to agency decisions on staffing issues, given the varied and intricate
factors that affect staffing levels, such as facility type, layout, population, classification levels,
and whether and how the facility uses video surveillance. Many agency commenters expressed
support for the proposed standard as written; some noted that many facilities already employ
mandatory and minimum post/staffing criteria, which they can tailor to meet specific needs, such
as by increasing staffing levels in particular units that have experienced an increase in
victimization. Other commenters noted that some facilities are already bound by State-mandated
staffing ratios, and that additional or different PREA ratios could conflict with State law. Jail
administrators suggested the absence of any national model or best practice that supports a
specific staffing ratio in local jails, due to extreme differences in facility size, age, architectural
design, and population. Agency commenters emphasized that facility leadership is best
positioned to determine “adequate” staffing levels. In general, advocacy groups agreed that, due
to these concerns, the final standard should not mandate staffing ratios in adult facilities.
In addition to feasibility, many correctional commenters stated that the costs of
establishing a specific staffing requirement would be prohibitive. These commenters noted that
the ability to increase staffing levels at a facility is often beyond the control of either the facility
or the agency. Staffing increases require additional funding, which usually must be legislatively
appropriated. The commenters also noted that budget increases are unlikely in the current fiscal
climate and would require a significant amount of lead time for approval. Several correctional
stakeholders, joined by some advocacy groups, commented that specific staffing ratios in adult
facilities would constitute an “unfunded mandate,” which might compel some agencies to choose
not to attempt compliance with the PREA standards in general. In addition, commenters
observed that increased costs imposed by a staffing mandate could result in elimination of
programming for inmates due to funding limitations.
On the other hand, one local correctional agency commented that, given current fiscal
conditions, some agencies will have difficulties expanding staffing unless the final standard
mandates minimum staffing levels. In addition, some advocates noted that courts have held that
27

cost is not an excuse for failing to provide for the safety of persons in custody, and argued that if
an agency cannot provide adequate staffing to ensure inmate safety, then it should reduce its
inmate population.
Response. The Department recognizes the many factors that affect adequate staffing and
therefore does not promulgate a standard with concrete staffing requirements for adult facilities.
The final standard enumerates a broader set of factors to be taken into consideration in
calculating adequate staffing levels and determining the need for video monitoring: Generally
accepted detention and correctional practices; any judicial findings of inadequacy; any findings
of inadequacy from Federal investigative agencies; any findings of inadequacy from internal or
external oversight bodies; all components of the facility’s physical plant (including “blind-spots”
or areas where staff or inmates may be isolated); the composition of the inmate population (such
as gender, age, security level, and length of time inmates reside in the facility); the number and
placement of supervisory staff; institution programs occurring on a particular shift; any
applicable State or local laws, regulations, or standards; and the prevalence of substantiated and
unsubstantiated incidents of sexual abuse. In addition, the final standard requires facilities to
take into account “any other relevant factors.”
Given the intricacies involved in formulating an adequate staffing plan, the Department
does not include specific staffing ratios for adult facilities in the final standard. The final
determination as to adequate staffing levels remains in the discretion of the facility or agency
administration. In addition, the facility is encouraged to reassess its staffing plan as often as
necessary to account for changes in the facility’s demographics or needs.
With regard to the cost of staffing, the Department notes that the Constitution requires
that correctional facilities provide inmates with reasonable safety and security from violence, see
Farmer v. Brennan, 511 U.S. 825, 832 (1994), and sufficient staff supervision is essential to that
requirement. However, the Department is sensitive to current fiscal conditions and the inability
of correctional agencies to secure budget increases unilaterally. The Department is also
cognizant of the fact that staffing is the largest expense for correctional agencies, and recognizes
that the costs involved in increasing staffing could make compliance difficult for some facilities.
While adequate staffing is essential to a safe facility, the Department wishes to avoid the
unintended consequence of decreased programming and other opportunities for inmates as a
result of budgetary limitations.
The final standard also requires the agency to reassess, determine, and document, at least
annually, whether adjustments are needed to resources the facility has available to commit to
ensure adherence to the staffing plan. This language accounts for the fact that resource
availability will affect staffing levels and provides agencies an incentive to request additional
staffing funds as needed. The Department considered including a requirement for the agency to
request additional funds from the appropriate governing authority, if necessary, but determined
that this decision best remained within the discretion of the agency.
The final standard requires agencies to use “best efforts to comply on a regular basis”
with the staffing plan. Facilities must document and justify deviations from the staffing plan, but
full compliance with the plan is not required to achieve compliance with the standard. The
Department considered including in the standard a specific mandate to comply with the staffing
plan, but determined that requiring “best efforts” is more appropriate, to avoid penalizing
agencies that unsuccessfully seek to obtain additional funds. Lockups and community
confinement facilities are exempt from the “best efforts” language, but must document
deviations from the staffing plan. Juvenile facilities, however, must comply with their staffing
28

plans except during limited and discrete exigent circumstances, and must fully document
deviations from a plan during such circumstances.
The Department reiterates, however, that this standard, like all the standards, is not
intended to serve as a constitutional safe harbor. A facility that makes its best efforts to comply
with the staffing plan is not necessarily in compliance with constitutional requirements, even if
the staffing shortfall is due to budgetary factors beyond its control.
Comment. Numerous advocates expressed concern that the proposed standard did not
require the facilities to adhere to a specific staffing plan. These commenters noted that the
proposed standard required agencies to develop a staffing plan but did not require that agencies
safely staff the facilities. In addition, because the proposed standard required agencies to plan
for what to do if they failed to comply with their staffing goals, commenters suggested that it
could be read to permit or condone unsafe supervision levels. These advocates proposed
requiring agencies to comply with their initial staffing goals and eliminating the requirement that
agencies plan for suboptimal staffing. Former members of the NPREC, and an advocacy
organization, recommended that the Department revise its proposed supervision standard to
require agencies to annually review staffing and video monitoring to assess their effectiveness at
keeping inmates safe in light of reported incidents of sexual abuse, identify the changes it
considers necessary, and actually implement those changes.
Response. The Department recognizes the tension in the proposed standard between
requiring an agency to identify adequate staffing levels, but then implicitly allowing the facility
to operate without requisite staffing in accordance with a “backup plan.” Therefore, the final
standard requires each prison, jail, and juvenile facility to develop, implement, and document a
staffing plan that provides for adequate levels of staffing, and, where applicable, video
monitoring, to protect inmates against sexual abuse, taking into account the relevant factors
affecting staffing needs. In addition, the final standard requires that, at least annually, the agency
must assess, determine, and document whether adjustments are needed to the staffing plan, but
does not require implementation of such adjustments. Because the Department recognizes that
staffing levels are often dependent on budget approval from an external legislative or other
governmental entity, the final standard requires each adult prison and jail to use its “best efforts
to comply on a regular basis” with its staffing plan. Given the costs involved and the lack of
control correctional agencies may have with regard to budgetary issues, the final standard is
designed to encourage adequate staffing without discouraging agencies from attempting to
comply with the PREA standards due to financial concerns.
Comment. Advocates expressed concern that the proposed standards failed to provide
sufficient guidance with respect to how staffing levels should be established. One advocate
suggested that, in determining safe staffing ratios, facilities should start with any State
requirements and standards promulgated by the American Correctional Association and the
American Jail Association. Several comments suggested including as factors any blind spots
within the facility, including spaces not designated for residents, such as closets, rooms, and
hallways; high traffic areas within the facility; the ease with which individual staff members can
be alone with individual residents in a given location; the potential value of establishing and
retaining video and other evidence of sexual misconduct; the need to provide enhanced
supervision of inmates who have abused or victimized other inmates; the need to ensure that
vulnerable inmates receive additional protections without being subjected to extended isolation
or deprived of programming; previous serious incidents and the staffing and other circumstances
that existed during those incidents; the need for increased or improved staff training; the number
29

of special needs or vulnerable inmates; the number and placement of supervisory staff;
grievances from inmates, staff, visitors, family members, or others; compliance with any
applicable laws and regulations related to staffing requirements; individual medical and mental
health needs; availability of technology; custody level; management level; capacity; and
peripheral duty requirements.
Response. The Department considered each suggestion and adopted a final standard that
requires facilities to consider the following factors: (1) generally accepted detention and
correctional practices; (2) any judicial findings of inadequacy; (3) any findings of inadequacy
from Federal investigative agencies; (4) any findings of inadequacy from internal or external
oversight bodies; (5) all components of the facility’s physical plant (including “blind-spots” or
areas where staff or inmates may be isolated); (6) the composition of the inmate population; (7)
the number and placement of supervisory staff; (8) institution programs occurring on a particular
shift; (9) any applicable State or local laws, regulations, or standards; (10) the prevalence of
substantiated and unsubstantiated incidents of sexual abuse; and (11) any other relevant factors.
The factors enumerated in the final standard are broadly applicable across different types of
facilities, allow for comprehensive analysis without prescribing every single detail to be
considered, and provide sufficient guidance as to how to plan for staffing levels that will provide
adequate supervision to protect inmates from sexual abuse. The listed factors are not exclusive;
facilities should consider additional issues that are common across correctional facilities and
pertinent to the characteristics of each specific facility, and findings from reports and empirical
studies relevant to sexual abuse issued by the Department, academia, or professional sources. As
an example of one finding from a Department report that would be relevant to determining
adequate staffing, as well as the need for increased video monitoring or the frequency of rounds,
the Department encourages facilities to consider that inmate-on-inmate sexual abuse is most
likely to occur in the evening, when inmates are awake but often confined to their cells and
staffing levels are generally lower than during the day.6 In addition, the National Resource
Center for the Elimination of Prison Rape will develop guidance to help facilities compose an
adequate staffing plan, and the Department’s National Institute of Corrections is available to
provide technical assistance on developing an adequate staffing plan.
Comment. One correctional agency interpreted the proposed standard to require direct
supervision of inmates, which it asserted would have major cost implications.
Response. This comment is based on a misinterpretation of the proposed standard, which
did not require direct supervision. Nor does the final standard.
Comment. Some correctional agency commenters argued that it is not appropriate for the
Federal government, or for State governments, to set staffing standards for a facility run by an
independently elected constitutional officer at the local level.
Response. The Department is sensitive to concerns regarding interference with local
government. However, Congress mandated in PREA that the Attorney General adopt standards
that would apply to local facilities as well as Federal and State facilities, as evidenced by the
statute’s definition of “prison” as “any confinement facility of a Federal, State, or local
government, whether administered by such government or by a private organization on behalf of

6

See Allen J. Beck and Paige M. Harrison, Bureau of Justice Statistics (“BJS”), Sexual Victimization in Prisons and
Jails Reported by Inmates, 2008-09, at 22 (Table 16) (Aug. 2010).
30

such government.” 42 U.S.C. 15609.7 The application of the staffing standard to local
correctional agencies is consistent with Congress’s mandate to the Department. Indeed, it is not
uncommon for State staffing standards, especially for juvenile facilities, to apply to facilities that
are under the purview of an independently elected county or municipal official. For these
reasons, the Department does not view the imposition of this standard as inappropriately
intruding upon the prerogatives of local elected officials.
Comment. One correctional agency commented that hiring more staff does not
necessarily eliminate sexual abuse.
Response. The Department recognizes that adequate staffing levels alone are not
sufficient to combat sexual abuse in a corrections setting. However, adequate staffing is
essential to providing sufficient supervision to protect inmates from abuse.
NPRM Question 5: If a level such as ‘‘adequacy’’ were mandated, how would
compliance be measured?
NPRM Question 11: If the Department does not mandate the provision of a certain level
of staffing, are there other ways to supplement or replace the Department’s proposed standard
in order to foster appropriate staffing?
NPRM Question 14: Are there other ways not mentioned above in which the Department
can improve the proposed standard?
Comment. The Department received numerous suggestions from agency commenters on
proposed methods for measuring adequacy. Some stakeholders expressed concern that a
subjective “adequacy” standard would be difficult to audit. Many commenters requested a better
definition of “adequacy.” Various advocacy and correctional groups commented that agencies
would benefit from a more detailed description of what they must consider when conducting the
staffing and technology analyses that PREA requires. Others suggested that “adequate,” while
subjective, is the most appropriate term to use in this context.
Response. The final standard does not include a specific definition for “adequate
staffing” but does provide greater guidance as to the factors that should be considered in
developing an adequate staffing plan. The Department intends to develop, in conjunction with
the National Resource Center for the Elimination of Prison Rape, auditing tools that will guide
PREA auditors regarding the various factors affecting the adequacy of staffing. The final
standard contains additional documentation requirements, which will aid the auditor in reviewing
the adequacy of the plan and the facility’s efforts at complying with it. The auditor will review
documentation showing that the agency or facility conducted a proper staffing analysis taking
into account all enumerated and relevant factors included in the standard. In addition, the
National Resource Center for the Elimination of Prison Rape will develop guidance to help
facilities compose an adequate staffing plan. And, as noted above, the Department’s National
Institute of Corrections can provide technical assistance on developing an adequate staffing plan.
Comment. Some correctional commenters, including the American Jail Association,
requested best-practice tools for achieving “adequate” staffing. They suggested that the Federal
7

In addition, the cost limitation language in the statute expressly references local institutions. See 42 U.S.C.
15607(a)(3) (“The Attorney General shall not establish a national standard under this section that would impose
substantial additional costs compared to the costs presently expended by Federal, State, and local prison
authorities.”).
31

government develop appropriate tools, model policies, and training materials that address the
basic principles of PREA and focus on adequate supervision in order to provide facilities with “a
greater chance of meaningful implementation of this standard.”
Response. As discussed above, the National Resource Center for the Elimination of
Prison Rape will develop guidance both for facilities in composing an adequate staffing plan and
for auditors in evaluating adequacy of staffing during a PREA audit. These materials will be
available to aid agencies in achieving compliance with the final standard.
Comment. Some correctional agencies and advocacy groups recommended assessing the
adequacy of staffing by reviewing any incidents related to sexual or physical abuse at a facility to
determine if inadequate staffing played a role. One juvenile justice agency suggested that daily
monitoring of PREA-related incidents could help identify staffing needs. Another agency
commenter suggested reviewing incident reports of rule violations at particular posts.
Response. Reviewing incidents of abuse and rule violations can provide information as
to whether staffing is adequate in a particular facility or unit of a facility. However, incidents of
abuse should not be the only factor. As discussed above, many factors affect adequacy of
staffing. In addition, the reliability of the record of prior incidents may depend upon the
facility’s diligence at investigating allegations and its ability to create a culture in which inmate
victims feel comfortable reporting incidents without fear of reprisal. Accordingly, it is not
possible to define adequacy solely in these terms. Of course, if a review of incident reports
indicates that insufficient staffing is a contributing factor in sexual abuse, such a finding is
clearly relevant to the ultimate determination as to the adequacy of staffing.
Comment. One State correctional agency suggested that adequacy could be defined by
determining the minimum staffing levels at which a facility is able to operate within
constitutional requirements and determining whether a facility is adhering to such staffing levels.
Response. Adequate staffing is essential to providing constitutional conditions within a
correctional facility. However, it is not feasible for the Department to determine, at every
Federal, State, and local facility, the level of staffing required to comport with the Constitution,
especially given that the level may change over time as the size and nature of the facility’s
population changes. The PREA audit with regard to this standard will focus on whether the
facility has developed and utilized best efforts to comply on a regular basis with an adequate
staffing plan to protect inmates from sexual abuse.
Comment. Some correctional commenters suggested that “adequate” staffing levels be
measured by the facility’s ability to perform required functions, such as feeding inmates,
conducting routine checks, holding outdoor recreation, and generally maintaining the facility
schedule without requiring significant periods of lockdown.
Response. A facility’s inability to perform required functions and operate in accordance
with the institutional schedule without significant periods of lockdown may have a direct bearing
on the adequacy of staffing. However, deviations from the schedule and performance
deficiencies may signal deeper problems unrelated to the number of staff. In addition, the ability
to stay on schedule and perform routine functions does not necessarily indicate a safe or
adequately staffed facility. While this information may be relevant to an auditor’s review of the
facility’s staffing plan, it cannot be the sole determinant of staffing adequacy.
Comment. Many commenters, including correctional agencies and advocacy groups,
suggested that adequacy be measured by assessing whether a facility complies with its written
staffing plan. One agency suggested that compliance should be measured by determining
whether the facility is complying with the plan rather than by reviewing the level or nature of
32

incidents of abuse. Former NPREC members recommended that staffing level compliance be
measured during the baseline audit, and that actual staffing patterns should be compared with the
levels determined by the facility needs assessment. If the audit outcome reveals that current
staffing levels are inadequate, facilities should be required to develop a corrective action plan, a
timeline for implementation, and regularly scheduled assessments to monitor progress toward
achieving safe staffing levels.
Response. The final standard requires agencies to develop, document, and use “best
efforts” to comply on a regular basis with a staffing plan that provides for adequate levels of
staffing, and, where applicable, video monitoring, to protect inmates against sexual abuse, taking
into account the relevant, enumerated factors. A more stringent mandate would unfairly penalize
agencies that do not have budgetary authority or funds to increase staffing. In addition, if faced
with a specific mandate to comply with the staffing plan, agencies would have an incentive to
formulate plans that undercount the number of staff needed in order to facilitate compliance with
the plan. The final standard encourages agencies to compose the most appropriate staffing plan
for each facility without concern that the agencies will be overly conservative in their staffing
analysis in order to avoid non-compliance with the PREA standards. To be sure, if the facility’s
plan is plainly deficient on its face, the facility is not in compliance with this standard even if it
adheres to the plan.
In addition, a failure to comply with identified adequate staffing levels may affect a
facility’s ability to comply with other standards. Pursuant to the auditing standards, facilities that
receive a finding of “Does Not Meet Standard” with regard to any of the PREA standards will
have a 180-day corrective action period in which the auditor and the agency shall jointly develop
a corrective action plan to achieve compliance and the auditor will take necessary and
appropriate steps to verify implementation of the corrective action plan before issuing a final
determination as to whether the facility has achieved compliance.
Comment. Some correctional stakeholders suggested that the Department require each
facility to conduct incident mapping and set performance goals, and then measure adequacy
based on the facility’s ability to meet these goals.
Response. The Department recognizes that incident mapping and performance goals are
important quality improvement measures, and encourages all facilities to implement a system to
set goals, collect and review data, identify trends, and chart progress towards performance goals.
However, because incident reporting is an imperfect measurement of adequate staffing, the
results of such a system cannot provide an ultimate assessment of compliance.
NPRM Question 6: Various States have regulations that require correctional agencies to
set or abide by minimum staffing requirements. To what extent, if any, should the standard take
into account such State regulations?
Comment. Agency commenters felt strongly that compliance with a State minimum
staffing requirement should lead to a presumption that staffing is adequate. Some stakeholders
commented that concrete staffing requirements should apply only if a facility is not already
subject to staffing mandates set by an outside agency or commission. Various correctional
commenters noted that some accreditation entities honor compliance with State staffing
regulations, and suggested that the PREA standards do the same. On the other hand, some
advocacy groups argued that State-mandated minimum staffing ratios may not be sufficient to
establish adequacy and that many facilities are not in compliance with such ratios. One advocate
33

recommended that the standards require compliance with any applicable State or Federal laws,
unless the PREA standards offer increased protection.
Response. The final standard directs agencies to take into account any applicable State or
local laws, regulations, or standards in formulating an adequate staffing plan for jails, prisons,
and juvenile facilities. While regulations setting a minimum staffing level may be instructive,
they do not necessarily equate to adequate staffing for each unit of each facility. Applicable
State laws are a factor to consider, but in developing adequate staffing plans, an agency must
take into account all relevant factors that bear on the question of adequacy.
Comment. Some correctional stakeholders commented that it would violate the Tenth
Amendment if the PREA standards required compliance with a specific staffing standard other
than that set by the State.
Response. The Department understands the concerns submitted by State agencies
regarding the impact of PREA standards, and has welcomed the opportunity to consult with the
Department’s partners at the State level to develop effective standards that minimize costs,
maximize flexibility, and, to the extent feasible, minimize conflict with State and local laws and
regulations. However, the Department concludes that PREA is consistent with the Federal
government’s responsibilities to protect the constitutional and civil rights of all persons in
custody. Moreover, PREA is an appropriate exercise of Congress’s power to condition Federal
funding upon grantees’ compliance with relevant conditions. The application of the staffing
standard to State and local correctional agencies is consistent with Congress’s mandate to the
Department. Indeed, Federal regulations frequently impose requirements that exceed
requirements imposed by specific States. Accordingly, the Department does not view the
imposition of this standard as inappropriately intruding on State prerogatives.
NPRM Question 7: Some States mandate specific staff-to-resident ratios for certain types
of juvenile facilities. Should the standard mandate specific ratios for juvenile facilities?
Comment. Many advocacy groups commented that specific staffing ratios are appropriate
and commonly utilized for juvenile facilities, and specifically proposed establishing a minimum
1:6 ratio for supervision during hours when residents are awake and a 1:12 ratio during sleeping
hours. These commenters stated that minimum juvenile staffing ratios fall within the guidelines
established by various States and correctional organizations, and that two jurisdictions already
require the 1:6 and 1:12 staffing ratios. In contrast to adult correctional agencies, juvenile
agencies were less opposed to mandatory staffing ratios for juvenile facilities. However, some
juvenile justice administrators expressed the same concerns raised with regard to adult
facilities—that specific ratios would constitute a cost-prohibitive, unfunded mandate and that it
would be impractical to establish one ratio to fit all facilities. Multiple agency commenters noted
that they were already subject to mandatory staffing ratios and that any such ratios in the PREA
standards would be duplicative or conflicting.
Response. The Department adopts a standard requiring a minimum staffing ratio in
secure juvenile facilities of 1:8 for supervision during resident waking hours and 1:16 during
resident sleeping hours. Unlike for adult facilities, it is relatively common for juvenile facilities
to be subject to specific staffing ratios by State law or regulation. The Department’s research
indicates that over 30 States already impose staffing ratios on some or all of their juvenile
facilities.
34

The standard’s ratios include only security staff. Of the States identified as requiring
specific staffing ratios, approximately half count only “direct-care staff” in these ratios.8 (For
most of the remaining States requiring specific staffing ratios, the Department has not been able
to determine precisely which categories of staff are included.) In addition, the National Juvenile
Detention Association’s position statement, “Minimum Direct Care Staff Ratio in Juvenile
Detention Centers,” which recommends respective day and night minimum ratios of 1:8 and
1:16, specifically limits the included staff to direct-care staff.9
The 1:8 and 1:16 staffing ratios adopted by the final standard match or are less stringent
than the ratios currently mandated by twelve States, plus the District of Columbia and Puerto
Rico, for their juvenile detention facilities, juvenile correctional facilities, or both. The
Department’s Civil Rights Division has consistently taken the position that sufficient staffing is
integral to keeping youth safe from harm and views minimum staffing ratios of 1:8 during the
day and 1:16 at night as generally accepted professional standards in secure juvenile facilities.
For this reason, the Civil Rights Division has entered into multiple settlement agreements that
require jurisdictions to meet minimum staffing ratios in order to ensure constitutional conditions
of confinement for juveniles. In addition, as noted above, the National Juvenile Detention
Association’s 1999 position statement on “Minimum Direct Care Staff Ratio in Juvenile
Detention Centers” supports a minimum ratio of 1:8 during the day and 1:16 at night.
Given the widespread practice of setting minimum staffing ratios for juvenile facilities,
the Department believes these ratios accord with national practice, are an integral measure for
protecting juveniles from sexual assault, and can be implemented without excessive additional
costs. In order to provide agencies with sufficient time to readjust staffing levels and, if
necessary, request additional funding, any facility that, as of the date of publication of the final
rule, is not already obligated by law, regulation, or judicial consent decree to maintain the
required staffing ratios shall have until October 1, 2017, to achieve compliance.
The standard excludes non-secure juvenile facilities from this requirement. Juveniles in
non-secure facilities typically have less acute violent and abusive characteristics than those in
secure facilities. Many jurisdictions utilize a risk screening instrument to determine whether a
juvenile requires a secure placement; juveniles who are identified as having a high likelihood for
assaultive behavior and re-offense are generally held in secure facilities. Accordingly, many
non-secure and community-confinement-type facilities do not require as intensive staffing levels
to protect residents from victimization.
Comment. Many correctional stakeholders suggested that, if a staffing ratio is set for
juvenile facilities, the standards should differentiate between long-term juvenile correctional
facilities and short-term juvenile detention facilities.

8

For juvenile facilities, the term “direct-care staff” is often used in a manner that approximates this rule’s definition
of “security staff.” While the precise definition varies across jurisdictions, it is generally meant to include staff
whose exclusive or primary duties include the supervision of residents.
9
See National Juvenile Detention Association, Minimum Direct Care Staff Ratio in Juvenile Detention Centers, at 6
(June 8, 1999), available at http://npjs.org/docs/NJDA/NJDA_Position_Statements.pdf. The NJDA position
statement is generally more restrictive than the requirement in the PREA standard. Specifically, while the PREA
standard defines “security staff” as “employees primarily responsible for the supervision and control of . . .
residents in housing units, recreational areas, dining areas, and other program areas of the facility,” the NJDA
position statement defines “direct care staff” as “[e]mployees whose exclusive responsibility is the direct and
continuous supervision of juveniles” Id. (emphases added).
35

Response. The Department recognizes that long-term placement facilities have different
types of staffing needs than short-term detention facilities. For example, short-term detention
facilities serve less stable populations, residents without comprehensive housing classification
information, and residents awaiting placement in other residential facilities—usually for shorter
stays but sometimes for extended periods of time. These populations tend to be more
unpredictable and more likely to engage in disruptive behavior requiring higher levels of
staffing. On the other hand, long-term placement facilities often have significantly higher levels
of programming requiring continuous movement throughout various areas of the facility. Such
increased movement requires higher levels of security staffing to maintain security.
Accordingly, the Department has determined that the same staff ratios are appropriate for both
types of facilities, but for different reasons.
Some States currently mandate higher levels of staff supervision in their long-term
residential facilities, while others require higher levels of staff supervision for their short-term
detention facilities. A number of States currently require high levels of staff supervision for both
facility types. Agencies are encouraged to exceed the ratios set forth in the standard where the
unique characteristics of the facility and youth require more intensive supervision levels.
Comment. One juvenile correctional agency commented that stringent staffing levels will
not ensure the safety of youth if staff do not remain vigilant and provide active supervision. This
commenter posited that if a facility has high numbers of incidents, it is most likely due to facility
culture rather than staff size.
Response. The Department recognizes that adequate staffing levels alone are not
sufficient to combat sexual abuse and that developing a healthy facility culture is a key
component in this effort. However, adequate staffing is essential to providing sufficient
supervision to protect residents from abuse. In addition to the staffing requirements, the final
rule contains comprehensive standards on a broad range of topics related to preventing abuse.
While a healthy facility culture cannot be mandated directly, the adoption and implementation of
the standards will assist greatly in developing such a culture, by requiring agencies and facilities
to institutionalize a set of policies and practices that, among other things, will elevate the
importance of agency and facility responsibilities to protect against sexual abuse.
Comment. Some juvenile agencies suggested that, if adequate staffing levels are
mandated, there will be a need for guidelines for auditors so that sporadic deficiencies in staff
levels may be excused, while long-term patterns of non-compliance are dealt with fairly.
Response. In the final rule, the Department adopts a definition of “full compliance” that
requires “compliance with all material requirements of each standard except for de minimis
violations, or discrete and temporary violations during otherwise sustained periods of
compliance.” § 115.5. However, when conducting an audit of a particular facility, the PREA
auditor will assess, with regard to each specific standard, whether the facility exceeds the
standard, meets the standard, or requires corrective action. The Department intends to develop,
in conjunction with the National Resource Center for the Elimination of Prison Rape, auditing
tools that will guide PREA auditors through these assessments.
Comment. Some juvenile justice agencies commented that, in States that currently
require a minimum staffing ratio for juvenile facilities, additional PREA staffing ratio
requirements will result in agencies and facilities being audited on the same standards by two
different auditing teams—one to determine compliance with the State requirements and one to
determine compliance with the PREA standards. These commenters remarked that such double
36

auditing would be an unnecessary duplication of effort and should not be required by the PREA
standards.
Response. The staffing analysis conducted by a PREA auditor will be just one aspect of
the PREA audit, which will examine a facility’s compliance with all applicable standards. While
this may result in some duplication of efforts, facilities may be able to schedule their triennial
PREA audits so as to combine the PREA audit with other accreditation proceedings. In addition,
while the PREA audit will encompass the facility’s compliance with all of the PREA standards,
it will be focused on issues related to sexual abuse and thus likely will be narrower in scope than
other audits to which the facility is subjected.
Comment. Many advocacy groups recommended that the juvenile standard recognize the
value of continuous, direct supervision in preventing sexual misconduct in juvenile facilities.
Response. The Department supports the use of continuous, direct supervision and notes
that many juvenile facilities already employ direct supervision as a matter of course. However,
some physical plants are not conducive to direct supervision. In those facilities, a mandate for
direct supervision would require major renovations at a high cost. For this reason, the final
standard does not require direct supervision. With regard to under-18 inmates held in adult
facilities, § 115.14 requires such facilities to provide direct staff supervision if the under-18
inmates have contact with adult inmates.
NPRM Question 8: If a level of staffing were mandated, should the standard allow
agencies a longer time frame, such as a specified number of years, in order to reach that level?
If so, what time frame would be appropriate?
Comment. Correctional stakeholders, while remaining opposed to mandated staffing
levels, supported an extended timeframe, if such requirements were included, in order to allow
for the local governments to allocate additional staffing funding. Some suggested a two-year
timeframe; others requested up to five years; and some suggested that extensions should be
granted where necessary. One agency proposed tying the timeframe to the growth rate of the
State’s annual per capita gross domestic product. Although advocacy groups did not promote
specific ratios for adult facilities, they did state that if specific staffing levels are required, there
should be no extension of the timeframe because, in one commenter’s words, “adequate staffing
to prevent risk of harm to incarcerated individuals is already required by the Constitution and
reinforced through case law requiring protection from harm.”
Response. The Department adopts specific staffing ratios only with regard to secure
juvenile facilities. Many of these facilities are already subject to the ratios required by the final
standard and therefore will not need additional time to comply. However, in order to provide
agencies with sufficient time to readjust staffing levels and, if necessary, request and obtain
additional funding, any secure juvenile facility that, as of the date of publication of the final rule,
is not already obligated by law, regulation, or judicial consent decree to maintain the required
staffing ratios shall have until October 1, 2017, to achieve compliance. The Department
recognizes that increasing staffing often requires additional legislative appropriations, as well as
time needed to recruit and train appropriate new staff.
NPRM Question 9: Should the standard require the establishment of priority posts, and,
if so, how should such a requirement be structured and assessed?
37

NPRM Question 10: To what extent can staffing deficiencies be addressed by
redistributing existing staff assignments? Should the standard include additional language to
encourage such redistribution?
Comment. In general, correctional stakeholders and advocacy groups agreed that it
would be difficult to establish priority posts or regulate staff redistribution, given the vast
differences in facility layout and inmate composition. Many comments stated that establishing
priority posts and redistributing staff require detailed knowledge of the facility’s needs in order
to best determine how staff should be allocated. Other commenters suggested that the
Department encourage but not mandate this practice. One State correctional agency
recommended that the standard omit language regarding redistribution to avoid conflict with
existing collective bargaining agreements and State laws governing such agreements.
Some advocates argued that staffing in medical units, work release programs, and other
opportunities for seclusion should be considered priority posts. One advocacy group
recommended that the staffing plan identify those posts that must be filled in every shift,
regardless of unexpected absences or staff shortages.
Response. Given the variation in facilities and their operational needs, the Department
concludes that priority posts and staff distribution are best left to the agency’s discretion. By
requiring agencies to reassess their staffing plans at least once per year, the final standard
requires agencies to determine whether and to what extent priority posts should be established, or
existing staff redistributed, to account for changed circumstances and facility needs.
Comment. The American Jail Association commented that few jails are sufficiently
similar in layout, classification systems, and supervision methods to allow for any universal
definition of priority posts. Therefore, the AJA and other correctional stakeholders requested
that the Federal government provide a tool for local jails to use in determining risk, thereby
helping jails to identify priority posts.
Response. The National Resource Center for the Elimination of Prison Rape will be
available to provide technical assistance to agencies who seek resources and training. The
Department encourages agencies to contact the Center with requests of this type.
Comment. Some correctional agencies suggested that staff redistribution should be
connected to filed and substantiated complaints related to sexual abuse, but that the ultimate
decision should be a management activity.
Response. The Department agrees that staff redistribution may be an appropriate
response to a complaint of sexual abuse. The agency retains the discretion as to how to handle
such staff redistribution.
NPRM Question 12: Should the Department mandate the use of technology to supplement
sexual abuse prevention, detection, and response efforts?
NPRM Question 13: Should the Department craft the standard so that compliance is
measured by ensuring that the facility has developed a plan for securing technology as funds
become available?
Comment. Correctional stakeholders strongly opposed any mandate for increased
technology, which they emphasized would be cost-prohibitive. Some advocates strongly
encouraged mandates for cameras throughout the facilities, which they viewed as the best
deterrent against abuse, especially by staff, and important to substantiating incidents of abuse.
38

Other advocates cautioned that cameras in certain locations can intrude upon inmate privacy.
Several advocacy groups emphasized that technology should supplement, not substitute for,
adequate staff supervision. These advocates opposed a technology mandate when the funds
could better be spent on additional or higher-quality staffing, believing that cameras are most
productive as investigatory tools to confirm abuse, rather than as a means to prevent abuse. Most
commenters were receptive to a standard encouraging increased use of technology to augment
supervision.
Response. The final standard requires each facility to develop, implement, and document
a staffing plan that provides for adequate levels of staffing, and, where applicable, video
monitoring, to protect inmates against sexual abuse. Given the costs associated with video
monitoring technology, the Department concludes that the issue is best left to the agency’s
discretion. The facility is in the best position not only to determine the need for such technology
but also to determine how and where to place cameras.
The Department recognizes that technology is best utilized to supplement, but not
replace, staff supervision. Camera surveillance is a powerful deterrent and a useful tool in postincident investigations. But it cannot substitute for more direct forms of staff supervision (in part
because blind spots are inevitable even in facilities with comprehensive video monitoring), and
cannot replace the interactions between inmates or residents and staff that may prove valuable at
identifying or preventing abuse. In addition, cameras generally do not translate into a reduction
of staff levels—additional staff may be required to properly monitor the new cameras. Indeed,
many cameras in correctional facilities are currently not continuously monitored.
While the Department encourages increased use of video monitoring technology to
supplement sexual abuse prevention, detection, and response efforts, the agency is in the best
position to determine if current or future funds are best directed at increasing the agency’s use of
technology.
Comment. Former members of the NPREC recommended that the Department reinstate
two distinct standards for inmate supervision and use of monitoring technology. They expressed
concern that the Department’s decision to incorporate inmate supervision and monitoring
technology into a single standard unintentionally emphasizes the use of technology to the
detriment of the level of supervision that is essential to protect inmates from sexual abuse. They
recommended that the Department encourage and facilitate, but not mandate, the use of
technology to supplement sexual abuse prevention, detection, and response efforts.
Response. The final standard does not mandate the use of video monitoring technology
but instructs agencies to take such technology into consideration, where applicable, in evaluating
staffing needs. The Department did not intend for the combined standard to emphasize the use
of technology over supervision, and based upon comments received, does not believe that it was
received as such. The Department believes it is appropriate to consider the technology available
to a facility, but does not consider video monitoring a substitute for staff supervision. The
National Resource Center for the Elimination of Prison Rape can provide technical assistance for
agencies seeking input on how to introduce or enhance monitoring technology in their facilities.
Comment. One advocacy group commented that the proposed standard should provide
guidance on who should monitor cameras, especially in cross-gender circumstances.
Response. Section 115.15 requires that all facilities 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, buttocks, or genitalia, except in the
case of emergency (now reworded as “exigent circumstances”) or when such viewing is
39

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 (for jails and prisons) or
an area where detainees or residents are likely to be showering, performing bodily functions, or
changing clothing. Accordingly, no staff should monitor a camera that is likely to view inmates
of the opposite gender while they are showering, performing bodily functions, or changing
clothing.
Comment. One advocacy group commented that the proposed standard should provide
guidance on how long recordings should be retained.
Response. The Department encourages sufficient retention policies to support an
appropriate investigations system. Because the final standard does not mandate the use of video,
it is best to leave the specifics to agency discretion.
Comment. Some juvenile justice agencies suggested that any mandate regarding video
monitoring technology should be tied directly to a facility’s compliance with the PREA
standards and its overall rate of substantiated sexual abuse incidents. A plan for securing
additional technology funding should only be necessary, in their view, if a facility is found to
have a higher than average rate of sexual abuse cases. Facilities would then draft a corrective
active plan that may or may not include the need for additional technology. Mandated
technology expenditures would occur only after a facility has demonstrated a continued failure to
reduce a higher-than-average rate of sexual abuse incidents.
Response. While the Department encourages the use of video monitoring technology to
deter sexual abuse and aid in the investigatory process, the final standard does not require any
facility to install camera systems. However, an agency may determine that the addition of
cameras is an appropriate response to incidents of sexual abuse at a particular facility or specific
areas within a facility. The Department encourages all agencies to assess the potential value of
such technology in combating sexual abuse. As discussed elsewhere, the Department does not
believe that the overall rate of substantiated sexual abuse incidents can serve as a useful trigger
for the imposition of additional requirements, because the rate is itself dependent not only upon a
facility’s success at combating sexual abuse, but its diligence in investigating allegations and in
creating a culture in which victims are comfortable reporting incidents without fear of retaliation.
NPRM Question 15: Should this standard mandate a minimum frequency for the conduct
of such rounds, and if so, what should it be?
Comment. Correctional stakeholders generally agreed that unannounced supervisory
rounds should be conducted and are standard correctional practice. However, they recommended
that the frequency of such rounds be left to agency discretion. One sheriff’s office noted that
flexibility in meeting the requirement would reduce resistance by supervisors. Advocacy groups
made relatively few proposals regarding the frequency of such rounds, ranging from every 30
minutes, to weekly, to monthly, to “often enough to prevent abuse.” Some comments noted that
frequency should vary so as to preserve the element of surprise. Other comments stated that the
requirement should apply to all facilities, not just those with more than 500 beds.
Response. The final standard expands the requirement for unannounced supervisory
rounds to all prisons, jails, and juvenile facilities. The Department recognizes the value in this
practice and believes it is appropriate for all facilities. The Department concludes that the
precise frequency of such rounds is best left to agency discretion. The standard requires that
facilities implement a policy and practice requiring “unannounced rounds to identify and deter
40

staff sexual abuse and sexual harassment,” document the rounds, and conduct the rounds on
night shifts and day shifts. Thus, rounds should be conducted on a regular basis in a manner
intended to discourage staff sexual abuse and sexual harassment.
Comment. Two advocacy groups commented that the standard expressly should prohibit
so-called “trip calls,”—i.e., actions by staff to tip off their colleagues that a supervisor is en
route. These commenters asserted that allowing trip calls would defeat the purpose of
unannounced rounds.
Response. The final standard adds a requirement that agencies maintain a policy
prohibiting staff from alerting other staff members that these supervisory rounds are occurring,
unless such announcement is related to the legitimate operational functions of the facility.
Comment. One law student commented that the standards should require a minimum
frequency of unannounced supervisory rounds because the proposed standard could be satisfied
by one unannounced round in a decade.
Response. The final standard requires prisons, jails, and juvenile facilities to implement a
policy and practice of having intermediate level or higher-level supervisors conduct and
document unannounced rounds. While the final standard does not specify a minimum frequency,
a policy of one round per decade would clearly not serve as “unannounced rounds to identify and
deter staff sexual abuse and sexual harassment” (emphasis added).
Comment. One sheriff’s office commented that any standard should contain wording that
would exempt random supervisory checks in emergency and staffing shortage situations.
Response. Because the final standard does not mandate a specific time or frequency of
such rounds, facilities may implement a reasonable policy that does not require such rounds
during an emergency or temporary staffing shortage.
Comment. Another sheriff’s office commented that establishing a reasonable minimum
frequency is advisable to prevent disagreements between facility administrators and auditors as
to whether the frequency of a facility’s rounds is adequate. The commenter cautioned, however,
that great care must be taken to ensure the requirement is reasonable, given the vast differences
in facilities, and suggested that the minimum frequency should be once per month.
Response. While the final standard does not set a minimum frequency for unannounced
supervisory rounds, it requires facilities to implement a policy and practice requiring
“unannounced rounds to identify and deter staff sexual abuse and sexual harassment.” As such,
the facilities may set the practice with regard to frequency of rounds, but rounds should be
conducted on a regular basis in order to have an effect on staff sexual abuse and sexual
harassment. The Department submits that once per month is unlikely to be frequent enough to
have the intended effect.
Solicitation of Additional Comments Regarding the Juvenile Staffing Ratios Set Forth in
§ 115.313(c).
While this final rule is effective on the date indicated herein, the Department believes that
further discussion is warranted regarding the aspect of this standard that requires secure juvenile
facilities to maintain minimum staffing ratios during resident waking and sleeping hours. The
standard contained in the final rule requires, in pertinent part, that “[e]ach secure juvenile facility
shall maintain staff ratios of a minimum of 1:8 during resident waking hours and 1:16 during
resident sleeping hours, except during limited and discrete exigent circumstances, which shall be
41

fully documented. Only security staff shall be included in these ratios.” § 115.313(c).
Accordingly, the Department solicits additional comments limited to this issue.
Commenters are encouraged to address (1) whether the provision, as written, is
appropriate; (2) whether the specific ratios enumerated in the provision are the appropriate
minimum ratios, or whether the ratios should be higher or lower; (3) whether the provision
appropriately allows an exception from the minimum ratios during “limited and discrete exigent
circumstances” (as “exigent circumstances” is defined in § 115.5), or whether that exception
should be broadened, limited, or otherwise revised; (4) whether certain categories of secure
juvenile facilities should be exempt from the minimum ratio requirement or, conversely, whether
certain categories of non-secure juvenile facilities should also be included in the minimum ratio
requirement; (5) the extent to which the provision can be expected to be effective in combating
sexual abuse; (6) the expected costs of the provision; (7) whether the required ratios may have
negative unintended consequences or additional positive unintended benefits; (8) whether
empirical studies exist on the relationship between staffing ratios and sexual abuse or other
negative outcomes in juvenile facilities;10 (9) whether specific objectively determined resident
populations within a secure facility should be exempt from the minimum ratios; (10) whether
additional categories of staff, beyond security staff, should be included in the minimum ratios;
(11) whether the standard should exclude from the minimum ratio requirement facilities that
meet a specified threshold of resident monitoring through video technology or other means, and,
if so, what that threshold should include; and (12) whether the standard appropriately provides an
effective date of October 1, 2017, for any facility not already obligated to maintain the staffing
ratios.
Youthful Inmates (§§ 115.14, 115.114)
Sections 115.14 and 115.114 regulate the placement of persons under the age of 18 in
adult prisons, jails, and lockups. The final rule refers to under-18 persons in such facilities as
“youthful inmates” (in adult prisons and jails) and “youthful detainees” (in lockups).
The proposed rule did not contain a standard that governed the placement of under-18
inmates in adult facilities. Rather, the proposed rule noted, and solicited input regarding,
ANPRM commenters’ recommendations that the NPREC’s recommended standards be
supplemented with an additional standard to govern the placement and treatment of juveniles in
adult facilities.
Some ANPRM commenters had proposed a full ban on placing persons under the age of
18 in adult facilities where contact would occur with incarcerated adults, while others proposed
instead that the standards incorporate the requirements of the Juvenile Justice and Delinquency
Prevention Act (JJDPA), 42 U.S.C. 5601 et seq. As the NPRM discussed, the JJDPA provides
formula grants to States conditioned on (subject to minimal exceptions) deinstitutionalizing
juveniles who are charged with or who have committed an offense that would not be criminal if
10

While the Department has not identified studies that address the relationship between negative outcomes and
specific staffing ratios, the Department has reviewed studies that address the relationship between negative outcomes
and the quantity of staffing more generally. See New Amsterdam Consulting, Performance-based Standards for
Youth Correction and Detention Facilities: 2011 Research Report (unpublished study; available in rulemaking
docket); Aaron Kupchik and R. Bradley Snyder, The Impact of Juvenile Inmates’ Perceptions and Facility
Characteristics on Victimization in Juvenile Correctional Facilities, 89 The Prison Journal 265 (2009), available at
http://tpj.sagepub.com/content/89/3/265.
42

committed by an adult (often referred to as “status offenders”), separating juveniles from adult
inmates in secure facilities, and removing juveniles from adult jails and lockups. See 42 U.S.C.
5633(a)(11)-(14). States that participate in the JJDPA Formula Grants Program are subject to a
partial loss of funding if they are found not to be in compliance with specified requirements.
Generally speaking, the JJDPA applies to juveniles who are in the juvenile justice
system, as opposed to those who are under the jurisdiction of adult criminal courts. The JJDPA’s
separation requirement applies only to juveniles who are alleged to be or are found to be
delinquent, juveniles who are charged with or who have committed an offense that would not be
criminal if committed by an adult, or juveniles who are not charged with any offense at all. See
42 U.S.C. 5633(a)(11)-(12). The JJDPA defines “adult inmate” as “an individual who . . . has
reached the age of full criminal responsibility under applicable State law; and . . . has been
arrested and is in custody for or awaiting trial on a criminal charge, or is convicted of a criminal
charge offense.” 42 U.S.C. 5603(26).
Accordingly, the NPRM expressly solicited comments on whether the final rule should
include a standard that governs the placement of juveniles in adult facilities, and if so, what the
standard should require, and how it should interact with current JJDPA requirements and
penalties.
After reviewing the comments in response to the questions posed in the NPRM, the
Department has chosen to adopt a new standard that restricts, but does not forbid, the placement
of juveniles in adult facilities. The standard applies only to persons under the age of 18 who are
under adult court supervision and incarcerated or detained in a prison, jail, or lockup. Such
persons are, for the purposes of this standard, referred to as “youthful inmates” (or, in lockups,
“youthful detainees”).
The standard imposes three requirements for juveniles placed in adult prisons or jails.
First, it mandates that no youthful inmate may be placed in a housing unit in which he or she will
have contact with any adult inmate through use of a shared day room or other common space,
shower area, or sleeping quarters. Second, it requires that, outside of housing units, agencies
either maintain “sight and sound separation” between youthful inmates and adult inmates—i.e.,
prevent adult inmates from seeing or communicating with youth—or provide direct staff
supervision when youthful inmates and adult inmates are together. Third, it requires that
agencies make their best efforts to avoid placing youthful inmates in isolation to comply with
this provision and that, absent exigent circumstances, agencies comply with this standard in a
manner that affords youthful inmates daily large-muscle exercise and any legally required special
education services, and provides access to other programs and work opportunities to the extent
possible.
In lockups, the standard requires that juveniles and youthful detainees be held separately
from adult detainees.
Comments and Responses
Comment. In response to the questions posed in the NPRM, comments varied widely.
Many commenters from advocacy organizations recommended a complete ban on
incarcerating persons under the age of 18 in adult facilities, citing statistics indicating that youth
in adult facilities face an increased risk of sexual abuse. Some advocates expressed concern that
attempts to protect youth in adult facilities by housing them in segregated settings often cause or
43

exacerbate mental health problems. Furthermore, advocates asserted, correctional agencies lack
sufficient expertise in treating the unique needs of the underage population.
Some advocates proposed, as a fallback option, that the standard require a presumption
that all youth be housed in juvenile facilities, unless a hearing determines that the interests of
justice require housing in an adult facility.
Former members of the NPREC—whose final report did not include a recommended
standard that would govern the placement of youth in adult facilities—submitted a comment that
supported a standard that would require individuals below the age of 18 to be held in juvenile
facilities, with some exceptions. Specifically, the former members recommended that a person
under 18 be transferred to an adult facility only upon court order following a finding that the
juvenile was violent or disruptive. If such a juvenile is transferred, the facility would need to
comply with the standards governing juvenile facilities, separate the juvenile by sight and sound
from adult inmates, ensure that the juvenile receives daily visits from health care providers and
other staff, and visually check the juvenile every 15 minutes.
With regard to the intersection with the JJDPA, advocates indicated that the PREA
standards could and should overlap with the conditions applied to formula grants under the
JJDPA.
A significant number of correctional agency commenters opposed restricting the
placement of youth in adult facilities. Some commenters noted that State law governs placement
options for youth, and recommended that the Department not mandate a standard that would
contravene such State laws. Other comments suggested that any such standard might improperly
intrude into judicial functions by infringing on judges’ discretion in making placement decisions.
One comment suggested that a national standard governing the placement of juveniles in adult
facilities would be impractical due to variation in facility size, layout, and staffing; another
recommended against a standard regarding the placement of youth in adult facilities because the
zero-tolerance mandate of § 115.11 already provides adequate protections to this population.
Some agency commenters recommended intermediate approaches. One commenter
suggested that the final standard should allow youth to be placed in adult facilities only where
there is “total separation” between the two populations. Another commenter suggested that adult
facilities be required (1) to develop and implement a plan to provide additional protections for
juvenile inmates, and (2) to report separately instances of abuse involving juvenile victims.
A number of agency commenters expressed concerns about importing JJDPA
requirements into the PREA standards. Some remarked that this would result in “doublecounting” and would result in undue weight being placed on this standard.
Response. After reviewing the comments received on this issue, the Department has
decided to adopt a standard that restricts the placement of youth in adult facilities to the extent
that such placement would bring youth into unsupervised contact with adults.
The Department recognizes that the statistical evidence regarding the victimization of
youth in adult facilities is not as robust as it is for juvenile facilities, in large part because of the
small number of under-18 inmates in adult facilities and the additional difficulties in obtaining
consent to survey such inmates.11
11

The Department does not rely on Congress’s finding in PREA that “[j]uveniles are 5 times more likely to be
sexually assaulted in adult rather than juvenile facilities,” 42 U.S.C. 15601(4), because insufficient data exist to
support that assessment. Congress’s finding appears to derive from a study based on interviews with youth
adjudicated or tried for violent offenses in four cities between 1981 and 1984. See Martin Frost, et al., Youths in
Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy, 40 Juv. &
44

The Department’s Bureau of Justice Statistics (BJS) previously reported that, based on its
surveys of facility administrators, 20.6 percent of victims of substantiated incidents of inmateon-inmate sexual violence in adult jails in 2005 were under the age of 18, and 13 percent of such
victims in 2006 were under 18,12 despite the fact that under-18 inmates accounted for less than
one percent of the total jail population in both years.13 These findings derived from facility
responses to BJS’s Survey of Sexual Violence (SSV), which was administered to a representative
sampling of jail facilities in addition to all Federal and State prison facilities. However, upon
further review, BJS has determined that these figures are not statistically significant due to the
small number of reported incidents and the small number of jails contained in the sample.
Indeed, in reporting data from the 2007 and 2008 SSVs, BJS determined that the standard errors
around the under-18 estimates for adult jails were excessively large, and consequently did not
report the estimates separately, but rather reported combined figures for inmates under the age of
25. BJS has now determined that it should have done the same for 2005 and 2006.
However, this conclusion does not impact the findings of the same BJS surveys
performed in State prisons, which surveyed all State prisons, in contrast to the jails surveys,
which included only a sampling of jails. According to SSV reports, from 2005 through 2008, 1.5
percent of victims of substantiated incidents of inmate-on-inmate sexual violence in State prisons
were under 18, even though under-18 inmates constituted less than 0.2 percent of the State prison
population. While the number of such substantiated incidents is small—a total of 10—the
combined data indicate that State prison inmates under the age of 18 are more than eight times as
likely as the average State prison inmate to have experienced a substantiated incident of sexual
abuse. Furthermore, the true prevalence of sexual abuse is undoubtedly higher than the number
of substantiated incidents, due to the fact that many incidents are not reported, and some
incidents that are reported are not able to be verified and thus are not classified as
“substantiated.” Indeed, it is quite possible that prison inmates under 18 are more reluctant than
the average inmate to report an incident because of their age and relative newness to the prison
system.
BJS is currently in the middle of its third National Inmate Survey collection, which is
expected to provide better data regarding victimization of under-18 inmates in adult prisons and
jails. This extensive survey will reach inmates in 600 prisons and jails and is designed to
specifically address this issue by oversampling for facilities that house under-18 inmates, and
oversampling such inmates within those facilities. BJS expects to provide national-level
estimates in early 2013.
The Department’s review of State procedures indicates that at least 28 States have laws,
regulations, or policies that restrict the confinement of youth in adult facilities to varying
degrees. Some jurisdictions house these youth in juvenile facilities until they reach a threshold
age and then transfer them to an adult facility. Other jurisdictions require physical separation or
sight and sound separation between these youth and adult offenders. Yet other jurisdictions
Fam. Ct. J. 1, 4 (1989). The study noted that 7 of 81 youth sentenced to adult facilities, or 8.6%, reported
experiencing sexual assault, as compared to 2 of 59 youth sent to juvenile facilities, or 1.7%. Id. at 4, 10. While
suggesting that this discrepancy, and discrepancies regarding other types of victimization, “illustrate the increased
danger of violence for juveniles sentenced to adult prisons,” the authors noted that “the victimization results are not
statistically significant.” Id. at 9.
12
See Beck, BJS, Sexual Violence Reported by Correctional Authorities, 2005, Table 4 (2006); and Beck, BJS,
Sexual Violence Reported by Correctional Authorities, 2006, Appendix Table 5 (2007).
13
See Minton, BJS, Jail Inmates at Midyear 2010 – Statistical Tables, Table 7 (2011).
45

maintain dedicated programs, facilities, or housing units for youth in the adult system. Overall,
there appears to be a national trend toward limiting interaction between adult and under-18
inmates. In recent years, a number of States have imposed greater restrictions on the placement
of youth in adult facilities or have passed legislation to allow youth tried as adults to be housed
in juvenile facilities.14
Furthermore, several accrediting and correctional associations have formulated position
statements, issued standards, or provided comments urging either that all persons under 18 be
held in juvenile facilities only, or that the youth be housed separately from adult inmates. For
example, the National Commission on Correctional Healthcare, the American Jail Association,
the National Juvenile Detention Association, and the National Association of Juvenile
Correctional Agencies all support separate housing or placement for youth.15
Although many jurisdictions have moved away from incarcerating adults with juveniles,
a significant number of youth continue to be integrated into the adult inmate population. The
Department estimates that in 2009, approximately 2,778 juveniles were incarcerated in State
prisons and 7,218 were held in local jails.16
As a matter of policy, the Department supports strong limitations on the confinement of
adults with juveniles. Under the Federal Juvenile Justice and Delinquency Prevention Act (a
14

See 42 Pa. Cons. Stat. Ann. 6327 (under-18 Pennsylvania inmates awaiting trial as adults may be detained in
juvenile facilities until reaching 18); Va. S.B. 259, 2010 Gen. Assem., Reg. Sess. (eff. July 1, 2010) (presumption
that under-18 Virginia inmates awaiting trial as adults be held in juvenile facilities); Colo. Rev. Stat. 19-2-517
(2012) (preventing 14- and 15-year-olds from being tried as adults except in murder and sexual assault cases;
requires prosecutors to state reasons and hear from defense counsel before exercising discretion to try 16- and 17year-olds as adults); Ariz. S.B. 1009, 49th Leg., 2d Reg. Sess. (2010) (eliminating eligibility of some juveniles to be
tried as adults by requiring a criminal charge brought against the juvenile to be based on their age at the time the
offense was committed and not when the charge was filed); Utah H.B. 14, Gen. Sess. (2010) (granting justice court
judge discretion to transfer a matter at any time to juvenile court if it is in the best interest of the minor and the
juvenile court concurs); Miss. S.B. 2969, 2010 Leg., Reg. Sess. (2010) (limiting the types of felonies that 17-yearolds can be tried for as an adult); Wash. Rev. Code 13.04.030(1)(e)(v)(E)(III) (2012) (allowing juveniles to be
transferred back to juvenile court upon agreement of the defense and prosecution.); Wash. Rev. Code 13.40.020(14)
(providing that juveniles previously transferred to adult court are not automatically treated as adults for future
charges if found not guilty of original charge); 2009 Nev. Stat. 239 (raising the age a juvenile may be presumptively
certified as an adult from 14 to 16); Me. Rev. Stat. Ann. tit. 17-A 1259 (2011) (providing that juveniles under 16
who receive adult prison sentence must serve sentence in juvenile correctional facility until their 18 th birthday); 2008
Ind. Acts 1142-1144 (limiting juvenile courts’ ability to waive jurisdiction to felonies and requiring access for
Indiana criminal justice institute inspection and monitoring of facilities that are or have been used to house or hold
juveniles); Conn. Gen. Stat. 54-76b-c (2012) (creating presumption that 16- and 17-year-olds are eligible to be tried
as youthful offenders unless they are charged with a serious felony or had previously been convicted of a felony or
adjudicated a serious juvenile offender); 75 Del. Laws 269 (2005) (limiting Superior Court’s original jurisdiction
over robbery cases involving juveniles to crimes committed by juveniles who had previously been adjudicated
delinquent for a felony charge and thereafter committed a robbery in which a deadly weapon was displayed or
serious injury inflicted); 705 Ill. Comp. Stat. 405/5-130 (2011) (eliminating the requirement that 15- to 17-year-olds
charged with aggravated battery with a firearm and violations of the Illinois Controlled Substances Act, while on or
near school or public housing agency grounds, be tried as adults).
15

See Letter from Campaign for Youth Justice, et al., to Attorney General Holder, 4 (April 4, 2011), available at
http://www.campaignforyouthjustice.org/documents/PREA_sign-on_letter.pdf; NCCHC Position Statement, Health
Services to Adolescents in Adult Correctional Facilities, adopted May 17, 1998, available at
http://www.ncchc.org/resources/statements/adolescents.html.
16
See West, Prison Inmates at Midyear 2009–Statistical Tables, Table 21, BJS (Rev. 2011); Minton, Jail Inmates at
Midyear 2010–Statistical Tables, Table 6, BJS (Rev. 2011).
46

separate statute from the JJDPA), 18 U.S.C. 5031 et seq., “[n]o juvenile committed, whether
pursuant to an adjudication of delinquency or conviction for an offense, to the custody of the
Attorney General may be placed or retained in an adult jail or correctional institution in which he
has regular contact with adults incarcerated because they have been convicted of a crime or are
awaiting trial on criminal charges.” 18 U.S.C. 5039. Accordingly, the Federal Bureau of Prisons
contracts with juvenile facilities to house the few juvenile inmates in its custody. The United
States Marshals Service endeavors to place juveniles in juvenile facilities; where that is not
possible, the juvenile is placed in an adult facility, separated by sight and sound from adult
inmates. In addition, the Department endorsed the Juvenile Justice and Delinquency Prevention
Reauthorization Act of 2009, which, had it been enacted, would have (among other changes)
extended the JJDPA’s sight and sound separation and jail removal core requirements to youth
under adult criminal court jurisdiction awaiting trial, unless a court specifically finds that it is in
the interest of justice to incarcerate the youth in an adult facility.
For a variety of reasons, however, the Department has decided against adopting a
standard that would generally prohibit the placement of youth in adult facilities. Most
importantly, the Department is cognizant that its mandate in promulgating these standards
extends only to preventing, detecting, and responding to sexual abuse in confinement facilities.
While some commenters asserted that confining youth in adult facilities impedes access to ageappropriate programming and services and may actually increase recidivism, the PREA
standards cannot include a ban on those bases. Rather, the Department must focus on the extent
to which such a ban would enhance the ability to prevent, detect, and respond to sexual abuse.
To be sure, implicit in PREA is the authority to regulate and restrict well-intentioned
interventions aimed at preventing sexual abuse that inadvertently lead to other forms of harm.
Thus, the Department may adopt a standard that governs the placement of inmates in isolation,
and the concomitant denial of programming, where such placement is used as a means of
protecting vulnerable inmates against sexual abuse.
In addition, imposing a general ban on the placement of youth in adult facilities, or
banning such placements unless a court finds that the youth has been violent or disruptive in a
juvenile facility, would necessarily require a fundamental restructuring of existing State laws that
permit such placement. For example, many States would require legislation redefining the age of
criminal responsibility, eliminating or amending youthful offender statutes, making changes to
direct-file and transfer laws, or limiting judicial discretion to determine where a youth should be
placed. Given the current state of knowledge regarding youth in adult facilities, and the
availability of more narrowly tailored approaches to protecting youth, the Department has
decided not to impose a complete ban at this time through the PREA standards. As noted above,
BJS is currently collecting additional data regarding this issue, and the Department reserves the
right to reexamine this question if warranted.
Juveniles in adult facilities can be protected from sexual abuse by adult inmates by
preventing unsupervised contact with adult inmates. The Department adopts a final standard
aimed at preventing such unsupervised contact without inadvertently causing other harm to
youth.
First, the standard bans the placement of youth in housing units where they interact with
adults. Youth are vulnerable to abuse not only by cellmates, but also by adults in their unit who
may have contact with them. To be sure, if youth have their own cells, and if the housing unit
lacks a common day room or shower area, then such dangers are sufficiently mitigated. Thus,
the standard requires that no youthful inmate be placed in a housing unit in which he or she will
47

have sight, sound, or physical contact with any adult inmate through use of a shared day room or
other common space, shower area, or sleeping quarters.
Second, the standard limits interactions between youthful and adult inmates in other areas
of the facility. The most basic way to limit such interaction is to ensure sight and sound
separation. However, some facilities may find it infeasible to achieve total sight and sound
separation without resorting to the use of isolation and denial of programming, which raise
significant concerns of their own, as discussed below. Thus, the standard provides additional
flexibility by allowing youthful inmates to commingle with adult inmates as long as direct staff
supervision is provided. Such supervision must be sufficient to ensure that youth are within sight
at all times.
Third, the standard restricts the use of isolation of youth as a means of compliance with
the requirements discussed above. While confining youth to their cells is the easiest method of
protecting them from sexual abuse, such protection comes at a cost. Isolation is known to be
dangerous to mental health, especially among youth. Among other things, isolation puts youth at
greater risk of committing suicide. A recent survey of juvenile suicides in confinement found
that 110 suicides occurred in juvenile facilities between 1995 and 1999. Analyzing those
suicides for which information was available, the survey determined that 50.6 percent of the
suicides occurred when inmates were confined to their rooms outside of traditional nonwaking
hours as a behavioral sanction.17 (To be sure, the suicide risk may be higher among juveniles
who are committed to isolation as punishment, rather than among juveniles isolated for
protection from the general population, as is more common in adult facilities.)
Youth appear to be at increased risk of suicide in adult facilities, although the extent to
which isolation is a contributing factor is unknown. Based on the BJS Deaths in Custody
Reporting Program, 2000-2007, 36 under-18 inmates held in local jails died as a result of suicide
(with the number varying from 3 to 7 each year). The suicide rate of youth in jails was 63.0 per
100,000 under-18 inmates, as compared to 42.1 per 100,000 inmates overall, and 31 per 100,000
inmates aged 18-24. (By contrast, in the general population, the suicide risk is twice as high for
persons aged 18-24 than for persons under 18.) The suicide rate of youth was approximately six
times as high in jails than among 15- to 19-year-olds in the U.S. resident population with a
comparable gender distribution (10.4 per 100,000 in 2007).18
Accordingly, the standard requires that agencies make their best efforts to avoid placing
youth in isolation in order to comply with this standard. For example, rather than relying on the
use of isolation, agencies should attempt to designate dedicated units, wings, or tiers for confined
youth; enter into inter-agency, inter-facility, or cooperative agreements for the common
placement of youth; temporarily house youth in a juvenile facility; construct partitions or other
low-cost facility alterations; or explore alternatives to detention or incarceration for youth in the
17

See Lindsay Hayes, Juvenile Suicide in Confinement: A National Survey at 10, 28-29 (Feb. 2004).
See Margaret E. Noonan, BJS, Deaths in Custody: Local Jail Deaths, Table 9 (Oct. 28, 2010); Margaret E.
Noonan, BJS, Mortality in Local Jails, 2000-2007, Table 9 (July 2010); BJS, 2002 Survey of Inmates in Local Jails
(unpublished data); BJS, Annual Survey of Jails, 2007 (unpublished data); Melonie Heron, Ph.D., National Vital
Statistics System, Deaths: Leading Causes for 2007, 59 National Vital Statistics Reports, No. 8, table 1 (Aug. 26,
2011); BJS, Deaths in Custody Reporting Program, 2002-2005, available at
http://bjs.ojp.usdoj.gov/content/dcrp/juvenileindex.cfm; Census of Juveniles in Residential Placement, 2001, 2003,
and 2006, data available at http://www.ojjdp.gov/ojstatbb/ezacjrp/asp/selection.asp. Although the rate among 15- to
19-year-olds in the U.S. resident population was 6.9 per 100,000, the estimated rate for a comparable gender
distribution is higher after adjusting for the fact that 92.3% of youth held in jails were male.
48
18

agency’s custody and care. If isolation is unavoidable, the final standard requires that, absent
exigent circumstances, agencies provide youth with daily large-muscle exercise and any special
education services otherwise mandated by law. Youth also shall have access to other programs
and work opportunities to the extent possible. The Department believes it is not necessary to
impose the additional requirements suggested by former NPREC members. Requiring a facility
to abide by the standards for juvenile facilities in addition to the standards for adult prisons and
jails could lead to confusion and is unlikely to have an impact on the safety of the youth. Nor is
it likely that mandating visits by staff or visual checks would provide enhanced protection
beyond the basic sight and sound separation.
The Department is mindful of agency concerns regarding cost, feasibility, and
preservation of State law prerogatives. The final standard affords facilities and agencies
flexibility in devising an approach to protecting youth. Compliance may be achieved by (1)
confining youth to a separate unit, (2) transferring youth to a facility within the agency that
enables them to be confined to a separate unit, (3) entering into a cooperative agreement with an
outside jurisdiction to enable compliance, or (4) ceasing to confine youth in adult facilities as a
matter of policy or law. Agencies may, of course, combine these approaches as they see fit.
The Department has decided not to incorporate into the standards for adult prisons and
jails the JJDPA requirements that apply to juveniles who are not tried as adults. As noted above,
§ 115.14 applies only to juveniles under the jurisdiction of adult courts, whereas the JJDPA’s
separation requirement applies only to juveniles who are alleged to be or are found to be
delinquent, juveniles who are charged with or who have committed an offense that would not be
criminal if committed by an adult, or juveniles who are not charged with any offense at all. See
42 U.S.C 5633(a)(11)-(12).
The high degree of compliance with the JJDPA indicates that the incentives and penalties
under the Act are operating successfully to ensure that juveniles who are tried as juveniles are
not intermingled with adults except under the narrow circumstances the JJDPA allows. As
discussed above, the purposes of the two statutes are different: The JJDPA aims to protect youth
and discourage delinquency, whereas PREA is more narrowly limited to preventing sexual
abuse. Thus, only a portion of the requirements that States must fulfill in order to receive JJDPA
grants is relevant to protecting youth from sexual abuse. The Department concludes that to
import such requirements in a piecemeal manner could risk confusion and would not materially
increase the protection of youth in the juvenile justice system.
Limits to Cross-Gender Viewing and Searches (§§115.15, 115.115, 115.215, 115.315)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.14, 115.114, 115.214,
and 115.314) prohibited cross-gender pat-down searches in juvenile facilities, but did not impose
a general ban in other facilities. The proposed standard did, however, require agencies to exempt
from non-emergency pat-down searches those inmates who have suffered prior cross-gender
sexual abuse while incarcerated. That provision attempted to address the possibility that an
inmate who has experienced prior sexual abuse would experience a cross-gender pat-down
search as particularly traumatizing, even if the search was conducted properly.

49

The proposed standard also prohibited cross-gender strip searches absent an emergency
situation or when conducted by a medical practitioner, and required documentation for crossgender strip searches.
Recognizing that transgender inmates may be traumatized by genital examinations, the
proposed standard prohibited examining a transgender inmate to determine genital status, unless
genital status is unknown, in which case such an examination would be conducted in private by a
medical practitioner. The proposed standard also required facilities to minimize opposite-gender
viewing of inmates as they shower, perform bodily functions, or change clothes. The standard
provided an exception for such viewing where incidental to routine cell checks.
The proposed standard also required agencies to train security staff in properly
conducting cross-gender pat-down searches, and searches of transgender inmates, in a
professional and respectful manner, and in the least intrusive manner possible, consistent with
security needs.
Changes in Final Rule
The most significant change in this standard is the inclusion of a ban on cross-gender patdown searches of female inmates in adult prisons and jails and in community confinement
facilities, absent exigent circumstances. To facilitate compliance, most facilities will have three
years to comply. Recognizing that this requirement may be more difficult for smaller facilities to
implement, facilities with a rated capacity of less than 50 inmates are provided five years in
which to implement the ban. The final standard also clarified that women’s access to
programming or out-of-cell opportunities should not be restricted to comply with this provision.
In addition, the final standard requires facilities to document all cross-gender searches of female
inmates.
The final standard retains the general rule against cross-gender strip searches and body
cavity searches and clarifies that “body cavity searches” means searches of the anal or genital
opening. The exception for medical practitioners has been retained; the emergency exception
has been replaced with an exception for “exigent circumstances” to be consistent with similar
changes from “emergency” to “exigent” throughout the final standards.
The final standard imposes a complete ban on searching or physically examining a
transgender or intersex inmate for the sole purpose of determining the inmate’s genital status.
Rather, 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 final
standard also retains the requirement for agencies to train security staff in conducting
professional and respectful cross-gender pat-down searches and searches of transgender inmates,
in the least intrusive manner possible, consistent with security needs. The final standard extends
these protections to intersex inmates as well.
The final standard retains the requirement that each facility 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, buttocks, or genitalia, except in the
case of emergency (now reworded as “exigent circumstances”), or when such viewing is
incidental to routine cell checks. The final standard removes “by accident” from the list of
exceptions, and adds a requirement that staff of the opposite gender announce their presence
when entering an inmate housing unit.
50

The final standard retains the ban on cross-gender pat-down searches for all residents in
juvenile facilities, and narrows the exceptions to the ban to include only exigent circumstances.
Comments and Responses
Comments on cross-gender pat-down searches. The issue of cross-gender pat-down
searches generated a substantial number of comments. In general, advocates strongly supported
a ban on all cross-gender pat-down searches, as did two members of Congress. Some
correctional commenters also noted that same-gender pat-down searches are accepted practice,
but emphasized the need for an exception that would permit cross-gender pat-down searches in
exigent circumstances. Advocates suggested that a ban on cross-gender pat-down searches could
be accomplished with minimal expense by limiting pat-down searches to areas with a high
contraband risk, or assigning a roving officer to various posts. Most current and former inmates
also supported a ban on all cross-gender pat-down searches. Other commenters stated that crossgender searches contribute to a sexualized environment. Two commenters went further by
proposing limits to cross-gender supervision, not just cross-gender searches.
A number of advocates strongly recommended that, at a minimum, the final standard
prohibit cross-gender pat-down searches of women. Citing a 1999 study conducted by the
National Institute of Corrections, advocates suggested that numerous States currently ban crossgender pat-down searches of female inmates. A handful of commenters recommended that such
a ban be phased in over a period of two or three years to ease the transition.
In general, agency commenters supported the proposed standard as written regarding
cross-gender searches. Several State correctional agencies remarked that prohibiting crossgender pat-down searches of female inmates was feasible, but that it would be difficult to extend
a cross-gender ban to male inmates. Other agency commenters stated that the training
requirement would address any problems with cross-gender searches.
Commenters noted that gender-based requirements could implicate laws that bar
discrimination in employment on the basis of sex. Of these commenters, most expressed concern
regarding the possibility of a standard that prohibited both male-on-female pat-down searches
and female-on-male cross-gender pat-down searches. A smaller number of commenters
expressed similar concerns with regard to the possibility of a standard that prohibited only maleon-female searches. A larger number, however, expressed confidence that a ban on cross-gender
pat-down searches of female inmates could be implemented in a manner that would not violate
employment laws. Several correctional agency commenters observed that requiring same-gender
pat-down searches of female inmates, except in exigent circumstances, is already an accepted
practice in adult prisons and jails.
Multiple agency commenters expressed concern that a complete prohibition on crossgender pat-down searches could violate collective bargaining agreements, which affect staff
assignments, if the prohibition prevented staff of a particular gender from retaining a particular
assignment.
Both advocacy and agency commenters strongly criticized the exemption from crossgender pat-down searches for inmates who have suffered documented prior cross-gender sexual
abuse while incarcerated. Commenters expressed concern that inmates who avail themselves of
the exemption would be labeled and ostracized, and would possibly be putting themselves at
greater risk for further abuse. Commenters expressed doubt that inmates would be willing to
reveal their sexual abuse history in such a manner, which would likely become known to a
51

significant number of staff and inmates if only victims of prior abuse were exempted from crossgender pat-down searches. A number of former inmates also expressed skepticism that requests
for exemptions would actually be honored.
Response. The Department is persuaded that adopting a standard that generally prohibits
cross-gender pat-down searches of female inmates in prisons and jails will further PREA’s
mandate of preventing sexual abuse without compromising security in corrections settings,
infringing impermissibly on the employment rights of officers, or adversely affecting male
inmates. The final standard prohibits cross-gender pat-down searches of female inmates and
residents in adult prisons, jails, and community confinement facilities, absent exigent
circumstances, but does not prohibit such searches of male inmates. With regard to juvenile
facilities, the final standard retains the proposed standard’s prohibition on all cross-gender patdown searches of either male or female residents, absent exigent circumstances.
Pat-down searches are a daily occurrence in corrections settings and, when performed
correctly, require staff to have intimate bodily contact with inmates. Although most pat-down
searches are conducted legitimately by conscientious staff, it can be difficult to distinguish
between a pat-down search conducted for legitimate security purposes and one conducted for the
illicit gratification of the staff person, which would constitute sexual abuse.
Female inmates are especially vulnerable owing to their disproportionate likelihood of
having previously suffered abuse. A BJS survey conducted in 2004 found that 42 percent of
female State prisoners and 28 percent of female Federal prisoners reported that they had been
sexually abused before their current sentence, as compared to 6 percent of male State prisoners
and 2 percent of male Federal prisoners. A BJS survey of jail inmates, conducted in 2002, found
that 36 percent of female inmates reported sexual abuse prior to incarceration, compared to 4
percent of male inmates.19 According to studies, women with histories of sexual abuse—
including women in prisons and jails—are particularly traumatized by subsequent abuse.20 In
addition, even a professionally conducted cross-gender pat-down search may be traumatic and
perceived as abusive by inmates who have experienced past sexual abuse. See Jordan v.
Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (en banc) (striking down cross-gender pat-downs
of female inmates as unconstitutional “infliction of pain” where there was evidence that a high
percentage of the female inmate population had a history of traumatic sexual abuse by men and
19

BJS, unpublished data, 2004 Survey of Inmates in State and Federal Correctional Facilities and 2002 Survey of
Inmates in Local Jails.
20
See Catherine C. Classen, Oxana Gronskaya Palesh, & Rashi Aggarwal, Sexual Revictimization: A Review of the
Empirical Literature, 6 Trauma, Violence, & Abuse 103, 117 (2005) (“There is considerable evidence that sexual
revictimization is associated with more distress compared to one incident of sexual victimization. . . . The general
finding appears to be that women who are revictimized suffer more PTSD symptoms”); Barbara Bloom, Barbara
Owen, and Stephanie Covington, Gender-Responsive Strategies: Research, Practice, and Guiding Principles for
Women Offenders, at 37, NIC (2003) (“In addition, standard policies and procedures in correctional settings (e.g.,
searches, restraints, and isolation) can have profound effects on women with histories of trauma and abuse, and
often act as triggers to retraumatize women who have post-traumatic stress disorder (PTSD).”); Danielle Dirks,
Sexual Revictimization and Retraumatization of Women in Prison, 32 Women’s Stud. Q. 102, 102 (2004) (“For
women with previous histories of abuse, prison life is apt to simulate the abuse dynamics already established in
these women’s lives, thus perpetuating women’s further revictimization and retraumatization while serving time.”).
In 2009, the Department’s Office of the Inspector General, in a report on BOP’s efforts at combating sexual abuse
by staff, noted that “because female prisoners in particular often have histories of being sexually abused, they are
even more traumatized by further abuse inflicted by correctional staff while in custody.” OIG, United States
Department of Justice, The Department of Justice’s Efforts to Prevent Staff Sexual Abuse of Federal Inmates at 1
(2009).
52

were being re-traumatized by the cross-gender pat-down searches). Thus, even a professionally
conducted male-on-female pat-down search increases the risk of harm to female inmates, who
have a high prevalence of past prior abuse. See id. at 1525 (affirming district court holding that
there “is a high probability of great harm, including severe psychological injury and emotional
pain and suffering, to some inmates, from these searches, even if it was properly conducted”).
Most staff sexual abuse of female inmates is committed by male staff. The BJS National
Inmate Survey found that 71.8 percent of female prisoners who were victims of sexual abuse by
staff reported that the staff perpetrator was male in every instance, compared to 9.3 percent who
reported that the staff perpetrators were exclusively female.21 Furthermore, 36.7 percent of
female inmates who reported sexual touching indicated that they experienced sexual touching
during a pat-down search.
An analysis of allegations reported by BOP inmates to BOP’s Office of Internal Affairs,
conducted by the Department’s Office of the Inspector General (OIG), provides further
indication of vulnerability of female inmates to sexual abuse at the hands of male staff. OIG
found that, from fiscal year 2001 through 2008, 45.6 percent of all allegations of criminal crossgender sexual abuse committed by BOP staff were lodged by female prisoners, even though
women made up less than 7 percent of the BOP population.22 BOP did not prohibit cross-gender
pat-down searches of female inmates during this time period, and OIG reported that “BOP
officials believed that male staff members were most often accused of sexual misconduct
stemming from pat searches.”23
A thorough pat-down search requires staff to engage in intimate touching of the inmate’s
clothed body, including the breasts, buttocks, and genital regions. Given that female inmates are
significantly more likely to be sexually abused by male officers than by female officers, the
Department determined that it would be prudent, as a prophylactic measure to decrease the risk
of sexual abuse, to prohibit the necessarily intimate touching that occurs during routine crossgender pat-down searches and that may inadvertently contribute to the development of a
sexualized environment within a facility. A ban on cross-gender pat-down searches of female
inmates, absent exigent circumstances, is consistent with effective corrections policy, as
evidenced by the fact that a significant number of State and local corrections systems already
abide by such a restriction, as discussed below.
Currently, as a matter of law or policy, most State prison systems do not conduct crossgender pat-down searches of female inmates, absent exigent circumstances. At the request of the
Department’s PREA Working Group, the National Institute of Corrections (NIC) conducted a
survey of State corrections systems and found that at least 27 States ban the practice, and that it
is common practice in several other States for male officers to perform pat-down searches of
female prisoners only under exigent circumstances. While comparable data from jails are
unavailable, representatives of twelve large jail agencies who attended a PREA listening session
convened by the Department all stated that they do not permit cross-gender pat-down searches of
females. The Department is not aware of any cases successfully challenging the practice of
21

See BJS, Sexual Victimization in Prisons and Jails Reported by Inmates, National Inmate Survey, 2008-09, at 24.
Corresponding figures in jails were 62.6% and 27.6%, respectively. Numbers do not sum to 100% because some
inmates reported being victimized by both male and female staff.
22
See OIG, United States Department of Justice, The Department of Justice’s Efforts to Prevent Staff Sexual Abuse
of Federal Inmates at 26-28 (2009). Three hundred and twenty-five allegations of criminal sexual abuse were made
by female inmates against male staff, as compared to 382 allegations by male inmates against female staff.
23
See id. at 26.
53

banning only cross-gender pat-down searches of female prisoners, despite the widespread
prevalence of these restrictions.
The Department believes that laws that prohibit employment discrimination on the basis
of sex pose no obstacle to the implementation of this standard. Rather, the prohibition of crossgender pat-down searches of female inmates can (and must) be implemented in a manner
consistent with Federal laws prohibiting sex discrimination in employment, to ensure that
implementation has only a de minimis impact on employment opportunities, or, if the impact is
more than de minimis, that any sex-based limitations on employment opportunities satisfy the
bona fide occupational qualification requirement of Federal employment law.
Notably, female inmates make up a very small proportion of the total number of
incarcerated individuals.24 The small proportion of female inmates provides further support for
agencies’ ability to implement a ban on cross-gender pat-down searches of female inmates
without negatively impacting employment opportunities.
Title VII of the Civil Rights Act of 1964 states that “it shall not be an unlawful
employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . .
. where . . . sex . . . is a bona fide occupational qualification [“BFOQ”] reasonably necessary to
the normal operation of that particular business or enterprise.” 42 U.S.C. 2000e-2(e)(1).25
However, employment decisions that have only a de minimis effect on the employment
opportunities of correctional employees do not trigger or require a BFOQ analysis.
To establish a BFOQ defense, a facility must show that a gender-based job qualification
is related to the essence or central function of the facility, and that the qualification is reasonably
necessary to the normal operations of the facility. See Dothard v. Rawlinson, 433 U.S. 321, 33237 (1977) (holding that exclusion of females in contact positions in Alabama’s violent male
maximum security prisons may satisfy BFOQ requirement). However, the requirement that only
female staff perform pat-down searches on female inmates is unlikely to require a BFOQ for
single-sex employment positions in a facility because, as shown by nationwide experience,
facilities will almost always be able to implement the requirement in a minimally intrusive way
that has only a de minimis effect on employment opportunities. See Tharp v. Iowa Dep’t of
Corr., 68 F.3d 223, 226 (8th Cir. 1995) (en banc) (holding that a prison employer’s reasonable
gender-based job assignment policy, particularly a policy that is favorable to the protected class
of women employees, will be upheld if it imposes only a minimal restriction on other employees,
and therefore a BFOQ analysis was unnecessary).
Sex-based assignment policies in correctional facilities often impose only a de minimis
restriction on the employment opportunities of male officers when facilities preclude male
employees from working only a small percentage of certain shifts or job posts at particular
facilities but make numerous comparable shifts or posts available to males. See Robino v.
24

See BJS, Annual Survey of Jails (2010) (12% of jail inmates are female); BJS, Prisoners in 2009 (7% of prison
inmates are female).
25
The BFOQ language is found in the section of Title VII that pertains to private employers and State and local
government employers. The section of Title VII that applies to executive branch agencies such as BOP does not
expressly set forth a BFOQ defense. See 42 U.S.C. 2000e-16(a). While the Department is not aware of any case
law on the issue, the Equal Employment Opportunities Commission has applied the Title VII BFOQ defense in
petitions against Federal employers. See, e.g., Gray v. Nicholson, EEOC DOC 0720050093 (Feb. 9, 2007).
Accordingly, the Department believes that the defense would be available to BOP and other Federal employers on
the same terms as other employers.
54

Iranon, 145 F.3d 1109, 1110-11 (9th Cir. 1998) (restricting six out of 41 guard positions to
women had a de minimis effect). When only minor adjustments of staff schedules and job
responsibilities are at issue, the effect on employment rights is de minimis. See Jordan, 986 F.2d
at 1539 (Reinhardt, J. concurring); Tipler v. Douglas Cnty., 482 F.3d 1023, 1025-27 (8th Cir.
2007) (temporary reassignments with no effect on promotional opportunities had a de minimis
effect); Tharp, 68 F.3d at 225-27 (policy requiring female residential advisors to staff a women’s
unit in a mixed-gender minimum security had a de minimis effect because the prison’s male
employees did not suffer termination, demotion, or a reduction in pay). Agencies may
implement a ban on cross-gender pat-down searches of female inmates in the manner most
appropriate for each facility.
Facilities and agencies should strive to implement this provision in a manner that has a de
minimis effect so that a BFOQ inquiry is not required. If a facility or agency implements the
cross-gender pat-down ban in a way that creates materially adverse changes in the terms and
conditions of employment by precluding staff of either sex from certain positions entirely,
thereby affecting their promotions, additional pay, seniority, or future eligibility for senior
positions, then the facility would be required to conduct a BFOQ inquiry. As noted above, such
an inquiry must demonstrate that the manner of implementation is both related to the central
function of the facility and reasonably necessary for the successful operation of the facility. See
Dothard, 433 U.S. at 335-37. There are numerous ways in which facilities can eliminate crossgender pat-down searches of female inmates, in conformance with employment laws. For
example, agencies can assign or rotate female staff to certain key posts within the facility, so
long as female staff are not limited in their opportunities for advancement as compared to
similarly situated male staff; provide for female float staff who can conduct searches as
necessary; allow staff to transfer between agency facilities to achieve better gender balance; or
implement institutional schedules that maximize availability of female staff for pat-down
searches of female inmates.
It is important to note that the standard prohibiting cross-gender pat-down searches does
not, in and of itself, create or establish a BFOQ defense to claims of sex discrimination in
employment. If a correctional facility cannot implement this standard in a manner that imposes
only a de minimis impact on employment opportunities for either sex, it must undertake an
individualized assessment of its particular policies and practices and the particular circumstances
and history of its inmates to determine whether altering or reserving job duties or opportunities
to one sex would justify a BFOQ defense with respect to each particular employment position or
opportunity potentially affected by the agency’s implementation of the standards.
Female-preference sex-based employment assignments in correctional facilities can meet
the BFOQ standard if such assignments are reasonably necessary to the normal operation of the
particular facilities at which they are used. This is a high standard. For example, one agency
used its history of rampant sexual abuse of female prisoners to justify a BFOQ and designate 250
corrections officer and residential unit officer positions in the housing units of State female
prisons as “female only.” The facially discriminatory plan, which affected a significant number
of male officers, was permissible because sex was a BFOQ for these particular facilities based on
the facilities’ histories. See Everson v. Michigan Dep’t of Corr., 391 F.3d 737, 747-61 (6th Cir.
2004). Additionally, based on the totality of the circumstances at a specific facility, sex may be a
BFOQ for all positions in the living units of a women's maximum security prison where the
practice of employing only female guards in these positions is reasonably necessary to the goal
55

of female prisoner rehabilitation. See Torres v. Wisconsin Dep’t of Health & Human Servs., 859
F.2d 1523, 1530-32 (7th Cir. 1988) (en banc).
However, female-preference sex-based staffing polices do not meet the high standard
necessary to establish a BFOQ defense without a high correlation between sex and ability to
perform a particular position. See Breiner v. Nevada Dep’t of Corr., 610 F.3d 1201, 1213 (9th
Cir. 2010). For example, being female was not a BFOQ for all three lieutenant positions at a
women’s correctional facility because the facility did not demonstrate that precluding men from
serving in supervisory positions in women’s prisons was necessary to meet its goal of reducing
instances of sexual abuse of female inmates by male correctional officers. See id. at 1210-16. A
policy banning male officers from all posts in female housing units also did not meet the
requirements necessary to establish a BFOQ defense when it was predicated on a few
unspecified past incidents of sexual misconduct and generalized arguments that the mere
presence of males caused distress to past victims of sexual abuse. See Westchester Cnty. Corr. v.
Cnty. of Westchester, 346 F. Supp. 2d 527, 533-36 (S.D.N.Y. 2004).
In addition, the final standard allows all facilities with more than 50 beds three years
from the effective date of the PREA standards for implementation, and five years for facilities
smaller than 50 beds. This extended time frame provides facilities of all sizes and security levels
with ample opportunity to develop and implement a practice that will protect female prisoners
without undue burden on the operations of the facility. Furthermore, to the extent that agencies
want to increase their percentage of female staff to facilitate compliance with the standards,
agencies can take advantage of natural attrition to recruit and hire additional female staff without
terminating male staff. Most agencies will be able to implement the ban in a manner that has
only a de minimis effect on employment opportunities and assignments for male employees.
And given the lengthy time period allowed to come into compliance, and the level of discretion
retained by agencies, the Department believes that the standard can be implemented in
accordance with collective bargaining agreements.
The Department has chosen not to include in the final standard a similar prohibition on
female staff conducting pat-down searches of male inmates. The Department concludes that the
benefit of prohibiting cross-gender pat-down searches of male inmates is significantly less than
the benefit of prohibiting cross-gender pat-down searches of female inmates, whereas the costs
of the former are significantly higher than the costs of the latter. A ban on cross-gender patdown searches only of female prisoners does not violate the Equal Protection Clause of the
Fourteenth Amendment because male and female prisoners are not similarly situated with respect
to bodily searches. Male inmates are far less likely than female inmates to have a history of
traumatic sexual abuse and are less likely to experience the retraumatization that may affect
female inmates due to a cross-gender pat-down search. See Laing v. Guisto, 92 Fed. Appx. 422,
423 (9th Cir. 2004); Timm v. Gunter, 917 F.2d 1093, 1102-03 (8th Cir. 1990); Jordan, 986 at
1525-27; Tipler, 482 F.3d at 1027-28; Colman v. Vasquez, 142 F. Supp. 2d 226, 232 (D. Conn.
2001).
With regard to cost, the Department reaffirms its assessment, as stated in the proposed
rule, that a ban on cross-gender pat-down searches of male inmates would impose significant
financial costs and could limit employment opportunities for women. The correctional
population remains overwhelmingly male: 88 percent of jail inmates and 93 percent of prison
inmates are men. Correctional staff, by contrast, are considerably more balanced by sex:
according to BJS data, 25 percent of Federal and State correctional officers were female as of
56

2005, and 28 percent of correctional officers in local jails were female as of 1999.26 Female
participation in the correctional workforce has been increasing over the past two decades, and it
is likely that the disparity between the percentage of female correctional staff and the percentage
of female inmates will continue to grow. In addition, there is significant variation across States:
The percentage of female correctional officers in State prisons ranges from 9 percent in Rhode
Island to 63 percent in Mississippi. Jurisdiction-level data are not available for local jails, but
statewide data indicate that the comparable aggregate percentages range from 8 percent in
Massachusetts to 43 percent in Nebraska. In the growing number of correctional agencies where
the percentage of female correctional staff is substantial, but the female inmate population is (as
in most places) quite small, it could be difficult to implement a ban on female staff patting down
male inmates without a significant adverse impact on employment opportunities for women, who
would be unable to occupy correctional positions that involve patting down male inmates, and
whose prospects for advancement could suffer as a result. See Madyun v. Franzen, 704 F.2d
954, 962 (7th Cir. 1983) (gender-based distinctions allowing women to serve as guards in male
prisons and perform tasks that are not open to men in female prisons serves the important
governmental objective of equal job opportunity for women in fields traditionally closed to
them). In addition, in facilities with a high percentage of female staff, there could be an
insufficient number of male staff to perform pat-down searches on male inmates, given the
overwhelmingly male nature of the inmate population.
To be sure, in adopting a one-way ban, the Department does not suggest that male
inmates are less likely to have experienced cross-gender sexual abuse while incarcerated than
female inmates. In the most recent BJS survey, male inmates were somewhat more likely to
report having experienced staff sexual misconduct than female inmates (in prisons, 2.9 percent
vs. 2.1 percent; in jails, 2.1 percent vs. 1.5 percent), and were about as likely as female inmates
to report that the perpetrator was always of the opposite sex (in prisons, 68.8 percent vs. 71.8
percent; in jails, 64.3 percent vs. 62.6 percent).27 The Department also acknowledges that the
same survey indicated that male inmates were nearly as likely as female inmates to report sexual
touching in a pat-down search: 36.3 percent of male inmates who reported sexual touching
indicated that it had occurred at least once during a pat-down search, compared to 36.7 percent of
the corresponding set of female inmates.28 However, when evaluating the prevalence of crossgender sexual abuse of female inmates, this statistic could be misleading in light of the fact that,
as noted above, many facilities nationwide—which may well collectively house a majority of all
inmates—already prohibit cross-gender pat-down searches of female inmates absent exigent
circumstances. Therefore, a large percentage of female inmates are currently not subject to
cross-gender pat-down searches as a matter of course. This discrepancy may well explain why
male and female inmates are roughly equally likely to report sexual touching in a pat-down
search.
The experience of BOP, which has not prohibited cross-gender pat-down searches, is
illustrative. As noted above, female inmates lodged 45.6 percent of all allegations of criminal
cross-gender sexual abuse committed by BOP staff, even though less than 7 percent of the BOP
population was female. Unlike a majority of State correctional agencies, BOP allowed male
26

See James J. Stephan, BJS, Census of State and Federal Correctional Facilities, 2005, Appendix Table 12 (Oct.
2008); James J. Stephan, BJS, Census of Jails, 1999, at 9, 26 (Aug. 2001).
27
See Allen J. Beck and Paige M. Harrison, BJS, Sexual Victimization in Prisons and Jails Reported by Inmates,
2008-09, at 12, 24.
28
See id. at 24.
57

correctional staff to perform pat-down searches of female inmates, which may explain why BOP
experienced a gender imbalance in allegations that was not shared nationwide. Indeed (as also
noted above), according to the OIG report, BOP officials believed that pat-down searches were
the most common source of allegations of sexual misconduct against male staff members.
The final rule does not include a similar restriction on cross-gender pat-down searches of
female detainees in lockups due to the smaller size, limited staffing numbers, lack of data on
incidence of sexual abuse in these institutions, and minimal number of comments directed at
lockups. In addition, a pat-down search of a lockup detainee is often conducted by the same
police officer who performed a similar search of the detainee upon arrest in the field. Therefore,
it would be impractical to impose different search rules once the officer and detainee reach the
lockup doors. While recognizing that a blanket restriction would be unworkable, the Department
encourages lockups to avoid cross-gender pat-down searches of female detainees, to the extent
feasible.
Finally, the Department has removed the provision that mandated a specific exemption
from cross-gender pat-down searches for inmates who have suffered documented prior crossgender sexual abuse while incarcerated. The prohibition of cross-gender pat-down searches of
female inmates largely obviates the need for this exemption, and the Department concludes that
the potential benefits of retaining the exemption only for male inmates are outweighed by the
disadvantages noted by commenters.
Comments regarding juvenile cross-gender pat-down searches. Agencies generally
agreed with the gender-neutral ban on pat-down searches in juvenile facilities, so long as
exceptions were permitted in certain circumstances. One large State expressed significant
concern regarding the cost of implementing the part of the ban that prohibits female staff from
conducting pat-down searches of male juveniles. Some organizations supported strengthening
the standard to limit the exceptions to exigent circumstances only.
Response. The Department concludes that a gender-neutral cross-gender pat-down
search ban in juvenile facilities is required to help protect youth from staff sexual misconduct.
The percentage of staff-on-resident victimization that involves female staff and male
residents is much higher than the analogous percentage in adult facilities. A recent BJS survey
indicated that 92 percent of all youth reporting staff sexual misconduct were males reporting
victimization exclusively by female staff, compared to 65 percent in adult prisons and 58 percent
in jails.29 The Department agreed with commenters who recommended allowing such searches
only in “exigent circumstances.” The Department removed the exception for “other unforeseen
circumstances” because the phrase is too vague and could lead to excessive reliance on the
exception. The Department intends the exception to the cross-gender pat-down search ban to be
limited to rare instances where truly emergent conditions exist.
Comments regarding searches of transgender and intersex inmates. A number of
advocates urged that transgender and intersex inmates be allowed to state a preference regarding
the gender of the staff searching them, or that a presumption be created that transgender or
intersex inmates be searched by female staff, because transgender and intersex persons are often
perceived as female and are at high risk of being targeted by male staff for sexual violence and
29

Beck, BJS, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-2009 (Jan. 2010), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf; Beck & Harrison, BJS, Sexual Victimization in Prisons and
Jails Reported by Inmates, 2008-09, at 24.
58

harassment. Numerous commenters, including both advocates and agency commenters,
requested guidance on this issue.
Many advocates urged the Department to prohibit examinations of transgender and
intersex inmates, even by medical professionals, solely to determine genital status. Such
examinations can be highly traumatic, commenters asserted, whereas the information regarding
genital status can be obtained by questioning the person or by review of medical files.
Commenters noted that transgender and intersex juveniles are particularly likely to be
traumatized by such examinations.
Response. The Department agrees that guidance is needed on properly searching
transgender and intersex inmates. This guidance should be detailed and workable for facilities,
should adequately protect transgender and intersex people, and is best provided by the National
Resource Center for the Elimination of Prison Rape.
The final standard does not include a provision allowing individual inmates to state a
preference for the gender of their searcher, because such requests have the potential to be
arbitrary and disruptive to facility administration. Rather, the Department believes that the
concerns that prompted such a proposal can be addressed by properly assigning (or re-assigning)
transgender and intersex inmates to facilities or housing units that correspond to their gender
identity, and not making housing determinations based solely on genital status. Agencies should
also recognize that the proper placement of a transgender inmate may not be a one-time decision,
but may need to be reevaluated to account for a change in the status of the inmate’s gender
transition. For example, an inmate who is initially assigned to a male facility or unit may
subsequently merit a move to a female facility or unit (or vice versa) following hormone
treatment or surgery. Finally, searches of both transgender and intersex inmates at intake, before
a housing determination has been made, may present special challenges. In such cases, facilities
should make individual assessments of inmates who may be transgender or intersex and consult
with the inmate regarding the preferred gender of the staff member who will perform the search.
The final standard does include additional safeguards to protect transgender and intersex
inmates from examinations solely to determine genital status. Such targeted examinations will
rarely be warranted, as the information can be gathered without the need for a targeted
examination of a person’s genitals. Accordingly, the final standard states that, if an inmate’s
genital status is unknown, a facility should attempt to gain the information by speaking with the
inmate or by reviewing medical records. In the rare circumstances where a facility remains
unable to determine an inmate’s genital status, the Department recognizes that the facility may
have to conduct a medical examination. Any such medical examination, however, should be
conducted as part of a regular medical examination or screening that is required of or offered to
all inmates. Transgender and intersex inmates should not be stigmatized by being singled out for
specific genital examinations.
Comments regarding privacy. Advocates expressed concern that the standard allowed
nonmedical staff of the opposite gender to view inmates as they shower, perform bodily
functions, or change clothing, as long as such viewing is incidental to routine cell checks. These
commenters feared that this exception would diminish the effectiveness of the Department’s
intended limitation on cross-gender viewing. Some advocates proposed strengthening this
limitation by requiring staff of the opposite gender to announce their presence when entering a
housing unit.
Some agency commenters expressed concern that privacy screens would be an
unnecessary expense, and others feared that such screens would create blind spots and therefore
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security risks. Other commenters approved of privacy screens as a cost-effective means of
protecting inmates’ privacy.
Response. The final standard maintains the exception to the cross-gender viewing
prohibition, if the viewing is incidental to routine cell checks. However, the Department has
addressed concerns that this exception would lead to widespread cross-gender viewing by adding
to the standard a requirement that staff of the opposite gender announce their presence when
entering a housing unit.
The Department is sensitive to cost concerns and clarifies that the rule is not intended to
mandate the use of privacy screens. Rather, privacy screens may be a safe and cost-effective
way to address privacy concerns in certain facilities.
Comments regarding training. Advocates generally supported the inclusion of the
requirement to train staff in conducting cross-gender searches. However, some commenters,
especially juvenile advocacy commenters, found the requirement confusing because the juvenile
standard bans cross-gender searches.
Response. The Department has retained this provision, even for juvenile facilities, due to
the likelihood that cross-gender searches of women and juveniles may occur in exigent
circumstances.
Comments regarding cross-gender strip searches. Few commenters discussed the
prohibition on cross-gender strip searches and body cavity searches. One commenter was
concerned that the prohibition, as written, may extend to visual examinations of the mouth and
ear, areas that are commonly inspected by members of the opposite sex. Several agency
commenters recommended that all strip searches, not just cross-gender strip searches conducted
under exigent circumstances, be documented.
Response. The final standard clarifies that a body cavity search refers to a search of the
anal or genital opening, and adopts the exigent circumstances language proposed by advocates.
The Department declined to revise the standard to require documentation of all strip searches,
out of concern that such a requirement could impose a heavy burden on some agencies for no
good purpose. The standard aims to ensure documentation of those strip searches that carry the
greatest potential for abuse; agencies may, of course, document all strip searches if they so
choose.
Inmates with Disabilities and Inmates Who Are Limited English Proficient (§§ 115.16,
115.116, 115.216, 115.316)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.15, 115.115, 115.215,
and 115.315) governed the accommodation of inmates with disabilities and inmates with limited
English proficiency (LEP). The proposed standard required that agencies develop methods to
ensure that inmates who are LEP, deaf, or disabled can report sexual abuse and sexual
harassment to staff directly, and that agencies make accommodations to convey sexual abuse
policies orally to inmates with limited reading skills or visual impairments. The proposed
standard allowed for the use of inmate interpreters in exigent circumstances.
Changes in Final Rule
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The final rule revises this standard to be consistent with the requirements of relevant
Federal civil rights laws: Title II of the Americans with Disabilities Act (ADA), 42 U.S.C.
12101, 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; and Title VI
of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.
The final standard requires an agency to take appropriate steps to provide inmates with
disabilities an equal opportunity to participate in and benefit from all aspects of the agency’s
efforts to prevent, detect, and respond to sexual abuse and sexual harassment. An agency is not
required to take actions that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity, or in undue financial and administrative burdens, as
those terms are used in regulations promulgated under Title II of the ADA. See 28 CFR 35.164.
The final standard clarifies that the category of “inmates with disabilities” includes, for
example, inmates who are deaf or hard of hearing, those who are blind or have low vision, and
those with intellectual, psychiatric, or speech disabilities. It specifies that agencies shall provide
access to interpreters when necessary to ensure effective communication with inmates who are
deaf or hard of hearing, consistent with the ADA and its implementing regulations. The standard
clarifies that such interpreters shall be able to interpret effectively, accurately, and impartially,
both receptively and expressively, using any necessary specialized vocabulary.
Similarly, with respect to inmates who are LEP, the final standard requires agencies to
take reasonable steps to ensure meaningful access to all aspects of the agency’s efforts to
prevent, detect, and respond to sexual abuse and sexual harassment, consistent with the
requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and
Executive Order 13166 of August 11, 2000, including steps to provide interpreters who can
interpret effectively, accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary.
Further, the final standard specifies that an agency cannot rely on inmate interpreters,
inmate readers, or other types of inmate assistants “except in limited circumstances where an
extended delay in obtaining an effective interpreter could compromise the inmate’s safety, the
performance of first-response duties under § 115.64, or the investigation of the inmate’s
allegations.” The quoted phrase replaces “exigent circumstances,” which has been removed in
light of the final rule’s definition of that term as “any set of temporary and unforeseen
circumstances that require immediate action in order to combat a threat to the security or
institutional order of a facility.” § 115.5.
Note on Intersection with Existing Statutes and Regulations
The Department emphasizes that the requirements in this standard are not intended to
relieve agencies of any preexisting obligations imposed by the ADA, the Rehabilitation Act of
1973, or the meaningful access requirements set forth in Title VI of the Civil Rights Act of 1964
and Executive Order 13166. The Department continues to encourage all agencies to refer to the
relevant statutes, regulations, and guidance when determining the extent of their obligations.
The ADA requires State and local governments to make their services, programs, and
activities accessible to individuals with all types of disabilities. See 42 U.S.C. 12132; 28 CFR
35.130, 35.149-35.151. The ADA also requires State and local governments to take appropriate
steps to ensure that their communications with individuals with disabilities (including, for
example, those who are deaf or hard of hearing, those who are blind or have low vision, and
those with intellectual, psychiatric, or speech disabilities) are as effective as their
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communications with individuals without disabilities. See 28 CFR 35.160-35.164. In addition,
the ADA requires each State and local government entity to make reasonable modifications to its
policies, practices, and procedures when necessary to avoid discrimination against individuals
with disabilities, unless the entity can demonstrate that making the modifications would
fundamentally alter the nature of the relevant service, program, or activity. See 28 CFR
35.130(b)(7). These nondiscrimination obligations apply to all correctional and detention
facilities operated by or on behalf of State or local governments. See Pennsylvania Dep’t of
Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).
Similar requirements apply to correctional and detention facilities that are federally
conducted or receive Federal financial assistance. Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. 794, prohibits discrimination against persons with disabilities by entities that receive
Federal financial assistance. Discrimination includes denying persons with disabilities the
opportunity accorded others to participate in the program or activity, or denying an equal
opportunity to achieve the same benefits that others achieve in the program or activity. See 28
CFR 42.503 (implementing Section 504 with respect to recipients of Federal financial assistance
from the Department of Justice); 28 CFR 39.160 (implementing Section 504 with respect to
programs or activities conducted by the Department of Justice, and providing specifically that
auxiliary aids and services be furnished where necessary to afford an equal opportunity to
participate).
Pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations, all
State and local agencies that receive Federal financial assistance must provide LEP persons with
meaningful access to all programs and activities. See Enforcement of Title VI of the Civil Rights
Act of 1964—National Origin Discrimination Against Persons with Limited English Proficiency;
Policy Guidance, 65 FR 50123 (2000). Pursuant to Executive Order 13166, each agency
providing Federal financial assistance is obligated to draft Title VI guidance regarding LEP
persons that is specifically tailored to the agency’s recipients of Federal financial assistance. The
Department’s guidance for its recipients includes a discussion of LEP issues in correctional and
detention settings. See Guidance to Federal Financial Assistance Recipients Regarding Title VI
Prohibition Against National Origin Discrimination Affecting Limited English Proficient
Persons, 67 FR 41455 (2002). For further information, agencies are encouraged to review
Common Language Access Questions, Technical Assistance, and Guidance for Federally
Conducted and Federally Assisted Programs (Aug. 2011), available at
http://www.lep.gov/resources/081511_Language_Access_CAQ_TA_Guidance.pdf.
In NPRM Question 17, the Department solicited feedback on whether the standards
should require facilities to ensure that inmates with disabilities and LEP inmates be able to
communicate with staff throughout the entire investigative and response process. The final
standard clarifies that an agency must take appropriate steps to ensure equal opportunity to
participate in and benefit from all aspects of its efforts to prevent, detect, and respond to sexual
abuse and sexual harassment for inmates with disabilities, and take reasonable steps to ensure
meaningful access to inmates who are LEP. These requirements are consistent with agencies’
obligations under the ADA and related regulations, and provide sufficient protection to
individuals with disabilities and individuals who are LEP.
Under the ADA, the nature, length, and complexity of the communication involved, and
the context in which the communication takes place, are factors for consideration in determining
which “auxiliary aids and services,” including interpreters, are necessary for effective
communication. The ADA title II regulation lists a variety of auxiliary aids and services,
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including “video remote interpreting,” which may potentially afford effective communication.
Under the ADA title II regulation, however, in determining which types of auxiliary aids and
services are necessary for effective communication, the public entity is to give primary
consideration to the request of individuals with disabilities. See 28 CFR 35.160(b)(2);
35.160(b)(2)(d); 35.104 (Definitions – Auxiliary aids and services); Appendix A to Part 35,
Guidance to Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability in
State and Local Government Services.
Comments and Responses
Comment. The comments in response to the proposed standard were generally positive.
Most correctional agency commenters expressed support for the standard as written. Many
correctional stakeholders and inmate advocacy groups answered affirmatively to Question 17,
but other commenters observed that the ADA already requires facilities to accommodate inmates
with disabilities and therefore suggested that additional requirements were unnecessary.
Response. The Department recognizes the importance of ensuring that all inmates,
regardless of disability or LEP status, can communicate effectively with staff and are included in
each facility’s efforts to prevent sexual abuse. The final standard, in conjunction with the ADA,
Section 504, Title VI, and Federal regulations protecting the rights of individuals with
disabilities and LEP individuals, protects all inmates while providing agencies with discretion
over how to provide the requisite information and interpretation services. The final standard
does not, nor is intended to, go beyond what is required by the ADA, Section 504, or Title VI,
but the standard clarifies the agencies’ specific responsibilities with regard to PREA-related
matters and individuals who are LEP or who have disabilities.
Comment. One State correctional agency commended the goals of the proposed standard,
but expressed concern that ensuring implementation would be difficult due to the vast range of
communication issues that might present themselves.
Response. The Department appreciates that a range of communication issues are
implicated by this standard. With respect to inmates with disabilities, agencies are encouraged to
review the ADA Title II regulations and associated technical assistance materials for more
information addressing the broad spectrum of communication needs. See 28 CFR 35.160(b)(2);
35.160(b)(2)(d); and 35.104 (Definitions – Auxiliary aids and services); and The Americans with
Disabilities Act, Title II Technical Assistance Manual, Covering State and Local Government
Programs and Services (1993), available at http://www.ada.gov/taman2.html, at II - 7.0000-II7.1200. The agency can exercise its discretion regarding how to provide the required
information or interpretation for individuals who require additional communication services with
regard to PREA-related issues, including by choosing to provide services directly or working
with an outside entity to ensure effective communication with inmates with disabilities and
meaningful access for LEP inmates.
Comment. Some correctional agency commenters stated that the availability of
technology, internet services, and interpreters makes compliance with the standard very
reasonable, except in many rural facilities. The commenters further noted that major
metropolitan corrections facilities may detain people from 100 different cultures or countries.
These commenters requested that the Department offer interpretation services 24 hours a day,
rather than placing the burden on each facility individually. Many correctional stakeholders
stated that contracting with interpreters can be time-consuming and costly; some requested that
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agencies be required to comply only to the best of their abilities. On the other hand, several State
correctional agencies and local facilities noted that these services are already in place, and as
such there will be no additional costs associated with compliance.
Response. Numerous interpretation services are available throughout the country,
including telephone and internet providers that can accommodate the needs of small and rural
facilities. While the Department cannot provide these services to all agencies, the National
Resource Center for the Elimination of Prison Rape can provide technical assistance to help
agencies connect with an appropriate provider.30 Agencies retain the discretion to provide the
requisite services in the most appropriate manner for the specific facility and incident. With
regard to cost, the Department notes that all prisons and jails are subject to the ADA, and that all
State Departments of Corrections and many jails are subject to Title VI due to receipt of Federal
financial assistance. The requirements of this standard are informed by the ADA and Title VI; to
the extent entities are in compliance with those requirements, the Department does not anticipate
that additional costs will arise.
Comment. Some juvenile justice administrators suggested that the agency document the
actions it takes, including notes taken by interpreters. These commenters noted that agencies can
keep notes and records of their efforts, but cannot ensure that perfect communication has
occurred, even between a victim and investigator speaking the same language. An advocacy
group also recommended that the standards require documentation of the agencies’ efforts to
comply.
Response. The Department encourages agencies to keep accurate documentation of their
efforts to implement and comply with all of the PREA standards. Such documentation will
facilitate the auditing process and ensure accurate compliance assessments. While an agency
cannot ensure error-free communication in all instances, a valid policy that has clearly been
implemented to guide investigation protocols with regard to ensuring effective communication
for individuals with disabilities and meaningful access for individuals who are LEP should
satisfy the requirements of this standard, assuming that the agency keeps accurate
documentation.
Comment. Some advocacy groups recommended that the final standard include a
requirement to enter into a memorandum of understanding with agencies providing specific
assistance for LEP inmates, who may face significant language-related obstacles in navigating
facilities’ grievance and reporting processes.
Most correctional commenters who addressed this issue stated that the Department
should not require agencies to enter into formal agreements with outside entities to provide the
required services, but should allow agencies to determine for themselves whether such an
agreement would help ensure compliance. Other correctional commenters noted that such
agreements could be beneficial and should be encouraged, in order to ensure adequate
communication with LEP inmates; a few suggested such agreements, or attempts to enter into
them, should be mandated.
Response. The Department recognizes that many facilities would benefit from a formal
agreement or memorandum of understanding to ensure that LEP inmates can effectively
30

Some services may be available free of charge. For example, Video Relay Service (VRS) is a form of
Telecommunications Relay Service (TRS) that enables persons with hearing disabilities who use American Sign
Language to communicate with voice telephone users through video equipment, rather than through typed text. Like
all TRS calls, VRS is free to the caller. VRS providers are compensated for their costs from the Interstate TRS Fund,
which the Federal Communications Commission oversees. See http://www.fcc.gov/guides/video-relay-services.
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communicate. Indeed, many State correctional agencies noted that they already have these types
of agreements in place. Other facilities provide many communication services in-house or
through the agency; some rarely have a need for such services. Given the varying needs of
different facilities throughout the country, the Department determined that it is prudent to grant
the agencies the discretion to provide the requisite services in the manner most appropriate for
the specific facility or incident at issue.
Comment. A State correctional agency criticized the proposed standard for referencing
abuse hotlines as a possible method for LEP, deaf, or disabled inmates to report abuse without
relying on inmate interpreters. The commenter noted that such a hotline would do little for deaf,
hearing impaired, or LEP inmates, and further noted that, in its experience, inmate hotlines prove
expensive to operate and generate a large number of unfounded calls.
Response. The final standard no longer references abuse hotlines, and does not require an
agency to provide any specific type of interpretation or communication services. Agencies retain
the discretion to provide the requisite services in the manner most appropriate for the specific
facility or incident at issue, so long as agencies provide effective communication for inmates
with disabilities and meaningful access for LEP inmates.
Comment. Many advocacy groups stated that the standards should allow inmate
interpreters in adult facilities only in “exigent circumstances and with the expressed voluntary
consent of the inmate victim,” and should never allow resident interpreters to be used in juvenile
facilities. Some agency commenters, by contrast, suggested that inmate interpreters be allowed
if the inmate consents.
Response. The final standard requires that agencies not rely on inmate interpreters,
readers, or assistants “except in limited circumstances where an extended delay in obtaining an
effective interpreter could compromise the inmate’s safety, the performance of first-response
duties under § 115.64, or the investigation of the inmate’s allegations.” The intent of this
provision is to discourage the use of inmate assistance in investigations unless no other option is
available in a reasonable timeframe, and where timing is critical to prevent physical harm or to
reveal the facts. An inmate’s consent to utilizing another inmate as an interpreter does not
guarantee the accuracy of the interpretation. While the use of inmate interpreters ordinarily is
not an appropriate practice, the Department recognizes that in certain circumstances such use
may be unavoidable.
Comment. One State correctional agency recommended removing the term “sexual
harassment” from this standard, because it would apply to interactions between inmates. The
commenter suggested that because staff are trained in sexual violence in correctional settings,
and therefore recognize the influence such verbalizations play, instances of inmate-on-inmate
sexual harassment are best addressed through each facility’s reporting and investigation
processes, and should not be subject to additional regulations.
Response. To the extent that incidents are to be reported, as sexual harassment is,
inmates must be able to communicate effectively throughout the process, regardless of disability
or LEP status.
Comment. The American Jail Association, an association of county wardens, and a local
sheriff’s department recommended that the Department encourage jails without resources to
provide the required services to enter into memoranda of agreement with larger facilities to
house victims with disabilities or victims who are LEP.
Response. Given the varying needs of different facilities throughout the country,
agencies should be afforded discretion to provide the requisite services in the manner most
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appropriate for the specific facility or incident at issue. If an agency cannot provide the
necessary services to an inmate within its custody, the agency is not precluded from contracting
to house such an inmate in another, more appropriate facility. However, agencies should be
aware that ADA regulations provide that, “[u]nless it is appropriate to make an exception, a
public entity . . . [s]hall not deprive inmates or detainees with disabilities of visitation with
family members by placing them in distant facilities where they would not otherwise be housed.”
28 CFR 35.152(b)(2)(iv).
Comment. The National Disability Rights Network (NDRN), a nonprofit membership
organization consisting of federally mandated Protection and Advocacy (P&A) Systems and
Client Assistance Programs (CAP), provided extensive comments suggesting effective methods
for agencies to comply with the proposed standards. NDRN noted that the proposed standards
did not impose any new burdens or mandates on facilities, but rather reaffirmed the applicability
of existing accommodations. In order to meet their legal and constitutional obligations, NDRN
stated, confinement facilities must provide effective communication accommodations when a
need for such accommodations is known, based on requests from individual inmates as well as
other information sources. NDRN suggested several best practices for communicating with
special needs inmates, and recommended adopting “universal precautions” for communicating
with all inmates, such as using a sixth-grade reading level for written materials intended for
adults, and a third-grade reading level for confined juveniles. NDRN suggested, in addition to
restricting the use of other inmates as interpreters, that family members and acquaintances should
not be used as interpreters, except in emergency situations when no viable alternative option
exists, in order to protect the confidentiality, privacy, dignity, and safety of inmates, and to
ensure objectivity and fidelity of interpretation. NDRN also noted that each State has a
designated Protection & Advocacy office, which can be a resource for facilities on disability
issues, including how to provide accessible formats for inmate education and effective
communication accommodations during responses to and investigations of sexual abuse or
harassment reports.
Response. The Department appreciates the detailed suggestions for best practices
included in NDRN’s comment and encourages all agencies to consider implementing a variety of
strategies to ensure effective communication with all inmates. The National Resource Center for
the Elimination of Prison Rape will develop training modules and provide technical assistance to
help agencies educate staff concerning communication with inmates who are LEP and inmates
who have disabilities. While the Department allows the agencies the discretion to provide the
requisite services in the most appropriate manner for the specific facility or incident at issue, the
Department encourages agencies to reach out to community providers and State offices as
resources. As NDRN notes, each State has a federally mandated Protection & Advocacy office,
initially created pursuant to Developmental Disabilities Assistance and Bill of Rights Act of
1975, codified as amended at 42 U.S.C. 15001 et seq. These offices can serve as valuable
resources in helping facilities comply with the standards and with disability law more generally.
Comment. One State correctional agency recommended that the facilities establish an
early identification system as part of the reception process to “flag” inmates with disabilities and
inmates who are LEP, and then develop a tracking mechanism that ensures the designation
follows the inmate throughout his or her incarceration.
Response. In order to ensure proper communication for inmates who have disabilities or
are LEP, facilities will need to know which individuals require additional assistance. A formal
early identification system, as suggested by the commenter, is a promising method of managing
66

this information. Under the final standards, however, the agencies retain the discretion to
develop a system to provide the requisite services in the most appropriate manner for the specific
facility or individuals at issue, so long as effective communication for inmates with disabilities
and meaningful access for LEP inmates are provided.
Comment. One State correctional agency suggested extra time should be allotted for
agencies to come into compliance.
Response. The final standard requires each agency to provide communication and
information services that are consistent with the agency’s responsibilities pursuant to the ADA
and applicable regulations. Agencies may exercise discretion in how to provide such services,
but the Department declines to afford additional time to comply with an obligation that, in large
part, is already mandated by Federal law.
Comment. A group that advocates for people with mental illness noted that the proposed
standard was limited to protecting individuals with sensory disabilities but did not include
protections for individuals with psychiatric or intellectual disabilities. The commenter
recommended that the Department consider clarifying the proposed standard to ensure that
administrators understand that they must provide auxiliary aids and services to inmates with a
broader range of disabilities.
Response. The final standard clarifies that agencies must take appropriate steps to ensure
equal opportunity to participate in and benefit from all aspects of their efforts to prevent, detect,
and respond to sexual abuse and sexual harassment for inmates with disabilities, including those
with intellectual or psychiatric disabilities.
Hiring and Promotion Decisions (§§ 115.17, 115.117, 115.217, 115.317)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.16, 115.116, 115.216,
and 115.316) prohibited the hiring of anyone who has engaged in sexual abuse in an institutional
setting; who has been convicted of engaging in sexual activity in the community facilitated by
force, the threat of force, or coercion; or who has been civilly or administratively adjudicated to
have engaged in such activity. The proposed standard also required agencies to perform a
criminal background check on new hires and to run checks on current employees at least every
five years or have in place a system for otherwise capturing such information for current
employees. The proposed standard required agencies to ask about previous misconduct in any
applications, interviews, or self-evaluations, and provided that material omissions would be
grounds for termination. The proposed standard also provided that, unless prohibited by law, the
agency must provide information on substantiated allegations of sexual abuse or sexual
harassment involving a former employee upon receiving a request from an institutional employer
for whom such employee has applied to work.
Changes in Final Standard
The final standard is largely similar to the proposed standard, but makes several changes.
First, the final standard narrows its application to employees who may have contact with
inmates, but expands it to include contractors within its scope. Second, the final standard
encompasses attempts to engage in improper sexual activity, which is now defined more
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expansively as sexual activity that is “facilitated by force, overt or implied threats of force, or
coercion, or if the victim did not consent or was unable to consent or refuse.” Third, the final
standard requires agencies to consider any incidents of sexual harassment in making decisions
regarding employees and contractors, and to provide information regarding such incidents to
possible future institutional employers unless prohibited by law. Fourth, the final standard
clarifies that an agency need only ask applicants about their prior abuse history in applications or
interviews, rather than in both. Fifth, for juvenile facilities, the final standard requires a check of
any child abuse registry maintained by the State or locality in which the employee would work.
Comments and Responses
Comment. Several commenters noted that the prohibition of hiring and promoting
anyone with a history of sexual abuse may be too burdensome to implement, and may not be
necessary for staff who have no contact with inmates.
Response. The final standard exempts staff who do not have contact with inmates, in
order to focus agencies’ efforts on the relevant set of employees.
Comment. Several commenters noted that contractors were not included in this standard.
Response. The Department agrees that this standard should address contractors who have
contact with inmates and has revised it accordingly.
Comment. Several commenters recommended adding convictions or restraining orders
for domestic violence offenses to this list of prior actions that would preclude employment.
Response. The Department agrees that agencies should have policies addressing a history
of domestic violence in relation to employment and promotions. However, given the wide range
of factual circumstances, varied State and local statutory definitions, and the lack of a clear
nexus to sexual abuse in correctional settings, the Department has declined to expand the
prohibition as suggested. By contrast, the Department has added to the final standard a
requirement that the agency check any child abuse registry maintained by the State or locality in
which the employee would work. This added requirement is appropriate for applicants to work
in juvenile facilities due to the unique nature of these facilities, and the particular need to
safeguard this population.
Comment. One commenter noted that sexual abuse can occur in institutional settings
other than corrections or detention facilities, and that the standard should clarify that such abuse
is covered.
Response. The Department agrees that sexual abuse that occurs in other custodial
situations should be included in this standard. Accordingly, the final standard refers to sexual
abuse in a prison, jail, lockup, community confinement facility, juvenile facility, or other
“institution,” as that term is defined in the Civil Rights of Institutionalized Persons Act (CRIPA),
42 U.S.C. 1997 et seq. Beyond correctional and pretrial detention facilities, CRIPA defines
“institution” to include State facilities for persons who are mentally ill, disabled, or retarded, or
chronically ill or handicapped; residential care or treatment facilities for juveniles; and facilities
that provide skilled nursing, intermediate or long-term care, or custodial or residential care. See
42 U.S.C. 1997(1).
Comment. Several commenters recommended that the standard’s prohibition on hiring
include prior incidents of sexual harassment as well as sexual abuse.
Response. Sexual harassment can include a wide range of behaviors, and incidents are
often addressed without criminal, civil, or administrative adjudication, making verification
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difficult. Therefore, the Department has not revised the standard to include an absolute
prohibition on hiring or promotions of persons who have engaged in sexual harassment. The
final standard does, however, require that an agency consider any incidents of sexual harassment
in determining whether to hire or promote anyone, or to enlist the services of any contractor, who
may have contact with inmates. For similar reasons, the Department has also added a
requirement that agencies provide other institutional employers with information on
substantiated incidents of sexual harassment—the proposed standards referenced only sexual
abuse—unless prohibited by law.
Comment. One commenter requested clarification regarding the scope of the “criminal
background check” referenced in the proposed standard.
Response. At a minimum, agencies should access the standardized criminal records
databases maintained and widely used by law enforcement agencies. The final standard clarifies
this requirement by referring to a “criminal background records check.”
Comment. One commenter recommended that the standard require contacting prior
institutional employers not only to learn about substantiated allegations of sexual abuse, but also
to inquire about resignations during a pending investigation into an allegation of sexual abuse.
Response. The Department agrees with this suggestion, and has incorporated the
requirement into the standard.
Comment. Several commenters suggested that criminal background record checks for
employees should occur more frequently than once every five years and should be required for
promotions as well. Correctional agency commenters, however, expressed concern that
increasing criminal background record checks would impose an excessive burden. One
commenter suggested that if criminal background record checks are not required to occur more
frequently than once every five years, then the final standard should mandate that agencies
require staff members to report any incident of sexual abuse that they have committed.
Response. The Department concludes that the proposed standard appropriately balanced
the need for criminal background record checks with the concerns regarding the burden of
carrying out this requirement. The Department agrees that an affirmative staff reporting
requirement would be beneficial, and has revised the standard accordingly.
Upgrades to Facilities and Technologies (§§ 115.18, 115.118, 115.218, 115.318)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.17, 115.117, 115.217,
and 115.317) required agencies to take into account how best to combat sexual abuse when
designing or expanding facilities and when installing or updating video monitoring systems or
other technology.
Changes in Final Rule
The Department is adopting the regulation as proposed.
Comments and Responses

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Comment. One commenter suggested that the regulation should affirmatively prohibit an
agency from making any changes that would diminish its ability to protect inmates from sexual
abuse.
Response. Improving agency performance in combating sexual abuse should be an
important goal when making any physical changes or adopting new technology. However, a
change may be offset by an agency intending to use other methods to combat sexual abuse (e.g.,
a physical change made in conjunction with increased staff supervision). The commenter’s
concern is further addressed in the requirements in §§ 115.13, 115.113, 115.213, and 115.313 to
conduct assessments of physical layout and technology as part of an overall review of
supervision and monitoring in conjunction with other contributing factors.
Comment. A commenter requested clarification as to the documentation requirements
concerning this regulation.
Response. The regulation does not entail a regular separate reporting requirement, but
issues concerning physical layouts and technology should be addressed as appropriate in
assessments required under §§ 115.13, 115.113, 115.213, 115.313, and §§ 115.88, 115.188,
115.288, 115.388. Agencies may demonstrate compliance through a variety of means—e.g.,
through planning meeting minutes, statements of work, design specifications, or contracting
documents.
Comment. One commenter would have the regulation require agencies to use videomonitoring as a deterrent to sexual abuse and an aid to prosecutions. Another commenter noted
that a mandate to use video technology would be cost-prohibitive.
Response. As discussed in greater depth in its responses to comments regarding
§ 115.13, the Department agrees that video technology can be extremely helpful, yet is also
sensitive to the cost of mandating such technology.
Evidence Protocol and Forensic Medical Examinations (§§ 115.21, 115.121, 115.221,
115.321)
Summary of Proposed Rule
The standard contained in the proposed rule required agencies responsible for
investigating allegations of sexual abuse to adopt an evidence protocol to ensure all usable
physical evidence is preserved for administrative or criminal proceedings, based on the
Department of Justice’s Office on Violence Against Women publication, “A National Protocol
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” (SAFE Protocol), or
similarly comprehensive and authoritative protocols published after 2011.
The proposed standard expanded the NPREC’s recommendation by requiring access to
exams not only in cases of penetration but whenever evidentiarily or medically appropriate. For
example, if an inmate alleges that she was strangled in the course of a sexual assault that did not
result in penetration, a forensic exam might provide evidence to support (or refute) her
contention.
The proposed standard took into account the fact that some agencies are not responsible
for investigating alleged sexual abuse within their facilities and that those agencies may not be
able to dictate the conduct of investigations conducted by outside entities. In such situations, the
proposed standard required the agency to inform the investigating entity about the standard’s
requirements with the hope that the investigating entity will look to the standard as a best70

practices guideline. In addition, the standard applied to any outside State entity or Department of
Justice component that investigates such allegations.
In all settings except lockups, the proposed standard required that the agency offer all
sexual abuse victims access to a person either inside or outside the facility who can provide
support to the victim. Specifically, the proposed standard required that the agency make
available to the victim either a victim advocate from a community-based organization that
provides services to sexual abuse victims or a “qualified agency staff member,” defined as a
facility employee who been screened for appropriateness to serve in this role and has received
education concerning sexual assault and forensic examination issues in general.
Changes in Final Rule
The final standard instructs facilities to use a Sexual Assault Nurse Examiner (SANE) or
Sexual Assault Forensic Examiner (SAFE) where possible to perform the exams. Facilities in
areas where there is not a SANE or SAFE available must document their efforts to provide
SAFEs or SANEs and then provide other qualified medical professionals.
The final standard specifies the use of a developmentally appropriate protocol where the
victim is a prepubescent minor, and clarifies that the protocol used in adult facilities shall be
developmentally appropriate for youth, where applicable.
The final standard also recognizes the unique role of rape crisis center advocates in
supporting victims throughout the forensic examination and investigatory interviews.
Recognizing that many facilities are in rural areas where there may not be a rape crisis center
available or where the rape crisis center may lack the resources to assist the facility, the standard
requires an agency to document its efforts to secure advocacy services from a rape crisis center.
If it fails to obtain such services in spite of reasonable efforts, it may provide either a qualified
agency staff member or a qualified community-based organization staff member. Particularly in
rural areas, there often are community-based organizations that, while not focused on rape crisis
services, may provide similar social services, such as general counseling services or advocacy,
counseling, and supportive services to victims of domestic violence. Individuals from these
organizations may not have the training and expertise that individuals from a rape crisis center
have to serve victims, but in the absence of available rape crisis services, they may still be a
useful source of outside support for victims, some of whom may be reluctant to trust agency
staff. In the case of community-based organizations or agency staff, the final standard requires
that the staff person serving in the support role be screened for appropriateness and receive
education concerning sexual assault and forensic examination issues in general. Ideally, the staff
person would receive the same training as that required for victim advocates in the State, which
is usually a forty-hour training and is offered by many State sexual assault coalitions, usually
several times throughout the year and at a reasonable cost. A list of coalitions is available on the
website of the Department’s Office on Violence Against Women at
http://www.ovw.usdoj.gov/statedomestic.htm.
To the extent the agency itself is not responsible for investigating allegations of sexual
abuse, the final standard requires the agency to request that the investigating entity follow the
relevant investigatory requirements set out in the standard.
For lockups, the final standard adds a requirement that if the victim is transported to an
outside hospital for forensic examinations and that hospital offers advocacy services, the
71

detainee shall be allowed to use the services to the extent available, consistent with security
needs.
Comments and Responses
Comment. Many advocacy groups commented that the SAFE Protocol is not appropriate
for prepubescent minors.
Response. For this reason, the final standard specifies the use of a protocol that is
“developmentally appropriate for youth” and based on the National Protocol only “as
appropriate.”
Comment. Some groups recommended specifying in the standard that the protocol for
prepubescent minors must include such specific topics as policies and procedures for mandatory
reporting, consent to treatment, parental notification, and scope of confidentiality.
Response. The Department recognizes that these topics are important in responding to
sexual abuse in all settings. However, the Department believes that knowledge of these topics,
which are often governed by State laws, should be a prerequisite for qualification as an examiner
rather than a mandatory part of the protocol. Accordingly, the Department has not made this
change.
Comment. Many victim advocacy groups recommended that the Department require the
use of SANEs or SAFEs because they are best qualified to provide a proper forensic
examination. Some specifically recommended a protocol that includes transport to facilities that
perform exams through SANEs or SAFEs or a requirement that an agency document its decision
whether to transport victims outside or perform the examination internally.
Response. The final standard recognizes that the state of the art in sexual assault forensic
examinations is to utilize a specially trained and certified examiner, such as a SANE or SAFE, to
perform the exams. SANEs and SAFEs have specialized training and experience so that they are
more sensitive to victim needs, and are highly skilled in the collection of evidence, resulting in
more successful prosecutions. Accordingly, the final standard instructs facilities to use SANEs
or SAFEs where possible, while recognizing that they may not always be available. The
Department does not believe it is necessary to dictate to facilities how to utilize SANEs or
SAFEs or to impose additional documentary requirements beyond documenting their efforts to
make SANEs or SAFEs available.
Comment. Two other such groups specifically recommended the Sexual Assault
Response Team (SART) model for response during the exam as well as the use of
SANEs/SAFEs.
Response. As discussed above, the final standard instructs facilities to use SANEs or
SAFEs where possible. Although the final standard does not specifically require the SART
model for response, § 115.64 requires agencies to follow specific first responder duties to protect
the victim and preserve evidence and § 115.65 requires agencies to develop a written
institutional plan to coordinate actions taken in response to an incident of sexual abuse among
staff first responders, medical and mental health practitioners, investigators, and facility
leadership. These standards will help ensure an appropriate response to sexual assault incidents,
while preserving agency discretion to coordinate such responses in the manner best suited to the
particular situation.
Comment. One inmate commented that the exams should be performed by an outside
medical practitioner.
72

Response. The Department believes that the choice of an internal or outside practitioner
is less important than making an effort to obtain the services of a SANE/SAFE and otherwise
providing a qualified medical practitioner. Accordingly, the Department does not mandate the
use of an outside practitioner.
Comment. One correctional association and one State sheriffs’ association expressed
concerns about the cost of paying for the exams, particularly for jails that would have to pay an
outside entity.
Response. Under the Violence Against Women Act (VAWA) of 1994, as reauthorized in
2006, all States must certify as a condition of certain formula grant funding that victims of sexual
assault have access to a forensic medical examination regardless of the decision to cooperate
with the criminal justice system and that the State or another governmental entity bears the full
out of pocket costs of such exams. See 42 U.S.C. 3796gg-4. This certification requirement
applies throughout the entire State, including to victims who are incarcerated. All States,
pursuant to their receipt of funds through the STOP Violence Against Women formula grant
program, are required to cover the costs of the exams, including exams for victims in
correctional facilities. The Department encourages States and correctional agencies to work
together to craft effective strategies for funding and administering these examinations. A list of
the administering agencies for each State for the formula grant funding, which should have
information about the payment mechanism, is available on the Department’s website at
http://www.ovw.usdoj.gov/stop-contactlist.htm.
Comment. One State correctional agency noted that it is in compliance with the current
SAFE Protocol, but that it is a guideline for suggested practices, rather than a list of
requirements.
Response. This is the correct understanding of the SAFE Protocol, which is a tool to be
used for developing individual protocols. The Department will be soon issuing a companion to
the SAFE Protocol that will specifically assist correctional facilities in adapting the SAFE
Protocol to their needs.
Comment. One sheriff’s office expressed concern that the use of the SAFE Protocol
could be a moving target if agencies were required to comply with updates.
Response. As discussed above, the SAFE Protocol is a guideline for best practices, rather
than a list of requirements.
Comment. A number of advocacy organizations and inmates expressed concerns with the
use of “qualified staff” to serve in an advocacy role. Concerns included lack of inmate trust in
staff, including fear of staff bias against inmates who are lesbian, gay, bisexual, transgender, or
intersex (LGBTI); conflict between security and support roles; lack of sufficient time to spend
with the victim; and confidentiality. Specific recommendations included using a qualified staff
member only when no rape crisis center is available; documenting efforts to enter into
agreements with rape crisis centers; screening staff for appropriateness to serve in the role of a
support person, including assessing whether the staff member has a nonjudgmental attitude
toward sexual assault victims and LGBTI individuals; ensuring round-the-clock coverage;
providing the staff member the full forty hours of training that most rape crisis center advocates
are required to receive; and providing the staff member opportunities to debrief experts in the
victim advocacy field. Some advocacy groups suggested that it was inconsistent for this
standard to allow the use of qualified staff members to perform these functions, given that a
separate standard required agencies to attempt to enter into memoranda of understanding with
community groups to provide confidential emotional support services related to sexual abuse.
73

These commenters recommended that a “qualified staff member” be allowed to serve as a victim
advocate only where the agency has not been able to enter into an agreement with a communitybased agency to provide such services.
Some correctional agencies supported the decision to allow for a qualified staff person,
but others expressed concerns over the cost of training and supervising such staff.
Response. After considering the wide range of comments, the Department has decided to
require agencies to attempt to make available a rape crisis center advocate, which the final
standard defines as “an entity that provides intervention and related assistance, such as the
services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages.”31 The
Department is sensitive to concerns that inmate victims may be reluctant to confide in a
“qualified staff member” from the agency due to real or perceived bias and fear of retaliation. In
addition, the Department believes that an advocacy organization that is specifically dedicated to
providing assistance to victims of sexual abuse is best suited to address victims’ needs. A victim
will most benefit from a trained, confidential support person, who can focus on the victim and to
whom the victim will feel safe talking. However, the Department recognizes that a rape crisis
center advocate will not always be available, whether due to geographic distance or simply
because the local rape crisis center lacks sufficient resources to serve the facility. If so, the
agency has the option of using either staff from other community-based agencies or qualified
agency staff, as long as such persons have been screened for appropriateness to serve in this role
and the agency has documented its attempts to secure services from a rape crisis center. Other
“community-based agencies” may include any entity—such as faith-based groups, non-profit
organizations, or community counseling services—that can provide appropriate victim assistance
when a rape crisis center is not available. In addition, although the final standard does not
mandate a specific number of training hours, it requires that agencies ensure that the victim
advocate has received education concerning sexual assault and forensic examination issues in
general. The Department recognizes that these precautions will not allay all concerns regarding
use of a person who is not a rape crisis center advocate, but anticipates that these safeguards will
help ensure that these options are available as a backstop where such an advocate is truly
unavailable. In providing two fallback options, the Department entrusts agencies with discretion
to utilize whichever option provides the most effective and timely assistance to the victim.
With regard to training, the Department encourages agencies to draw upon outside
expertise. Even in the absence of local rape crisis centers, each State has a State Sexual Assault
Coalition, which may be a useful resource in developing screening tools and training. Many
coalitions will be able to provide the forty-hour advocate training for a reasonable cost to facility
31

42 U.S.C. 14043g(b)(2)(C) specifies the following services:
(i) 24-hour hotline services providing crisis intervention services and referral;
(ii) accompaniment and advocacy through medical, criminal justice, and social support systems, including
medical facilities, police, and court proceedings;
(iii) crisis intervention, short-term individual and group support services, and comprehensive service
coordination and supervision to assist sexual assault victims and family or household members;
(iv) information and referral to assist the sexual assault victim and family or household members;
(v) community-based, linguistically and culturally specific services and support mechanisms, including
outreach activities for underserved communities; and
(vi) the development and distribution of materials on issues related to the services described in clauses (i)
through (v).
74

personnel. A list of coalitions is available on the website of the Department’s Office on
Violence Against Women at http://www.ovw.usdoj.gov/statedomestic.htm.
Comment. One agency commenter construed the draft standard to require a qualified
staff person to be employed by the facility where the incident occurred.
Response. The final standard refers to a “qualified agency staff member,” making clear
that the staff member need not work at the facility where the incident occurred.
Comment. One commenter suggested that the National Resource Center for the
Elimination of Prison Rape make available an approved curriculum to assist individuals in
becoming qualified staff members.
Response. The Resource Center will do so.
Comment. Some commenters expressed uncertainty regarding the meaning of the phrase
“during the investigatory process.”
Response. For clarification, this phrase has been changed to “during investigatory
interviews.”
Comment. One correctional agency expressed concern that the standard would hold it
responsible for the actions of an outside individual over whom they have no authority.
Response. This concern is misplaced: The agency is not responsible for the actions of the
victim advocate—only for making one available to the victim. The Department recommends
that agencies enter into an agreement with a rape crisis center that describes the scope of the
services and the terms of their relationship.
Comment. One sheriff’s office suggested separating this standard into separate
components for criminal and administrative investigation.
Response. The Department has not made this change, because the references to
investigations in the standard apply to either criminal or administrative investigations. If the
agency is responsible for either type of investigation, it would be required to follow this
standard. If it is not responsible for any investigations, and the responsible entity is a State
agency or Department component, the State entity or Department component would be
responsible. If the agency is not responsible for any type of investigation and the responsible
entity is not a State agency or Department component—i.e., another local entity is responsible—
then the agency would notify the responsible entity of the requirements of this standard.
Comment. Some correctional agencies expressed concern about the requirements in
paragraphs (f) and (g) regarding outside entities that investigate sexual assault cases because the
agencies do not control such entities.
Response. This standard does not require agencies to exert control over such outside
entities. Paragraph (g) separately regulates State agencies that investigate these crimes;
paragraph (f) requires only that correctional agencies that do not conduct such investigations
notify the entity that does. Other than the obligation to notify, the standard does not require a
local agency to take any affirmative steps to ensure the compliance of the other entities.
Comment. One correctional agency requested clarification regarding the provision that
this standard applies to any “State entity” outside of the correctional agency that is responsible
for investigating allegations of sexual abuse in institutional settings.
Response. The reference to “State entity” is meant to include any relevant division of the
State government, as opposed to local government entities.
Comment. One correctional agency requested clarification regarding the meaning of
“these policies” referenced in paragraph (f).
75

Response. The final standard clarifies that this refers back to the requirements of
paragraphs (a) through (e).
Comment. Numerous victim advocacy organizations and organizations advocating for
the rights of inmates recommended that the proposed standard be revised to require lockups to
provide a victim advocate or qualified staff member. These commenters stated that victims in
lockups should have the same access to advocates as victims in the other types of facilities.
Response. The Department declines to amend the proposed standard to mandate this
requirement for lockups, largely for reasons stated in the NPRM. First, because lockups are
leanly staffed, complying with this requirement could well require the hiring of an additional
staff person. Second, there is little evidence of a significant amount of sexual abuse in lockups
that would warrant such expenditure. Third, lockup inmates are highly transient, and thus, in
some cases, victims of sexual abuse already will have been transferred to a jail before the
forensic exam can be conducted.
Because lockups do not have on-site medical services, a victim would be taken to the
hospital for exams. In § 115.121(d), the final standard includes language specifying that, after
reaching the hospital, such victims must have the same access to advocates as other victims,
barring any security risks.
Comment. NPRM Question 18 asked whether the standards adequately provide support
for victims of sexual abuse in lockups upon transfer to other facilities, and if not, how the
standards should be modified. The majority of correctional organizations were satisfied that the
standards addressed the needs of victims in lockups. Additional comments are discussed below.
Comment. One State correctional agency noted that some tribes use lockups for longerterm court orders, which may raise additional concerns.
Response. Except to the extent that tribes contract with State or local facilities to house
non-tribal inmates, this rule does not apply to tribal facilities. With regard to confinement
facilities in Indian country, BIA, like other Federal agencies whose operations involve
confinement facilities, will work with the Attorney General to issue rules or procedures that will
satisfy the requirements of PREA.
Comment. Some correctional organizations recommended that the standard specify that
the processing of the inmate to a larger facility should be expedited in order to ensure access to
the services available at the larger facility.
Response. While the Department certainly supports this goal, such expedited treatment
may not always be feasible—and should not be attempted if doing so delays the provision of
medical care at hospitals or other offsite treatment centers.
Comment. One State expressed the view that a lockup should be responsible for aiding a
detainee who is victimized in the lockup, even if the victim has been subsequently transferred to
another facility.
Response. As a practical matter, it is not feasible to require a lockup to provide support
to a victim who is confined elsewhere. To the extent the concern is over who pays for the
victim’s care, it is best left to the individual States and localities to determine whether and how
to require a shifting of costs.

76

Policies to Ensure Referrals of Allegations for Investigations (§§ 115.22, 115.122, 115.222,
115.322)32
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.23, 115.123, 115.223,
and 115.323) mandated that each agency have in place a policy to ensure that allegations of
sexual abuse or sexual harassment are investigated by an agency with the legal authority to
conduct criminal investigations. The standard mandated that the policy be published on the
agency’s website, or otherwise made available, and, if a separate entity is responsible for
investigating criminal investigations, that the publication delineate the responsibilities of the
agency and the investigating entity. The standard also required that that any State entity or
Department of Justice component that conducts such investigations have in place policies
governing the conduct of such investigations.
Changes in Final Rule
The final standard contains no substantive changes, although it adds language that makes
explicit what was implicit in the proposed standard: “The agency shall ensure that an
administrative or criminal investigation is completed for all allegations of sexual abuse and
sexual harassment.”
Comments and Responses
Comment. Some commenters recommended that the Department restore the NPREC’s
recommendations that agencies attempt to enter into memoranda of understanding with outside
investigative agencies and with prosecutorial agencies.
Response. The Department recognizes that such memoranda of understanding have
benefited certain agencies, and encourages agencies to explore the viability of attempting to enter
into such agreements. However, due to burden concerns, the Department does not believe that
the standard should require agencies to make such efforts. In comments submitted in response to
the ANPRM, a number of agency commenters expressed concern that a standard requiring
agencies to enter into memoranda, as the NPREC had recommended, would impose significant
burdens, especially in State systems where investigations and prosecutions are conducted by
numerous different agencies at the county or municipal level. In light of these concerns, the
Department declines to revise the standard to mandate attempts to enter into such memoranda.
Comment. A few agencies commented that the requirement to ensure completion of an
investigation is duplicative because many agencies already require the investigation of any crime
that occurs.
Response. To the extent that an agency has such a policy, the requirement should not
require extra effort to implement.

32

The standard numbered in the proposed rule as §§ 115.22, 115.222, and 115.322, titled “Agreements with outside
public entities and community service providers,” has been deleted and its contents, as modified, have been moved
to §§ 115.51, 115.53, 115.251, 115.253, 115.351, and 115.353.
77

Comment. Some agency commenters expressed concern that the standard required
allegations of sexual harassment to be forwarded on to an outside agency to conduct criminal
investigations even if the allegation does not rise to the level of criminal conduct.
Response. This concern is misplaced. As stated in paragraph (b) of the relevant sections,
there is no need to refer an investigation to an outside criminal investigation agency if the
allegation does not involve potentially criminal behavior.
Comment. One commenter asserted that local agencies must be allowed to promptly
address sexual harassment complaints and not send complaints to outside agencies.
Response. As noted above, agencies need not refer an investigation to an outside
criminal investigation agency if the allegation does not involve potentially criminal behavior.
And even if criminal behavior is alleged, the agency may still take administrative action during
the pendency of a criminal investigation.
Comment. Some agency commenters objected to the requirement that agency websites
describe the responsibilities of both the confining agency and (where different) the agency
investigating allegations of abuse. A small number of such commenters noted that they did not
have a website and lacked the resources or support to develop one, and some asked if the policy
must be presented in full.
Response. The final standard allows agencies without a website to make the information
available by other means, which should facilitate full publication of the policy.
Comment. A few agencies objected that it was outside their agency’s authority to publish
any information describing the responsibilities of another agency.
Response. The Department does not agree with the assertion that an agency lacks the
authority to explain what responsibilities it bears, and what investigatory responsibilities will be
carried out by an outside agency.
Comment. A commenter recommended revising the standard from “[t]he agency shall
have in place a policy to ensure that allegations of sexual abuse . . . are investigated by an agency
with the legal authority to conduct criminal investigations” to “[t]he agency shall have in place a
policy to ensure that allegations of sexual abuse . . . are referred to an agency with the legal
authority to conduct criminal investigations.”
Response. The Department has adopted this change, and § 115.22(b) now requires
agencies to have a policy to ensure that allegations are “referred for” investigation by an agency
with the legal authority to conduct criminal investigations.
Comment. Some agencies expressed concern that they would be responsible for
monitoring the compliance of an outside entity’s investigation, noting that they did not typically
have control over the manner in which law enforcement conducts investigations.
Response. As the amended text makes clear, agencies are responsible only for referring
the investigation to the outside entity, not for monitoring the outside entity’s investigation.
Comment. One State correctional agency commented that proposed standard § 115.23(a)
would be impossible to implement because criminal investigation entities in its State lack
sufficient funding to take on the volume of investigations. The commenter asserted that it would
be impossible to divide investigations between law enforcement and the correctional agency at
the beginning of a case because it is often difficult to predict, at the outset of an investigation,
whether evidence of criminal behavior will be obtained. Another agency commenter objected to
the requirement that it determine whether behavior was “potentially criminal” because, in its
view, such a determination can be made only by prosecutors and courts.
78

Response. As the amended standard makes clear, a correctional agency’s sole
responsibility is to refer allegations of potentially criminal behavior to entities with the authority
to investigate criminal matters. An agency need not definitively determine whether behavior is
actually criminal; it need only refer allegations of potentially criminal behavior to the appropriate
law enforcement agency. The Department is confident that the ability to determine whether an
allegation might involve criminal acts is well within the competence of agency officials.
Comment. A private individual recommended that criminal investigations be conducted
by outside agencies, and that inmates have the opportunity to appeal the results of these
investigations.
Response. The standard requires agencies to refer investigations regarding potentially
criminal behavior involving sexual abuse or sexual harassment to an agency with the legal
authority to conduct criminal investigations. State or local law may dictate which entity has the
legal authority to conduct such investigations, and it would not be appropriate for the standards
to require that an outside jurisdiction conduct such investigations. With regard to criminal
investigations, alleged victims of crimes do not ordinarily have the right to appeal the results of
criminal investigations, and the Department declines to revise the standard to mandate such a
right here.
Comment. A number of advocates noted that delay can result where multiple
investigations are not well coordinated, and recommended requiring that facilities establish clear
responsibilities when overlapping investigations occur, so that staff members understand their
roles and how to collaborate with other agencies to ensure timely resolution of all investigations.
Specifically, they recommended adding the following language to the standard: “The agency
shall coordinate internal investigations of alleged sexual abuse and sexual harassment with any
external investigations by law enforcement, child protective services, or other entities charged
with investigating alleged abuse. The agency shall establish an understanding between
investigative bodies with overlapping responsibilities so that staff have a clear understanding of
their roles in evidence collection, interviewing, taking statements, preserving crime scenes, and
other investigative responsibilities that require clarification.”
Response. The Department recognizes the importance of coordinating investigations.
However, the Department concludes that details of how to coordinate investigative efforts most
effectively are best left to the agencies involved, and do not warrant specific reference within the
standards.
Comment. One stakeholder suggested removing sexual harassment from the ambit of this
standard, while a number of other commentators suggested adding sexual harassment to sections
of the proposed standards that referenced only sexual abuse.
Response. Although PREA does not reference sexual harassment, it authorizes the
NPREC, and by extension the Attorney General, to propose standards relating to “such other
matters as may reasonably be related to the detection, prevention, reduction, and punishment of
prison rape.” 42 U.S.C. 15606(e)(2)(M). Referencing sexual harassment in certain standards is
appropriate to combat what may be a precursor to sexual abuse. Upon reconsideration, the
Department has added sexual harassment to the portions of the standard that reference policies of
State entities and Department of Justice components, in order that these provisions parallel the
remainder of the standard.
Comment. Two agencies expressed uncertainty as to the meaning of “State entity” in the
proposed standard, and suggested adding a specific definition.
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Response. The reference to “State entity” is meant to refer to any division of the State
government, as opposed to local government. The Department does not believe that a definition
is necessary.
Employee Training (§§ 115.31, 115.131, 115.231, 115.331)
Summary of Proposed Rule
The standard contained in the proposed rule required that all employees who have contact
with inmates receive training concerning sexual abuse in facilities, including specified topics,
with refresher training to be provided on an annual basis thereafter. The proposed standard
included all training topics proposed by the NPREC, and added requirements that training be
provided on how to avoid inappropriate relationships with inmates, that training be tailored to the
gender of the inmates at employees’ facilities, that training cover effective and professional
communication with LGBTI residents, and that training in juvenile facilities be tailored to the
juvenile setting.
The proposed standard required that agencies document that employees understand the
training they have received, and that all current employees be trained within one year of the
effective date of the PREA standards.
In lockups, the proposed standard, consistent with the NPREC’s corresponding standard,
did not specify training requirements beyond requiring that the agency train all employees and
volunteers who may have contact with lockup detainees to be able to fulfill their responsibilities
under agency sexual abuse prevention, detection, and response policies and procedures, and to
communicate effectively and professionally with all detainees.
Changes in Final Rule
The Department has added language in §§ 115.31(a)(10), 115.131(a)(6), and
115.231(a)(10), and made conforming changes to § 115.331(a)(10), to require relevant staff
training in all facilities on laws related to the mandatory reporting of sexual abuse to outside
authorities.
The final standard adds sexual harassment to paragraphs (a)(2),(a)(4), (a)(5), and (a)(6),
which previously referenced only sexual abuse, and adds “gender nonconforming inmates” to
paragraph (a)(9), which previously referenced only LGBTI inmates.
In an effort to reduce the costs associated with providing training, the Department has
reduced the required frequency of staff “refresher training” from annual to every two years,
while adding a requirement that “refresher information” be provided to staff in the years in
which they do not receive training.
Comments and Responses
Comment. Most agency commenters responded positively to the staff training standards,
with some stating that that they were already in compliance. A number of agency commenters
identified concerns with the cost of development and the frequency of required training. Other
commenters expressed concern specifically with regard to the costs associated with providing
training on effective communication with LGBTI inmates.
80

Response. The Department’s National Resource Center for the Elimination of Prison
Rape intends to develop training tools for use by all types of correctional agencies. Therefore,
costs for training development should not be burdensome, and agencies should be able to
integrate this training into their training protocols in a cost-effective manner. In response to
comments regarding the frequency of refresher training, the Department modified the
requirement so that agencies need provide such training only every two years, which will reduce
the cost of such training. However, the Department notes that such refresher training is quite
valuable: In addition to helping ensure that staff know their responsibilities and agency policies,
the periodic repetition of this training will foster the development of an agency and facility
culture that prioritizes efforts to combat sexual abuse.
Comment. Advocate and former inmate commenters requested increased and specific
training for staff on effective and professional communication with all inmates, and specifically
with LGBTI and gender nonconforming inmates.
Response. The final standard requires staff to receive training in effective and
professional training with inmates in general, and specifically with respect to LGBTI and gender
nonconforming inmates. The Department does not believe that the standard itself need provide
greater detail regarding the precise contours of such training. Rather, the Department expects
that agencies will learn from each other and will adapt the Resource Center’s training materials
as needed.
Comment. Some commenters recommended that the standard require training of all
employees rather than, as in the proposed standard, only employees who may have contact with
inmates.
Response. While agencies are free to train all employees, the Department reaffirms its
determination that it would not be appropriate for the standard to require agencies to train
employees who have no documentable inmate contact.
Comment. Some commenters requested that training be expanded to include sexual
harassment in addition to sexual abuse.
Response. The Department has added sexual harassment to certain training requirements,
where particularly relevant. Specifically, the final standard requires training on inmates’ right to
be free from retaliation for reporting sexual harassment, the dynamics of sexual harassment in
confinement, and the common reactions of sexual abuse and sexual harassment victims. Adding
sexual harassment to these training categories, which in the proposed standard referenced only
sexual abuse, is unlikely to increase costs and may help combat what is often a precursor to
sexual abuse.
Comment. An advocate commenter recommended that staff receive training on how
histories of sexual abuse and domestic violence affect women. Additionally, one agency
commenter suggested that all training should be “gender informed.” Various other commenters
expressed concern that gender-specific training would be interpreted to mean that training should
be tailored solely to the gender of the inmates in the employee’s current work assignment, which
these commenters stated could be problematic if the employee is later reassigned. Instead, they
requested that all staff be trained on the gender-specific needs of both genders with regard to
sexual abuse.
Response. The proposed standard already mandated training on these topics, by requiring
training on the dynamics of sexual abuse in confinement and the common reactions of sexual
abuse victims, and by requiring that training be tailored to the gender of the inmates at the
employee’s facility. The final standard retains these requirements, and clarifies the last provision
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by requiring that staff transferring between gender-specific facilities receive gender-appropriate
training. Requiring gender-specific training is unlikely to complicate employee transfers; it
should not prove burdensome for an employee transferring from a male facility to a female
facility, or vice versa, to undergo a training module related to the needs of the population at the
staff member’s new facility.
Comment. Some advocate commenters recommended that agencies be required to use
the incident review process to make adjustments to training curriculums.
Response. While the Department agrees that incident reviews may be instructive as to
training needs, it does not believe it is necessary to mandate such a connection. Instead, the
Department leaves the issue to the discretion of agency officials.
Comment. A rape crisis center recommended that agencies partner with local rape crisis
centers to provide the most current training materials regarding sexual abuse.
Response. The Department encourages such linkages, but declines to mandate them.
Such a mandate could be difficult for certain agencies to comply with, depending upon the
availability and interest of local rape crisis centers.
Comment. Several advocacy groups proposed requiring that staff be trained in State
mandatory reporting laws.
Response. The Department agrees, and has added a requirement in §§ 115.31(a)(10),
115.131(a), and 115.231(a)(10) that staff be trained in how to comply with relevant laws relating
to mandatory reporting of sexual abuse to outside authorities. The Department has modified the
analogous requirement under § 115.331(a)(10) for consistency. Jurisdictions must determine
their responsibilities under applicable laws and train staff accordingly.
Comment. Many commenters expressed concern that the proposed standard for lockups
specified a smaller set of training topics than the proposed standards for other categories of
facilities.
Response. The final standard expands the training requirements for lockups, adding
requirements that training be provided on the agency’s zero-tolerance policy; detainees’ right to
be free from sexual abuse and sexual harassment; the dynamics of sexual abuse and harassment
in confinement settings, including which detainees are most vulnerable in lockup settings; the
right of detainees and employees to be free from retaliation for reporting sexual abuse or
harassment; how to detect and respond to signs of threatened and actual abuse; and how to
comply with relevant laws related to mandatory reporting of sexual abuse to outside authorities.
Comment. Juvenile justice agencies and juvenile advocacy groups recommended that the
final standard require staff training specific to age of consent laws and how to distinguish
between consensual and abusive sexual contact between residents.
Response. The Department recognizes that juveniles may have sexual development
issues that are distinct from adult behaviors. Accordingly, the final standard includes these
training topics in § 115.331(a)(7) and (11). Juvenile facilities will need to identify applicable
State laws regarding age of consent and train staff accordingly.
Comment. A significant number of commenters requested the inclusion of staff training
in adolescent development, behavioral manifestations of trauma, the particular needs and
vulnerabilities of juveniles, sexual health, sexual development, healthy staff-youth relationships,
and other topics.
Response. Many of these topics are covered in the final standard, which requires training
on, among other topics, the dynamics of sexual abuse and sexual harassment in juvenile
facilities, the common reactions of juvenile victims of sexual abuse and sexual harassment, how
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to detect and respond to signs of threatened and actual sexual abuse and how to distinguish
between consensual sexual contact and sexual abuse between residents, and how to avoid
inappropriate relationships with residents. While staff may benefit from training on sexual
health and sexual development, such training is not essential to combating sexual abuse in
juvenile facilities.
Comment. Some commenters recommended that the agencies be required to train all
employees within one year, rather than 90 days, upon enactment of the final standards.
Response. The Department believes that one year is a suitable amount of time, in
consideration of the wide variety in facility sizes, population, and resources.
Comment. Some commenters criticized the Department for not including the NPREC’s
recommended supplemental immigration standard ID-2, which would require additional training
for employees at facilities that hold immigration detainees. These commenters requested that the
final standards require specific training regarding cultural sensitivity and issues unique to
immigration detainees.
Response. The Department recognizes that State and local facilities often confine very
diverse populations, as do BOP facilities, even if they do not hold immigration detainees. The
Department believes that the final standard requires training that is appropriate and responsive to
this diversity. By mandating that agencies train their employees, for example, on how to detect
and respond to signs of threatened and actual sexual abuse and to communicate effectively and
professionally with inmates, the standard implicitly contemplates training to account for any
relevant linguistic, ethnic, or cultural differences . Because the requirement is broad and
inclusive, the Department concludes that it is not necessary to require additional training
regarding cultural sensitivity to particular populations. Instead, the Department leaves the issue
to the discretion of agency officials.

Volunteer and Contractor Training (§§ 115.32, 115.132, 115.232, 115.332)
Summary of Proposed Rule
The standard contained in the proposed rule mandated that all volunteers and contractors
who have contact with inmates be trained on their responsibilities under the agency’s sexual
abuse and prevention, detection, and response policies and procedures, in recognition of the fact
that contractors and volunteers often interact with inmates on a regular, sometimes daily, basis.
The level and type of training provided to volunteers and contractors would be based on the
services they provide and level of contact they have with inmates; at the very least, all volunteers
and contractors who have contact with inmates would be notified of the agency’s zero-tolerance
policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
With regard to lockups, the proposed standards mandated, in § 115.132, that attorneys,
contractors, and any inmates who work in the lockup must be informed of the agency’s zerotolerance policy regarding sexual abuse. (As noted above, § 115.131 governs training of lockup
volunteers.)
Changes in Final Rule

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The final standard adds sexual harassment to the scope of training for volunteers and
contractors. For lockups, the final standard removes attorneys from the scope of persons to be
notified of the agency’s zero-tolerance policy. The proposed standard did not require such
notification of attorneys in any other type of facility, and upon reconsideration the Department
concludes that the purposes of notification are not served by requiring notification of attorneys in
lockups.
Comments and Responses
Comment. Commenters supported training for volunteers; some requested greater
specificity in the categories of training required.
Response. The Department believes that the training categories included in the final
standard are sufficient for agencies to identify training as appropriate for each type of volunteer.
Inmate Education (§§ 115.33, 115.233, 115.333)
Summary of Proposed Rule
The proposed standard required that information about combating sexual abuse be
provided to individuals in custody upon intake and that comprehensive education be provided
within 30 days of intake in person or through video. In addition, the proposed standard required
that agencies ensure that key information is continually and readily available or visible to
inmates through posters, inmate handbooks, or other written formats. The proposed standard
required annual refresher information, except for community confinement facilities, which were
required to provide refresher information only when a resident is transferred to a different
facility.
Changes in Final Rule
The final standard replaces the requirement that inmates receive annual refresher
information with a requirement that inmates receive additional education upon transfer to a
different facility to the extent that the policies and procedures of the inmate’s new facility differ
from those of the previous facility. In addition, juvenile facilities are now required to provide
comprehensive education within 10 days of intake, rather than 30 days, which remains the
timeframe for other facilities.
Comments and Responses
Comment. Jail agency commenters were most critical of the requirement for inmate
education, indicating that the training of a population with rapid turnover was difficult to deliver
and document. Jail agency commenters also criticized the requirement to provide inmate
education during the intake process; some noted that jail booking processes were not equivalent
to intake in prisons, because jail inmates are more likely to be suffering from increased stress, to
be less stable emotionally, and to be under the influence of drugs or alcohol at the time of intake.
These commenters also remarked that smaller jails are not equipped to provide inmate education.
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Response. The Department recognizes that jails have a unique population and rapid
turnover rate. The final standard clarifies that information can be provided at intake through a
handout or other written material. The documentation requirement has not been changed, as this
can be easily added to an intake/admission checklist or other form of documentation. Indeed,
several agency commenters, including jails, stated that they already do so.
Comment. Agency commenters criticized the yearly refresher requirement as unwieldy,
citing the difficulty of delivery, documentation, and tracking of this activity.
Response. The Department has removed the annual refresher requirement, substituting
language requiring that inmates receive education upon transfer between facilities to the extent
that the policies and procedures differ. This revision is better tailored to the goal of ensuring that
inmates are always aware of relevant procedures, consistent with the requirement in § 115.33(f)
that agencies ensure that key information is continuously and readily available or visible to
inmates through posters, inmate handbooks, or other written formats.
Comment. One former inmate stated that inmates do not take video education seriously.
The commenter recommended that inmate training be tailored to the type of inmate, including
separate trainings for first-time inmates, who may need more information than is currently
provided.
Response. The Department encourages agencies to offer in-person education and tailored
trainings to the extent that resources allow, but concludes that the standard need not mandate
either in order to serve the purpose of educating inmates. The National Resource Center for the
Elimination of Prison Rape intends to develop training tools for use by all types of correctional
agencies and may be able to provide such tailoring.
Comment. Juvenile justice advocates criticized as too long the 30-day timeframe in
§ 115.333(b) for providing comprehensive education regarding sexual abuse and harassment in
juvenile facilities.
Response. The Department agrees, and has shortened the timeframe for comprehensive
education in juvenile facilities to “within 10 days of intake.” The Department notes that
§ 115.333(a) separately requires that residents receive information upon intake explaining the
agency’s zero-tolerance policy regarding sexual abuse and sexual harassment and how to report
incidents or suspicions of sexual abuse or sexual harassment.
Comment. Some commenters requested inclusion of a lengthy list of additional topics for
juveniles, such as basic sexual education, sexual anatomy, sexual orientation, and gender roles.
Response. While juvenile residents may benefit from learning about such topics, these
topics appear to be better suited for inclusion in a facility’s school curriculum rather than in a set
of mandated topics aimed at combating sexual abuse.
Comment. Some advocate commenters requested that the Department mandate “peer-topeer education” for inmates.
Response. The Department recognizes that some correctional systems, including the
California Department of Corrections and Rehabilitation, have instituted pilot peer-to-peer
education programs. While the Department encourages further development of such programs, it
believes that at this point in time the nationwide imposition of such a requirement would be too
resource-intensive.
Comment. Some commenters proposed that the Department include the NPREC’s
recommended supplemental immigration standard ID-3, which would require that education
regarding sexual abuse be culturally appropriate and given to immigration detainees separately
from information regarding their immigration cases.
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Response. The Department believes that the final standard is sufficient to address
concerns that immigration detainees in State, local, and BOP facilities receive meaningful
education regarding combating sexual abuse. The final standard requires that education be
accessible to all inmates, including those who do not speak English, and that educational
materials be continuously and readily available to inmates regardless of their immigration status.
The Department believes that facilities need not be required to tailor such education to the
culture of the detainees, or deliver it separately from case-related information, in order to ensure
that it is meaningful.
Comment. Several commenters suggested that agencies be required to distribute an ICE
Detainee Handbook, as recommended by the NPREC in its supplemental immigration standard
ID-4.
Response. The final rule does not include this change. The NPREC recommended that
the handbook include information regarding the agency’s sexual abuse policies, as well as
information regarding how to contact community services organizations, consular officials, and
DHS officials. These issues are already addressed in this standard as well as in the final
standards on Inmate Reporting (§§ 115.51, 115.151, 115.251, 115.351) and Access to Outside
Confidential Support Services (§§ 115.53, 115.253, 115.353), which collectively provide
appropriate guidance to State, local, and BOP facilities that hold immigration detainees.
Specialized Training: Investigations (§§ 115.34, 115.134, 115.234, 115.334)
Summary of Proposed Rule
The proposed standard required that agencies that conduct their own sexual abuse
investigations provide specialized training for their investigators in conducting such
investigations in confinement settings, in addition to the general training required for all
employees, and that any State entity or Department of Justice component that investigates sexual
abuse in confinement settings do the same.
Changes in Final Rule
No changes have been made.
Comments and Responses
Comment. Advocate commenters generally supported revising the standard to require
training on distinguishing between abusive and consensual sexual contact. Some advocates
identified this training as essential to determining whether what may appear to be consensual
activity is in fact coercive, while others expressed an opposite concern: that too many incidents
would be considered abusive unless investigators were properly trained.
Response. While not specifically mentioned, this topic should be considered part of the
relevant training in conducting sexual abuse investigations in confinement settings as mandated
by § 115.34(a). The same paragraph requires that investigators receive the general training
provided to all inmates pursuant to § 115.31, which includes training on the dynamics of sexual
abuse in confinement. Additionally, with regard to juvenile facilities, § 115.331 specifically
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mandates training in how to distinguish between consensual sexual contact and sexual abuse
between residents.
The question of whether sexual contact was consensual is a threshold determination in
investigating any allegation of sexual abuse between inmates. The investigator is unlikely to
have observed direct contact between the victim and alleged abuser, but will need to make this
determination based on interviews and the evidence collected. The final standard requires
investigators to have specialized training in conducting sexual abuse investigations in
confinement settings, including training on techniques for interviewing sexual abuse victims and
the evidence required to substantiate a case. Such training will help enable investigators to
assess whether sexual contact was abusive. The National Resource Center for the Elimination of
Prison Rape will develop training modules that will assist the provision of such specialized
training to investigators.
Comment. Advocate commenters also requested a requirement that investigators receive
specialized instruction in accessing LEP resources.
Response. Sections 115.16, 115.116, 115.216 and 115.316 address LEP inmates and, as
revised, require equal access to all aspects of efforts to prevent, detect, and respond to sexual
abuse and sexual harassment for inmates who are LEP. The Department has not specified within
individual standards how agencies are to implement this standard, preferring to leave it to agency
discretion.
Specialized Training: Medical and Mental Health Care (§§ 115.35, 115.235, 115.335)
Summary of Proposed Rule
The standard contained in the proposed rule required specialized training, and
documentation thereof, for all medical staff employed by the agency or facility. The standard
exempted lockups, which usually do not employ or contract for medical staff. The proposed
standard also required that any agency medical staff who conduct forensic evaluations receive
appropriate training.
Changes in Final Rule
The final standard clarifies that medical and mental health care practitioners shall also
receive the training mandated for employees under § 115.31 or for contractors and volunteers
under § 115.32, depending upon the practitioner’s status at the agency. The final standard also
adds a requirement that medical staff receive training in how to detect, respond to, and report
sexual harassment.
Comments and Responses
Comment. Many comments regarding paragraph (b) of the proposed standard, which
required that any agency medical staff who conduct forensic evaluations receive appropriate
training, appeared to misunderstand the intent of this requirement. Agency commenters
expressed concern about the potential expense of providing advanced forensic training, whereas
advocate commenters criticized the notion that agency medical staff would conduct forensic
examinations, and seemed to assume that any training provided to them would be inadequate.
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Response. Paragraph (b) is meant to direct agencies to obtain appropriate and proper
training for in-house medical staff if they decide to perform forensic examinations on-site. This
direction is not intended to encourage agencies to create in-house forensic programs, but rather
to call attention to the specialized training required to perform adequate examinations. The
Department recommends that on-site medical staff conducting forensic examinations meet or
exceed the training guidelines found in the Department’s National Training Standards for Sexual
Assault Medical Forensic Examiners.
Comment. Advocate commenters suggested that medical and mental health care
practitioners should receive the same training as all other staff.
Response. The Department agrees, and has added language accordingly.
Comment. One agency commenter stated that specialized training for medical and mental
health contractors would be costly and burdensome.
Response. The Department does not find this comment persuasive. Many medical and
mental health contractors will already have such training, in which case the agency need not
supplement it (beyond the standard training for staff and contractors). To the extent medical and
mental health contractors do not have such training, it is essential that they receive it. The
National Resource Center for the Elimination of Prison Rape is able to develop training modules
that will assist the provision of such training.
Screening for Risk of Sexual Victimization and Abusiveness (§§ 115.41, 115.141 115.241,
115.341)
Summary of Proposed Rule
The standard contained in the proposed rule required that prisons, jails, and community
confinement facilities screen inmates during intake and during an initial classification process for
risk of being sexually abused by other inmates or being sexually abusive toward other inmates.
The standard required that such screening be conducted using an objective screening instrument,
taking into account a list of enumerated factors, and mandated that blank copies of the screening
instrument be made available to the public upon request,
The proposed standard further required that the screening be conducted within 30 days of
intake, and required re-screening when warranted. The standard prohibited discipline of inmates
who refuse to answer specific questions during the screening process, and required protection of
sensitive inmate information.
With regard to juveniles, the proposed standard did not include a timeframe, except to
state that the facility should attempt to ascertain such information during intake and periodically
throughout the resident’s confinement.
The proposed standard did not include a screening requirement for lockups.
Changes in Final Rule
Rather than require a screening during intake and again during an initial classification
process, the final standard requires an initial intake screening to occur ordinarily within 72 hours
of intake in prisons, jails, and community confinement facilities, and requires that the facility
reassess the inmate’s risk of victimization or abusiveness within a set time period, not to exceed
30 days from the inmate’s arrival at the facility, based upon any additional, relevant information
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received by the facility subsequent to the intake screening. For juvenile facilities, the standard
requires the initial screening to occur within 72 hours.
In the list of factors to consider, the requirement to assess whether the inmate is LGBTI
has been revised by adding consideration of whether the inmate would be perceived to be so, and
whether the inmate is or would be perceived to be “gender nonconforming,” which is defined in
§ 115.5 as “a person whose appearance or manner does not conform to traditional societal
gender expectations.”
The final standard eliminates the requirement that a facility’s screening instrument be
made publicly available, and clarifies that the prohibition on disciplining inmates who refuse to
answer screening questions applies only to specific sensitive questions required by the standard.
For lockups, the final standard adds an abbreviated risk screening process for facilities
that do not hold detainees overnight, and a more extensive risk screening process for detainees in
lockups that do hold inmates overnight.
Comments and Responses
Comment. Advocates and correctional agencies alike expressed concern over the
requirement in the proposed standard that the initial classification occur within 30 days of the
inmate’s confinement. Advocates feared that allowing facilities up to 30 days to complete an
initial classification would place many inmates at unnecessarily high risk of abuse for an
extended period of time. Advocates preferred that information be gathered during the intake
process to the extent possible, and expressed the view that much of the required information
should be readily available.
Agency commenters expressed the concern slightly differently, noting that a large
percentage of jail inmates are released within 30 days, and thus 30 days was too long to allow an
inmate to wait until an initial classification. Some jail commenters, including the American Jail
Association, also expressed concern about conducting screening at intake, when inmates are
often under the influence or under great stress. In addition, these commenters stated that a high
percentage of those arrested are released directly from the “booking floor” and suggested that a
jail intake screening should look similar to those conducted at lockup facilities until a
determination has been made that the arrestee will not be released. The National Sheriffs
Association, plus several State sheriffs’ associations, commented that the standard in the
proposed rule would be difficult to implement in a jail. Several commenters suggested that jail
booking operations are more similar to processes in lockup facilities than to prison intake.
Response. Upon reconsideration, including a review of comments submitted in response
to NPRM Question 22, which asked whether the final rule should provide greater guidance
regarding the required scope of the intake screening, the Department has decided to make
significant changes to this standard.
In order to protect all inmates regardless of when they arrive at a facility or where they
are located within the facility, at least minimal information must be collected quickly to inform
decisions about where the arrestee should be held awaiting the intake procedure and where he or
she will be housed initially.
The Department recognizes that some jail inmates spend limited time in the booking area,
at a time when certain information needed for appropriate classification may not be immediately
available. However, the brevity of the booking process and the possible lack of background
information do not obviate the need to identify potentially vulnerable or abusive individuals and
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ensure they do not become victims or perpetrators. The final standard addresses jails’ concerns
by making a clearer distinction between the initial process of collecting risk information upon
intake to make provisional decisions about protection and placement, and the subsequent
reassessment of the inmate’s risk after receiving fuller information.
The final standard uses the term “intake screening” to describe the collecting of
information from a person brought to a facility. Facilities should be able to readily obtain the
information referenced in the enumerated criteria, and this intake screening can and should occur
within 72 hours of the person’s arrival at the facility. Facilities are strongly encouraged to
conduct the intake screening sooner, to the extent circumstances permit. The ten criteria
enumerated in the standard usually will be available through staff observation, direct
questioning, or records checks within the 72-hour timeframe.
Inmates who are unable to post a bond or are held subsequent to other warrants or court
orders usually remain in custody pending a court appearance. The final standard requires that
inmates who remain in custody undergo a more extensive classification process. Within a set
period of time, not to exceed 30 days, the facility is to reassess the inmate’s risk of victimization
or abusiveness based upon any additional, relevant information received by the facility since the
intake screening. This requirement recognizes that information relevant to the risk and
classification needs will become available as staff interview, assess, and observe the inmate, and
as the facility receives information from other agencies and sources.
These revisions take into account the differences between—and among—prisons and
jails, as well as the fact that information relevant to a more comprehensive inmate classification
may not be immediately accessible. The Department recognizes that the time limits in this
standard imply that some inmates will be screened twice, some once, and some—hopefully very
few—not at all. These variations are inevitable when crafting a system with sufficient structure
and flexibility to ensure that classifications are both effective and efficient.
Comment. Some jail commenters noted that certain inmates are “frequent flyers” who
rotate in and out of the jail on a regular basis. The commenters stated that an inmate screening
would be unnecessary for such inmates, given that the jail would already possess a significant
amount of information from their prior admissions.
Response. A facility is free to rely on information previously gathered with regard to a
returning inmate; however, the facility should ensure that its assessment captures any changes in
risk factors that may have occurred subsequent to the facility’s prior gathering of information
regarding that inmate.
Comment. Some agency commenters recommended that the final standard defer to State
or local laws regarding the screening of inmates.
Response. The final standard provides a set of requirements that can be implemented in a
manner consistent with State and local laws; to defer entirely to such laws would abdicate the
Department’s responsibility to ensure that the standard is satisfied only by screening procedures
that provide sufficient protection against abuse.
Comment. Some advocacy commenters recommended that the standard add gender
nonconformance to the list of risk factors, on the ground that gender nonconformance gives rise
to the same risk of victimization as the inmate’s internal identification.
Response. The Department agrees, and has made two additions to this standard. First,
the final standard includes consideration of whether the inmate is “gender nonconforming,”
which is defined in § 115.5 as “a person whose appearance or manner does not conform to
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traditional societal gender expectations.” Second, the standard instructs agencies to take into
account not only whether the inmate is LGBTI, but whether the inmate is perceived to be so.
Comment. Some agency commenters feared confusion between § 115.41, which in the
proposed rule required that all inmates be screened during the intake process and during initial
classification, and § 115.81, which required that inmates be asked about prior victimization and
abusiveness during intake or classification screenings. One jail stated that implementing the
standards as written would require the hiring of one additional officer per shift, at an additional
annual cost of $840,000. Other agency commenters also expressed budget concerns; some stated
that requiring two separate screenings is overly burdensome and that the two standards should be
combined.
Response. The Department agrees that, as written, the two standards could cause
confusion, and has amended § 115.81 accordingly. Instead of requiring a separate interview to
collect information about sexual victimization and abusiveness, the requirements of § 115.81 are
triggered only if the screening mandated by § 115.41 indicates that an inmate has experienced
prior sexual victimization or perpetrated sexual abuse. This adjustment should eliminate the
need for additional staff to conduct separate interviews.
Comment. One agency commenter expressed uncertainty over whether the “PREA
screening” should be incorporated into the initial classification instrument, and suggested that
such incorporation could be problematic because the agency requires inmates to answer
questions during its classification process, in contravention of the proposed standard, which
provided that “[i]nmates may not be disciplined for refusing to answer particular questions
or for not disclosing complete information.” The agency therefore recommended that the
“PREA screening” be separate and distinct from the initial classification process.
Response. This comment indicates that the proposed standard was worded too broadly
and inadvertently caused confusion. The intent of the no-discipline phrase was not to grant
immunity from discipline for failure to cooperate with intake, but rather to ensure that inmates
who are fearful of disclosing sensitive information about risk factors are not punished for failing
to disclose such information. Accordingly, the final standard revises this language to clarify that
it applies only to questions about disabilities, LGBTI status, gender nonconformance, previous
sexual victimization, and the inmate’s self-perception of vulnerability.
Comment. A small number of State correctional agencies expressed concern that staffing
levels may need to increase to manage additional intake interviews.
Response. As noted above, the clarification of the distinction between intake screening
and classification should negate the need for additional classification staff.
Comment. A few agency commenters also expressed concerns that making blank copies
of their screening instruments available to the public could compromise their operations; one
suggested that if the blank forms were made available, inmates could manipulate the
information. The commenter recommended that the standard instead require agencies to identify
and publicize the general types of information collected.
Response. Upon reconsideration, the Department concludes that it is unnecessary to
require agencies to make available blank copies of their screening instruments, and has removed
this requirement from the standard.
Comment. A State correctional agency expressed concern that the screening instrument
would collect and rely on items that have not been validated as predictors of risk. The
commenter recommended that any instrument used to classify inmates be validated and that
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funding be provided to develop such an instrument and to revalidate the instrument after three
years of use.
Response. To account for the range of agency types and available resources, the
Department has chosen not to include a validation requirement. Pre-implementation validation
and follow-up validation of risk screening instruments is a commendable practice and, in State
systems and other large jurisdictions, comports with generally accepted professional standards.
However, some agencies, such as small county jails, may lack sufficient resources to engage in a
comprehensive validation study. Because risk factors may have varying degrees of predictive
correlation in different jurisdictions, small agencies may need to rely upon reasonable
assumptions in developing an objective screening instrument and classification process.
Although research into risk factors for institutional sexual victimization and abusiveness remains
ongoing, the factors listed in the standard have sufficient bearing upon the risk of victimization
or abusiveness to warrant their use when assessing inmates. A validation process, where used,
can assist in determining the weight of each identified factor for purposes of informing the
housing classification process.
Comment. Some advocates expressed concern that the proposed standard would allow
intake and security staff to ask sensitive questions of residents without requiring the appropriate
level of training to conduct such interviews. Several commenters urged the Department to adopt
the NPREC’s recommendation that only medical or mental health providers be allowed to ask
such questions, at least in a facility where such providers work on-site. One agency remarked
that its screening instrument was developed by a mental health professional, and suggested that
an accurate determination of a resident’s level of emotional and cognitive development,
intellectual capabilities, and self-perception of vulnerability would not be possible without the
involvement of such professionals.
Response. The Department remains of the view that appropriately trained intake staff
may be competent to ask residents sensitive questions in a professional and effective manner,
and thus the final standard leaves to agency discretion how to use staff resources most effectively
at intake. The Department expects that the training required in these standards will benefit intake
staff who are tasked with such responsibilities.
Comment. One juvenile detention association expressed concern over the lack of
distinction between short-term juvenile detention facilities and long-term juvenile correctional
facilities. The commenter noted that in detention settings, the facility may have no information
about the inmate other than a court order. The commenter warned that asking questions about
sexual victimization or abusiveness upon the resident’s arrival at the facility could be viewed as
intrusive, could produce anxiety, and could “set the wrong tone for the stay in detention.”
Response. The Department recognizes that an agency will not always be able to ascertain
information about each of the enumerated factors. For example, the resident may choose not to
answer certain screening questions, or the facility may not otherwise have access to certain
criteria. The standard accounts for these considerations by making clear that the agency shall
only “attempt to ascertain” the information. The Department expects that an agency will make
necessary and reasonable efforts to obtain information. For example, an agency can work
cooperatively with law enforcement and social service agencies to obtain information about the
resident.
The Department disagrees with the commenter that it is inappropriate to inquire about the
resident’s prior sexual victimization or abusiveness. First, this information is important in
informing housing and programming decisions with the goal of keeping residents safe from
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abuse. Second, as discussed above, appropriately trained staff can make the inquiries in a
professional and sensitive manner. Third, the standard makes clear that residents are not
required to provide this information and may not be punished for refusing to provide this
information.
Comment. The same commenter indicated that unless the screening instrument is
developed by a mental health professional, it will be difficult to assess accurately the resident’s
level of emotional and cognitive development, intellectual capabilities, and the resident’s own
perception of vulnerability, and that the development of such a screening instrument could be
expensive.
Response. The Department encourages agencies to develop their risk screening
instrument and process utilizing a multi-disciplinary team, including input from an appropriate
mental health professional. Because agencies and facilities typically employ or contract with
mental health professionals, the Department does not believe that such input would be cost
prohibitive. In addition, the National Resource Center for the Elimination of Prison Rape and
other agencies and technical assistance providers can assist with the development of a riskscreening program that may be applicable or adaptable across systems.
Comment. NPRM Question 21 asked whether, given that lockup detention is usually
measured in hours, and that lockups often have limited placement options, the final standard
should mandate rudimentary screening requirements for lockups. Advocates strongly favored
screening requirements, and suggested that that many police lockups already employ basic
measures aimed at protecting inmates from sexual abuse. Noting that a full classification process
may not be necessary, advocates recommended that lockups be required to collect information
similar to what the proposed standard required longer-term facilities to gather, especially if
lockups hold multiple inmates in the same cell. Commenters also recommended that lockups
conduct a basic screening to ensure that highly vulnerable inmates are not left alone with likely
perpetrators even for short periods of time.
Advocates proposed adding a list of known indicators of vulnerability, including mental
and physical disability, young age, slight build, nonviolent history, identification as LGBTI,
gender nonconforming appearance, and prior victimization. Some also proposed requiring
lockups to ask detainees about their own perception of vulnerability and to provide heightened
protection to detainees who perceive themselves to be vulnerable.
Few agency commenters responded to the question; those that did mostly supported
requiring lockups to administer some type of screening instrument or process. Some remarked
that lockups were so small, and lengths of stay so brief, that the standards should not mandate a
screening, and that any such standard should allow maximum flexibility.
Response. The Department has added screening requirements for lockup facilities,
distinguishing between lockups that hold detainees for a few hours, such as court holding
facilities, and lockups where individuals may be held overnight, such as police stations. This
revision adds protections for lockup detainees while recognizing that lockups are situated very
differently from prisons and jails and often do not conduct intake as that term is traditionally
understood.
In lockups that are not used to house detainees overnight, before placing any detainees
together in a holding cell, staff must consider whether, based on the information before them, a
detainee may be at a high risk of being sexually abused and, when appropriate, must take
necessary steps to mitigate any such danger to the detainee.
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In lockups that are utilized to house detainees overnight, all detainees must be screened to
assess their risk of being sexually abused by other detainees or sexually abusive toward other
detainees, and all detainees must be asked about their own perception of vulnerability. The
screening process in such lockups shall also consider—to the extent that the information is
available—whether the detainee has a mental, physical, or developmental disability; the age of
the detainee; the physical build and appearance of the detainee; whether the detainee has
previously been incarcerated; and the nature of the detainee’s alleged offense and criminal
history. In an effort to minimize the number of screening requirements in lockups, given that
there may be no privacy to ask individuals screening questions, the standard does not explicitly
include identification as LGBTI, gender nonconforming appearance, or prior victimization in its
list of known indicators of vulnerability. However, these indicators may be ascertainable
through other listed factors, such as physical build and appearance, and the detainee’s own
perception of risk.
Use of Screening Information (§§ 115.42, 115.242, 115.342)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies use the risk screening
process to inform housing, bed, work, education, and program assignments with the goal of
keeping inmates determined to be at risk of sexual victimization separate from inmates at risk of
being sexually abusive. The proposed standard provided that agencies shall make individualized
determinations about how to ensure the safety of each inmate, and required that, in placing
transgender or intersex inmates, the agency 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. The proposed standard also provided that transgender
and intersex inmate placement be reassessed at least twice each year, and that such inmates’ own
views as to their safety be given serious consideration.
For community confinement facilities, the proposed standard generally mirrored the
standard for prisons and jails, but omitted the requirement that transgender and intersex residents
be reassessed twice per year.
For juvenile facilities, the proposed standard required the use of the risk screening
process and additional information in order to determine appropriate placement to keep the
residents safe from sexual abuse. The proposed standard also limited the use of isolation for
purposes of protecting residents, and provided that LGBTI residents may not be placed in a
particular housing location based solely on such identification.
The standard in the proposed rule did not apply to lockups.
Changes in Final Rule
The final standard makes two changes applicable to prisons, jails, and community
confinement facilities. First, transgender and intersex inmates must be given the opportunity to
shower separately from other inmates. Second, the final standard prohibits placing LGBTI
inmates in a dedicated unit or facility solely on the basis of LGBTI identification unless such
placement is pursuant to a legal requirement for the purpose of protecting such inmates.
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The final standard makes multiple changes for juvenile facilities. First, to avoid
duplication and confusion, the final standard for juvenile facilities no longer enumerates
placement factors but requires the facility to use the types of information obtained pursuant to
§ 115.341(c) to make housing, bed, program, education, and work assignments for residents,
with the goal of keeping all residents safe and free from sexual abuse. Second, the final standard
contains added protections for residents who are isolated for purposes of protection. During any
period of isolation, agencies shall not deny residents daily large-muscle exercise or any legally
required educational programming or special education services. Residents in isolation shall
receive daily visits from a medical or mental health care clinician, and shall have access to other
programs and work opportunities to the extent possible. Third, agencies may not consider a
resident’s LGBTI identification as a predictor of likelihood of being sexually abusive. Fourth,
the final standard replaces the requirement that agencies make individualized determinations
about the placement of transgender and intersex residents with language identical to
corresponding language in the standard for adult facilities: That agencies determine, on a caseby-case basis, housing and programming assignments for transgender and intersex residents for
purposes of ensuring the residents’ health and safety, as well as any management or security
concerns, that such placement decisions shall be reassessed at least twice per year, and that the
views of transgender and intersex residents regarding their own safety be given serious
consideration. Finally, if a resident is isolated for protective purposes, the agency shall be
required to document its justification, and review the continued need for isolation at least every
30 days.
Comments and Responses
Comment. Some agency commenters requested definitions of “transgender” and
“intersex.”
Response. As noted above, the final rule includes definitions of these terms in § 115.5.
Comment. Many advocacy commenters urged the inclusion of “gender nonconforming”
and “perceived to be” LGBTI as screening factors.
Response. As discussed above, the Department has made this change.
Comment. Many advocate commenters opposed the omission from the proposed standard
of the NPREC’s recommended ban on assigning inmates to particular units based solely on their
sexual orientation or gender identity. Commenters noted that it is impossible to state
categorically that such units are safer and expressed concern that occupants might not be
afforded programs and services equal to those of other inmates. Commenters also worried that
such units could be used to punish inmates for their sexual orientation or gender identity.
Several commenters remarked that these designated units can be successful only in
certain circumstances. Some asserted that the unit operated by the Los Angeles County Jail for
gay male and transgender inmates, specifically mentioned in the discussion of this standard in
the proposed rule, is the exception rather the norm. These commenters stated that inmates in this
unit retain access to substantial programming—often more than what is available in the general
population—and that the jail has a sufficiently large gay male and transgender population to fill
multiple wings, thus allowing these inmates to be segregated without experiencing isolation.
The commenters suggested that successfully maintaining a unit based solely on sexual
orientation or gender identity requires a demonstrated need, sufficient facility size and LGBTI
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inmate population, a basic level of cultural competence among staff, and an institutional
commitment to safety and fairness toward these populations.
Many commenters proposed language that would allow such units only under narrowly
defined circumstances, such as where placement is based on a finding made by a judge or outside
expert or is pursuant to a consent decree, legal settlement, or legal judgment—an exception
apparently designed to encompass the Los Angeles County Jail.
Other commenters supported including the NPREC’s recommendation that the standard
prohibit such units entirely; one law professor disputed the notion that the Los Angeles County
Jail was effective at protecting inmates or otherwise worthy of emulation.
Response. Upon reconsideration, the Department concludes that agencies should retain
the option of using dedicated facilities, units, or wings to house LGBTI inmates. However, the
Department agrees that to do so carries its own risk, and that it should be undertaken only in
limited contexts. Because it would not be feasible for the Department to anticipate every case or
circumstance that might warrant such placements, the Department has chosen to adopt a final
standard that allows use of this practice only where the dedicated facility, unit, or wing is
established in connection with a consent decree, legal settlement, or legal judgment.
Comment. By contrast, the proposed standard did not allow such placements in juvenile
facilities. One juvenile agency expressed concern about this prohibition, asserting that it would
present operational challenges and might put residents at risk.
Response. The Department respectfully disagrees with this assessment, which was not
shared by advocacy groups. Despite good intentions, the practice of using dedicated facilities,
units, or wings to house LGBTI inmates may result in youth being unable to access the same
privileges and programs as others in general population housing, effectively punishing youth for
their LGBTI status. The Department adheres to the assessment expressed in the NPRM: “Given
the small size of the typical juvenile facility, it is unlikely that a facility would house a large
enough population of such residents so as to enable a fully functioning separate unit, as in the
Los Angeles County Jail. Accordingly, the Department believes that the benefit of housing such
residents separately is likely outweighed by the potential for such segregation to be perceived as
punishment or as akin to isolation.” 76 FR 6258. While some LGBTI residents may require
protective measures, such an assessment should occur only after a holistic assessment of the risk
confronting the specific inmate, and should not be implemented automatically as a matter of
facility policy.
Comment. Some advocates recommended that the final standard ensure that transgender
and intersex inmates have an opportunity to shower separately, owing to the unique risks that
such inmates face in facilities.
Response. The final standard adds such a requirement.
Comment. Some commenters suggested several additional safeguards to protect against
excessive use of isolation, including reviewing the status of a youth in isolation every 24 hours,
limiting use of isolation to no more than 72 hours, and ensuring that isolated residents are
provided access to programs and services.
Response. The Department agrees that long periods of isolation have negative and, at
times, dangerous consequences for confined youth. However, in limited situations, protective
isolation longer than 72 hours may be necessary to keep youth safe from sexual abuse, especially
in small facilities with limited housing options and programming space. While not imposing a
specific limit on the duration of any such protective isolation, the final standard contains a
number of provisions limiting the use of isolation and providing enhanced protections for youth
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when they are isolated. First, the final standard prohibits the use of protective isolation except as
a last resort when less restrictive measures are inadequate to keep them and other residents safe,
and then only until an alternative housing option can be arranged. Second, for any such
placement, agencies must document the need for isolation, and reassess its use at least every 30
days. In addition to requiring the agency to justify the use of isolation and to periodically
reassess it, this provision will provide a mechanism for the PREA auditor to examine whether the
use of isolation is being used appropriately. Third, the final standard provides that any youth in
protective isolation must receive daily large-muscle exercise, any legally required education and
special education programming and services, and daily visits from medical care or mental health
care clinicians. In addition, agencies must provide isolated youth with access to other
programming to the extent possible.
Comment. One State juvenile justice agency expressed strong concerns about proposed
standard § 115.342(b), arguing that the specification of information that agencies are required to
consider exceeds PREA’s scope and improperly dictates agency placement policy. The
comment recommended that the standard provide only that the risk of abuse upon or by a
resident be considered when making placement decisions.
Response. The risk-screening factors enumerated in § 115.341 (and incorporated by
reference into § 115.342) may yield information that is predictive of a resident’s risk of sexual
victimization or sexual abusiveness. Requiring consideration of such factors in no way dictates
agency placement policy; the standard does not require that a resident meeting specific screening
criteria be housed in a specific placement. Nor does the standard mandate the weight to be
assigned to any of the enumerated factors in making placement or classification decisions.
Rather, the standard provides that the agency shall attempt to ascertain specific information
about the resident, and that the agency develop an objective, rather than subjective, process for
using that information with the goal of keeping residents safe from sexual abuse.
Comment. Juvenile justice advocates requested that the final standards clarify that being
LGBTI is a risk factor for being victimized by sexual abuse, not for committing sexual abuse.
Response. The Department is not aware of any evidence to suggest that LGBTI
identification or status is a risk factor for perpetrating sexual abuse. For this reason, and to
prevent negative stereotypes of such juveniles from affecting placement decisions, the final
standard specifically prohibits considering LGBTI identification or status as a predictor of sexual
abusiveness in juvenile facilities.
Comment. Some advocates criticized the Department for failing to adopt NPREC
supplemental immigration standard ID-6, which would require immigration detainees to be
housed separately from other inmates.
Response. The final standards addressing screening (§§ 115.41, 115.141, 115.241,
115.341) require that agencies develop a screening instrument that measures risk of sexual
victimization according to numerous criteria, including whether the inmate is detained solely for
civil immigration purposes. The Department believes that the requirement that agencies use that
screening information to make individualized determinations regarding housing, bed, work,
education, and program assignments is sufficient to protect immigration detainees in State, local,
and BOP facilities without a specific requirement that they be housed separately in every
instance, particularly when weighed against the substantial burden that such a mandate would
impose.
Protective Custody (§§ 115.43, 115.68, 115.368)
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Standards in Proposed Rule
Section 115.43 in the proposed rule provided that inmates at high risk of sexual
victimization, or who are alleged to have suffered sexual abuse, may be placed in involuntary
segregated housing only after an assessment of all available alternatives has been made—and
only until an alternative housing arrangement can be implemented. The proposed standard also
specifically defined the assessment process, specified required documentation, and set a
presumptive timeframe for placement in protective custody. In addition, the proposed standard
provided that, to the extent possible, involuntary protective custody should not limit access to
programming.
Section 115.66 in the proposed rule (now renumbered as § 115.68) provided that any use
of segregated housing to protect an inmate who is alleged to have suffered sexual abuse shall be
subject to the requirements of § 115.43.
Changes in Final Rule
The standard contained in the final rule clarifies that inmates shall not be placed
involuntarily in protective custody, unless an assessment of available alternatives has been made,
and a determination has been made that no other alternative means of separating the inmate from
the abuser exist. The final standard adopts a 24-hour timeframe to make this initial assessment.
The final standard also adds a requirement that if the facility restricts access to programs,
privileges, education, or work opportunities, it must document the opportunities that have been
limited, the duration of the limitation, and the reasons for such limitations.
Finally, the final standard shortens the presumptive time limit for involuntary protective
custody from 90 days to 30 days, and shortens the timeframe for periodic reviews for the need
for continued separation from 90 days to 30 days.
Comments and Responses
Comment. One advocacy group commented that, although the proposed standard
required programming to be provided to inmates in protective custody to the extent possible,
such programming could still be routinely denied. The commenter suggested that agencies be
required to document the programming opportunities that have been limited, the duration of the
limitation, and the reasons for the limitation.
Response. The Department agrees that a documentation requirement will assist in
auditing this standard, and would provide agencies a formal mechanism to use in making
programming assessments, and has amended the standard accordingly.
Comment. Several commenters criticized as too lengthy the 90-day presumptive time
limit for productive custody, as well as the requirement for periodic reviews every 90 days.
Commenters suggested changing both to 30 days.
Response. Upon reconsideration, the Department concludes that 30 days should
ordinarily suffice to arrange for alternate means of separation from likely abusers. In addition,
the final standard requires that a review be provided at least every 30 days thereafter, in order to
ensure that the situation is being actively monitored should the initial placement in protective
custody be extended.
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Comment. A number of inmate, advocate, and individual commenters indicated that
involuntary protective custody was, in effect, punitive, because inmates subject to this type of
classification are sometimes isolated or otherwise denied essential programming and services.
These commenters suggested that the conditions of protective custody housing may deter the
reporting of sexual abuse or the threat of sexual abuse.
Response. In certain circumstances, involuntary protective custody may be necessary to
keep inmates safe from sexual abuse. However, the final standard makes clear that this type of
housing should only be used when, pursuant to an administrative assessment, no better
alternative is available. The standard also requires that any denial of programming to inmates in
protective custody be documented and justified.
Comment. A number of advocates commented that an inmate’s gender identity should
not be the sole basis for placement of the inmate in involuntary protective custody.
Response. Sections 115.42, 115.242, and 115.342 provide that housing placement
determinations for LGBTI inmates shall be made on a “case-by-case” basis. This would
preclude automatic placement in involuntary protective custody on the basis of gender identity.

Inmate Reporting (§§ 115.51, 115.151, 115.251, 115.351)
Summary of Proposed Rule
In the proposed rule, §§ 115.22(a), 115.222(a), and 115.322(a) stated that agencies should
maintain or attempt to enter into memoranda of understanding or other agreements with an
outside public entity or office that is able to receive and immediately forward inmate reports of
sexual abuse and sexual harassment to agency officials pursuant to §§ 115.51, 115.251, or
115.351 unless the agency enables inmates to make such reports to an internal entity that is
operationally independent from the agency’s chain of command, such as an inspector general or
ombudsperson who reports directly to the agency head. The proposed standards also required
agencies to maintain or attempt to enter into memoranda of understanding or other agreements
with community service providers that are able to provide inmates with confidential emotional
support services related to sexual abuse. Finally, agencies were required to maintain copies of
agreements or documentation showing attempts to enter into agreements.
Sections 115.51, 115.151, 115.251, and 115.351 required agencies to enable inmates to
privately report sexual abuse and sexual harassment and related misconduct. Specifically, this
standard required that agencies provide multiple internal ways for inmates to privately report
sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual
abuse and sexual harassment, and staff neglect or violation of responsibilities that may have
contributed to sexual abuse. The proposed standard also required that agencies make their best
efforts to provide at least one way for inmates to report abuse or harassment to an outside
governmental entity that is not affiliated with the agency or that is operationally independent
from agency leadership, such as an inspector general or ombudsperson.
The proposed standard also mandated that agencies establish a method for staff to
privately report sexual abuse and sexual harassment of inmates.
Finally, the proposed standard required that juvenile residents be provided access to tools
necessary to make written reports, whether writing implements or computerized reporting.
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Changes in Final Rule
The final standard requires prisons, jails, and juvenile facilities to provide at least one
way for inmates to report abuse or harassment to a public or private entity or office that is not
part of the agency, and that is able to receive and immediately forward inmate reports of sexual
abuse and sexual harassment to agency officials. By contrast, the proposed standard required
only that facilities make their “best efforts” to provide such access, and did not allow a private
entity to serve this function. By expanding the outside reporting option to include private
entities, the final standard allows an agency, in its discretion, to utilize a private rape crisis center
or similar community support service for these purposes, as appropriate.
The final standard also specifies that the outside entity must allow the victim to remain
anonymous upon request.
Consistent with these revisions, the final standard no longer requires agencies to maintain
or attempt to enter into agreements with an outside public entity that is able to receive and
immediately forward inmate reports of sexual abuse. Such a requirement is no longer necessary
now that agencies are required to provide reporting access to an outside entity, which may be
public or private.
In lockups and community confinement facilities, the “best efforts” requirement of the
proposed standard has been replaced with a requirement that agencies inform detainees or
residents of at least one way to report abuse or harassment to a public or private entity or office
that is not part of the agency.
The standard no longer contemplates the use of an internal entity that is operationally
independent from the agency’s chain of command. If the agency designates a government office
to accept reports for the purposes of this standard, it must be outside of and completely
independent from the correctional agency.
Finally, for inmates detained solely for civil immigration purposes in jails, prisons, and
juvenile facilities operated by States, localities, and BOP, the final standard requires that the
facility also provide information on how to contact relevant consular officials and relevant
officials at the Department of Homeland Security.
Comments and Responses
Comment. Section 115.22 appeared to engender some confusion because it covered
agreements for the purpose of outside reporting as well as agreements for the purpose of
providing support services for victims. In addition, commenters were unclear as to how § 115.22
interacted with §§ 115.51 and 115.53, given the topical overlap.
Response. For clarity, the subject matter covered by proposed standard § 115.22 has
been moved into §§ 115.51 and 115.53, as appropriate.
Comment. The proposed standards evoked a strong response from current and former
inmates, who expressed the view that an outside reporting mechanism is essential to encourage
reporting incidents of sexual abuse, because inmates often do not feel comfortable reporting to
staff and may fear retaliation, especially when the abuser is a staff member. Thus, inmates may
be reluctant to trust any internal entity, even if it is “operationally independent” from the
agency’s chain of command. Various advocacy groups and rape crisis centers, as well as a
United States Senator, agreed with this reasoning. Many stated that some inmates are unlikely to
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understand or trust the distinction between an operationally independent entity, including an
internal inspector general’s office, and other agency offices. These commenters expressed the
view that a reporting entity that answers to the same agency head could be perceived as part of
the system that failed to protect the inmate in the first place. Many inmates commented that
reports to allegedly independent entities, such as an ombudsperson, were routinely ignored.
Some correctional agencies argued that requiring an outside reporting mechanism would
constitute an unfunded mandate. Commenters stated that local support services may not be
available to county jails in rural areas, and that staffing a hotline can be expensive. They also
asserted that BJS data demonstrate that sexual abuse is less likely in rural jails, and that they
would be paying for a service to respond to an event that rarely occurs. One correctional agency
stated that an internal hotline to a facility investigator should be sufficient given improvements in
staff training and increased focus on combating sexual abuse within facilities.
Response. The final standard requires all prisons, jails, and juvenile facilities to provide
at least one way for inmates to report abuse or harassment to a public or private entity or office
that is not part of the agency. The standard no longer allows compliance by relying on an
internal entity that is operationally independent from the agency’s chain of command. However,
an agency may designate a government office that is outside of and completely independent from
the correctional agency. For example, if a State has an inspector general’s office that sits outside
of, and does not report to, the State correctional agency, the agency may satisfy this standard by
designating that office as the external reporting entity. An inspector general’s office within the
agency would not qualify under these standards, even if it is “operationally independent” from
the facility administration. While this change may increase the burden on some agencies,
inmates must feel comfortable reporting any incident of sexual abuse and may be loath to do so
if their only option is reporting to an entity they view as part of the agency in which they
suffered the abuse.
The Department does not believe that this will impose a significant cost burden. The
final standard does not require a hotline or a formal agreement between the facility and any
specific outside entity. Rather, the agency need only establish an avenue for inmates to make
contact with an outside entity—whether public or private—that can receive and forward reports
of sexual abuse or sexual harassment to the agency. For example, an agency may choose to
provide access to an external reporting hotline, or may provide a method for inmates to send
confidential correspondence to an external entity. The standard thus provides flexibility for a
facility to choose or develop the most appropriate external reporting mechanism to fit its needs.
To be sure, the Department recognizes the value of internal hotlines and encourages their
use. Indeed, the final standards require multiple internal ways for inmates to privately report
sexual abuse and sexual harassment. However, the Department agrees with advocates and
inmates who argued that an external reporting mechanism is necessary to address situations in
which victims do not feel safe reporting to anyone inside the correctional system.
The standard requires lockups and community confinement facilities to inform detainees
or residents of at least one way to report abuse or harassment to a public or private entity or
office that is not part of the agency, but does not require them affirmatively to provide detainees
and residents with access, as is the case for prisons, jails, and juvenile facilities. Unlike adult
prisons and jails and juvenile facilities, lockups typically hold inmates briefly before release or
transfer to a jail, and community confinement facility residents usually are able to leave the
facility during the day for various reasons and generally have greater access to community
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resources. Hence, the populations of the latter facilities will generally have greater access to
make contact outside these of these facilities.
Comment. Many advocates, as well as former and current inmates, commented that the
standards must allow confidential reporting because some inmates may be too afraid of
retaliation to report otherwise, even when reporting to an outside entity. One inmate
recommended that allegations be forwarded to the facility only with the victim’s consent. Many
rape crisis centers and other community support groups commented that confidential reporting is
important because, in their experience, victims are much more likely to report sexual abuse and
cooperate with the investigation when they feel safe in doing so.
A number of inmates and advocates suggested that some victims would not report an
incident if the facility would learn of the report, even if the victim’s identity was not revealed,
and therefore requested complete confidentiality as an option. In contrast, many correctional
agencies expressed concern that such an option would prevent them from learning about
problems within their facilities and would preclude thorough investigations into allegations, in
tension with the goals of a zero-tolerance policy.
One commenter recommended that, in case agency officials are not responsive, the
outside entity should have the option to take information to outside law enforcement if deemed
in the victim’s best interest and should be allowed not to disclose that information to the agency.
Response. The Department recognizes the potential tension between encouraging
inmates to report sexual abuse and ensuring that facilities have sufficient information to
investigate allegations and address safety concerns. The final standard includes language
requiring the outside reporting entity to allow the victim to remain anonymous upon request and
retains the language from the proposed standard that requires facility staff to accept anonymous
reports. Allowing anonymity protects the inmate’s identity, but still provides the facility with
basic information about the allegation. Ideally, a facility would receive complete information
about every alleged incident of sexual abuse, including a first-hand report from the victim. But
an anonymous report about an incident is preferable to no report at all. As many commenters
noted, reports made anonymously are otherwise unlikely to be reported; thus, providing this
avenue should actually increase the amount of information available to the facility. In addition,
even if such a report may not allow for a full investigation into the incident, providing
information about an incident generally, without the identity of the victim, will alert staff to
potential concerns and may help reveal unsafe areas within the facility.
With regard to reporting to law enforcement, nothing precludes an outside reporting
entity from reporting allegations of abuse to the relevant law enforcement authorities or other
entities, as appropriate. The outside entity should also have the discretion to report specific
incidents at different administrative levels within a facility. If, for example, the facility
investigator is the subject of an inmate report, the outside entity should forward that report to the
facility superintendent or other agency administrator, instead of to the investigator.
Comment. Some advocacy groups requested that the standards mandate entering into a
memorandum of understanding with an outside agency to serve as a third-party reporting entity,
and allow reliance on an independent, internal reporting option only if documented attempts to
enter into such agreements are unsuccessful. On the other hand, many correctional agencies
opposed any requirement for a formal agreement with an outside entity as unnecessary,
expensive, and burdensome. Some facilities noted that finding a third party to provide such a
service might be difficult in rural areas.
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Response. Many facilities would benefit from a formal agreement or memorandum of
understanding to ensure that inmates can effectively report allegations of sexual abuse and sexual
harassment. Indeed, some correctional agencies noted that they already have in place these types
of agreements. Other facilities are able to provide outside services without such an agreement,
whether through a private entity or through a government office that is external to and
independent from the correctional agency. Given the varying needs and abilities of different
facilities, the Department has opted to grant agencies discretion to provide the requisite external
reporting mechanism in the most appropriate manner for the specific facility or incident at issue.
Comment. Some correctional agencies expressed concern that the proposed standard
would conflict with applicable State law. For example, the Florida Department of Corrections
stated that, under Florida law, it maintains authority over investigations within the prison system,
and that requiring inmates to report allegations to an entity that has no jurisdiction would conflict
with a State statute.
Response. The standard does not require the external reporting entity to investigate the
allegations of sexual abuse. Rather, the external entity should receive and immediately forward
inmate reports of sexual abuse and sexual harassment to agency officials, keeping the name of
the inmate anonymous upon request.
Comment. A juvenile justice agency and the Council of Juvenile Correctional
Administrators requested that § 115.351(e) be revised to require agencies to provide a method
for staff to “officially” report sexual abuse and sexual harassment of residents, instead of
allowing for staff to report “privately.” These commenters stated that because staff are legally
obliged to report sexual abuse and harassment of youth, there should be no provision for
“private” reporting.
Response. The Department does not believe that private reporting conflicts with the
obligation to comply with mandatory reporting laws. In requiring agencies to provide a method
for staff to report sexual abuse and sexual harassment “privately,” the Department means that
agencies must enable staff to report abuse or harassment directly to an investigator,
administrator, or other agency entity without the knowledge of the staff member’s direct
colleagues or immediate supervisor. A private reporting mechanism may provide a level of
comfort to staff who are concerned about retaliation, especially where the staff member reports
misconduct committed by a colleague. As some advocates noted, a private reporting option,
partnered with zero tolerance for sexual abuse, may encourage staff who would otherwise remain
silent, despite mandatory reporting laws, to report sexual abuse and sexual harassment.
Comment. In the NPRM, the Department noted that the Department of Defense provides
a “restricted reporting” option that allows service members to confidentially disclose the details
of a sexual assault to specified employees or contractors and receive medical treatment and
counseling without triggering the official investigative process and, subject to certain exceptions,
without requiring the notification of command officials or law enforcement. See Department of
Defense Directive 6495.01, Enclosure Three; Department of Defense Instruction 6495.02.
NPRM Question 23 asked whether the final standards should mandate that agencies provide
inmates with the option of making a similarly restricted report to an outside public entity, and to
what extent, if any, such an option would conflict with applicable State or local law.
Correctional agencies that responded to this question were generally opposed to a
reporting option that would prohibit an official investigation. Agencies stressed the need to
adequately investigate any potential abuse in order to ensure inmate safety and compliance with
other standards. Some stated that a restricted reporting option would conflict with the goals of a
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zero-tolerance policy; others suggested it could conflict with State laws requiring mandatory
reporting. One commented that a restricted reporting option would be contrary to the intent of
the Prison Litigation Reform Act, which seeks to encourage issues to be brought to the attention
of prison administrators before litigation occurs. Advocacy groups generally did not focus on
Question 23, but many advocate comments recommended that the standards return to the
NPREC’s proposed language that allowed inmates to request confidentiality or permit
confidential reports “to the extent allowable by law.” One law student stated that inmates should
be entitled to separate their need for medical care from the investigation process, particularly if
the inmate believes an investigation is unlikely to positively affect the situation or may lead to
danger.
Response. Restricted reporting represents a tradeoff between the victim’s interest in
privacy and preventing retaliation and, on the other hand, the institution’s interest in identifying
the abuser for purposes of discipline and preventing further abuse. In some cases, a victim will
be too fearful to report if he or she knows that the information will be disseminated beyond
medical staff. The Department recognizes that, in the absence of a restricted reporting policy,
some victims will not seek needed care.
The cost of a restricted reporting policy, however, is that the institution cannot take steps
to prevent the recurrence of the abuse. The dynamics of sexual abuse in correctional facilities
make it quite likely that an abuser will subsequently abuse other inmates. An agency that learns
of such abuse is far better equipped to prevent future incidents.
Given the competing costs and benefits of restricted reporting policies, the Department
chooses not to include in the standards a requirement to adopt a restricted reporting option.
Instead, provisions in other standards are designed to mitigate the risks that inmates may be too
fearful to come forward. The final standard requires each prison, jail, and juvenile facility to
provide multiple ways for inmates to report sexual abuse and sexual harassment, including at
least one external reporting mechanism. Anonymous reports must be accepted, but all reports
will be forwarded to the facility for investigation. These requirements will enable some inmates
who are reluctant to report to facility authorities some ability to find support, and may lead them
to reconsider their initial decision not to come forward. In addition, this system should ensure
that the facility is made aware of allegations of abuse, while protecting the identities of those
inmates who would not come forward if they were not permitted to report anonymously. Finally,
§§ 115.82 and 115.83 provide that facilities may not condition any medical or mental health care
on the victim’s cooperation with any ensuing investigation. A victim who needs care but is
reluctant to name the perpetrator of the abuse—or who may not even admit that the injury
occurred as result of a sexual assault—must be offered the same level of care as any other inmate
presenting similar injuries. Given these requirements, the Department has determined it is not
necessary to include a restricted reporting option.
Comment. Some advocacy organizations recommended that the Department include
NPREC supplemental immigration standard ID-7, which would require agencies to provide
contact information for relevant consular and DHS officials to immigration detainees. These
commenters noted that, for these detainees, the DHS Office of the Inspector General and the
Office for Civil Rights and Civil Liberties, as well as consular offices, serve the ombudsperson
function that is contemplated in the final standard and thus should be made available to
immigration detainees who complain of sexual abuse.

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Response. The final standard requires that individuals detained solely for civil
immigration purposes in State, local, or BOP facilities be provided with information on how to
contact relevant consular officials as well as relevant DHS officials.
Exhaustion of Administrative Remedies (§§ 115.52, 115.252, 115.352)
Summary of Proposed Rule
Paragraph (a) of the standard contained in the proposed rule governed the amount of time
allotted inmates to file a request for administrative remedies (typically known as grievances)
following an incident of sexual abuse. The proposed standard set this time at 20 days, with an
additional 90 days available if an inmate provides documentation, such as from a medical or
mental health provider or counselor, that filing sooner would have been impractical due to
trauma, removal from the facility, or other reasons.
Paragraph (b) of the proposed standard governed the amount of time that agencies have to
resolve a grievance alleging sexual abuse before it is deemed to be exhausted, in order to ensure
that the agency is allotted a reasonable amount of time to investigate the allegation, after which
the inmate may seek judicial redress. Paragraph (b) required that agencies take no more than 90
days to resolve grievances alleging sexual abuse, unless additional time is needed, in which case
the agency may extend up to 70 additional days. The proposed standard did not count time
consumed by inmates in making appeals against these time limits.
Paragraph (c) required that agencies treat third-party notifications of alleged sexual abuse
as a grievance or request for informal resolution submitted on behalf of the alleged inmate victim
for purposes of initiating the agency administrative remedy process. The proposed standard
required reports of sexual abuse to be channeled into the normal grievance system (including
requests for informal resolution where required) unless the alleged victim requested otherwise.
This requirement exempted reports from other inmates in order to reduce the likelihood that
inmates would attempt to manipulate staff or other inmates by making false allegations. The
proposed standard permitted agencies to require alleged victims to perform properly all
subsequent steps in the grievance process, unless the alleged victim of sexual abuse is a juvenile,
in which case a parent or guardian could continue to file appeals on the juvenile’s behalf unless
the juvenile does not consent.
Paragraph (d) governed procedures for dealing with emergency claims alleging imminent
sexual abuse. The proposed standard required agencies to establish emergency grievance
procedures resulting in a prompt response—unless the agency determined that no emergency
exists, in which case the grievance could be processed normally or returned to the inmate, as
long as the agency provides a written explanation of why the grievance does not qualify as an
emergency. To deter abuse, the proposed standard provided that an agency could discipline an
inmate for intentionally filing an emergency grievance where no emergency exists.
Changes in Final Rule
The final standard includes numerous changes.
First, the final standard requires that agencies not impose any deadline on the submission
of a request for administrative remedies regarding sexual abuse incidents.
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Second, the final standard no longer requires agencies to treat third-party notifications of
alleged sexual abuse as a grievance or request for informal resolution submitted on behalf of the
alleged inmate victim for purposes of initiating the agency administrative remedy process.
Rather, the final standard requires agencies to allow third parties to submit grievances on behalf
of inmates. If a third party submits such a request on behalf of an inmate, the facility may
require as a condition of processing the request that the alleged victim agree to have the request
submitted on his or her behalf, and may also require the alleged victim to personally pursue any
subsequent steps in the administrative remedy process. The final standard also provides that
third parties, including fellow inmates, staff members, family members, attorneys, and outside
advocates, shall be permitted to assist inmates in filing requests for administrative remedies
relating to allegations of sexual abuse.
Third, the final standard revises the emergency-grievance provision, which allows an
inmate to seek an expedited response where the inmate alleges that he or she is subject to a
substantial risk of imminent sexual abuse. As in the proposed standard, the final standard
requires an initial agency response within 48 hours and a final decision within five days.
However, the standard no longer requires that, if the agency determines that no emergency
exists, it must process the grievance as a non-emergency grievance.
The final standard forbids agencies from requiring inmates to seek informal resolution of
a grievance alleging sexual abuse as a prerequisite to submitting a formal request for
administrative remedies.
The final standard provides that agencies shall ensure that inmates may submit requests
for administrative remedies without needing to submit the request to the alleged abuser, and that
no request will be referred to an alleged abuser.
The final standard states expressly that an agency that lacks administrative procedures to
address inmate grievances regarding sexual abuse need not create such procedures in order to
comply with the standard.
Comments and Responses
Comment. Several State correctional agencies asserted that imposing a standard
governing the exhaustion of administrative remedies would undermine or violate the Prison
Litigation Reform Act (PLRA).
Response. The final standard is not inconsistent with the PLRA. The PLRA does not
require a State to impose any particular administrative exhaustion requirements. Rather, the
PLRA requires that an inmate exhaust “such administrative remedies as are available” before
bringing an action under Federal law. 42 U.S.C. 1997e(a). The PLRA thus affords States a
procedural defense in court by requiring inmates with grievances to satisfy such administrative
exhaustion requirements as States may adopt. Providing a State with an incentive to structure an
administrative remedy in a particular manner would not relieve an inmate of the PLRA’s
requirement that he or she exhaust whatever administrative remedies a State ultimately chooses
to make available. Furthermore, the PLRA does not immunize from change any exhaustion
requirements that States may adopt, nor does it bar the use of Federal financial incentives, such
as the incentives provided by PREA, to induce States to revise their requirements.
Comment. Several correctional agency commenters noted that they either do not have
administrative remedy proceedings at all, or otherwise do not apply their administrative remedy
proceedings to allegations or grievances involving sexual abuse. Some such commenters, joined
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by a number of advocacy organizations, suggested that administrative remedy procedures are not
appropriate for grievances involving sexual abuse.
Response. Paragraph (a) of the final standard clarifies that an agency need not create
administrative procedures to address grievances involving allegations of sexual abuse if it
currently lacks such procedures. This standard is meant to govern only the contours of
administrative remedy procedures, due to the fact that under the PLRA, exhaustion of any such
procedures is a prerequisite to access to judicial remedies. The Department leaves to agency
discretion whether to utilize such administrative remedies as part of its procedures to combat
sexual abuse. As noted in § 115.51 and its counterparts, agencies must provide multiple internal
ways to report abuse, as well as access to an external reporting channel. A grievance system
cannot be the only method—and should not be expected to be the primary method—for inmates
to report abuse. Agencies should remain aware that inmates’ concern for confidentiality and fear
of retaliation, whether or not well-founded, may discourage inmates from availing themselves of
administrative remedies.
An inmate in an agency that lacks any administrative remedies may proceed to court
directly. Accordingly, this standard is inapplicable to agencies that lack administrative remedy
schemes. Likewise, if an agency exempts sexual abuse allegations from its administrative
remedies scheme, an inmate who alleges sexual abuse may proceed to court directly with regard
to such allegations, and this standard would not apply. Some agencies exempt sexual abuse
allegations from their remedial schemes entirely, such as the West Virginia Division of
Corrections,33 while others exempt only such allegations against staff, such as the City of New
York Department of Correction.34 In the latter case, this standard would continue to apply to
allegations against inmates.
Comment. Many advocates recommended that the final standard require that agencies
not impose any time limit for submitting administrative grievances alleging sexual abuse. These
commenters opined that inmates may take months or even years to report sexual abuse, perhaps
waiting until their abuser is no longer housed or posted in their vicinity. Commenters stressed
that the time limits would pose particular difficulties for juveniles, who may be more hesitant
than adults to report abuse. Some advocates recommended eliminating the deadline altogether,
while others suggested that if a deadline were required, it should be 180 days.
The 90-day extension provision received significant criticism. Advocates asserted that
obtaining the documentation required by the proposed standard to justify such an extension
would be difficult at best and often impossible. Many correctional agency commenters agreed
with advocates that the 90-day extension was unworkable. One State correctional agency
commented that such a requirement might well subject its counselors and mental health
providers to complaints and lawsuits for failing to provide requested documentation in a timely
manner.
Response. After considering the many comments on this issue, the Department has
revised the standard to require that agencies not impose any time limit on the filing of a
grievance alleging sexual abuse. While some inmates will submit false grievances, it is unlikely
that the number of such false grievances will rise appreciably if an inmate is granted more time
to submit a grievance regarding sexual abuse. Even in an agency with a 20-day limit, an inmate
33

See W.Va. Code 25-1A-2(c); White v. Haines, 618 S.E.2d 423, 431 (W. Va. 2005).
See City of New York Department of Correction, Directive 3375R-A, at 2 (2008), available at
http://www.nyc.gov/html/doc/downloads/pdf/3375R-A.pdf.
107
34

who is inclined to invent an incident of sexual abuse could simply allege that it occurred within
20 days. The Department found merit in comments that expressed concern that inmates may
require a significant amount of time in order to feel comfortable filing a grievance, and might
need to wait until their abuser is no longer able to retaliate. Requiring the removal of time limits
increases the ability of such inmates to obtain legal redress and increases the chance that
litigation will play a beneficial role in ensuring that correctional systems devote sufficient
attention to combating sexual abuse.
The Department considered revising the standard to allow a lengthy time limit, such as
180 days, but concluded that no interest is served by allowing the filing of grievances up until
that point but not beyond. Importantly, one key time limit will still apply: The statute of
limitations. Federal suits filed against State officials under 42 U.S.C. 1983 are governed by the
general State personal injury statute of limitations, see Owens v. Okure, 488 U.S. 235 (1989),
which in the vast majority of States is three years or less.35 Paragraph (b)(4) clarifies that this
standard does not restrict an agency’s ability to defend a lawsuit on the ground that any
applicable statute of limitations has expired. Thus, if the applicable State statute of limitations is
three years, an inmate who files a grievance alleging that abuse occurred four years ago will be
unable to seek judicial redress after exhausting administrative remedies if the agency asserts a
statute of limitations defense. The statute of limitations provides a backstop against the filing of
stale claims, as it does for analogous claims of sexual abuse experienced in the community at
large.
Paragraph (b)(2) has been added to make clear that paragraph (b)(1) applies only to those
portions of a grievance that actually involve allegations of sexual abuse. In other words, if an
agency applies time limits to grievances that do not involve allegations of sexual abuse, inmates
may not circumvent those timelines by including such allegations in a grievance that also alleges
sexual abuse.
Comment. Several advocacy groups recommended that the final standard mandate that
agencies allow inmates to submit a formal grievance without first requiring them to avail
themselves of informal grievance processes. Commenters noted that, in cases where an inmate
alleges sexual abuse by a staff member, informal resolution may require the inmate to interact
with the perpetrator or with a person who may be complicit in the abuse.
Response. The final standard prohibits requiring inmates to seek informal resolution of a
grievance alleging sexual abuse as a prerequisite to submitting a formal request for
administrative remedies. Informal resolution typically requires the inmate to discuss the subject
of the grievance with staff. In the case of sexual abuse, this process is unlikely to resolve the
grievance, and may force the inmate to discuss the grievance with the abuser or with a staff
member who works closely with the abuser.
Comment. Several advocates recommended that the final standard require that agencies
ensure that inmates may file grievances without having contact with their alleged abusers.
Response. The final standard makes clear that agencies shall establish procedures
pursuant to which inmates can submit grievances alleging sexual abuse to staff members who are
35

See Martin A. Schwartz, 1 Section 1983 Litigation § 12.02[B][5] (2007 ed.). Several courts of appeals have held
that the same statute of limitations should apply to actions against Federal officials filed under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Kelly v. Serna, 87 F.3d
1235, 1238 (11th Cir. 1996) (citing cases).

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not subjects of the complaint, and that such grievances may not be referred to any subject of the
complaint. These explicit protections will help ensure that inmates are not dissuaded from
submitting grievances following sexual abuse, and that staff members who are subjects of such
grievances cannot influence the administrative process that ensues.
Comment. Few comments were received on the elements of the proposed standard that
governed the amount of time to resolve administrative grievances involving allegations of sexual
abuse. A few commenters believed the timeframe was too long, while one State correctional
agency recommended extending the presumptive time limit from 90 days to 100.
Response. The final standard retains the basic structure of this provision, with certain
changes. Paragraph (d)(2) clarifies that the 90-day time period does not include time consumed
by inmates “in preparing any administrative appeal,” rather than merely “in appealing any
adverse ruling.” The revised language is more accurate and inclusive, because in some cases
inmates may appeal rulings that are not necessarily or entirely “adverse,” but that do not afford
the inmate the full remedy sought.
The Department added paragraph (d)(4) in the final standard to address comments that
the proposed standard, as written, could be interpreted to mean that a grievance might not be
considered exhausted if a correctional agency adopted the 90/160-day time limits but
nevertheless failed to timely respond to a grievance alleging sexual abuse. Paragraph (d)(4)
makes clear that, when an agency fails to respond to an administrative grievance alleging sexual
abuse according to its guidelines, an inmate may consider that failure a denial at the
corresponding level of administrative review, including at the final level (in which case, the
inmate may consider the absence of a timely response as the final agency decision for purposes
of exhaustion).
Comment. Several agency commenters stated that the proposed standard’s requirement
that an agency treat any notification of an alleged sexual assault as a grievance, regardless of the
method by which notification was made (other than by notification by a fellow inmate), would
pose administrative difficulties, particularly when such notification came from a third party.
Commenters suggested that it would be burdensome and impracticable to require staff to
complete a grievance form on behalf of an inmate whenever staff learns of an allegation of
sexual abuse.
Conversely, several commenters supported a requirement that agencies treat any
notification of alleged sexual assault as a grievance, including notifications by other inmates.
These commenters stated that complicated administrative processes could frustrate the ability of
victims of sexual abuse to exhaust their remedies and seek redress in court. Commenters noted
that difficulties in filing and exhausting grievances were particularly acute for complaints
involving sexual abuse. Further, many commenters (including correctional agency commenters)
noted that juveniles may be more susceptible to peer pressure or other factors that might dissuade
them from pursuing a valid grievance alleging sexual abuse. These commenters expressed
concern over the provision in the proposed standard that allowed agencies not to treat a
notification as a grievance if the alleged victim requests that it not be processed as such.
Response. The final standard does not require agencies to treat any notification as a
grievance. Rather, paragraph (e)(1) provides that third parties shall be allowed to submit such
grievances on behalf of inmates (and to assist inmates in submitting grievances alleging sexual
abuse). If a third party files such a request on behalf of an inmate, the facility may require as a
condition of processing the request that the inmate agree to have the request filed on his or her
behalf, and may also require the inmate to pursue personally any subsequent steps in the
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administrative remedy process. If the inmate declines to have the request processed on his or her
behalf, the standard requires that the agency document the inmate’s decision.
With regard to juvenile facilities, the final standard requires that agencies accept thirdparty grievances submitted by parents or guardians regardless of the juveniles’ acquiescence.
This revision addresses concerns that juveniles may be particularly reluctant to agree to the filing
of a grievance by a third party. Because parents and guardians represent reliable sources for
such complaints, it is appropriate to require their complaints to be treated as grievances, even
where the juvenile requests otherwise.
The Department is sympathetic to agency concerns that the requirement in the proposed
standard was impractical. In light of other changes to the proposed standard, there is less need to
require that a third-party notification be treated as a grievance. By requiring that agencies not
impose a deadline on submitting an administrative grievance alleging sexual abuse, allowing
third parties to submit grievances on an inmate’s behalf, allowing third parties to assist inmates
in filing their own grievances, and requiring agencies to implement procedures to avoid the
submission or referral of complaints to their subjects, the Department has made it significantly
easier for sexual abuse grievances to be filed by the victim or by someone acting expressly on
the victim’s behalf. As a result of these changes, the Department concludes that it is no longer
worthwhile to require agency staff to file grievances whenever they hear of an allegation.
Comment. Some commenters expressed concern that inmates may attempt to circumvent
otherwise applicable rules by piggybacking grievances that are governed by those rules onto
allegations involving sexual abuse, which may be treated differently.
Response. The final standard addresses this concern in three places. As noted above,
paragraph (b)(2) states that the agency may apply otherwise applicable time limits on any portion
of a grievance that does not allege an incident of sexual abuse. The addition of “any portion of”
in paragraph (d)(1) makes clear that the 90-day time limit applies only to those portions of
grievances that actually allege sexual abuse. These changes ensure that inmates cannot
circumvent stricter deadlines for grievances that do not involve sexual abuse by bootstrapping
such grievances onto a grievance that also alleges sexual abuse. Finally, paragraph (f)(2)
clarifies that only the portion of a grievance that involves an allegation of substantial risk of
imminent sexual abuse need be treated as an emergency grievance.
Comment. Some correctional agency commenters remarked that the emergency
procedures required in these standards will be difficult to implement.
Response. The Department believes that the time limits in the emergency procedures
provision are reasonable. As noted in the NPRM, these procedures are modeled on emergency
procedures already in place in several State correctional agencies. Numerous correctional
agencies (and many other commenters) emphasized the need for an immediate response to
serious allegations of imminent sexual abuse, and this provision should assist such efforts.
Comment. The proposed standard, in paragraphs (d)(3) and (d)(4), would have permitted
agencies to make an initial determination that an emergency grievance did not involve a
substantial risk of imminent sexual abuse, and thereafter treat the grievance not as an emergency
grievance but rather as an ordinary grievance. Numerous commenters objected to this provision
of the proposed standard, noting that agencies could make such an initial determination and thus
not be required to provide an initial response within 48 hours or a final agency decision within 5
calendar days. These commenters expressed concern that this escape valve for agencies could
essentially swallow the entire rule by allowing agencies to make an initial determination in
response to any emergency grievance and thereafter ignore the truncated timelines designed to
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address such grievances. In cases in which the agency’s initial determination was erroneous,
these commenters argued, the consequences could be disastrous for the inmate involved.
Response. The final standard requires the agency to treat all grievances alleging the
substantial risk of imminent sexual abuse as emergency grievances, even if the agency
determines that no such risk exists. In the event the agency makes that determination, it shall
document that decision, but it must do so within the timeframes required by the emergency
grievance procedure.
Comment. Numerous commenters objected to paragraph (d)(5) of the proposed standard,
noting that it would permit agencies to discipline inmates who submitted emergency grievances
while fearing imminent sexual abuse, but where the agency determined that no such danger
existed. Commenters stated that such a rule would have a chilling effect on valid grievances,
because inmates would fear reprisal if an agency made a factual determination that the grievance
did not meet the threshold required for an emergency grievance, even where the inmate believed
he or she was in danger. Some commenters recommended that no disciplinary measures should
be allowed.
Response. Paragraph (g) of the final standard provides that an agency may discipline an
inmate for submitting a grievance alleging sexual abuse only where the agency can demonstrate
that the inmate submitted the grievance in bad faith. Upon reconsideration, the Department
agrees that the proposed standard erred in allowing discipline whenever an emergency was found
not to exist, without requiring a showing of bad faith.
However, the Department declines to revise the standard to disallow disciplinary
measures entirely. Agencies should have the discretion to discipline inmates who are not victims
of sexual abuse but who attempt to circumvent agency rules by making intentionally frivolous
allegations. Such allegations not only waste agency time and resources but also may make
correctional officials more dubious about allegations of sexual abuse in general, which could
lead to valid allegations receiving insufficient attention.
Access to Outside Support Services (§§ 115.53, 115.253, 115.353)
Summary of Proposed Rule
In the standard contained in the proposed rule, paragraphs (b) and (c) of §§ 115.22,
115.222, and 115.322 required agencies to maintain or attempt to enter into memoranda of
understanding or other agreements with community service providers that could provide inmates
with confidential emotional support services related to sexual abuse. The proposed standard also
required agencies to maintain copies of agreements or documentation showing attempts to enter
into agreements.
Sections 115.53, 115.253, and 115.353 required agencies to provide inmates access to
outside victim advocacy organizations for emotional support services related to sexual abuse,
similar to the NPREC’s recommended standard. The proposed standard required that such
communications be as confidential as possible consistent with agency security needs. In
addition, the proposed standard required that juvenile facilities be instructed specifically to
provide residents with access to their attorneys or other legal representation and to their families,
in recognition of the fact that juveniles may be especially vulnerable and unaware of their rights
in confinement. The proposed standard mandated that juvenile facilities provide access that is
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reasonable (and, with respect to attorneys and other legal representation, confidential) rather than
unimpeded.
Changes in Final Rule
The final standard includes several small changes.
First, the language from § 115.22(b) and (c) and its counterparts has been moved into
§ 115.53(c) and the latter’s counterparts. Only one substantive change has been made in this
area: The final standard requires all juvenile agencies to maintain or attempt to enter into
memoranda of understanding or other agreements with community service providers that are able
to provide residents with emotional support services related to sexual abuse. The proposed
standard had exempted juvenile agencies that were legally required to provide such services to
all residents.
Second, the final standard includes, in the standards for prisons/jails and juveniles, access
to immigrant services agencies for persons detained solely for civil immigration purposes in
State, local, and BOP facilities.
Third, where the proposed standard required that the facility enable reasonable
communications with such organizations “as confidential as possible, consistent with agency
security needs,” the final standard requires that such communication be “in as confidential a
manner as possible.” The facility is also required to inform the victim of the extent to which
communications will be monitored and the extent to which reports of abuse will be forwarded to
authorities in accordance with mandatory reporting laws.
Comments and Responses
Comment. As noted above, § 115.22 of the proposed standards appeared to cause
confusion because it covered both agreements regarding outside reporting and agreements
regarding support services for victims. In addition, commenters were unclear as to how § 115.22
interacted with § 115.53, given the topical overlap.
Response. For clarity, the subject matter covered by proposed standard § 115.22 has
been moved into §§ 115.51 and 115.53, as appropriate.
Comment. Numerous nonprofit organizations and some inmates supported the
requirement in the proposed standard that agencies maintain or attempt to enter into memoranda
of understanding or other agreements with community service providers that could provide
inmates with confidential emotional support services related to sexual abuse. These
organizations recommended that the agreements between correctional agencies and victim
advocacy organizations clarify the services that the organizations can provide and the limits to
confidentiality.
Response. The Department agrees that such clarifications are a best practice and will
assist the facilities in meeting their obligation to inform victims of the extent to which reports of
abuse will be forwarded to authorities in accordance with mandatory reporting laws. As many
service providers noted, affording victims the opportunity for confidential discussions with
advocates will help them feel more supported and thus more likely to report abuse and cooperate
with its investigation and prosecution.

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Comment. A few service providers recommended expanding this standard to include
sexual harassment. One organization also recommended requiring agreements with agencies that
“help victims of sexual abuse during their transition from incarceration into the community.”
Response. The Department welcomes agencies’ participation in these activities.
However, the need is greatest with regard to victims of sexual abuse who are currently
incarcerated. Transitioning into the community is, of course, extremely important, but other
programs currently exist to serve the needs of reentry more generally.
Comment. Some correctional agencies expressed concern that this standard could
threaten the Victims of Crime Act (VOCA) funding of victim services organizations.
Response. Through a separate rulemaking process, the Department intends to propose
removing the current ban on VOCA funding for treatment and rehabilitation services for
incarcerated victims of sexual abuse. In addition, even under current requirements, victim
services organizations can use other funding to serve incarcerated victims without violating the
VOCA requirements.
Comment. The AJA noted that many jails are in rural areas and do not have local
agencies to assist.
Response. In such cases, the jail would need only to document its efforts to obtain such
assistance and show that there are no local programs that can help.
Comment. One State juvenile justice agency recommended expanding the exception in
proposed standard § 115.322, which required juvenile facilities to attempt to enter into
memoranda of understanding with community service providers to provide residents with
emotional support services related to sexual abuse. The proposed standard contained an
exception for facilities that were already legally required to provide such services; the
commenter recommended excepting all agencies that in fact provide such services, whether or
not they are legally required to do so.
Response. The final standard removes this exception. A facility’s own support services
may be helpful, but are inherently limited in this context—through no fault of their own—by
being situated in and run by the facility in which the abuse occurred, and in which the abuser
either lives or works. Whether or not a facility provides such services, therefore, does not affect
the need to allow access to outside support.
Comment. Most commenters, including some correctional agencies, expressed support
for the requirement that agencies provide inmates with access to outside victim advocates for
emotional support services related to sexual abuse. Many advocates, inmates, and a United
States Senator expressed concern regarding language in the proposed standard requiring
confidentiality only if “consistent with agency security needs.” These commenters noted that
victims who receive confidential support are more likely to report their assault and cooperate
with the investigation. Some advocacy organizations proposed replacing that phrase with “to the
extent allowed by the law.” On the other hand, one sheriff’s department expressed concern
about allowing confidential communications, because it might lead to incidents being reported to
outside organizations without enabling the facility to learn of the incidents.
Response. The Department believes that it is important for victims to have access to
confidential services. The Department concludes that “consistent with agency security needs”
should be removed because the broad phrasing could create a significant potential for overuse by
agencies. The final standard requires agencies to “enabl[e] reasonable communication between
inmates and these organizations, in as confidential a manner as possible.” The final standard
does not add the phrase “to the extent allowed by law,” because it may be difficult for agencies
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to ensure complete confidentiality with all forms of communication due to factors such as the
physical layout of the facility or the use of automatic phone monitoring systems, which may be
difficult to suspend for support calls without requiring the inmate to make a specific request.
Comment. Some advocacy groups also recommended that the juvenile standard include
access to family members and opportunities for family involvement.
Response. While the Department welcomes agencies and victims service organizations
who are able to integrate family members into the counseling process, the logistical challenges of
doing so counsel against adding such a requirement to the standard.
Comment. Various inmates and one sheriff’s office expressed concerns with the logistics
of allowing victims to contact outside support services. Many facilities are set up with open
phone banks in common day rooms, and the inmate would have to specifically request to use a
private phone in order to make a completely confidential phone call.
Response. Providing access to outside support services may involve surmounting
logistical hurdles, but the potential benefits of such access should make the effort worthwhile.
The National Resource Center for the Elimination of Prison Rape is available to help facilities
develop ways to provide such access.
The Department encourages agencies to establish multiple avenues for inmate victims of
sexual abuse to contact external victim services agencies. While not ensuring optimal privacy,
phones may provide the best opportunity for inmates to seek help in a timely manner. Privacy
concerns may be allayed through other methods of contacting outside organizations, such as
allowing confidential correspondence, opportunities for phone contact in more private settings,
or the ability of the inmate to make a request to contact an outside victim advocate through a
chaplain, clinician, or other service provider.
Comment. Another inmate stated that, because he is incarcerated for a sex crime, he was
not able to receive assistance from a sexual assault services provider.
Response. The Department expects that organizations that enter into such memoranda of
understanding should help victims of sexual abuse without regard to whether they may have
perpetrated sexual abuse in the past.
Comment. One inmate expressed a preference for in-person counseling.
Response. The Department is aware that some correctional systems have been able to
offer in-person counseling, and encourages systems to consider doing so. However, logistical
challenges militate against making this a requirement in the standard.
Comment. One State juvenile justice agency recommended that contact with outside
services be at the discretion of agency mental health staff.
Response. The purpose of this standard is for victims to be able to reach out for help
without seeking staff approval, which may require disclosing information to staff that the
resident may prefer, at least for the time being, to remain confidential.
Comment. A regional jail association recommended providing specific actions or
checklists to help guide auditors.
Response. The National Resource Center for the Elimination of Prison Rape will do so.
Comment. Some advocacy organizations commented that the Department should adopt
NPREC supplemental immigration standard ID-8, which would require agencies with
immigration detainees to provide those individuals with access to community service providers
that specialize in immigrant services, as well as supplemental standard ID-1, which would
mandate agreements or memoranda of understanding with these organizations. These
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commenters noted that immigration detainees who suffer from sexual abuse may have unique
needs that only specialized service providers can meet.
Response. The Department agrees that agencies covered by these standards should
provide immigration detainees with access to service providers that can best meet their needs.
The final standards require that State, local, or BOP facilities that detain individuals solely for
civil immigration purposes provide those individuals with access to immigrant services agencies.
It also requires agencies to enter into, or attempt to enter into, agreements with organizations that
provide these services.
Third-Party Reporting (§§ 115.54, 115.154, 115.254, 115.354)
Summary of Proposed Rule
The standard contained in the proposed rule required facilities to establish a method to
receive third-party reports of sexual abuse and to distribute publicly information on how to report
sexual abuse on behalf of an inmate. In addition, the proposed standard required juvenile
facilities to distribute such information to residents’ attorneys and parents or legal guardians.
Changes in Final Rule
The final standard includes the proposed requirements and adds sexual harassment to its
scope. The final standard also references “agency” instead of “facility.”
Comments and Responses
Comment. A State association of juvenile justice agencies commented that the
requirement to distribute information on reporting to the residents’ attorneys and their parents or
legal guardians would significantly increase postage expenses and suggested instead that the
information could be posted on a facility’s website.
Response. This standard does not require mailings. The agency may, in its discretion,
make such information readily available through a website, postings at the facility, printed
pamphlets, or other appropriate means.
Comment. Some advocacy groups for juveniles recommended adding other family
members to the list of people who will receive this information, because it is common for youth
in juvenile facilities to have been raised by grandparents or other family members.
Response. The Department encourages facilities to provide notice to other family
members at its discretion, but believes that requiring the provision of such notice to parents and
legal guardians, plus attorneys, is sufficient for the purposes of a national standard.
Comment. Some advocacy organizations recommended adding sexual harassment to this
standard.
Response. Because sexual harassment can lead to further abusive behavior, the
Department agrees that it is appropriate to allow third parties to report incidents of sexual
harassment, as well as sexual abuse, and has made this change.
Staff and Agency Reporting Duties (§§ 115.61, 115.161, 115.261, 115.361)
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Summary of Proposed Rule
The standard contained in the proposed rule required that staff be trained and informed
about how to properly report incidents of sexual abuse while maintaining the privacy of the
victim. The proposed standard also required that staff immediately report (1) any knowledge,
suspicion, or information regarding incidents of sexual abuse that take place in an institutional
setting, (2) any retaliation against inmates or staff who report abuse, and (3) any staff neglect or
violation of responsibilities that may have contributed to the abuse. The proposed standard also
required that the facility report all allegations of sexual abuse to the facility’s designated
investigators, including third-party and anonymous reports.
Changes in Final Rule
The final standard includes several small changes. In paragraph (a), the staff reporting
requirements have been expanded to add sexual harassment, in addition to sexual abuse. This
paragraph no longer refers to incidents that occur in an “institutional setting,” but rather refers to
incidents that occurred in a “facility, whether or not it is part of the agency.” In §§ 115.61(e),
115.261(e), and 115.361(f), the final standard requires that the facility report all allegations of
sexual harassment, as well as sexual abuse, to the facility’s designated investigators.
In paragraph (b) of §§ 115.61, 115.161, and 115.261, and in paragraph (c) of § 115.361,
the Department has clarified the exception that allowed staff to reveal information relating to a
report of sexual abuse to “those who need to know, as specified in agency policy, to make
treatment, investigation and other security and management decisions.” The Department has
replaced “those who need to know” with “to the extent necessary” in order to clarify that staff
should not share information relating to a sexual abuse report unless necessary for the limited
purposes listed in the rule.
In §§ 115.61(c) and 115.261(c), the final standard requires medical and mental health
practitioners to inform inmates and residents of “the limitations of confidentiality,” as well as of
their duty to report.
For precision and consistency, the Department has qualified “victim” with “alleged” in
§§ 115.61(d), 115.161(c), 115.261(d), and 115.361(d).
Finally, the Department has made several changes to § 115.361(e)(3). The final standard
no longer requires that courts retaining jurisdiction over a juvenile be notified of any allegations
of sexual abuse. Rather, it requires that, where a court retains jurisdiction over an alleged
juvenile victim, the juvenile’s attorney or other legal representative of record be notified within
14 days of receiving the allegation.
Comments and Response
Comment. Several commenters recommended that the standard apply to reports relating
to sexual harassment as well as sexual abuse.
Response. Sexual harassment can be a predictor of and precursor to sexual abuse, and
should be brought to the attention of agency and facility leadership who can determine the
appropriate response, if any. The final standard therefore mandates that staff be required to
report any knowledge, suspicion, or information regarding an incident of sexual harassment that
occurred in a facility, retaliation against inmates or staff who reported such an incident, and any
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staff neglect or violation of responsibilities that may have contributed to an incident of sexual
harassment. In addition, the final standard requires that facilities report allegations of sexual
harassment to their designated investigators.
Comment. A State juvenile justice agency noted that the phrase “institutional setting” is
undefined and recommended replacing it with “facility.”
Response. The Department agrees, and has changed §§ 115.61(a), 115.261(a), and
115.361 to clarify that staff must report any knowledge, suspicion, or information regarding an
incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part
of the agency.
Comment. Several commenters requested that the standard allow for greater
confidentiality between inmates and medical and mental health staff. A State child services
agency observed that the requirement that clinicians disclose their duty to report before
providing services could have a chilling effect on youth’s willingness to report, and may prevent
necessary investigation and treatment. An advocacy group recommended that the standards
afford inmates an opportunity to speak confidentially with medical and mental health staff about
sexual abuse. Other advocacy groups recommended removing the requirement under
§§ 115.61(c), 115.161(c), and 115.261(c) that medical and mental health practitioners report
sexual abuse unless otherwise precluded by State or Federal law. Instead, these commenters
would require practitioners to determine whether, consistent with Federal, State, or local law and
the standards of their professions, they are required to report sexual abuse and to disclose these
reporting requirements to patients. In addition, these groups requested that the standards compel
providers to inform patients of any duty to report, as well as the limits of confidentiality, both at
the initiation of services “and each time the practitioner makes the determination that he or she is
required or permitted to breach confidentiality.” Finally, these organizations would add
language requiring that the agency specify in a written policy the extent of health care providers’
obligations to report sexual abuse.
Response. The Department agrees with commenters that it is essential that victims of
sexual abuse feel comfortable seeking medical and mental health care services, and recognizes
that some individuals may choose not to do so upon learning of their provider’s duty to report.
However, it is also critical that incidents of sexual abuse be brought to the attention of facility
and agency staff to enable the appropriate response measures detailed elsewhere in these
standards. The Department has therefore maintained the reporting requirement for medical and
mental health practitioners, unless otherwise precluded by law. Because this language is
preserved, a requirement that the agency specify in a written policy the extent of health care
providers’ obligations to report sexual abuse is unnecessary. The Department has, however,
accepted the commenters’ recommendation that practitioners be required to inform patients of
“the limitations of confidentiality,” as well as of the practitioners’ duty to report, in order to
emphasize that, while inmates should never be discouraged from reporting abuse, they must
understand that correctional medical and mental health practitioners cannot ensure complete
confidentiality.
Comment. Advocates also recommended adding language to §§115.61(b), 115.161(b),
and 115.261(b) to clarify that personnel who need to receive information related to a sexual
abuse report in order to make treatment, investigation, and other security and management
decisions shall receive only the information necessary for them to perform their job functions
safely and effectively. These commenters stated that the fact that a staff member needs some
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information about a sexual abuse report does not mean that all such information must, or should,
be shared.
Response. The Department agrees that it is important to limit, to the extent possible, the
information shared relating to a sexual abuse report. An individual who needs to know certain
information relating to a sexual abuse report should receive only the information necessary to
make treatment, investigation, and other security and management decisions—and no more. The
Department has therefore replaced the phrase “other than those who need to know” under
§§ 115.61(b), 115.161(b), 115.261(b), and 115.361(c) with “other than to the extent necessary.”
This revision makes clear that the standard requires facilities to prohibit the sharing of any more
information than is necessary to make treatment, investigation, or other security and management
decisions.
Comment. One State correctional agency recommended clarifying that the facility head
is the person responsible for ensuring that all allegations of sexual abuse, including third-party
and anonymous reports, are reported to appropriate investigative staff.
Response. The Department does not believe clarification is necessary. To the extent the
facility head is responsible for all facility operations, he or she is responsible for ensuring that
allegations are reported appropriately. The facility head may, of course, delegate responsibilities
to other supervisory staff who ultimately report to the facility head.
Comment. An inmate and an advocacy organization recommended that agencies be
required to take disciplinary action against staff who do not report their knowledge, suspicion, or
information relating to sexual abuse.
Response. The Department agrees that discipline may be warranted in such contexts, but
believes that is adequately addressed under §§ 115.76, 115.176, 115.276, and 115.376, which
govern disciplinary sanctions for staff. That standard provides, in paragraph (a), that “[s]taff
shall be subject to disciplinary sanctions up to and including termination for violating agency
sexual abuse or sexual harassment policies.”
Comment. A State office of juvenile justice suggested replacing “promptly” with
“immediately” under §115.361(e)(1), because “promptly” is ambiguous and subject to
interpretation.
Response. The Department trusts that facilities will accurately interpret “promptly” to
mean “without delay.”
Comment. One commenter recommended that States pursue and investigate allegations
of violence against children through the relevant agency, such as child welfare agencies, that
investigate analogous allegations in the community.
Response. Each State has its own reporting system for allegations of child abuse and
neglect, and the final standard requires agencies and staff to comply with the State’s child abuse
reporting laws. The final standard allows States appropriate discretion in determining which
agency conducts the investigation; a bright-line rule requiring a child welfare agency to conduct
the investigation would not necessarily ensure that investigations are conducted optimally.
Comment. Several commenters raised concerns about § 115.361(e)(3). State juvenile
justice agencies urged clarification that notice to the court is required only where the court
retains jurisdiction over an alleged juvenile victim, rather than jurisdiction over an alleged
juvenile perpetrator, in order to avoid undermining the alleged perpetrator’s due process rights.
The same commenters questioned the value of court notification of unsubstantiated allegations.
One agency asked whether notice to a juvenile’s attorney is required; an advocacy group
recommended that such notification be required to facilitate post-dispositional representation.
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Response. The final standard clarifies that the notification requirement in § 115.361(e)(3)
applies only to alleged victims, not alleged perpetrators. The Department agrees that where a
court retains jurisdiction over an alleged juvenile victim, notifying the juvenile’s attorney or
other legal representation of record of the allegation is appropriate, and has added this
requirement. Given this revision, the Department concludes that court notification is no longer
necessary. The Department has therefore replaced the court notification requirement under
§ 115.361(e)(3) with a requirement that, where a juvenile court retains jurisdiction over an
alleged juvenile victim, the facility must report an allegation of sexual abuse to the juvenile’s
attorney or other legal representative of record within 14 days of receiving the allegation.
Comment. A coalition of juvenile advocacy organizations proposed revising the
parent/guardian notification exception in § 115.361(e)(1) from “unless the facility has official
documentation showing the parents or legal guardians should not be notified” to “unless the
facility has official documentation of parental termination, or has notice of other circumstances
related to a youth’s physical or emotional well-being which indicate that parents or legal
guardians should not be notified.”
Response. The Department concludes that requiring “official documentation”
appropriately defines the scope of agency discretion, and helps ensure that decisions will be
objective and not influenced by a desire to withhold information that could reflect poorly upon
the facility.
Comment. A number of advocates expressed concern that the proposed standard fails to
provide guidance regarding age of consent laws as they relate to how juvenile facilities should
handle the reporting of incidents of voluntary sexual contact between residents.
Response. The Department believes these concerns are addressed under the staff training
requirements of § 115.331, which requires specific training on, among other topics,
distinguishing between consensual sexual contact and sexual abuse between residents, relevant
laws regarding the applicable age of consent, and how to comply with relevant laws related to
mandatory reporting of sexual abuse to outside parties.
Agency Protection Duties (§§ 115.62, 115.162, 115.262, 115.362)
The Department has added this standard, which did not appear in the proposed rule, in
order to make explicit what was implicit in the proposed rule: That an agency must act
immediately to protect an inmate whenever it learns that he or she faces a substantial risk of
imminent sexual abuse.
Reporting to Other Confinement Facilities (§§ 115.63, 115.163, 115.263, 115.363)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.62, 115.162, 115.262,
and 115.362) required that a facility that receives an allegation that one of its inmates was
sexually abused at another facility must inform that other facility of the allegation within 14
days. The proposed standard also required the facility receiving the information to investigate
the allegation.
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Changes in Final Rule
The Department has made several small changes to this standard. In order to ensure that
facilities report allegations promptly, the Department has removed reference to the 14-day
timeframe in paragraph (a) and has added a new paragraph (b) requiring that such notification be
provided as soon as possible, but no later than 72 hours after receiving the allegation. The final
standard no longer requires that notification be in writing.
In paragraph (a), the Department has removed the word “central” from the phrase, “the
head of the facility or appropriate central office of the agency.” In the paragraph formerly
designated as (b), now designated as (d), the Department has replaced “central office” with
“agency office.”
The Department intends for all facilities, including community confinement facilities, to
report allegations of sexual abuse occurring at any other facility. Accordingly, in § 115.263, the
Department has replaced the phrase “while confined at another community corrections facility”
with “while confined at another facility.”
In § 115.163, the Department has replaced the phrase “while confined at another facility
or lockup” with “while confined at another facility,” to clarify that the definition of facility
includes lockups.
Comments and Responses
Comment. Numerous commenters, including both advocacy groups and correctional
agencies, recommended shortening the 14-day timeframe. Several commenters suggested
replacing “Within 14 days of . . .” with “Immediately upon . . .” One advocacy group
recommended requiring that verbal notice be provided within one business day, followed by
notice in writing within three business days. However, one county probation department
recommended extending the timeframe by allowing for a written report within 30 days, noting
that there may be occasions where the initial fact-gathering takes additional time, especially if
the complaint is against the facility manager.
Response. The Department is persuaded that a 14-day timeframe for reporting to other
facilities is too long, and that facilities should be required to report allegations of sexual abuse
occurring at other facilities to those facilities as soon as possible to encourage and facilitate a
prompt investigation. The Department has therefore revised the standard to require that facilities
provide notification as soon as possible, but no later than 72 hours after receiving an allegation.
Because written notification may not be as prompt as other means of notification, the
Department has removed the requirement that notification be in writing. Facilities are
encouraged, however, to document such notification in writing as a supplement to other
notification.
Comment. Several commenters expressed concern about the logistics of the notification
requirement in paragraph (a). A juvenile detention center and an association of juvenile justice
administrators remarked that they would not necessarily be able to identify the appropriate
investigative staff at the other facility, and did not believe they should have to attempt to do so.
A county sheriff’s office suggested clarifying that notification be made to the other facility’s
PREA coordinator.
Response. Commenters’ confusion about whom to contact may stem from the reference
to the “appropriate central office.” The Department has therefore removed the term “central”
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from the phrase “appropriate central office of the agency” in paragraph (a), and has replaced
“central” with “agency” in paragraph (c). The Department has also removed the word “central”
from § 115.61(e)(1).
The Department does not expect facilities to be able to identify the appropriate
investigative staff, especially at facilities operated by other agencies. Where a facility is
uncertain about whom to contact, it may simply contact the facility head.
Staff First Responder Duties (§§ 115.64, 115.164, 115.264, 115.364)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.63, 115.163, 115.263,
and 115.363) set forth staff first responder responsibilities, recognizing that staff must be able to
adequately counsel victims while maintaining security and control over the crime scene so that
any physical evidence is preserved until an investigator arrives. Specifically, the standard
required that the first responder separate abuser and victim, seal and preserve any crime scene,
and request that the victim not take any actions that could destroy physical evidence. Where the
first staff responder is not a security staff member, the proposed standard required that the
responder be required to request that the victim not take any actions that could destroy physical
evidence, and then notify security staff.
Changes in Final Rule
The Department has made several clarifying changes to this standard. The Department
has removed the phrase “within a time period that still allows for the collection of physical
evidence” from paragraph (a) and added language to paragraphs (a)(3) and (a)(4) stating: “If the
abuse occurred within a time period that still allows for the collection of physical evidence.”
The Department has replaced “seal and preserve any crime scene” in paragraph (a)(2)
with “preserve and protect any crime scene,” which is more appropriate for non-law-enforcement
staff members, and has clarified that any evidence must be preserved until appropriate steps can
be taken to collect it. In paragraph (a)(3), the Department has clarified that victims must be
instructed to avoid actions that could destroy physical evidence, such as urinating or defecating,
only where appropriate given the incident alleged. The Department has also added a new
paragraph (a)(4), which requires the responder to ensure that the abuser not take any actions that
could destroy physical evidence.
Finally, the Department has clarified that the standard applies after learning “of an
allegation” that an inmate was sexually abused, and, as elsewhere in the final standards, has
qualified “victim” with “alleged.”
Comments and Responses
Comment. Two advocacy groups expressed concern over the phrase “within a time
period that still allows for the collection of physical evidence,” noting that physical evidence
may persist for a long time and urging that staff assume that evidence may still be available in all
cases.
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Response. The Department agrees that paragraph (a)(1), which requires the first
responder to separate the alleged victim and the alleged abuser, and paragraph (a)(2), which
requires that any crime scene be protected until appropriate steps can be taken to collect any
evidence, should not be contingent upon the amount of time that has passed between the alleged
incident of sexual abuse and the allegation. However, the Department remains of the view that it
is appropriate to request that the alleged victim, and ensure that the alleged abuser, not take
certain actions—such as brushing teeth, urinating, or drinking—only when the abuse occurred
within a time period that still allows for the collection of physical evidence. Accordingly, the
Department has removed the phrase “within a time period that still allows for the collection of
physical evidence” from paragraph (a) and has added comparable language to paragraphs (a)(3)
and (a)(4).
Comment. An inmate recommended that the final standard require that first responders
make arrangements to have the victim transported within 4-6 hours of notification for screening,
evidence collection, and treatment for sexually transmitted diseases.
Response. The Department agrees that it is critical that victims receive emergency
medical care after an incident of sexual abuse, but believes that this need is adequately addressed
under §§ 115.82, 115.182, 115.282, and 115.382.
Comment. A State juvenile justice agency recommended that § 115.364(c) remove
smoking from the list of activities that victims should be requested to avoid post-incident. The
commenter suggested that references to smoking would be inapplicable in juvenile facilities.
Response. Because juveniles are sometimes able to smuggle contraband cigarettes into
facilities, the Department has retained language requiring first responders to request alleged
juvenile victims and abusers not to take any actions that could destroy physical evidence,
including smoking.
Comment. A county juvenile justice agency suggested that this standard conflicts with
§ 115.351(e), which requires agencies to provide a method for staff to privately report sexual
abuse and sexual harassment of residents. The commenter inquired whether a staff member
could choose to abandon the responsibilities outlined in this standard and privately report the
matter instead.
Response. The requirement that agencies provide a method for staff to privately report
sexual abuse and sexual harassment of residents is consistent with the staff first responder duties
outlined in this standard. By “first responder,” the Department means the first security staff
member to respond to a report of sexual abuse. The first responder need not be the same staff
member who initially reports the allegation. For example, if a staff member privately reports
alleged sexual abuse to an investigator pursuant to §§ 115.51, 115.151, 115.251, or 115.351, the
investigator would then initiate protocols for responding to the allegation, including assigning
appropriate staff to fulfill the requirements set out in §§ 115.64, 115.164, 115.264, and 115.364.
Coordinated Response (§§ 115.65, 115.165, 115.265, 115.365)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.64, 115.164, 115.264,
and 115.364) required a coordinated response among first responders, medical and mental health
practitioners, investigators, and facility leadership whenever an incident of sexual abuse occurs.
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Changes in the Final Rule
The final standard requires the development of a written institutional plan to coordinate
responses.
Comments and Responses
Comment. NPRM Question 25 asked whether the proposed standard provided sufficient
guidance as to how compliance would be measured. Many commenters, including both agency
commenters and advocacy organizations, suggested that having a written plan would be a good
way to assess compliance. Other suggestions included documentation of responses or meeting
minutes.
Response. After reviewing the responses to this question, the Department concludes that
requiring a written plan would be the simplest and most effective way to document compliance,
and has revised the standard accordingly.
Comment. Former members of the NPREC recommended that specific details be added
to the standard, such as a list of actions to be coordinated, and that victim advocates be included
where the victim is a juvenile.
Response. The Department believes that it is not necessary to specify the set of actions to
be coordinated. As a general guide to ensuring that the victim receives the best possible care and
that investigators have the best chance of apprehending the perpetrator—and as noted in the
discussion of this standard in the NPRM—the Department recommends, but does not mandate,
coordination of the following actions, as appropriate: (1) assessing the victim’s acute medical
needs, (2) informing the victim of his or her rights under relevant Federal or State law, (3)
explaining the need for a forensic medical exam and offering the victim the option of undergoing
one, (4) offering the presence of a victim advocate or a qualified staff member during the exam,
(5) providing crisis intervention counseling, (6) interviewing the victim and any witnesses, (7)
collecting evidence, and (8) providing for any special needs the victim may have. The use of
victim advocates is discussed in response to the comments on § 115.21 and its counterparts.
Comment. Other advocate commenters recommended that the Department specifically
require formal coordinated response teams and that the written plan include a specific list of staff
positions that make up the teams and their duties.
Response. While facilities are encouraged to formalize the composition of their response
teams, the Department believes that it is not necessary to mandate a specific list of staff positions
and duties, which may change based upon experience and personnel adjustments.
Comment. Many agency commenters supported the standard, but some expressed
concerns. One agency commenter suggested that the eight actions to be coordinated might fall
exclusively within the purview of the outside criminal investigating agency.
Response. This standard would not require any agency to take actions outside the scope
of its own authority, but only to coordinate with all responders involved.
Comment. Another agency commenter requested a definition of “first responder.”
Response. The Department intends for this term to have its usual meaning: the staff
person or persons who first arrive at the scene of an incident.
Comment. One correctional agency stated that the use of a sexual assault response team
should be a recommendation rather than a mandate.
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Response. As noted in the NPRM, this standard was modeled after coordinated sexual
assault response teams (SARTs), which are widely accepted as a best practice for responding to
rape and other incidents of sexual abuse. However, whether a facility formally designates its
responders as a SART is at its discretion. As noted in the NPRM, agencies are encouraged to
work with existing community SARTs or may create their own plan for a coordinated response.
Comment. In response to NPRM Question 25, which asked whether this standard
provided sufficient guidance as to how compliance would be measured, many commenters,
including agency commenters and advocacy organizations, suggested that the existence of a
written plan should constitute compliance. Other suggestions recommended using
documentation of responses or meeting minutes as proof of compliance.
Response. The final standard requires facilities to develop a written institutional plan to
coordinate responsive actions. An auditor will measure compliance by ensuring that a facility
has such a plan in place and that the plan is sufficient to ensure a coordinated response. For
example, the auditor will assess whether the plan includes appropriate personnel or whether
additional facility staff should be involved.
Preservation of Ability to Protect Inmates from Contact with Abusers (§§ 115.66, 115.166,
115.266, 115.366)
Summary of Proposed Rule
A paragraph within a standard contained in the proposed rule (numbered as §§ 115.65(d),
115.165(d), 115.265(d), and 115.365(d)) prohibited agencies from entering into or renewing any
collective bargaining agreements or other agreements that limit the agency’s ability to remove
alleged staff abusers from contact with victims pending an investigation.
Changes in Final Rule
The final rule breaks out this provision as a separate standard, and strengthens the
standard by (1) covering the agency’s ability to limit contact with any inmate, not only alleged
victims; and (2) extending the period of time within which the agency may remove staff from
contact with victims to include the pendency of a determination of whether and to what extent
discipline is warranted. In addition, the final standard extends to any government agency
negotiating collective bargaining agreements on the correctional agency’s behalf, in recognition
of the fact that correctional agencies often do not conduct their own collective bargaining.
The final standard adds language to clarify that this standard is not intended to restrict
agreements that govern the conduct of the disciplinary process or that address whether a nocontact assignment that is imposed pending the outcome of an investigation shall be expunged
from or retained in the staff member’s personnel file following a determination that the
allegation of sexual abuse is not substantiated.
Comments and Responses
Comment. One county sheriff’s office suggested that this provision be converted into a
separate standard.
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Response. The Department agrees that it is more appropriate to treat this requirement as
a separate standard, as it is a precursor to the requirement in § 115.67 that the agency take
protective measures against retaliation.
Comment. Two State correctional agencies and a county sheriff’s office commented that
correctional agencies typically are not responsible for negotiating employee contracts.
Response. The Department has revised the standard to apply to any governmental entity
responsible for collective bargaining on an agency’s behalf.
Comment. One advocacy group recommended amending the proposed standard to make
clear that agencies may not enter into or renew contracts with private prison companies that limit
the agency’s ability to remove the alleged staff abusers from contact with victims pending an
investigation.
Response. While the standard emphasizes collective bargaining agreements, the standard
also expressly includes any “other agreement that limits the agency’s ability to remove alleged
staff abusers from contact with inmates pending the outcome of an investigation or of a
determination of whether and to what extent discipline is warranted.” The Department intends
the standard to preclude agencies from entering into any agreements that would limit the
agency’s ability to place alleged staff abusers on no-contact status during the investigatory or
disciplinary process.
Comment. One sheriff’s office predicted that this standard will limit collective
bargaining agreements.
Response. The Department does not believe that this standard will impede agencies and
unions from reaching agreements. To the extent that it does, such an (unlikely) outcome is
necessary in order to ensure that alleged staff abusers are kept out of contact with alleged
victims.
Comment. A State juvenile justice agency recommended that the contract language in
collective bargaining agreements include the following specific language: “prohibit alleged staff
abusers from contact with residents pending the results of an investigation or placing a staff
abuser on administrative leave pending the results of the investigation.”
Response. The Department does not find it necessary to require agencies to adopt
specific contract language in order to meet their obligations under this standard.
Comment. A legal services organization asserted that the proposed standard would be
ineffective because it aimed only at preserving agencies’ ability to protect inmates from contact
with abusers pending an investigation. In the commenter’s view, investigations are often little
more than whitewashes and only a small fraction of complaints are substantiated. Moreover, the
commenter asserted that corrections officials will still claim that they cannot remove staff from a
bid position unless an arbitrator agrees with their position. The commenter recommended that
the standard require facilities to prevent contact between staff and an inmate when the
administrator has an objectively reasonable belief that the staff member poses a risk to the
inmate’s safety. If the facility cannot do so because of an employment contract, the commenter
recommended that the agency be required to take all legal steps to re-negotiate that contract
during its term and, at a minimum, be directed not to enter again into such a contract.
Response. Upon reconsideration, the Department concludes that the proposed standard
was insufficiently broad in that it applied only “pending an investigation.” In addition, the
proposed standard did not appropriately address agencies’ ability to provide such protection to
all inmates. The Department has therefore extended the standard to prohibit agencies, or
governmental entities negotiating on the agency’s behalf, from entering into or renewing
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agreements that limit the agency’s ability to remove alleged staff abusers from contact with any
inmate pending the outcome of an investigation or a disciplinary determination.
This standard does not mandate that an agency take any specific action against alleged
staff abusers; rather, it requires that the agency not tie its hands by entering into a collective
bargaining agreement that limits the agency’s ability to remove a staff member from a post that
involves contact with inmates, as a prophylactic measure, while the agency determines what
happened and what measure of discipline is warranted. An agency may determine, consistent
with the standard, that it is best to decide on a case-by-case basis, taking into account the gravity
and credibility of the allegations, whether to place a staff member in a no-contact status pending
such determinations. The Department notes that placing staff accused of sexual misconduct or
other serious inmate abuse on no-contact status is a common practice in many facilities and is
consistent with best practices. This is particularly true in the context of juvenile justice facilities,
where it would be extremely unusual to permit staff accused of serious resident abuse to continue
supervising residents pending the outcome of an administrative assessment and, if appropriate,
an internal or criminal investigation.
This standard is limited in scope in that it does not purport to govern agreements
regarding the conduct of the disciplinary process, as long as such agreements are consistent with
§§ 115.72, 115.172, 115.272, and 115.372, which forbid imposition of a standard higher than a
preponderance of the evidence in determining whether allegations of sexual abuse or sexual
harassment are substantiated, and with §§ 115.76, 115.176, 115.276, and 115.376, which
generally govern disciplinary sanctions for staff and which provide that termination shall be the
presumptive disciplinary sanction for staff who have engaged in sexual abuse. In addition, the
standard does not restrict entering into agreements that address whether and in what form the
record of the staff member’s no-contact assignment will be retained in the employee’s personnel
file if the allegations against the employee are not substantiated.
The Department declines to impose further restrictions on the use of arbitration in
discipline determinations. What is crucial is establishing proper ground rules to govern the
disciplinary process, pursuant to §§ 115.72, 115.172, 115.272, and 115.372, and §§ 115.76,
115.176, 115.276, and 115.376, and ensuring that the agency has the ability to take prophylactic
action while the disciplinary process runs its course. With those conditions in place, the
Department does not believe that the final standards need restrict the use of arbitrators to review
factual findings or disciplinary determinations in order to ensure that the interests of inmates are
protected.
Agency Protection Against Retaliation (§§ 115.67, 115.167, 115.267, 115.367)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.65, 115.165, 115.265,
and 115.365) required that the agency protect all inmates and staff from retaliation for reporting
sexual abuse or for cooperating with sexual abuse investigations, in recognition of the fact that
retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse
investigations is a serious concern in correctional facilities. The proposed standard required
agencies to adopt policies that help ensure that persons who report sexual abuse are properly
monitored and protected, including but not limited to providing information in training sessions,
enforcing strict reporting policies, imposing strong disciplinary sanctions for retaliation, making
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housing changes or transfers for inmate victims or abusers, removing alleged staff or inmate
abusers from contact with victims, and providing emotional support services for inmates or staff
who fear retaliation.
The proposed standard also required that agencies monitor the conduct and treatment of
inmates and staff who have reported sexual abuse or cooperated with investigations for at least
90 days to see if there are changes that may suggest possible retaliation by inmates or staff, and
act promptly to remedy any such retaliation. In addition, the proposed standard required that
monitoring continue beyond 90 days if the initial monitoring conducted during the initial 90-day
period indicated concerns that warranted further monitoring.
Changes in Final Rule
In paragraph (a), the final standard specifies that an agency shall “establish a policy” to
protect against retaliation, “and shall designate which staff members or departments are charged
with monitoring retaliation.”
In paragraph (c), the final standard clarifies that the agency must monitor the conduct and
treatment of inmates who have been reported to have suffered sexual abuse, in addition to
inmates and staff who have reported sexual abuse directly. The final standard adds language in
§§ 115.67(d), 115.267(d), and 115.367(d) requiring that monitoring of inmates include periodic
status checks.
In addition, the final standard specifies that an agency need not continue monitoring if it
determines that an allegation is unfounded.
The final standard also includes various clarifying changes. In paragraph (b), the phrase
“including housing changes or transfers” has been changed to “such as housing changes or
transfers,” and in §§ 115.67(c), 115.267(c), and 115.367(c), “including any inmate disciplinary
reports, housing or program changes” has been changed to “[i]tems the agency should monitor
include any inmate disciplinary reports . . .” In §§ 115.67(c), 115.267(c), and 115.367(c), the list
of actions that should be considered possible evidence of retaliation now includes examples of
retaliation against staff.
Comments and Responses
Comment. A few correctional agencies recommended replacing “[t]he agency shall
protect all inmates and staff who report” with “the agency shall reasonably protect” or “shall
establish an adequate level of protection against retaliation.” Two advocacy organizations
recommended requiring that the agency establish a written policy on retaliation and designate
who is responsible for monitoring.
Response. In order to make the requirements of this standard more concrete, the
Department has revised this language to require agencies to establish a policy to protect all
inmates and staff, including designating which staff members or departments are charged with
monitoring retaliation.
Comment. While many correctional agencies expressed general satisfaction with the
proposed standard, several expressed concern that the requirement that agencies monitor for 90
days all individuals who have cooperated with an investigation was excessively burdensome,
particularly in large prison systems where hundreds of people could be involved in investigations
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at any given time. One sheriff’s office stated that identifying for monitoring purposes all inmates
who have cooperated with an investigation could raise confidentiality concerns.
Commenters offered a range of suggestions for limiting the scope of monitoring
requirements. Some correctional agencies recommended that monitoring not be required where
allegations are determined to be unfounded; another agency recommended that monitoring not be
required either for unfounded or unsubstantiated allegations. Some agency commenters
suggested that monitoring be required only of persons who “materially” cooperate with
investigations, and recommended clarifying that the provision applies to inmates who report
abuse during their present term of incarceration. Another agency would limit the monitoring
requirement to the inmate or staff member who made the report, or, if the report was made by a
third party, to the alleged victim if he or she cooperated with the investigation.
Response. Upon reconsideration, the Department has modified the monitoring
requirements in order to focus resources where monitoring is likely to be most important.
First, the Department has removed the requirement that agencies automatically monitor
all individuals who cooperate with an investigation. Instead, the final standard requires agencies
to take appropriate measures to protect any individual who has cooperated with an investigation
and expresses a fear of retaliation. The final standard retains the requirement to monitor inmates
and staff who have reported sexual abuse, and adds a requirement to monitor victims who have
been reported to have suffered sexual abuse.
Second, the Department has added language terminating the agencies’ obligation to
monitor if the agency determines that the allegation is unfounded. Monitoring remains
appropriate where an agency has classified an allegation as “unsubstantiated”—which means, as
defined in § 115.5, that the investigation produced insufficient evidence to enable the agency to
make a final determination as to whether or not the event occurred.
The Department understands the concern that identifying individuals for monitoring may
raise confidentiality issues, but believes that this risk can be managed. The Department
encourages agencies, in developing their policies, to limit the number of staff with access to the
names of individuals under monitoring and to be mindful of situations in which a staff member
who poses a threat of retaliation may also be entrusted with monitoring responsibilities.
Comment. Several commenters suggested adding the NPREC’s recommended language
requiring that the agency discuss any changes in treatment of inmates or staff with the
appropriate inmate or staff member as part of its efforts to determine if retaliation is occurring.
Response. The Department agrees that monitoring of inmates who have reported sexual
abuse or who have been reported to have suffered sexual abuse should also include periodic
status checks, and has revised the standard accordingly.
Comment. A few agencies, joined by the AJA, recommended that the standards account
for the physical limitations of smaller jails and juvenile detention centers. The AJA
recommended adding language to clarify that housing changes would occur “to the extent the
physical layout of the jail will allow.” Another commenter suggested substituting “such as” for
“including” in paragraph (b), to account for facilities that cannot make housing changes.
Response. The Department recognizes that, because of space constraints, some facilities
will not be able to accommodate housing changes, and may need to employ alternative
protection measures. To clarify that the measures included in the standard are examples rather
than requirements, the final standard replaces “including” with “such as.”

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Comment. Several agency commenters recommended clarifying how staff should be
protected from retaliation. One suggested that negative performance reviews or reassignment
could indicate retaliation against cooperating staff.
Response. To better clarify what monitoring of staff should entail, the Department has
added “negative performance reviews or reassignments of staff” to §§ 115.67(c), 115.267(c), and
115.367(c) as examples of conduct or treatment that might indicate retaliation against staff. Of
course, these are merely examples; agencies should be mindful that retaliation may be
manifested in other ways.
Comment. The Department received numerous responses to NPRM Question 26, which
asked whether the standard should be revised to provide additional guidance regarding when
continuing monitoring is warranted. Most commenters found the current language sufficient,
including many agency commenters. However, several State correctional agencies requested
additional guidance. Specific requests included: clarification of what monitoring consists of and
how it differs from general monitoring of offenders and staff; examples of what level of
monitoring would be acceptable to meet the standard and what incidents would warrant
continued monitoring; and detailed training on how to monitor. In addition, an advocacy
organization suggested that agencies restart the 90-day clock after each new incident of
retaliation; an inmate recommended that monitoring be mandated for eight months; an
anonymous commenter proposed that the standard require that monitoring continue until the
agency is reasonably certain that retaliation has ceased; and an agency asked whether the 90-day
monitoring needed to be documented in any particular way.
Response. In light of the fact that most commenters expressed satisfaction with the level
of detail included in this standard, and in order to afford agencies flexibility to develop a
monitoring policy consistent with their existing operations and professional judgment, the
Department declines to provide a detailed definition of monitoring or to list scenarios in which
continuing monitoring would be warranted. However, the Department expects that the final
standards’ addition of examples of how staff might experience retaliation, as well as the new
requirement that monitoring for certain individuals include periodic status checks, will assist
agencies in developing their policies to protect against retaliation.
The Department does not find it necessary to specify that a new incident of retaliation
must restart the 90-day clock, as the final standard requires agencies to continue monitoring
beyond 90 days if the initial monitoring indicates a continuing need. The Department trusts that
agencies will recognize that an incident of retaliation indicates a continuing need for monitoring.
Finally, in light of the requirement that agencies continue monitoring beyond 90 days if the
initial monitoring indicates a continuing need, as well as agencies’ concerns about the cost and
burden of a monitoring requirement, the Department declines to revise the standard to require
agencies to monitor for eight months.
Criminal and Administrative Agency Investigations (§§ 115.71, 115.171, 115.271, 115.371)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies that conduct their own
investigations do so promptly, thoroughly, and objectively. The proposed standard required
investigations whenever an allegation of sexual abuse is made, including third-party and
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anonymous reports, and prohibited the termination of an investigation on the ground that the
alleged abuser or victim is no longer employed or housed by the facility or agency.
The proposed standard required that investigators gather and preserve all available direct and
circumstantial evidence.
The proposed standard required that investigators be trained in conducting sexual abuse
investigations in compliance with §§ 115.34, 115.134, 115.234, and 115.334.
To ensure an unbiased evaluation of witness credibility, the standard required that
credibility assessments be made objectively rather than on the basis of the individual’s status as
an inmate or a staff member.
In addition, the proposed standard required that all investigations, whether administrative
or criminal, be documented in written reports, which must be retained for as long as the alleged
abuser is incarcerated or employed by the agency, plus five years.
Changes in Final Rule
The final standard contains several small changes.
In paragraph (a), the duty to investigate allegations promptly, thoroughly, and objectively
has been extended to sexual harassment in addition to sexual abuse.
In paragraph (e) of §§ 115.71, 115.171, and 115.271, and paragraph (f) of § 115.371, the
final standard provides that no agency shall require an inmate who alleges sexual abuse to submit
to a polygraph examination or other truth-telling device as a condition for proceeding with the
investigation of such an allegation.
In paragraph (f) of §§ 115.71, 115.171, and 115.271, and paragraph (g) of § 115.371, the
final standard provides that administrative investigations should endeavor to determine whether
staff actions or failures to act “contributed to” the abuse, rather than “facilitated to” as in the
proposed standard.
In paragraph (i) of §§ 115.71, 115.171, and 115.271, the final standard provides that the
duty to retain documents applies to “all written reports referenced in paragraphs (f) and (g),”
rather than “such investigative records” as in the proposed standard. The final standard for
juvenile facilities makes a similar change in § 115.371(j).
In paragraph (j) of the standard for juvenile facilities, the final standard allows for a
shorter retention period for written reports regarding abuse committed by residents where the
retention for the time period otherwise required by the standard is prohibited by law.
Comments and Responses
Comment. One commenter expressed concern that the restriction on conducting
compelled interviews until prosecutors are consulted failed to account for the fact that it is not
always known if a criminal prosecution is a possibility when an investigation begins.
Response. This standard requires consultation with prosecutors before conducting
compelled interviews when the quality of existing evidence would support a criminal
prosecution. The standard would not prohibit an administrative investigation when evidence
does not support a criminal prosecution. If that assessment changes during the course of an
administrative investigation due to new evidence, prosecutors should be consulted at that time.
In case of doubt at any point in the investigation, prosecutors should be consulted.
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Comment. Some advocates suggested strengthening this standard in various ways,
including by requiring consultation with prosecutors to determine whether the quality of
evidence appears to support criminal prosecution.
Response. While the Department recommends consultations with prosecutors in case of
doubt, it is not necessary to require such consultation during all investigations. Agencies usually
will be able to determine whether the contours of an incident indicate that criminal wrongdoing
may have occurred, and are encouraged to consult with prosecutors in case of doubt.
Comment. Some advocates suggested requiring that a preliminary investigation
commence immediately upon receiving an allegation of sexual abuse.
Response. The standard requires investigations to be conducted “promptly,” which is
intended to emphasize the importance of investigating without delay.
Comment. Some advocates suggested requiring agencies to rely on available, accepted
sexual assault protocols.
Response. Section 115.21 requires that agencies responsible for investigating allegations
of sexual abuse follow a uniform evidence protocol that maximizes the potential for obtaining
usable physical evidence for administrative proceedings and criminal prosecutions. Section
115.21 requires that the protocol be adapted from or otherwise based on the Department’s SAFE
Protocol, or similarly comprehensive and authoritative protocols developed after 2011.
Comment. Some advocates recommended requiring a comprehensive written plan—
including a memorandum of understanding—to guide the coordination of administrative and
criminal investigations.
Response. In the interest of affording agencies flexibility in implementing these
standards, the Department declines to mandate such a plan or memorandum, although it
encourages agencies to consider whether doing so will help coordinate its investigatory efforts.
Comment. A number of inmates stressed the importance of the provision requiring that
credibility be assessed on an individual basis, as opposed to the person’s status as inmate or staff,
given that, in their view, agencies inappropriately favor staff over inmates when their statements
conflict. One agency commenter recommended that this standard be removed, on the grounds
that it is not measurable and constitutes a best practice.
Response. Objective assessments of credibility are crucial in investigations of sexual
abuse in correctional settings, especially when abuse by staff is alleged. While this standard is
not easily quantifiable, it is quite possible that a blatant failure to abide by it will be readily
evident. For example, when an inmate makes an allegation of staff abuse, and there is no
objective evidence that the allegation is false, the investigator should attempt to find other
avenues to corroborate or disprove the allegation rather than assessing the allegation in a
vacuum. In such cases, indications in the investigative file as to whether the investigator
interviewed witnesses, reviewed the staff member’s disciplinary history, and reviewed the
inmate’s history of lodging complaints would assist the auditor in determining whether the
accuser’s status as an inmate compromised the investigation’s objectivity.
Comment. An inmate recommended that the standards be amended to allow victims the
opportunity to take a polygraph test to prove the truth of their statements. However, many
advocates opposed polygraph testing because it often yields inaccurate results and can be
traumatizing for a victim. They also noted that the Department prohibits States receiving grants
under the STOP (Services, Training, Officers, Prosecutors) Violence Against Women Formula
Grant Program from using polygraph testing for victims of sexual violence. These advocates
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recommended that the standard be amended to explicitly prohibit polygraph testing for inmates
who report abuse.
Response. The Department has amended the standard so that it prohibits agencies from
requiring inmates who allege sexual abuse to submit to a polygraph examination or other truthtelling device as a condition for proceeding with the investigation of such an allegation. This
requirement corresponds to a similar condition on the receipt of certain VAWA grants awarded
by the Department. See 42 U.S.C. 3796gg-8. The Department recognizes that polygraph
examinations are imperfect assessors of credibility. Given that States are precluded from
receiving certain funds if they condition investigations upon the alleged victim’s agreement to
submit to a polygraph test, the Department concludes that a corresponding requirement is
appropriate in the PREA context. However, this does not prohibit the administration of such
tests to victims who request them.
Comment. A few inmates recommended that the standard be strengthened by adding
language expressly prohibiting staff from attempting to coerce inmates into not reporting sexual
abuse.
Response. A prohibition against coercion of inmates is implicit in the standards,
including in the requirement in this standard to investigate all inmate accusations of sexual
abuse, and in the standard that provides for protection against retaliation.
Comment. A number of advocates recommended that the standard also encompass
investigations into allegations of sexual harassment.
Response. The Department agrees that the requirement to investigate allegations
promptly, thoroughly, and objectively should apply to allegations of sexual harassment as well,
and has amended paragraph (a) accordingly.
Comment. Some stakeholders commented that the use of the word “facilitated” in
§§ 115.71(f)(1), 115.171(f)(1), 115.271(f)(1), and 115.371(g)(1) appears to require a
determination of whether staff acted in a manner that encouraged or directly resulted in the
occurrence of the abuse.
Response. The final standard clarifies this provision by replacing “facilitated” with
“contributed to.”
Comment. A State correctional agency commented that its administrative investigations
determine facts, but do not result in “findings.”
Response. For clarity, the Department has amended §§ 115.71(f)(2), 115.171(f)(2),
115.271(f)(2), and 115.371(g)(2) to include both investigative “facts” as well as “findings.”
Comment. A number of correctional commenters asserted that the record retention
requirements in paragraph (h) of the proposed standard (paragraph (i) in the juvenile standard)
conflicted with applicable State or local law, including State or local records retention schedules.
One noted that records may not be under the full control of the agencies. In some States, the
commenter noted, juvenile records are under the control of the juvenile court and can be purged
at the request of the juvenile offender. Another commenter suggested that this requirement
would be difficult to implement, as the juvenile facility would not know when or if a person
incarcerated in an adult facility is released. A number of such commenters recommended
allowing agencies to retain records in a manner consistent with State law. One commenter
expressed concern about the cost and administrative burden of maintaining all investigative
records beyond the period of employment or incarceration, and recommended that it should
suffice to retain the final report. Another recommended that the standard require that such
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records be kept confidential and not be subject to public inspection under the Freedom of
Information Act or similar State laws.
Response. The recordkeeping requirement of this standard, now contained in paragraph
(i) (paragraph (j) in the juvenile standard) applies only to records generated pursuant to
paragraphs (f) and (g) (paragraphs (g) and (h) in the juvenile standard), which are within the
agencies’ control. There is no barrier to retaining these records beyond the length of time
mandated by this standard if required by State or local regulation (or if the agency chooses to do
so for its own reasons). To the extent that State or local laws mandate the disposal of these
records within a shorter period, agencies are encouraged to seek revisions of such laws to the
extent necessary in order to retain these documents. To reduce potential conflicts, the
Department has amended the standard to allow for a shorter retention span when the abuser is a
juvenile resident and when retention of records for the time period mandated by the standard is
prohibited by law.
The Department does not believe that the requirement of maintaining the records
generated pursuant to paragraphs (f) and (g) will prove overly burdensome, especially in light of
the clarification in the final standard that only the written reports documenting investigations
need be retained.
Finally, the Department lacks the authority to determine whether these records should be
subject to public inspection under freedom of information laws, which will depend upon the
relevant laws of the jurisdiction in which the custodian of the records is located.
Comment. One agency recommended defining “State entity” in § 115.71(k) to make
clear to which specific entity this requirement applies.
Response. As noted above, the use of “State entity” in this context refers to any division
of the State government, as opposed to local government.
Evidentiary Standard for Administrative Investigations (§§ 115.72, 115.172, 115.272,
115.372)
Summary of Proposed Rule
The standard contained in the proposed rule required that agencies not impose a standard
higher than a preponderance of the evidence in determining whether allegations of sexual abuse
are substantiated.
Changes in Final Rule
The final standard encompasses allegations of sexual harassment.
Comments and Responses
Comment. Correctional agencies and advocates generally supported this standard, though
a few agencies expressed uncertainty as to whether it applied to criminal investigations as well as
administrative investigations.
Response. As the title of the standard indicates, this standard applies only to
administrative investigations.
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Comment. Some advocates recommended that sexual harassment be added to this
standard, noting that allegations of sexual harassment typically would be dealt with through
administrative investigations.
Response. Upon reconsideration, the Department agrees with this recommendation and
has amended the standard to include sexual harassment.
Reporting to Inmates (§§ 115.73, 115.273, 115.373)
Summary of Proposed Rule
The standard contained in the proposed rule required that, upon completion of an
investigation into an inmate’s allegation that he or she suffered sexual abuse in an agency
facility, the agency must inform the inmate whether the allegation was deemed substantiated,
unsubstantiated, or unfounded. If the agency itself did not conduct the investigation, the
proposed standard required that the agency request the relevant information from the
investigating entity in order to inform the inmate. The proposed standard further provided that,
if an inmate alleges that a staff member committed sexual abuse, the agency must inform the
inmate whenever (1) the staff member is no longer posted in the inmate’s unit, (2) the staff
member is no longer employed at the facility, (3) the staff member has been indicted on a charge
related to the reported conduct, or (4) the indictment results in a conviction. The proposed
standard did not apply to allegations that have been determined to be unfounded, and did not
apply to lockups, due to the short-term nature of lockup detention.
Changes in Final Rule
The final standard adds a requirement that all such notification or attempted notification
must be documented. The final standard also expands the requirement to inform the inmate if his
or her abuser is indicted or convicted to apply where the abuser is a fellow inmate. In addition,
the final standard clarifies that the agency’s duty to report to an alleged victim terminates if the
victim is released from the agency’s custody, and terminates with regard to notifications
regarding staff reassignments, departures, indictments, or convictions if the allegation is
determined to be unfounded.
Comments and Responses
Comment. Several agency commenters expressed concern with the proposed standard on
human resource practice, security, or privacy grounds. These commenters questioned the wisdom
of providing written information to victims and third-party complainants given that, in their
view, such information could easily become widely known throughout the facility, possibly
endangering other inmates or staff.
Response. The Department does not believe that notifying an inmate that a staff member
is no longer posted within the unit or facility would imperil other inmates or staff.
Comment. Some agency commenters asserted that privacy laws may restrict the
dissemination of certain information about staff members.
Response. The Department does not believe that the disclosure of information referenced
in this standard implicates any privacy interests. Importantly, this standard does not require that
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the facility disclose the reason why the staff member is no longer posted within the inmate’s
facility or unit. Thus, the facility need not reveal whether the staff member’s absence is due to a
voluntary departure or an adverse employment action. Indictments and convictions, of course,
are public facts in which an employee or former employee has no privacy interest.
Comment. Other agency commenters suggested that gathering this information would
impose administrative difficulties, and some recommended that the investigating or prosecuting
agency be tasked with informing the inmate about indictments or convictions. One commenter
recommended that the information reported to the inmate be limited to information that was
publicly available.
Response. It is highly unlikely that an indictment or conviction would result without the
agency learning about it. Even so, the standard does not impose any affirmative burden upon
agencies to gather information for the purpose of informing inmates. Rather, it requires that the
agency inform the inmate whenever “[t]he agency learns” that a staff member has been indicted
or convicted on a charge related to sexual abuse within the facility (emphasis added).
Comment. A number of advocates recommended that the standard be amended to
provide additional information to inmates. They recommend requiring that the agency, in the
case of substantiated claims, inform the victim what the agency has done in response to the
abuse, whether administrative sanctions have been imposed, whether the agency has reported the
abuse to prosecutors, and the results of any criminal proceeding. These advocates also
recommended requiring disclosure to third-party complainants.
Response. The final standard does not incorporate these suggestions. First, while the
Department encourages agencies to communicate with victims regarding remedial action taken,
it would be an inappropriate intrusion upon agency operations to require agencies to disclose the
actions they have taken. Second, disclosing the imposition of administrative sanctions may
implicate employees’ privacy rights under governing laws. The victim’s interests in safety are
served by requiring disclosure of whether the staff member is no longer posted on the victim’s
unit or in the victim’s facility, and the victim’s interest in justice is served by requiring
disclosure of any indictments or convictions. Third, for similar reasons, the Department declines
to revise the standard to mandate disclosure of whether the agency has reported the abuse to
prosecutors, or of the results of criminal proceedings beyond the fact of a conviction. Fourth,
such interests do not support requiring disclosure to third-party complainants, who are not
similarly situated to the victim. Of course, agencies may choose to disclose additional
information, even if such disclosure is not covered by this standard.
Comment. Advocates recommended requiring documentation, signed by the inmate, that
he or she received the required information.
Response. The Department finds merit in the suggestion that such notifications be
documented and has incorporated this into the final standard. However, the Department does not
believe it is necessary to require that the inmate sign such notifications.
Comment. Some commenters expressed concern that the standard could be read to
require that information be reported to the accuser as the investigation unfolds.
Response. The final standard requires an agency to report to an inmate who has alleged
sexual abuse when the allegation has been determined to be substantiated, unsubstantiated, or
unfounded, if the abuser has been indicted or convicted on a charge related to sexual abuse
within the facility, and, if the alleged abuse was committed by a staff member, when the staff
member is no longer posted within the inmate’s unit or is no longer employed at the facility.
While agencies may determine it is prudent to provide an inmate with additional updates if an
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investigation is prolonged, the standard does not require an agency to provide information during
the course of the investigation.
Comment. Some commenters recommended that the standard define “unfounded” and
“unsubstantiated.”
Response. Section 115.5 contains definitions of “unfounded allegation” and
“unsubstantiated allegation.”
Comment. Some commenters asserted that the terms “substantiated” and
“unsubstantiated” apply only to administrative investigations and therefore recommended that
paragraph (a) be amended to apply only to administrative investigations.
Response. These terms, as defined in the final rule, are applicable to all types of
investigations. Indeed, the BJS Survey of Sexual Violence, which for several years has been
collecting data from agencies regarding substantiated, unsubstantiated, and unfounded
allegations, does not limit its inquiries to administrative investigations.
Comment. Some commenters recommended that staff be required to explain to inmates
the meaning of substantiated, unsubstantiated, and unfounded.
Response. The Department believes that the reporting requirement implicitly requires
staff to ensure that inmates understand the result of the investigation.
Comment. Other commenters recommended that the Department adopt a standard
requiring juvenile facilities to report this information to parents and legal guardians of juvenile
victims.
Response. The Department encourages juvenile facilities to share such information with
parents and legal guardians in accordance with the facility’s general policies regarding
communication with parents and legal guardians. However, because the interests implicated in
these disclosures most directly impact the victim, the Department declines to require agencies to
do so.
Comment. Some advocates recommended requiring notifications analogous to those
required by paragraph (c) when the perpetrator is another inmate.
Response. Because staff members exert complete authority over inmates, safety interests
compel the notification of inmates regarding the transfer or departure of a staff member.
Because fellow inmates lack such authority over other inmates, the Department has chosen not to
require similar notification when the perpetrator is another inmate. However, the final standard
expands the indictment/conviction notification requirement to cover cases in which the defendant
abuser is an inmate.
Comment. One correctional commenter recommended that the standard require only
“reasonable efforts” to inform an inmate, because the inmate may be released while an
investigation is still ongoing and may be difficult to locate.
Response. The final standard states that an agency has no obligation to report to inmates
who have been released from its custody.
Comment. A few correctional commenters recommended that this standard exempt
allegations that have been determined to be unsubstantiated.
Response. The Department disagrees with this recommendation. By definition, an
unsubstantiated allegation is one in which there is insufficient evidence to determine whether or
not the event occurred. The possibility that the event occurred justifies the minimal burden of
informing the inmate that the staff member is no longer posted within the inmate’s unit. In
addition, an inmate who is informed that his or her allegation is unsubstantiated may wish to
provide, or attempt to obtain, additional evidence that would benefit the investigation.
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Disciplinary Sanctions for Staff (§§ 115.76, 115.176, 115.276, 115.376)
Summary of Proposed Rule
The standard contained in the proposed rule provided that staff shall be subject to
disciplinary sanctions up to and including termination for violating agency sexual abuse or
sexual harassment policies, and that termination shall be the presumptive disciplinary sanction
for staff who have engaged in sexual touching.
The proposed standard further provided that sanctions be commensurate with the nature
and circumstances of the acts committed, the staff member’s disciplinary history, and the
sanctions imposed for comparable offenses by other staff with similar histories. If a staff
member is terminated for violating such policies, or if a staff member resigns in lieu of
termination, the proposed standard required that a report be made to law enforcement agencies
(unless the activity was clearly not criminal) and to any relevant licensing bodies.
Changes in Final Rule
The final standard provides that termination shall be the presumptive disciplinary
sanction for staff who have engaged in sexual abuse, not only sexual touching.
Comments and Responses
Comment. Several advocate commenters stated that termination should be the mandatory
sanction for employees that have engaged in sexual abuse, rather than a presumptive sanction.
Response. The Department believes that a change is not warranted, for the reasons stated
by the NPREC in the discussion section that accompanied its corresponding standard, labeled as
DI-1:
This standard requires that termination be the “presumptive” but not the
mandatory sanction for certain types of sexual abuse in recognition of the fact that
disciplinary sanctions must be determined on a case-by-case basis. Establishing
termination as a presumption places a heavy burden on the staff person found to
have committed the abuse to demonstrate why termination is not the appropriate
sanction. This presumption also requires that termination should be the rule for
the referenced types of sexual abuse, with exceptions made only in extraordinary
circumstances.36
Comment. A number of agency commenters expressed concern that collective bargaining
agreements may limit their ability to assure termination.
Response. The Department is aware that, pursuant to collective bargaining agreements,
final decisions regarding termination may rest in the hands of an arbitrator. This standard is
36

NPREC, Standards for the Prevention, Detection, Response, and Monitoring of Sexual Abuse in Adult Prisons
and Jails, 47, available at http://www.ncjrs.gov/pdffiles1/226682.pdf.
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intended to govern the sanction sought by the agency, recognizing that, in some circumstances,
the agency may not have the authority to make the final determination.
Comment. A large number of commenters across all commenter types requested that the
standard be revised to provide that termination shall be the presumptive disciplinary sanction not
only for staff who have engaged in sexual touching, but also for staff who have engaged in other
types of sexual misconduct such as indecent exposure and voyeurism.
Response. The Department has changed the term “sexual touching” to “sexual abuse.”
Comment. Some advocate commenters expressed concern that the range of discipline
contemplated in paragraph (c) was too broad. In addition, one agency commenter suggested that
the inclusion of a range of discipline was not consistent with a zero-tolerance policy.
Response. The Department has revised paragraph (c) to make clear that it refers to policy
violations that do not constitute sexual abuse. Coupled with the shift from “sexual touching” to
“sexual abuse” in paragraph (b), the final standard draws a line between sexual abuse by staff,
for which termination is the presumptive sanction, and other policy violations, for which
agencies are afforded discretion to impose discipline as warranted. Such violations may include,
for example, a failure to take required responsive actions following an incident, negligent
supervision that led to or could have led to an incident, or willfully ignoring evidence that a
colleague has abused an inmate.
Comment. An advocate commenter suggested that the final standard mandate
disciplinary sanctions for staff who regularly work on shifts when incidents of sexual abuse
occur, noting that “standing by while assaults happen is a violation of staff responsibility.”
Response. The Department agrees that a staff member’s failure to act to prevent sexual
abuse merits discipline. However, a blanket rule mandating sanctions for staff who work on
shifts when incidents occur would not be appropriate. Rather, a determination whether to impose
discipline should be made on a case-by-case basis.
Comment. Commenters in all categories requested that this standard be expanded to
include volunteers and contractors.
Response. The final rule adds a new standard, discussed immediately below, to address
this concern.
Corrective Action for Contractors and Volunteers (§§ 115.77, 115.177, 115.277, 115.377)
The final rule adds a new standard requiring that an agency or facility prohibit from
contact with inmates any contractor or volunteer who engages in sexual abuse. The standard also
requires that any incident of sexual abuse be reported to law enforcement agencies, unless the
activity was clearly not criminal, and to relevant licensing bodies. With regard to any other
violation of agency sexual abuse or sexual harassment policies by a contractor or volunteer, the
new standard requires that the facility take appropriate remedial measures and consider whether
to prohibit further contact with inmates.
The wording of this standard takes into account that contractors and volunteers are not
employees and thus are not subject to termination or discipline as those terms are typically
construed. However, the consequences set forth in this standard parallel the consequences for
staff members, with discretion left to agencies and facilities to take appropriate remedial
measures commensurate with the nature of the violation.

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Disciplinary Sanctions, Interventions, and Prosecutorial Referrals for Inmates (§§ 115.78,
115.178, 115.278, 115.378)
Summary of Proposed Rule
The standard contained in the proposed rule (numbered as §§ 115.77, 115.177, 115.277,
and 115.377) mandated that inmates be subject to disciplinary sanctions pursuant to a formal
disciplinary process following a finding that the inmate sexually abused another inmate. The
standard mandated that sanctions be appropriate for the offense, taking into account the inmate’s
history and whether any mental disabilities or mental illness contributed to the behavior.
As with sanctions against staff, the proposed standard required that sanctions against
inmates be fair and proportional, taking into consideration the inmate’s actions, disciplinary
history, and sanctions imposed on other inmates in similar situations. The proposed standard
also required that the disciplinary process take into account any mitigating factors, such as
mental illness or mental disability, and that it consider whether to incorporate therapy,
counseling, or other interventions that might help reduce recidivism.
The proposed standard provided that inmates shall not be disciplined for sexual contact
with staff without a finding that the staff member did not consent to such contact. The standard
further provided that inmates may not be punished for making good-faith allegations of sexual
abuse, even if the allegation is not substantiated following an investigation. Finally, the standard
provided that an agency must not consider consensual sexual contact between inmates to
constitute sexual abuse.
With regard to lockups, which generally do not hold inmates for prolonged periods of
time and thus do not impose discipline, the proposed standard required a referral to the
appropriate prosecuting authority when probable cause exists to believe that one lockup detainee
sexually abused another. If the lockup is not responsible for investigating allegations of sexual
abuse, the standard required that it inform the responsible investigating entity. The proposed
standard also applied to any State entity or Department of Justice component that is responsible
for investigating sexual abuse in lockups.
Changes in Final Rule
The final standard makes clear that it does not limit an agency’s ability to prohibit sexual
activity among inmates, or to discipline inmates for violating such a prohibition.
Comments and Responses
Comment. A large number of advocate commenters objected to the provision that
allowed discipline of inmates for sexual contact with staff “upon a finding that the staff member
did not consent to such contact.” Commenters criticized this language as easily exploitable by an
abusive staff member, who could coerce an inmate into sexual activity and then falsely claim that
she or he did not consent to sex with the inmate. Fearing that the language in the proposed
standard could discourage inmates from reporting staff sexual abuse, several advocate
commenters recommended allowing discipline of inmates for sexual contact with staff only if the
inmate used or threatened to use force against the staff member.
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Response. As stated in the NPRM, the responsibility for preventing inmate-staff sexual
contact presumptively rests with the staff member, due to the vast power imbalance between
staff and inmates. Even if it appears that a staff member and an inmate willingly engaged in
sexual activity, the very real possibility that the inmate was coerced into doing so militates
against automatically disciplining both parties for such behavior. Otherwise, inmates may be
reluctant to report being coerced into sexual activity by staff, for fear of discipline. For this
reason, the proposed standard required the facility to make a finding that the staff member did
not consent, rather than merely taking the word of the staff member.
However, exempting from discipline non-consensual activity that did not involve force or
threat of force would tilt too far in the opposite direction. Such a rule would exempt from
discipline, for example, a large and muscular inmate who did not use or threaten force but who
coerced a physically slight staff member into sexual activity by trapping her in a confined space.
Likewise, an inmate who drugged a staff member and sexually abused her while she was
unconscious would be immune from discipline. Finally, it is doubtful that the language
suggested by advocates would eliminate the risk of false allegations by staff members. A staff
member who would falsely allege that he or she did not consent to sexual activity with an inmate
could, if this language were adopted, instead falsely assert that the inmate had threatened to use
force. For these reasons, the Department rejects this proposed change.
Comment. Many commenters, of various types, expressed confusion over the
requirement in the proposed standard that “[a]ny prohibition on inmate-on-inmate sexual activity
shall not consider consensual sexual activity to constitute sexual abuse.” A number of
commenters appeared to interpret the use of “consensual” in the proposed standard as indicating
a permissive attitude toward inmates engaging in sexual activity.
Response. The Department did not intend to limit agencies’ ability to prohibit or
otherwise restrict inmate sexual activity. Rather, the Department meant to ensure that such
activity is not automatically classified as “sexual abuse.” The Department recognizes that it may
be difficult to discern whether sexual activity between inmates is truly consensual; activity that
may seem to be voluntary may actually be coerced. Yet it is essential that staff make
individualized assessments regarding each inmate’s behavior, and not simply label as an abuser
every inmate caught having sex with another inmate. The Department has revised this language
to make clear that the standard does not limit an agency’s ability to prohibit sexual activity
among inmates, or to discipline inmates for violating such a prohibition. However, while
consensual sexual activity between inmates may be prohibited, it should not be viewed as sexual
abuse unless the activity was coerced.
Comment. Many commenters, including advocates and agencies alike, criticized the
proposed standard for juveniles as setting an inappropriately punitive tone. Some comments
interpreted the proposed standard to require disciplinary sanctions for residents.
Response. Unlike many adult correctional systems, juvenile agencies typically operate
on a rehabilitative model, and focus on positive programming and treatment rather than
punishment. The Department agrees that juvenile agencies should have discretion as to the types
of interventions they find most appropriate in responding to sexually abusive behavior. For
example, rather than imposing a disciplinary sanction, the agency might choose to direct the
juvenile perpetrator to a sex offender treatment program aimed at rehabilitation.
In consideration of these concerns, § 115.378 is now titled “Interventions and disciplinary
sanctions for residents.” Further, the Department has reworded § 115.378 to make clear that the
standard does not require any particular type of intervention or discipline, and that juvenile
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agencies retain discretion to determine the most appropriate response. When agencies choose to
impose discipline, the sanction must be commensurate with the nature of the offense and must
take into consideration other relevant factors.
Comment. Advocate commenters strongly objected to the lack of restrictions on the use
of isolation in disciplining juveniles in the proposed standards. Some specifically requested a
72-hour time limit on the use of isolation in juvenile facilities.
Response. The final standard requires that residents in isolation shall not be denied daily
large-muscle exercise or access any to legally required education programming or special
education services. In addition, such residents must receive daily visits from a medical or mental
health care clinician, as well as access to other programs and work opportunities to the extent
possible.
The Department did not incorporate a time limit into the final standard, recognizing that
agencies must balance the wellbeing of sexually abusive youth with that of other youth in its
custody. In rare cases, a facility may find it necessary to isolate youth beyond 72 hours due to
safety and security concerns. However, isolated youth remain subject to the protections
discussed above. The Department encourages facilities to minimize their reliance on isolation
for juveniles to the greatest extent possible.
Comment. Advocate commenters also objected to language in § 115.378(d) of the
proposed standards regarding a facility’s ability to limit access to programming for abusers who
refuse to participate in therapy, counseling or interventions designed to address or correct
underlying reasons for the abuse.
Response. In recognition of the fact that some sex offender treatment programs require
admission of the underlying act, and that such an admission could have consequences for any
subsequent criminal case, the Department believes that youth should not be punished for failing
to participate. Accordingly, the Department has revised § 115.378(d) to clarify that a facility
may limit an abuser’s access to rewards-based management or behavior-based incentives due to
their failure to participate in therapeutic interventions, but may not limit access to general
programming and education. This revision is consistent with a rehabilitative approach to
juvenile corrections.
Comment. Many advocate commenters expressed concern with the Department’s lack of
guidance to juvenile agencies regarding adherence to and interpretation of State age of consent
laws and mandatory reporting requirements.
Response. The Department believes it has appropriately addressed these concerns by
expanding and specifying the training requirements in § 115.331, which now mandates training
on how to distinguish between abusive and non-abusive sexual contact between residents and on
how to comply with relevant age of consent laws and mandatory reporting. The Department
intends for these standards to be read in conjunction with, rather than to supersede, existing State
laws regarding mandatory reporting and age of consent.
Medical and Mental Health Screenings (§§ 115.81, 115.381)
Summary of Proposed Rule
The standard in the proposed rule required that inmates be asked about any prior history
of sexual victimization and abusiveness during intake or classification screenings. The proposed
standard further required that inmates be offered a follow-up meeting with a medical or mental
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health practitioner within 14 days of the intake screening. The proposed standard also limited
the inquiry required in jails by not requiring an inquiry about prior sexual abusiveness.
The proposed standard did not apply to lockups, given the relatively short time that they
are responsible for inmate care, or to community confinement facilities, which do not undertake
a similar screening process.
Changes in Final Rule
The final standard no longer requires that facilities make these inquiries during intake
screenings. Rather, the Department has replaced this language with a reference to the screening
conducted pursuant to §§ 115.41 and 115.341. The Department has also revised the standard to
require that inmates be offered a follow-up meeting when screening indicates that they have
experienced prior sexual victimization or perpetrated sexual abuse, rather than only when the
inmate discloses such information. Finally, for clarity, the Department has changed “follow-up
reception” to “follow-up meeting.”
Comments and Responses
Comment. Numerous commenters, including correctional agencies and advocacy
organizations, asserted that the screening requirements under §§ 115.81(a) and 115.381(a) were
duplicative of—and inconsistent with—the screening requirements under §§ 115.41 and
115.341. These commenters requested that the two standards be consolidated.
Response. The Department is persuaded that the separate screening requirement under
§§ 115.81(a) and 115.381(a) is unnecessary in light of §§ 115.41 and 115.341. Accordingly, the
Department has replaced this screening requirement with a reference to screenings conducted
pursuant to §§ 115.41 and 115.341.
Comment. Several commenters criticized the 14-day timeframe for a follow-up meeting
where there is an indication of prior sexual victimization or abusiveness. Several advocates and
a State council on juvenile detention suggested that 14 days was too long for victims and abusers
to wait for treatment; some commenters requested that, at a minimum, the timeframe be
shortened in juvenile facilities because of the urgency of addressing these issues among juveniles
and because of the shorter average length of stay at juvenile facilities. A State juvenile justice
agency recommended that, for youth in short-term facilities, the standard mandate a follow-up
meeting within 10 days of release from the facility or within 14 days of intake for youth that
remain in the facility. A State correctional agency recommended that treating victims receive
priority, and criticized the proposed standard for providing the same 14-day timeframe for
victims and abusers, without distinguishing between the two.
Finally, some juvenile justice agencies asserted that the 14-day timeframe under
§§ 115.81 and 115.381 is inconsistent with the requirement under §§ 115.83 and 115.383 that
facilities conduct a mental health evaluation of all known abusers within 60 days of learning of
such abuse history.
Response. The Department agrees that an inmate with a history of victimization or abuse
should receive a follow-up meeting with a health care practitioner as soon as possible. However,
some facilities, particularly smaller facilities, have limited access to medical and mental health
practitioners. While the Department encourages facilities to arrange for follow-up meetings as
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soon as possible, the final standard preserves the 14-day deadline in order to accommodate these
staffing challenges.
The requirement that prisons provide follow-up meetings within 14 days for inmates
whose intake screenings indicate prior abusiveness is distinct from—and consistent with—the
requirement that prisons attempt to conduct mental health evaluations within 60 days. The
follow-up meeting is intended to emphasize immediate mental health needs and security risks,
while the evaluation is a comprehensive mental health assessment intended to inform future
treatment plans.
Comment. A State correctional agency argued that it is appropriate to require facilities to
offer a follow-up meeting to an inmate with a history of victimization but that it should be left to
the facility’s discretion to determine whether to offer a follow-up meeting to an inmate whose
screening indicates prior abusiveness.
Response. The Department believes that the potential for reducing future incidents of
sexual abuse and creating an improved overall sense of safety within a facility justifies the
burden of requiring the facility to offer a follow-up meeting to an inmate whose screening
indicates prior abusiveness. However, as reflected in §§ 115.83, 115.283, and 115.383, the
Department agrees that it should be left to the discretion of a mental health practitioner to
determine, following a mental health evaluation, whether treatment is appropriate for a known
inmate-on-inmate or resident-on-resident abuser.
Comment. Advocacy organizations and a county sheriff’s office questioned the
Department’s decision to exclude jails from the requirement to inquire about past sexual
abusiveness. The sheriff’s office asserted that, in light of the safety risks posed by an individual
who has previously perpetrated abuse, it is especially critical that jails consider that history. By
contrast, several juvenile justice agencies and advocacy groups requested an analogous carve-out
for short-term juvenile facilities.
Response. The Department has preserved the exemption for jails from the requirement
under § 115.81 that inmates whose screenings indicate prior sexual abusiveness be offered a
follow-up meeting with a medical or mental health practitioner within 14 days, as well as the
requirement under § 115.83 that known inmate-on-inmate abusers be offered a mental health
evaluation and treatment, where deemed appropriate. Because of the smaller capacity of many
jails and high inmate turnover, it would be overly burdensome to require jails to provide mental
health follow-up meetings or evaluations for individuals whose screenings indicate prior sexual
abusiveness.
In light of the importance of providing mental health support to youth who have reported
sexual abusiveness—a point underscored by numerous commenters who requested that the 14day timeframe for a follow-up meeting be reduced for juveniles—the final standard does not
exempt any juvenile facilities from the medical and mental health care requirements for abusers.
Comment. Two State juvenile justice agencies raised concerns about the standard’s
interaction with mandatory reporting laws. One recommended that the standard require staff
members conducting screenings to provide appropriate notice regarding the agency’s mandatory
reporting obligations under State law; another suggested that the standards offer guidance on
following such laws.
Response. The Department recognizes the importance of providing staff with guidance
on how to comply with State-mandated reporting laws. However, given the range of State
mandatory reporting laws and agency policies for complying with such laws, the Department is
not in a position to provide detailed instructions for compliance. Instead, the Department has
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revised §§ 115.31, 115.131 and 115.231 to require that staff receive training on how to comply
with relevant laws relating to mandatory reporting of sexual abuse.
Comment. A State juvenile justice agency recommended adding language to the standard
to specify the distinction between previously reported and never-before-reported sexual
victimization.
Response. The Department does not find it necessary to distinguish in the standard
between new reports of sexual victimization and previously reported sexual victimization. A
resident’s history of prior sexual victimization or abusive behavior may contribute to medical or
mental health concerns, regardless of whether such victimization was previously reported upon a
prior admission to the facility. The resident should be offered a follow-up meeting with a
medical or mental health practitioner within 14 days of the new intake screening, but if the
practitioner determines through such follow-up meeting that treatment is not warranted, the
facility need not provide such services. The requirements relating to mandatory reporting laws,
confidentiality, and informed consent under the paragraphs newly designated as § 115.381(c) and
(d) adequately address any legal issues that could arise pertaining to a new report of sexual
victimization.
Comment. Two commenters raised concerns about confidentiality. A State juvenile
justice agency recommended modifying the confidentiality provisions (designated in the final
rule as §§ 115.81(c) and 115.381(c)) to specify that any information relating to sexual
victimization or abusiveness may be provided to staff only on a need-to-know basis to inform
treatment plans and security and management decisions. A county sheriff argued that an inmate
should not be able to maintain confidentiality regarding his or her prior abusiveness in
institutional settings, as it could imperil other inmates.
In addition, a State sheriffs’ association raised concerns that inquiring about an inmate’s
sexual history in a public setting, where intake screenings are currently conducted, would violate
the inmate’s privacy. The association expressed apprehension that facilities would be required to
build private screening rooms, which the association suggested would raise issues of cost and
space.
Response. The final standard requires that dissemination of information related to sexual
victimization or abusiveness be “strictly limited” to medical and mental health practitioners and
other staff, as necessary, to inform treatment plans and security and management decisions, or as
otherwise required by Federal, State, or local law. The Department interprets this to mean that
such information shall be shared only to the extent necessary to ensure inmate safety and proper
treatment and to comply with the law. The facility retains discretion in how to provide the
necessary degree of confidentiality while still accounting for safety, treatment, and operational
issues.
Sections 115.41, 115.141, 115.241, and 115.341 do not require that intake screenings
occur in private rooms. However, the Department expects that screening will be conducted in a
manner that is conducive to eliciting complete and accurate information.
Comment. A State juvenile probation commission requested that the Department define
the terms “abusiveness” and “victimization.”
Response. In light of the rule’s detailed definition of sexual abuse, the Department does
not find it necessary to define sexual abusiveness or sexual victimization.
Comment. A State juvenile justice agency recommended replacing “follow-up reception”
with “follow-up appointment,” and suggested adding a requirement to paragraph (b) that staff
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ensure that the inmate or resident is offered a follow-up appointment with a medical or mental
health provider “and is referred to a medical practitioner when indicated.”
Response. The Department agrees that the phrase “follow-up reception” is unclear and
has changed “reception” to “meeting.” As discussed above, the Department intends for a
“follow-up meeting,” in contrast to an evaluation, to entail an interaction between a health care
provider and inmate or resident in which the provider focuses on mitigating immediate mental
health concerns and assessing security risks, as well as informing decisions with regard to further
treatment. In light of the requirements for ongoing medical and mental health care under
§§ 115.83 and 115.383, the Department does not find it necessary for the standard to require that
inmates or residents be referred to a medical practitioner when indicated.
Access to Emergency Medical and Mental Health Services (§§ 115.82, 115.182, 115.282,
115.382)
Summary of Proposed Rule
The standard contained in the proposed rule required that victims of sexual abuse receive
free access to emergency medical treatment and crisis intervention services.
Changes in Final Rule
The Department has added a requirement for prisons, jails, community confinement
facilities, and juvenile facilities that victims of sexual abuse while incarcerated be offered timely
information about and timely access to emergency contraception, in accordance with
professionally accepted standards of care.
In addition, the Department has made four clarifying changes. First, the Department has
specified that sexually transmitted infections prophylaxis must be offered where “medically”
appropriate, to clarify that the assessment of whether to offer prophylaxis should be based solely
on a medical judgment. Second, the final standard specifies that such prophylaxis must be
offered in accordance with professionally accepted standards of care. Third, the final standard
clarifies that a victim cannot be charged for any of the services described in this standard, or
required to name the abuser as a condition of receipt of care. Finally, the Department has
qualified the word “access” with “timely” to underscore the time-sensitive nature of emergency
contraception and sexually transmitted infections prophylaxis and to ensure that drugs are
provided within their window of efficacy.
Comments and Responses
Comment. A number of advocacy organizations commented that major medical
organizations and sexual assault treatment guides recommend the provision of emergency
contraception as a standard part of treatment for rape victims. These commenters requested (1)
that the standards provide specific guidance regarding the provision of emergency contraception
at no cost to inmate victims who may be at risk of pregnancy, and (2) in light of the
contraceptive’s time-sensitive nature, that the standards explicitly require facilities to stock an
adequate supply of emergency contraception so that it will be immediately available. In
addition, an advocacy organization requested that the Department clarify that pregnancy-related
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services and sexually transmitted infections prophylaxis be offered without cost, and
recommended that the phrase “where appropriate” be replaced with “where medically
appropriate.” Finally, one commenter remarked that the requirement that female victims be
given access to pregnancy-related services is duplicative of §§ 115.83, 115.283, and 115.383.
Response. The Department agrees that it is essential that inmates at risk of pregnancy
following an incident of sexual abuse be given timely access to emergency contraception.
Accordingly, the Department has modified the standard to specify that such inmates shall be
offered timely information about and timely access to emergency contraception, in accordance
with professionally accepted standards of care, where medically appropriate. The Department
declines to specify that facilities must stock a particular drug, but has clarified that access to
emergency contraception must be “timely”; certainly, timeliness is achieved only if the
contraceptive is provided within its window of efficacy. To ensure that emergency contraception
and sexually transmitted infections prophylaxis are available at no cost to the victim, the
Department has moved to the end of the standard the clause requiring that treatment services be
provided to the victim without financial cost; the Department intends for the phrase “treatment
services” to encompass the provision of medical drugs. The Department has also clarified that
the determination of whether emergency contraception or sexually transmitted infections
prophylaxis should be offered to a victim must be based solely on whether the drug is
“medically” appropriate. Finally, to avoid duplication of §§ 115.83, 115.283, and 115.383, the
Department has eliminated the reference to pregnancy-related services in this standard.
Comment. Some advocacy groups recommended expanding the lockup standard to
require facilities to offer detainee victims of sexual abuse timely information about and access to
all pregnancy-related services and sexually transmitted infections prophylaxis, where
appropriate.
Response. In light of the very short-term nature of lockup detention, the Department does
not believe that it is necessary to require lockups to provide emergency contraception or sexually
transmitted infections prophylaxis. Consistent with its obligation to provide appropriate
emergency care, a lockup would transfer such a detainee to an appropriate emergency medical
provider, which would be expected to provide such care as appropriate.
Comment. One State correctional agency remarked that “unimpeded access” is nearly
impossible to ensure, even in the community.
Response. The Department has preserved the requirement that access to emergency
medical and mental health care services for sexual abuse victims be “unimpeded” to make clear
that agencies may not impose administrative hurdles that could delay access to these critical
services.
Comment. A State correctional agency recommended that the Department define the
term “sexually transmitted infections prophylaxis.”
Response. The Department intends for “sexually transmitted infections prophylaxis” to
encompass appropriate post-incident treatment to reduce the risk of sexually transmitted diseases
resulting from an incident of sexual abuse, and does not find it necessary to include a definition
for that term in the final rule.
Ongoing Medical and Mental Health Care for Sexual Abuse Victims and Abusers
(§§ 115.83, 115.283, 115.383)
Summary of Proposed Rule
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The standard contained in the proposed rule required that victims of sexual abuse receive
access to ongoing medical and mental health care, and that abusers receive access to care as well.
The standard required facilities to offer ongoing medical and mental health care consistent with
the community level of care for as long as such care is needed.
The standard also required that known inmate abusers receive a mental health evaluation
within 60 days of the facility learning that the abuse had occurred.
In addition, with respect to victims, the standard required that agencies provide, where
relevant, pregnancy tests and timely information about and access to all pregnancy-related
medical services that are lawful in the community. The Department also proposed requiring the
provision of timely information about and access to sexually transmitted infections prophylaxis
where appropriate.
Changes in Final Rule
The Department has expanded the duty to provide non-emergency medical and mental
health care to victims of sexual abuse by requiring care for individuals who were victimized in
any prison, jail, lockup, or juvenile facility rather than only for those who were victimized
“during their present term of incarceration.” However, the Department has clarified that such
care need not be “ongoing” but need be provided only “as appropriate.”
The final standard adds a requirement that victims of sexual abuse while incarcerated be
offered tests for sexually transmitted infections as medically appropriate, and clarifies that
information about pregnancy-related medical services must be “comprehensive” and access to
pregnancy-related medical services must be “timely.”
For clarity, the Department has replaced the reference to access to “all pregnancy-related
medical services that are lawful in the community” with “all lawful pregnancy-related medical
services.”
The Department has also added language, identical to a provision in § 115.82, that
requires that all treatment services under this standard be made available without financial cost to
the victim and regardless of whether the victim names the abuser or cooperates with any
investigation arising out of the incident.
Finally, the Department has made several clarifying changes to the requirement that
facilities conduct mental health evaluations of inmate abusers and offer treatment when deemed
appropriate: The final standard specifies that facilities need only “attempt” to conduct mental
health evaluations; indicates that this clause applies only to inmate-on-inmate abusers; and no
longer requires that only “qualified” mental health practitioners be permitted to determine
whether it is appropriate to offer treatment. The final standard also clarifies the wording of
references to sexual abuse victims.
Comments and Responses
Comment. A State juvenile justice agency noted that the phrase “resident victims” could
refer to individuals who were victimized prior to placement in the facility. For clarity, the
commenter also requested that the standard uniformly refer to victims of sexual abuse as
“residents who, during their term of incarceration, have been victimized.”
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Response. The Department intends for the standard to encompass individuals who were
victimized while in another facility. Accordingly, the final standard clarifies that medical and
mental health evaluation and, as appropriate, treatment must be offered to all inmates or residents
who have been victimized by sexual abuse in any facility.
Comment. A county sheriff predicted that a large percentage of inmates will claim to
have been victimized, which would overload the system and impose substantial additional costs.
Response. The final standard requires an evaluation and treatment “as appropriate.” To
the extent that an inmate falsely alleges prior victimization, such treatment would not be
appropriate. Furthermore, all facilities are already obligated to provide adequate care to meet
inmates’ serious mental health needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). By
providing evaluation and treatment to sexual abuse victims “as appropriate,” facilities are simply
providing constitutional conditions of care.
Comment. Numerous commenters expressed support for the requirement that women
who become pregnant as a result of rape receive access to pregnancy tests and timely
information about and access to pregnancy-related services. Several commenters requested that
the standard be clarified to reflect the fact that female inmates retain the right to an abortion.
These commenters recommended modifying the standard to ensure that victims who become
pregnant as a result of sexual abuse receive adequate information to make decisions about their
pregnancy as well as any assistance necessary to carry out those decisions.
In particular, a group of women’s rights organizations requested that a woman who
becomes pregnant as a result of sexual abuse while incarcerated be provided with comprehensive
and unbiased counseling on options, including information on how pregnancy will affect the
conditions of her confinement and information on the full spectrum of her parental rights and
responsibilities.
These commenters also requested that the standards specify that an incarcerated rape
victim be able to terminate her pregnancy at no financial cost, and that counseling include an
explanation that she will not have to pay for her medical care, whether she chooses to terminate
the pregnancy or carry to term. In addition, these commenters requested that facilities be
required to protect from coercion and retaliation women who accuse staff members of rape and
then choose to carry to term, and that the standards specify that facilities must provide
transportation for abortion care, distance and cost notwithstanding.
Finally, the commenters criticized as excessively vague the proposed standard’s
requirement that pregnant rape victims receive timely information about and access to all
pregnancy-related medical services “that are lawful in the community.” Commenters expressed
concern that facility staff may take an unduly narrow view in evaluating which services are
“lawful in the community,” possibly concluding that because there is no abortion provider in the
county, abortion services are not “lawful in the community.” These commenters requested that
the standard be revised to clarify that victims have access to all pregnancy-related medical
services, including the right to terminate a pregnancy or carry to term.
Response. The Department agrees that women who are sexually abused while
incarcerated and become pregnant as a result must receive comprehensive information about and
meaningful access to all lawful pregnancy-related medical services at no financial cost. The
final standard includes several clarifying revisions. First, the Department has specified that such
victims must receive timely and comprehensive information about all lawful pregnancy-related
medical services, and that access to pregnancy-related medical services must be timely. Second,
the Department has removed the phrase “that are lawful in the community” and instead required
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facilities to provide information about and access to “all lawful” pregnancy-related medical
services. Third, the Department has added a requirement that treatment services provided under
this standard be made available without financial cost and regardless of whether the victim
names the abuser. This provision mirrors the requirement under §§ 115.82, 115.282, and
115.382 that emergency services must be made available at no financial cost to the victim.
The Department believes that the commenters’ requests regarding the provision of
specific information are encompassed by the requirement that facilities provide “comprehensive”
information about all lawful pregnancy-related medical services, and that additional guidance on
transportation is unnecessary given the requirement that victims be provided “timely access” to
all lawful pregnancy-related medical services—which necessarily includes transportation.
Finally, while the Department appreciates commenters’ concern about the risk of coercion or
retaliation by staff members accused of sexual abuse in cases where a victim becomes pregnant,
the Department believes that the protections against retaliation provided in §§ 115.67, 115.167,
115.267, and 115.367 are adequate to address this risk.
Comment. A national coalition of LGBTI advocacy organizations recommended that the
standards expressly require facilities to offer testing for HIV and other sexually transmitted
infections, accompanied by counseling before and after the test and contingent upon written
consent from the inmate. However, they urged that victims should not be required to undergo
testing and not be punished for declining testing. A State juvenile justice agency also
recommended testing for sexually transmitted infections.
Response. The Department agrees that the standards should expressly require that
facilities offer testing for sexually transmitted infections, and has added a new paragraph (f) that
requires facilities to offer such tests, as medically appropriate, to victims of sexual abuse while
incarcerated. The language stating that victims “shall be offered” tests makes clear that victims
are not required to undergo such testing. The Department trusts that medical practitioners
administering such tests will adhere to professionally accepted standards for pre- and post-test
counseling and written consent.
Comment. Several State correctional agencies, sheriff’s offices, and sheriff’s associations
asserted that conducting a mental health evaluation of abusers and offering treatment where
deemed appropriate would be prohibitively costly. A State correctional agency stated that the
mental health care requirements for abusers could be burdensome and that victims should remain
the top priority. However, an advocacy organization agreed with the Department’s statement in
the NPRM that the benefit of reducing future abuse by known abusers justifies the additional
costs.
Response. The Department remains of the view that the benefit of reducing future abuse
by known inmate-on-inmate or resident-on-resident abusers—by avoiding incidents and
improving the perception of safety within the facility—justifies the cost of mental health
evaluations and, where appropriate, treatment. However, the Department underscores that, as
stated in the NPRM, the standard is not intended to require a specialized comprehensive sex
offender treatment program, which could impose a significant financial burden. The Department
believes that requiring agencies to offer reasonable treatment, when deemed appropriate by a
mental health practitioner, is justifiable in light of the anticipated costs and benefits.
The Department agrees that mental health care for victims should be the priority and
accordingly has provided more detail on the minimum standards of care for victims than for
abusers. The standard specifies that evaluation and treatment of sexual abuse victims shall
include, as appropriate, follow-up services, treatment plans, and, when necessary, referrals for
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continued care following their transfer to, or placement in, other facilities, or their release from
custody. The standard further requires that facilities provide victims of sexual abuse with
medical and mental health services consistent with the community level of care.
Comment. Numerous commenters expressed concern over the requirement that facilities
provide a mental health evaluation of all known inmate-on-inmate abusers within 60 days.
Several correctional agency commenters suggested that 60 days is too long, and recommended
reducing the timeframe to 30 days, 14 days, 7 days, or 72 hours. An advocacy organization
stated that the 60-day requirement is incompatible with the shorter average length of stay in
juvenile facilities and recommended a seven-day timeframe for juveniles, which the commenter
asserted is in line with the relevant standards established by the National Commission on
Correctional Healthcare.
Several commenters took the opposite position, and recommended extending the
timeframe or removing it all together. A State correctional agency observed that this
requirement might pose difficulties for smaller agencies, which may lack in-house staff capable
of conducting a mental health evaluation; as a compromise, the commenter recommended
requiring agencies to arrange for an evaluation within 60 days and to conduct the evaluation as
soon as practicable thereafter.
One State correctional agency suggested that conducting an evaluation within 60 days is
unrealistic due to a State law requirement that, where a determination that an inmate is a sex
offender is made pursuant to procedures established by the State department of corrections, such
determination must be made following an adversarial hearing conducted by a licensed attorney
serving as an administrative hearing officer.
Response. The Department has preserved the 60-day requirement as the best balance of
the various concerns noted by commenters. The Department acknowledges that certain inmates
with a history of abusiveness will be transferred or released from the facility before undergoing a
mental health evaluation or receiving treatment. However, smaller facilities may find it
challenging to find a practitioner equipped to provide treatment to abusers, and very short-term
treatment is likely to be ineffective. The Department has therefore constructed the standard so as
to afford facilities some flexibility.
The 60-day clock starts only upon the agency’s “learning of such abuse history”; thus,
where an agency is required to hold a hearing in order to determine whether an inmate is an
abuser, the treatment need not be offered until the determination is made.
Comment. Two State correctional agencies recommended that facilities be required only
to perform mental health assessments, rather than evaluations, on known inmate-on-inmate
abusers.
Response. An assessment is unlikely to provide a mental health practitioner with
sufficient information on which to base a determination about future treatment. Thus, the final
standard retains the evaluation requirement.
Comment. Several agency commenters raised concerns about the requirement that known
abusers be offered treatment where deemed appropriate by a mental health practitioner, asserting
that many facilities lack the time or expertise to provide effective treatment to abusers. One
agency suggested that “supportive therapy” would be a better requirement than “treatment.”
Another State correctional agency worried about the legal implications of compelling an alleged
abuser with a criminal case pending to participate in this program.
Response. The final standard requires only that the facility offer an evaluation and, if the
inmate consents to that evaluation, offer treatment “when deemed appropriate by mental health
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practitioners.” The standard does not mandate the type or extent of treatment, but leaves it to the
discretion of the mental health practitioner to recommend therapy, a structured treatment
program, medication, or whatever course of action is best suited for the needs of the specific
inmate and the capabilities of the facility. The standard does not require that abusers be
compelled to participate in treatment.
The Department notes that the standard only requires that a known inmate-on-inmate or
resident-on-resident abuser be offered treatment where deemed appropriate by a mental health
practitioner. The standard does not require the agency to compel participation.
Comment. A county correctional agency asked how long a facility would be required to
provide treatment.
Response. The standard’s reference to treatment that is “appropriate” leaves it to the
facility’s mental health practitioners to determine the length of treatment.
Comment. A State sheriff’s association and a county correctional agency asked whether
the standard requires the agency to provide treatment for abuse that did not occur in the facility.
A State juvenile justice agency observed that the standard does not distinguish between abuse
that occurred prior to incarceration and abuse that occurred during incarceration.
Response. The final standard clarifies that facilities must offer medical and mental health
evaluation and, as appropriate, treatment to all inmates or residents who have been victimized by
sexual abuse in any prison, jail, lockup, or juvenile facility.
Comment. A State correctional agency suggested that the standard refer to “inmate-oninmate” and “resident-on-resident abusers” rather than “inmate abusers” and “resident abusers”.
One State correctional agency wondered why the standard seemingly applied to staff members
who have abused inmates or residents. An individual commenter proposed classifying
individuals as “known resident abusers” by three measures: Criminal history indicating that the
resident has been found guilty of a felony sex offense or a misdemeanor sex offense involving
sexual abuse; an admission at any time to having committed sexual abuse regardless of
prosecution; or a finding of abuse following a sexual abuse allegation and subsequent
investigation. A State department of corrections asked whether “known inmate abuser” includes
someone who committed inmate-on-inmate abuse many years ago. An organization that
advocates for disability rights proposed adding a statement that the relevant abuse be defined as
having occurred within the past two years in the facility in which the individual is currently
confined, and two State juvenile justice agencies requested revising the standard to define
“known resident abusers” as residents who have committed sexual abuse or sexual harassment
during their present term of incarceration.
Response. The final standard clarifies that evaluation and treatment for abusers is
intended for “known inmate-on-inmate abusers” or “known resident-on-resident abusers.” It
does not encompass inmates or residents who committed a sex offense in the community, or staff
who have abused inmates or residents. However, the Department declines to impose a time limit
on classification as an inmate-on-inmate or resident-on-resident abuser, or a requirement that the
abuse must have occurred in the facility in which the individual is currently confined. The safety
risks posed by an individual who has previously committed sexual abuse while in a confinement
facility, and the need for mental health care, may persist regardless of where or when the incident
occurred.
Finally, in light of the unfortunate reality that sexual harassment is pervasive among
inmates and residents, the Department believes that a requirement to provide mental health
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evaluations and treatment for all inmates and residents who have committed sexual harassment
would impose an excessive burden upon facilities.
Comment. A State correctional agency requested that the standard allow for mental
health evaluations to be conducted by staff other than medical and mental health practitioners.
Response. While the standard does not specify that only medical and mental health
practitioners may conduct the mental health evaluation, generally accepted professional
standards dictate that only a qualified and trained medical or mental health practitioner can
adequately evaluate an individual’s mental health needs and determine when it is appropriate to
offer treatment.
Comment. A company that owns and manages prisons and detention centers asserted that
the requirement that mental health practitioners have special qualifications is too great a burden
to meet. A State correctional agency recommended expanding the definition of “qualified
mental health practitioner” to include a provider “who has also successfully completed
specialized training for treating sexual abusers.”
Response. The Department agrees that it may be challenging for smaller facilities to
employ mental health practitioners with documented expertise in sexual victimization or sexual
abuse, and has removed the phrase “qualified mental health practitioner.” The final standard
requires facilities to offer treatment to an inmate-on-inmate or resident-on-resident abuser when
deemed appropriate by “mental health practitioners.”
Comment. The AJA and a State jail wardens’ association commented that it would be
difficult for small, rural jails to provide treatment to abusers. They stated that jails are unlikely
to have on-site mental health services, and that the nearest mental health facility may object to
treating inmates on their premises due to the lack of a secure area. On the other hand, a county
sheriff’s office questioned why jails were excluded from the provision relating to the evaluation
and treatment of abusers.
Response. The Department agrees it may be difficult for some jails to evaluate and treat
abusers. Accordingly, the final standard preserves the exemption for jails from the provision
requiring facilities to attempt to conduct a mental health evaluation for known abusers and to
offer treatment when deemed appropriate by mental health practitioners.
Comment. A State juvenile justice agency recommended that treatment of resident-onresident abusers in juvenile facilities not be identified as sex offender treatment unless the
resident has been adjudicated for the offense.
Response. The Department trusts that facilities will refer to the treatment of known
resident-on-resident abusers in a manner that is accurate and considerate of the resident’s privacy
needs.
Comment. A juvenile detention center recommended that the Department promulgate
separate standards for short- and long-term juvenile facilities.
Response. The Department concludes that it is essential that all juvenile facilities comply
with the standard for ongoing medical and mental health care, including the provisions relating
to treatment for known resident-on-resident abusers. The final standard requires agencies to
attempt to conduct a mental health evaluation of known abusers within 60 days, recognizing that
facilities that house inmates for shorter periods of time may not be able to provide such an
evaluation. While ideally all known abusers would be offered such evaluations, the Department
notes also that those who are confined for shorter periods of time present a smaller risk of
committing further abuse.
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Sexual Abuse Incident Reviews (§§ 115.86, 115.186, 115.286, 115.386)
Summary of Proposed Rule
The standard contained in the proposed rule set forth requirements for sexual abuse
incident reviews, including when reviews should take place and who should participate. Unlike
the sexual abuse investigation, which is intended to determine whether the abuse occurred, the
sexual abuse incident review is intended to evaluate whether the facility’s policies and
procedures need to be changed in light of the alleged incident. The Department proposed that a
review occur at the conclusion of every investigation of an alleged incident, unless the
investigation concludes that the allegation was unfounded. The Department further required the
review to consider: (1) whether changes in policy or practice are needed to improve the
prevention, detection, or response to sexual abuse incidents similar to the alleged incident; (2)
whether race, ethnicity, sexual orientation, gang affiliation, or group dynamics in the facility
played a role; (3) whether physical barriers in the facility contributed to the incident; (4) whether
staffing levels need to be changed in light of the alleged incident; and (5) whether more video
monitoring is needed.
Changes in Final Rule
In order to ensure that an incident review results in timely action, the final standard
includes a new paragraph (b) specifying that the review should ordinarily occur within 30 days
of the conclusion of the investigation. In the paragraph formerly designated as (b), now
designated as (c), the Department has replaced “upper” with “upper-level.” In what was
paragraph (c)(2), now (d)(2), the Department has revised the list of factors to be considered
during the review by replacing “sexual orientation” with “gender identity; lesbian, gay, bisexual,
transgender, or intersex identification, status, or perceived status.” In what was paragraph (c)(6),
now (d)(6), “PREA coordinator, if any” has been changed to “PREA compliance manager,” and
the Department has clarified that the review team’s report must include any determinations made
pursuant to paragraphs (d)(1)-(d)(5). In addition, the final standard requires the facility either to
implement the review team’s recommendations for improvement or document its reasons for not
doing so.
Comments and Responses
Comment. Several commenters recommended that the standard specify a timeline for the
review. Two advocacy organizations suggested, in particular, that the Department implement
measurable benchmarks, including a timeline, in order to ensure that the results of an incident
review translate into action and to assist the auditor in measuring compliance with the review
provision.
Response. The final standard states that the sexual abuse incident review shall ordinarily
occur within 30 days of the conclusion of the sexual abuse investigation.
Comment. An advocacy group recommended requiring the facility head and PREA
coordinator to determine, after receiving the report, which recommendations to carry out and to
document benchmarks and a timeline for doing so as an addendum to the report.
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Response. The Department believes that the timeline added as the new paragraph (b) will
suffice to ensure timely compliance with the standard. The required submission of the report of
the review team’s findings and any recommendations to both the facility head and the PREA
compliance manager also ensures effective oversight. In addition, facilities must either
implement the recommendations for improvement or document the reasons for not doing so,
which will encourage thoughtful reform. While the Department encourages facilities to develop
a plan for implementing any revisions to their policies, the Department concludes that it is not
necessary to require documentation of benchmarks and a timeline.
Comment. Some commenters recommended that the Department add sexual harassment
to this standard, because sexual harassment is often a precursor to sexual abuse.
Response. The Department has incorporated coverage of sexual harassment into the final
standards where feasible. The Department concludes that adding sexual harassment to the
incidents requiring review would needlessly complicate the process by introducing a separate
process for sexual harassment incidents. Under § 115.11, facilities are already required to
maintain a written zero-tolerance policy toward sexual harassment. The Department believes
that the cost of requiring review of sexual harassment incidents, which may be far more
numerous than incidents of sexual abuse, could impose an unnecessary burden upon facilities
and make compliance with the standard more difficult.
Comment. Commenters recommended defining “substantiated,” “unsubstantiated,” and
“unfounded” to ensure that the meaning of the findings is understood.
Response. Section 115.5 contains definitions of “substantiated allegation,” “unfounded
allegation,” and “unsubstantiated allegation.”
Comment. Some commenters recommended that the Department require review teams to
consider, in addition to the areas listed in the standard, whether training curricula should be
modified or expanded. A juvenile advocacy organization also recommended that incident
reviews include input from victims, witnesses, family members, and guardians on how to
improve the investigation and response processes.
Response. The Department concludes that the limited benefits from these recommended
revisions would be outweighed by the additional burdens that would be imposed by adding such
requirements for every post-incident review. Of course, the Department encourages facilities to
reexamine training curricula periodically based upon accumulated knowledge gleaned from the
facilities’ experience in combating sexual abuse. And, as the commenter suggests, facilities may
wish to solicit input from victims and witnesses as a guide to improving their practices.
Comment. Several commenters recommended that the Department clarify who
constitutes an “upper-level management official” for purposes of participating in a sexual abuse
incident review.
Response. This term cannot be defined with precision; it properly affords facilities
discretion to make reasonable judgments as to which officials should participate.
Comment. A victim services organization recommended requiring that the upper-level
management responsible for review be independent from the investigation and have authority to
make agency-level changes in response to information received from the reviews.
Response. The Department believes that it is unnecessary for the standard to regulate at
this level of detail. Rather, it is preferable to leave sufficient flexibility to the facility to organize
its staff and resources to conduct an effective review. In particular, it is impractical to require
the involvement of an administrator with the authority to make agency-level changes, given that
the review is intended to occur at the facility level.
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Comment. Commenters suggested that, in order to ensure compliance with the review’s
findings, the review team should include the facility’s PREA coordinator, and the report should
be submitted to the agency head for review and implementation of recommended changes.
Response. The Department declines to revise the relevant provision, which requires that
the review team’s findings and recommendations for improvement be submitted to the facility
head and to the PREA coordinator (renamed as the PREA compliance manager in the final
standards). The Department believes that oversight by the facility head and PREA compliance
manager will ensure implementation without needlessly micromanaging the facility’s review
process.
Comment. Some commenters questioned whether the consideration of race, ethnicity,
sexual orientation, gang affiliation, and other group dynamics as possible motivations for an
alleged incident may require special training and, if so, whether the cost of that training would
hinder compliance.
Response. The Department believes that additional training is unnecessary in light of the
range of training topics already required in § 115.31.
Comment. A juvenile justice agency questioned whether the review should make such a
determination if a criminal investigation is proceeding at the same time.
Response. The final standard states that the incident review should occur at the
conclusion of every sexual abuse investigation, unless the allegation has been determined to be
unfounded. If the facility’s investigation is put on hold during a criminal investigation, the
facility can wait to conduct the incident review until the investigation has concluded.
Furthermore, the incident review required by this standard is intended to allow the facility to
identify systemic problems in policies, practices, dynamics, physical barriers, staffing levels, and
monitoring that may have contributed to an incident or allegation of sexual abuse, so that the
facility can improve conditions to avoid future incidents or allegations. Such a review should not
interfere with a criminal investigation.
Comment. Several advocates recommended that gender identity be included in the list of
possible motivating factors to be considered.
Response. The Department has added gender identity to the list of possible motivating
factors to be considered.
Data Collection (§§ 115.87, 115.187, 115.287, 115.387)
Summary of Proposed Rule
The standard contained in the proposed rule specified the incident-based data that each
agency is required to collect in order to detect possible patterns and to help prevent future
incidents. The Department proposed that the agency be required to collect, at a minimum,
sufficient data to answer fully all questions in the most recent revision of the Survey of Sexual
Violence (SSV) conducted by BJS. The Department further proposed that the agency collect data
from multiple sources (e.g., reports, investigation files, and sexual abuse incident reviews), that it
aggregate the data at least annually, that it obtain the corresponding data from all private
facilities with which it contracts for confinement, and that it make this data available to the
Department upon request.
Changes in Final Rule
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The final standard includes three small changes. Paragraph (c) now refers to the
Department as whole rather than BJS. In paragraph (d), “collect data from multiple sources” has
been changed to “maintain, review, and collect data as needed from all available incident-based
documents.” In paragraph (f), “calendar” has been added before “year.”
Comments and Responses
Comment. Several commenters asserted that the data collection and review requirements
in this standard, and in §§ 115.88 and 115.89, would be overly burdensome. Some State
correctional agencies and a county sheriffs’ association suggested that the large collection of data
would require significant hiring of new staff or staff reallocation. A State juvenile justice agency
stated that meeting the standard would require it to redesign its computer systems and purchase
data collection software.
A county juvenile justice agency suggested that this standard would be especially
burdensome for smaller juvenile facilities such as group homes and private placement facilities.
The commenter remarked that if those facilities are deemed non-complaint with the PREA
standards due to an inability to provide data under § 115.387, the agency would likely need to
cancel contracts with those facilities in order to protect itself and the county from liability. The
commenter suggested that canceling contracts with such facilities would exacerbate difficulties
in placing minors ordered removed from parents’ custody. Furthermore, the commenter stated,
delays could result in longer waits in juvenile detention facilities and in the occupation of beds
needed for pre-adjudication minors, and the cost of having to provide more beds long-term
would be substantial. Two State correctional agencies objected that the standard would require
the agencies to increase or realign staff, without funding to match.
Response. The Department acknowledges that facilities may need to incur costs to
comply with the standards for data review and collection. Yet these costs should be manageable,
and exceeded by the benefits that will accrue from managing and publishing the data in
accordance with these standards. Many, if not all, of these agencies have existing reporting
requirements and may, therefore, have existing support staff that can be trained to fulfill the
functions outlined in these standards. The Department is not persuaded that this standard will
impose a disproportionate cost on smaller agencies and facilities—which, in keeping with their
size, should have correspondingly fewer allegations to document and report.
Comment. Several commenters recommended adding sexual harassment to this standard.
Response. The Department declines to make this change, largely for the same reasons
discussed above with respect to § 115.86. While sexual harassment may be a precursor to sexual
abuse, it is both more frequent and less damaging than sexual abuse. Requiring the collection of
incident-based data on sexual harassment would therefore impose a greater burden and result in
fewer benefits than requiring the same data for incidents of sexual abuse.
Comment. Some commenters expressed concern that because the data collection
requirement applies to all allegations regardless of legitimacy, it could overburden facilities.
One juvenile agency recommended restricting the requirement to substantiated allegations.
Response. For allegations that are not substantiated, the data collection burden is
minimal: to collect data necessary to answer all questions from the most recent version of the

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SSV.37 The SSV requests detailed information only for substantiated incidents; for incidents that
are determined to be unsubstantiated or unfounded, or subject to an ongoing investigation, the
current SSV requires only that the facility list the number of each type of allegation, divided into
sexual abuse and sexual harassment.
Comment. A few juvenile agencies questioned the requirement in paragraph (d) that data
be collected from multiple sources, because multiple sources may not always be needed to
compile the requisite aggregate data.
Response. The Department agrees and has revised paragraph (d) accordingly.
Comment. An administrative office of the courts suggested that “Survey of Sexual
Violence” should read “Survey on Sexual Violence.”
Response. The Department has not made this change; the BJS data collection is titled
“Survey of Sexual Violence.”
Comment. Some commenters suggested broadening the scope of who is deemed in
compliance with the regulation. A State juvenile justice agency recommended, in particular, that
jurisdictions that currently use standardized instruments such as the Performance-based
Standards (PbS) and Community-based Standards (CbS) should be deemed automatically in
compliance for purposes of data collection. The commenter noted that standardized instruments
and uniform sexual abuse definitions are already used by PbS and CbS programs operating in 28
States and the District of Columbia and suggested that States participating in PbS or CbS
programs should be considered to be in compliance with this standard by virtue of their
participation.
Response. The Department sees no reason for States that have PbS and CbS programs to
be deemed automatically in compliance. However, such States, like all entities that currently
compile data, may not need to make significant adjustments to their data collection policies if
their collections currently include, as required by the standard, data necessary to answer all
questions from the most recent version of the SSV.
Comment. A county sheriff’s office noted that paragraph (e) requires agencies to collect
data from private facilities with which they contract for confinement, whereas the most recent
revision to the SSV excludes contracted facilities because BJS contacts these facilities directly.
Response. The Department believes that making public agencies responsible for
collecting data from facilities that they supervise directly and from private facilities with whom
they contract for confinement is the best way to ensure compliance. Centralizing data collection
in this way will maximize the likelihood of effective oversight by the agency and the
Department.
Comment. The same commenter requested clarification as to whether paragraph (f)
requires a separate report or the information will be provided by BJS to the relevant Department
components. The commenter also inquired as to whether, if the Department intends to contact
agencies directly, it will request information different from the information required by the SSV.
Response. Pursuant to the wording of the standard, the Department reserves the right to
request all data compiled by the agency. The data will not be obtained from BJS. Under its
authorizing legislation, BJS is not allowed to release publicly information that could identify
victims or perpetrators. In addition, PREA provides that BJS must ensure the confidentiality of
participants in the PREA-related surveys that it conducts. See 42 U.S.C. 15603(a)(1).

37

The latest version of the SSV can be found at http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=406.
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Comment. A State juvenile justice agency recommended deleting paragraph (f) as
duplicative of reporting requirements in other standards. If the paragraph is retained, the
commenter recommended that the Department define “all such data” and clarify facilities’
reporting obligations by specifying how far in advance and under what circumstances a request
for data may be made (e.g., annually or only in connection with an audit). The commenter
further proposed amending the paragraph to provide a specific timeframe for an agency to
prepare and provide its responses. Additionally, the commenter recommended that the
Department require that (as in § 115.89(c)) “when data is aggregated, confidential information
shall be redacted and personal identifiers shall be removed.”
Response. The Department does not believe that paragraph (f) is duplicative. Rather, it
serves an additional function in requiring that the agency make its data available to the
Department upon request. By “all such data,” the Department references all data collected
pursuant to this standard. The Department declines to create a separate framework for the timing
of requests from the Department, which could unnecessarily hamper the Department’s flexibility
in obtaining data as needed. Furthermore, pursuant to § 115.88, each agency will be required to
review the data, prepare an annual report of its findings, and make that report available to the
public through the agency’s website. Finally, the Department declines to add a redaction
requirement—the interest in confidentiality regarding a release of data to the public does not
apply to the release of information to the Department.
Comment. The same agency recommended that the Department add “calendar” after
“previous” in paragraph (f) to clarify the meaning of “previous year.” Because the SSV requires
aggregated data for the previous calendar year, the commenter suggested that the Department use
the same period for data collection.
Response. The Department agrees and has revised paragraph (f) accordingly.
Comment. A State juvenile justice agency asked that data collected by the State agency
from private facilities be limited to those that are in the same jurisdiction, because allegations of
abuse reported from an out-of-State provider will be investigated by that jurisdiction’s law
enforcement. The commenter further recommended that data requested by the Department be
limited to information provided in the SSV and that the Department provide sufficient advance
time to submit this information.
Response. The Department believes that proper oversight of the collection and review of
data must come through the agencies, in conjunction with the Department. Because agencies
contract with private entities for confinement, they are responsible for reviewing the data from
these entities, even where a private facility may belong to a different jurisdiction. The
Department further observes that limiting the information that the Department can seek to what
is required by the SSV, and limiting the timeframe in which this information can be sought,
would diminish the Department’s effectiveness in assessing data collected by agencies under this
standard.
Comment. Several advocates recommended that the Department adopt NPREC
supplemental immigration standard ID-11, which would require that, for each incident of alleged
sexual abuse, data be collected regarding whether the alleged perpetrator or victim is an
immigration detainee.
Response. The most recent version of the SSV does not contain “immigration detainee”
as a data point, and the Department declines to impose this additional burden on correctional
agencies.
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Data Review for Corrective Action (§§115.88, 115.188, 115.288, 115.388)
Summary of Proposed Rule
The standard contained in the proposed rule described how the collected data should be
analyzed and reported. The Department proposed that agencies be required to use the data to
identify problem areas, to take ongoing corrective action, and to prepare an annual report for
each facility and for the agency as a whole. In order to promote agency accountability, the
proposed standard further mandated that the report compare the current year’s data with data
from prior years and provide an assessment of the agency’s progress in addressing sexual abuse.
The proposed standard required that the agency make its report publicly available through its
website or other means. The proposed standard allowed agencies to redact specific material
when publication would present a clear and specific threat to the safety and security of a facility,
as long as the nature of the redacted material is indicated.
Changes in Final Rule
The Department has reviewed and considered commenters’ suggested changes to this
standard but has made no substantive changes.
Comments and Responses
Comment. A State sheriffs’ association contended that making agencies include an
annual comparison would be labor-intensive; the association recommended that, instead, the
Department set a broader timeframe for evaluating an agency’s progress in addressing sexual
abuse. The commenter noted that annual reports may be appropriate for agencies with higher
incidence of sexual abuse, but would be impracticable for smaller facilities.
Response. The Department has weighed the costs and benefits of various timelines for
reporting and believes that an annual report will best fit the various purposes of the reporting
requirements, including effective oversight, transparency in making information regularly
available to the public, and uniformity across agencies and facilities. Because data collection is
keyed to the calendar year, it is appropriate for the reporting requirement to be annual as well.
To vary the timelines of the reporting requirement on the basis of facility size would introduce
needless complexity and make it more difficult for agencies that supervise facilities of varying
sizes to perform the essential task of reviewing data to implement needed improvements in
policies and practices. Additionally, facilities of all sizes already have annual review
requirements in a wide range of other areas. Requiring an annual report will ensure consistency
with other reporting requirements and will help assess progress in meeting the goals of PREA.
Comment. A State juvenile justice agency suggested that the Department specify what
“other means” would be acceptable for making the annual report readily available to the public.
A State sheriffs’ association also noted that the preparation of the annual report would impose
extra costs for support staffing and that additional funds would be needed to cover the cost of
changing the website and adding material to it.
Response. Posting the annual report online will maximize public visibility and
accessibility. Only agencies that lack a website may make the report available to the public
159

through other means. Such means might include, for example, submitting the report to the
relevant legislative body.
The Department recognizes that the preparation of the report will incur support staff time
and effort, but believes that the cost of adding material to the website will be minimal and
outweighed by the benefits of public accessibility.
Comment. Various commenters recommended that the Department revise the standard to
encourage facilities to implement changes in response to sexual abuse incidents in an ongoing
manner, rather than in response to data aggregated annually. An advocacy organization stated
that if agencies are required to compile aggregate data only once per year, they might miss
critical opportunities to implement changes to practices, policies, staffing, training, and
monitoring. Accordingly, the commenter recommended that paragraph (a) be revised by adding
at the beginning “[a]nnually and after significant incidents.” A juvenile advocacy organization
suggested deleting “and aggregated” and encouraging facilities to make appropriate changes to
policies and practices on an ongoing, rather than yearly, basis.
Response. The requirement that data be collected and aggregated annually is a floor, not
a ceiling. Requiring an annual report will properly facilitate compliance with the data reporting
and review requirements without overly burdening agencies. Mandating a more frequent review
could prove costly for some agencies and may be of little additional benefit. The standard
appropriately leaves to agency discretion whether to collect aggregate data more frequently and
how to respond to incidents and concerns in an ongoing way. Implementing the commenters’
proposals would restrict agencies’ ability to comply with the standard in a manner that most
effectively utilizes their limited resources.
Data Storage, Publication, and Destruction (§§ 115.89, 115.189, 115.289, 115.389)
Summary of Proposed Rule
The standard contained in the proposed rule provided guidance on how to store, publish,
and retain data. The Department proposed that data must be securely retained for at least ten
years after the date of initial collection unless Federal, State, or local law requires otherwise. In
addition, the proposed standard required that agencies make aggregated data publicly available
through their websites or other means, after removing all personal identifiers.
Changes in Final Rule
The Department has added language to clarify that “sexual abuse data” in paragraph (d)
refers to data collected pursuant to §§ 115.87, 115.187, 115.287, and 115.387.
Comments and Responses
Comment. A county sheriff’s office questioned whether “sexual abuse data” refers to the
sexual abuse incident review, the data reported to BJS through the SSV, or the public reports
published on the agency’s website. The commenter noted that if “sexual abuse data” refers to all
records created during the sexual abuse investigation, then the standard would conflict with the
record-retention requirement of § 115.71.
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Response. The Department has revised the standard to clarify that “data” refers to data
that the agency collects pursuant to § 115.87. Section 115.71 covers a different set of records
and therefore does not conflict with § 115.87. Specifically § 115.71 requires that agencies retain
written reports that document administrative and criminal investigations for the duration of the
alleged abuser’s incarceration or employment by the facility, plus five years. Section 115.89, by
contrast, requires that the agency retain for at least ten years after the date of its initial collection
(unless otherwise required by law) accurate uniform data for each allegation, using a
standardized instrument and set of definitions, including at a minimum the data necessary to
answer all questions from the most recent version of the SSV. Put differently, § 115.71 covers
written reports and the associated records; § 115.89 covers statistics. While it is true that the
agency can consult investigative findings as part of its review and collection of incident-based
and aggregate data, the latter data are separate from the investigative records themselves and
give rise to the different reporting requirements contained in this standard. The differing
retention requirements, therefore, do not conflict.
Comment. Two juvenile justice agencies recommended deleting paragraph (b) on the
basis that the requirement in § 115.388 to publish an annual report and to make the report
available on the agency’s website already includes a requirement to publish the aggregated
sexual abuse data.
Response. Section 115.388 requires agencies to create an annual report documenting
their findings and corrective actions based on the aggregated data, but does not require
publication of the actual data. The instant standard, by contrast, governs the retention and
publication of the data. Specifying a separate requirement for the publication of the data will
ensure that agencies can be held accountable for their findings and corrective actions by allowing
the public to inspect the data on which these findings and actions were based.
Auditing and State Compliance (§§ 115.93, 115.193, 115.293, 115.393, 115.401, 115.402,
115.403, 115.404, 115.405, 115.501)
Summary of Proposed Rule
In the proposed rule, the Department declined to resolve how frequently, and on what
basis, audits should be conducted. Determining that further discussion was necessary in order to
assess these issues, the Department included in the NPRM several questions regarding the nature
and scope of audits.
The standard contained in the proposed rule did specify the requirements for an audit to
be considered independent. If an agency uses an outside auditor, the proposed standard required
that the agency ensure that it not have a financial relationship with the auditor for three years
before or after the audit, other than payment for the audit conducted. The proposed standard also
specified that the audit may be conducted by an external monitoring body that is part of, or
authorized by, State or local government, such as a government agency or nonprofit entity whose
purpose is to oversee or monitor correctional facilities. In addition, the proposed standard
allowed an agency to utilize an internal inspector general or ombudsperson who reports directly
to the agency head or to the agency’s governing board.
The proposed standard further stated that the Department will prescribe methods
governing the conduct of such audits, including provisions for reasonable inspections of
161

facilities, review of documents, and interviews of staff and inmates, as well as the minimal
qualifications for auditors.
The proposed standard provided that an agency shall enable the auditor to enter and tour
facilities, review documents, and interview staff and inmates to conduct a comprehensive audit.
Finally, the proposed standard provided that an agency shall ensure that the auditor’s
final report is published on the agency’s website if it has one, or is otherwise made readily
available to the public.
Changes in Final Rule
In the final rule, the Department creates a single, unified auditing system for all facilities,
except for lockups that do not hold detainees overnight, such as court holding facilities. The
final standard addresses the frequency and scope of audits, required auditor qualifications, audit
report contents and findings, audit corrective action plans, the audit appeals process, and the
effect of the audit results on the Governor’s certification of compliance.
The final standard provides that audits shall be conducted on a three-year cycle, with the
first auditing period commencing one year after the effective date of the standards. Each year,
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. During the three-year cycle, 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. In some cases, the Department may recommend
that an agency conduct an expedited audit if the Department has reason to believe that a
particular 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.
The Department will develop and issue an audit instrument that will provide guidance on
the conduct of and contents of the audit.
The auditor shall review all relevant agency-wide policies, procedures, reports, internal
and external audits, and accreditations for each facility type, as well as, at a minimum, a
sampling of relevant documents and other records and information for the most recent one-year
period. The auditor shall be permitted to request and receive copies of any relevant documents
(including electronically stored information), and shall retain and preserve all documentation
(such as video tapes and interview notes) relied upon in making audit determinations. Such
documentation shall be provided to the Department upon request. The auditor shall interview a
representative sample of inmates, staff, supervisors, and administrators, and shall have access to
and observe all areas of the audited facilities.
The auditor shall be permitted to conduct private interviews with inmates, and inmates
shall be permitted to send confidential information or correspondence to the auditor in the same
manner as if they were communicating with legal counsel. Auditors shall attempt to
communicate with community-based or victim advocates who may have insight into relevant
conditions in the facility.
The final standard provides that an audit shall be conducted by: (1) a member of a
correctional monitoring body that is not part of, or under the authority of, the agency (but may be
part of, or authorized by, the relevant State or local government); (2) a member of an auditing
entity such as an inspector general’s or ombudsperson’s office that is external to the agency; or
(3) other outside individuals with relevant experience. Thus, the final standard differs from the
proposed standard in that it does not allow audits to be conducted by an internal inspector
162

general or ombudsperson who reports directly to the agency head or to the agency’s governing
board.
Auditors shall be certified by the Department, pursuant to procedures to be developed,
including training requirements.
For each standard, the auditor shall determine whether the audited facility reaches one of
the following findings: “Exceeds Standard” (substantially exceeds requirement of standard);
“Meets Standard” (substantial compliance; complies in all material ways with the standard for
the relevant review period); or “Does Not Meet Standard” (requires corrective action). The audit
summary shall indicate, among other things, the number of provisions the facility has achieved at
each grade level.
A finding of “Does Not Meet Standard” with one or more standards shall trigger a 180day corrective action period. The auditor and the agency shall jointly develop a corrective action
plan to achieve compliance. The auditor shall take necessary and appropriate steps to verify
implementation of the corrective action plan, such as reviewing updated policies and procedures
or re-inspecting portions of a facility. After the 180-day corrective action period ends, the
auditor shall issue a final determination as to whether the facility has achieved compliance with
those standards requiring corrective action. If the agency does not achieve compliance with each
standard, it may (at its discretion and cost) request a subsequent audit once it believes that it has
achieved compliance.
An agency may lodge an appeal with the Department regarding any specific audit finding
that it believes to be incorrect. If the Department determines that the agency has stated good
cause for a re-evaluation, the agency may commission a re-audit by an auditor mutually agreed
upon by the Department and the agency, at the agency’s cost. The findings of the re-audit shall
be final.
Section 115.501(a) provides that, 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. Section 115.501(b) provides that 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.
Comments and Responses
Comment. A wide range of comments were received on the question of whether audits
should be conducted at set intervals or, alternatively, whether audits should be conducted only
for cause, based upon a reason to believe that a particular facility or agency is materially out of
compliance with the standards. Many comments recommended audits be conducted at set
intervals; most such comments recommended audits occur on a three-year cycle, as the NPREC
had recommended. A number of comments proposed a combination of automatic periodic audits
plus for-cause audits. Two commenters recommended that audits be conducted both at random
intervals and for cause. A number of comments recommended that audits be performed for
cause only, or where a facility has received a large number of complaints regarding sexual abuse.
Several comments recommended various hybrid thresholds and timeframes for required
audits. Some suggested a combination of “streamlined” audits and full audits, more frequent or
less frequent audits depending upon prior audit results or reasons to suspect noncompliance, and
different audit timelines for smaller agencies.
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Several comments recommended audits only for a random sampling of all facilities, or of
facilities not otherwise subject to accreditation. Several comments suggested that all facilities be
audited. A number of other comments suggested various hybrid approaches, including:
statistical reporting with random audits to confirm data; auditing of all large facilities and
random sampling of small facilities; differential auditing cycles for large and small facilities;
auditing of all facilities during the first auditing cycle with various triggers or random selection
for subsequent audits; or annual internal audits with random sampling for external PREA audits
or as requested by the agency.
A comment submitted by former members of the NPREC recommended that all facilities
be audited within the first three years to establish a “baseline” that would guide future audits.
Performance on the baseline audit would determine when the next regular audit would occur.
The members suggested that if an agency or facility’s compliance with the standards was
determined to exceed 85 percent, the subsequent audit would occur five years later. If
compliance was between 50 and 85 percent, the next audit would be in three years, and if
compliance was less than 50 percent the next audit would be one year later. Former NPREC
members further recommended that a random sample of agencies and facilities receive
unscheduled audits after the initial baseline audit. In addition, the members recommended forcause audits based upon reasons to suspect problems in specific agencies or facilities.
Response. The Department has determined that all facilities should be subject to audits,
and that audits should occur at all facilities at least every three years, and at least one third of the
facilities operated by an agency must be audited every year. The standard thus allows agencies
substantial flexibility in scheduling audits within each three-year cycle while ensuring that
facility audits occur regularly.
The Department has chosen not to require audits only for cause, as this would make it
difficult to determine whether a broad range of facilities are complying with the standards, and
would make it harder to assess whether a State is in full compliance with the statute. Under
PREA, certification of full compliance by the Governor of a State is necessary in order to avoid a
reduction in certain grant funding from the Department, unless the Governor commits to using
the amount that otherwise would be forfeited for the purpose of enabling the State to achieve full
compliance in future years. See 42 U.S.C. 15607(c)(2). In addition, requiring audits to be
conducted only for cause could discourage agencies from strengthening their reporting and
investigating procedures, for fear that revelation of incidents could result in an audit that the
facility would otherwise escape.
The final standard does incorporate the concept of a for-cause audit by providing a
mechanism through which the Department can recommend to an agency that an expedited audit
be conducted on any facility if the Department has reason to believe that the facility is
experiencing problems related to sexual abuse. However, the Department concludes that a
hybrid audit scheme would prove unnecessarily complex and would lack the required
predictability and flexibility to permit agencies to budget and plan for the audits.
The Department believes that audits conducted through random sampling would be
insufficient to assess the scope of compliance with the PREA standards. The Department is
cognizant of the burden that audits pose on institutions but believes that the triennial cycle
appropriately balances the level of effort and resources that will need to be expended. In
addition, the Department anticipates that the actual audit complexity and duration will be scaled
to the size and type of facility.
164

Comment. Many agency commenters recommended that agencies be allowed to audit
themselves; by contrast, many advocacy commenters criticized the proposed standard for
allowing internal inspectors general or ombudspersons to conduct audits, out of concern that
permitting agency employees to audit the agency’s facilities could compromise the objectivity
and credibility of the auditing process. One commenter suggested that audits performed by an
auditor within the agency should be subject to review by an independent agency or elected body.
Response. While internal audits may prove helpful in assessing an institution’s
performance, the Department believes that external audits are necessary to ensure that the audits
are conducted, and are perceived to be conducted, independently and objectively. Accordingly,
the final standard requires that the audit be performed by an auditor external to the agency. An
audit may, however, be conducted by a sister governmental agency, including by an entity that
ultimately reports to the same overarching department as the agency under audit.
Comment. Comments varied in response to NPRM Question 32, which asked to what
extent, if any, agencies should be able to combine a PREA audit with an audit performed by an
accrediting body or with other types of audits. A number of comments recommended that audits
not be combined with other types of audits. Several comments suggested that PREA audits
should be incorporated with accreditation or other audit types. A number of comments stated
that State bodies that inspect local jails should be able to include PREA audits in the inspection
process.
Response. The final standard places no restriction on auditor certification for individuals
who are employed by an accrediting or oversight entity that is separate and independent from the
agency. For example, a qualified individual within a State office of inspector general (if outside
the agency) or a member of an accrediting body could obtain Department certification and, if not
otherwise conflicted, would be permitted to conduct the PREA audit, or incorporate the PREA
audit as part of a more comprehensive facility inspection program.
Comment. NPRM Question 33 asked whether the wording of any of the substantive
standards should be revised in order to facilitate a determination of whether a jurisdiction is in
compliance with the standard. Some comments suggested that the standards be expressed using
objective criteria. Other comments recommended that the standards be written in a performancebased format, or subject to specific outcome measures. Still others suggested a combination of
qualitative and quantitative standards. A number of comments suggested requiring that agencies
fully document their efforts to comply with the standards. Finally, one comment recommended
that the auditor have discretion to determine whether a facility is complying with the standard.
Response. The Department has attempted to incorporate objective criteria and written
documentation requirements wherever practicable, although auditors will necessarily have some
discretion to determine compliance regarding certain standards. The Department intends to
jointly develop, with the National Resource Center for the Elimination of Prison Rape,
comprehensive auditing instruments for the various facility types and sizes that will provide
guidance to the auditor on determining compliance. In addition, the Department will develop
uniform training and certification requirements for individual auditors, and may periodically
issue interpretive guidance regarding the PREA standards.
The Department declines to incorporate into the standards specific outcome measures.
While performance-based standards facilitate compliance assessments, it is difficult to employ
such standards effectively to combat sexual abuse in confinement facilities. An increase in
incidents reported to facility administration may reflect increased abuse due to the facility’s
inability to protect inmates from harm. Alternatively, it might reflect inmates’ increased
165

willingness to report abuse, due to the facility’s success at assuring inmates that reporting abuse
will yield positive outcomes and not result in retaliation.
Comment. Several commenters recommended that auditors have expertise in, or receive
specialized training in, such topics as working with victims of sexual abuse, applicable civil
rights laws, adolescent and child development, and crisis counseling.
Response. The Department intends to develop and issue auditor training requirements,
and will work with the National Resource Center for the Elimination of Prison Rape (or other
contracted entity) to develop an audit training curriculum.
Comment. A number of comments recommended that the auditor receive unfettered
facility access, including access to inmates, full access to a facility’s physical plant and
documents, the ability to consult with the PREA coordinator, access to facility personnel, and the
ability to conduct unannounced inspections.
Response. The final standard incorporates many of these elements to enable thorough
audits. However, the Department declines to require that auditors be permitted to conduct
unannounced facility audits, as this could prove inordinately burdensome for facility and agency
personnel.
Comment. Former NPREC members recommended that the Department’s Office of the
Inspector General conduct audits of BOP facilities.
Response. BOP facilities will be audited pursuant to the auditing standard. However, the
Department declines to mandate in the standard the specific entity that will conduct BOP audits.
Comment. Two commenters recommended that the audit reports describe the auditor’s
methodology, the evidence used to support each audit finding, and recommendations for any
required corrective action.
Response. The final standard includes these elements.
Comments. NPRM Question 35 asked to what extent, if any, audits should bear on
determining whether a State is in full compliance with PREA. Several comments recommended
that the audits be the primary basis for determining “full compliance.” A number of other
comments suggested that the audit results be one of a number of factors in determining “full
compliance.” Some comments suggested that audit results have only a marginal bearing on the
determination, or be relevant to determining only State-level compliance. A number of
comments suggested that audit results, combined with appropriate and verified corrective action,
determine State-level “full compliance.” One comment suggested that the audit results,
combined with an appropriate explanation from the Governor, enable the State to certify “full
compliance.”
Response. The Department intends the audits to be a primary factor in determining Statelevel “full compliance.” Accordingly, the final rule requires the Governor to consider the most
recent audit results in making his or her certification determination, which shall apply to
facilities under the operational control of the State’s executive branch, including facilities
operated by private entities on behalf of the State’s executive branch.
IV. Regulatory Certifications
Executive Orders 13563 and 12866 - Regulatory Planning and Review

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This final rule has been drafted and reviewed in accordance with Executive Order 12866,
“Regulatory Planning and Review,” as recently reaffirmed and supplemented by Executive Order
13563, “Improving Regulation and Regulatory Review.” The Department has determined that
this final rule is a “significant regulatory action” under Executive Order 12866, § 3(f)(1), and
accordingly has submitted it to the Office of Management and Budget (OMB) for review.
Executive Order 12866 requires Federal agencies to conduct a regulatory impact
assessment (benefit-cost analysis) for any “significant regulatory action” likely to result in a rule
that may have an annual impact on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal governments or communities. See
Executive Order 12866, § 6(a)(3)(C).
The Department has concluded that the economic impact of its adoption of the final rule,
if complied with by all entities to which it applies, is likely to exceed this $100 million threshold.
Assuming full nationwide compliance, the standards would affect the management of all State,
local, privately operated, and Department of Justice confinement facilities, which collectively
house over 2.4 million individuals at any given time and which spent more than $79.5 billion in
2008. See BJS, Justice Expenditure and Employment Extracts 2008, advance estimate
(unpublished).
The final rule, moreover, “materially alters . . . the rights and obligations of grant
recipients,” and “raise[s] novel legal or policy issues.” Executive Order 12866, §§ 3(f)(3), (4).
Accordingly, in compliance with OMB Circular A-4, the Department has prepared a Regulatory
Impact Assessment (RIA) to accompany the final rule.
Regulatory Impact Assessment
The RIA is available in full at http://www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf and
is summarized here. The RIA assesses, and monetizes to the extent feasible, the benefits of
combating rape and sexual abuse in America’s prisons, jails, lockups, community confinement
facilities, and juvenile facilities, and the costs of full nationwide compliance with the final rule.
It also summarizes the comments relating to the costs and benefits of the standards that the
Department received in response to the NPRM and the Initial Regulatory Impact Assessment
(IRIA).
The cost estimates set forth in the RIA are the costs of full nationwide compliance with
all of the standards and their implementation in all covered facilities. The Department concludes
that full nationwide compliance with the standards would cost the correctional community, in the
aggregate, approximately $6.9 billion over the period 2012-2026, or $468.5 million per year
when annualized at a 7 percent discount rate. The average annualized cost per facility of
compliance with the standards is approximately $55,000 for prisons, $50,000 for jails, $24,000
for community confinement facilities, and $54,000 for juvenile facilities. For lockups, the
average annualized cost per agency is estimated at $16,000.
However, these figures are potentially misleading. PREA does not require full
nationwide compliance with the Department’s standards, nor does it enact a mechanism for the
Department to direct or enforce such compliance; instead, the statute provides certain incentives
for State (but not local or privately operated) confinement facilities to implement the standards.
Fiscal realities faced by confinement facilities throughout the country make it virtually certain
that the total actual outlays by those facilities will, in the aggregate, be less than the full
167

nationwide compliance costs calculated in this RIA. Actual outlays incurred will depend on the
specific choices that State, local, and private correctional agencies make with regard to adoption
of the standards, and correspondingly on the annual expenditures that those agencies are willing
and able to make in choosing to implement the standards in their facilities. The Department has
not endeavored in the RIA to project those actual outlays.
Summary of Cost Justification Analysis
In developing the final rule, the Department was constrained by two separate and
independent limitations relating to the potential costs of the standards. The first was the
requirement, set forth in Executive Order 12866, that each agency “propose or adopt a regulation
only upon a reasoned determination that its benefits justify its costs,” recognizing that some
benefits and costs are difficult to quantify. Executive Order 12866, § 1(b)(6). Executive Order
13563, moreover, directs agencies “to use the best available techniques to quantify anticipated
present and future benefits and costs as accurately as possible.” Executive Order 13563, § 1(c).
The second was the provision, set forth in PREA itself, prohibiting the Attorney General from
adopting any standards “that would impose substantial additional costs compared to the costs
presently expended by Federal, State, and local prison authorities.” 42 U.S.C. 15607(a)(3). The
RIA addresses both sets of limitations and concludes that the final rule does not contravene
either constraint, and is in fact fully justified under both analyses.
With respect to the analysis called for by the Executive Orders, the RIA undertakes a
break-even analysis to demonstrate that the anticipated costs of full nationwide compliance with
the PREA standards are amply justified by the anticipated benefits. The results of this breakeven analysis are summarized in Table 2. As shown there, using the Department’s preferred
estimation method, for the costs of full nationwide compliance to break even with the monetized
benefits of avoiding prison rape, the standards would have to be successful in reducing the
annual number of prison sexual abuse victims by about 1,671, for a total reduction from the
baseline over fifteen years of about 25,000 victims.38 As a comparison, the RIA estimates that in
2008 more than 209,400 persons were victims of sexual abuse in America’s prisons, jails, and
juvenile centers, of which at least 78,500 prison and jail inmates and 4,300 youth in juvenile
facilities were victims of the most serious forms of sexual abuse, including forcible rape and
other nonconsensual sexual acts involving injury, force, or high incidence.

38

These figures include all facility types and all types of sexual abuse (from the most to the least severe), and take
into account the fact that many victims are victimized multiple times (i.e., an avoided victim subsumes all of the
incidents of sexual abuse that victim experiences). In the RIA, the Department calculates the break-even figures in
six different ways corresponding to different methods of calculating the baseline prevalence of prison sexual abuse
and different approaches to monetizing the value of avoiding prison sexual abuse. The figures in Table 2 reflect the
Department’s preferred approach among these six alternatives. When reflected as a range, the six approaches
collectively provide that, for the costs of full nationwide compliance to break even with the monetized benefits of
avoiding prison rape, the standards would have to be successful in reducing the annual number of prison sexual
abuse victims by between 1,667 and 2,329, for a total reduction from the baseline over fifteen years of about 25,00035,000 victims.
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Table 2: Summary of Break-Even Analysis for PREA Standards39
(in millions of dollars)
Community
Confinement
Prisons Jails

Lockup

Juvenile Total
Facilities

Prevalence

89,688 109,181 Unknown

Unknown 10,553 209,422

Value of 1% Reduction

$206.4 $260.1 Unknown.

Unknown

$0.25

$0.25

$95.5

$12.8 $131.9 $468.5

Value of 1 Victim Avoided
Cost
Breakeven Percent
Breakeven Number of Victims

$64.9 $163.4

0.32% 0.64% Unknown.
282

686

385

$52.4

Unknown.

2.55%

52

266

1671

The Department believes it reasonable to expect that the standards, if fully adopted and
complied with, would achieve at least this level of reduction in the prevalence of prison sexual
abuse. Taking into account the considerable non-monetized benefits of avoiding prison rape, the
justification for the standards becomes even stronger. Of course, if the nation’s confinement
facilities spend less annually than full nationwide compliance is estimated to require, then the
annual reduction in the number of prison sexual abuse victims that would need to be achieved in
order for actual outlays to break even with benefits would be correspondingly lower.
With respect to the analysis that Congress required in PREA, the RIA concludes that the
costs of full nationwide compliance do not amount to “substantial additional costs” when
compared to total national expenditures on correctional operations. In the most recent tabulation,
correctional agencies nationwide spent approximately $79.5 billion on correctional operations in
2008. As noted, the RIA estimates that full nationwide compliance with the final standards
would cost these agencies approximately $468.5 million per year, when annualized over 15 years
at a 7 percent discount rate, or a mere 0.6 percent of total annual correctional expenditures in
2008. The Department concludes that this does not amount to substantial additional costs.
39

Prevalence figures reflect the Department’s “principal” approach to determining prevalence (among the three
alternative approaches discussed below) and include all forms of sexual abuse. As explained in the RIA, prevalence
figures for lockups and community confinement facilities are unknown; the total for prisons, jails, and juvenile
centers under the principal approach is 209,422.
The “value of 1% reduction” row sets forth the RIA’s estimate of the monetizable value (in millions of
dollars) of the benefit of a 1% reduction from the baseline annual prevalence of sexual abuse in prisons, jails, and
juvenile centers, using the Department’s preferred methodology, the victim compensation model, and taking into
account the fact that many victims of prison rape are victimized multiple times. The “value of 1 victim avoided”
row sets forth the corresponding estimate for lockups and community confinement facilities, but sets forth the value
(again in millions) of avoiding a single victim of abuse.
Cost figures represent the cost of full nationwide compliance with all of the PREA standards, in the
aggregate, in millions of dollars. “Breakeven percent,” for prisons, jails, and juvenile centers, shows the total
percentage reduction from the baseline annual prevalence of prison sexual abuse that the standards would have to
achieve in each sector in order for their annual benefits, in monetary terms, to break even with their annual costs,
again assuming full nationwide compliance. “Breakeven Number of Victims” shows how many individual victims
of prison sexual abuse the standards would have to be successful in preventing each year, in each sector (again
taking into account the phenomenon of serial victimization), for the standards’ annual benefits, in monetary terms, to
break even with the annual costs of full nationwide compliance.
169

Measuring the Relevant Baseline
As a starting point, the RIA measures the baseline level of prison rape and sexual abuse
in prisons, jails, and juvenile facilities. It estimates the annual prevalence of six categories of
inappropriate sexual contact in adult prisons and jails, and five different categories in juvenile
facilities. The precise definitions of these categories are set forth in detail in the RIA, but these
types of sexual contact are essentially differentiated based on the existence and nature of force or
threat of force, the nature and intrusiveness of the physical contact, and how often the victim has
experienced abuse (i.e., whether the victim has experienced a low or high incidence of contact),
among other factors.
Relying largely on tabulations made by BJS and the Office of Juvenile Justice and
Delinquency Prevention, the RIA examines the available statistics on the prevalence of each type
of inappropriate sexual contact40 and addresses a number of issues with those statistics, including
the problem of serial victimization (prevalence vs. incidence),41 cross-section vs. flow,42
underreporting of sexual victimization (false negatives), and false allegations (overreporting).
The RIA also describes difficulties in measuring the prevalence of sexual abuse in community
confinement facilities and lockups. 43
The RIA presents three alternatives for estimating the prevalence of sexual abuse, each
relying on different assumptions to account for the possibility of underreporting (false negatives)
and overreporting (false positives) of sexual abuse. Under the “principal” method—the one the
Department prefers among the three—no adjustment is made to the prevalence estimates to
account either for false negatives (sexual abuses that occurred but were never reported) or false
positives (sexual abuses that were reported by inmates but that did not actually occur). The
“adjusted” approach uses an upper bound assumption as to the number of false negatives and a
conservative approach to the adjustment for false positives; the “lower bound” approach uses a
40

See BJS, Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09 (NCJ 231169) (Aug. 2010);
BJS, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 (NCJ 228416) (Jan. 2010).
41
Prevalence essentially measures the number of victims of sexual abuse over a period of time, whereas incidence
refers to the number of discrete victimizations over that period. The difference between the two arises from the fact
that many prison rape victims are victimized many times.
42
The estimates of prevalence are based on surveys of inmates, who are asked to state whether, as of the date the
survey is administered, they have experienced sexual abuse in that facility during the previous twelve months. If the
answer is affirmative, the inmate is asked follow-up questions about the nature and frequency of the abuse. In a
cross-section (also known as “stock”) approach to estimating prevalence, the estimates are based on the responses
given by the inmates who happen to be at the facility on the day the survey was administered. However, this
approach risks significantly understating the actual prevalence, especially in jails, because the majority of inmates
remain in their facility for less than one year, and there will have been many inmates who were at the facility earlier
during the twelve-month survey period but who are no longer there when the survey is administered. A flow
approach to estimating prevalence compensates for this phenomenon by extrapolating from the cross-sectional
figures an estimate of the total number of victims among the total population of inmates who flowed through the
facility during the twelve-month period.
43
At the time the RIA was prepared, the Department lacked data regarding the prevalence of sexual abuse in
community confinement facilities. A BJS study of former State prisoners that was finalized in May 2012, too late
for incorporation into the prevalence assessments of the RIA, provides for the first time some data regarding such
prevalence. See BJS, Sexual Victimization Reported by Former State Prisoners, 2008 (NCJ 237363) (May 2012).
The Department remains unaware of any data regarding the prevalence of sexual abuse in lockups.
170

lower bound assumption as to the number of false negatives and a less conservative approach to
adjusting for false positives. Under the principal approach, the RIA concludes that in 2008 more
than 209,400 persons were victims of sexual abuse in America’s prisons, jails, and juvenile
centers. Of these, at least 78,500 were prison and jail inmates and 4,300 were youth in juvenile
facilities who were victims of the most serious forms of sexual abuse, including forcible rape and
other nonconsensual sexual acts involving injury, force, or high incidence.
Table 3 shows the estimated baseline prevalence of rape and sexual abuse in adult prison
and jail facilities under each of the RIA’s prevalence estimation methods. Table 4 shows the
corresponding estimates for juvenile facilities, and Table 5 shows the composite prevalence
estimates among all facility types.44
Table 3: Baseline Prevalence of Sexual Abuse, Adult Prison and Jail Facilities, Using
Alternative Prevalence Estimation Approaches, by Type of Incident, 2008
Adult Prisons
Principal
Nonconsensual
Sexual Acts High
Nonconsensual
Sexual Acts – Low
“Willing” Sex
with Staff
Abusive Sexual
Contacts - High
Abuse Sexual
Contacts – Low
Staff Sexual
Misconduct
Touching Only
TOTAL

44

Adjusted

Adult Jails
Lower
Bound

Principal

Adjusted

Lower
Bound

32,900

33,100

25,600

45,600

43,000

26,000

11,300

11,600

8,800

8,900

7,900

5,000

17,600

17,800

13,500

15,500

14,800

10,400

7,300

7,000

6,100

8,500

7,800

6,300

10,900

11,200

9,000

14,400

13,600

10,700

9,700

9,400

7,500

16,300

14,200

10,800

89,700

90,100

70,500

109,200

101,300

69,200

For the definitions of the various types of sexual conduct listed in these tables, see Tables 1.1 and 1.2 in the RIA.
171

Table 4: Baseline Prevalence of Sexual Abuse, Juvenile Facilities, Using Alternative
Prevalence Estimation Approaches, by Type of Incident, 2008
Principal
Serious Sexual Acts
- High
“Willing” Sex With
Staff – High
Serious Sexual Acts
– Low
Other Sexual Acts –
High
Other Sexual Acts –
Low
TOTAL

Adjusted

Lower Bound

4,300

4,600

3,800

2,800

2,700

2,500

2,000

2,700

1,800

600

600

500

900

1,000

900

10,600

11,600

9,500

Table 5: Baseline Prevalence of Sexual Abuse, Summary Chart
Principal

Adjusted

Lower Bound

Prisons
Jails
Juveniles

89,700
109,200
10,600

90,100
101,300
11,600

70,500
69,200
9,500

TOTAL

209,400

203,000

149,200

Estimating the Monetized Unit Benefit of Avoiding a Prison Rape or Sexual Abuse
As a number of commenters observed, placing a monetary value on avoided sexual abuse
confronts considerable methodological difficulties. One commenter remarked that “estimating
the monetary ‘costs’ of crime is at best a fraught and imperfect effort, particularly when dealing
with crimes such as sexual abuse whose principal cost is due to the pain, suffering, and quality of
life diminution of the victims.” Executive Order 12866 nevertheless instructs agencies to
measure quantifiable benefits “to the fullest extent that [they] can be usefully estimated.”
Executive Order 12866, § 1(a); see also Executive Order 13563, § 1(c) (“[E]ach agency is
directed to use the best available techniques to quantify anticipated present and future benefits
and costs as accurately as possible.”). Some uncertainty in such estimates is not itself reason to
abandon the effort.
The RIA estimates the monetary value of certain benefits of avoiding prison sexual abuse
using values derived from general literature assessing the cost of rape,45 with adjustments made
to account for the unique characteristics of sexual abuse in the prison setting. Using an approach
known as the willingness to pay (WTP) model, the RIA first monetizes the benefit of avoiding
sexual abuse in a confinement facility by consulting studies that have estimated how much
society is willing to pay for the reduction of various crimes, including rape, and then assessing
whether the conclusions of those studies would be different in the specific context of sexual
abuse in confinement facilities. This approach yields a reliable estimate of the costs of the most
45

See, e.g., National Institute of Justice Research Report, Victim Costs and Consequences: A New Look (NCJ
155282) (Jan. 1996), available at http://www.ncjrs.gov/pdffiles/victcost.pdf; Ted R. Miller et al., Minn. Dep’t of
Health, Costs of Sexual Violence in Minnesota (July 2007), available at
http://www.pire.org/documents/mn_brochure.pdf; Mark A. Cohen et al., Willingness-to-Pay for Crime Control
Programs, 42 Criminology 89 (2004).
172

serious categories of sexual abuse assessed in the RIA,46 but because of limitations in the way
the underlying studies were conducted, it cannot be effectively used to monetize the cost of the
less serious categories of sexual abuse.
In part because of these limitations, the RIA also uses an alternative approach known as
the victim compensation or willingness-to-accept (WTA) model, which estimates how much the
average victim of prison rape would be willing to accept as compensation for injuries suffered in
the assault, including intangible injuries such as pain, suffering, and diminished quality of life.
To do this, the RIA assesses certain monetizable costs of prison rape to the victim, such as the
costs of medical and mental health care, and adds an element, drawn primarily from jury
verdicts, to cover the intangible costs associated with pain and suffering. All of these costs were
identified by reviewing the literature on the cost of rape generally, and then extrapolating the
analogous costs in confinement facilities. Although the RIA calculates avoidance benefits on a
per victim basis, it accounts for the fact that many victims of prison rape are victimized multiple
times.
Thus, the RIA essentially uses a hybrid approach that combines the WTP and WTA
elements: For the one category of sexual conduct as to which an estimate using the WTP was
possible (the most serious category for adult victims), it identifies a range of avoidance benefit
values, with the WTP estimate at one bound and the WTA estimate on the other; for the
remaining categories of conduct, as to which a WTP estimate was not possible, the RIA uses
only the WTA estimate. Using this approach, the RIA derives monetized values for avoiding
each of the six types of sexual contact (five for juveniles), depending upon whether the victim is
a juvenile or an adult. These values are depicted in Tables 6 and 7. The RIA estimates the
monetizable benefit to an adult of avoiding the highest category of prison sexual misconduct
(nonconsensual sexual acts involving injury or force, or no injury or force but high incidence) as
worth about $310,000 per victim using the willingness to pay model and $480,000 per victim
under the victim compensation model. For juveniles, who typically experience significantly
greater injury from sexual abuse than adults, the corresponding category is assessed as worth
$675,000 per victim under the victim compensation model. (A willingness to pay estimate was
not calculated for juveniles.) These estimates are higher than in the IRIA because of changes the
Department made, in response to public comments, to the definitions of the different types of
sexual abuse and to the methodologies for monetizing the benefit of avoiding each type.

46

These costs translate to benefits for the purpose of the RIA—i.e., the benefits that would accrue from avoiding
such incidents.
173

Table 6: Avoidance Benefit Values for Sexual Abuse, Adult Prison and Jail Facilities, by
Victimization Type and Valuation Method
WTP
Nonconsensual Sexual Acts – High
Nonconsensual Sexual Acts – Low
“Willing” Sex With Staff
Abusive Sexual Contacts – High
Abusive Sexual Contacts – Low
Staff Sexual Misconduct Touching
Only

$310,000

Victim
Compensation
(WTA)
$480,000
$160,000
$160,000
$5,200
$600
$600

Table 7: Unit Avoidance Values for Sexual Abuse, Juvenile Facilities,
by Victimization Type
Victim Compensation
(WTA)
Serious Sexual Acts - High
“Willing” Sex With Staff – High
Serious Sexual Acts – Low
Other Sexual Acts – High
Other Sexual Acts – Low

$675,000
$672,000
$225,000
$7,300
$900

The RIA next calculates the maximum monetizable benefit to society of totally
eliminating each of the types of inappropriate sexual contact, by multiplying the baseline
prevalence of such events by the unit benefit of an avoided victim. As depicted in Table 8, under
the Department’s principal approach for estimating prevalence, and using the victim
compensation model, the RIA determines that the maximum monetizable cost to society of
prison rape and sexual abuse (and correspondingly, the total maximum benefit of eliminating it)
is about $46.6 billion annually for prisons and jails, and an additional $5.2 billion annually for
juvenile facilities.47
It bears cautioning, however, that the Department has not estimated in the RIA the
expected monetized benefit of the standards themselves but has instead opted for a break-even
approach that estimates the number of victims that would need to be avoided (taking into account
the fact that many victims are victimized multiple times) for the benefits of the standards to
break even with the costs of full nationwide compliance. Thus, the RIA does not estimate that
the standards will actually yield an annual monetized benefit of $52 billion, except in the
hypothetical scenario where the standards would, by themselves, lead to the complete
elimination of prison rape and sexual abuse. The actual monetized benefit of the standards will
certainly be less than this hypothetical figure and will depend on a number of factors, including
the extent to which facilities comply with the standards, and the extent to which the standards are
effective in achieving their goals.
47

The RIA calculates these figures six different ways, using the three different prevalence estimation approaches
(principal, adjusted, and lower bound), and the two different approaches to monetizing avoidance benefit values
(WTP and WTA). Expressed as a range that captures all six approaches, the RIA determines that the maximum
monetizable cost to society of rape and sexual abuse in prisons, jails, and juvenile facilities (and correspondingly,
the total maximum benefit of eliminating it from those facilities) ranges from $26.9 billion to $51.9 billion. These
figures exclude the cost to society of rape and sexual abuse in community confinement facilities and lockups
because of the unavailability of data regarding the prevalence of sexual abuse in those facilities.
174

Table 8: Total Cost of Sexual Abuse, Across Prisons, Jails, and Juvenile Facilities, Victim
Compensation Method, by Prevalence Approach (In Millions of Dollars)
Principal

Adjusted

Lower
Bound

Prisons
Jails
Juveniles

$20,637
$26,011
$5,239

$20,814
$24,493
$5,532

$16,051
$15,083
$4,654

TOTAL

$51,887

$50,839

$35,788

Non-Monetizable Benefits
Executive Order 13563 states that, “[w]here appropriate and permitted by law, each
agency may consider (and discuss qualitatively) values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and distributive impacts.” Executive Order
13563, § 1(c). Under Executive Order 12866, costs and benefits must “include both quantifiable
measures (to the fullest extent that these can be usefully estimated) and qualitative measures of
costs and benefits that are difficult to quantify but nevertheless essential to consider.” Executive
Order 12866, § 1(a). Benefits of regulatory action include “the enhancement of health and
safety, the protection of the natural environment, and the elimination or reduction of
discrimination or bias.” Id.
In concluding its assessment of the benefits of prison rape avoidance, the RIA identifies a
number of benefits that cannot be monetized. These are some of the most important and
consequential benefits of the final rule, and the discussion in the RIA describes both the nature
and scale of those benefits so that they can be appropriately factored into the analysis. For
example, the RIA examines benefits for rape victims, for inmates who are not rape victims, for
families of victims, for prison administrators and staff, and for society at large. These benefits
include those relating to public health and public safety, as well as economic benefits and
existence value benefits. The RIA also describes benefits to inmates in lockups and community
confinement facilities, as to which information was lacking relating to the baseline prevalence of
sexual abuse.
Additionally, Congress predicated PREA on its conclusion—consistent with decisions by
the Supreme Court—that “deliberate indifference to the substantial risk of sexual assault violates
prisoners’ rights under the Cruel and Unusual Punishment Clause of the Eighth Amendment.”
42 U.S.C. 15601(13) (citing Farmer v. Brennan, 511 U.S. 825 (1994)). The individual rights
enshrined in the Constitution express our nation’s deepest commitments to human dignity and
equality, and American citizens place great value on knowing that their government aspires to
protect those rights to their fullest extent. In thinking about the qualitative benefits that will
accrue from the implementation of the final rule, these values carry great weight.

Cost Analysis
The RIA presents a detailed analysis of the costs of full nationwide compliance with the
standards in the final rule. The RIA concludes that full nationwide compliance with the
standards would cost the correctional community approximately $6.9 billion over the period
175

2012-2026, or $468.5 million per year when annualized at a 7 percent discount rate. The details
of the RIA’s cost estimates are summarized in Tables 9-14:
Table 9: Number of Facilities Assumed to Adopt and Implement the Standards,
for Cost Analysis Purposes48
Number of
Facilities

Type
Prisons (Federal)
Prisons (State)
Jails
Lockups (Police)
Lockups (Court)
Community Confinement
Juvenile

117
1,190
2,860
3,753
2,330
529
2,458

Table 10: Estimated Annualized Cost of Full Compliance with Aggregated Standards,
in Millions of Dollars, by Facility Type

JAI LS
16 3.4

PRI SONS
64 .9

L OCKUPS
95.5
JUVENIL E
131.9
CCF
12.8

48

For detailed sources, see RIA, at p. 70, n. 108.
176

Table 11: Estimated Cost of Full State and Local Compliance with the PREA Standards,
in the Aggregate, by Year and by Facility Type, in Millions of Dollars
Year

Prisons

2012

$87.2

Community
Total
Lockups Confinement Juveniles
All Facilities
Facilities
$254.6 $180.1
$27.8
$196.0
$745.8

2013

$55.2

$161.0

$122.0

$16.8

$93.3

$448.5

2014

$58.3

$157.9

$106.6

$14.2

$92.1

$429.2

2015

$59.2

$154.6

$93.7

$12.1

$94.9

$414.5

2016

$61.3

$153.5

$87.3

$11.1

$109.3

$422.6

2017

$61.5

$152.4

$83.6

$10.6

$151.9

$460.1

2018

$62.9

$151.3

$80.1

$10.1

$147.3

$451.8

2019

$63.1

$150.7

$77.5

$9.8

$144.7

$445.8

2020

$64.3

$150.1

$75.0

$9.4

$142.2

$441.0

2021

$65.7

$149.9

$73.2

$9.2

$140.4

$438.3

2022

$65.9

$150.1

$72.0

$9.0

$139.2

$436.2

2023

$67.1

$150.1

$70.8

$8.9

$138.0

$434.9

2024

$67.1

$149.9

$69.6

$8.7

$136.7

$432.0

2025

$67.9

$149.5

$68.4

$8.5

$135.5

$429.8

2026

$67.6

$148.8

$67.2

$8.4

$134.3

$426.3

$174.8 $1,995.8

$6,856.7

$116.6 $1,201.4

$4,267.4

15-yr Total

Jails

$974.2 $2,384.6 $1,327.3

Present Value $591.2 $1,488.4
Annual

$64.9

$163.4

$869.8
$95.5

$12.8

$131.9

$468.5

Table 12: Estimated Average Annualized Compliance Cost Per Unit Facility, By Type
Cost Per Unit
Facility
$54,546
$49,959

Type
Prisons
Jails
Lockups
(per Agency)
Community
Confinement
Facilities
Juvenile
Facilities

$15,700
$24,190
$53,666

177

Table 13: Estimated Cost of Full Nationwide Compliance with PREA Standards, Total
Across All Facility Types, by Standard and by Year, in Thousands of Dollars
Year

115.11

115.13

115.14

115.16

115.17

2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
Total
NPV
Ann.

$165,711
$159,083
$149,405
$137,076
$125,278
$111,358
$98,234
$88,291
$78,879
$72,118
$67,610
$63,103
$58,596
$54,088
$49,581
$1,478,411
$999,406
$109,729

$85,980
$79,991
$70,430
$68,027
$87,948
$139,334
$144,176
$148,092
$152,738
$156,816
$159,253
$162,373
$164,029
$166,337
$167,336
$1,952,859
$1,094,915
$120,216

$16,202
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$0
$16,202
$15,142
$1,663

$29,298
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$29,285
$439,290
$266,738
$29,286

$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$11,031
$165,466
$100,470
$11,031

115.21.22
$12,803
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$12,474
$187,442
$113,921
$12,508

Training
$310,128
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$55,702
$1,089,957
$745,111
$81,809

115.41.42
$67,302
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$59,765
$904,007
$551,376
$60,538

115.51,
115.53
$11,774
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$6,263
$99,455
$62,193
$6,828

115.52

115.71

Audits

Total

$4,163
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$3,688
$55,794
$34,034
$3,737

$24,431
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$24,236
$363,731
$220,919
$24,256

$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$6,937
$104,049
$63,178
$6,937

$745,760
$448,454
$429,215
$414,484
$422,606
$460,073
$451,790
$445,763
$440,997
$438,314
$436,244
$434,857
$432,005
$429,806
$426,297
$6,856,664
$4,267,403
$468,538

Table 14: Relative Cost of Full Nationwide Compliance with Various Standards
Audit
Investigation

Hiring
Other

Reporting
Zero
Tolerance
Screening

Supervision/
Monitoring

Training

Evidence
Protocol

Disability
and LEP

Again, these tables reflect the estimated costs of full nationwide compliance, which will
occur only if all State, local, and private confinement facilities adopt the standards contained in
the final rule and then immediately and fully implement them. In this sense, the cost impact of
the final rule, as represented here, is essentially theoretical—in effect treating the standards as if
they were binding regulations on State and local confinement facilities.
The true cost impact (which the RIA does not purport to assess), like the true impact of
the final rule on preventing, detecting, and minimizing the effects of sexual abuse, will depend
178

on the specific choices and expenditures that State, local, and private correctional agencies make
with regard to adoption and implementation of the standards.
In assessing the nationwide compliance costs for many of the standards, the RIA relies on
work performed by the consulting firm Booz Allen Hamilton, with which the Department
contracted to undertake cost analyses, first of the standards recommended by the NPREC, then of
the standards proposed in the NPRM, and finally of the standards contained in the final rule.
Booz Allen’s initial cost analysis was based on a field study in which it surveyed 49 agencies of
various types from across the country about the costs they would incur to comply with various
aspects of the NPREC’s recommended standards. Each of the final standards is examined in
detail in the RIA to determine the full implementation costs of that standard. Where possible, the
RIA distinguishes among costs applicable to prisons, jails, juvenile facilities, community
confinement facilities, and lockups.
Many of the standards are assessed as likely having minimal to no associated compliance
costs, including §§ 115.15, 115.215, and 115.315, which, among other things, impose a general
ban on cross-gender pat-down searches of female inmates in adult prisons and jails and in
community confinement facilities, and of male and female residents in juvenile facilities; and
§§ 115.83, 115.283, and 115.383, which requires agencies to provide medical and mental health
care assessments and treatment to victims and to certain abusers. The conclusion of zero cost for
these standards is predicated on a high level of baseline compliance and on the expectation that
agencies will adopt the least costly means of complying with requirements when given flexibility
to determine how to apply those requirements to the specific characteristics of their agencies.
On an annualized basis, the most expensive standards, by the RIA’s estimate, are:
§§ 115.13, 115.113, 115.213, and 115.313, which relate to staffing, supervision, and video
monitoring and would impose annual compliance costs of $120 million per year if fully adopted;
§§ 115.11, 115.111, 115.211, and 115.311, which establish a zero-tolerance policy and require
agencies to designate an agency-wide PREA coordinator and facilities to designate a PREA
compliance manager, and would cost $110 million annually if fully adopted; the training
standards (§§ 115.31–.35, 115.131–.132, 115.134, 115.231–.235, and 115.331–.335), which the
RIA estimates would cost $82 million per year if fully adopted; and the screening standards
(§§ 115.41–.42, 115.141, 115.241–.242, and 115.341–.342), which would have an estimated $61
million in annual costs if there were full nationwide compliance. Together, full nationwide
compliance with these four sets of standards would cost $372 million annually, or about 80
percent of the total for all of the standards.
Booz Allen’s analyses assessed only the costs that State, local, and private agencies
would incur if they adopted and implemented the standards in their own facilities. Thus, Booz
Allen’s analyses do not include the compliance costs of those Federal facilities to which the final
rule applies. The RIA supplements these analyses with the Department’s own internal
assessments of the costs that its two relevant components—the Bureau of Prisons and the United
States Marshals Service—would incur in implementing the standards in the facilities they
operate or oversee. As shown in Table 15, these two components expect to spend approximately
$1.75 million per year over fifteen years to comply with the standards.

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Table 15: Estimated Cost of Compliance with PREA Standards for Department of Justice
Entities, by Standard, Annualized Over 2012-2026 at 7% Discount Rate
Standard
115.11 Zero Tolerance
115.21 Evidence Protocol
115.31-.35 Training
115.41 Screening
115.53 Inmate Reporting
115.93, .402-.405 Audits
Total

BOP
$797,000
$37,000
$20,000
$500
$9,500
$312,000
$1,176,000

USMS
$445,000
$0
$103,000
$0
$0
$0
$548,000

Comparison to Alternatives
Executive Order 13563 calls upon agencies, “in choosing among alternative regulatory
approaches,” to select “those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other advantages; distributive impacts;
and equity).” Executive Order 13563, § 1(b)(3). The Attorney General has concluded that,
among the available alternatives, the standards in the final rule define measures and programs
that, when implemented, will prove effective in accomplishing the goals of the statute while also
promoting flexible decisions by the affected agencies on how to achieve compliance in a manner
that works best given their unique circumstances and environments. Standards that could
potentially maximize net benefits in the abstract would risk actually being less effective, either
due to the failure of States and localities to adopt them at all, or due to the damaging
consequences that the full costs of compliance could have on funding available for other critical
correctional programs.
The RIA examines the cost implications of the two most obvious alternatives to the final
standards—the NPREC’s recommended standards, which are more stringent than the final rule in
many respects, and the standards proposed in the NPRM, which by and large are less stringent—
and finds that the standards in the final rule are the most effective and cost-effective among the
three alternatives. As shown in Table 16, the final standards are the least expensive of the three
alternatives.
Table 16: Comparison of Projected Nationwide Full Compliance Costs,
Final Rule vs. NPRM vs. NPREC Recommendations, in Thousands of Annualized Dollars
NPREC
Prisons
Jails
Lockups
Community
Confinement
Facilities
Juvenile
Facilities
Total

NPRM

Final Rule

$1,018,301
$2,278,566
$2,246,775

$53,318
$332,106
$72,914

$64,910
$163,416
$95,504

$235,884

$2,147

$12,797

$188,215

$50,002

$131,912

$5,967,741

$510,487

$468,539

Executive Order 13132 – Federalism
In drafting the standards, the Department was mindful of its obligation to meet the
objectives of PREA while also minimizing conflicts between State law and Federal interests. In
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accordance with Executive Order 13132, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Notwithstanding the determination that the formal consultation process described in
Executive Order 13132 is not required for this final rule, the Department’s PREA Working
Group consulted with representatives of State and local prisons and jails, juvenile facilities,
community confinement programs, and lockups—among other individuals and groups—during
the listening sessions the Working Group conducted in 2010. The Department also solicited and
received input from numerous public entities at several levels of government in both the
ANPRM and the NPRM stages of this rulemaking.
Insofar as it sets forth national standards that apply to confinement facilities operated by
State and local governments, this final rule has the potential to affect the States, the relationship
between the national government and the States, and the distribution of power and
responsibilities among the various levels of government. However, with respect to the thousands
of State and local agencies, and private companies, that own and operate confinement facilities
across the country, PREA provides the Department with no direct authority to mandate binding
standards for their facilities. Instead, PREA depends upon State and local agencies to make
voluntary decisions to adopt and implement them.
For State agencies that receive grant funding from the Department to support their
correctional operations, Congress has provided that the Department shall withhold 5 percent of
prison-related grant funding to any State that fails to certify that it “has adopted, and is in full
compliance with, the national standards,” or that fails to alternatively provide “an assurance that
not less than 5 percent” of the relevant grant funding “shall be used only for the purpose of
enabling the State to adopt, and achieve full compliance with, those national standards, so as to
ensure that a certification [of compliance] may be submitted in future years.” 42 U.S.C.
15607(c)(2). For county, municipal, and privately run agencies that operate confinement
facilities, PREA lacks any corresponding sanctions for facilities that do not adopt or comply with
the standards.49
Despite the absence of statutory authority to promulgate standards that would bind State,
local, and private agencies, other consequences may flow from the issuance of national
standards, which could provide incentives for voluntary compliance. For example, these
standards may influence the standard of care that courts will apply in considering legal and
constitutional claims brought against corrections agencies and their employees arising out of
allegations of sexual abuse. Moreover, agencies seeking to be accredited by the major
accreditation organizations may need to comply with the standards as a condition of
accreditation.50
Nevertheless, pivotal to the statutory scheme is a voluntary decision by State, county,
local, and private correctional agencies to adopt the standards and to comply with them (or
alternatively, for States, to commit to expending 5 percent of Department of Justice prison49

A small number of States operate unified correctional systems, in which correctional facilities typically
administered by counties or cities—such as jails—are operated instead by State agencies. See Barbara Krauth, A
Review of the Jail Function Within State Unified Corrections Systems (Sept. 1997), available at
http://static.nicic.gov/Library/014024.pdf. In such States, an assessment of whether the State is in full compliance
would encompass those facilities as well.
50
The statute provides that an organization responsible for the accreditation of Federal, State, local, or private
prisons, jails, or other penal facilities may not receive any new Federal grants unless it adopts accreditation
standards consistent with the standards in the final rule. 42 U.S.C. 15608.
181

related grant funds to come into compliance in future years). In deciding whether to adopt these
standards, agencies will of necessity conduct their own analyses of whether they can commit to
adopting the standards in light of other demands on their correctional budgets.
The Department cannot assume that all agencies will choose to adopt and implement
these standards. An agency assessing whether to do so may choose not to based upon an
assessment that, with regard to that specific agency, the costs outweigh the benefits. Such a
course of action would be regrettable. The Department certainly hopes that it will not be
common, and that agencies will instead consider the benefits of prison rape prevention not only
to the agencies themselves but also to the inmates in their charge and to the communities to
which the agencies are accountable.
Nevertheless, the Department cannot ignore the straitened fiscal realities confronting
many correctional agencies. Congress was acutely aware of these circumstances in passing
PREA, which authorized the Department to make grants to States “to assist those States in
ensuring that budgetary circumstances (such as reduced State and local spending on prisons) do
not compromise efforts to protect inmates (particularly from prison rape).” 42 U.S.C. 15605(a).
Congress did not intend for the Department to impose unrealistic or unachievable standards but
rather expected it to partner with those agencies in adopting and implementing policies that will
yield successes at combating sexual abuse in confinement facilities, while enabling State and
local correctional authorities to continue other correctional programs vital to protecting inmates,
staff, and the community, and ensuring that inmates’ eventual reintegration into the community
is successful.
The statute does not mandate any specific approach in developing the standards, but
instead relies upon the Attorney General to exercise his independent judgment. The Attorney
General has concluded that the standards in the final rule define measures and programs that,
when implemented, will prove effective in accomplishing the goals of the statute while also
promoting voluntary compliance decisions by State and local agencies.
Executive Order 12988 - Civil Justice Reform
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies, unless
otherwise prohibited by law, to assess the effects of Federal regulatory actions on State, local,
and tribal governments, and the private sector (other than to the extent that such regulations
incorporate requirements specifically set forth in law).
The Department has assessed the probable impact of the final PREA standards and, as is
more fully described in the RIA, believes that these standards, if fully adopted and implemented
by all State, local, and private operators of confinement facilities, would theoretically result in an
aggregate expenditure by such operators of approximately $467 million annually (i.e., the total of
$468.5 million annually set forth above, minus $1.75 million annually attributable to Department
of Justice entities), when annualized over fifteen years at a 7 percent discount rate.
However, the Department concludes that the requirements of the UMRA do not apply to
the PREA standards because UMRA excludes from its definition of “Federal intergovernmental
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mandate” those regulations imposing an enforceable duty on other levels of government which
are “a condition of Federal assistance.” 2 U.S.C. 658(5)(A)(i)(I). PREA provides that any
amount that a State would otherwise receive for prison purposes from the Department in a given
fiscal year shall be reduced by 5 percent unless the chief executive of the State certifies either
that the State is in “full compliance” with the standards or that not less than 5 percent of such
amount shall be used to enable the State to achieve full compliance with the standards.
Accordingly, compliance with these PREA standards is a condition of Federal assistance for
State governments.
While the Department does not believe that a formal statement pursuant to the UMRA is
required, it has, for the convenience of the public, summarized as follows various matters that are
discussed at greater length elsewhere in this rulemaking and that would have been included in a
UMRA statement should that have been required:
● These national standards are being issued pursuant to the requirements of the Prison
Rape Elimination Act of 2003, 42 U.S.C. 15601 et seq.;
● A qualitative and quantitative assessment of the anticipated costs and benefits of these
national standards appears above in the section on Executive Order 12866, as elaborated in the
RIA;
● The Department does not believe that these national standards will have an effect on
national productivity, economic growth, full employment, creation of productive jobs, or
international competitiveness of United States goods and services, except to the extent described
in the RIA, which postulates inter alia that some agencies may add staff in order to comply with
some of the standards;
● Notwithstanding how limited the Department’s obligations may be under the formal
requirements of UMRA, the Department has engaged in a variety of contacts and consultations
with State and local governments, including during the listening sessions the Working Group
conducted in 2010. In addition, the Department solicited and received input from public entities
in both its ANPRM and its NPRM. The Department received numerous comments on its NPRM
from State and local entities, the vast majority of which addressed the potential costs associated
with certain of the proposed standards. Standards of particular cost concern included the training
standards, the auditing standard, and the standards regarding staff supervision and video
monitoring. The Department has altered various standards in ways that it believes will
appropriately mitigate the cost concerns identified in the comments. State and local entities also
expressed concern that the standards were overly burdensome on small correctional systems and
facilities, especially in rural areas. The Department’s final standards include various revisions to
the proposed rule to address this issue.

Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is a major rule as defined by section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 804. It may result in an annual effect on the
economy of $100,000,000 or more, although it will not result in a major increase in costs or
prices, or significant adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets.
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Regulatory Flexibility Act
The Department of Justice drafted this final rule so as to minimize its impact on small
entities, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612, while meeting
PREA’s intended objectives. The Department has conducted an extensive consideration of the
impact of this rule on small governmental entities, and available alternatives, as elaborated in the
RIA and in the above discussions of Federalism and UMRA.
The Department provided notice of the proposed standards to potentially affected small
governments by publishing the ANPRM and NPRM, by conducting listening sessions, and by
other activities; enabled officials of affected small governments to provide meaningful and
timely input through the methods listed above; and worked (and will continue to work) to
inform, educate, and advise small governments on compliance with the requirements.
As discussed in the RIA summarized above, the Department has identified and
considered a reasonable number of regulatory alternatives and from those alternatives has
attempted to select the least costly, most cost-effective, and least burdensome alternative that
achieves the objectives of PREA.
Paperwork Reduction Act
This final rule contains a new “collection of information” covered by the Paperwork
Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3521. Under the PRA, a covered
agency may not conduct or sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid control number assigned by OMB. 44 U.S.C.
3507(a)(3), 3512.
The information collections in this final rule require covered facilities to retain certain
specified information relating to sexual abuse prevention planning, responsive planning,
education and training, and investigations, as well as to collect and retain certain specified
information relating to allegations of sexual abuse within the facility.
At the time of the proposed rule, the Department submitted an information collection
request to OMB for review and approval in accordance with the review procedures of the PRA.
As part of the comment process on the NPRM, the Department received a few comments
pertaining to the PRA, mostly raising questions whether certain recordkeeping requirements of
the PREA standards duplicated in part the recordkeeping requirements imposed by other
Department regulations. These comments and the Department’s responses thereto are discussed
above in the SUPPLEMENTARY INFORMATION portion of this preamble and in the RIA.
Changes to the PREA standards made in response to comments on the NPRM and due to
additional analysis resulted in the total PRA burden hours being greater than those estimated in
the Department’s initial information collection request. None of the comments received on the
NPRM pertaining to the PRA aspects of the rule necessitated any changes in the PRA burden
hours estimated by the Department. However, the Department has submitted to OMB a revised
information collection request with the new burden estimates for review and approval.
List of Subjects in 28 CFR Part 115
Community confinement facilities, Crime, Jails, Juvenile facilities, Lockups, Prisons,
Prisoners.
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Accordingly, Part 115 of Title 28 of the Code of Federal Regulations is added as follows:
Part 115—PRISON RAPE ELIMINATION ACT NATIONAL STANDARDS
Sec.
115.5 General definitions.
115.6 Definitions related to sexual abuse.
Subpart A—Standards for Adult Prisons and Jails
Prevention Planning
115.11 Zero tolerance of sexual abuse and sexual harassment; PREA coordinator.
115.12 Contracting with other entities for the confinement of inmates.
115.13 Supervision and monitoring.
115.14 Youthful inmates.
115.15 Limits to cross-gender viewing and searches.
115.16 Inmates with disabilities and inmates who are limited English proficient.
115.17 Hiring and promotion decisions.
115.18 Upgrades to facilities and technologies.
Responsive Planning
115.21 Evidence protocol and forensic medical examinations.
115.22 Policies to ensure referrals of allegations for investigations.
Training and Education
115.31 Employee training.
115.32 Volunteer and contractor training.
115.33 Inmate education.
115.34 Specialized training: Investigations.
115.35 Specialized training: Medical and mental health care.
Screening for Risk of Sexual Victimization and Abusiveness
115.41 Screening for risk of victimization and abusiveness.
115.42 Use of screening information.
115.43 Protective custody.
Reporting
115.51 Inmate reporting.
115.52 Exhaustion of administrative remedies.
115.53 Inmate access to outside confidential support services.
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115.54 Third-party reporting.
Official Response Following an Inmate Report
115.61 Staff and agency reporting duties.
115.62 Agency protection duties.
115.63 Reporting to other confinement facilities.
115.64 Staff first responder duties.
115.65 Coordinated response.
115.66 Preservation of ability to protect inmates from contact with abusers.
115.67 Agency protection against retaliation.
115.68 Post-allegation protective custody.
Investigations
115.71 Criminal and administrative agency investigations.
115.72 Evidentiary standard for administrative investigations.
115.73 Reporting to inmates.
Discipline
115.76 Disciplinary sanctions for staff.
115.77 Corrective action for contractors and volunteers.
115.78 Disciplinary sanctions for inmates.
Medical and Mental Care
115.81 Medical and mental health screenings; history of sexual abuse.
115.82 Access to emergency medical and mental health services.
115.83 Ongoing medical and mental health care for sexual abuse victims and abusers.
Data Collection and Review
115.86 Sexual abuse incident reviews.
115.87 Data collection.
115.88 Data review for corrective action.
115.89 Data storage, publication, and destruction.
Audits
115.93 Audits of standards.
Subpart B—Standards for Lockups
Prevention Planning
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115.111 Zero tolerance of sexual abuse and sexual harassment; PREA coordinator.
115.112 Contracting with other entities for the confinement of detainees.
115.113 Supervision and monitoring.
115.114 Juveniles and youthful detainees.
115.115 Limits to cross-gender viewing and searches.
115.116 Detainees with disabilities and detainees who are limited English proficient.
115.117 Hiring and promotion decisions.
115.118 Upgrades to facilities and technologies.
Responsive Planning
115.121 Evidence protocol and forensic medical examinations.
115.122 Policies to ensure referrals of allegations for investigations.
Training and Education
115.131 Employee and volunteer training.
115.132 Detainee, contractor, and inmate worker notification of the agency’s zero-tolerance
policy.
115.133 Reserved.
115.134 Specialized training: Investigations.
115.135 Reserved.
Screening for Risk of Sexual Victimization and Abusiveness
115.141 Screening for risk of victimization and abusiveness.
115.142 Reserved.
115.143 Reserved.
Reporting
115.151 Detainee reporting.
115.152 Reserved.
115.153 Reserved.
115.154 Third-party reporting.
Official Response Following a Detainee Report
115.161 Staff and agency reporting duties.
115.162 Agency protection duties.
115.163 Reporting to other confinement facilities.
115.164 Staff first responder duties.
115.165 Coordinated response.
115.166 Preservation of ability to protect detainees from contact with abusers.
115.167 Agency protection against retaliation.
115.168 Reserved.
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Investigations
115.171 Criminal and administrative agency investigations.
115.172 Evidentiary standard for administrative investigations.
115.173 Reserved.
Discipline
115.176 Disciplinary sanctions for staff.
115.177 Corrective action for contractors and volunteers.
115.178 Referrals for prosecution for detainee-on-detainee sexual abuse.
Medical and Mental Care
115.181 Reserved.
115.182 Access to emergency medical services.
115.183 Reserved.
Data Collection and Review
115.186 Sexual abuse incident reviews.
115.187 Data collection.
115.188 Data review for corrective action.
115.189 Data storage, publication, and destruction.
Audits
115.193 Audits of standards.
Subpart C—Standards for Community Confinement Facilities
Prevention Planning
115.211 Zero tolerance of sexual abuse and sexual harassment; PREA coordinator.
115.212 Contracting with other entities for the confinement of residents.
115.213 Supervision and monitoring.
115.214 Reserved.
115.215 Limits to cross-gender viewing and searches.
115.216 Residents with disabilities and residents who are limited English proficient.
115.217 Hiring and promotion decisions.
115.218 Upgrades to facilities and technologies.
Responsive Planning
115.221 Evidence protocol and forensic medical examinations.
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115.222 Policies to ensure referrals of allegations for investigations.
Training and Education
115.231 Employee training.
115.232 Volunteer and contractor training.
115.233 Resident education.
115.234 Specialized training: Investigations.
115.235 Specialized training: Medical and mental health care.
Screening for Risk of Sexual Victimization and Abusiveness
115.241 Screening for risk of victimization and abusiveness.
115.242 Use of screening information.
115.243 Reserved.
115.251 Resident reporting.
115.252 Exhaustion of administrative remedies.
115.253 Resident access to outside confidential support services.
115.254 Third-party reporting.
Official Response Following a Resident Report
115.261 Staff and agency reporting duties.
115.262 Agency protection duties.
115.263 Reporting to other confinement facilities.
115.264 Staff first responder duties.
115.265 Coordinated response.
115.266 Preservation of ability to protect residents from contact with abusers.
115.267 Agency protection against retaliation.
115.268 Reserved.
Investigations
115.271 Criminal and administrative agency investigations.
115.272 Evidentiary standard for administrative investigations.
115.273 Reporting to residents.
Discipline
115.276 Disciplinary sanctions for staff.
115.277 Corrective action for contractors and volunteers.
115.278 Disciplinary sanctions for residents.
Medical and Mental Care
115.281 Reserved.
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115.282 Access to emergency medical and mental health services.
115.283 Ongoing medical and mental health care for sexual abuse victims and abusers.
Data Collection and Review
115.286 Sexual abuse incident reviews.
115.287 Data collection.
115.288 Data review for corrective action.
115.289 Data storage, publication, and destruction.
Audits
115.293 Audits of standards.
Subpart D—Standards for Juvenile Facilities
Prevention Planning
115.311 Zero tolerance of sexual abuse and sexual harassment; PREA coordinator.
115.312 Contracting with other entities for the confinement of residents.
115.313 Supervision and monitoring.
115.314 Reserved.
115.315 Limits to cross-gender viewing and searches.
115.316 Residents with disabilities and residents who are limited English proficient.
115.317 Hiring and promotion decisions.
115.318 Upgrades to facilities and technologies.
Responsive Planning
115.321 Evidence protocol and forensic medical examinations.
115.322 Policies to ensure referrals of allegations for investigations.
Training and Education
115.331 Employee training.
115.332 Volunteer and contractor training.
115.333 Resident education.
115.334 Specialized training: Investigations.
115.335 Specialized training: Medical and mental health care.
Screening for Risk of Sexual Victimization and Abusiveness
115.341 Obtaining information from residents.
115.342 Placement of residents in housing, bed, program, education, and work assignments.
115.343 Reserved.
190

Reporting
115.351 Resident reporting.
115.352 Exhaustion of administrative remedies.
115.353 Resident access to outside support services and legal representation.
115.354 Third-party reporting.
Official Response Following a Resident Report
115.361 Staff and agency reporting duties.
115.362 Agency protection duties.
115.363 Reporting to other confinement facilities.
115.364 Staff first responder duties.
115.365 Coordinated response.
115.366 Preservation of ability to protect residents from contact with abusers.
115.367 Agency protection against retaliation.
115.368 Post-allegation protective custody.
Investigations
115.371 Criminal and administrative agency investigations.
115.372 Evidentiary standard for administrative investigations.
115.373 Reporting to residents.
Discipline
115.376 Disciplinary sanctions for staff.
115.377 Corrective action for contractors and volunteers.
115.378 Interventions and disciplinary sanctions for residents.
Medical and Mental Care
115.381 Medical and mental health screenings; history of sexual abuse.
115.382 Access to emergency medical and mental health services.
115.383 Ongoing medical and mental health care for sexual abuse victims and abusers.
Data Collection and Review
115.386 Sexual abuse incident reviews.
115.387 Data collection.
115.388 Data review for corrective action.
115.389 Data storage, publication, and destruction.
Audits
115.393 Audits of standards.
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Subpart E—Auditing and Corrective Action
115.401 Frequency and scope of audits.
115.402 Auditor qualifications.
115.403 Audit contents and findings.
115.404 Audit corrective action plan.
115.405 Audit appeals.
Subpart F—State Compliance
115.501 State determination and certification of full compliance.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 15601–15609.
§ 115.5 General definitions.
For purposes of this part, the term—
Agency means the unit of a State, local, corporate, or nonprofit authority, or of the
Department of Justice, with direct responsibility for the operation of any facility that confines
inmates, detainees, or residents, including the implementation of policy as set by the governing,
corporate, or nonprofit authority.
Agency head means the principal official of an agency.
Community confinement facility means a community treatment center, halfway house,
restitution center, mental health facility, alcohol or drug rehabilitation center, or other
community correctional facility (including residential re-entry centers), other than a juvenile
facility, in which individuals reside as part of a term of imprisonment or as a condition of pretrial release or post-release supervision, while participating in gainful employment, employment
search efforts, community service, vocational training, treatment, educational programs, or
similar facility-approved programs during nonresidential hours.
Contractor means a person who provides services on a recurring basis pursuant to a
contractual agreement with the agency.
Detainee means any person detained in a lockup, regardless of adjudication status.
Direct staff supervision means that security staff are in the same room with, and within
reasonable hearing distance of, the resident or inmate.
Employee means a person who works directly for the agency or facility.

192

Exigent circumstances means any set of temporary and unforeseen circumstances that
require immediate action in order to combat a threat to the security or institutional order of a
facility.
Facility means a place, institution, building (or part thereof), set of buildings, structure, or
area (whether or not enclosing a building or set of buildings) that is used by an agency for the
confinement of individuals.
Facility head means the principal official of a facility.
Full compliance means compliance with all material requirements of each standard
except for de minimis violations, or discrete and temporary violations during otherwise sustained
periods of compliance.
Gender nonconforming means a person whose appearance or manner does not conform to
traditional societal gender expectations.
Inmate means any person incarcerated or detained in a prison or jail.
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.
Jail means a confinement facility of a Federal, State, or local law enforcement agency
whose primary use is to hold persons pending adjudication of criminal charges, persons
committed to confinement after adjudication of criminal charges for sentences of one year or
less, or persons adjudicated guilty who are awaiting transfer to a correctional facility.
Juvenile means any person under the age of 18, unless under adult court supervision and
confined or detained in a prison or jail.
Juvenile facility means a facility primarily used for the confinement of juveniles pursuant
to the juvenile justice system or criminal justice system.
Law enforcement staff means employees responsible for the supervision and control of
detainees in lockups.
Lockup means a facility that contains holding cells, cell blocks, or other secure enclosures
that are:
(1) Under the control of a law enforcement, court, or custodial officer; and
(2) Primarily used for the temporary confinement of individuals who have recently been
arrested, detained, or are being transferred to or from a court, jail, prison, or other agency.
Medical practitioner means a health professional who, by virtue of education, credentials,
and experience, is permitted by law to evaluate and care for patients within the scope of his or
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her professional practice. A “qualified medical practitioner” refers to such a professional who
has also successfully completed specialized training for treating sexual abuse victims.
Mental health practitioner means a mental health professional who, by virtue of
education, credentials, and experience, is permitted by law to evaluate and care for patients
within the scope of his or her professional practice. A “qualified mental health practitioner”
refers to such a professional who has also successfully completed specialized training for treating
sexual abuse victims.
Pat-down search means a running of the hands over the clothed body of an inmate,
detainee, or resident by an employee to determine whether the individual possesses contraband.
Prison means an institution under Federal or State jurisdiction whose primary use is for
the confinement of individuals convicted of a serious crime, usually in excess of one year in
length, or a felony.
Resident means any person confined or detained in a juvenile facility or in a community
confinement facility.
Secure juvenile facility means a juvenile facility in which the movements and activities of
individual residents may be restricted or subject to control through the use of physical barriers or
intensive staff supervision. A facility that allows residents access to the community to achieve
treatment or correctional objectives, such as through educational or employment programs,
typically will not be considered to be a secure juvenile facility.
Security staff means employees primarily responsible for the supervision and control of
inmates, detainees, or residents in housing units, recreational areas, dining areas, and other
program areas of the facility.
Staff means employees.
Strip search means a search that requires a person to remove or arrange some or all
clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.
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.
Substantiated allegation means an allegation that was investigated and determined to
have occurred.
Unfounded allegation means an allegation that was investigated and determined not to
have occurred.
Unsubstantiated allegation means an allegation that was investigated and the
investigation produced insufficient evidence to make a final determination as to whether or not
the event occurred.
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Volunteer means an individual who donates time and effort on a recurring basis to
enhance the activities and programs of the agency.
Youthful inmate means any person under the age of 18 who is under adult court
supervision and incarcerated or detained in a prison or jail.
Youthful detainee means any person under the age of 18 who is under adult court
supervision and detained in a lockup.
§ 115.6 Definitions related to sexual abuse.
For purposes of this part, the term—
Sexual abuse includes—
(1) Sexual abuse of an inmate, detainee, or resident by another inmate, detainee, or
resident; and
(2) Sexual abuse of an inmate, detainee, or resident by a staff member, contractor, or
volunteer.
Sexual abuse of an inmate, detainee, or resident by another inmate, detainee, or resident
includes any of the following acts, if the victim does not consent, is coerced into such act by
overt or implied threats of violence, or is unable to consent or refuse:
(1) Contact between the penis and the vulva or the penis and the anus, including
penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration of the anal or genital opening of another person, however slight, by a
hand, finger, object, or other instrument; and
(4) Any other intentional touching, either directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to
a physical altercation.
Sexual abuse of an inmate, detainee, or resident by a staff member, contractor, or
volunteer includes any of the following acts, with or without consent of the inmate, detainee, or
resident:
(1) Contact between the penis and the vulva or the penis and the anus, including
penetration, however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Contact between the mouth and any body part where the staff member, contractor, or
volunteer has the intent to abuse, arouse, or gratify sexual desire;
(4) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or
other instrument, that is unrelated to official duties or where the staff member, contractor, or
volunteer has the intent to abuse, arouse, or gratify sexual desire;
(5) Any other intentional contact, either directly or through the clothing, of or with the
genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or
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where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual
desire;
(6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage
in the activities described in paragraphs (1)-(5) of this section;
(7) Any display by a staff member, contractor, or volunteer of his or her uncovered
genitalia, buttocks, or breast in the presence of an inmate, detainee, or resident, and
(8) Voyeurism by a staff member, contractor, or volunteer.
Voyeurism by a staff member, contractor, or volunteer means an invasion of privacy of
an inmate, detainee, or resident by staff for reasons unrelated to official duties, such as peering at
an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate
to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate’s
naked body or of an inmate performing bodily functions.
Sexual harassment includes—
(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal
comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate,
detainee, or resident directed toward another; and
(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or
resident by a staff member, contractor, or volunteer, including demeaning references to gender,
sexually suggestive or derogatory comments about body or clothing, or obscene language or
gestures.
Subpart A—Standards for Adult Prisons and Jails
Prevention Planning
§ 115.11 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.
§ 115.12 Contracting with other entities for the confinement of inmates.
(a) A public agency that contracts for the confinement of its inmates with private
agencies or other entities, including other government agencies, shall include in any new contract
or contract renewal the entity’s obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to
ensure that the contractor is complying with the PREA standards.
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§ 115.13 Supervision and monitoring.
(a) The agency shall ensure that each facility it operates shall develop, document, and
make its best efforts to comply on a regular basis with a staffing plan that provides for adequate
levels of staffing, and, where applicable, video monitoring, to protect inmates against sexual
abuse. In calculating adequate staffing levels and determining the need for video monitoring,
facilities shall take into consideration:
(1) Generally accepted detention and correctional practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight bodies;
(5) All components of the facility’s physical plant (including “blind-spots” or areas where
staff or inmates may be isolated);
(6) The composition of the inmate population;
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(11) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the facility shall
document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, for each facility the
agency operates, in consultation with the PREA coordinator required by § 115.11, the agency
shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) The facility’s deployment of video monitoring systems and other monitoring
technologies; and
(3) The resources the facility has available to commit to ensure adherence to the staffing
plan.
(d) Each agency operating a facility shall implement a policy and practice of having
intermediate-level or higher-level supervisors conduct and document unannounced rounds to
identify and deter staff sexual abuse and sexual harassment. Such policy and practice shall be
implemented for night shifts as well as day shifts. Each agency shall have a policy to prohibit
staff from alerting other staff members that these supervisory rounds are occurring, unless such
announcement is related to the legitimate operational functions of the facility.
§ 115.14 Youthful inmates.
(a) A youthful inmate shall not be placed in a housing unit in which the youthful inmate
will have sight, sound, or physical contact with any adult inmate through use of a shared
dayroom or other common space, shower area, or sleeping quarters.
(b) In areas outside of housing units, agencies shall either:
(1) maintain sight and sound separation between youthful inmates and adult inmates, or
(2) provide direct staff supervision when youthful inmates and adult inmates have sight,
sound, or physical contact.
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(c) Agencies shall make best efforts to avoid placing youthful inmates in isolation to
comply with this provision. Absent exigent circumstances, agencies shall not deny youthful
inmates daily large-muscle exercise and any legally required special education services to
comply with this provision. Youthful inmates shall also have access to other programs and work
opportunities to the extent possible.
§ 115.15 Limits to cross-gender viewing and searches.
(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.
(b) As of [INSERT DATE 3 YEARS PLUS 60 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER], or [INSERT DATE 5 YEARS PLUS 60
DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]for a facility
whose rated capacity does not exceed 50 inmates, the facility shall not permit cross-gender patdown 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 pat-down searches of female inmates.
(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, 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.
(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.
(f) 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.
§ 115.16 Inmates with disabilities and inmates who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that inmates with disabilities
(including, for example, inmates who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal
opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect,
and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with inmates who are deaf or hard of hearing, providing access
to interpreters who can interpret effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure
that written materials are provided in formats or through methods that ensure effective
communication with inmates with disabilities, including inmates who have intellectual
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disabilities, limited reading skills, or who are blind or have low vision. An agency is not
required to take actions that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity, or in undue financial and administrative burdens, as
those terms are used in regulations promulgated under title II of the Americans With Disabilities
Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of
the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment to
inmates who are limited English proficient, including steps to provide interpreters who can
interpret effectively, accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary.
(c) The agency shall not rely on inmate interpreters, inmate readers, or other types of
inmate assistants except in limited circumstances where an extended delay in obtaining an
effective interpreter could compromise the inmate’s safety, the performance of first-response
duties under § 115.64, or the investigation of the inmate’s allegations.
§ 115.17 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have contact with inmates, and
shall not enlist the services of any contractor who may have contact with inmates, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement
facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the
community facilitated by force, overt or implied threats of force, or coercion, or if the victim did
not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity
described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether
to hire or promote anyone, or to enlist the services of any contractor, who may have contact with
inmates.
(c) Before hiring new employees who may have contact with inmates, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior
institutional employers for information on substantiated allegations of sexual abuse or any
resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting
the services of any contractor who may have contact with inmates.
(e) The agency shall either conduct criminal background records checks at least every
five years of current employees and contractors who may have contact with inmates or have in
place a system for otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have contact with inmates
directly about previous misconduct described in paragraph (a) of this section in written
applications or interviews for hiring or promotions and in any interviews or written selfevaluations conducted as part of reviews of current employees. The agency shall also impose
upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false
information, shall be grounds for termination.
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(h) Unless prohibited by law, the agency shall provide information on substantiated
allegations of sexual abuse or sexual harassment involving a former employee upon receiving a
request from an institutional employer for whom such employee has applied to work.
§ 115.18 Upgrades to facilities and technologies.
(a) When designing or acquiring any new facility and in planning any substantial
expansion or modification of existing facilities, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency’s ability to protect inmates from sexual
abuse.
(b) When installing or updating a video monitoring system, electronic surveillance
system, or other monitoring technology, the agency shall consider how such technology may
enhance the agency’s ability to protect inmates from sexual abuse.
Responsive Planning
§ 115.21 Evidence protocol and forensic medical examinations.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse,
the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining
usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as
appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S.
Department of Justice’s Office on Violence Against Women publication, “A National Protocol
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly
comprehensive and authoritative protocols developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to forensic medical
examinations, whether on-site or at an outside facility, without financial cost, where evidentiarily
or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic
Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or
SANEs cannot be made available, the examination can be performed by other qualified medical
practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a victim advocate from a
rape crisis center. If a rape crisis center is not available to provide victim advocate services, the
agency shall make available to provide these services a qualified staff member from a
community-based organization, or a qualified agency staff member. Agencies shall document
efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis
center refers to an entity that provides intervention and related assistance, such as the services
specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may
utilize a rape crisis center that is part of a governmental unit as long as the center is not part of
the criminal justice system (such as a law enforcement agency) and offers a comparable level of
confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or
qualified community-based organization staff member shall accompany and support the victim
through the forensic medical examination process and investigatory interviews and shall provide
emotional support, crisis intervention, information, and referrals.
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(f) To the extent the agency itself is not responsible for investigating allegations of sexual
abuse, the agency shall request that the investigating agency follow the requirements of
paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations
of sexual abuse in prisons or jails; and
(2) Any Department of Justice component that is responsible for investigating allegations
of sexual abuse in prisons or jails.
(h) For the purposes of this section, a qualified agency staff member or a qualified
community-based staff member shall be an individual who has been screened for appropriateness
to serve in this role and has received education concerning sexual assault and forensic
examination issues in general.
§ 115.22 Policies to ensure referrals of allegations for investigations.
(a) The agency shall ensure that an administrative or criminal investigation is completed
for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or
sexual harassment are referred for investigation to an agency with the legal authority to conduct
criminal investigations, unless the allegation does not involve potentially criminal behavior. The
agency shall publish such policy on its website or, if it does not have one, make the policy
available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such
publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations
of sexual abuse or sexual harassment in prisons or jails shall have in place a policy governing the
conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in prisons or jails shall have in
place a policy governing the conduct of such investigations.
Training and Education
§ 115.31 Employee training.
(a) The agency shall train all employees who may have contact with inmates on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment
prevention, detection, reporting, and response policies and procedures;
(3) Inmates’ right to be free from sexual abuse and sexual harassment;
(4) The right of inmates and employees to be free from retaliation for reporting sexual
abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in confinement;
(6) The common reactions of sexual abuse and sexual harassment victims;
(7) How to detect and respond to signs of threatened and actual sexual abuse;
(8) How to avoid inappropriate relationships with inmates;
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(9) How to communicate effectively and professionally with inmates, including lesbian,
gay, bisexual, transgender, intersex, or gender nonconforming inmates; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to
outside authorities.
(b) Such training shall be tailored to the gender of the inmates at the employee’s facility.
The employee shall receive additional training if the employee is reassigned from a facility that
houses only male inmates to a facility that houses only female inmates, or vice versa.
(c) All current employees who have not received such training shall be trained within one
year of the effective date of the PREA standards, and the agency shall provide each employee
with refresher training every two years to ensure that all employees know the agency’s current
sexual abuse and sexual harassment policies and procedures. In years in which an employee
does not receive refresher training, the agency shall provide refresher information on current
sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification,
that employees understand the training they have received.
§ 115.32 Volunteer and contractor training.
(a) The agency shall ensure that all volunteers and contractors who have contact with
inmates have been trained on their responsibilities under the agency’s sexual abuse and sexual
harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based
on the services they provide and level of contact they have with inmates, but all volunteers and
contractors who have contact with inmates shall be notified of the agency’s zero-tolerance policy
regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers and contractors
understand the training they have received.
§ 115.33 Inmate education.
(a) During the intake process, inmates shall receive information explaining the agency’s
zero-tolerance policy regarding sexual abuse and sexual harassment and how to report incidents
or suspicions of sexual abuse or sexual harassment.
(b) Within 30 days of intake, the agency shall provide comprehensive education to
inmates either in person or through video regarding their rights to be free from sexual abuse and
sexual harassment and to be free from retaliation for reporting such incidents, and regarding
agency policies and procedures for responding to such incidents.
(c) Current inmates who have not received such education shall be educated within one
year of the effective date of the PREA standards, and shall receive education upon transfer to a
different facility to the extent that the policies and procedures of the inmate’s new facility differ
from those of the previous facility.
(d) The agency shall provide inmate education in formats accessible to all inmates,
including those who are limited English proficient, deaf, visually impaired, or otherwise
disabled, as well as to inmates who have limited reading skills.
(e) The agency shall maintain documentation of inmate participation in these education
sessions.
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(f) In addition to providing such education, the agency shall ensure that key information
is continuously and readily available or visible to inmates through posters, inmate handbooks, or
other written formats.
§ 115.34 Specialized training: Investigations.
(a) In addition to the general training provided to all employees pursuant to § 115.31, the
agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations, its
investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims,
proper use of Miranda and Garrity warnings, sexual abuse evidence collection in confinement
settings, and the criteria and evidence required to substantiate a case for administrative action or
prosecution referral.
(c) The agency shall maintain documentation that agency investigators have completed
the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in
confinement settings shall provide such training to its agents and investigators who conduct such
investigations.
§ 115.35 Specialized training: Medical and mental health care.
(a) The agency shall ensure that all full- and part-time medical and mental health care
practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of sexual abuse and sexual
harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual
harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical
staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners
have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated
for employees under § 115.31 or for contractors and volunteers under § 115.32, depending upon
the practitioner’s status at the agency.
Screening for Risk of Sexual Victimization and Abusiveness
§ 115.41 Screening for risk of victimization and abusiveness.
(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 hours of arrival at the facility.
(c) Such assessments shall be conducted using an objective screening instrument.
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(d) The intake screening shall consider, at a minimum, the following criteria to assess
inmates for risk of sexual victimization:
(1) Whether the inmate has a mental, physical, or developmental disability;
(2) The age of the inmate;
(3) The physical build of the inmate;
(4) Whether the inmate has previously been incarcerated;
(5) Whether the inmate’s criminal history is exclusively nonviolent;
(6) Whether the inmate has prior convictions for sex offenses against an adult or child;
(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
(10) Whether the inmate is detained solely for civil immigration purposes.
(e) The initial screening shall consider prior acts of sexual abuse, prior convictions for
violent offenses, and history of prior institutional violence or sexual abuse, as known to the
agency, in assessing inmates for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the inmate’s arrival at the
facility, the facility will reassess the inmate’s risk of victimization or abusiveness based upon
any additional, relevant information received by the facility since the intake screening.
(g) An inmate’s risk level shall be reassessed when warranted due to a referral, request,
incident of sexual abuse, or receipt of additional information that bears on the inmate’s risk of
sexual victimization or abusiveness.
(h) 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.
(i) 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.
§ 115.42 Use of screening information.
(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.
(b) The agency shall make individualized determinations about how to ensure the safety
of each inmate.
(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.
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(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, 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.
§ 115.43 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 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.
Reporting
§ 115.51 Inmate reporting.
(a) The agency shall provide multiple internal ways for inmates to privately report sexual
abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and
sexual harassment, and staff neglect or violation of responsibilities that may have contributed to
such incidents.
(b) The agency shall also provide at least one way for inmates to report abuse or
harassment to a public or private entity or office that is not part of the agency, and that is able to
receive and immediately forward inmate reports of sexual abuse and sexual harassment to
agency officials, allowing the inmate to remain anonymous upon request. Inmates detained
solely for civil immigration purposes shall be provided information on how to contact relevant
consular officials and relevant officials at the Department of Homeland Security.
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(c) Staff shall accept reports made verbally, in writing, anonymously, and from third
parties and shall promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and
sexual harassment of inmates.
§ 115.52 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not have administrative
procedures to address inmate grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when an inmate may submit a
grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits to any portion of a grievance
that does not allege an incident of sexual abuse.
(3) The agency shall not require an inmate to use any informal grievance process, or to
otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency’s ability to defend against an inmate
lawsuit on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) An inmate who alleges sexual abuse may submit a grievance without submitting it to
a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a
grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by inmates in
preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal
time period for response is insufficient to make an appropriate decision. The agency shall notify
the inmate in writing of any such extension and provide a date by which a decision will be made.
(4) At any level of the administrative process, including the final level, if the inmate does
not receive a response within the time allotted for reply, including any properly noticed
extension, the inmate may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow inmates, staff members, family members, attorneys,
and outside advocates, shall be permitted to assist inmates in filing requests for administrative
remedies relating to allegations of sexual abuse, and shall also be permitted to file such requests
on behalf of inmates.
(2) If a third party files such a request on behalf of an inmate, the facility may require as a
condition of processing the request that the alleged victim agree to have the request filed on his
or her behalf, and may also require the alleged victim to personally pursue any subsequent steps
in the administrative remedy process.
(3) If the inmate declines to have the request processed on his or her behalf, the agency
shall document the inmate’s decision.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance
alleging that an inmate is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging an inmate is subject to a substantial
risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any
portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at
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which immediate corrective action may be taken, shall provide an initial response within 48
hours, and shall issue a final agency decision within 5 calendar days. The initial response and
final agency decision shall document the agency’s determination whether the inmate is in
substantial risk of imminent sexual abuse and the action taken in response to the emergency
grievance.
(g) The agency may discipline an inmate for filing a grievance related to alleged sexual
abuse only where the agency demonstrates that the inmate filed the grievance in bad faith.
§ 115.53 Inmate access to outside confidential support services.
(a) The facility shall provide inmates with access to outside victim advocates for
emotional support services related to sexual abuse by giving inmates mailing addresses and
telephone numbers, including toll-free hotline numbers where available, of local, State, or
national victim advocacy or rape crisis organizations, and, for persons detained solely for civil
immigration purposes, immigrant services agencies. The facility shall enable reasonable
communication between inmates and these organizations and agencies, in as confidential a
manner as possible.
(b) The facility shall inform inmates, prior to giving them access, of the extent to which
such communications will be monitored and the extent to which reports of abuse will be
forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or
other agreements with community service providers that are able to provide inmates with
confidential emotional support services related to sexual abuse. The agency shall maintain
copies of agreements or documentation showing attempts to enter into such agreements.
§ 115.54 Third-party reporting.
The agency shall establish a method to receive third-party reports of sexual abuse and
sexual harassment and shall distribute publicly information on how to report sexual abuse and
sexual harassment on behalf of an inmate.
Official Response Following an Inmate Report
§ 115.61 Staff and agency reporting duties.
(a) The agency shall require all staff to report immediately and according to agency
policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual
harassment that occurred in a facility, whether or not it is part of the agency; retaliation against
inmates or staff who reported such an incident; and any staff neglect or violation of
responsibilities that may have contributed to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any
information related to a sexual abuse report to anyone other than to the extent necessary, as
specified in agency policy, to make treatment, investigation, and other security and management
decisions.
(c) Unless otherwise precluded by Federal, State, or local law, medical and mental health
practitioners shall be required to report sexual abuse pursuant to paragraph (a) of this section and
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to inform inmates of the practitioner’s duty to report, and the limitations of confidentiality, at the
initiation of services.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a
State or local vulnerable persons statute, the agency shall report the allegation to the designated
State or local services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and sexual harassment,
including third-party and anonymous reports, to the facility’s designated investigators.
§ 115.62 Agency protection duties.
When an agency learns that an inmate is subject to a substantial risk of imminent sexual
abuse, it shall take immediate action to protect the inmate.
§ 115.63 Reporting to other confinement facilities.
(a) Upon receiving an allegation that an inmate was sexually abused while confined at
another facility, the head of the facility that received the allegation shall notify the head of the
facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours
after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the
allegation is investigated in accordance with these standards.
§ 115.64 Staff first responder duties.
(a) Upon learning of an allegation that an inmate was sexually abused, the first security
staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect
any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of
physical evidence, request that the alleged victim not take any actions that could destroy physical
evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of
physical evidence, ensure that the alleged abuser does not take any actions that could destroy
physical evidence, including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be
required to request that the alleged victim not take any actions that could destroy physical
evidence, and then notify security staff.
§ 115.65 Coordinated response.

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The facility shall develop a written institutional plan to coordinate actions taken in
response to an incident of sexual abuse, among staff first responders, medical and mental health
practitioners, investigators, and facility leadership.
§ 115.66 Preservation of ability to protect inmates from contact with abusers.
(a) Neither the agency nor any other governmental entity responsible for collective
bargaining on the agency’s behalf shall enter into or renew any collective bargaining agreement
or other agreement that limits the agency’s ability to remove alleged staff sexual abusers from
contact with any inmates pending the outcome of an investigation or of a determination of
whether and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that
govern:
(1) The conduct of the disciplinary process, as long as such agreements are not
inconsistent with the provisions of §§ 115.72 and 115.76; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an
investigation shall be expunged from or retained in the staff member’s personnel file following a
determination that the allegation of sexual abuse is not substantiated.
§ 115.67 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all inmates and staff who report sexual
abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations
from retaliation by other inmates or staff, and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or
transfers for inmate victims or abusers, removal of alleged staff or inmate abusers from contact
with victims, and emotional support services for inmates or staff who fear retaliation for
reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the
conduct and treatment of inmates or staff who reported the sexual abuse and of inmates who
were reported to have suffered sexual abuse to see if there are changes that may suggest possible
retaliation by inmates or staff, and shall act promptly to remedy any such retaliation. Items the
agency should monitor include any inmate disciplinary reports, housing, or program changes, or
negative performance reviews or reassignments of staff. The agency shall continue such
monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(d) In the case of inmates, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of
retaliation, the agency shall take appropriate measures to protect that individual against
retaliation.
(f) An agency’s obligation to monitor shall terminate if the agency determines that the
allegation is unfounded.
§ 115.68 Post-allegation protective custody.

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Any use of segregated housing to protect an inmate who is alleged to have suffered
sexual abuse shall be subject to the requirements of § 115.43.
Investigations
§ 115.71 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into allegations of sexual abuse and
sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations,
including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received
special training in sexual abuse investigations pursuant to § 115.34.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic monitoring data; shall
interview alleged victims, suspected perpetrators, and witnesses; and shall review prior
complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency
shall conduct compelled interviews only after consulting with prosecutors as to whether
compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an
individual basis and shall not be determined by the person’s status as inmate or staff. No agency
shall require an inmate who alleges sexual abuse to submit to a polygraph examination or other
truth-telling device as a condition for proceeding with the investigation of such an allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed
to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and
testimonial evidence, the reasoning behind credibility assessments, and investigative facts and
findings.
(g) Criminal investigations shall be documented in a written report that contains a
thorough description of physical, testimonial, and documentary evidence and attaches copies of
all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for
prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this
section for as long as the alleged abuser is incarcerated or employed by the agency, plus five
years.
(j) The departure of the alleged abuser or victim from the employment or control of the
facility or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such
investigations shall do so pursuant to the above requirements.
(l) When outside agencies investigate sexual abuse, the facility shall cooperate with
outside investigators and shall endeavor to remain informed about the progress of the
investigation.
§ 115.72 Evidentiary standard for administrative investigations.
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The agency shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse or sexual harassment are substantiated.
§ 115.73 Reporting to inmates.
(a) Following an investigation into an inmate’s allegation that he or she suffered sexual
abuse in an agency facility, the agency shall inform the inmate as to whether the allegation has
been determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant
information from the investigative agency in order to inform the inmate.
(c) Following an inmate’s allegation that a staff member has committed sexual abuse
against the inmate, the agency shall subsequently inform the inmate (unless the agency has
determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the inmate’s unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to
sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to
sexual abuse within the facility.
(d) Following an inmate’s allegation that he or she has been sexually abused by another
inmate, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to
sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to
sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency’s obligation to report under this standard shall terminate if the inmate is
released from the agency’s custody.
Discipline
§ 115.76 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for
violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have
engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or
sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the
nature and circumstances of the acts committed, the staff member’s disciplinary history, and the
sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies,
or resignations by staff who would have been terminated if not for their resignation, shall be
reported to law enforcement agencies, unless the activity was clearly not criminal, and to any
relevant licensing bodies.
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§ 115.77 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from
contact with inmates and shall be reported to law enforcement agencies, unless the activity was
clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to
prohibit further contact with inmates, in the case of any other violation of agency sexual abuse or
sexual harassment policies by a contractor or volunteer.
§ 115.78 Disciplinary sanctions for inmates.
(a) Inmates shall be subject to disciplinary sanctions pursuant to a formal disciplinary
process following an administrative finding that the inmate engaged in inmate-on-inmate sexual
abuse or following a criminal finding of guilt for inmate-on-inmate sexual abuse.
(b) Sanctions shall be commensurate with the nature and circumstances of the abuse
committed, the inmate’s disciplinary history, and the sanctions imposed for comparable offenses
by other inmates with similar histories.
(c) The disciplinary process shall consider whether an inmate’s mental disabilities or
mental illness contributed to his or her behavior when determining what type of sanction, if any,
should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address
and correct underlying reasons or motivations for the abuse, the facility shall consider whether to
require the offending inmate to participate in such interventions as a condition of access to
programming or other benefits.
(e) The agency may discipline an inmate for sexual contact with staff only upon a finding
that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith
based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely
reporting an incident or lying, even if an investigation does not establish evidence sufficient to
substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between inmates and may
discipline inmates for such activity. An agency may not, however, deem such activity to
constitute sexual abuse if it determines that the activity is not coerced.
Medical and Mental Care
§ 115.81 Medical and mental health screenings; history of sexual abuse.
(a) If the screening pursuant to § 115.41 indicates that a prison inmate has experienced
prior sexual victimization, whether it occurred in an institutional setting or in the community,
staff shall ensure that the inmate is offered a follow-up meeting with a medical or mental health
practitioner within 14 days of the intake screening.
(b) If the screening pursuant to § 115.41 indicates that a prison inmate has previously
perpetrated sexual abuse, whether it occurred in an institutional setting or in the community, staff
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shall ensure that the inmate is offered a follow-up meeting with a mental health practitioner
within 14 days of the intake screening.
(c) If the screening pursuant to § 115.41 indicates that a jail inmate has experienced prior
sexual victimization, whether it occurred in an institutional setting or in the community, staff
shall ensure that the inmate is offered a follow-up meeting with a medical or mental health
practitioner within 14 days of the intake screening.
(d) Any information related to sexual victimization or abusiveness that occurred in an
institutional setting shall be strictly limited to medical and mental health practitioners and other
staff, as necessary, to inform treatment plans and security and management decisions, including
housing, bed, work, education, and program assignments, or as otherwise required by Federal,
State, or local law.
(e) Medical and mental health practitioners shall obtain informed consent from inmates
before reporting information about prior sexual victimization that did not occur in an institutional
setting, unless the inmate is under the age of 18.
§ 115.82 Access to emergency medical and mental health services.
(a) Inmate victims of sexual abuse shall receive timely, unimpeded access to emergency
medical treatment and crisis intervention services, the nature and scope of which are determined
by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report
of recent abuse is made, security staff first responders shall take preliminary steps to protect the
victim pursuant to § 115.62 and shall immediately notify the appropriate medical and mental
health practitioners.
(c) Inmate victims of sexual abuse while incarcerated shall be offered timely information
about and timely access to emergency contraception and sexually transmitted infections
prophylaxis, in accordance with professionally accepted standards of care, where medically
appropriate.
(d) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
§ 115.83 Ongoing medical and mental health care for sexual abuse victims and abusers.
(a) The facility shall offer medical and mental health evaluation and, as appropriate,
treatment to all inmates who have been victimized by sexual abuse in any prison, jail, lockup, or
juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up
services, treatment plans, and, when necessary, referrals for continued care following their
transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services
consistent with the community level of care.
(d) Inmate victims of sexually abusive vaginal penetration while incarcerated shall be
offered pregnancy tests.

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(e) If pregnancy results from the conduct described in paragraph (d) of this section, such
victims shall receive timely and comprehensive information about and timely access to all lawful
pregnancy-related medical services.
(f) Inmate victims of sexual abuse while incarcerated shall be offered tests for sexually
transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
(h) All prisons shall attempt to conduct a mental health evaluation of all known inmateon-inmate abusers within 60 days of learning of such abuse history and offer treatment when
deemed appropriate by mental health practitioners.
Data Collection and Review
§ 115.86 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
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)-(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.
§ 115.87 Data collection.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at
facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
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(c) The incident-based data collected shall include, at a minimum, the data necessary to
answer all questions from the most recent version of the Survey of Sexual Violence conducted
by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available
incident-based documents, including reports, investigation files, and sexual abuse incident
reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private
facility with which it contracts for the confinement of its inmates.
(f) Upon request, the agency shall provide all such data from the previous calendar year
to the Department of Justice no later than June 30.
§ 115.88 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant to § 115.87 in order
to assess and improve the effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including by:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as
well as the agency as a whole.
(b) Such report shall include a comparison of the current year’s data and corrective
actions with those from prior years and shall provide an assessment of the agency’s progress in
addressing sexual abuse.
(c) The agency’s report shall be approved by the agency head and made readily available
to the public through its website or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would
present a clear and specific threat to the safety and security of a facility, but must indicate the
nature of the material redacted.
§ 115.89 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to § 115.87 are securely retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its
direct control and private facilities with which it contracts, readily available to the public at least
annually through its website or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall
remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.87 for at least
10 years after the date of the initial collection unless Federal, State, or local law requires
otherwise.
Audits
§ 115.93 Audits of standards.
The agency shall conduct audits pursuant to §§ 115.401–.405.
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Subpart B—Standards for Lockups
Prevention Planning
§ 115.111 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 lockups.
§ 115.112 Contracting with other entities for the confinement of detainees.
(a) A law enforcement agency that contracts for the confinement of its lockup detainees
in lockups operated by private agencies or other entities, including other government agencies,
shall include in any new contract or contract renewal the entity’s obligation to adopt and comply
with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to
ensure that the contractor is complying with the PREA standards.
§ 115.113 Supervision and monitoring.
(a) For each lockup, the agency shall develop and document a staffing plan that provides
for adequate levels of staffing, and, where applicable, video monitoring, to protect detainees
against sexual abuse. In calculating adequate staffing levels and determining the need for video
monitoring, agencies shall take into consideration;
(1) The physical layout of each lockup;
(2) The composition of the detainee population;
(3) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the lockup shall
document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, the lockup shall
assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The lockup’s deployment of video monitoring systems and other monitoring
technologies; and
(4) The resources the lockup has available to commit to ensure adequate staffing levels.
(d) If vulnerable detainees are identified pursuant to the screening required by § 115.141,
security staff shall provide such detainees with heightened protection, to include continuous
direct sight and sound supervision, single-cell housing, or placement in a cell actively monitored
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on video by a staff member sufficiently proximate to intervene, unless no such option is
determined to be feasible.
§ 115.114 Juveniles and youthful detainees.
Juveniles and youthful detainees shall be held separately from adult detainees.
§ 115.115 Limits to cross-gender viewing and searches.
(a) The lockup 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.
(b) The lockup shall document all cross-gender strip searches and cross-gender visual
body cavity searches.
(c) The lockup shall implement policies and procedures that enable detainees to shower,
perform bodily functions, and change clothing without nonmedical staff of the opposite gender
viewing their breasts, 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 area where detainees are likely
to be showering, performing bodily functions, or changing clothing.
(d) The lockup shall not search or physically examine a transgender or intersex detainee
for the sole purpose of determining the detainee’s genital status. If the detainee’s genital status is
unknown, it may be determined during conversations with the detainee, 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.
(e) The agency shall train law enforcement staff in how to conduct cross-gender patdown searches, and searches of transgender and intersex detainees, in a professional and
respectful manner, and in the least intrusive manner possible, consistent with security needs.
§ 115.116 Detainees with disabilities and detainees who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that detainees with disabilities
(including, for example, detainees who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal
opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect,
and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with detainees who are deaf or hard of hearing, providing access
to interpreters who can interpret effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure
that written materials are provided in formats or through methods that ensure effective
communication with detainees with disabilities, including detainees who have intellectual
disabilities, limited reading skills, or who are blind or have low vision. An agency is not
required to take actions that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity, or in undue financial and administrative burdens, as
those terms are used in regulations promulgated under title II of the Americans With Disabilities
Act, 28 CFR 35.164.
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(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of
the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment to
detainees who are limited English proficient, including steps to provide interpreters who can
interpret effectively, accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary.
(c) The agency shall not rely on detainee interpreters, detainee readers, or other types of
detainee assistants except in limited circumstances where an extended delay in obtaining an
effective interpreter could compromise the detainee’s safety, the performance of first-response
duties under § 115.164, or the investigation of the detainee’s allegations.
§ 115.117 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have contact with detainees,
and shall not enlist the services of any contractor who may have contact with detainees, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement
facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the
community facilitated by force, overt or implied threats of force, or coercion, or if the victim did
not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity
described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether
to hire or promote anyone, or to enlist the services of any contractor, who may have contact with
detainees.
(c) Before hiring new employees who may have contact with detainees, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior
institutional employers for information on substantiated allegations of sexual abuse or any
resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting
the services of any contractor who may have contact with detainees.
(e) The agency shall either conduct criminal background records checks at least every
five years of current employees and contractors who may have contact with detainees or have in
place a system for otherwise capturing such information for current employees.
(f) The agency shall ask all applicants and employees who may have contact with
detainees directly about previous misconduct described in paragraph (a) of this section in written
applications or interviews for hiring or promotions and in any interviews or written selfevaluations conducted as part of reviews of current employees. The agency shall also impose
upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false
information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated
allegations of sexual abuse or sexual harassment involving a former employee upon receiving a
request from an institutional employer for whom such employee has applied to work.
§ 115.118 Upgrades to facilities and technologies.
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(a) When designing or acquiring any new lockup and in planning any substantial
expansion or modification of existing lockups, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency’s ability to protect detainees from sexual
abuse.
(b) When installing or updating a video monitoring system, electronic surveillance
system, or other monitoring technology, the agency shall consider how such technology may
enhance the agency’s ability to protect detainees from sexual abuse.
Responsive Planning
§ 115.121 Evidence protocol and forensic medical examinations.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse in
its lockups, the agency shall follow a uniform evidence protocol that maximizes the potential for
obtaining usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as
appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S.
Department of Justice’s Office on Violence Against Women publication, “A National Protocol
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly
comprehensive and authoritative protocols developed after 2011. As part of the training required
in § 115.131, employees and volunteers who may have contact with lockup detainees shall
receive basic training regarding how to detect and respond to victims of sexual abuse.
(c) The agency shall offer all victims of sexual abuse access to forensic medical
examinations whether on-site or at an outside facility, without financial cost, where evidentiarily
or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic
Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or
SANEs cannot be made available, the examination can be performed by other qualified medical
practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) If the detainee is transported for a forensic examination to an outside hospital that
offers victim advocacy services, the detainee shall be permitted to use such services to the extent
available, consistent with security needs.
(e) To the extent the agency itself is not responsible for investigating allegations of sexual
abuse, the agency shall request that the investigating agency follow the requirements of
paragraphs (a) through (d) of this section.
(f) The requirements in paragraphs (a) through (e) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations
of sexual abuse in lockups; and
(2) Any Department of Justice component that is responsible for investigating allegations
of sexual abuse in lockups.
§ 115.122 Policies to ensure referrals of allegations for investigations.
(a) The agency shall ensure that an administrative or criminal investigation is completed
for all allegations of sexual abuse and sexual harassment.
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(b) If another law enforcement agency is responsible for conducting investigations of
allegations of sexual abuse or sexual harassment in its lockups, the agency shall have in place a
policy to ensure that such allegations are referred for investigation to an agency with the legal
authority to conduct criminal investigations, unless the allegation does not involve potentially
criminal behavior. The agency shall publish such policy, including a description of
responsibilities of both the agency and the investigating entity, on its website, or, if it does not
have one, make available the policy through other means. The agency shall document all such
referrals.
(c) Any State entity responsible for conducting administrative or criminal investigations
of sexual abuse or sexual harassment in lockups shall have in place a policy governing the
conduct of such investigations.
(d) Any Department of Justice component responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in lockups shall have in place a
policy governing the conduct of such investigations.
Training and Education
§ 115.131 Employee and volunteer training.
(a) The agency shall train all employees and volunteers who may have contact with
lockup detainees to be able to fulfill their responsibilities under agency sexual abuse prevention,
detection, and response policies and procedures, including training on:
(1) The agency’s zero-tolerance policy and detainees’ right to be free from sexual abuse
and sexual harassment;
(2) The dynamics of sexual abuse and harassment in confinement settings, including
which detainees are most vulnerable in lockup settings;
(3) The right of detainees and employees to be free from retaliation for reporting sexual
abuse or harassment;
(4) How to detect and respond to signs of threatened and actual abuse;
(5) How to communicate effectively and professionally with all detainees; and
(6) How to comply with relevant laws related to mandatory reporting of sexual abuse to
outside authorities.
(b) All current employees and volunteers who may have contact with lockup detainees
shall be trained within one year of the effective date of the PREA standards, and the agency shall
provide annual refresher information to all such employees and volunteers to ensure that they
know the agency’s current sexual abuse and sexual harassment policies and procedures.
(c) The agency shall document, through employee signature or electronic verification,
that employees understand the training they have received.
§ 115.132 Detainee, contractor, and inmate worker notification of the agency’s zerotolerance policy.
(a) During the intake process, employees shall notify all detainees of the agency’s zerotolerance policy regarding sexual abuse and sexual harassment.

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(b) The agency shall ensure that, upon entering the lockup, contractors and any inmates
who work in the lockup are informed of the agency’s zero-tolerance policy regarding sexual
abuse and sexual harassment.
§ 115.133 Reserved.
§ 115.134 Specialized training: Investigations.
(a) In addition to the general training provided to all employees and volunteers pursuant
to § 115.131, the agency shall ensure that, to the extent the agency itself conducts sexual abuse
investigations, its investigators have received training in conducting such investigations in
confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims,
proper use of Miranda and Garrity warnings, sexual abuse evidence collection in confinement
settings, and the criteria and evidence required to substantiate a case for administrative action or
prosecution referral.
(c) The agency shall maintain documentation that agency investigators have completed
the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in
lockups shall provide such training to their agents and investigators who conduct such
investigations.
§ 115.135 Reserved.
Screening for Risk of Sexual Victimization and Abusiveness
§ 115.141 Screening for risk of victimization and abusiveness.
(a) In lockups that are not utilized to house detainees overnight, before placing any
detainees together in a holding cell, staff shall consider whether, based on the information before
them, a detainee may be at a high risk of being sexually abused and, when appropriate, shall take
necessary steps to mitigate any such danger to the detainee.
(b) In lockups that are utilized to house detainees overnight, all detainees shall be
screened to assess their risk of being sexually abused by other detainees or sexually abusive
toward other detainees.
(c) In lockups described in paragraph (b) of this section, staff shall ask the detainee about
his or her own perception of vulnerability.
(d) The screening process in the lockups described in paragraph (b) of this section shall
also consider, to the extent that the information is available, the following criteria to screen
detainees for risk of sexual victimization:
(1) Whether the detainee has a mental, physical, or developmental disability;
(2) The age of the detainee;
(3) The physical build and appearance of the detainee;
(4) Whether the detainee has previously been incarcerated; and
(5) The nature of the detainee’s alleged offense and criminal history.
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§ 115.142 Reserved.
§ 115.143 Reserved.
Reporting
§ 115.151 Detainee reporting.
(a) The agency shall provide multiple ways for detainees to privately report sexual abuse
and sexual harassment, retaliation by other detainees or staff for reporting sexual abuse and
sexual harassment, and staff neglect or violation of responsibilities that may have contributed to
such incidents.
(b) The agency shall also inform detainees of at least one way to report abuse or
harassment to a public or private entity or office that is not part of the agency, and that is able to
receive and immediately forward detainee reports of sexual abuse and sexual harassment to
agency officials, allowing the detainee to remain anonymous upon request.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third
parties and promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and
sexual harassment of detainees.
§ 115.152 Reserved.
§ 115.153 Reserved.
§ 115.154 Third-party reporting.
The agency shall establish a method to receive third-party reports of sexual abuse and
sexual harassment in its lockups and shall distribute publicly information on how to report sexual
abuse and sexual harassment on behalf of a detainee.
Official Response Following a Detainee Report
§ 115.161 Staff and agency reporting duties.
(a) The agency shall require all staff to report immediately and according to agency
policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual
harassment that occurred in an agency lockup; retaliation against detainees or staff who reported
such an incident; and any staff neglect or violation of responsibilities that may have contributed
to an incident or retaliation.
(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any
information related to a sexual abuse report to anyone other than to the extent necessary, as
specified in agency policy, to make treatment and investigation decisions.
(c) If the alleged victim is under the age of 18 or considered a vulnerable adult under a
State or local vulnerable persons statute, the agency shall report the allegation to the designated
State or local services agency under applicable mandatory reporting laws.
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(d) The agency shall report all allegations of sexual abuse, including third-party and
anonymous reports, to the agency’s designated investigators.
§ 115.162 Agency protection duties.
When an agency learns that a detainee is subject to a substantial risk of imminent sexual
abuse, it shall take immediate action to protect the detainee.
§ 115.163 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a detainee was sexually abused while confined at
another facility, the head of the facility that received the allegation shall notify the head of the
facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours
after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the
allegation is investigated in accordance with these standards.
§ 115.164 Staff first responder duties.
(a) Upon learning of an allegation that a detainee was sexually abused, the first law
enforcement staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect
any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of
physical evidence, request that the alleged victim not take any actions that could destroy physical
evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of
physical evidence, ensure that the alleged abuser does not take any actions that could destroy
physical evidence, including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a law enforcement staff member, the responder shall
be required to request that the alleged victim not take any actions that could destroy physical
evidence and then notify law enforcement staff.
§ 115.165 Coordinated response.
(a) The agency shall develop a written institutional plan to coordinate actions taken in
response to a lockup incident of sexual abuse, among staff first responders, medical and mental
health practitioners, investigators, and agency leadership.
(b) If a victim is transferred from the lockup to a jail, prison, or medical facility, the
agency shall, as permitted by law, inform the receiving facility of the incident and the victim’s
potential need for medical or social services, unless the victim requests otherwise.
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§ 115.166 Preservation of ability to protect detainees from contact with abusers
(a) Neither the agency nor any other governmental entity responsible for collective
bargaining on the agency’s behalf shall enter into or renew any collective bargaining agreement
or other agreement that limits the agency’s ability to remove alleged staff sexual abusers from
contact with detainees pending the outcome of an investigation or of a determination of whether
and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that
govern:
(1) The conduct of the disciplinary process, as long as such agreements are not
inconsistent with the provisions of §§ 115.172 and 115.176; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an
investigation shall be expunged from or retained in the staff member’s personnel file following a
determination that the allegation of sexual abuse is not substantiated.
§ 115.167 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all detainees and staff who report sexual
abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations
from retaliation by other detainees or staff, and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or
transfers for detainee victims or abusers, removal of alleged staff or detainee abusers from
contact with victims, and emotional support services for staff who fear retaliation for reporting
sexual abuse or sexual harassment or for cooperating with investigations.
(c) The agency shall monitor the conduct and treatment of detainees or staff who have
reported sexual abuse and of detainees who were reported to have suffered sexual abuse, and
shall act promptly to remedy any such retaliation.
(d) If any other individual who cooperates with an investigation expresses a fear of
retaliation, the agency shall take appropriate measures to protect that individual against
retaliation.
(e) An agency’s obligation to monitor shall terminate if the agency determines that the
allegation is unfounded.
§ 115.168 Reserved.
Investigations
§ 115.171 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into allegations of sexual abuse and
sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations,
including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received
special training in sexual abuse investigations pursuant to § 115.134.
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(c) Investigators shall gather and preserve direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic monitoring data; shall
interview alleged victims, suspected perpetrators, and witnesses; and shall review prior
complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency
shall conduct compelled interviews only after consulting with prosecutors as to whether
compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an
individual basis and shall not be determined by the person’s status as detainee or staff. No
agency shall require a detainee who alleges sexual abuse to submit to a polygraph examination or
other truth-telling device as a condition for proceeding with the investigation of such an
allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed
to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and
testimonial evidence, the reasoning behind credibility assessments, and investigative facts and
findings.
(g) Criminal investigations shall be documented in a written report that contains a
thorough description of physical, testimonial, and documentary evidence and attaches copies of
all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for
prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this
section for as long as the alleged abuser is incarcerated or employed by the agency, plus five
years.
(j) The departure of the alleged abuser or victim from the employment or control of the
lockup or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such
investigations shall do so pursuant to the above requirements.
(l) When outside agencies investigate sexual abuse, the agency shall cooperate with
outside investigators and shall endeavor to remain informed about the progress of the
investigation.
§ 115.172 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse or sexual harassment are substantiated.
§ 115.173 Reserved.
Discipline
§ 115.176 Disciplinary sanctions for staff.

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(a) Staff shall be subject to disciplinary sanctions up to and including termination for
violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have
engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or
sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the
nature and circumstances of the acts committed, the staff member’s disciplinary history, and the
sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies,
or resignations by staff who would have been terminated if not for their resignation, shall be
reported to law enforcement agencies, unless the activity was clearly not criminal, and to any
relevant licensing bodies.
§ 115.177 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from
contact with detainees and shall be reported to law enforcement agencies, unless the activity was
clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to
prohibit further contact with detainees, in the case of any other violation of agency sexual abuse
or sexual harassment policies by a contractor or volunteer.
§ 115.178 Referrals for prosecution for detainee-on-detainee sexual abuse.
(a) When there is probable cause to believe that a detainee sexually abused another
detainee in a lockup, the agency shall refer the matter to the appropriate prosecuting authority.
(b) To the extent the agency itself is not responsible for investigating allegations of
sexual abuse, the agency shall inform the investigating entity of this policy.
(c) Any State entity or Department of Justice component that is responsible for
investigating allegations of sexual abuse in lockups shall be subject to this requirement.
Medical and Mental Care
§ 115.181 Reserved.
§ 115.182 Access to emergency medical services.
(a) Detainee victims of sexual abuse in lockups shall receive timely, unimpeded access to
emergency medical treatment.
(b) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
§ 115.183 Reserved.
Data Collection and Review
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§ 115.186 Sexual abuse incident reviews.
(a) The lockup 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
supervisors and investigators.
(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 lockup;
(3) Examine the area in the lockup 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)-(d)(5) of this section, and any recommendations for
improvement and submit such report to the lockup head and agency PREA coordinator.
(e) The lockup shall implement the recommendations for improvement, or shall
document its reasons for not doing so.
§ 115.187 Data collection.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at
lockups under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to
answer all questions from the most recent version of the Local Jail Jurisdictions Survey of
Sexual Violence conducted by the Department of Justice, or any subsequent form developed by
the Department of Justice and designated for lockups.
(d) The agency shall maintain, review, and collect data as needed from all available
incident-based documents, including reports, investigation files, and sexual abuse incident
reviews.
(e) The agency also shall obtain incident-based and aggregated data from any private
agency with which it contracts for the confinement of its detainees.
(f) Upon request, the agency shall provide all such data from the previous calendar year
to the Department of Justice no later than June 30.
§ 115.188 Data review for corrective action.
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(a) The agency shall review data collected and aggregated pursuant to § 115.187 in order
to assess and improve the effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each lockup, as
well as the agency as a whole.
(b) Such report shall include a comparison of the current year’s data and corrective
actions with those from prior years and shall provide an assessment of the agency’s progress in
addressing sexual abuse.
(c) The agency’s report shall be approved by the agency head and made readily available
to the public through its website or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would
present a clear and specific threat to the safety and security of a lockup, but must indicate the
nature of the material redacted.
§ 115.189 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to § 115.187 are securely
retained.
(b) The agency shall make all aggregated sexual abuse data, from lockups under its direct
control and any private agencies with which it contracts, readily available to the public at least
annually through its website or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall
remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.187 for at
least 10 years after the date of the initial collection unless Federal, State, or local law requires
otherwise.
Audits
§ 115.193 Audits of standards.
The agency shall conduct audits pursuant to §§ 115.401-405. Audits need not be
conducted of individual lockups that are not utilized to house detainees overnight.
Subpart C–Standards for Community Confinement Facilities
Prevention Planning
§ 115.211 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.
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(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 community confinement facilities.
§ 115.212 Contracting with other entities for the confinement of residents.
(a) A public agency that contracts for the confinement of its residents with private
agencies or other entities, including other government agencies, shall include in any new contract
or contract renewal the entity’s obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to
ensure that the contractor is complying with the PREA standards.
(c) Only in emergency circumstances in which all reasonable attempts to find a private
agency or other entity in compliance with the PREA standards have failed, may the agency enter
into a contract with an entity that fails to comply with these standards. In such a case, the public
agency shall document its unsuccessful attempts to find an entity in compliance with the
standards.
§ 115.213 Supervision and monitoring.
(a) For each facility, the agency shall develop and document a staffing plan that provides
for adequate levels of staffing, and, where applicable, video monitoring, to protect residents
against sexual abuse. In calculating adequate staffing levels and determining the need for video
monitoring, agencies shall take into consideration:
(1) The physical layout of each facility;
(2) The composition of the resident population;
(3) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(4) Any other relevant factors.
(b) In circumstances where the staffing plan is not complied with, the facility shall
document and justify all deviations from the plan.
(c) Whenever necessary, but no less frequently than once each year, the facility shall
assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The facility’s deployment of video monitoring systems and other monitoring
technologies; and
(4) The resources the facility has available to commit to ensure adequate staffing levels.
§ 115.214 Reserved.
§ 115.215 Limits to cross-gender viewing and searches.
(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.
(b) As of [INSERT DATE 3 YEARS PLUS 60 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER], or [INSERT DATE 5 YEARS PLUS 60
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DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]for a facility
whose rated capacity does not exceed 50 residents, the facility shall not permit cross-gender patdown searches of female residents, absent exigent circumstances. Facilities shall not restrict
female residents’ access to regularly available programming or other outside 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 pat-down searches of female residents.
(d) The facility shall implement policies and procedures that enable residents to shower,
perform bodily functions, and change clothing without nonmedical staff of the opposite gender
viewing their breasts, 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 area where residents are likely
to be showering, performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a transgender or intersex resident
for the sole purpose of determining the resident’s genital status. If the resident’s genital status is
unknown, it may be determined during conversations with the resident, 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.
(f) The agency shall train security staff in how to conduct cross-gender pat-down
searches, and searches of transgender and intersex residents, in a professional and respectful
manner, and in the least intrusive manner possible, consistent with security needs.
§ 115.216 Residents with disabilities and residents who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that residents with disabilities
(including, for example, residents who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal
opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect,
and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with residents who are deaf or hard of hearing, providing access
to interpreters who can interpret effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure
that written materials are provided in formats or through methods that ensure effective
communication with residents with disabilities, including residents who have intellectual
disabilities, limited reading skills, or who are blind or have low vision. An agency is not
required to take actions that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity, or in undue financial and administrative burdens, as
those terms are used in regulations promulgated under title II of the Americans With Disabilities
Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of
the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment to
residents who are limited English proficient, including steps to provide interpreters who can
interpret effectively, accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary.
(c) The agency shall not rely on resident interpreters, resident readers, or other types of
resident assistants except in limited circumstances where an extended delay in obtaining an
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effective interpreter could compromise the resident’s safety, the performance of first-response
duties under § 115.264, or the investigation of the resident’s allegations.
§ 115.217 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have contact with residents,
and shall not enlist the services of any contractor who may have contact with residents, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement
facility, juvenile facility, or other institution (as defined in 42 U.S.C. § 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the
community facilitated by force, overt or implied threats of force, or coercion, or if the victim did
not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity
described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether
to hire or promote anyone, or to enlist the services of any contractor, who may have contact with
residents.
(c) Before hiring new employees who may have contact with residents, the agency shall:
(1) Perform a criminal background records check; and
(2) Consistent with Federal, State, and local law, make its best efforts to contact all prior
institutional employers for information on substantiated allegations of sexual abuse or any
resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check before enlisting
the services of any contractor who may have contact with residents.
(e) The agency shall either conduct criminal background records checks at least every
five years of current employees and contractors who may have contact with residents or have in
place a system for otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may have contact with
residents directly about previous misconduct described in paragraph (a) of this section in written
applications or interviews for hiring or promotions and in any interviews or written selfevaluations conducted as part of reviews of current employees. The agency shall also impose
upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false
information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated
allegations of sexual abuse or sexual harassment involving a former employee upon receiving a
request from an institutional employer for whom such employee has applied to work.
§ 115.218 Upgrades to facilities and technologies.
(a) When designing or acquiring any new facility and in planning any substantial
expansion or modification of existing facilities, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency’s ability to protect residents from sexual
abuse.

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(b) When installing or updating a video monitoring system, electronic surveillance
system, or other monitoring technology, the agency shall consider how such technology may
enhance the agency’s ability to protect residents from sexual abuse.
Responsive Planning
§ 115.221 Evidence protocol and forensic medical examinations.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse,
the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining
usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth where applicable, and, as
appropriate, shall be adapted from or otherwise based on the most recent edition of the U.S.
Department of Justice’s Office on Violence Against Women publication, “A National Protocol
for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly
comprehensive and authoritative protocols developed after 2011.
(c) The agency shall offer all victims of sexual abuse access to forensic medical
examinations whether on-site or at an outside facility, without financial cost, where evidentiarily
or medically appropriate. Such examinations shall be performed by Sexual Assault Forensic
Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If SAFEs or
SANEs cannot be made available, the examination can be performed by other qualified medical
practitioners. The agency shall document its efforts to provide SAFEs or SANEs.
(d) The agency shall attempt to make available to the victim a victim advocate from a
rape crisis center. If a rape crisis center is not available to provide victim advocate services, the
agency shall make available to provide these services a qualified staff member from a
community-based organization or a qualified agency staff member. Agencies shall document
efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis
center refers to an entity that provides intervention and related assistance, such as the services
specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may
utilize a rape crisis center that is part of a governmental unit as long as the center is not part of
the criminal justice system (such as a law enforcement agency) and offers a comparable level of
confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or
qualified community-based organization staff member shall accompany and support the victim
through the forensic medical examination process and investigatory interviews and shall provide
emotional support, crisis intervention, information, and referrals.
(f) To the extent the agency itself is not responsible for investigating allegations of sexual
abuse, the agency shall request that the investigating agency follow the requirements of
paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations
of sexual abuse in community confinement facilities; and
(2) Any Department of Justice component that is responsible for investigating allegations
of sexual abuse in community confinement facilities.
(h) For the purposes of this standard, a qualified agency staff member or a qualified
community-based staff member shall be an individual who has been screened for appropriateness
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to serve in this role and has received education concerning sexual assault and forensic
examination issues in general.
§ 115.222 Policies to ensure referrals of allegations for investigations.
(a) The agency shall ensure that an administrative or criminal investigation is completed
for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or
sexual harassment are referred for investigation to an agency with the legal authority to conduct
criminal investigations, unless the allegation does not involve potentially criminal behavior. The
agency shall publish such policy on its website or, if it does not have one, make the policy
available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such
publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations
of sexual abuse or sexual harassment in community confinement facilities shall have in place a
policy governing the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in community confinement facilities
shall have in place a policy governing the conduct of such investigations.
Training and Education
§ 115.231 Employee training.
(a) The agency shall train all employees who may have contact with residents on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment
prevention, detection, reporting, and response policies and procedures;
(3) Residents’ right to be free from sexual abuse and sexual harassment;
(4) The right of residents and employees to be free from retaliation for reporting sexual
abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in confinement;
(6) The common reactions of sexual abuse and sexual harassment victims;
(7) How to detect and respond to signs of threatened and actual sexual abuse;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with residents, including lesbian,
gay, bisexual, transgender, intersex, or gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to
outside authorities.
(b) Such training shall be tailored to the gender of the residents at the employee’s facility.
The employee shall receive additional training if the employee is reassigned from a facility that
houses only male residents to a facility that houses only female residents, or vice versa.
(c) All current employees who have not received such training shall be trained within one
year of the effective date of the PREA standards, and the agency shall provide each employee
with refresher training every two years to ensure that all employees know the agency’s current
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sexual abuse and sexual harassment policies and procedures. In years in which an employee
does not receive refresher training, the agency shall provide refresher information on current
sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification,
that employees understand the training they have received.
§ 115.232 Volunteer and contractor training.
(a) The agency shall ensure that all volunteers and contractors who have contact with
residents have been trained on their responsibilities under the agency’s sexual abuse and sexual
harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based
on the services they provide and level of contact they have with residents, but all volunteers and
contractors who have contact with residents shall be notified of the agency’s zero-tolerance
policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers and contractors
understand the training they have received.
§ 115.233 Resident education.
(a) During the intake process, residents shall receive information explaining the agency’s
zero-tolerance policy regarding sexual abuse and sexual harassment, how to report incidents or
suspicions of sexual abuse or sexual harassment, their rights to be free from sexual abuse and
sexual harassment and to be free from retaliation for reporting such incidents, and regarding
agency policies and procedures for responding to such incidents.
(b) The agency shall provide refresher information whenever a resident is transferred to a
different facility.
(c) The agency shall provide resident education in formats accessible to all residents,
including those who are limited English proficient, deaf, visually impaired, or otherwise disabled
as well as residents who have limited reading skills.
(d) The agency shall maintain documentation of resident participation in these education
sessions.
(e) In addition to providing such education, the agency shall ensure that key information
is continuously and readily available or visible to residents through posters, resident handbooks,
or other written formats.
§ 115.234 Specialized training: Investigations.
(a) In addition to the general training provided to all employees pursuant to § 115.231,
the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations,
its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing sexual abuse victims,
proper use of Miranda and Garrity warnings, sexual abuse evidence collection in confinement
settings, and the criteria and evidence required to substantiate a case for administrative action or
prosecution referral.
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(c) The agency shall maintain documentation that agency investigators have completed
the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in
confinement settings shall provide such training to its agents and investigators who conduct such
investigations.
§ 115.235 Specialized training: Medical and mental health care.
(a) The agency shall ensure that all full- and part-time medical and mental health care
practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to victims of sexual abuse and sexual
harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual
harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical
staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners
have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated
for employees under § 115.231 or for contractors and volunteers under § 115.232, depending
upon the practitioner’s status at the agency.
Screening for Risk of Sexual Victimization and Abusiveness
§ 115.241 Screening for risk of victimization and abusiveness.
(a) All residents shall be assessed during an intake screening and upon transfer to another
facility for their risk of being sexually abused by other residents or sexually abusive toward other
residents.
(b) Intake screening shall ordinarily take place within 72 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
residents for risk of sexual victimization:
(1) Whether the resident has a mental, physical, or developmental disability;
(2) The age of the resident;
(3) The physical build of the resident;
(4) Whether the resident has previously been incarcerated;
(5) Whether the resident’s criminal history is exclusively nonviolent;
(6) Whether the resident has prior convictions for sex offenses against an adult or child;
(7) Whether the resident is or is perceived to be gay, lesbian, bisexual, transgender,
intersex, or gender nonconforming;
(8) Whether the resident has previously experienced sexual victimization; and
(9) The resident’s own perception of vulnerability.
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(e) The intake screening shall consider prior acts of sexual abuse, prior convictions for
violent offenses, and history of prior institutional violence or sexual abuse, as known to the
agency, in assessing residents for risk of being sexually abusive.
(f) Within a set time period, not to exceed 30 days from the resident’s arrival at the
facility, the facility will reassess the resident’s risk of victimization or abusiveness based upon
any additional, relevant information received by the facility since the intake screening.
(g) A resident’s risk level shall be reassessed when warranted due to a referral, request,
incident of sexual abuse, or receipt of additional information that bears on the resident’s risk of
sexual victimization or abusiveness.
(h) Residents 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.
(i) 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.
§ 115.242 Use of screening information.
(a) The agency shall use information from the risk screening required by § 115.241 to
inform housing, bed, work, education, and program assignments with the goal of keeping
separate those residents at high risk of being sexually victimized from those at high risk of being
sexually abusive.
(b) The agency shall make individualized determinations about how to ensure the safety
of each resident.
(c) 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.
(d) A transgender or intersex resident’s own views with respect to his or her own safety
shall be given serious consideration.
(e) Transgender and intersex residents shall be given the opportunity to shower separately
from other residents.
(f) The agency shall not place lesbian, gay, bisexual, transgender, or intersex residents 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 residents.
§ 115.243 Reserved.
Reporting
§ 115.251 Resident reporting.
(a) The agency shall provide multiple internal ways for residents to privately report
sexual abuse and sexual harassment, retaliation by other residents or staff for reporting sexual
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abuse and sexual harassment, and staff neglect or violation of responsibilities that may have
contributed to such incidents.
(b) The agency shall also inform residents of at least one way to report abuse or
harassment to a public or private entity or office that is not part of the agency and that is able to
receive and immediately forward resident reports of sexual abuse and sexual harassment to
agency officials, allowing the resident to remain anonymous upon request.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third
parties and shall promptly document any verbal reports.
(d) The agency shall provide a method for staff to privately report sexual abuse and
sexual harassment of residents.
§ 115.252 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not have administrative
procedures to address resident grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident may submit a
grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any portion of a grievance
that does not allege an incident of sexual abuse.
(3) The agency shall not require a resident to use any informal grievance process, or to
otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency’s ability to defend against a lawsuit
filed by a resident on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) A resident who alleges sexual abuse may submit a grievance without submitting it to
a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a
grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by residents
in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal
time period for response is insufficient to make an appropriate decision. The agency shall notify
the resident in writing of any such extension and provide a date by which a decision will be
made.
(4) At any level of the administrative process, including the final level, if the resident
does not receive a response within the time allotted for reply, including any properly noticed
extension, the resident may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow residents, staff members, family members,
attorneys, and outside advocates, shall be permitted to assist residents in filing requests for
administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file
such requests on behalf of residents.
(2) If a third party files such a request on behalf of a resident, the facility may require as a
condition of processing the request that the alleged victim agree to have the request filed on his
or her behalf, and may also require the alleged victim to personally pursue any subsequent steps
in the administrative remedy process.
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(3) If the resident declines to have the request processed on his or her behalf, the agency
shall document the resident’s decision.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance
alleging that a resident is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is subject to a substantial
risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any
portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at
which immediate corrective action may be taken, shall provide an initial response within 48
hours, and shall issue a final agency decision within 5 calendar days. The initial response and
final agency decision shall document the agency’s determination whether the resident is in
substantial risk of imminent sexual abuse and the action taken in response to the emergency
grievance.
(g) The agency may discipline a resident for filing a grievance related to alleged sexual
abuse only where the agency demonstrates that the resident filed the grievance in bad faith.
§ 115.253 Resident access to outside confidential support services.
(a) The facility shall provide residents with access to outside victim advocates for
emotional support services related to sexual abuse by giving residents mailing addresses and
telephone numbers, including toll-free hotline numbers where available, of local, State, or
national victim advocacy or rape crisis organizations, and by enabling reasonable communication
between residents and these organizations, in as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them access, of the extent to which
such communications will be monitored and the extent to which reports of abuse will be
forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or
other agreements with community service providers that are able to provide residents with
confidential emotional support services related to sexual abuse. The agency shall maintain
copies of agreements or documentation showing attempts to enter into such agreements.
§ 115.254 Third-party reporting.
The agency shall establish a method to receive third-party reports of sexual abuse and
sexual harassment and shall distribute publicly information on how to report sexual abuse and
sexual harassment on behalf of a resident.
Official Response Following a Resident Report
§ 115.261 Staff and agency reporting duties.
(a) The agency shall require all staff to report immediately and according to agency
policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual
harassment that occurred in a facility, whether or not it is part of the agency; retaliation against
residents or staff who reported such an incident; and any staff neglect or violation of
responsibilities that may have contributed to an incident or retaliation.
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(b) Apart from reporting to designated supervisors or officials, staff shall not reveal any
information related to a sexual abuse report to anyone other than to the extent necessary, as
specified in agency policy, to make treatment, investigation, and other security and management
decisions.
(c) Unless otherwise precluded by Federal, State, or local law, medical and mental health
practitioners shall be required to report sexual abuse pursuant to paragraph (a) of this section and
to inform residents of the practitioner’s duty to report, and the limitations of confidentiality, at
the initiation of services.
(d) If the alleged victim is under the age of 18 or considered a vulnerable adult under a
State or local vulnerable persons statute, the agency shall report the allegation to the designated
State or local services agency under applicable mandatory reporting laws.
(e) The facility shall report all allegations of sexual abuse and sexual harassment,
including third-party and anonymous reports, to the facility’s designated investigators.
§ 115.262 Agency protection duties.
When an agency learns that a resident is subject to a substantial risk of imminent sexual
abuse, it shall take immediate action to protect the resident.
§ 115.263 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a resident was sexually abused while confined at
another facility, the head of the facility that received the allegation shall notify the head of the
facility or appropriate office of the agency where the alleged abuse occurred.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours
after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the
allegation is investigated in accordance with these standards.
§ 115.264 Staff first responder duties.
(a) Upon learning of an allegation that a resident was sexually abused, the first security
staff member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect
any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of
physical evidence, request that the alleged victim not take any actions that could destroy physical
evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of
physical evidence, ensure that the alleged abuser does not take any actions that could destroy
physical evidence, including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
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(b) If the first staff responder is not a security staff member, the responder shall be
required to request that the alleged victim not take any actions that could destroy physical
evidence and then notify security staff.
§ 115.265 Coordinated response.
The facility shall develop a written institutional plan to coordinate actions taken in
response to an incident of sexual abuse, among staff first responders, medical and mental health
practitioners, investigators, and facility leadership.
§ 115.266 Preservation of ability to protect residents from contact with abusers
(a) Neither the agency nor any other governmental entity responsible for collective
bargaining on the agency’s behalf shall enter into or renew any collective bargaining agreement
or other agreement that limits the agency’s ability to remove alleged staff sexual abusers from
contact with residents pending the outcome of an investigation or of a determination of whether
and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that
govern:
(1) The conduct of the disciplinary process, as long as such agreements are not
inconsistent with the provisions of §§ 115.272 and 115.276; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an
investigation shall be expunged from or retained in the staff member’s personnel file following a
determination that the allegation of sexual abuse is not substantiated.
§ 115.267 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all residents and staff who report sexual
abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations
from retaliation by other residents or staff and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or
transfers for resident victims or abusers, removal of alleged staff or resident abusers from contact
with victims, and emotional support services for residents or staff who fear retaliation for
reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the
conduct and treatment of residents or staff who reported the sexual abuse and of residents who
were reported to have suffered sexual abuse to see if there are changes that may suggest possible
retaliation by residents or staff, and shall act promptly to remedy any such retaliation. Items the
agency should monitor include any resident disciplinary reports, housing, or program changes, or
negative performance reviews or reassignments of staff. The agency shall continue such
monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(d) In the case of residents, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of
retaliation, the agency shall take appropriate measures to protect that individual against
retaliation.
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(f) An agency’s obligation to monitor shall terminate if the agency determines that the
allegation is unfounded.
§ 115.268 Reserved.
Investigations
§ 115.271 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into allegations of sexual abuse and
sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations,
including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received
special training in sexual abuse investigations pursuant to § 115.234.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic monitoring data; shall
interview alleged victims, suspected perpetrators, and witnesses; and shall review prior
complaints and reports of sexual abuse involving the suspected perpetrator.
(d) When the quality of evidence appears to support criminal prosecution, the agency
shall conduct compelled interviews only after consulting with prosecutors as to whether
compelled interviews may be an obstacle for subsequent criminal prosecution.
(e) The credibility of an alleged victim, suspect, or witness shall be assessed on an
individual basis and shall not be determined by the person’s status as resident or staff. No
agency shall require a resident who alleges sexual abuse to submit to a polygraph examination or
other truth-telling device as a condition for proceeding with the investigation of such an
allegation.
(f) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed
to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and
testimonial evidence, the reasoning behind credibility assessments, and investigative facts and
findings.
(g) Criminal investigations shall be documented in a written report that contains a
thorough description of physical, testimonial, and documentary evidence and attaches copies of
all documentary evidence where feasible.
(h) Substantiated allegations of conduct that appears to be criminal shall be referred for
prosecution.
(i) The agency shall retain all written reports referenced in paragraphs (f) and (g) of this
section for as long as the alleged abuser is incarcerated or employed by the agency, plus five
years.
(j) The departure of the alleged abuser or victim from the employment or control of the
facility or agency shall not provide a basis for terminating an investigation.
(k) Any State entity or Department of Justice component that conducts such
investigations shall do so pursuant to the above requirements.

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(l) When outside agencies investigate sexual abuse, the facility shall cooperate with
outside investigators and shall endeavor to remain informed about the progress of the
investigation.
§ 115.272 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse or sexual harassment are substantiated.
§ 115.273 Reporting to residents.
(a) Following an investigation into a resident’s allegation of sexual abuse suffered in an
agency facility, the agency shall inform the resident as to whether the allegation has been
determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant
information from the investigative agency in order to inform the resident.
(c) Following a resident’s allegation that a staff member has committed sexual abuse
against the resident, the agency shall subsequently inform the resident (unless the agency has
determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident’s unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to
sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to
sexual abuse within the facility.
(d) Following a resident’s allegation that he or she has been sexually abused by another
resident, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to
sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to
sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency’s obligation to report under this standard shall terminate if the resident is
released from the agency’s custody.
Discipline
§ 115.276 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for
violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have
engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or
sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the
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nature and circumstances of the acts committed, the staff member’s disciplinary history, and the
sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies,
or resignations by staff who would have been terminated if not for their resignation, shall be
reported to law enforcement agencies, unless the activity was clearly not criminal, and to any
relevant licensing bodies.
§ 115.277 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from
contact with residents and shall be reported to law enforcement agencies, unless the activity was
clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to
prohibit further contact with residents, in the case of any other violation of agency sexual abuse
or sexual harassment policies by a contractor or volunteer.
§ 115.278 Disciplinary sanctions for residents.
(a) Residents shall be subject to disciplinary sanctions pursuant to a formal disciplinary
process following an administrative finding that the resident engaged in resident-on-resident
sexual abuse or following a criminal finding of guilt for resident-on-resident sexual abuse.
(b) Sanctions shall be commensurate with the nature and circumstances of the abuse
committed, the resident’s disciplinary history, and the sanctions imposed for comparable
offenses by other residents with similar histories.
(c) The disciplinary process shall consider whether a resident’s mental disabilities or
mental illness contributed to his or her behavior when determining what type of sanction, if any,
should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address
and correct underlying reasons or motivations for the abuse, the facility shall consider whether to
require the offending resident to participate in such interventions as a condition of access to
programming or other benefits.
(e) The agency may discipline a resident for sexual contact with staff only upon a finding
that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith
based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely
reporting an incident or lying, even if an investigation does not establish evidence sufficient to
substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between residents and
may discipline residents for such activity. An agency may not, however, deem such activity to
constitute sexual abuse if it determines that the activity is not coerced.
Medical and Mental Care
§ 115.281 Reserved.
§ 115.282 Access to emergency medical and mental health services.
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(a) Resident victims of sexual abuse shall receive timely, unimpeded access to emergency
medical treatment and crisis intervention services, the nature and scope of which are determined
by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report
of recent abuse is made, security staff first responders shall take preliminary steps to protect the
victim pursuant to § 115.262 and shall immediately notify the appropriate medical and mental
health practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be offered timely
information about and timely access to emergency contraception and sexually transmitted
infections prophylaxis, in accordance with professionally accepted standards of care, where
medically appropriate.
(d) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
§ 115.283 Ongoing medical and mental health care for sexual abuse victims and abusers.
(a) The facility shall offer medical and mental health evaluation and, as appropriate,
treatment to all residents who have been victimized by sexual abuse in any prison, jail, lockup, or
juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up
services, treatment plans, and, when necessary, referrals for continued care following their
transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services
consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while incarcerated shall be
offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of this section, such
victims shall receive timely and comprehensive information about and timely access to all lawful
pregnancy-related medical services.
(f) Resident victims of sexual abuse while incarcerated shall be offered tests for sexually
transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
(h) The facility shall attempt to conduct a mental health evaluation of all known residenton-resident abusers within 60 days of learning of such abuse history and offer treatment when
deemed appropriate by mental health practitioners.
Data Collection and Review
§ 115.286 Sexual abuse incident reviews.

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(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
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)-(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.
§ 115.287 Data collection.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at
facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to
answer all questions from the most recent version of the Survey of Sexual Violence conducted
by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available
incident-based documents including reports, investigation files, and sexual abuse incident
reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private
facility with which it contracts for the confinement of its residents.
(f) Upon request, the agency shall provide all such data from the previous calendar year
to the Department of Justice no later than June 30.
§ 115.288 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant to § 115.287 in order
to assess and improve the effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including:
(1) Identifying problem areas;
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(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as
well as the agency as a whole.
(b) Such report shall include a comparison of the current year’s data and corrective
actions with those from prior years and shall provide an assessment of the agency’s progress in
addressing sexual abuse.
(c) The agency’s report shall be approved by the agency head and made readily available
to the public through its website or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would
present a clear and specific threat to the safety and security of a facility, but must indicate the
nature of the material redacted.
§ 115.289 Data storage, publication, and destruction.
(a) The agency shall ensure that data collected pursuant to § 115.287 are securely
retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its
direct control and private facilities with which it contracts, readily available to the public at least
annually through its website or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall
remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.287 for at
least 10 years after the date of the initial collection unless Federal, State, or local law requires
otherwise.
Audits
§ 115.293 Audits of standards.
The agency shall conduct audits pursuant to §§ 115.401-405.
Subpart D—Standards for Juvenile Facilities
Prevention Planning
§ 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.
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§ 115.312 Contracting with other entities for the confinement of residents.
(a) A public agency that contracts for the confinement of its residents with private
agencies or other entities, including other government agencies, shall include in any new contract
or contract renewal the entity’s obligation to adopt and comply with the PREA standards.
(b) Any new contract or contract renewal shall provide for agency contract monitoring to
ensure that the contractor is complying with the PREA standards.
§ 115.313 Supervision and monitoring.
(a) The agency shall ensure that each facility it operates shall develop, implement, and
document a staffing plan that provides for adequate levels of staffing, and, where applicable,
video monitoring, to protect residents against sexual abuse. In calculating adequate staffing
levels and determining the need for video monitoring, facilities shall take into consideration:
(1) Generally accepted juvenile detention and correctional/secure residential practices;
(2) Any judicial findings of inadequacy;
(3) Any findings of inadequacy from Federal investigative agencies;
(4) Any findings of inadequacy from internal or external oversight bodies;
(5) All components of the facility’s physical plant (including “blind spots” or areas where
staff or residents may be isolated);
(6) The composition of the resident population;
(7) The number and placement of supervisory staff;
(8) Institution programs occurring on a particular shift;
(9) Any applicable State or local laws, regulations, or standards;
(10) The prevalence of substantiated and unsubstantiated incidents of sexual abuse; and
(11) Any other relevant factors.
(b) The agency shall comply with the staffing plan except during limited and discrete
exigent circumstances, and shall fully document deviations from the plan during such
circumstances.
(c) Each secure juvenile facility shall maintain staff ratios of a minimum of 1:8 during
resident waking hours and 1:16 during resident sleeping hours, except during limited and discrete
exigent circumstances, which shall be fully documented. Only security staff shall be included in
these ratios. Any facility that, as of the date of publication of this final rule, is not already
obligated by law, regulation, or judicial consent decree to maintain the staffing ratios set forth in
this paragraph shall have until October 1, 2017, to achieve compliance.
(d) Whenever necessary, but no less frequently than once each year, for each facility the
agency operates, in consultation with the PREA coordinator required by § 115.311, the agency
shall assess, determine, and document whether adjustments are needed to:
(1) The staffing plan established pursuant to paragraph (a) of this section;
(2) Prevailing staffing patterns;
(3) The facility’s deployment of video monitoring systems and other monitoring
technologies; and
(4) The resources the facility has available to commit to ensure adherence to the staffing
plan.
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(e) Each secure facility shall implement a policy and practice of having intermediatelevel or higher level supervisors conduct and document unannounced rounds to identify and
deter staff sexual abuse and sexual harassment. Such policy and practice shall be implemented
for night shifts as well as day shifts. Each secure facility shall have a policy to prohibit staff
from alerting other staff members that these supervisory rounds are occurring, unless such
announcement is related to the legitimate operational functions of the facility.
§ 115.314 Reserved.
§ 115.315 Limits to cross-gender viewing and searches.
(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.
(b) The agency shall not conduct cross-gender pat-down searches except in exigent
circumstances.
(c) The facility shall document and justify all cross-gender strip searches, cross-gender
visual body cavity searches, and cross-gender pat-down searches.
(d) The facility shall implement policies and procedures that enable residents to shower,
perform bodily functions, and change clothing without nonmedical staff of the opposite gender
viewing their breasts, 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 a resident housing unit. In
facilities (such as group homes) that do not contain discrete housing units, staff of the opposite
gender shall be required to announce their presence when entering an area where residents are
likely to be showering, performing bodily functions, or changing clothing.
(e) The facility shall not search or physically examine a transgender or intersex resident
for the sole purpose of determining the resident’s genital status. If the resident’s genital status is
unknown, it may be determined during conversations with the resident, 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.
(f) The agency shall train security staff in how to conduct cross-gender pat-down
searches, and searches of transgender and intersex residents, in a professional and respectful
manner, and in the least intrusive manner possible, consistent with security needs.
§ 115.316 Residents with disabilities and residents who are limited English proficient.
(a) The agency shall take appropriate steps to ensure that residents with disabilities
(including, for example, residents who are deaf or hard of hearing, those who are blind or have
low vision, or those who have intellectual, psychiatric, or speech disabilities), have an equal
opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect,
and respond to sexual abuse and sexual harassment. Such steps shall include, when necessary to
ensure effective communication with residents who are deaf or hard of hearing, providing access
to interpreters who can interpret effectively, accurately, and impartially, both receptively and
expressively, using any necessary specialized vocabulary. In addition, the agency shall ensure
that written materials are provided in formats or through methods that ensure effective
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communication with residents with disabilities, including residents who have intellectual
disabilities, limited reading skills, or who are blind or have low vision. An agency is not
required to take actions that it can demonstrate would result in a fundamental alteration in the
nature of a service, program, or activity, or in undue financial and administrative burdens, as
those terms are used in regulations promulgated under title II of the Americans With Disabilities
Act, 28 CFR 35.164.
(b) The agency shall take reasonable steps to ensure meaningful access to all aspects of
the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment to
residents who are limited English proficient, including steps to provide interpreters who can
interpret effectively, accurately, and impartially, both receptively and expressively, using any
necessary specialized vocabulary.
(c) The agency shall not rely on resident interpreters, resident readers, or other types of
resident assistants except in limited circumstances where an extended delay in obtaining an
effective interpreter could compromise the resident’s safety, the performance of first-response
duties under § 115.364, or the investigation of the resident’s allegations.
§ 115.317 Hiring and promotion decisions.
(a) The agency shall not hire or promote anyone who may have contact with residents,
and shall not enlist the services of any contractor who may have contact with residents, who—
(1) Has engaged in sexual abuse in a prison, jail, lockup, community confinement
facility, juvenile facility, or other institution (as defined in 42 U.S.C. 1997);
(2) Has been convicted of engaging or attempting to engage in sexual activity in the
community facilitated by force, overt or implied threats of force, or coercion, or if the victim did
not consent or was unable to consent or refuse; or
(3) Has been civilly or administratively adjudicated to have engaged in the activity
described in paragraph (a)(2) of this section.
(b) The agency shall consider any incidents of sexual harassment in determining whether
to hire or promote anyone, or to enlist the services of any contractor, who may have contact with
residents.
(c) Before hiring new employees who may have contact with residents, the agency shall:
(1) Perform a criminal background records check;
(2) Consult any child abuse registry maintained by the State or locality in which the
employee would work; and
(3) Consistent with Federal, State, and local law, make its best efforts to contact all prior
institutional employers for information on substantiated allegations of sexual abuse or any
resignation during a pending investigation of an allegation of sexual abuse.
(d) The agency shall also perform a criminal background records check, and consult
applicable child abuse registries, before enlisting the services of any contractor who may have
contact with residents.
(e) The agency shall either conduct criminal background records checks at least every
five years of current employees and contractors who may have contact with residents or have in
place a system for otherwise capturing such information for current employees.
(f) The agency shall also ask all applicants and employees who may have contact with
residents directly about previous misconduct described in paragraph (a) of this section in written
applications or interviews for hiring or promotions and in any interviews or written self249

evaluations conducted as part of reviews of current employees. The agency shall also impose
upon employees a continuing affirmative duty to disclose any such misconduct.
(g) Material omissions regarding such misconduct, or the provision of materially false
information, shall be grounds for termination.
(h) Unless prohibited by law, the agency shall provide information on substantiated
allegations of sexual abuse or sexual harassment involving a former employee upon receiving a
request from an institutional employer for whom such employee has applied to work.
§ 115.318 Upgrades to facilities and technologies.
(a) When designing or acquiring any new facility and in planning any substantial
expansion or modification of existing facilities, the agency shall consider the effect of the design,
acquisition, expansion, or modification upon the agency’s ability to protect residents from sexual
abuse.
(b) When installing or updating a video monitoring system, electronic surveillance
system, or other monitoring technology, the agency shall consider how such technology may
enhance the agency’s ability to protect residents from sexual abuse.
Responsive Planning
§ 115.321 Evidence protocol and forensic medical examinations.
(a) To the extent the agency is responsible for investigating allegations of sexual abuse,
the agency shall follow a uniform evidence protocol that maximizes the potential for obtaining
usable physical evidence for administrative proceedings and criminal prosecutions.
(b) The protocol shall be developmentally appropriate for youth and, as appropriate, shall
be adapted from or otherwise based on the most recent edition of the U.S. Department of
Justice’s Office on Violence Against Women publication, “A National Protocol for Sexual
Assault Medical Forensic Examinations, Adults/Adolescents,” or similarly comprehensive and
authoritative protocols developed after 2011.
(c) The agency shall offer all residents who experience sexual abuse access to forensic
medical examinations whether on-site or at an outside facility, without financial cost, where
evidentiarily or medically appropriate. Such examinations shall be performed by Sexual Assault
Forensic Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) where possible. If
SAFEs or SANEs cannot be made available, the examination can be performed by other
qualified medical practitioners. The agency shall document its efforts to provide SAFEs or
SANEs.
(d) The agency shall attempt to make available to the victim a victim advocate from a
rape crisis center. If a rape crisis center is not available to provide victim advocate services, the
agency shall make available to provide these services a qualified staff member from a
community-based organization or a qualified agency staff member. Agencies shall document
efforts to secure services from rape crisis centers. For the purpose of this standard, a rape crisis
center refers to an entity that provides intervention and related assistance, such as the services
specified in 42 U.S.C. 14043g(b)(2)(C), to victims of sexual assault of all ages. The agency may
utilize a rape crisis center that is part of a governmental unit as long as the center is not part of
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the criminal justice system (such as a law enforcement agency) and offers a comparable level of
confidentiality as a nongovernmental entity that provides similar victim services.
(e) As requested by the victim, the victim advocate, qualified agency staff member, or
qualified community-based organization staff member shall accompany and support the victim
through the forensic medical examination process and investigatory interviews and shall provide
emotional support, crisis intervention, information, and referrals.
(f) To the extent the agency itself is not responsible for investigating allegations of sexual
abuse, the agency shall request that the investigating agency follow the requirements of
paragraphs (a) through (e) of this section.
(g) The requirements of paragraphs (a) through (f) of this section shall also apply to:
(1) Any State entity outside of the agency that is responsible for investigating allegations
of sexual abuse in juvenile facilities; and
(2) Any Department of Justice component that is responsible for investigating allegations
of sexual abuse in juvenile facilities.
(h) For the purposes of this standard, a qualified agency staff member or a qualified
community-based staff member shall be an individual who has been screened for appropriateness
to serve in this role and has received education concerning sexual assault and forensic
examination issues in general.
§ 115.322 Policies to ensure referrals of allegations for investigations.
(a) The agency shall ensure that an administrative or criminal investigation is completed
for all allegations of sexual abuse and sexual harassment.
(b) The agency shall have in place a policy to ensure that allegations of sexual abuse or
sexual harassment are referred for investigation to an agency with the legal authority to conduct
criminal investigations, unless the allegation does not involve potentially criminal behavior. The
agency shall publish such policy on its website or, if it does not have one, make the policy
available through other means. The agency shall document all such referrals.
(c) If a separate entity is responsible for conducting criminal investigations, such
publication shall describe the responsibilities of both the agency and the investigating entity.
(d) Any State entity responsible for conducting administrative or criminal investigations
of sexual abuse or sexual harassment in juvenile facilities shall have in place a policy governing
the conduct of such investigations.
(e) Any Department of Justice component responsible for conducting administrative or
criminal investigations of sexual abuse or sexual harassment in juvenile facilities shall have in
place a policy governing the conduct of such investigations.
Training and Education
§ 115.331 Employee training.
(a) The agency shall train all employees who may have contact with residents on:
(1) Its zero-tolerance policy for sexual abuse and sexual harassment;
(2) How to fulfill their responsibilities under agency sexual abuse and sexual harassment
prevention, detection, reporting, and response policies and procedures;
(3) Residents’ right to be free from sexual abuse and sexual harassment;
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(4) The right of residents and employees to be free from retaliation for reporting sexual
abuse and sexual harassment;
(5) The dynamics of sexual abuse and sexual harassment in juvenile facilities;
(6) The common reactions of juvenile victims of sexual abuse and sexual harassment;
(7) How to detect and respond to signs of threatened and actual sexual abuse and how to
distinguish between consensual sexual contact and sexual abuse between residents;
(8) How to avoid inappropriate relationships with residents;
(9) How to communicate effectively and professionally with residents, including lesbian,
gay, bisexual, transgender, intersex, or gender nonconforming residents; and
(10) How to comply with relevant laws related to mandatory reporting of sexual abuse to
outside authorities;
(11) Relevant laws regarding the applicable age of consent.
(b) Such training shall be tailored to the unique needs and attributes of residents of
juvenile facilities and to the gender of the residents at the employee’s facility. The employee
shall receive additional training if the employee is reassigned from a facility that houses only
male residents to a facility that houses only female residents, or vice versa.
(c) All current employees who have not received such training shall be trained within one
year of the effective date of the PREA standards, and the agency shall provide each employee
with refresher training every two years to ensure that all employees know the agency’s current
sexual abuse and sexual harassment policies and procedures. In years in which an employee
does not receive refresher training, the agency shall provide refresher information on current
sexual abuse and sexual harassment policies.
(d) The agency shall document, through employee signature or electronic verification,
that employees understand the training they have received.
§ 115.332 Volunteer and contractor training.
(a) The agency shall ensure that all volunteers and contractors who have contact with
residents have been trained on their responsibilities under the agency’s sexual abuse and sexual
harassment prevention, detection, and response policies and procedures.
(b) The level and type of training provided to volunteers and contractors shall be based
on the services they provide and level of contact they have with residents, but all volunteers and
contractors who have contact with residents shall be notified of the agency’s zero-tolerance
policy regarding sexual abuse and sexual harassment and informed how to report such incidents.
(c) The agency shall maintain documentation confirming that volunteers and contractors
understand the training they have received.
§ 115.333 Resident education.
(a) During the intake process, residents shall receive information explaining, in an age
appropriate fashion, the agency’s zero tolerance policy regarding sexual abuse and sexual
harassment and how to report incidents or suspicions of sexual abuse or sexual harassment.
(b) Within 10 days of intake, the agency shall provide comprehensive age-appropriate
education to residents either in person or through video regarding their rights to be free from
sexual abuse and sexual harassment and to be free from retaliation for reporting such incidents,
and regarding agency policies and procedures for responding to such incidents.
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(c) Current residents who have not received such education shall be educated within one
year of the effective date of the PREA standards, and shall receive education upon transfer to a
different facility to the extent that the policies and procedures of the resident’s new facility differ
from those of the previous facility.
(d) The agency shall provide resident education in formats accessible to all residents,
including those who are limited English proficient, deaf, visually impaired, or otherwise
disabled, as well as to residents who have limited reading skills.
(e) The agency shall maintain documentation of resident participation in these education
sessions.
(f) In addition to providing such education, the agency shall ensure that key information
is continuously and readily available or visible to residents through posters, resident handbooks,
or other written formats.
§ 115.334 Specialized training: Investigations.
(a) In addition to the general training provided to all employees pursuant to § 115.331,
the agency shall ensure that, to the extent the agency itself conducts sexual abuse investigations,
its investigators have received training in conducting such investigations in confinement settings.
(b) Specialized training shall include techniques for interviewing juvenile sexual abuse
victims, proper use of Miranda and Garrity warnings, sexual abuse evidence collection in
confinement settings, and the criteria and evidence required to substantiate a case for
administrative action or prosecution referral.
(c) The agency shall maintain documentation that agency investigators have completed
the required specialized training in conducting sexual abuse investigations.
(d) Any State entity or Department of Justice component that investigates sexual abuse in
juvenile confinement settings shall provide such training to its agents and investigators who
conduct such investigations.
§ 115.335 Specialized training: Medical and mental health care.
(a) The agency shall ensure that all full- and part-time medical and mental health care
practitioners who work regularly in its facilities have been trained in:
(1) How to detect and assess signs of sexual abuse and sexual harassment;
(2) How to preserve physical evidence of sexual abuse;
(3) How to respond effectively and professionally to juvenile victims of sexual abuse and
sexual harassment; and
(4) How and to whom to report allegations or suspicions of sexual abuse and sexual
harassment.
(b) If medical staff employed by the agency conduct forensic examinations, such medical
staff shall receive the appropriate training to conduct such examinations.
(c) The agency shall maintain documentation that medical and mental health practitioners
have received the training referenced in this standard either from the agency or elsewhere.
(d) Medical and mental health care practitioners shall also receive the training mandated
for employees under § 115.331 or for contractors and volunteers under § 115.332, depending
upon the practitioner’s status at the agency.
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Screening for Risk of Sexual Victimization and Abusiveness
§ 115.341 Obtaining information from residents.
(a) 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.
(b) Such assessments shall be conducted using an objective screening instrument.
(c) At a minimum, the agency shall attempt to ascertain information about:
(1) Prior sexual victimization or abusiveness;
(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;
(3) Current charges and offense history;
(4) Age;
(5) Level of emotional and cognitive development;
(6) Physical size and stature;
(7) Mental illness or mental disabilities;
(8) Intellectual or developmental disabilities;
(9) Physical disabilities;
(10) The resident’s own perception of vulnerability; and
(11) Any other specific information about individual residents that may indicate
heightened needs for supervision, additional safety precautions, or separation from certain other
residents.
(d) 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.
(e) 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.
§ 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 large-muscle 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.
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(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 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 (h) of this
section a review to determine whether there is a continuing need for separation from the general
population.
§ 115.343 Reserved.
Reporting
§ 115.351 Resident reporting.
(a) The agency shall provide multiple internal ways for residents to privately report
sexual abuse and sexual harassment, retaliation by other residents or staff for reporting sexual
abuse and sexual harassment, and staff neglect or violation of responsibilities that may have
contributed to such incidents.
(b) The agency shall also provide at least one way for residents to report abuse or
harassment to a public or private entity or office that is not part of the agency and that is able to
receive and immediately forward resident reports of sexual abuse and sexual harassment to
agency officials, allowing the resident to remain anonymous upon request. Residents detained
solely for civil immigration purposes shall be provided information on how to contact relevant
consular officials and relevant officials at the Department of Homeland Security.
(c) Staff shall accept reports made verbally, in writing, anonymously, and from third
parties and shall promptly document any verbal reports.
(d) The facility shall provide residents with access to tools necessary to make a written
report.
(e) The agency shall provide a method for staff to privately report sexual abuse and
sexual harassment of residents.
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§ 115.352 Exhaustion of administrative remedies.
(a) An agency shall be exempt from this standard if it does not have administrative
procedures to address resident grievances regarding sexual abuse.
(b)(1) The agency shall not impose a time limit on when a resident may submit a
grievance regarding an allegation of sexual abuse.
(2) The agency may apply otherwise-applicable time limits on any portion of a grievance
that does not allege an incident of sexual abuse.
(3) The agency shall not require a resident to use any informal grievance process, or to
otherwise attempt to resolve with staff, an alleged incident of sexual abuse.
(4) Nothing in this section shall restrict the agency’s ability to defend against a lawsuit
filed by a resident on the ground that the applicable statute of limitations has expired.
(c) The agency shall ensure that—
(1) A resident who alleges sexual abuse may submit a grievance without submitting it to
a staff member who is the subject of the complaint, and
(2) Such grievance is not referred to a staff member who is the subject of the complaint.
(d)(1) The agency shall issue a final agency decision on the merits of any portion of a
grievance alleging sexual abuse within 90 days of the initial filing of the grievance.
(2) Computation of the 90-day time period shall not include time consumed by residents
in preparing any administrative appeal.
(3) The agency may claim an extension of time to respond, of up to 70 days, if the normal
time period for response is insufficient to make an appropriate decision. The agency shall notify
the resident in writing of any such extension and provide a date by which a decision will be
made.
(4) At any level of the administrative process, including the final level, if the resident
does not receive a response within the time allotted for reply, including any properly noticed
extension, the resident may consider the absence of a response to be a denial at that level.
(e)(1) Third parties, including fellow residents, staff members, family members,
attorneys, and outside advocates, shall be permitted to assist residents in filing requests for
administrative remedies relating to allegations of sexual abuse, and shall also be permitted to file
such requests on behalf of residents.
(2) If a third party, other than a parent or legal guardian, files such a request on behalf of
a resident, the facility may require as a condition of processing the request that the alleged victim
agree to have the request filed on his or her behalf, and may also require the alleged victim to
personally pursue any subsequent steps in the administrative remedy process.
(3) If the resident declines to have the request processed on his or her behalf, the agency
shall document the resident’s decision.
(4) A parent or legal guardian of a juvenile shall be allowed to file a grievance regarding
allegations of sexual abuse, including appeals, on behalf of such juvenile. Such a grievance shall
not be conditioned upon the juvenile agreeing to have the request filed on his or her behalf.
(f)(1) The agency shall establish procedures for the filing of an emergency grievance
alleging that a resident is subject to a substantial risk of imminent sexual abuse.
(2) After receiving an emergency grievance alleging a resident is subject to a substantial
risk of imminent sexual abuse, the agency shall immediately forward the grievance (or any
portion thereof that alleges the substantial risk of imminent sexual abuse) to a level of review at
which immediate corrective action may be taken, shall provide an initial response within 48
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hours, and shall issue a final agency decision within 5 calendar days. The initial response and
final agency decision shall document the agency’s determination whether the resident is in
substantial risk of imminent sexual abuse and the action taken in response to the emergency
grievance.
(g) The agency may discipline a resident for filing a grievance related to alleged sexual
abuse only where the agency demonstrates that the resident filed the grievance in bad faith.
§ 115.353 Resident access to outside support services and legal representation.
(a) The facility shall provide residents with access to outside victim advocates for
emotional support services related to sexual abuse, by providing, posting, or otherwise making
accessible mailing addresses and telephone numbers, including toll free hotline numbers where
available, of local, State, or national victim advocacy or rape crisis organizations, and, for
persons detained solely for civil immigration purposes, immigrant services agencies. The facility
shall enable reasonable communication between residents and these organizations and agencies,
in as confidential a manner as possible.
(b) The facility shall inform residents, prior to giving them access, of the extent to which
such communications will be monitored and the extent to which reports of abuse will be
forwarded to authorities in accordance with mandatory reporting laws.
(c) The agency shall maintain or attempt to enter into memoranda of understanding or
other agreements with community service providers that are able to provide residents with
confidential emotional support services related to sexual abuse. The agency shall maintain
copies of agreements or documentation showing attempts to enter into such agreements.
(d) The facility shall also provide residents with reasonable and confidential access to
their attorneys or other legal representation and reasonable access to parents or legal guardians.
§ 115.354 Third-party reporting.
The agency shall establish a method to receive third-party reports of sexual abuse and
sexual harassment and shall distribute publicly information on how to report sexual abuse and
sexual harassment on behalf of a resident.
Official Response Following a Resident Report
§ 115.361 Staff and agency reporting duties.
(a) The agency shall require all staff to report immediately and according to agency
policy any knowledge, suspicion, or information they receive regarding an incident of sexual
abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency;
retaliation against residents or staff who reported such an incident; and any staff neglect or
violation of responsibilities that may have contributed to an incident or retaliation.
(b) The agency shall also require all staff to comply with any applicable mandatory child
abuse reporting laws.
(c) Apart from reporting to designated supervisors or officials and designated State or
local services agencies, staff shall be prohibited from revealing any information related to a
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sexual abuse report to anyone other than to the extent necessary, as specified in agency policy, to
make treatment, investigation, and other security and management decisions.
(d)(1) Medical and mental health practitioners shall be required to report sexual abuse to
designated supervisors and officials pursuant to paragraph (a) of this section, as well as to the
designated State or local services agency where required by mandatory reporting laws.
(2) Such practitioners shall be required to inform residents at the initiation of services of
their duty to report and the limitations of confidentiality.
(e)(1) Upon receiving any allegation of sexual abuse, the facility head or his or her
designee shall promptly report the allegation to the appropriate agency office and to the alleged
victim’s parents or legal guardians, unless the facility has official documentation showing the
parents or legal guardians should not be notified.
(2) If the alleged victim is under the guardianship of the child welfare system, the report
shall be made to the alleged victim’s caseworker instead of the parents or legal guardians.
(3) If a juvenile court retains jurisdiction over the alleged victim, the facility head or
designee shall also report the allegation to the juvenile’s attorney or other legal representative of
record within 14 days of receiving the allegation.
(f) The facility shall report all allegations of sexual abuse and sexual harassment,
including third-party and anonymous reports, to the facility’s designated investigators.
§ 115.362 Agency protection duties.
When an agency learns that a resident is subject to a substantial risk of imminent sexual
abuse, it shall take immediate action to protect the resident.
§ 115.363 Reporting to other confinement facilities.
(a) Upon receiving an allegation that a resident was sexually abused while confined at
another facility, the head of the facility that received the allegation shall notify the head of the
facility or appropriate office of the agency where the alleged abuse occurred and shall also notify
the appropriate investigative agency.
(b) Such notification shall be provided as soon as possible, but no later than 72 hours
after receiving the allegation.
(c) The agency shall document that it has provided such notification.
(d) The facility head or agency office that receives such notification shall ensure that the
allegation is investigated in accordance with these standards.
§ 115.364 Staff first responder duties.
(a) Upon learning of an allegation that a resident was sexually abused, the first staff
member to respond to the report shall be required to:
(1) Separate the alleged victim and abuser;
(2) Preserve and protect any crime scene until appropriate steps can be taken to collect
any evidence;
(3) If the abuse occurred within a time period that still allows for the collection of
physical evidence, request that the alleged victim not take any actions that could destroy physical
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evidence, including, as appropriate, washing, brushing teeth, changing clothes, urinating,
defecating, smoking, drinking, or eating; and
(4) If the abuse occurred within a time period that still allows for the collection of
physical evidence, ensure that the alleged abuser does not take any actions that could destroy
physical evidence, including, as appropriate, washing, brushing teeth, changing clothes,
urinating, defecating, smoking, drinking, or eating.
(b) If the first staff responder is not a security staff member, the responder shall be
required to request that the alleged victim not take any actions that could destroy physical
evidence, and then notify security staff.
§ 115.365 Coordinated response.
The facility shall develop a written institutional plan to coordinate actions taken in
response to an incident of sexual abuse among staff first responders, medical and mental health
practitioners, investigators, and facility leadership.
§ 115.366 Preservation of ability to protect residents from contact with abusers.
(a) Neither the agency nor any other governmental entity responsible for collective
bargaining on the agency’s behalf shall enter into or renew any collective bargaining agreement
or other agreement that limits the agency’s ability to remove alleged staff sexual abusers from
contact with residents pending the outcome of an investigation or of a determination of whether
and to what extent discipline is warranted.
(b) Nothing in this standard shall restrict the entering into or renewal of agreements that
govern:
(1) The conduct of the disciplinary process, as long as such agreements are not
inconsistent with the provisions of §§ 115.372 and 115.376; or
(2) Whether a no-contact assignment that is imposed pending the outcome of an
investigation shall be expunged from or retained in the staff member’s personnel file following a
determination that the allegation of sexual abuse is not substantiated.
§ 115.367 Agency protection against retaliation.
(a) The agency shall establish a policy to protect all residents and staff who report sexual
abuse or sexual harassment or cooperate with sexual abuse or sexual harassment investigations
from retaliation by other residents or staff and shall designate which staff members or
departments are charged with monitoring retaliation.
(b) The agency shall employ multiple protection measures, such as housing changes or
transfers for resident victims or abusers, removal of alleged staff or resident abusers from contact
with victims, and emotional support services for residents or staff who fear retaliation for
reporting sexual abuse or sexual harassment or for cooperating with investigations.
(c) For at least 90 days following a report of sexual abuse, the agency shall monitor the
conduct or treatment of residents or staff who reported the sexual abuse and of residents who
were reported to have suffered sexual abuse to see if there are changes that may suggest possible
retaliation by residents or staff, and shall act promptly to remedy any such retaliation. Items the
agency should monitor include any resident disciplinary reports, housing, or program changes, or
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negative performance reviews or reassignments of staff. The agency shall continue such
monitoring beyond 90 days if the initial monitoring indicates a continuing need.
(d) In the case of residents, such monitoring shall also include periodic status checks.
(e) If any other individual who cooperates with an investigation expresses a fear of
retaliation, the agency shall take appropriate measures to protect that individual against
retaliation.
(f) An agency’s obligation to monitor shall terminate if the agency determines that the
allegation is unfounded.
§ 115.368 Post-allegation protective custody.
Any use of segregated housing to protect a resident who is alleged to have suffered
sexual abuse shall be subject to the requirements of § 115.342.
Investigations
§ 115.371 Criminal and administrative agency investigations.
(a) When the agency conducts its own investigations into allegations of sexual abuse and
sexual harassment, it shall do so promptly, thoroughly, and objectively for all allegations,
including third-party and anonymous reports.
(b) Where sexual abuse is alleged, the agency shall use investigators who have received
special training in sexual abuse investigations involving juvenile victims pursuant to § 115.334.
(c) Investigators shall gather and preserve direct and circumstantial evidence, including
any available physical and DNA evidence and any available electronic monitoring data; shall
interview alleged victims, suspected perpetrators, and witnesses; and shall review prior
complaints and reports of sexual abuse involving the suspected perpetrator.
(d) The agency shall not terminate an investigation solely because the source of the
allegation recants the allegation.
(e) When the quality of evidence appears to support criminal prosecution, the agency
shall conduct compelled interviews only after consulting with prosecutors as to whether
compelled interviews may be an obstacle for subsequent criminal prosecution.
(f) The credibility of an alleged victim, suspect, or witness shall be assessed on an
individual basis and shall not be determined by the person’s status as resident or staff. No
agency shall require a resident who alleges sexual abuse to submit to a polygraph examination or
other truth-telling device as a condition for proceeding with the investigation of such an
allegation.
(g) Administrative investigations:
(1) Shall include an effort to determine whether staff actions or failures to act contributed
to the abuse; and
(2) Shall be documented in written reports that include a description of the physical and
testimonial evidence, the reasoning behind credibility assessments, and investigative facts and
findings.
(h) Criminal investigations shall be documented in a written report that contains a
thorough description of physical, testimonial, and documentary evidence and attaches copies of
all documentary evidence where feasible.
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(i) Substantiated allegations of conduct that appears to be criminal shall be referred for
prosecution.
(j) The agency shall retain all written reports referenced in paragraphs (g) and (h) of this
section for as long as the alleged abuser is incarcerated or employed by the agency, plus five
years, unless the abuse was committed by a juvenile resident and applicable law requires a
shorter period of retention.
(k) The departure of the alleged abuser or victim from the employment or control of the
facility or agency shall not provide a basis for terminating an investigation.
(l) Any State entity or Department of Justice component that conducts such investigations
shall do so pursuant to the above requirements.
(m) When outside agencies investigate sexual abuse, the facility shall cooperate with
outside investigators and shall endeavor to remain informed about the progress of the
investigation.
§ 115.372 Evidentiary standard for administrative investigations.
The agency shall impose no standard higher than a preponderance of the evidence in
determining whether allegations of sexual abuse or sexual harassment are substantiated.
§ 115.373 Reporting to residents.
(a) Following an investigation into a resident’s allegation of sexual abuse suffered in an
agency facility, the agency shall inform the resident as to whether the allegation has been
determined to be substantiated, unsubstantiated, or unfounded.
(b) If the agency did not conduct the investigation, it shall request the relevant
information from the investigative agency in order to inform the resident.
(c) Following a resident’s allegation that a staff member has committed sexual abuse
against the resident, the agency shall subsequently inform the resident (unless the agency has
determined that the allegation is unfounded) whenever:
(1) The staff member is no longer posted within the resident’s unit;
(2) The staff member is no longer employed at the facility;
(3) The agency learns that the staff member has been indicted on a charge related to
sexual abuse within the facility; or
(4) The agency learns that the staff member has been convicted on a charge related to
sexual abuse within the facility.
(d) Following a resident’s allegation that he or she has been sexually abused by another
resident, the agency shall subsequently inform the alleged victim whenever:
(1) The agency learns that the alleged abuser has been indicted on a charge related to
sexual abuse within the facility; or
(2) The agency learns that the alleged abuser has been convicted on a charge related to
sexual abuse within the facility.
(e) All such notifications or attempted notifications shall be documented.
(f) An agency’s obligation to report under this standard shall terminate if the resident is
released from the agency’s custody.
Discipline
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§ 115.376 Disciplinary sanctions for staff.
(a) Staff shall be subject to disciplinary sanctions up to and including termination for
violating agency sexual abuse or sexual harassment policies.
(b) Termination shall be the presumptive disciplinary sanction for staff who have
engaged in sexual abuse.
(c) Disciplinary sanctions for violations of agency policies relating to sexual abuse or
sexual harassment (other than actually engaging in sexual abuse) shall be commensurate with the
nature and circumstances of the acts committed, the staff member’s disciplinary history, and the
sanctions imposed for comparable offenses by other staff with similar histories.
(d) All terminations for violations of agency sexual abuse or sexual harassment policies,
or resignations by staff who would have been terminated if not for their resignation, shall be
reported to law enforcement agencies, unless the activity was clearly not criminal, and to any
relevant licensing bodies.
§ 115.377 Corrective action for contractors and volunteers.
(a) Any contractor or volunteer who engages in sexual abuse shall be prohibited from
contact with residents and shall be reported to law enforcement agencies, unless the activity was
clearly not criminal, and to relevant licensing bodies.
(b) The facility shall take appropriate remedial measures, and shall consider whether to
prohibit further contact with residents, in the case of any other violation of agency sexual abuse
or sexual harassment policies by a contractor or volunteer.
§ 115.378 Interventions and disciplinary sanctions for residents.
(a) A resident may be subject to disciplinary sanctions only pursuant to a formal
disciplinary process following an administrative finding that the resident engaged in resident-onresident sexual abuse or following a criminal finding of guilt for resident-on-resident sexual
abuse.
(b) Any disciplinary sanctions shall be commensurate with the nature and circumstances
of the abuse committed, the resident’s disciplinary history, and the sanctions imposed for
comparable offenses by other residents with similar histories. In the event a disciplinary
sanction results in the isolation of a resident, agencies shall not deny the resident daily largemuscle exercise or access to 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) The disciplinary process shall consider whether a resident’s mental disabilities or
mental illness contributed to his or her behavior when determining what type of sanction, if any,
should be imposed.
(d) If the facility offers therapy, counseling, or other interventions designed to address
and correct underlying reasons or motivations for the abuse, the facility shall consider whether to
offer the offending resident participation in such interventions. The agency may require
participation in such interventions as a condition of access to any rewards-based behavior
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management system or other behavior-based incentives, but not as a condition to access to
general programming or education.
(e) The agency may discipline a resident for sexual contact with staff only upon a finding
that the staff member did not consent to such contact.
(f) For the purpose of disciplinary action, a report of sexual abuse made in good faith
based upon a reasonable belief that the alleged conduct occurred shall not constitute falsely
reporting an incident or lying, even if an investigation does not establish evidence sufficient to
substantiate the allegation.
(g) An agency may, in its discretion, prohibit all sexual activity between residents and
may discipline residents for such activity. An agency may not, however, deem such activity to
constitute sexual abuse if it determines that the activity is not coerced.
Medical and Mental Care
§ 115.381 Medical and mental health screenings; history of sexual abuse.
(a) If the screening pursuant to § 115.341 indicates that a resident has experienced prior
sexual victimization, whether it occurred in an institutional setting or in the community, staff
shall ensure that the resident is offered a follow-up meeting with a medical or mental health
practitioner within 14 days of the intake screening.
(b) If the screening pursuant to § 115.341 indicates that a resident has previously
perpetrated sexual abuse, whether it occurred in an institutional setting or in the community, staff
shall ensure that the resident is offered a follow-up meeting with a mental health practitioner
within 14 days of the intake screening.
(c) Any information related to sexual victimization or abusiveness that occurred in an
institutional setting shall be strictly limited to medical and mental health practitioners and other
staff, as necessary, to inform treatment plans and security and management decisions, including
housing, bed, work, education, and program assignments, or as otherwise required by Federal,
State, or local law.
(d) Medical and mental health practitioners shall obtain informed consent from residents
before reporting information about prior sexual victimization that did not occur in an institutional
setting, unless the resident is under the age of 18.
§ 115.382 Access to emergency medical and mental health services.
(a) Resident victims of sexual abuse shall receive timely, unimpeded access to emergency
medical treatment and crisis intervention services, the nature and scope of which are determined
by medical and mental health practitioners according to their professional judgment.
(b) If no qualified medical or mental health practitioners are on duty at the time a report
of recent abuse is made, staff first responders shall take preliminary steps to protect the victim
pursuant to § 115.362 and shall immediately notify the appropriate medical and mental health
practitioners.
(c) Resident victims of sexual abuse while incarcerated shall be offered timely
information about and timely access to emergency contraception and sexually transmitted
infections prophylaxis, in accordance with professionally accepted standards of care, where
medically appropriate.
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(d) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
§ 115.383 Ongoing medical and mental health care for sexual abuse victims and abusers.
(a) The facility shall offer medical and mental health evaluation and, as appropriate,
treatment to all residents who have been victimized by sexual abuse in any prison, jail, lockup, or
juvenile facility.
(b) The evaluation and treatment of such victims shall include, as appropriate, follow-up
services, treatment plans, and, when necessary, referrals for continued care following their
transfer to, or placement in, other facilities, or their release from custody.
(c) The facility shall provide such victims with medical and mental health services
consistent with the community level of care.
(d) Resident victims of sexually abusive vaginal penetration while incarcerated shall be
offered pregnancy tests.
(e) If pregnancy results from conduct specified in paragraph (d) of this section, such
victims shall receive timely and comprehensive information about and timely access to all lawful
pregnancy-related medical services.
(f) Resident victims of sexual abuse while incarcerated shall be offered tests for sexually
transmitted infections as medically appropriate.
(g) Treatment services shall be provided to the victim without financial cost and
regardless of whether the victim names the abuser or cooperates with any investigation arising
out of the incident.
(h) The facility shall attempt to conduct a mental health evaluation of all known residenton-resident abusers within 60 days of learning of such abuse history and offer treatment when
deemed appropriate by mental health practitioners.
Data Collection and Review
§ 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
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;
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(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)-(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.
§ 115.387 Data collection.
(a) The agency shall collect accurate, uniform data for every allegation of sexual abuse at
facilities under its direct control using a standardized instrument and set of definitions.
(b) The agency shall aggregate the incident-based sexual abuse data at least annually.
(c) The incident-based data collected shall include, at a minimum, the data necessary to
answer all questions from the most recent version of the Survey of Sexual Violence conducted
by the Department of Justice.
(d) The agency shall maintain, review, and collect data as needed from all available
incident-based documents, including reports, investigation files, and sexual abuse incident
reviews.
(e) The agency also shall obtain incident-based and aggregated data from every private
facility with which it contracts for the confinement of its residents.
(f) Upon request, the agency shall provide all such data from the previous calendar year
to the Department of Justice no later than June 30.
§ 115.388 Data review for corrective action.
(a) The agency shall review data collected and aggregated pursuant to § 115.387 in order
to assess and improve the effectiveness of its sexual abuse prevention, detection, and response
policies, practices, and training, including:
(1) Identifying problem areas;
(2) Taking corrective action on an ongoing basis; and
(3) Preparing an annual report of its findings and corrective actions for each facility, as
well as the agency as a whole.
(b) Such report shall include a comparison of the current year’s data and corrective
actions with those from prior years and shall provide an assessment of the agency’s progress in
addressing sexual abuse.
(c) The agency’s report shall be approved by the agency head and made readily available
to the public through its website or, if it does not have one, through other means.
(d) The agency may redact specific material from the reports when publication would
present a clear and specific threat to the safety and security of a facility, but must indicate the
nature of the material redacted.
§ 115.389 Data storage, publication, and destruction.
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(a) The agency shall ensure that data collected pursuant to § 115.387 are securely
retained.
(b) The agency shall make all aggregated sexual abuse data, from facilities under its
direct control and private facilities with which it contracts, readily available to the public at least
annually through its website or, if it does not have one, through other means.
(c) Before making aggregated sexual abuse data publicly available, the agency shall
remove all personal identifiers.
(d) The agency shall maintain sexual abuse data collected pursuant to § 115.387 for at
least 10 years after the date of its initial collection unless Federal, State, or local law requires
otherwise.
Audits
§ 115.393 Audits of standards.
The agency shall conduct audits pursuant to §§ 115.401–405.
Subpart E—Auditing and Corrective Action
§ 115.401 Frequency and scope of audits.
(a) During the three-year period starting on [INSERT DATE ONE YEAR PLUS 60
DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 [INSERT DATE ONE YEAR PLUS 60
DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 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).

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(j) 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.
§ 115.402 Auditor qualifications.
(a) An audit shall be conducted by:
(1) A member of a correctional monitoring body that is not part of, or under the authority
of, the agency (but may be part of, or authorized by, the relevant State or local government);
(2) A member of an auditing entity such as an inspector general’s or ombudsperson’s
office that is external to the agency; or
(3) Other outside individuals with relevant experience.
(b) All auditors shall be certified by the Department of Justice. The Department of
Justice shall develop and issue procedures regarding the certification process, which shall
include training requirements.
(c) No audit may be conducted by an auditor who has received financial compensation
from the agency being audited (except for compensation received for conducting prior PREA
audits) within the three years prior to the agency’s retention of the auditor.
(d) The agency shall not employ, contract with, or otherwise financially compensate the
auditor for three years subsequent to the agency’s retention of the auditor, with the exception of
contracting for subsequent PREA audits.
§ 115.403 Audit contents and findings.
(a) Each audit shall include a certification by the auditor that no conflict of interest exists
with respect to his or her ability to conduct an audit of the agency under review.
(b) Audit reports shall state whether agency-wide policies and procedures comply with
relevant PREA standards.
(c) For each PREA standard, the auditor shall determine whether the audited facility
reaches one of the following findings: Exceeds Standard (substantially exceeds requirement of
standard); Meets Standard (substantial compliance; complies in all material ways with the
standard for the relevant review period); Does Not Meet Standard (requires corrective action).
The audit summary shall indicate, among other things, the number of provisions the facility has
achieved at each grade level.
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(d) Audit reports shall describe the methodology, sampling sizes, and basis for the
auditor’s conclusions with regard to each standard provision for each audited facility, and shall
include recommendations for any required corrective action.
(e) Auditors shall redact any personally identifiable inmate or staff information from their
reports, but shall provide such information to the agency upon request, and may provide such
information to the Department of Justice.
(f) The agency shall ensure that the auditor’s final report is published on the agency’s
website if it has one, or is otherwise made readily available to the public.
§ 115.404 Audit corrective action plan.
(a) A finding of “Does Not Meet Standard” with one or more standards shall trigger a
180-day corrective action period.
(b) The auditor and the agency shall jointly develop a corrective action plan to achieve
compliance.
(c) The auditor shall take necessary and appropriate steps to verify implementation of the
corrective action plan, such as reviewing updated policies and procedures or re-inspecting
portions of a facility.
(d) After the 180-day corrective action period ends, the auditor shall issue a final
determination as to whether the facility has achieved compliance with those standards requiring
corrective action.
(e) If the agency does not achieve compliance with each standard, it may (at its discretion
and cost) request a subsequent audit once it believes that is has achieved compliance.
§ 115.405 Audit appeals.
(a) An agency may lodge an appeal with the Department of Justice regarding any specific
audit finding that it believes to be incorrect. Such appeal must be lodged within 90 days of the
auditor’s final determination.
(b) If the Department determines that the agency has stated good cause for a reevaluation, the agency may commission a re-audit by an auditor mutually agreed upon by the
Department and the agency. The agency shall bear the costs of this re-audit.
(c) The findings of the re-audit shall be considered final.
Subpart F—State Compliance
§ 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.

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