Urban lustice Center

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123 William Sireel, 161h floor. New York. NY 10038
Tel: (646) 602-5600 • Fax: (212) 533-4598
www.urbaniuslice.org

Board of DireclOrs

Mitchell A. Loweorhal, Esq.
Chairman
Partner
Cleary GOl:tlieb Steen &. Hamilton LLP

Felipe Aransaenz
Managing Director
York Stockbrokers

Michael A. Barasch, Esq.
Partner
Barasch McGarry Salzman &: Penson

Pat Budziak
Member
i2 Foundation

Peter Cicchino, Esq.
In Memoriam (1960·2000)

Jooathao Cole, Ph. D.
J.M. Mason Professor of the University
Provost &: Dean of Faculties, Emeritus
Columbia University

Marc Falcone, Esq.
Partner
Paul, Weiss, Rifkind, Wharton &: Garrison LLP

Jeffrey D. Haroldsoo, Esq.
President
HDG Mansur Capital Group, LLC

Heleo Hershkoff, Esq.
Professor
New York University School of Law

Raquiba LaBrie, Esq.
Program Director
Open Society Institute

Stephen Loffredo, Esq.
Professor
CUNY Law School

Christopher J. Meade, Esq.
Partner
WilrrerHale

Arnold B. Peioado, 01, Esq.
Partner
Milbank, Tweed, Hadley &: McCloy LLP

David A. Siogleroo, Esq.
Executive Director
Ohio Justice and Policy Center

Chrisropher K. Tahbaz, Esq.
Partner
Debevoise &. Plimpton Ll.P

David Tobis, Ph.D.
Executive Director
Fund for So.:ial Change

Executive Direcror
Douglas Lasdon, Esq.

April 4, 2011
Robert Hinchman
Senior Counsel, Office of Legal Policy
U.S. Department of Justice
950 Pennsylvania Avenue, NW., Room 4252
Washington, DC 20530
RE:

Docket No. OAG-131; AG Order No. 3244-2011
National Standards to Prevent, Detect, and Respond to
Prison Rape

Dear Attorney General Holder:
This letter is submitted on behalf of the Peter Cicchino Youth
Project at the Urban Justice center (PCYP) to express support for
many of the Department’s proposed Prison Rape Elimination Act
(PREA) regulations, respond to the questions posed in the
February 3 Notice of Proposed Rulemaking, and to urge the
Department to take additional steps critical to ensuring the safety
of lesbian, gay, bisexual, and transgender (LGBT) youth in police
custody and juvenile and adult correctional facilities.
Over the past 15 years, the Peter Cicchino Youth Project (PCYP)
has been the only legal services project in the nation focusing on
the needs of poor and homeless lesbian, gay, bisexual,
transgender, queer and questioning (LGBTQQ) young people. We
provide direct legal services to over 400 LGBT youth between the
ages of 13 and 24, the vast majority of whom are homeless or at
risk of homelessness. Indeed, one in four LGBTQQ teens in the
United States at some point either runs away or is thrown out of
their home. Between 40 and 50% of teenagers living on the
streets self-identify as LGBTQQ. Once on the street, LGBTQQ
young people become highly vulnerable to violence, police abuse,
and arrest and incarceration for crimes of poverty, survival and
self-defense.

Once in police custody, juvenile detention, or adult facilities, LGBTQQ young people are
particularly vulnerable to sexual abuse. For instance, a 2010 Bureau of Justice Statistics report
concluded that 12% of youth incarcerated in juvenile detention centers were sexually violated
by a staff member (10.3%) or another youth within the first twelve months of their admission.1
A 2009 report issued by the National Council on Crime and Delinquency found that LGBTQQ
young people held in California juvenile facilities experience pervasive sexual assault and lack of
protection from facility staff.2
Several colleague organizations, including the Sylvia Rivera Law Project (SRLP) and National
Coalition for Lesbian Rights (NCLR) have submitted extensive and detailed comments on the
proposed regulations and questions contained in the Notice of Proposed Rulemaking. We
support our colleagues’ thoughtful comments, and want to specifically address the following
proposed regulations and questions due to their significant impact on LGBTQQ young people.

Application of the PREA standards to immigration detention facilities
The Department’s limitation of PREA’s application to criminal detention ignores the history and
pervasiveness of sexual assault in immigration detention, is inconsistent with the intent of PREA
and the administration’s own efforts at detention reform, and implicates basic human rights
obligations undertaken by the United States.
Any regulations promulgated to address the issue of sexual abuse in custodial facilities must
therefore also apply to immigration detention facilities. Failure to offer the same protections to
individuals detained for immigration violations is indefensible. Hundreds of thousands of
children and young people are held each year by immigration authorities – including many
immigrant LGBTQQ youth. Like all persons in custody, immigration detainees are highly
vulnerable to abuse. Language and cultural barriers, histories of state-sanctioned abuse in their
home countries, and a fear that reporting abuse will result in deportation all increase the
likelihood that a non-citizen will not feel safe reporting sexual abuse and that perpetrators will
not be held accountable. LGBTQQ young people are among the most vulnerable to abuse in
immigration detention, and are often exceptionally isolated. Unlike criminal defendants,
immigration detainees have no right to an attorney, and as a result may not be aware of their
right to be free from sexual abuse, nor whom to contact if they are sexually assaulted.
Immigration and Customs Enforcement (ICE) detention standards are incomplete, are not
uniformly applied across ICE facilities, and lack the force of law. Final regulations promulgated
pursuant to PREA should apply with equal force in full to all facilities that house immigration
detainees.
1

Joey L. Mogul, Andrea J. Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization of LGBT People in the
United States 99 (Boston, MA: Beacon Press 2011)
2
Barry Krisberg, Special Report: Breaking the Cycle of Abuse in Juvenile Facilities, National Council on Crime and
Delinquency (2009).

For these reasons, we urge the Department to ensure that its proposed standards cover
immigration detention by restoring the definition of “prison” relied upon in PREA and by other
agencies implementing PREA, “any confinement facility of a Federal, State, or local government,
whether administered by such government or by a private organization on behalf of such
government…”

Application of the PREA standards to all forms of police custody
As stated in comments submitted under Docket No. Docket No. OAG-131; AG Order No. 31432010, National Standards to Prevent, Detect, and Respond to Prison Rape, there is considerable
continuing concern regarding the lack of provisions specifically addressing sexual abuse which
takes place in police custody beyond the confines of facilities understood to be “lock ups” by
the Commission, thereby exacerbating the vulnerability of women and transgender, gender
nonconforming and intersex individuals held in police custody to sexual abuse.
Sexual abuse by law enforcement officers all too often takes place in locations which, while not
commonly understood to be “lock ups” or detention facilities, arguably fall within the PREA's
definition of a "lockup" in that they are “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.” A significant number of our clients tell us of
sexual harassment, sexual assault, and rape in police squad cars and vans, often driven to
isolated locations but still within the control of a government agent. Their experiences are not
unique – for instance, Amnesty International reported in its ground-breaking 2005 study,
Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual, and Transgender
People in the United States, that in 2001 two young, Latina transgender women reported that
they were approached and questioned by police officers in a patrol car, and then threatened
with arrest unless they had sex with the officers. Under the circumstances, they felt compelled
to perform oral sex on the officers. They did not report the incident to authorities because of
their undocumented immigration status and the officers’ threats of retaliation.3
Sexual abuse by law enforcement officers which takes place on the streets and in our homes
clearly constitutes sexual assault in government custody, even it does not take place in a
government controlled facility. Not only are such incidents worthy of further study, attention,
and prevention in their own right, but they can be predictive of officers’ conduct toward
detainees in police controlled detention facilities. Often incidents of sexual abuse in police lockups are preceded by sexual harassment or abuse outside police facilities.
The Department is therefore urged to consider extending the protections of the recommended
standards to all individuals in the custody and control of a law enforcement officer, regardless

3

Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and
Transgender People in the U.S. 40, AMR 51/122/2005 (2005).

of whether they are ultimately deemed to have been held in a “lock-up,” by rendering the
recommended standards for “lockups” applicable to law enforcement agencies system-wide.

Remove Exemptions for Police Lock-Ups
The proposed regulations’ specific exemption of police lockups and temporary detention
facilities in the following sections presents cause for concern:





Response Planning: Sections 115.21, 115.221, 115.321, 115.22, 115.222, 115.322,
115.23, 115.123; 115.223, and 115.323;
Training and Education: Sections 115.31, 115.231, 115.331,115.32, 115.132, 115.232,
115.332,115.33, 115.233, 115.333, 115.34,115.134, 115.234, 115.334, 115.35, 115.235,
and 115.335;
Screening for Risk of Sexual Victimization and Abusiveness: Sections 115.41, 115.241,
115.42, 115.242, and 115.43

The Department’s stated justification for such exemptions, namely that there is “little evidence
of a significant amount of sexual abuse in lockups that would warrant such expenditure,” is
both unfounded and unavailing.
As an initial matter, no official data is currently collected concerning the number of rapes and
sexual assaults which take place in lockups or are committed by law enforcement officers in the
U.S. Therefore there is no basis for the statement that there is “little evidence of a significant
amount of sexual abuse in lockups” – the fact is, we don’t know how significant the problem is
because we don’t look for, document, or measure it. Data gathered by federal and state
governments regarding the use of excessive force by law enforcement officers does not include
information on the number of allegations, complaints, or incidents of rape, sexual assault or
coerced sexual conduct by police officers in or out of police lock-ups. Similarly, data gathered
by the federal government on rape and sexual assault fails to capture information about rapes
committed by police officers and other law enforcement agents or regarding whether the rapes
took place while in police custody.
Only a little over a third of all rapes and sexual assaults are ever reported to authorities.4 One
can only imagine that this rate is far lower among individuals who are raped or sexually
assaulted by the very law enforcement agents who are charged with protecting them from
violence. As Penny Harrington, former Portland Chief of Police and founder of the National
Center for Women and Policing pointed out "Who are they going to call? It's the police who are

4

See Bureau of Justice Statistics, Criminal Victimization, 2004, US Department of Justice, Office of Justice
Programs, NCJ 210674, September 2005; Bureau of Justice Statistics, Rape and Sexual Assault: Reporting to Police
and Medical Attention, 1992-2000, US Department of Justice, Office of Justice Programs, NCJ 194530, August 2002
(74% of completed and attempted sexual assaults against women were not reported to the police)

abusing them."5 Threats of retribution and retaliation for reporting sexual abuse by law
enforcement are all too frequent, while prosecutions are all too rare.
As a result, experiences of sexual violence in police lock-ups, such as that of a young
transgender woman who told the Sylvia Rivera Law Project that a Bronx, New York court officer
coerced her into performing oral sex on him in a court lock-up, often go unreported, and no
data concerning such incidents is collected. Therefore, the response to the Department’s
Question 41: “Are there sources of data that would allow the Department to assess the
prevalence of sexual abuse lockups and community confinement facilities?” is, unfortunately,
we are unaware of any.
Yet, what research is available tends to suggest that sexual abuse by law enforcement agents is
a silent yet systemic problem. For instance:








5

Amnesty International documented numerous cases of rape and sexual assault and
abuse of lesbian, gay, bisexual and transgender people by law enforcement officers in
cities across the U.S. in its groundbreaking 2005 report Stonewalled: Police Abuse and
Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the United States;6
One survey of law enforcement officials in the St. Louis, Missouri metropolitan area
concluded that officers report sexual misconduct to be common, yet criminal justice
officials have done little to control the problem;7
Two studies of law enforcement license revocations in Missouri and Florida found that
sexual misconduct was the basis for revocations in almost 25% of cases.8
A 2002 report, Driving While Female, documented over 400 cases of sexual harassment
and abuse by law enforcment officers in the context of traffic stops across the U.S. Only
100 of these cases resulted in any kind of sanction. The authors of the report concluded
“there is good reason to believe that these cases represent only the tip of the iceberg.
Many victims do not come forward because of humiliation and fear of reprisal. And …
some police departments do not accept and investigate complaints from many victims
who do come forward.”9
The Salt Lake City Tribune quoted the Utah Peace Officer Standards and Training
Director as estimating that as many as 30% of the sexual misconduct cases his agency

Craig R. McCoy and Nancy Phillips, Extorting Sex With a Badge, Philadelphia Inquirer, August 13, 2006 A01.
Stonewalled, Police Abuse and Misconduct Against Lesbian, gay, Bisexual and Transgender People in the U.S. 40,
Amnesty International, 2005.
7
R. L. Goldman and S. Puro, Revocation of Police Officer Certification , 45 St. Louis L. J. 541, 563, n.142 (2001).
8
R. L. Goldman and S. Puro, Revocation of Police Officer Certification, 45 St. Louis L. J. 541, 563, n.142 (2001).
9
Samuel Walker and Dawn Irlbeck, Driving While Female: A National Problem in Police Misconduct, Police
Professionalism Initiative, Department of Criminal Justice, University of Nebraska at Omaha, 2002, available at
http://www.policeaccountability.org/drivingfemale.htm; Press Release, Driving While Female Report Launches
UNO Police Professionalism Program, available at: http://www.unomaha.edu/uac/releases/2002may29ppi.html
6

investigates are not criminally prosecuted.10 The investigation also revealed that where
prosecutions do take place, they are for misdemeanors.11
Accordingly, in response to Question 18, “Do the standards adequately provide support for
victims of sexual abuse in lockups upon transfer to other facilities, and if not, how should the
standards be modified?” we recommend that such exemptions be rescinded for lockup
facilities.
In response to Question 20, “Should the Department further specify training requirements for
lockups and if so, how?,” we believe training requirements concerning treatment of LGBTQQ
young people, prohibitions on unlawful searches to assign gender for purposes of arrest
processing and placement in sex segregated facilities, and safe placement practices for
LGBTQQ and gender non-conforming young people are essential for all staff, including EMS
and medical staff (in New York City, EMS staff are assigned to each of the Court Borough
Sections, and screen thousands of arrestees entering lockups every year) assigned to police
lockup facilities.
In response Question 21, “Should the final rule mandate rudimentary screening requirements
for lockups, and if so, in what form?” we emphatically urge that they should be implemented
in this context, particularly where vulnerable populations such as LGBTQQ young people are
concerned, and should be conducted by non-police staff.

Sexual Harassment
Various provisions of the draft regulations exclusively address sexual abuse, but should also
address sexual harassment. Under the definition of sexual harassment included in the
Department’s draft regulations, some behavior that most states would consider to be child
abuse is termed sexual harassment. Sexual harassment is left out of the coverage of most
provisions of the Department’s draft regulations, even though it presents obvious harms to
children. We recommend including sexual harassment in the regulations regarding: reporting
duties and training of staff, guidelines for investigations, timelines for filing grievances,
confidentiality requirements, protection against retaliation, agency data collection, and several
others in order to clarify the responsibilities of the various stakeholders and better protect the
safety of youth.

Youth in adult facilities
We applaud the Department’s general recognition that youth are different from adults
cognitively and socially, and therefore need special protections. The NPREC’s report found that
10

L. Rosetta and N. Carlisle, Sexual Misconduct by Officers: A Third Might Go Unprosecuted, Salt Lake City Tribune,
October 29, 2006.
11
L. Rosetta and N. Carlisle, Sexual Misconduct by Officers: A Third Might Go Unprosecuted, Salt Lake City Tribune,
October 29, 2006.

“[m]ore than any other group of incarcerated persons, youth incarcerated with adults are
probably at the highest risk for sexual abuse.” Adult facilities housing youth face a dangerous
dilemma, forced to choose between housing them in the general adult population where they
face substantial risk of sexual abuse, or in segregated settings that can exacerbate mental
health problems. The Department should prohibit placing youth in adult lockups, jails and
prisons to reduce the sexual abuse of youth without subjecting them to harmful segregation or
isolation.
§ 115.5 General definitions
The proposed regulations fail to define the terms transgender and intersex, although these
terms are used throughout the proposed regulations. Without proper definition, staff will not
have a clear understanding of the terms, their distinct meanings, and the implications of the
regulations on these specific populations. As we also recommend adding the term gender
nonconforming to some of the regulations, this term should also be defined.
§ 115.113 Supervision and monitoring
While the proposed supervision and monitoring regulation for lockups requires lockups to
provide heightened supervision for vulnerable detainees, it fails to provide any guidance for law
enforcement on what characteristics make someone vulnerable to abuse. Without this
guidance, LGBTI detainees and others vulnerable to abuse may not receive the necessary
protections to keep them safe. Accordingly, the regulation should specifically include known
indicators of vulnerability that law enforcement should look to when determining whether a
particular detainee requires heightened supervision. In addition, these facilities should be
required, at the very minimum, to ask all detainees about their own perception of vulnerability
to sexual abuse and of where they will be most safely housed, and provide the necessary
protection.
§ 115.14, § 115.114, § 115.214, & § 115.314 Limits to cross-gender viewing and searches
We are concerned the proposed search regulations fail to impose the minimum requirements
necessary to prevent sexual abuse. To address this failure, we urge the Department to make
the following modifications: First, the Department should prohibit non-exigent cross-gender
pat-down searches and all non-emergency cross-gender viewing of inmates and residents in
states of undress. Second, we strongly urge the Department to include specific guidance on
how facilities should apply restrictions on cross-gender searches to transgender and intersex
individuals. The determination of the gender of the staff member to search a particular
transgender or intersex inmate or resident should be decided on a case-by-case basis. As
individual transgender and intersex people may have different privacy and safety concerns,
facility staff should ask them to indicate the gender of staff they feel most safe being searched
by and such requests should be honored in non-exigent circumstances. Finally, even when
conducted by medical practitioners, touching transgender or intersex individuals’ genitals or
requiring them to undress so a practitioner can determine their genital status is unnecessary
and inherently traumatic. We strongly urge the Department to prohibit facilities from engaging

in such searches. In the very limited circumstances where this information is needed by a
facility, it can readily be determined by other means.
§ 115.31 & § 115.331 Employee training
We strongly support the requirement that employee training include “[h]ow to communicate
effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, or
intersex inmates.” If staff members are unable to communicate effectively and professionally
with LGBTI inmates and residents, these individuals may be afraid to approach staff when they
are threatened with or subjected to abuse out of fear that staff will mistreat them, blame them
for the abuse, or not believe them. As studies indicate, LGBTI youth and adults are at very high
risk of sexual abuse in facilities, underscoring the need for training focused on raising
competency in this area. Including this training requirement will help decrease the
unacceptably high levels of sexual abuse that LGBTI individuals experience.
The proposed employee training regulation for juvenile facilities fails to provide sufficient
guidance on the particular vulnerabilities and needs of young people, and does not take into
account the unique considerations of LGBTI youth or the harms associated with sexual abuse of
children. Accordingly, employees should receive training on adolescent development to better
understand the characteristics, limitations, and behaviors of the youth population, as well as
the impact of trauma on youth in order to understand how to most effectively intervene when
they are needed to detect or prevent incidents of sexual abuse. In addition, the final regulations
should also require employees in juvenile facilities to receive training on how a jurisdiction’s
age of consent laws can create a distinction between sexual abuse – which falls under the
purview of these regulations – and consensual activity between residents, which a facility
cannot and should not treat as sexual abuse.
Our groundbreaking 2001 report, Justice for All: A Report on Lesbian, Gay, Bisexual and
Transgendered Youth in the New York Juvenile Justice System, appended hereto in its entirety,
was one of the first to examine the experiences of LGBTQQ youth in custody, particularly
identified discriminatory enforcement of regulations pertaining to sexual conduct among
residents of juvenile facilities against LGBTQQ young people. Additionally, we noted that
LGBTQQ young people who had committed no sexual offense were nevertheless labeled as sex
offenders and held in isolation out of a misplaced and discriminatory belief that they posed a
danger to other residents. Identification as LGBTQQ is not a basis for such a designation.
Moreover, no LGBTQQ youth should be placed in isolation or denied access to programming on
the basis of such a faulty designation.
§ 115.34 & §115.334 Specialized training: investigations
The proposed regulation fails to require that investigators receive training on determining
whether activity between adult inmates is consensual or abusive. This training is necessary to
prevent facilities from inappropriately treating LGBTI inmates as sexual abusers for engaging in
consensual sexual contact with other inmates. In addition, investigators in juvenile facilities

need training on age of consent laws to help ensure that facilities do not further penalize and
pathologize same-sex sexual activity. Such training will give these investigators a proper
understanding of the limited circumstances under which they may treat voluntary sexual
contact between residents as abuse under these regulations and will assist them in
distinguishing between actual sexual abuse and consensual sexual activity between residents.
§ 115.35, § 115.235, & § 115.335 Specialized training: medical and mental health care
This regulation should be amended to require facilities to train medical and mental health care
providers on the same general topics facilities are required to train all employees on pursuant
to § 115.31. Specifically, it is important that medical and mental health care practitioners are
trained on how to communicate effectively and professionally with LGBTI individuals, because
they have significant contact with sexually abused inmates and residents and LGBTI inmates
and residents experience high rates of abuse.
§ 115.41 & § 115.241 Screening for risk of victimization and abusiveness
The Department has made important improvements to this proposed regulation, including
requiring facilities to use the same criteria to screen male and female inmates for risk of sexual
victimization and requiring rescreening of inmates when warranted due to a referral, request,
or incident of sexual victimization. In addition, we strongly support the prohibition on
disciplining inmates for refusing to answer screening questions or for not disclosing complete
information. However, we are concerned that allowing facilities up to 30 days to complete the
initial classification process will place many inmates at an unnecessarily high risk of abuse for an
extended period of time. We urge the Department to substantially shorten this time period.
The proposed regulation also fails to state what information, if any, agencies must gather at an
intake screening to inform their temporary housing and placement decisions until the full
classification process is completed. While jails and prisons may not have complete inmate
records and other potentially relevant materials at the time of intake, the regulations should
require facilities to attempt to gather all information related to risk of victimization and risk of
abusiveness enumerated in § 115.41(c) and (d) during the intake screening process. Finally, as
inmates who are gender nonconforming are often perceived to be LGBTI and are therefore
vulnerable to sexual abuse, this standard should include gender nonconforming appearance as
a risk factor for victimization.
§ 115.341 Obtaining Information from residents
We support the inclusion of an explicit requirement that agencies ascertain information about a
juvenile resident’s own perception of vulnerability during assessment. This information will help
agencies to better identify vulnerable youth, including LGBTI residents who fear for their safety
but are uncomfortable identifying themselves as LGBTI to staff. Unlike the standards proposed
by the National Prison Rape Elimination Commission, the proposed regulation no longer states
that only medical or mental health providers are permitted to talk with residents about
sensitive issues during the screening process. The proposed regulation allows intake and

security staff to ask these sensitive questions, but these staff may not have the appropriate
level of training to do so effectively and respectfully. We propose that the Department adopt
the Commission’s approach and require that only medical and mental health providers can
discuss these topics with residents if the facility uses medical or mental health practitioners to
conduct assessments during intake. In addition, this regulation should include gender
nonconforming appearance as one of the pieces of information agencies should attempt to
ascertain during assessment of residents.
§ 115.42 & § 115.242 Use of Screening Information
We strongly support the proposed regulation’s requirement that facilities make individualized
determinations regarding whether a transgender or intersex inmate should be placed in a male
or female facility. This provision properly recognizes that, for many transgender and intersex
individuals, housing in a facility aligned with their gender identity is the safest and most
appropriate option. However, we are deeply concerned that, contrary to the Commission’s
recommendation, the proposed regulations permit facilities to make placements based solely
on an inmate’s LGBTI identity or status. Reports of the effectiveness of separate housing for
such inmates for purposes of protection are mixed, and separate placement is just as likely to
be used to punish such inmates and target them for abuse. We strongly urge the Department to
adopt the Commission’s prohibition of this practice. Modified language permitting separate
protective housing units for gay and transgender inmates in the limited circumstance where
such a separate unit is established in connection with a consent decree or legal settlement
would sufficiently address the Department’s stated concerns regarding this provision.
In addition, due to the extremely high risk of abuse these individuals face when forced to
shower in group settings, we recommend that the final regulation require facilities to offer
transgender and intersex inmates and residents the opportunity to shower separately from
others.
§ 115.342 Placement of residents in housing, bed, program, education, and work assignments
We support the proposed regulation’s prohibition on placing LGBTI residents in particular
housing, bed, or other assignments solely on the basis of such identification or status. This
prohibition is necessary to prevent facilities from inappropriately segregating or isolating LGBTI
residents rather than providing them with full access to programming and services in the
general population. However, we recommend the Department make three important additions
to this final regulation. First, this regulation should include gender nonconforming appearance
as a factor that agencies must take into account when determining housing, bed, program,
education, and work assignments for residents. Second, while studies indicate that LGBTI
residents are at high risk of sexual abuse, the proposed regulation fails to make clear that being
LGBTI makes a resident more vulnerable to abuse and not more likely to be abusive. Without
such a statement facilities may wrongly treat LGBTI status as an indication of potential sexual
abusiveness based on bias or misconceptions. Finally, the proposed regulation does not provide
sufficient guidance to agencies on making individualized determinations for housing

transgender or intersex residents and fails to require consideration of the resident’s views of his
or her own safety. Many facilities struggle with appropriate housing options for these residents
and will solely look to the resident’s genital status. As in §115.42, we urge the Department to
include specific guidance for facilities on what to consider when assigning a transgender or
intersex resident to a facility or unit for male or female residents in order to better protect
these residents from sexual abuse.
§ 115.43 Protective custody
We support § 115.43’s inclusion of restrictions on the use of involuntary protective custody
(IPC), but believe that this section must provide clearer limitations on the use of this practice,
including mechanisms for individuals to appeal their placement in IPC, and specific
requirements that facilities document their reasons for such a placement and their attempts to
identify more appropriate placements. We are concerned that without these additional
limitations, agencies will be able to keep vulnerable inmates in involuntary segregation
indefinitely, depriving them of crucial human contact, privileges, and programming that other
inmates receive. Because LGBTI individuals are especially vulnerable to sexual abuse, this
section allows facilities to essentially punish people for being LGBTI. Automatic, unnecessarily
restrictive isolation of vulnerable inmates also creates a strong disincentive for reporting sexual
abuse. In addition, as written, § 115.43 does not provide any guidance for agencies on how to
handle requests from vulnerable individuals to be placed in voluntary segregation, nor does it
require that individuals in voluntary segregation have equal access to programs, privileges, and
human contact. We strongly urge the Department to include these important additions in the
final regulations.
§ 115.76, § 115.176, § 115.276, & § 115.376 Disciplinary sanctions for staff
While the proposed regulations create a presumption of termination for a staff member who
committed certain types of sexual abuse, we strongly urge the Department to expand this
presumption to apply to all forms of sexual abuse, including indecent exposure and voyeurism.
Retention of employees found to have committed any form of sexual abuse puts inmates and
residents at unnecessary risk of further victimization.
§ 115.77, § 115.277, & § 115.377 Disciplinary sanctions for inmates/residents
We support the proposed regulation’s statement that consensual inmate-on-inmate or
resident-on-resident sexual activity shall not be treated as sexual abuse. This clarification is
necessary to distinguish between the serious harms of sexual abuse that PREA is intended to
prevent and a facility’s interest in preventing sexual activity between inmates or residents. We
also support the inclusion of language prohibiting facilities from treating good faith allegations
of abuse that lack sufficient evidence, as false incident reports. However, we are concerned
that the proposed regulation allows for the discipline of an inmate or resident for sexual
contact with staff based only on a finding that the staff member did not consent to such
contact. We are concerned that this exception is too broad and could be exploited by abusive

staff members in a threatening or coercive manner. The final regulation should also require a
finding of force or threat of force.
In regard to juvenile facilities, we are concerned that the proposed regulation fails to require
facilities to consider voluntariness as a mitigating factor in cases where residents engage in
voluntary sexual conduct with each other but one or both of the residents could not legally
consent under state law. Without such guidance facilities may choose to overlook the voluntary
nature of this conduct and harshly discipline these residents based on disapproval of same-sex
sexual activity.
§ 115.352 Exhaustion of administrative remedies
The draft regulations impose a short grievance timeline that ignores important developmental
differences between adults and youth that may contribute to a child’s hesitancy to report
abuse. The short timeline not only prevents young victims from being protected through the
administrative process; it also unreasonably restricts their ability to bring valid legal claims. We
propose incorporating the recommendations of the NPREC, which would impose no time limit
for young victims to report abuse and would consider administrative remedies exhausted 90
days after making a report. In the alternative, we propose extending the time for youth to 180
days to file grievances, and requiring the agency to consult with the youth and medical and
mental health practitioners to determine if filing a grievance in the normal timeline would have
been impractical.
§ 115.311 PREA Coordinator
The draft regulations only require that agencies and facilities appoint a full-time PREA
coordinator if the resident population is greater than 1000. According to the Department’s
Initial Regulatory Impact Assessment, this means that only 11 state juvenile systems will fall
under this requirement. As 12% of youth in juvenile facilities reported experiencing sexual
abuse in 2009, the level of staffing commitment to coordinating PREA compliance required
under the draft regulations would fall far below what is needed to implement the PREA
standards in juvenile facilities adequately. The final regulation should require that all agencies
and facilities designate a PREA coordinator and allocate sufficient staff time to ensure the
standards are implemented properly.
Conclusion
We urge you to incorporate our recommendations into the Department’s final regulations in
order to ensure that all LGBTQQ young people receive the urgently needed protections from
sexual abuse that PREA contemplated for all inmates and residents who are vulnerable to
sexual abuse. Thank you for your consideration of our concerns.
Respectfully submitted,

Andrea J. Ritchie, Esq.
Staff Attorney, Police Misconduct and Criminalization
Peter Cicchino Youth Project
Urban Justice Center