6248 Federal Register / Vol. 76, No. 23 / Thursday, February 3, 2011 / Proposed Rules 

DEPARTMENT OF JUSTICE 

28 CFR Part 115 

[Docket No. OAG–131; AG Order No. 3244– 

2011] 

RIN 1105–AB34 

National Standards To Prevent, Detect, 

and Respond to Prison Rape 

AGENCY: Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice 

(Department) has under review national 

standards for combating sexual abuse in 

confinement settings that were prepared 

by the National Prison Rape Elimination 

Commission (Commission) pursuant to 

the Prison Rape Elimination Act of 2003 

(PREA) and recommended by the 

Commission to the Attorney General. 

On March 10, 2010, the Department 

published an Advance Notice of 

Proposed Rulemaking (ANPRM) to 

solicit public input on the 

Commission’s proposed national 

standards and to receive information 

useful to the Department in publishing 

a final rule adopting national standards 

for the detection, prevention, reduction, 

and punishment of prison rape, as 

mandated by PREA. The Department is 

now publishing this Notice of Proposed 

Rulemaking to propose such national 

standards for comment and to respond 

to the public comments received on the 

ANPRM. 

DATES: Written comments must be 

postmarked on or before April 4, 2011, 

and electronic comments must be sent 

on or before midnight Eastern time 

April 4, 2011. 

ADDRESSES: To ensure proper handling 

of comments, please reference ‘‘Docket 

No. OAG–131’’ on all written and 

electronic correspondence. Written 

comments being sent via 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 Web site. 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 via regular 

or express mail will be considered 

timely if postmarked on 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. 

SUPPLEMENTARY INFORMATION: 

I. Posting of 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 CONTACT

paragraph. 

II. Background 

The Prison Rape Elimination Act of 

2003 (PREA), 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 (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 

Commission released its recommended 

national standards in a report dated 

June 23, 2009, and subsequently 

disbanded, pursuant to the statute. The 

Commission’s report and recommended 

national standards are available at 

http://www.ncjrs.gov/pdffiles1/ 

226680.pdf. 

The Commission set forth four sets of 

recommended national standards for 

eliminating prison rape and other forms 

of sexual abuse. Each set is applicable 

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 

Commission recommended that its 

standards apply to Federal, State, and 

local correctional and detention 

facilities (excluding facilities operated 

by the Department of Defense and the 

Bureau of Indian Affairs). In addition to 

the standards themselves, the 

Commission 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 for the rationale of the 

standards 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). 


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1This total includes the cross-sectional number 

covered in BJS surveys plus the number of 

estimated victims released in the twelve months 

prior to the survey. For methodology, see Initial 

Regulatory Impact Analysis (IRIA) at 9, available at 

http://www.ojp.usdoj.gov/programs/pdfs/prea_

nprm_iria.pdf. 

2See id. at 6. 

3See id. at 8. 

4This total includes the cross-sectional number 

covered in BJS surveys plus the number of 

estimated victims released in the twelve months 

prior to the survey. It includes adjudicated/ 

committed youth only. For methodology, see IRIA 

at 9. 

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 shall 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 Commission’s 

proposed standards and to help him 

prepare a draft final rule. The Working 

Group includes 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 (BJS), 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 indepth review of the standards proposed 

by the Commission. As part of that 

process, the Working Group conducted 

a number of listening sessions in 

January and February 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 Commission. The 

Department also consulted with the 

Department of Homeland Security’s 

Office for Civil Rights and Civil 

Liberties and with U.S. Immigration and 

Customs Enforcement (ICE). 

Because 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 Commission. 

As part of that process, the Department 

commissioned an independent 

contractor to perform a cost analysis of 

the Commission’s proposed standards, 

which was received on June 18, 2010. 

The Department has also worked to 

address those recommendations put 

forth by the Commission that require 

action outside of the context of PREA to 

accomplish. For example, the 

Department is in the process of 

developing a companion to the 2004 

‘‘National Protocol for Sexual Assault 

Medical Forensic Examinations’’ that 

will be customized to the conditions of 

confinement. In addition, via a separate 

rulemaking process, the Department 

intends to propose removing the current 

ban on Victims of Crime Act funding for 

treatment and rehabilitation services for 

incarcerated victims of sexual abuse. 

III. The Department’s Prior Request for 

Comments 

On March 10, 2010 (75 FR 11077), the 

Department published an Advance 

Notice of Proposed Rulemaking 

(ANPRM) soliciting public input on the 

Commission’s proposed national 

standards. Approximately 650 

comments were received on the 

ANPRM, including comments from 

current or formerly incarcerated 

individuals, county sheriffs, State 

departments of correction, private 

citizens, professional organizations, 

social service providers, and advocacy 

organizations concerned with issues of 

prison rape, sexual violence, 

discrimination, and juvenile justice. 

The Department of Justice appreciates 

the interest and insight reflected in the 

many submissions and communications 

and has considered them carefully. 

In general, the commenters supported 

the broad goals of PREA and the overall 

intent of the Commission’s 

recommendations. Some commenters, 

particularly those whose responsibilities 

involve the care and custody of inmates 

or juvenile residents, expressed concern 

that the Commission’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 

Commission’s standards did not go far 

enough, and, therefore, would not fully 

achieve PREA’s goals. In preparing its 

proposed standards, the Department 

carefully considered each and every 

comment, keeping in mind both the goal 

of the statute and its mandate not to 

impose substantial additional costs 

compared to the costs presently 

expended by Federal, State, and local 

prison authorities. The following 

section includes additional discussion 

of comments relevant to particular 

standards. 

IV. Overview of PREA National 

Standards 

Rape and sexual abuse are 

reprehensible, destructive, and illegal in 

any setting. Such acts are particularly 

damaging in the correctional 

environment, where the power dynamic 

is heavily skewed against victims and 

recourse is often limited. Until recently, 

however, this has been widely viewed 

as an inevitable aspect of imprisonment 

within the United States. This view is 

not only incorrect but incompatible 

with American values. Based on the 

Department’s analysis of data compiled 

by BJS, approximately 200,000 adult 

prisoners and jail inmates suffered some 

form of sexual abuse while incarcerated 

during 2008. See BJS, Sexual 

Victimization in Prisons and Jails 

Reported by Inmates, 2008–09 (Aug. 

2010).1 This suggests 4.4% of the prison 

population and 3.1% of the jail 

population within the United States 

suffered sexual abuse during that year.2

In some prisons, nearly 9% of the 

population reported abuse within that 

time; in some jails the corresponding 

rate approached 8%.3

In juvenile facilities, the numbers are 

similarly troubling. At least 17,100 

adjudicated or committed youth 

(amounting to some 12% of the total 

population in juvenile detention 

facilities) reported having suffered 

sexual abuse within 12 months of 

arriving at their facility, with rates as 

high as 36% in specific facilities. See 

BJS, Sexual Victimization in Juvenile 

Facilities Reported by Youth, 2008–09 

(Jan. 2010), at 1, 4.4 These numbers 


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indicate that improvements can and 

must be made. 

Neither the Commission nor the 

Department began its work on a blank 

slate. Many correctional administrators 

have developed and implemented 

policies and practices to more 

effectively prevent and respond to 

prison rape. The Department applauds 

these efforts, and views them as an 

excellent first step. However, a national 

effort is needed to accomplish PREA’s 

goals. Protection from sexual abuse 

should not depend on where an 

individual is incarcerated: It must be 

universal. 

The Commission recommended 

standards to the Department after 

several years of investigating the 

prevalence and nature of sexual abuse 

in incarceration settings and exploring 

correctional best practices in addressing 

it. The Department has built on the 

Commission’s work and has adopted the 

overall structure of its standards as well 

as a significant majority of its specific 

recommendations. The Department’s 

proposed rule echoes the Commission’s 

recommendations in devising four sets 

of standards tailored to specific types of 

confinement facilities. Each set consists 

of the same eleven categories used by 

the Commission: Prevention planning, 

responsive planning, training and 

education, screening for risk of sexual 

victimization and abusiveness, 

reporting, official response following an 

inmate report, investigations, discipline, 

medical and mental care, data collection 

and review, and audits. 

The scope and content of the 

Department’s standards do differ 

substantially from the Commission’s 

proposals in a variety of areas. After 

careful consideration, the Department 

has made revisions to each of the 

Commission’s recommended standards. 

At all times, the Department has 

weighed the logistical and financial 

feasibility of each standard against its 

benefits. The Department has found 

invaluable the comments received on 

the ANPRM, and expects that comments 

in response to this proposed rule will 

provide further insights. 

Definitions. Sections 115.5 and 115.6 

provide definitions for key terms. The 

Department has largely relied on the 

Commission’s definitions in the 

Glossary sections that accompanied the 

Commission’s four sets of standards, but 

has made a variety of adjustments and 

has eliminated definitions for various 

terms that either do not appear in the 

Department’s proposed standards or 

whose meaning is sufficiently clear so 

as not to need defining. In addition, the 

Department has included definitions in 

some of the standards themselves. 

Below is an explanation for key 

definitions modified or added by the 

Department: 

Community confinement facility. The 

Commission recommended a set of 

standards for community corrections, 

which it defined 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.’’ The Department 

believes that to the extent this definition 

includes supervision of individuals in a 

non-residential setting, it exceeds 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 does not reference community 

corrections, but instead refers to 

‘‘community confinement facilities.’’ 

The proposed rule defines this term 

nearly identically to the definition 

provided in regulations promulgated by 

the Department to govern the Federal 

Bureau of Prisons. See 28 CFR 570.20(a). 

The term includes a range of facilities in 

which offenders or defendants reside as 

part of a term of imprisonment or as a 

condition of pre-trial release or postrelease supervision, while pursuing 

employment, education, or other 

facility-approved programs during nonresidential hours. A similar definition 

appears in Federal Sentencing 

Guideline 5F1.1 and, incorporated by 

reference, in 18 U.S.C. 3621(g)(2). 

Employee, contractor, volunteer, and 

staff. The proposed rule clarifies these 

terms to conform more closely to their 

traditional definitions—e.g., employees 

are only those persons who work 

directly for the agency or facility. The 

term ‘‘staff’’ is used interchangeably with 

‘‘employees.’’ 

Inmate, detainee, and resident. The 

proposed standards use these three 

terms to refer to persons confined in the 

four types of covered facilities. The 

proposed standards for prisons and jails 

refer to persons incarcerated or detained 

therein as ‘‘inmates.’’ For simplicity, the 

proposed standards for lockups refer to 

all persons detained therein as 

‘‘detainees,’’ including persons who 

have already been adjudicated. The 

proposed standards for juvenile 

facilities and for community 

confinement facilities refer to all 

persons housed therein as ‘‘residents.’’ 

Jail and prison. Although the 

Commission did not define these terms, 

the Department believes that definitions 

are necessary, especially because the 

Department’s proposed standards 

modify the Commission’s recommended 

standards in certain respects to 

distinguish requirements applicable to 

jails from requirements applicable to 

prisons. The definitions provided in the 

proposed rule generally track the 

prevailing definitions of jails and 

prisons, based upon the primary use of 

each facility. If a majority of a facility’s 

inmates are awaiting adjudication of 

criminal charges, serving a sentence of 

one year or less, or awaiting postadjudication transfer to a different 

facility, then the facility is categorized 

as a jail, regardless of how the facility 

may label itself. As discussed in greater 

depth below, these terms do not 

encompass facilities that are primarily 

used for the civil detention of aliens 

pending removal from the United States. 

Question 1: The Department solicits 

comments regarding the application of 

this definition to those States that 

operate ‘‘unified systems’’—i.e., States 

with direct authority over all adult 

correctional facilities, as opposed to the 

more common practice of jails being 

operated by counties, cities, or other 

municipalities. States that operate 

unified systems may be less likely to 

adhere to the traditional distinctions 

between prisons and jails, and may 

operate facilities that are essentially a 

mixture of the two. Do the respective 

definitions of jail and prison, and the 

manner in which the terms are used in 

the proposed standards, adequately 

cover facilities in States with unified 

systems? If not, how should the 

definitions or standards be modified? 

Juvenile and juvenile facility. The 

proposed rule defines ‘‘juvenile’’ as a 

person under the age of 18, unless 

defined otherwise under State law, and 

defines ‘‘juvenile facility’’ as a facility 

primarily used for the confinement of 

juveniles. Both definitions are new; the 

Commission did not define these terms. 

Lockup. With small clarifying 

modifications, the proposed rule adopts 

the Commission’s definition of lockup, 

which includes temporary holding 

facilities under the control of a law 

enforcement, court, or custodial officer. 

Sexual abuse and related terms. In its 

ANPRM, the Department queried 

whether the standards should refer to 

‘‘rape’’ or to ‘‘sexual abuse.’’ Most 

commenters suggested that the 

Department refer to ‘‘sexual abuse.’’ All 

advocacy groups that responded to this 

question recommended using ‘‘sexual 

abuse,’’ and correctional agencies were 

split on the question. Proponents of the 

term sexual abuse noted that it captures 

a broader range of sexual victimization 

than rape, and noted that PREA defines 

rape expansively, see 42 U.S.C. 

15609(9)–(12), to include a range of 

actions that more closely resembles the 


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5As noted above, the proposed standards refer to 

‘‘inmates,’’ ‘‘detainees,’’ and ‘‘residents,’’ depending 

upon the type of confinement facility. For 

simplicity, the explanation of the standards refers 

to all persons confined within any type of facility 

as ‘‘inmates’’ except where specifically discussing 

lockups, juvenile facilities, or community 

confinement facilities. 

Commission’s proposed definition of 

sexual abuse rather than the traditional 

definition of rape. 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. Proponents of the 

term rape argued that referring to sexual 

abuse more accurately captures the 

intent of the statute and the scope of 

behavior that the regulations should 

address. 

The Department’s proposed standards 

use the term sexual abuse, which the 

Department believes is a more accurate 

term to describe the behaviors that 

Congress aimed to eliminate. However, 

the proposed definition of sexual abuse 

removes sexual harassment from its 

scope. Several correctional agencies 

commented that including sexual 

harassment within the scope of sexual 

abuse would greatly expand the 

obligations of correctional agencies and 

would require responsive actions not 

commensurate to the harm caused by 

sexual harassment. The Department 

agrees, but has rejected the 

recommendation of some commenters 

that sexual harassment be removed 

entirely from the scope of the standards. 

Although PREA does not reference 

sexual harassment, it authorizes the 

Commission, 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). The Department 

believes that it is appropriate that 

certain standards reference sexual 

harassment in order to combat what 

may be a precursor to sexual abuse. 

With the exception of the omission of 

sexual harassment, the Department’s 

proposed definition of sexual abuse 

substantively resembles the 

Commission’s recommended definition. 

The format and wording, however, have 

been revised to conform more closely to 

the definitions used by BJS in its Survey 

of Sexual Violence, as several 

commenters suggested. The Department 

hopes that harmonizing these 

definitions, to the extent possible, will 

provide greater clarity to correctional 

agencies. 

The proposed definition of sexual 

abuse excludes consensual activity 

between inmates, detainees, or 

residents, but does not exclude 

consensual activity with staff. The 

Department, like the Commission, 

believes that the power imbalance in 

correctional facilities is such that it is 

impossible to know if an incarcerated 

person truly ‘‘consented’’ to sexual 

activity with staff. 

Prevention Planning: Sections 115.11, 

115.111, 115.211, 115.311, 115.12, 

115.112, 115.212, 115.312, 115.13, 

115.113, 115.213, 115.313, 115.14, 

115.114, 115.214, 115.314, 115.15, 

115.115, 115.215, 115.315, 115.16, 

115.116, 115.216, 115.316, 115.17, 

115.117, 115.217, and 115.317 (compare 

to the Commission’s PP standards). Like 

the Commission, the Department 

believes it is important to establish what 

actions facilities are expected to take to 

prevent sexual abuse. 

Sections 115.11, 115.111, 115.211, 

and 115.311 (compare to the 

Commission’s PP–1 standard), require 

that agencies establish a written zerotolerance policy toward sexual abuse 

and harassment. The proposed standard 

clarifies that, in addition to mandating 

zero tolerance, the policy must outline 

the agency’s approach to preventing, 

detecting, and responding to such 

conduct. 

This standard also mandates that 

agencies employ or designate an upperlevel, agency-wide PREA coordinator to 

oversee efforts to comply with PREA 

standards. In all agencies that operate 

facilities whose total rated capacity 

exceeds 1,000 inmates,5 this agencywide PREA coordinator must be a fulltime position. Other agencies may 

designate this role as a part-time 

position or may assign its functions to 

an existing full-time or part-time 

employee. 

Several commenters criticized that the 

Commission’s proposed requirement 

that the PREA coordinator report 

directly to the agency head. These 

commenters expressed concern about 

setting the position at an unreasonably 

high level within the agency, which 

could require it to become a political 

appointment and thus subject to 

frequent turnover. The Department’s 

proposed standard requires that the 

position be ‘‘upper-level’’ but does not 

require that the coordinator report 

directly to the agency head. In addition, 

some correctional agencies expressed 

concern that mandating a full-time 

coordinator for jails that house only 500 

inmates, as the Commission proposed, 

would impose too great a burden. The 

Department’s proposed standard instead 

mandates a full-time coordinator only 

for agencies that operate facilities whose 

total rated capacity exceeds 1,000 

inmates. In addition, agencies whose 

total capacity exceeds 1,000 inmates 

must also designate an existing full-time 

or part-time employee at each facility to 

serve as that facility’s PREA 

coordinator. 

The intent is to tailor this requirement 

to the varying needs and capacities of 

agencies and facilities: Requiring large 

agencies to dedicate an employee to 

coordinate PREA efforts full-time, while 

allowing smaller agencies, and 

individual facilities within large 

agencies, to assign such duties as part of 

an employee’s broader portfolio, thus 

ensuring a ‘‘point person’’ who is 

responsible for PREA efforts. 

Question 2: Should the Department 

modify the full-time coordinator 

requirement to allow additional 

flexibility, such as by requiring only that 

PREA be the coordinator’s primary 

responsibility, or by allowing the 

coordinator also to work on other 

related issues, such as inmate safety 

more generally? 

Sections 115.12, 115.112, 115.212, 

and 115.312 (compare to the 

Commission’s PP–2 standard), require 

that agencies that contract with private 

entities for the confinement of inmates 

include the entity’s obligation to comply 

with the PREA standards in new 

contracts or contract renewals. Several 

agency commenters expressed concern 

that the Commission’s proposed 

requirement that an agency ‘‘monitor the 

entity’s compliance with these 

standards as part of its monitoring of the 

entity’s performance’’ would impose too 

great a financial burden. The 

Department’s proposed standard 

modifies slightly the Commission’s 

proposal by requiring only that new 

contracts or renewals ‘‘shall provide for 

agency contract monitoring to ensure 

that the contractor is complying with 

PREA standards.’’ The revision is 

intended to indicate that the agency is 

not required to conduct audits of its 

contract facilities but rather must 

include PREA as part of its routine 

monitoring of compliance with 

contractual obligations. 

Question 3: Should the final rule 

provide greater guidance as to how 

agencies should conduct such 

monitoring? If so, what guidance should 

be provided? 

Sections 115.13, 115.113, 115.213, 

and 115.313 (compare to the 

Commission’s PP–3 and PP–7 

standards) govern the supervision and 

monitoring of inmates. The Department 

has combined the Commission’s 

proposed PP–3 and PP–7 standards into 

one standard, in recognition that direct 

staff supervision and video monitoring 


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are two methods of achieving one goal: 

Reducing the opportunity for abuse to 

occur unseen. The Department 

recognizes that different agencies rely 

on staffing and technology to varying 

degrees depending upon their specific 

characteristics. Accordingly, the 

Department believes that these issues 

are best considered together. 

The Department is mindful that 

staffing and video-monitoring systems 

are both expensive. Staff salaries and 

benefits are typically the largest item in 

a correctional agency’s budget, see, e.g., 

National Institute of Corrections, 

Staffing Analysis: Workbook for Jails (2d 

ed.) at 2, and economies of scale are 

difficult to obtain: Increasing staffing by 

25% is likely to increase staff costs by 

25%. Likewise, video-monitoring 

systems may be beyond the financial 

reach of some correctional agencies, 

although the costs of such systems may 

diminish in future years as technology 

advances. 

Various agency commenters criticized 

the first sentence of the Commission’s 

PP–3 standard: ‘‘Security staff provides 

the inmate supervision necessary to 

protect inmates from sexual abuse.’’ 

Commenters suggested that the 

Commission’s recommended standard 

did not provide appropriate guidance as 

to what level of supervision would be 

‘‘necessary to protect inmates from 

sexual abuse,’’ and that it did not 

indicate whether compliance would be 

measured ex ante, by reviewing staffing 

levels alone, or ex post, by determining 

that instances of sexual abuse could 

have been prevented by additional 

staffing. 

The Department recognizes the 

importance of staffing levels in 

combating sexual abuse, and believes 

that the correctional community shares 

this view. See, e.g., American 

Correctional Association Public 

Correctional Policy on Offender on 

Offender Sexual Assault (Jan. 12, 2005) 

(recommending that agencies 

‘‘[m]aintain adequate and appropriate 

levels of staff to protect inmates against 

sexual assault’’). Although proper 

supervision and monitoring cannot 

eliminate sexual abuse, it can play a key 

role in reducing opportunities for it to 

occur. In addition, inadequate staffing 

can be a contributing factor in a judicial 

determination that conditions of 

confinement violate the Constitution. 

See, e.g., Krein v. Norris, 309 F.3d 487, 

489–92 (8th Cir. 2002); Ramos v. Lamm, 

639 F.2d 559, 573–74 (10th Cir. 1980). 

In several of the Department’s 

investigations of correctional facilities 

under the Civil Rights of 

Institutionalized Persons Act, 42 U.S.C. 

1997 et seq., for engaging in a pattern or 

practice of violating inmates’ Federal 

rights, the terms of consent decrees and 

settlements have included specific 

remedial measures aimed at improving 

the adequacy of staffing. 

At the same time, however, the 

Department recognizes that determining 

adequate staffing levels is a 

complicated, facility-specific enterprise. 

The appropriate number of staff 

depends upon a variety of factors, 

including (but not necessarily limited 

to) the physical layout of a facility, the 

security level and gender of the inmates, 

whether the facility houses adults or 

juveniles, the length of time inmates 

reside in the facility, the amount of 

programming that the facility offers, and 

the facility’s population density (i.e., 

comparing the number of inmates to the 

number of beds or square feet). In 

addition, the facility’s reliance on video 

monitoring and other technology may 

reduce staffing requirements, as long as 

the facility employs sufficient staff to 

monitor the video feeds or other 

technologies such as call buttons or 

sensors. The viability of technology may 

depend upon, among other factors, the 

characteristics of the incarcerated 

population. Administrators of juvenile 

facilities, for example, are typically 

more reluctant to rely heavily on video 

monitoring given the staff-intensive 

needs of their residents. 

Due to the complex interaction of 

these factors, the Department does not 

believe that it is possible to craft a 

formula that would set appropriate 

staffing levels for all populations— 

although the Department is aware that 

some States do set such levels for 

juvenile facilities. Nor is it likely that an 

auditor would be able to determine the 

appropriate staffing level in the limited 

amount of time available to conduct an 

audit. Relying on reported incidents of 

sexual abuse to determine appropriate 

staffing levels is also an imperfect 

method given the uncertainty as to 

whether an incident will be reported. 

Facilities where inmates feel 

comfortable reporting abuse, and where 

investigations are conducted effectively, 

may be more likely than other facilities 

to experience substantiated allegations 

of sexual abuse, even if the facility is no 

less safe than its counterparts. For this 

reason, the Department has opted not to 

adopt general across-the-board 

performance-based standards, as 

proposed by some commenters. 

Accordingly, the Department is of the 

view that any standard that governs 

supervision and monitoring must 

protect inmates while providing 

sufficient clarity as to its requirements, 

recognizing that the adequacy of 

supervision and monitoring depends on 

several factors that interact differently 

for each facility, and accounting for the 

costs involved in employing additional 

staff and in purchasing and deploying 

additional technology. 

The Department believes that, at a 

minimum, such a standard must impose 

at least three requirements. First, an 

agency must make an assessment of 

adequate staffing levels, taking into 

account its use, if any, of video 

monitoring or other technology. The fact 

that multiple factors bear on the 

adequacy of staffing and monitoring is 

no barrier to requiring an agency to 

conduct such an assessment for each of 

its facilities. Second, an agency must 

devise a plan for how to best protect 

inmates from sexual abuse should 

staffing levels fall below an adequate 

level. Third, an agency must reassess at 

least annually such adequate staffing 

levels, as well as the staffing levels that 

actually prevailed during the previous 

year, and must also reassess its use of 

video monitoring systems and other 

technologies. 

The Department assumes that most 

agencies already engage in similar 

inquiries; the purpose of mandating 

such inquiries within these standards is 

to institutionalize the practice of 

assessing staffing and monitoring in the 

context of considering how staffing and 

monitoring contribute to efforts to 

combat sexual abuse. 

The Department is interested in 

receiving comments on whether and to 

what extent this standard should 

include additional or alternative 

requirements, and poses various 

questions below designed to elicit such 

comments. The Department has already 

received comments from the former 

Commissioners themselves regarding 

possible options. Following a meeting 

between the Department and several of 

the former Commissioners on August 4, 

2010, that included discussion of the 

Commission’s PP–3 and PP–7 standards, 

the former Commissioners sent the 

Department a memorandum dated 

September 28, 2010, that discussed 

possible revisions to this standard. The 

former Commissioners noted the 

possibility of replacing the first sentence 

of the PP–3 standard with the following: 

‘‘Agency heads must establish in writing 

the staffing requirements for each shift 

at each facility to keep inmates safe 

from sexual abuse and must designate 

the priority posts at each facility that 

must be filled on each shift regardless 

of staff shortages or absences.’’ In 

addition, the Commissioners noted that 

the PP–7 standard could be replaced 

with the following: ‘‘The agency uses 

video monitoring systems, if available, 

or other appropriate technology to 


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supplement its sexual abuse prevention, 

detection, and response efforts. Because 

video monitoring and other appropriate 

technology can contribute to prevention 

[and] detection of sexual abuse, the 

agency assesses at least annually the 

feasibility of acquiring new or 

additional technology. Compliance is 

measured by ensuring that the facility 

has developed a plan for securing such 

technology as funds become available.’’ 

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? 

Question 5: If a level such as 

‘‘adequacy’’ were mandated, how would 

compliance be measured? 

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? 

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? 

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? 

Question 9: Should the standard 

require the establishment of priority 

posts, and if so, how should such a 

requirement be structured and assessed? 

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? 

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? 

Question 12: Should the Department 

mandate the use of technology to 

supplement sexual abuse prevention, 

detection, and response efforts? 

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? 

Question 14: Are there other ways not 

mentioned above in which the 

Department can improve the proposed 

standard? 

The proposed standard also adds a 

requirement that prisons and jails with 

rated capacity in excess of 500 inmates 

develop a policy of requiring 

supervisors to conduct unannounced 

rounds. The Department believes that 

requiring such rounds is an appropriate 

measure to deter staff misconduct, in 

recognition of the great responsibility 

entrusted to correctional staff, who often 

perform their duties unaccompanied by 

colleagues. The proposed standard does 

not mandate how frequently such 

rounds must be conducted, in 

recognition that the frequency of 

unannounced rounds may be less 

important than the deterrent effect of 

knowing that such rounds may be 

conducted at any time. However, the 

Department believes that unannounced 

rounds should be conducted with 

reasonable frequency to ensure that 

such rounds have a sufficient deterrent 

effect, and solicits comments on this 

issue. 

Question 15: Should this standard 

mandate a minimum frequency for the 

conduct of such rounds, and if so, what 

should it be? 

Finally, the proposed standard omits 

language from the Commission’s 

recommended PP–3 standard regarding 

post-incident reviews and taking 

corrective action. Because the language 

in those standards cross-references two 

of the Commission’s recommended 

standards for data collection and review 

(DC–1 and DC–3), the Department has 

included comparable language in the 

proposed standards that correspond to 

the Commission’s DC–1 and DC–3 

standards—i.e., §§ 115.86, 115.186, 

115.286, and 115.386 (DC–1) and 

§§ 115.88, 115.188, 115.288, and 

115.388 (DC–3). 

Sections 115.14, 115.114, 115.214, 

and 115.314 (compare to the 

Commission’s PP–4 standard) address 

the limits on cross-gender searches. The 

proposed standard diverges significantly 

from the Commission’s 

recommendations in its PP–4 standard. 

The Commission proposed strict limits 

on cross-gender strip searches, visual 

body cavity searches, pat-down 

searches, and viewing of inmates nude 

or performing bodily functions. 

Specifically, the Commission would 

permit the first two only in case of 

emergency, and the latter two in 

emergencies or ‘‘other extraordinary or 

unforeseen circumstances.’’ The 

Commission recommended such 

restrictions in order to ‘‘to protect the 

privacy and dignity of inmates and to 

reduce opportunities for staff-on-inmate 

sexual abuse.’’ Standards for the 

Prevention, Detection, Response, and 

Monitoring of Sexual Abuse in Adult 

Prisons and Jails (‘‘Prison/Jail 

Standards’’), available at http:// 

www.ncjrs.gov/pdffiles1/226682.pdf, at 

12. 

The Department received numerous 

comments on the Commission’s 

proposed limits on cross-gender patdown searches. A large number of 

agencies objected to the Commission’s 

proposal on the ground that it would 

require agencies either to hire 

significant numbers of additional male 

staff or to lay off significant numbers of 

female staff, due to their 

overwhelmingly male inmate 

population and substantial percentage 

of female staff. In addition, many 

agencies expressed concern that the 

necessary adjustments to their 

workforce could violate Federal or State 

equal employment opportunities laws. 

Several advocacy groups, on the other 

hand, expressed support for the 

Commission’s proposal. 

The Department recognizes that patdown searches are critical to ensuring 

facility security and yet are often 

perceived as intrusive by inmates. 

Ideally, all pat-down searches would be 

conducted professionally and diligently 

by staff members of the same sex as the 

inmate. However, the Department is 

concerned about the high cost of 

imposing such a general requirement, 

and the concomitant effect on 

employment opportunities for women. 

The Department agrees with the 

Commission that ‘‘cross-gender 

supervision, in general, can prove 

beneficial in certain confinement 

settings.’’ Prison/Jail Standards at 12. 

Although the Commission stated that it 

‘‘in no way intends for this standard to 

limit employment (or post assignment) 

opportunities for men or women,’’ id., 

the Department is of the view that 

implementing a general prohibition on 

cross-gender pat-down searches cannot 

be achieved in many correctional 

systems without limiting such 

opportunities. In sum, the Department 

believes that the potential benefits of 

eliminating cross-gender pat-down 

searches do not justify the costs, 

financial and otherwise, of imposing 

such a rule across the board. 

The proposed standard would retain 

the Commission’s recommendation as 

applied to juvenile facilities, which tend 

to conduct pat-down searches less 

frequently. Indeed, many juvenile 

facilities already ban cross-gender patdown searches absent exigent 

circumstance. In addition, the 

Department proposes that adult prisons, 

jails, and community confinement 

facilities not allow cross-gender patdown searches of inmates who have 

previously suffered cross-gender sexual 

abuse while incarcerated. The 

Department agrees with the comment of 


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the New York Department of 

Correctional Services, which has 

implemented such a rule in its facilities, 

that allowing such an exemption is a 

viable and proportionate approach to 

protecting those inmates most likely to 

suffer emotional harm during crossgender pat-downs. 

The proposed standard also mandates 

that agencies train security staff in how 

to conduct cross-gender pat-down 

searches in a professional and respectful 

manner, and in the least intrusive 

manner possible consistent with 

security needs. Because any pat-down 

search carries the potential for abuse, 

the Department believes that training in 

the proper conduct of such searches is 

a cost-effective approach to combating 

problems that might arise in either a 

cross-gender or same-gender pat-down 

search. 

Question 16: Should the final rule 

contain any additional measures 

regarding oversight and supervision to 

ensure that pat-down searches, whether 

cross-gender or same-gender, are 

conducted professionally? 

Agency commenters’ concerns about 

banning cross-gender pat-down searches 

absent exigent circumstances did not 

extend to a similar rule for strip 

searches and visual body cavity 

searches. The Department’s proposed 

standard incorporates that aspect of the 

Commission’s standard PP–4 as drafted, 

with two modifications. First, the 

proposed standard exempts such crossgender searches when conducted by 

medical practitioners: The Department 

believes that a medical practitioner, 

even of the opposite gender, is more 

likely to conduct such searches with 

appropriate sensitivity. Second, the 

standard would require facilities to 

document all such cross-gender 

searches, whether conducted under 

emergency circumstances or by medical 

staff under non-emergency 

circumstances. 

The Department received fewer 

comments on the Commission’s 

proposed ban on cross-gender viewing 

of inmates who are nude or performing 

bodily functions. Some agencies 

expressed concern about being able to 

retrofit older facilities, while others 

commented that the Commission’s 

language could preclude officers from 

making unannounced rounds in units 

where toilets are located within cells. 

To accommodate the latter concern, the 

proposed standard modifies the 

Commission’s recommendation by 

exempting cross-gender viewing when 

incidental to routine cell checks. The 

Department believes that concerns about 

retrofitting can be accommodated by 

constructing privacy panels, reassigning 

staff, or other appropriate measures in 

the limited circumstances where such 

retrofitting is not possible. 

Sections 115.14, 115.114, 115.214, 

and 115.314 also bar examinations of 

transgender inmates to determine 

gender status unless such status is 

unknown and the examination is 

conducted in private by a medical 

practitioner. The Department’s proposed 

standard adopts the Commission’s 

restrictions, to which no commenter 

objected. Some commenters would 

impose further restrictions and ban all 

examinations to determine gender 

status, but the Department believes that 

a complete ban could preclude 

examinations where necessary to ensure 

the safety and security of the inmate 

examined and of other inmates and 

staff. 

Sections 115.15, 115.115, 115.215, 

and 115.315 (compare to the 

Commission’s PP–5 standard) govern 

the accommodation of inmates with 

disabilities and inmates with limited 

English proficiency (LEP). As the 

Commission noted, ‘‘[t]he ability of all 

inmates to communicate effectively and 

directly with staff, without having to 

rely on inmate interpreters, is crucial for 

ensuring that they are able to report 

sexual abuse as discreetly as possible.’’ 

Prison/Jail Standards at 13. The 

Department’s proposed standard, like 

the PP–5 standard, requires that 

agencies develop methods to ensure that 

LEP inmates and inmates with 

disabilities (e.g., inmates who are deaf, 

hard of hearing, or blind and inmates 

with low vision, intellectual, 

psychiatric, speech, and mobility 

disabilities) are able to report sexual 

abuse and sexual harassment to staff 

directly, and that agencies make 

accommodations to convey sexual abuse 

policies orally to inmates who have 

intellectual disabilities or limited 

reading skills or who are blind or have 

low vision. Unlike the Commission’s 

proposal, the proposed standard allows 

for the use of inmate interpreters in 

exigent circumstances, recognizing that 

in certain circumstances such use may 

be unavoidable. Some commenters 

would require facilities to ensure that 

inmates with disabilities and LEP 

inmates be able to communicate with 

staff throughout the entire investigation 

and response process. The Department 

solicits feedback on this question. 

The Department also notes that 

agencies receiving Federal financial 

assistance are required under Federal 

civil rights laws to meet obligations to 

inmates with disabilities or who are 

LEP. The Department encourages all 

agencies to refer to the relevant statutes, 

regulations, and guidance when 

determining the extent of their 

obligations. 

The Americans with Disabilities Act 

(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 ensure 

that their communications with 

individuals with disabilities affecting 

communication (blindness, low vision, 

deafness, or other speech or hearing 

disability) are as effective as their 

communications with individuals 

without disabilities. See 28 CFR 35.160– 

35.164. In addition, the ADA requires 

each State and local government to 

make reasonable modifications to its 

policies, practices, and procedures 

when necessary to avoid discrimination 

against individuals with disabilities, 

unless it 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). 

Pursuant to Title VI of the Civil Rights 

Act of 1964, 42 U.S.C. 2000d et seq., and 

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, 65 FR 

50123. Pursuant to Executive Order 

13166 of August 11, 2000, 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. 

Question 17: Should the final rule 

include a requirement that inmates with 

disabilities and LEP inmates be able to 

communicate with staff throughout the 

entire investigation and response 

process? If such a requirement is 

included, how should agencies ensure 

communication throughout the process? 


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Sections 115.16, 115.116, 115.216, 

and 115.316 (compare to the 

Commission’s PP–6 standard) govern 

hiring and promotion decisions. Like 

the Commission’s proposal, the 

proposed standard would restrict 

agencies’ ability to hire employees who 

previously engaged in sexual abuse. 

Several commenters expressed concern 

about the burden that would be imposed 

by requiring background checks on any 

employee being considered for 

promotion. The proposed standard 

would not mandate such checks but 

instead would require agencies to 

conduct criminal background checks of 

current employees at least every five 

years (as the Federal Bureau of Prisons 

currently does) or have in place a 

system for otherwise capturing such 

information for current employees. 

Sections 115.17, 115.117, 115.217, 

and 115.317 constitute a new standard 

requiring agencies to take into account 

how best to combat sexual abuse when 

designing or expanding facilities and 

when installing or updating video 

monitoring system or other technology. 

The Department believes that it is 

appropriate to require agencies to 

consider the impact of their physical 

and technological upgrades. Indeed, the 

American Correctional Association has 

recommended that, as a means of 

deterring sexual abuse, agencies should 

‘‘[p]romote effective facility design that 

enables direct lines of sight within 

housing units.’’ American Correctional 

Association Public Correctional Policy 

on Offender on Offender Sexual Assault 

(Jan. 12, 2005). The sentence in this 

standard regarding technology is 

adopted from a suggestion made in a 

comment by the New York Department 

of Correctional Services. 

Response Planning: Sections 115.21, 

115.121, 115.221, 115.321, 115.22, 

115.222, 115.322, 115.23, 115.123, 

115.223, and 115.323 (compare to the 

Commission’s RP standards). Like the 

Commission, the Department believes it 

is important to establish standards that 

address how facilities are expected to 

respond once an incident of sexual 

abuse occurs. 

Sections 115.21, 115.121, 115.221, 

and 115.321 (compare to the 

Commission’s RP–1 standard) set forth 

an evidence protocol to ensure all 

usable physical evidence is preserved 

for administrative or criminal 

proceedings. The standard makes clear 

that prompt exams are needed both to 

identify medical and mental health 

needs and to minimize the loss of 

evidence. In balancing these two 

interests, facilities should prioritize 

treating a victim’s acute medical and 

mental health needs before collecting 

evidence. Like the Commission, the 

Department believes that its Office on 

Violence Against Women’s National 

Protocol for Sexual Assault Medical 

Forensic Examinations, Adults/ 

Adolescents, a revised version of which 

will be published later this year, 

provides the best set of guidelines for 

conducting these exams. The proposed 

standard expands the Commission’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 choked 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. 

This standard takes 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 

requires 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 best-practices guideline. In 

addition, the standard applies to any 

outside State entity or Department of 

Justice component that investigates such 

allegations. 

In all settings except lockups, the 

proposed standard requires 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 requires 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 staff member,’’ 

defined as a facility employee who has 

received education concerning sexual 

assault and forensic examination issues 

in general. A victim advocate or 

qualified staff member must be made 

available to accompany and support the 

victim through the forensic medical 

exam process and the investigatory 

process, and to provide emotional 

support, crisis intervention, information 

and referrals, as needed. This 

requirement is intended to ensure that 

victims understand the forensic exam 

and investigative processes and receive 

support and assistance at an 

emotionally difficult time. Several 

agency commenters expressed concern 

about the burden imposed by this 

requirement. The Department notes that 

it has revised the Commission’s 

standard in order to clarify that an 

existing employee with appropriate 

education can fulfill this role, thus 

reducing the burden on the facility 

while ensuring support for the victim. 

Lockups are excluded from this 

requirement for three reasons. 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 is 

conducted. 

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? 

Sections 115.22, 115.222, and 115.322 

(compare to the Commission’s RP–2 

standard) govern the agreements that 

facilities enter into with public service 

and community providers. The goal of 

the proposed standard is to allow 

inmates the opportunity to report 

instances of sexual abuse and sexual 

harassment to an entity outside of the 

agency. The Department’s proposed 

standard exempts agencies that allow 

reporting to quasi-independent internal 

offices, such as inspectors general. In 

addition, the proposed standard 

requires that agencies maintain or 

attempt to enter into agreements with 

community service providers who can 

provide inmates confidential emotional 

support services related to sexual abuse. 

Some commenters argued that this 

standard should expressly mandate 

specific assistance for LEP inmates. The 

Department encourages agencies to 

make efforts to allow such inmates to 

partake in the services offered under 

this standard and solicits comments on 

whether such a mandate should be 

included. 

Question 19: Should this standard 

expressly mandate that agencies 

attempt to enter into memoranda of 

understanding that provide specific 

assistance for LEP inmates? 

The proposed standards do not 

include the Commission’s 

recommendations that agencies attempt 

to enter into memoranda of 

understanding with outside 

investigative agencies (the 

Commission’s RP–3 standard) and with 

prosecutorial agencies (the 

Commission’s RP–4 standard). A 

number of agency commenters 

expressed concern that these 

requirements would impose significant 

burdens, especially in State systems 


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where investigations and prosecutions 

are conducted by numerous different 

agencies at the county or municipal 

level. The Department recognizes that 

such memoranda of understanding have 

proven to be valuable for 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 agencies should be 

required to make such efforts. Instead, 

§§ 115.23, 115.123, 115.223, and 

115.323 mandate that each agency must 

have in place policies to ensure that 

allegations of sexual abuse or sexual 

harassment are investigated by an 

agency with the legal authority to 

conduct criminal investigations. The 

policy must be published on the 

agency’s Web site, and, if a separate 

entity is responsible for investigating 

criminal investigations, the Web site 

must delineate the responsibilities of 

the agency and the investigating entity. 

The Department’s proposed standard 

also requires that that any State entity 

or Department of Justice component that 

conducts such investigations must have 

policies in place governing the conduct 

of such investigations. 

Training and Education: Sections 

115.31, 115.131, 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 (compare to the 

Commission’s TR standards). Like the 

Commission, the Department believes 

that training for all individuals who 

have contact with inmates is a key 

component in combating sexual abuse. 

Training will create awareness of the 

issue of sexual abuse in facilities, clarify 

staff responsibilities, ensure that 

reporting mechanisms are known to 

staff and populations in custody, and 

provide specialized information for staff 

with key roles in responding to sexual 

abuse. These standards are substantively 

similar to those offered by the 

Commission. In addition, each standard 

in this category requires documentation 

that the required training was provided 

and, for staff training, that the training 

was understood. In order to facilitate 

compliance, the Department has revised 

the Commission’s recommendations to 

allow electronic documentation. 

Sections 115.31, 115.131, 115.231, 

and 115.331 (compare to the 

Commission’s TR–1 standard) require 

that all employees who have contact 

with inmates receive training 

concerning sexual abuse in facilities, 

with refresher training to be provided 

on an annual basis thereafter. The 

proposed standard includes all training 

topics proposed by the Commission, 

plus training in how to avoid 

inappropriate relationships with 

inmates. In addition, the Department 

has added a requirement that the 

training be tailored to the gender of the 

inmates at the employee’s facility, that 

training cover effective and professional 

communication with lesbian, gay, 

bisexual, transgender, and intersex 

residents, and that training in juvenile 

facilities be tailored to the juvenile 

setting. 

Due to the limited detention 

operations of lockups, § 115.131, 

consistent with the Commission’s 

corresponding TR–1 standard, does 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. 

Question 20: Should the Department 

further specify training requirements for 

lockups and if so, how? Would lockups 

be able to implement such training in a 

cost-effective manner via in-person 

training, videos, or Web-based 

seminars? 

Sections 115.32, 115.232, and 115.332 

(compare to the Commission’s TR–2 

standard) require training for 

contractors and volunteers concerning 

sexual abuse. The Department agrees 

with the Commission that training must 

not be limited to employees, given that 

contractors and volunteers often interact 

with inmates on a regular, sometimes 

daily, basis. With regard to lockups, the 

Department mandates in § 115.132 that 

attorneys, contractors, and any inmates 

who work in the lockup must be 

informed of the agency’s zero-tolerance 

policy regarding sexual abuse. (As noted 

above, § 115.131 governs training of 

lockup volunteers.) 

Sections 115.33, 115.233, and 115.333 

(compare to the Commission’s TR–3 

standard) require that information about 

combating sexual abuse provided to 

individuals in custody upon intake and 

that comprehensive education be 

provided within 30 days of intake. Like 

the Commission, the Department 

believes that educating inmates 

concerning sexual abuse is of the utmost 

importance. Several agency commenters 

expressed concern that the 

Commission’s recommended standard 

would impose a vague mandate by 

requiring the provision of 

comprehensive education to inmates 

within a ‘‘reasonably brief period of 

time’’ following intake. Agency 

commenters also requested clarification 

that such education could be provided 

via video. The proposed standard 

requires the provision of comprehensive 

education within 30 days of intake, and 

provides that such education may be 

provided via video. Although inmates 

who are incarcerated for less than 30 

days might not receive such 

comprehensive education, all inmates 

will have received information upon 

intake. In addition, the Department has 

added a requirement that agencies must 

ensure that key information is 

continually and readily available or 

visible to inmates through posters, 

inmate handbooks, or other written 

formats. 

Due to the transitory nature of 

community confinement, the proposed 

standard does not mandate the 

provision of refresher information 

except upon transfer to another facility. 

Sections 115.34, 115.134, 115.234, 

and 115.334 (compare to the 

Commission’s TR–4 standard) requires 

that agencies that conduct their own 

sexual abuse investigations provide 

specialized training for their 

investigators in conducting such 

investigations in confinement settings, 

and that any State entity or Department 

of Justice component that investigates 

sexual abuse in confinement settings do 

the same. Although several agency 

commenters questioned the need for 

and cost of training tailored to 

confinement settings, the Department 

believes that such training is valuable 

and can be provided in a cost-effective 

manner. Models of such training already 

exist, and the Department is interested 

in receiving feedback on how it can 

provide additional assistance in 

developing such training. 

Sections 115.35, 115.235, and 115.335 

(compare to the Commission’s TR–5 

standard), require specialized training 

for all medical staff employed by the 

agency or facility. The proposed 

standard exempts lockups, which 

usually do not employ or contract for 

medical staff. The Commission found, 

and the Department agrees, that 

investigative and medical staff members 

serve vital roles in the response to 

sexual abuse, and the nature of their 

responsibilities require additional 

training in order to be effective. The 

Department further proposes that any 

agency medical staff who conduct 

forensic evaluations receive appropriate 

training. 

Screening for Risk of Sexual 

Victimization and Abusiveness: 

Sections 115.41, 115.241, 115.42, 

115.242, and 115.43 (compare to the 

Commission’s SC standards). Like the 

Commission, the Department believes 

that the proper classification of inmates 


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is crucial to preventing sexual abuse. 

Sound correctional management 

requires that agencies obtain 

information from inmates and use such 

information to assign inmates to 

housing units or specific cells in which 

they are likely to be safe. These 

proposed standards are substantively 

similar to those recommended by the 

Commission. Like the Commission’s 

recommended standards, these 

standards do not apply to lockups, due 

to the short-term nature of lockup 

detention. However, the Department 

solicits comments on whether 

rudimentary screening should be 

mandated for lockups. 

Sections 115.41 and 115.241 (compare 

to the Commission’s SC–1 standard) 

require that agencies conduct screenings 

of inmates upon intake and during an 

initial classification process, pursuant to 

an objective screening instrument. 

Although the intake screening need not 

be as rigorous, the initial classification 

process for each inmate must consider, 

at a minimum, the existence of a mental, 

physical, or developmental disability; 

age; physical build; criminal history, 

including prior sex offenses and 

previous incarceration; whether the 

inmate is gay, lesbian, bisexual, 

transgender, or intersex; previous sexual 

victimization; perceived vulnerability; 

any history of prior institutional 

violence or sexual abuse; and (as added 

by the Department) whether an inmate 

is detained solely on civil immigration 

charges. Several commenters proposed 

reducing or eliminating the distinctions 

between the Commission’s proposed 

screening criteria for male and female 

inmates. The Department has developed 

a set of criteria that is applicable to male 

and female inmates alike, although 

agencies may determine that the criteria 

should be weighed differently 

depending upon the inmate’s gender. 

Question 21: Recognizing that lockup 

detention is usually measured in hours, 

and that lockups often have limited 

placement options, should the final rule 

mandate rudimentary screening 

requirements for lockups, and if so, in 

what form? 

The proposed standard clarifies that 

the initial classification screening must 

be conducted within 30 days of an 

inmate’s confinement. Several agency 

commenters expressed concern about 

the cost and burden of conducting 

detailed screening upon an inmate’s 

entrance into a facility. By clarifying 

that the detailed initial classification 

need only be conducted within 30 days 

of confinement, the Department intends 

to allow agencies with rapid turnover to 

avoid conducting a full classification, 

while still ensuring that an inmate is 

screened appropriately upon intake. 

Agencies that house all inmates beyond 

30 days must conduct an intake 

screening followed by a more detailed 

classification. Although the proposed 

standard does not specify the scope of 

the intake screening, the intent of the 

standard is that institutions should do 

what is feasible at intake to ensure that 

inmate can be housed safely for a short 

period of time pending either release or 

a more detailed classification. 

Question 22: Should the final rule 

provide greater guidance regarding the 

required scope of the intake screening, 

and if so, how? 

The Department’s proposed standard 

differs from the Commission’s 

recommended standard in several 

additional respects. First, the proposed 

standard clarifies the Commission’s 

reference to ‘‘subsequent classification 

reviews’’ by mandating that inmates 

should be rescreened when warranted 

due to a referral, request, or incident of 

sexual victimization. Second, 

recognizing that information provided at 

screenings is often highly sensitive, 

personal, and may put an individual at 

risk in a correctional setting, the 

Department proposes that such 

information be subject to appropriate 

controls to avoid unnecessary 

dissemination. Third, due to the 

personal nature of the information, the 

proposed standard specifies that it must 

not be a disciplinary infraction to fail to 

provide information during this process. 

Fourth, although the Commission would 

require use of a written instrument in 

the classification process, the 

Department has not adopted this 

requirement in order to allow for 

electronic evaluations. 

Sections 115.42 and 115.242 (compare 

to the Commission’s SC–2 standard) 

require administrators of adult prisons 

and jails and community confinement 

facilities to use the information obtained 

in a classification interview in order to 

separate individuals who are at risk of 

abuse from those at high risk of being 

sexually abusive. The proposed 

regulation is substantially similar to the 

Commission’s standard with, two 

exceptions. 

First, the proposed standard does not 

include the Commission’s 

recommended ban on assigning inmates 

to particular units solely on basis of 

sexual orientation or gender identity. 

One commenter discussed the success 

of the Los Angeles County Jail in 

housing gay male and transgender 

prisoners in a separate housing unit. At 

a subsequent meeting with officials of 

that jail, the Department learned that the 

jail officials believe that the occupants 

of that separate unit are significantly 

safer than they would be in the general 

jail population. While the Department is 

not proposing a ban on such units, it 

urges that any agency that might be 

considering the creation of such a unit 

make every effort to ensure that its 

occupants receive the same access to 

programming and employment as 

inmates in the general population. 

Second, the proposed standard 

mandates that transgender and intersex 

inmates, who may be especially 

vulnerable, receive an individualized 

assessment on whether the inmate 

should be housed in a male or female 

facility, to be reassessed at least twice 

each year to review any threats to safety 

experienced by the inmate. 

Section 115.43 governs the use of 

protective custody, incorporating and 

expanding upon the relevant portion of 

the Commission’s SC–2 standard. Due to 

the importance of protective custody, 

the Department believes it warrants its 

own standard, applicable only to adult 

prisons and jails, as other types of 

facilities usually do not have protective 

custody assignments of this nature. The 

proposed standard provides that 

inmates at high risk of sexual 

victimization 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 

new standard also specifically defines 

the assessment process, specifies 

required documentation, and sets a 

presumptive time frame of 90 days. The 

Department recognizes that protective 

custody may be necessary in a 

correctional setting to ensure the safety 

of inmates and staff. However, the 

Department also notes that the prospect 

of placement in segregated housing may 

deter inmates from reporting sexual 

abuse. The new standard attempts to 

balance these concerns and ensure that 

alternatives to involuntary protective 

custody are considered and 

documented. In addition, the proposed 

standard contains the Commission’s 

recommendation that, to the extent 

possible, protective custody should not 

limit access to programming. 

Assessment and Placement of 

Residents: Sections 115.341 and 

115.342 (compare to the Commission’s 

AP standards). Like the Commission, 

the Department refers to the 

categorization process in juvenile 

facilities as ‘‘assessment and placement’’ 

rather than ‘‘screening.’’ 

Sections 115.341 and 115.342 

(compare to the Commission’s AP–1 and 

AP–2 standards) govern screening 

requirements for juveniles. These two 

proposed standards take into account 


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the different practices and procedures 

that apply in juvenile facilities 

compared to adult prisons, jails, and 

community confinement facilities. 

Section 115.341 directs facilities to 

assess each resident’s personal history 

and behavior upon intake and 

periodically throughout a resident’s 

confinement to reduce the risk of sexual 

abuse. In addition to obtaining 

information in conversations with the 

resident, facilities can review court 

records, case files, facility behavioral 

records, and other relevant 

documentation from the resident’s files. 

The proposed standard adds the 

inmate’s own perception of 

vulnerability to the list of topics about 

which the facility should attempt to 

ascertain information. 

As in the analogous adult standards, 

the Department has added a 

requirement that juveniles must be 

assessed and placed pursuant to an 

objective screening instrument, and that 

information obtained for this purpose be 

subject to appropriate controls to avoid 

unnecessary dissemination. 

Several agency commenters expressed 

concern about the Commission’s 

recommendation that only medical and 

mental health practitioners be allowed 

to talk with residents to gather 

information about their sexual 

orientation or gender identity, prior 

sexual victimization, history of engaging 

in sexual abuse, mental health status, 

and mental or physical disabilities. The 

Department has not included this 

limitation in its proposed standard, 

agreeing with commenters that 

appropriately trained juvenile facility 

staff who are not medical or mental 

health practitioners can engage in 

productive conversations on these 

topics with residents. 

Section 115.342 directs the facility to 

use the information gathered under 

§ 115.341 to make housing, bed, 

program, education, and work 

assignments. As in the analogous adult 

standards, the proposed standard 

requires individualized assessments 

about whether a transgender resident 

should be housed with males or 

females. Unlike the adult standards, 

however, the proposed standard retains 

the Commission’s recommended ban on 

housing separately residents who are 

lesbian, gay, bisexual, transgender, or 

intersex. 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. 

Section 115.342 also addresses 

isolation for juveniles, allowing it only 

as a last resort when less restrictive 

means are inadequate to ensure resident 

safety, and then only until an alternative 

method of ensuring safety can be 

established. 

Reporting: Sections 115.51, 115.151, 

115.251, 115.351, 115.52, 115.252, 

115.352, 115.53, 115.253, 115.353, 

115.54, 115.154, 115.254, and 115.354 

(compare to the Commission’s RE 

standards). Like the Commission, the 

Department believes that reporting 

instances of sexual abuse is critical to 

deterring future acts. The Department, 

however, has made significant changes 

to some of the Commission’s proposed 

standards in this area. 

Sections 115.51, 115.151, 115.251, 

and 115.351 (compare to the 

Commission’s RE–1 standard) require 

agencies to enable inmates to privately 

report sexual abuse and sexual 

harassment and related misconduct. The 

Commission proposed that agencies be 

required to allow inmates to report 

abuse to an outside public entity, which 

would then forward reports to the 

facility head ‘‘except when an inmate 

requests confidentiality.’’ Several 

commenters expressed concern that a 

public entity would be required to 

ignore reports of criminal activity if an 

inmate requested confidentiality. The 

proposed standard eliminates this 

exception; however, the Department 

solicits comments on the issue. 

The Department notes that the 

Department of Defense provides a 

‘‘restricted reporting’’ option that allows 

servicemembers to confidentially 

disclose the details of a sexual assault 

to specified Department 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. Under Department of Defense 

policy, such restricted reports may be 

made to a Sexual Assault Response 

Coordinator, a designated victim 

advocate, or healthcare personnel. 

Question 23: Should the final rule 

mandate that agencies provide inmates 

with the option of making a similarly 

restricted report to an outside public 

entity? To what extent, if any, would 

such an option conflict with applicable 

State or local law? 

The proposed standard also provides 

that, instead of enabling reports to an 

outside public entity, the agency may 

meet this standard by enabling reports 

to an office within the agency but that 

is operationally independent from 

agency leadership, such as an inspector 

general or ombudsperson. The proposed 

standard requires only that agencies 

make their best efforts to set up such 

systems, recognizing that it may not be 

possible for all agencies. However, an 

agency must endeavor diligently to 

establish such a system, and if it does 

not succeed, it must demonstrate that no 

suitable outside entity or internal office 

exists, and that it would be impractical 

to create an internal office to serve this 

role. 

In addition, the proposed standard 

mandates that agencies establish a 

method for staff to privately report 

sexual abuse and sexual harassment of 

inmates. Finally, the proposed standard 

requires that juvenile residents be 

provided access to tools necessary to 

make written reports, whether writing 

implements or computerized reporting. 

Sections 115.52, 115.252, and 115.352 

(compare to the Commission’s RE–2 

standard) govern grievance procedures 

and the methods by which inmates 

exhaust their administrative remedies. 

The Commission’s recommended 

standard would impose three 

requirements. First, the standard would 

mandate that an inmate be deemed to 

have exhausted administrative remedies 

regarding a claim of sexual abuse either 

when the agency makes a final decision 

on the merits of the report, regardless of 

the source, or 90 days after the report, 

whichever comes first. Second, the 

standard would mandate that the agency 

accept any grievance alleging sexual 

abuse regardless of the length of time 

that had passed between abuse and 

report. Third, the standard would 

provide that an inmate seeking 

immediate protection from imminent 

sexual abuse would be deemed to have 

exhausted administrative remedies 48 

hours after notifying any agency staff 

member of the need for protection. 

The Commission justified its standard 

as a means of ensuring that inmates 

have an effective method to seek 

judicial redress. The Commission noted 

that inmates who suffer sexual abuse are 

often too traumatized to comply with 

short time limitations imposed by many 

grievance systems. See Prison/Jail 

Standards at 35. In addition, the 

Commission noted, filing a grievance is 

not the typical way to report sexual 

abuse, and inmates who are told that 

they may report via other methods may 

not realize that they also need to file a 


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grievance in order to later pursue legal 

remedies. See id. 

Numerous agency commenters 

registered several types of objections to 

the Commission’s proposal. First, some 

commenters suggested that aspects of 

the Commission’s proposals would 

violate the Prison Litigation Reform Act 

(PLRA), which provides in pertinent 

part that ‘‘[n]o action shall be brought 

with respect to prison conditions under 

section 1983 of this title, or any other 

Federal law, by a prisoner confined in 

any jail, prison, or other correctional 

facility until such administrative 

remedies as are available are 

exhausted.’’ 42 U.S.C. 1997e(a). 

Commenters noted that the 

Commission’s proposal would not 

mandate the exhaustion of available 

administrative remedies such as a 

grievance system but rather would deem 

exhaustion to have occurred 90 days 

after sexual abuse is reported to the 

agency. Second, some commenters 

objected to the requirement that no 

limitations period be imposed on 

grieving sexual abuse, and suggested 

that this would allow filing of stale 

claims that would be difficult to 

investigate due to the passage of time. 

Third, some commenters suggested that 

imposing any standard in this area 

would encourage the filing of frivolous 

claims. Fourth, commenters objected to 

the imminent-abuse requirement on the 

grounds that it would not allow 

sufficient time for investigations, would 

allow inmates to define imminence, and 

would permit gamesmanship by inmates 

seeking changes to housing or facility 

assignments for reasons unrelated to 

sexual abuse. 

Numerous commenters from advocacy 

groups and legal organizations endorsed 

the Commission’s proposal as a way to 

ensure that inmates are able to vindicate 

their rights. Some commenters 

suggested that the standard should also 

address the PLRA’s requirement that no 

prisoner may recover for mental or 

emotional injury without a prior 

showing of physical injury, see 42 

U.S.C. 1997e(e), either by deeming this 

requirement inapplicable to victims of 

sexual abuse or by deeming sexual 

abuse to constitute physical injury per 

se. 

The Department agrees with the 

Commission that a standard relating to 

grievance procedures would be 

beneficial in light of strong evidence 

that victims of sexual abuse are often 

constrained in their ability to pursue 

grievances, for reasons discussed by the 

Commission and by commenters. 

However, the Department believes that 

the Commission’s recommended 

standard devotes insufficient attention 

to several policy concerns lodged by 

correctional agencies, regardless of 

whether those correctional agencies are 

correct that the Commission’s proposal 

is inconsistent with the PLRA. 

Accordingly, the Department is 

proposing a standard that it believes is 

sensitive to legitimate agency concerns 

while providing inmates appropriate 

access to the legal process in order to 

obtain judicial redress where available 

under applicable law and to enable 

litigation to play a beneficial role in 

ensuring that agencies devote sufficient 

attention to combating sexual abuse. 

The Department’s proposed standard 

takes into account (1) the possibility 

that victims of sexual abuse may need 

additional time to initiate the grievance 

process; (2) the need for a final decision 

from the agency, and without undue 

delay; (3) the fact that such victims 

often report such abuse outside of the 

grievance system, and that the 

appropriate agency authorities may first 

learn of an allegation through a staff 

member or other third party; and (4) the 

need to provide swift redress in case of 

emergency. At the same time, the 

proposed standard recognizes (1) the 

need to comply with the PLRA; (2) the 

importance of providing agencies a 

meaningful amount of time to 

investigate allegations of sexual abuse; 

(3) the possibility that some inmates 

may fabricate claims of sexual abuse; 

and (4) the need to ensure 

accountability for grievances that are 

filed. The proposed standard does not 

address the PLRA’s requirement that 

physical injury must be shown prior to 

any recovery for emotional or mental 

injury; the Department agrees with the 

Commission that the actions that 

commenters seek with regard to this 

requirement would require a statutory 

revision and cannot be accomplished 

via rulemaking. 

Paragraph (a) of §§ 115.52, 115.252, 

and 115.352 governs the amount of time 

that inmates have after an alleged 

incident of sexual abuse to file a 

grievance. The proposed standard sets 

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. The 20-day 

limit matches the limitations period 

used by the Federal Bureau of Prisons 

(BOP) for all grievances, see 28 CFR 

542.14(a), and according to a recent 

survey is shorter than the general 

limitations period for grievances in 18 

States, see Appendix, Brief for the 

Jerome N. Frank Legal Services 

Organization of the Yale Law School As 

Amicus Curiae in Support of 

Respondent, Woodford v. Ngo (No. 05– 

416) (2006). By requiring actual 

documentation to obtain a 90-day 

extension for good cause shown, the 

proposed standard would reduce risk of 

inmate gamesmanship. The extension 

could be granted retroactively, thus 

avoiding the perverse consequence of 

recognizing that a victim may be too 

traumatized to file a grievance, while at 

the same time requiring the victim to 

file an extension request that documents 

such trauma. 

Paragraph (b) of §§ 115.52, 115.252, 

and 115.352 governs the amount of time 

that agencies have to resolve a grievance 

alleging sexual abuse before it is 

deemed to be exhausted. The goal of 

this paragraph is 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) requires 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. Time consumed 

by inmates in making appeals does not 

count against these time limits, in order 

to clarify that the agency’s burden of 

producing timely responses applies only 

when a response is actually pending, 

and to ensure that agencies that allow 

generous time frames for inmates to take 

appeals are not penalized by receiving 

a commensurately shorter length of time 

to respond to inmate filings. 

The 90-day limit and the 70-day 

extension period are consistent with 

current BOP procedures. BOP has a 

three-level grievance system: the 

Warden has 20 days to adjudicate the 

initial appeal, the Regional Director has 

30 days to adjudicate an intermediate 

appeal, and the BOP General Counsel 

has 40 days to adjudicate a final appeal. 

See 28 CFR 542.18. BOP allows 

extensions at each level of 20, 30, and 

20 days, respectively, if the normal time 

period is insufficient to make an 

appropriate decision. See id. The 

Department has not identified a broad 

survey that would allow comparison to 

State or local systems, but believes that 

the 90-day limit, extendable to 160 days, 

provides sufficient time for any agency 

to take appropriate steps to respond to 

allegations of sexual abuse prior to the 

initiation of a lawsuit. 

Paragraph (c) of §§ 115.52, 115.252, 

and 115.352 requires 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. As the 


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Commission and some commenters 

have noted, it is inconsistent for an 

agency to assure inmates that it will 

investigate sexual abuse allegations 

made to any staff member and then 

defend against a lawsuit on the ground 

that the inmate failed to file a formal 

grievance with the proper facility 

official. As the Commission noted, 

‘‘because grievance procedures are 

generally not designed as the sole or 

primary method for reporting incidents 

of sexual abuse by inmates to staff, 

victims who do immediately report 

abuse to authorities may not realize they 

need to file a grievance as well to satisfy 

agency exhaustion requirements.’’ 

Prison/Jail Standards at 35. However, 

the Commission’s recommendation that 

a third-party report suffice to bypass the 

grievance system altogether would deny 

correctional agencies the ability to 

investigate allegations of sexual abuse 

prior to the filing of a lawsuit. In 

addition, the Commission’s proposal, if 

adopted, could require courts to 

adjudicate disputes over whether and 

when the agency in fact received such 

a report that would excuse the inmate 

from needing to file a grievance. 

The proposed standard would address 

these concerns by requiring reports of 

sexual abuse to be channeled into the 

normal grievance system (including 

requests for informal resolution where 

required) unless the alleged victim 

requests otherwise. Reports from other 

inmates would be exempted from this 

requirement in order to reduce the 

likelihood that inmates would attempt 

to manipulate staff or other inmates by 

making false allegations. The proposed 

standard would permit agencies to 

require alleged victims to perform 

properly all subsequent steps in the 

grievance process, because at that point 

the rationale for third-party involvement 

would no longer exist. However, where 

the alleged victim of sexual abuse is a 

juvenile, the proposed standard would 

allow a parent or guardian to continue 

to file appeals on the juvenile’s behalf 

unless the juvenile does not consent. 

Paragraph (d) governs procedures for 

dealing with emergency claims alleging 

imminent sexual abuse. Many State 

prison systems expressly provide 

emergency grievance procedures where 

imminent harm is threatened. Such 

procedures usually require a speedy 

final agency decision, and therefore a 

speedy exhaustion of administrative 

remedies. These procedures address the 

possibility that some inmates may have 

reason to fear imminent harm from 

another inmate or from a staff member, 

in which case a lengthy grievance 

process would be unlikely to provide 

adequate relief. 

However, the Department believes 

that the Commission’s imminent-harm 

proposal is unworkable, because it 

would allow any inmate nearly instant 

court access based upon the inmate’s 

mere assertion that sexual abuse is 

imminent. Under the Commission’s 

proposal, an inmate could trigger these 

emergency exhaustion provisions by 

notifying any agency staff member, 

regardless of the staff member’s 

authority to provide a remedy. Then, the 

inmate could automatically file suit 

within 48 hours, regardless of whether 

the claim of imminent harm has any 

merit. Such a regime could encourage 

the filing of frivolous claims in which 

sexual abuse is alleged as a vehicle to 

seek immediate judicial access in order 

to obtain an unrelated remedy, such as 

a change in housing assignment for 

reasons other than safety. 

The proposed standard would require 

agencies to establish emergency 

grievance procedures resulting in a 

prompt response—unless the agency 

determines that no emergency exists, in 

which case the grievance may 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, an agency 

could discipline an inmate for 

deliberately alleging false emergencies. 

The Department believes that this 

provision, modeled on procedures in 

place in numerous States, would serve 

as an adequate deterrent to the filing of 

frivolous or strategic claims while 

advancing true emergencies to the head 

of the queue. 

Question 24: Because the 

Department’s proposed standard 

addressing administrative remedies 

differs significantly from the 

Commission’s draft, the Department 

specifically encourages comments on all 

aspects of this proposed standard. 

Sections 115.53, 115.253, and 115.353 

(compare to the Commission’s RE–3 

standard) require that agencies provide 

inmates access to outside victim 

advocacy organizations, similar to the 

Commission’s recommended standard. 

Several commenters expressed concern 

that the Commission’s proposal would 

allow inmates unfettered and 

unmonitored access to outside 

organizations, possibly enabling inmate 

abuse of such access. The proposed 

standard modifies the Commission’s 

recommended language, which would 

require communications to be ‘‘private, 

confidential, and privileged, to the 

extent allowable by Federal, State, and 

local law.’’ Instead, the proposed rule 

requires that such communications be 

as confidential as possible consistent 

with agency security needs. The 

Department recognizes that allowing 

inmate access to outside victim 

advocacy organizations can greatly 

benefit inmates who have experienced 

sexual abuse yet who may be reluctant 

to report it to facility administrators, 

and notes that some agencies, such as 

the California Department of Corrections 

and Rehabilitation, have established 

successful pilot programs working with 

outside organizations. At the same time, 

the Department recognizes that 

communications with outsiders raise 

legitimate security concerns. The 

proposed standard strikes a balance by 

allowing confidentiality to the extent 

consistent with security needs. 

The proposed standard also retains 

the Commission’s recommendation that 

juvenile facilities be specifically 

instructed to provide residents with 

access to their attorney 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 modifies the 

Commission’s language by mandating 

that juvenile facilities provide access 

that is reasonable (and, with respect to 

attorneys and other legal representation, 

confidential) rather than unimpeded. 

Sections 115.54, 115.154, 115.254, 

and 115.354 (compare to the 

Commission’s RE–4 standard) requires 

that facilities establish a method to 

receive third-party reports of sexual 

abuse and publicly distribute 

information on how to report such 

abuse on behalf of an inmate. Elements 

of the Commission’s RE–4 standard 

related to investigations are included in 

§§ 115.71, 115.171, 115.271, and 

115.371. 

Official Response Following an 

Inmate Report: Sections 115.61, 

115.161, 115.261, 115.361, 115.62, 

115.162, 115.262, 115.362, 115.63, 

115.163, 115.263, 115.363, 115.64, 

115.164, 115.264, 115.364, 115.65, 

115.165, 115.265, 115.365, 115.66, and 

115.366 (compare to the Commission’s 

OR standards). The Department 

proposes six standards addressing a 

facility’s official response following a 

report of sexual abuse or sexual 

harassment. These six proposed 

standards are substantively similar to 

the five standards proposed by the 

Commission. This group of standards is 

intended to ensure coordinated, 

thorough, and complete agency 

reactions to reports of sexual abuse. 

Sections 115.61, 115.161, 115.261, 

and 115.361 (compare to the 

Commission’s OR–1 standard) set forth 

staff and agency reporting duties 

regarding incidents of sexual abuse. 


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Staff must be trained and informed 

about how to properly report incidents 

of sexual abuse while maintaining the 

privacy of the victim. Staff are required 

to 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 Department’s proposed standard 

adds to the Commission’s 

recommendations a requirement that the 

facility must report all allegations of 

sexual abuse to the facility’s designated 

investigators, including third-party and 

anonymous reports. 

Sections 115.62, 115.162, 115.262, 

and 115.362 (compare to the 

Commission’s OR–2 standard) require 

that after a facility receives an allegation 

that one of its inmates was sexually 

abused at another facility, it must 

inform that other facility within 14 

days. This standard recognizes that 

some victims of sexual abuse may not 

report an incident until they are housed 

in another facility. Such incidents must 

not evade investigation merely because 

the victim is no longer at the facility 

where the abuse occurred. The proposed 

standard tracks the Commission’s 

recommendation but adds the 14-day 

time limit in order to provide further 

guidance to agencies. The standard also 

requires that the facility receiving the 

information must investigate the 

allegation. 

Sections 115.63, 115.163, 115.263, 

and 115.363 (compare to the 

Commission’s OR–3 standard) set forth 

staff first responder responsibilities. 

Staff need to be able to adequately 

counsel victims while maintaining 

security and control over the crime 

scene so any physical evidence is 

preserved until an investigator arrives. 

The proposed standard revises the 

Commission’s recommendation by 

requesting, rather than instructing, 

victims not to take actions that could 

destroy physical evidence. This change 

is consistent with forthcoming revisions 

to the Office on Violence Against 

Women’s National Protocol for Sexual 

Assault Medical Forensic Examinations, 

Adults/Adolescents. 

Sections 115.64, 115.164, 115.264, 

and 115.364 (compare to the 

Commission’s OR–4 standard) require a 

coordinated response among first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership when an incident of sexual 

abuse takes place. This proposed 

standard is 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. 

Agencies are encouraged to work with 

existing community SARTs or create 

their own plan for a coordinated 

response. To ensure that the victim 

receives the best care possible and that 

the investigator has the best chance of 

apprehending the perpetrator, the 

Department recommends coordination 

of the following actions: (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 to 

be present 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. 

Some commenters expressed 

uncertainty regarding how compliance 

with this standard would be measured. 

Question 25: Does this standard 

provide sufficient guidance as to how 

compliance would be measured? If not, 

how should it be revised? 

Sections 115.65, 115.165, 115.265, 

and 115.365 (compare to the 

Commission’s OR–5 standard) require 

that the agency protect all inmates and 

staff from retaliation for reporting sexual 

abuse or for cooperating with sexual 

abuse investigations. Retaliation for 

reporting instances of sexual abuse and 

for cooperating with sexual abuse 

investigations is a real and serious 

threat in correctional facilities. Fear of 

retaliation, such as being subjected to 

harsh or hostile conditions, being 

attacked by other inmates, or suffering 

harassment from staff, prevents many 

inmates and staff from reporting sexual 

abuse, which in turn makes it difficult 

to keep facilities safe and secure. The 

proposed standard requires agencies to 

adopt policies that help ensure that 

those who do report are properly 

monitored and protected afterwards, 

including but not limited to providing 

information in training sessions, 

enforcing strict reporting policies, 

imposing strong disciplinary sanctions 

for retaliation, making 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. 

A few agency commenters raised 

concerns regarding the burdens imposed 

by the proposed requirement that 

agencies monitor for 90 days the 

conduct and treatment of inmates or 

staff who have reported sexual abuse or 

cooperated with investigations. The 

Department believes that 90 days is an 

appropriate minimum amount of time to 

ensure that no retaliation occurs, and 

that such monitoring can be performed 

without unduly consuming agency 

resources. The Department has added a 

requirement that monitoring continue 

beyond 90 days where the initial 

monitoring conducted during the initial 

90-day period indicates concerns that 

warrant further monitoring. 

Question 26: Should the standard be 

further refined to provide additional 

guidance regarding when continuing 

monitoring is warranted, or is the 

current language sufficient? 

The Department’s proposed standard 

adds a requirement that the Commission 

discussed but did not mandate: That an 

agency must not enter into or renew any 

collective bargaining agreement or other 

agreement that limits its ability to 

remove alleged staff abusers from 

contact with victims pending an 

investigation. This requirement builds 

on the Commission’s suggestion, in the 

discussion section accompanying its 

OR–5 standard, that ‘‘agencies should 

try to secure collective bargaining 

agreements that do not limit their ability 

to protect inmates or staff from 

retaliation.’’ Prison/Jail Standards at 42. 

Sections 115.66 and 115.366 are new 

standards proposed by the Department, 

and clarify that the use of protective 

custody following an allegation of 

sexual abuse should be subject to the 

same requirements as the use of 

protective custody as a preventative 

measure. 

Investigations: Sections 115.71, 

115.171, 115.271, 115.371, 115.72, 

115.172. 115.272, 115.372, 115.73, 

115.273, and 115.373 (compare to the 

Commission’s IN standards). Like the 

Commission, the Department believes it 

is important to set standards to govern 

investigations of allegations of sexual 

abuse. The proposed standards in these 

sections are substantially similar to the 

Commission’s recommendations, with 

some modifications. 

Sections 115.71, 115.171, 115.271, 

and 115.371 (compare to the 

Commission’s IN–1 and IN–2 standards) 

address criminal and administrative 

investigations. Although criminal and 

administrative investigations are quite 

different in nature, certain elements, 

like evidence, are critical to both. This 

proposed standard addresses how to 

preserve the elements that are important 

to both. The standard requires that 

agencies that conduct their own 

investigations must do so promptly, 


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thoroughly, and objectively. The 

proposed standard requires 

investigations whenever an allegation of 

sexual abuse is made, including thirdparty and anonymous reports, and 

mandates that an investigation may not 

be terminated on the ground that the 

alleged abuser or victim is no longer 

employed or housed by the facility or 

agency. 

The proposed standard requires that 

investigators gather and preserve all 

available direct and circumstantial 

evidence. Because sexual abuse often 

has no witnesses and often leaves no 

visible injuries, investigators must be 

diligent in tracking down all possible 

evidence, including collecting DNA and 

electronic monitoring data, conducting 

interviews, and reviewing prior 

complaints and reports of sexual abuse 

involving the alleged perpetrator. 

Because of the delicate nature of these 

investigations, investigators should be 

trained in conducting sexual abuse 

investigations in compliance with 

§§ 115.34, 115.134, 115.234, and 

115.334. 

The proposed standard also requires 

that administrative investigators work 

with criminal prosecutors in gathering 

certain kinds of evidence, such as 

compelled interviews. It is critical that 

such interviews not undermine 

subsequent criminal prosecutions. The 

proposed standard does not, however, 

require that an administrative 

investigation be delayed until a decision 

whether to prosecute has been made. To 

ensure an unbiased evaluation of 

witness credibility, the proposed 

standard requires 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 

requires that all investigations, whether 

administrative or criminal, be 

documented in written reports. Such 

reports must be retained for as long as 

the alleged abuser is incarcerated or 

employed by the agency, plus five years. 

Some commenters expressed concern 

that the Commission’s proposed 

standard would require agencies to 

dictate investigative procedures to 

outside entities responsible for 

conducting investigations within agency 

facilities. The Department’s proposed 

standard simply requires that a facility 

cooperate with any outside investigators 

and endeavor to remain informed about 

the progress of the investigation. 

However, the proposed standard 

expressly applies to any outside 

investigator that is a State entity or 

Department of Justice component. 

Sections 115.72, 115.172, 115.272, 

and 115.372 (compare to the 

Commission’s IN–3 standard) set forth 

the evidentiary standard for 

administrative investigations. The 

Commission’s proposed standard 

defined a ‘‘substantiated’’ sexual abuse 

allegation as one supported by a 

preponderance of the evidence. The 

Department’s proposed standard allows 

the agency to define ‘‘substantiated’’ as 

being supported by a preponderance of 

the evidence or a lower evidentiary 

standard. 

Sections 115.73, 115.273, and 115.373 

address the agency’s duty to report to 

inmates, a topic that the Commission 

included as part of its IN–1 standard. 

Specifically, 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, it must request the 

relevant information from the 

investigating entity in order to inform 

the inmate. In addition, if an inmate has 

alleged 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 Department’s proposed 

standard does not apply to allegations 

that have been determined to be 

unfounded, and (as with the 

Commission’s recommendation) does 

not apply to lockups, due to the shortterm nature of lockup detention. 

The Commission’s recommended 

standard would require a facility to 

‘‘notif[y] victims and/or other 

complainants in writing of investigation 

outcomes and any disciplinary or 

criminal sanctions, regardless of the 

source of the allegation.’’ Several agency 

commenters expressed concern with the 

Commission’s proposal on security or 

privacy grounds. These commenters 

questioned the wisdom of providing 

written information to victims and 

third-party complainants, where such 

information could easily become widely 

known throughout the facility and 

possibly endanger other inmates or staff. 

In addition, commenters noted that 

privacy laws may restrict the 

dissemination of certain information 

about staff members. The Department 

believes that its proposed standard 

strikes the proper balance between staff 

members’ privacy rights and the 

inmate’s right to know the outcome of 

the investigation, while protecting the 

security of both inmates and staff. 

Discipline: Sections 115.76, 115.176, 

115.276, 115.376, 115.77, 115.177, 

115.277, and 115.377 (compare to the 

Commission’s DI standards). Like the 

Commission, the Department proposes 

two standards to ensure appropriate and 

proper discipline in relation to cases of 

sexual abuse. These standards are 

substantively similar to those offered by 

the Commission. 

Sections 115.76, 115.176, 115.276, 

and 115.376 (compare to the 

Commission’s DI–1 standard) govern 

disciplinary sanctions for staff members 

who violate sexual abuse or sexual 

harassment policies, regardless of 

whether they have been found 

criminally culpable. Imposing 

appropriate disciplinary sanctions 

against such staff members is critical not 

only to providing a just resolution to 

substantiated allegations of sexual abuse 

and sexual harassment but also to 

fostering a culture of zero tolerance for 

such acts. The sanction for sexually 

abusive conduct or penetration is 

presumed to be termination. 

Terminations for violating such policies, 

or resignations by staff who otherwise 

would have been terminated, must be 

reported to law enforcement agencies as 

well as to any relevant licensing bodies. 

However, the Department’s proposed 

standard limits the Commission’s 

recommendation by not requiring a 

report to law enforcement where the 

conduct was clearly not criminal. The 

proposed standard also adds the 

requirement—discussed but not 

mandated by the Commission, see 

Prison/Jail Standards at 47—that 

sanctions must be fair and proportional, 

taking into consideration the accused 

staff member’s actions, disciplinary 

history, and sanctions imposed on other 

staff members in similar situations. Yet 

at the same time, such sanctions must 

send a clear message that sexual abuse 

is not tolerated. 

Sections 115.77, 115.277, and 115.377 

(compare to the Commission’s DI–2 

standard) govern disciplinary sanctions 

for inmates who are found to have 

sexually abused another inmate. 

Holding inmates accountable for such 

abuse is an essential deterrent and a 

critical component of a zero-tolerance 

policy. As with sanctions against staff, 

sanctions against inmates must be fair 

and proportional, taking into 

consideration the inmate’s actions, 

disciplinary history, and sanctions 

imposed on other inmates in similar 

situations, and must send a clear 

message that sexual abuse is not 

tolerated. The disciplinary process must 

also take into account any mitigating 


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factors, such as mental illness or mental 

disability, and must consider whether to 

incorporate therapy, counseling, or 

other interventions that might help 

reduce recidivism. 

The Department’s proposed standard 

makes four changes to the Commission’s 

recommendation, each of which was 

suggested by commenters. First, the 

proposed standard does not require 

therapy, but rather requires that the 

facility consider whether to condition 

access to programming or other benefits 

on the inmate agreeing to participate in 

therapy. Second, the standard does not 

permit disciplining inmates for sexual 

contact with staff without a finding that 

the staff member did not consent to 

such contact. Although agencies must 

not tolerate sexual contact between 

inmates and staff, the power imbalance 

between staff and inmates requires that 

discipline fall on the staff member 

unless he or she did not consent to the 

activity. Otherwise, inmates may be 

reluctant to report sexual abuse by staff 

for fear that they will be disciplined. 

Third, the standard provides that 

inmates may not be punished for 

making good-faith allegations of sexual 

abuse, even if the allegation is not 

substantiated following an investigation. 

Fourth, the standard provides that an 

agency must not consider consensual 

sexual contact between inmates to 

constitute sexual abuse. This standard is 

not intended to limit an agency’s ability 

to prohibit such activity, but only to 

clarify that consensual sexual activity 

between inmates does not fall within 

the ambit of PREA. 

Lockups generally do not hold 

inmates for prolonged periods of time 

and thus do not impose discipline. As 

a result, § 115.177, like the 

Commission’s DI–2 standard for 

lockups, requires 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, it must inform the responsible 

investigating entity. The proposed 

standard also applies to any State entity 

or Department of Justice component that 

is responsible for sexual abuse 

investigations in lockups. 

Medical and Mental Health Care: 

Sections 115.81, 115.381, 115.82, 

115.182, 115.282, 115.382, 115.83, 

115.283, and 115.383 (compare to the 

Commission’s MM standards). Like the 

Commission, the Department has 

proposed three standards to ensure that 

inmates receive the appropriate medical 

and mental health care. Each proposed 

standard is substantially similar to that 

proposed by the Commission. 

Sections 115.81 and 115.381 (compare 

to the Commission’s MM–1 standard) 

requires that inmates be asked about any 

prior history of sexual victimization and 

abusiveness during their intake or 

classification screening. Although the 

proposed standards do not require 

inmates to answer these questions, 

inmates should be informed that 

disclosing prior sexual victimization 

and abuse is in their own best interest 

as such information is used both to 

determine whether follow-up care is 

needed and where the inmate can be 

safely placed within the facility. 

Some commenters suggested that the 

Commission’s recommended standard 

would be too costly because it would 

require that medical or mental health 

practitioners conduct these interviews. 

Unlike the Commission’s standard, the 

proposed standard does not specify who 

should conduct this inquiry, but instead 

requires the inmate be offered a followup with a medical or mental health 

practitioner within 14 days of the intake 

screening. Some commenters also 

suggested that the standard proposed by 

the Commission would impose a 

disproportional cost burden on smaller 

jails whose current staffs would not be 

able to meet its requirements. The 

proposed standard limits the inquiry 

required in jails by not requiring an 

inquiry about prior sexual abusiveness. 

Neither the Commission’s 

recommended standard nor the 

Department’s proposed standard applies 

to either lockups or community 

confinement facilities. The proposed 

standard is not appropriate for lockups 

given the relatively short time that they 

are responsible for inmate care. Nor is 

it appropriate for community 

confinement facilities, which do not 

undertake a similar intake/classification 

screening process. 

Sections 115.82, 115.182, 115.282, 

and 115.382 (compare to the 

Commission’s MM–2 standard) require 

that victims of sexual abuse receive free 

access to emergency medical treatment 

and crisis intervention services if they 

have been a victim of sexual abuse. 

Sections 115.83, 115.283, and 115.383 

(compare to the Commission’s MM–3 

standard) require that victims of sexual 

abuse receive access to ongoing medical 

and mental health care, and that abusers 

receive access to care as well. This 

proposed standard recognizes that 

victims of sexual abuse can experience 

a range of physical injuries and 

emotional reactions, even long after the 

abuse has occurred, that can require 

medical or mental health attention. 

Thus, this standard requires 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 requires that 

known inmate abusers receive a mental 

health evaluation within 60 days of 

learning the abuse has occurred. If 

specific mental health concerns have 

contributed to the abuse, treatment may 

improve facility security. 

Some commenters raised concerns 

about the cost of offering treatment to 

abusers, as opposed to treating only 

victims. The Department believes that 

the benefit of reducing future abuse by 

proven abusers justifies the additional 

cost, both in terms of future incidents 

avoided and an improved overall sense 

of safety within the facility. However, 

the proposed standard is not intended to 

require a specialized comprehensive sex 

offender treatment program, which as 

several commenters noted could impose 

a significant financial burden, and the 

Department believes that requiring 

agencies to offer reasonable treatment is 

justifiable in light of the anticipated 

costs and benefits. 

Question 27: Does the standard that 

requires known inmate abusers to 

receive a mental health evaluation 

within 60 days of learning the abuse has 

occurred provide adequate guidance 

regarding the scope of treatment that 

subsequently must be offered to such 

abusers? If not, how should it be 

revised? 

In addition, with respect to victims, 

this category of standards includes two 

recommendations from the discussion 

section that accompanied the 

Commission’s MM–3 standard: where 

relevant, agencies must provide timely 

information of and access to all 

pregnancy-related medical services that 

are lawful in the community, and must 

provide pregnancy tests. See Prison/Jail 

Standards at 52. The Department also 

proposes to require the provision of 

timely information about and access to 

sexually transmitted infections 

prophylaxis where appropriate. 

Data Collection and Review: Section 

115.86, 115.186, 115.286, 115.386, 

115.87, 115.187, 115.287, 115.387, 

115.88, 115.188, 115.288, 115.388, 

115.89, 115.189, 115.289, and 115.389 

(compare to the Commission’s DC 

standards). Like the Commission, the 

Department has proposed four standards 

addressing how facilities should collect 

and review data to identify those 

policies and practices that are 

contributing to or failing to prevent 

sexual abuse and sexual harassment. 

Each of the proposed standards in the 

DC category is substantially similar to 

that proposed by the Commission. 

Sections 115.86, 115.186, 115.286, 

and 115.386 (compare to the 

Commission’s DC–1 standard) set forth 


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the requirements for sexual abuse 

incident reviews, including when 

reviews should take place and who 

should take part. The sexual abuse 

review is separate from the sexual abuse 

investigation, and is intended to 

evaluate whether the facility’s policies 

and procedures need to be changed in 

light of the incident or allegation. By 

contrast, the investigation is intended to 

determine whether the abuse actually 

happened. A review should occur after 

every investigation, unless the 

investigation deems the allegation 

unfounded, and should consider (1) 

whether changes in policy or practice 

are needed to better prevent, detect, or 

respond to sexual abuse incidents like 

the one that occurred, (2) whether race, 

ethnicity, sexual orientation, gang 

affiliation or group dynamics in the 

facility played a role in the incident or 

allegation, (3) whether physical barriers 

in the facility itself contributed to the 

incident or allegation, (4) whether 

staffing levels need to be changed in 

light of the incident or allegation, and 

(5) whether more video monitoring is 

needed. 

The Commission’s proposed standard 

did not include sexual orientation in its 

list of issues to be considered what the 

review team should consider. Some 

commenters expressed the view that 

determining whether abuse is motivated 

by sexual orientation is just as 

important to an incident review as 

determining whether it was motivated 

by race. The proposed standard directs 

the review team to consider whether 

sexual orientation motivated or caused 

the incident or allegation. 

Some commenters raised concerns 

about the cost of conducting sexual 

abuse incident reviews. There are, 

however, facilities that already do these 

reviews, and the Department believes 

that the required steps need not be 

onerous. The purpose of this 

requirement is not to require a 

duplicative investigation but rather to 

require the facility to pause and 

consider what lessons, if any, it can 

learn from the investigation it has 

conducted. 

Sections 115.87, 115.187, 115.287, 

and 115.387 (compare to the 

Commission’s DC–2 standard) specify 

the incident-based data each agency is 

required to collect in order to detect 

possible patterns and help prevent 

future incidents. Under this standard, 

the agency is required to collect data 

needed to completely answer all 

questions included in BJS’s Survey on 

Sexual Violence. The Department has 

added a requirement that an agency 

must provide the Department with this 

data upon request. 

Sections 115.88, 115.188, 115.288, 

and 115.388 (compare to the 

Commission’s DC–3 standard) describe 

how the collected data should be 

analyzed and reported. The proposed 

standard mandates that agencies use the 

data to identify problem areas, take 

ongoing corrective action, and prepare 

an annual report for each facility as well 

as the agency as a whole, including a 

comparison with data from previous 

years. The report must be made public 

through the agency’s Web site or other 

means to help promote agency 

accountability. The Department 

cautions, however, that an increase in 

reported incidents may reflect 

improvements in a facility’s policies 

regarding reporting and investigation, 

rather than an actual increase in sexual 

abuse at the facility. 

Sections 115.89, 115.189, 115.289, 

and 115.389 (compare to the 

Commission’s DC–4 standard) provide 

guidance on how to store, publish, and 

retain the data. Data must be stored in 

a way that protects its integrity and 

must be retained for an adequate length 

of time, i.e., at least 10 years. In 

addition, data must protect the 

confidentiality of victims and alleged 

perpetrators. This standard also requires 

that the agency make its aggregated data 

publicly available either through its 

Web site or other means. 

Audits: Sections 115.93, 115.193, 

115.293, and 115.393 (compare to the 

Commission’s AU–1 standard). Like the 

Commission, the Department believes 

that independent audits are critical to 

ensuring that facilities are doing all they 

can to eliminate prison rape. The 

Commission’s proposed standard would 

require triennial audits of all facilities 

by independent auditors ‘‘prequalified’’ 

by the Department. The Commission 

explained its inclusion of this standard 

as follows: 

Publicly available audits allow agencies, 

legislative bodies, and the public to learn 

whether facilities are complying with the 

PREA standards. Audits can also be a 

resource for the Attorney General in 

determining whether States are meeting their 

statutory responsibilities. Public audits help 

focus an agency’s efforts and can serve as the 

basis upon which an agency can formulate a 

plan to correct any identified deficiencies. 

Prison/Jail Standards at 57. 

Numerous agency commenters 

criticized the Commission’s proposals 

on various grounds, including cost, 

duplication of audits performed by 

accrediting organizations, duplication of 

existing State oversight, and the 

possibility that disagreements in 

interpretation could lead to 

inconsistencies in auditing. Other 

commenters endorsed the Commission’s 

proposal as necessary to ensure proper 

oversight; some commenters suggested 

that audits should be more frequent 

than once every three years. 

The Department believes that 

independent audits can play a key role 

in implementation of PREA, especially 

given the fact that only States, but not 

localities or Federal entities, are subject 

to financial penalties for 

noncompliance. Audits, however, can 

be time-consuming and resourceintensive. Particularly as agencies come 

into compliance with the substantive 

standards, routine audits may not 

contribute to improving agency 

performance to a degree that warrants 

the time and resources committed to 

them. The Department believes that 

further discussion is necessary in order 

to determine how frequently, and on 

what basis, such audits should be 

conducted. Accordingly, the proposed 

standard does not specify the frequency 

of audits. 

The Department has identified three 

possible approaches to the frequency of 

audits, and specifically invites comment 

on these as well as any other options 

commenters may wish to propose. 

One possible approach is to adopt the 

Commission’s proposal of triennial 

audits for all covered facilities, possibly 

with a modification lowering or 

eliminating the burden on lockups, the 

smallest facilities covered by PREA. A 

second approach is to adopt a system of 

random sampling of facilities. Because 

no facility would know in advance 

whether it would be audited, all 

facilities would have an incentive to be 

in compliance. A third approach is to 

implement an auditing system based on 

information indicating concerns at a 

particular facility. Audits could be 

triggered when information was 

received providing reason to believe 

that a particular facility is significantly 

out of compliance with the standards. 

Such a trigger could be based upon 

facility-provided data, third-party 

complaints, or any other source of 

credible information. 

The proposed audit standard clarifies 

the requirements for an audit to be 

considered independent. If the agency 

uses an outside auditor, it must ensure 

that it does 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 specifies 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 


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proposed standard allows 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 Department 

believes that allowing these entities to 

perform audits would ensure auditor 

independence while at the same time 

allowing the use of existing resources 

where available in order to reduce costs 

and duplication of effort. 

The proposed standard further states 

that the Department will prescribe 

methods governing the conduct of such 

audits, including provisions for 

reasonable inspections of facilities, 

review of documents, and interviews of 

staff and inmates, as well as the 

minimal qualifications for auditors. 

Although the Commission’s proposal 

would mandate that the agency provide 

access to facilities, documents, and 

personnel ‘‘as deemed appropriate by 

the auditor,’’ the Department believes 

that it would be prudent to set general 

ground rules in order to ensure that 

auditors are provided sufficient access 

without agencies incurring excessive or 

unpredictable expenditures or 

commitment of personnel. 

Question 28: Should audits be 

conducted at set intervals, or should 

audits 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? If the latter, how should 

such a for-cause determination be 

structured? 

Question 29: If audits are conducted 

for cause, what entity should be 

authorized to determine that there is 

reason to believe an audit is 

appropriate, and then to call for an 

audit to be conducted? What would be 

the appropriate standard to trigger such 

an audit requirement? 

Question 30: Should all facilities be 

audited or should random sampling be 

allowed for some or all categories of 

facilities in order to reduce burdens 

while ensuring that all facilities could 

be subject to an audit? 

Question 31: Is there a better 

approach to audits other than the 

approaches discussed above? 

Question 32: To what extent, if any, 

should agencies be able to combine a 

PREA audit with an audit performed by 

an accrediting body or with other types 

of audits? 

Question 33: To what extent, if any, 

should the wording of any of the 

substantive standards be revised in 

order to facilitate a determination of 

whether a jurisdiction is in compliance 

with that standard? 

State Certification and Definition of 

‘‘Full Compliance.’’ PREA mandates that 

any amount that a State would 

otherwise receive for prison purposes 

from the Department in a given fiscal 

year shall be reduced by five percent 

unless the chief executive of the State 

certifies either that the State is in ‘‘full 

compliance’’ with the standards or 

assures that not less than five percent of 

such amount shall be used ‘‘only for the 

purpose of enabling the State to adopt, 

and achieve full compliance with’’ the 

standards ‘‘so as to ensure that a 

certification * * * may be submitted in 

future years.’’ 42 U.S.C. 15607(c)(2). 

This requirement goes into effect for the 

second fiscal year beginning after the 

date on which the national standards 

are finalized. See 42 U.S.C. 

15607(c)(7)(A). 

The Department solicits comments on 

the proper construction of the term ‘‘full 

compliance,’’ keeping in mind 

Congress’s view that States would be 

able to—and should be encouraged to— 

achieve full compliance. One possibility 

is to define ‘‘full compliance’’ as 

adoption of and compliance with each 

and every standard, but to provide that 

de minimis failures to comply with a 

standard will not throw a State out of 

compliance. In other words, a State 

would be required to adopt and 

implement every applicable standard, 

but would not be held to a requirement 

of perfection in order to be considered 

in full compliance. The Department is 

interested both in suggestions for how to 

define full compliance and how an 

assessment would be made as to 

whether a State is in full compliance. In 

crafting such a definition, the 

Department aims to ensure that full 

compliance is actually attainable for 

States and that States receive sufficient 

and timely guidance on how the term is 

to be interpreted. 

Question 34: How should ‘‘full 

compliance’’ be defined in keeping with 

the considerations set forth in the above 

discussion? 

Question 35: To what extent, if any, 

should audits bear on determining 

whether a State is in full compliance 

with PREA? 

Other Executive Departments. With 

respect to Federal entities, the proposed 

rule would not apply beyond certain 

Department of Justice components. The 

Department has interpreted PREA to 

authorize and require the Attorney 

General to make the national standards 

binding only on the Bureau of Prisons, 

which houses criminal inmates. NonPREA authorities authorize the Attorney 

General to make the standards binding 

on other Department facilities housing 

criminal inmates, such as U.S. Marshals 

Service facilities, and to make those 

standards that are relevant to the 

conduct of investigations binding on 

Department components that are 

responsible for investigation allegations 

of sexual abuse in confinement settings. 

See, e.g., 28 U.S.C. 503, 509, 561–566; 

18 U.S.C. 4001(b). Thus, while the 

proposed standards may be considered 

and adopted, as appropriate, by other 

Federal agencies housing detainees and 

inmates, the proposed rule makes the 

standards binding only on Department 

facilities. 

Supplemental Immigration 

Standards. The Department does not 

propose including the set of 

supplemental standards that the 

Commission recommended to govern 

facilities that house immigration 

detainees. As the Commission noted in 

its final report, immigration detainees 

are sometimes detained in local or State 

facilities or in facilities operated by the 

Federal Bureau of Prisons. The 

Commission’s ID–6 standard would 

mandate that immigration detainees be 

housed separately. Several commenters 

expressed concern that this would 

impose a significant burden on jails and 

prisons. The Department has similar 

concerns about the Commission’s other 

proposed supplemental standards, such 

as imposing separate training 

requirements, requiring agencies to 

attempt to enter into separate 

memoranda of understanding with 

immigration-specific community service 

providers, and requiring the provision 

of access to telephones with free, 

preprogrammed numbers to specified 

Department of Homeland Security 

offices. The Department expects that its 

proposed general training requirements, 

along with the general requirements to 

make efforts to work with outside 

government entities and community 

service providers, will serve to protect 

immigration detainees along with the 

general inmate population. In addition, 

the Department has included in 

§§ 115.41 and 115.241 a requirement 

that screenings for risk of victimization 

include a consideration of whether the 

inmate is detained solely on civil 

immigration charges. Furthermore, the 

Department notes that ICE has 

published Performance Based National 

Detention Standards for the civil 

detention of aliens pending removal 

from the United States by ICE detention 

facilities, Contract Detention Facilities, 

and State or local government facilities 

used by ICE through Intergovernmental 

Service Agreements to hold detainees 

for more than 72 hours, and that one 

standard specifically addresses Sexual 

Abuse and Assault Prevention and 

Intervention. See http://www.ice.gov/

detention-standards/2008/ and http://


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www.ice.gov/doclib/dro/detentionstandards/pdf/sexual_abuse_and_

assault_prevention_and_

intervention.pdf. 

Additional Suggested Standard. 

Several commenters suggested that the 

Department should propose an 

additional standard to govern the 

placement and treatment of juveniles in 

adult facilities. A number of advocacy 

groups proposed a full ban on placing 

persons under the age of 18 in adult 

facilities where contact would occur 

with incarcerated adults. 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., which provides formula grants 

to States on the condition that States 

comply with certain requirements 

intended to, among other things, protect 

juveniles from harm by, subject to 

certain exceptions, deinstitutionalizing 

status offenders, separating juveniles 

from adults 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. The JJDPA’s 

implementing regulations limit its 

application to youths who are tried in 

juvenile courts, but some commenters 

suggested that the Department should 

propose a standard that includes youth 

under adult criminal court jurisdiction. 

The Department’s proposed standards 

do not include a standard on this topic. 

However, the Department solicits 

comments on whether the final rule 

should include such a standard. 

Question 36: Should the final rule 

include a standard that governs the 

placement of juveniles in adult 

facilities? 

Question 37: If so, what should the 

standard require, and how should it 

interact with the current JJDPA 

requirements and penalties mentioned 

above? 

V. Regulatory Certifications 

Executive Order 12866—Regulatory 

Planning and Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’ section 1(b), Principles of 

Regulation. The Department of Justice 

has determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review, and 

accordingly this rule has been reviewed 

by the Office of Management and 

Budget. Please see the Initial Regulatory 

Impact Analysis, summarized below, for 

a discussion of the costs and benefits of 

this rule. 

Executive Order 13132—Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. This rule merely 

proposes regulations to implement 

PREA by establishing national standards 

for the detection, prevention, reduction, 

and punishment of prison rape. Further, 

PREA prohibits the Department from 

establishing national standards that 

would impose substantial additional 

costs compared to the costs presently 

expended by Federal, State and local 

prison authorities. 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. 

Therefore, in accordance with Executive 

Order 13132, it is determined that this 

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 rule, the 

Department’s PREA Working Group 

consulted with representatives of State 

and local prisons and jails, juvenile 

facilities, community corrections 

programs and lockups—among other 

individuals and groups—during the 

listening sessions the Working Group 

conducted in January and February 

2010. The Department also solicited and 

received input from public entities in its 

ANPRM. 

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 PREA regulations 

and, as is more fully described in the 

Initial Regulatory Impact Analysis, 

believes these regulations will likely 

result in an aggregate expenditure by 

State and local governments of 

approximately $213 million in startup 

expenses and $544 million in annual 

ongoing expenses. 

However, the Department believes the 

requirements of the UMRA do not apply 

to the PREA regulations because UMRA 

excludes from its definition of ‘‘Federal 

intergovernmental 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 five 

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 five 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. 

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 January and 

February 2010. Further, the Department 

also solicited and received input from 

public entities in its ANPRM. 

For the foregoing reasons, 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 discussed at greater 

length elsewhere in this rulemaking 

which 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 below in the Regulatory 

Flexibility Act section; 

• The Department does not believe 

that these national standards will have 

an effect on the national economy, such 

as an effect on productivity, economic 

growth, full employment, creation of 

productive jobs, or international 

competitiveness of United States goods 

and services; 

• The Department consulted with 

State and local governments during the 

listening sessions the Working Group 

conducted in January and February 


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2010. Further, the Department also 

solicited and received input from public 

entities in its ANPRM. The Department 

received numerous comments on its 

ANPRM from State and local entities, 

the vast majority of which focused on 

the potential costs associated with 

certain of the Commission’s 

recommended standards. Standards of 

particular cost concern included the 

cross-gender pat-down prohibition, the 

auditing standard, and 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 proposed standards 

include various revisions to the 

Commission’s recommendations in an 

attempt to address this issue. 

• Before it issues final regulations 

implementing national standards 

pursuant to PREA the Department will: 

(1) Provide notice of these requirements 

to potentially affected small 

governments, which it has done by 

publishing the ANPRM, by the 

publishing of this Notice of proposed 

rulemaking, by the listening sessions it 

has conducted, and by other activities; 

(2) enable officials of affected small 

governments to provide meaningful and 

timely input, via the methods listed 

above; and (3) work to inform, educate, 

and advise small governments on 

compliance with the requirements. 

• As discussed above in the Initial 

Regulatory Impact Assessment 

summarized below, the Department has 

identified and considered a reasonable 

number of regulatory alternatives and 

from those alternatives has attempted to 

select the least costly, most costeffective, or least burdensome 

alternative that achieves the objectives 

of PREA. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This 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. This rule 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 

companies to compete with foreignbased companies in domestic and 

export markets. 

Regulatory Flexibility Act 

The Department of Justice drafted this 

proposed rule so as to minimize its 

impact on small entities, in accordance 

with the Regulatory Flexibility Act 

(RFA), 5 U.S.C. 601–612, while meeting 

its intended objectives. Based on 

presently available information, the 

Department is unable to state with 

certainty that the proposed rule, if 

promulgated as a final rule, would not 

have any effect on small entities of the 

type described in 5 U.S.C. 601(3). 

Accordingly, the Department has 

prepared an Initial Regulatory Impact 

Analysis (IRIA) in accordance with 5 

U.S.C. 604. A summary of the IRIA 

appears below; the complete IRIA is 

available for public review at http://

www.ojp.usdoj.gov/programs/pdfs/

prea_nprm_iria.pdf. Following the 

summary, the Department lists a set of 

questions upon which it specifically 

solicits public comment. However, the 

Department welcomes information and 

feedback concerning any and all of the 

assumptions, estimates, and conclusions 

presented in the IRIA. 

In PREA, Congress directed the 

Attorney General to promulgate national 

standards for the detection, prevention, 

reduction, and punishment of prison 

rape. In doing so, Congress understood 

that such standards were likely to 

require Federal, State, and local 

agencies (as well as private entities) that 

operate inmate confinement facilities to 

incur costs in implementing the 

standards. Given the statute’s aspiration 

to eliminate prison rape in the United 

States, Congress expected that some 

level of compliance costs would be 

appropriate and necessary. 

Nevertheless, Congress imposed a 

limit on the cost of the standards. 

Specifically, Congress instructed the 

Attorney General not to adopt 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). This 

statutory mandate requires that the 

Department evaluate costs and benefits 

before promulgating national standards. 

Moreover, separate and apart from 

what PREA itself requires, the 

Department is required by both the RFA 

and Executive Order 12866, Regulatory 

Planning and Review, as amended 

without substantial change by Executive 

Order 13258, to conduct an IRIA to 

assess the benefits and costs of its 

proposed rule. An IRIA must include an 

assessment of both the quantitative and 

qualitative benefits and costs of the 

proposed regulation, as well as a 

discussion of potentially effective and 

reasonably feasible alternatives, in order 

to inform stakeholders in the regulatory 

process of the effects of the proposed 

rule. 

Some stakeholders may question 

whether economic analysis is even 

relevant to the implementation of a civil 

rights statute. Under this view, because 

PREA aims to protect the Eighth 

Amendment rights of incarcerated 

persons, regulations designed to 

implement its protections are necessary 

regardless of whether benefits can be 

shown to outweigh costs. Furthermore, 

some might argue, many expected 

benefits—including protecting the 

constitutional and dignitary rights of 

inmates—may defy ready identification 

and quantification, making a monetized 

benefit-cost analysis an unfair 

comparison. 

The Department is sympathetic to 

these views. The destructive, 

reprehensible, and illegal nature of rape 

and sexual abuse in any setting, and its 

especially pernicious effects in the 

correctional environment, warrant the 

adoption of strong and clear measures. 

However, as noted above, PREA 

mandates that the Attorney General 

remain conscious of costs in 

promulgating national standards. 

Moreover, the statutes that require 

agencies to express the benefits and 

costs of regulations in economic terms 

do not distinguish between regulations 

that implement civil rights statutes and 

regulations that implement other laws. 

The Department also believes that 

presenting a comprehensive assessment 

of the benefits and costs of its proposed 

standards, described in both 

quantitative and qualitative terms, will 

promote greater understanding of PREA 

and may facilitate compliance with the 

standards. 

A summary of the major conclusions 

of the IRIA is set forth below. However, 

the Department encourages review of 

the complete IRIA in order to assess the 

Department’s assumptions, calculations, 

and conclusions. 

The IRIA begins by estimating the 

prevalence of sexual abuse in prisons— 

i.e., the number of persons who 

experience it each year. Next, the IRIA 

calculates the cost of specific types of 

victimization, and therefore the benefit 

that will accrue from reducing such 

incidents. The IRIA then calculates the 

anticipated costs of the Department’s 

proposed standards. Finally, the IRIA 

calculates how much of a reduction in 

prison rape would be necessary in order 

for the benefits of the proposed 

standards to outweigh the costs. 

Prevalence. Table 1 sets forth the 

estimate of the baseline prevalence of 

prison rape for benefit-cost analysis 


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6See 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). 

7See, 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., Costs of Sexual Violence in Minnesota (Minn. 

Dep’t Health 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). 

purposes, divided into four different 

event types (rape involving force, 

nonconsensual sexual acts involving 

pressure, abusive sexual contacts, and 

willing sex with staff) in three different 

confinement settings (adult prisons, 

adult jails, and juvenile facilities). (The 

Department is not aware of reliable data 

as to the prevalence of rape and sexual 

abuse in lockup and community 

confinement settings.) For each event 

type, the total number of individuals 

who were victimized during 2008 is 

estimated, using figures compiled from 

inmate surveys by BJS,6 as adjusted to 

account for the flow of inmates over that 

period of time. Inmates who 

experienced more than one type of 

victimization during the period are 

included in the figures for the most 

serious type of victimization they 

reported. 

TABLE 1—BASELINE PREVALENCE OF PRISON RAPE AND SEXUAL ABUSE BY TYPE OF INCIDENT AND TYPE OF FACILITY, 

2008 

Adult prisons Adult jails Juvenile facilities 

Rape involving force/threat of force ................................................................................ 26,200 39,200 4,400 

Nonconsensual sexual acts involving pressure/coercion ................................................ 18,400 14,800 2,900 

Abusive sexual contacts .................................................................................................. 19,000 23,000 3,000 

Willing sex with staff ........................................................................................................ 27,800 31,100 6,800 

Total .......................................................................................................................... 91,400 108,100 17,100 

Benefits. Table 2 sets forth a range of 

costs associated with one incident of 

each type of victimization in each of the 

three settings. These costs are also 

known as ‘‘unit avoidance benefits’’— 

that is, the benefits that will accrue from 

avoiding one incident that otherwise 

would occur. These values have been 

derived from general literature assessing 

the cost of rape,7 with adjustments 

made to account for the unique 

characteristics of rape in the prison 

setting. The values are presented as a 

range. The lower bound is calculated 

using the ‘‘victim compensation model,’’ 

which aims to identify the costs of 

sexual abuse to the victim, both tangible 

(such as medical and mental health 

care) and intangible (such as pain and 

suffering). The upper bound is 

calculated using the ‘‘contingent 

valuation model,’’ which assesses how 

much the public would be willing to 

pay to avoid an incident of sexual 

abuse. 

TABLE 2—RANGE OF UNIT AVOIDANCE BENEFITS BY TYPE OF VICTIM AND TYPE OF FACILITY, IN 2010 DOLLARS

Adult prisons Adult jails Juvenile facilities 

Rape involving force/threat of force ................................................................................... $200,000 to $300,000 $275,000 to $400,000. 

Sexual assault involving pressure/coercion ....................................................................... $40,000 to $60,000 $55,000 to $80,000. 

Abusive sexual contacts ..................................................................................................... $375 $500. 

Willing sex with staff ........................................................................................................... $375 $55,000 to $80,000. 

Table 3 sets forth the total monetary 

benefit of a 1% reduction from the 

baseline in the average annual 

prevalence of prison rape, which is 

calculated by multiplying the unit 

avoidance benefit by 1% of the total 

number of incidents for each category. 

TABLE 3—TOTAL MONETARY BENEFIT OF A 1% REDUCTION FROM THE BASELINE IN THE AVERAGE ANNUAL PREVALENCE

OF PRISON RAPE AND SEXUAL ABUSE IN THOUSANDS OF 2010 DOLLARS

Adult prisons Adult jails Juvenile facilities Total 

Rape involving injury/force/threat of force ..... $52,400 to $78,600 .... $78,400 to $117,600 .. $9,636 to $17,600 ...... $140,436 to $213,800. 

Nonconsensual sexual acts involving pressure/coercion.$7,360 to $11,040 ...... $5,920 to $8,880 ........ $1,276 to $2,320 ........ $14,556 to $22,240. 

Abusive sexual contacts ................................ $71 ............................. $86 ............................. $12 ............................. $169. 

Willing sex with staff ...................................... $104 ........................... $117 ........................... $1,496 to $2,720 ........ $1,555 to $2,779. 

Total (Rounded) ...................................... $60,000–$90,000 ....... $84,500 to $126,500 .. $12,500 to $22,500 .... $157,000 to $239,000. 

As noted in the bottom right cell in 

Table 3, the total monetary benefit of a 

1% reduction in the prevalence of 

prison rape and sexual abuse is between 

$157 and $239 million. 

However, these calculations do not 

include the substantial nonmonetary 

benefits associated with reducing the 

prevalence of prison rape and sexual 

abuse. As Executive Order 12866 

instructs, a proper understanding of 

costs and benefits must ‘‘include both 

quantifiable measures (to the fullest 

extent that these can be usefully 

estimated) and qualitative measures of 


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8As noted above, the Department is not aware of 

reliable data regarding the prevalence of sexual 

abuse in lockups and community confinement facilities. The IRIA accordingly classifies these as 

non-quantifiable benefits. See IRIA at 14–15, 27. 

costs and benefits that are difficult to 

quantify, but nevertheless essential to 

consider.’’ Sec. 1(a), E.O. 12866. 

Non-quantifiable benefits from 

reducing sexual abuse accrue to the 

victims themselves, to inmates who are 

not victims, to prison administrators 

and staff, to families of victims, and to 

society at large. For example, the PREA 

standards will yield non-quantifiable 

benefits to victims even with regard to 

abuse that the standards do not prevent. 

Implementation of the standards will 

enhance the mental well-being of 

victims by ensuring that they receive 

adequate treatment after an incident, 

which in turn will enhance their ability 

to integrate into the community and 

maintain stable employment upon their 

release from prison. Moreover, the 

standards will reduce the risk of retraumatization associated with evidence 

collection, investigation, and any 

subsequent legal proceedings that take 

place in connection with sexual abuse 

and its prosecution. Victims will also 

benefit from the increased likelihood 

that their perpetrators will be held 

accountable for their crimes. A broader 

range of non-quantifiable benefits for 

inmates, staff, and others is discussed in 

the complete IRIA.8

Costs. The IRIA contains a 

preliminary assessment of the 

anticipated compliance costs associated 

with the Department’s proposed 

standards. The primary source for this 

assessment is study conducted by Booz 

Allen Hamilton, a consulting firm with 

which the Department contracted to 

develop a preliminary cost analysis of 

the Commission’s recommended 

standards. The IRIA adjusts this cost 

analysis to estimate the compliance 

costs of the Department’s proposed 

standards, rather than the Commission’s 

recommendations. Other sources 

include assessments by the Federal 

Bureau of Prisons (BOP) and the United 

States Marshals Service (USMS) of their 

expected implementation costs as well 

as comments submitted in response to 

the ANPRM. 

The IRIA estimates the cost of 

implementing each of the proposed 

standards, assuming that the first full 

year for which the standards will be 

applicable is 2012, with all startup 

expenses assigned to that year. 

Subsequent compliance costs are 

assigned in present value terms (using 

both a 3% and a 7% discount rate), for 

2013 through 2026. Where possible, 

costs are differentiated based on facility 

type: prisons, jails, juvenile facilities, 

community confinement facilities, and 

lockups. The IRIA assumes that the 

Department’s standards will apply to, 

and will be adopted and implemented 

by: 1,668 prisons; 3,365 jails; 2,810 

juvenile facilities; lockups operated by 

at least 4,469 different agencies; and 

approximately 530 community 

confinement facilities. See BJS, 2005 

Census of State and Federal 

Correctional Facilities; 2006 Census of 

Jail Facilities; and 2008 Juvenile 

Residential Facility Census 

(unpublished; on file with BJS). 

Table 4 sets forth in summary fashion 

the anticipated costs of compliance on 

a startup, ongoing, and total (15-year) 

basis. No adjustment is made in the outyears for inflation or for anticipated cost 

savings due to innovation—that is, costs 

are assumed to be constant in nominal 

terms over the course of the 15-year 

period. 

TABLE 4—TOTAL EXPECTED COMPLIANCE COSTS, 2012–2026 BY FACILITY TYPE, IN THOUSANDS OF DOLLARS

Startup Ongoing 

Total 2012–2026 

3% discount rate 

(present value) 

Total 2012–2026 

7% discount rate 

(present value) 

Prisons ............................................................................................. $26,304 $56,407 $411,494 $249,035 

Jails .................................................................................................. 117,742 356,618 2,745,729 1,762,524 

Juvenile Facilities ............................................................................. 24,087 78,497 602,546 386,128 

Community Confinement ................................................................. 300 2,358 17,680 11,177 

Lockups ............................................................................................ 44,913 50,583 417,672 278,212 

Total .......................................................................................... 213,346 544,463 4,195,121 2,687,076 

Thus, the Department currently 

projects that compliance costs for the 

proposed standards will be 

approximately $213 million in the first 

(startup) year, followed by an average 

cost of approximately $544 million per 

year subsequently. Table 5 compares the 

projected nationwide upfront and 

ongoing costs of the Commission’s 

recommendations to the Department’s 

proposed standards. The Commission’s 

recommended standards would cost an 

estimated $6.5 billion in upfront costs 

plus $5.3 billion in annual costs. As 

noted in Table 5, the Department’s 

proposed standards, depending upon 

the type of facility, would require an 

estimated 31% to 99% less in upfront 

costs than the Commission’s 

recommended standards and 44% to 

99% less in ongoing costs. 

TABLE 5—COMPARISON OF PROJECTED NATIONWIDE UPFRONT AND ONGOING COSTS COMMISSION RECOMMENDATIONS

VERSUS DEPARTMENT PROPOSED STANDARDS IN THOUSANDS OF DOLLARS

Upfront costs Ongoing costs 

Commission DOJ Difference 

(percent) Commission DOJ Difference (percent) 

Prisons ..................................................... $2,778,770 $26,304 99.05 $733,166 $56,407 92.31 

Jails .......................................................... 3,151,806 117,742 96.26 1,955,154 356,618 81.76 

Juvenile .................................................... 475,562 24,087 94.94 139,417 78,497 43.70 

Comm. Conf ............................................. 20,944 300 98.57 233,735 2,358 98.99 

Lockups .................................................... 65,093 44,913 31.00 2,240,096 50,583 97.74 


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9These figures differ slightly from those depicted 

in Tables 7 and 8, which include only the $491.5 

million in annual ongoing costs attributable to 

prisons, jails, and juvenile facilities, as opposed to 

the $544 million in total annual ongoing costs 

attributable to all five categories (i.e., adding 

lockups and community confinement facilities). As 

noted in the preceding footnote, the IRIA does not 

quantify the benefits that will result from reducing 

sexual abuse in lockups and community 

confinement facilities. For this reason, these figures 

are somewhat conservative because they 

incorporate the costs, but not the benefits, of 

reducing sexual abuse in lockups and community 

confinement facilities. 

TABLE 5—COMPARISON OF PROJECTED NATIONWIDE UPFRONT AND ONGOING COSTS COMMISSION RECOMMENDATIONS

VERSUS DEPARTMENT PROPOSED STANDARDS IN THOUSANDS OF DOLLARS—Continued 

Upfront costs Ongoing costs 

Commission DOJ Difference 

(percent) Commission DOJ Difference (percent) 

Total .................................................. 6,492,175 213,346 96.71 5,301,568 544,463 89.73 

Table 6 depicts the expected upfront 

and ongoing compliance costs 

associated with the Department’s 

proposed standards on a per-facility and 

per-inmate basis for the different facility 

types. 

TABLE 6—EXPECTED UPFRONT AND

ONGOING COMPLIANCE COSTS, NATIONWIDE, PER FACILITY AND PER INMATE

Upfront Ongoing 

Prisons, per Facility ...... $15,770 $33,817 

Prisons, Per Inmate ...... 16.48 35.35 

Jails, Per Facility .......... 34,990 105,978 

Jails, Per Inmate ........... 96.00 292.00 

Juvenile, per Facility ..... 8,572 27,935 

Juvenile, per Resident .. 227.00 741.00 

Comm. Conf., per Person ............................ 5.36 42.12 

Lockups, per Facility ..... 9,843 11,086 

Next, to evaluate whether the costs of 

the proposed PREA standards are 

justified in light of their anticipated 

benefits, the IRIA conducts a break-even 

analysis to determine how much the 

standards would need to reduce prison 

rape in order for benefits to exceed 

costs, and to assess whether it is 

reasonable to assume that the standards 

will in fact be as effective as needed for 

this to occur. 

As elaborated in Tables 7 and 8, given 

that the proposed PREA standards are 

expected to cost the correctional 

community approximately $213 million 

in startup costs, and that the monetary 

benefit of a 1% reduction in the baseline 

prevalence of prison rape is worth 

between $157 million and $239 million, 

the startup costs would be offset in the 

very first year of implementation, even 

without regard to the value of the 

nonmonetary benefits, if the standards 

achieved reductions of between 0.9 and 

1.4 percent. The breakeven point would 

be even lower if the analysis amortized 

startup costs over the entire 15 years. 

Moreover, because the annual ongoing 

costs of full compliance are estimated to 

be no more than $544 million beginning 

in 2013, the proposed standards would 

have to yield approximately a 2.3–3.5% 

reduction from the baseline in the 

average annual prevalence of prison 

rape for the ongoing costs and the 

monetized benefits to breakeven, 

without regard to the value of the 

nonmonetary benefits.9

TABLE 7—BREAKEVEN ANALYSIS USING LOWER-BOUND ASSUMPTIONS OF BENEFIT VALUE BY FACILITY TYPE, IN

THOUSANDS OF DOLLARS

Value of 1% 

reduction Upfront costs Breakeven percentage Ongoing costs Breakeven percentage 

Prisons ................................................................................. $60,000 $26,304 0.44 $56,407 0.94 

Jails ...................................................................................... 84,500 117,742 1.39 356,618 4.22 

Juvenile ................................................................................ 12,500 24,087 1.93 78,497 6.28 

Total .............................................................................. 157,000 168,133 1.07 491,522 3.13 

TABLE 8—BREAKEVEN ANALYSIS USING UPPER-BOUND ASSUMPTIONS OF BENEFIT VALUE BY FACILITY TYPE IN

THOUSANDS OF DOLLARS

Value of 1% 

reduction Upfront costs Breakeven percentage Ongoing costs Breakeven percentage 

Prisons ................................................................................. $90,000 $26,304 0.29 $56,407 0.63 

Jails ...................................................................................... 126,500 117,742 0.93 356,618 2.82 

Juvenile ................................................................................ 22,500 24,087 1.07 78,497 3.49 

Total .............................................................................. 239,000 168,133 0.70 491,522 2.06 

As these tables make clear, even 

without reference to the nonmonetary 

benefits of avoiding prison rape and 

sexual abuse (which are numerous, and 

of considerable importance) the 

Department’s proposed standards need 

only be modestly effective in order for 

the monetized benefits to offset the 

anticipated compliance costs, both as a 

whole and with respect to each facility 

type to which they apply. With respect 

to prisons, a mere 0.63%–0.94% 

decrease from the baseline in the 

average annual prevalence of prison 

rape and sexual abuse would result in 


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10See Cohen et al., supra note 7, at 89, 91. 

Professor Cohen’s study was supported by a grant 

from the National Institute of Justice, a unit of the 

Department of Justice. 

the monetized benefits of the standards 

breaking even with their ongoing costs. 

Such a decrease from the baseline 

would mean an average of 165–246 

fewer forcible rapes per year, 116–173 

fewer nonconsensual sexual acts 

involving pressure or coercion, 120–179 

fewer abusive sexual contacts, and 175– 

261 fewer incidents of willing sex with 

staff. Even in the jail context, a 0.93% 

to 1.39% decrease from the baseline in 

the prevalence of rape would justify the 

startup costs, while a 2.82%–4.22% 

decrease would justify the ongoing 

costs. For jails, a 4.22% decrease from 

the baseline in the average annual 

prevalence would translate to 1654 

fewer forcible rapes per year, 625 fewer 

nonconsensual sexual acts involving 

pressure or coercion, 971 fewer abusive 

sexual contacts, and 1312 fewer 

incidents of willing sex with staff. 

The Department believes that it is 

eminently reasonable to expect that 

implementation of these standards will 

yield these decreases. 

However, the Department cautions 

that the benefit-cost conclusions in the 

IRIA are meant to be preliminary and 

are based upon current estimates. 

During the comment period, and in 

advance of preparing the final rules for 

publication, these estimates will be 

subject to additional analysis. Moreover, 

the Department actively seeks the 

participation of stakeholders in 

assessing the regulatory impact of its 

proposed standards and invites public 

comment on all aspects of the IRIA, both 

as to the societal benefits of adopting 

the standards and as to the costs of 

compliance. Below is a list of specific 

questions upon which the Department 

seeks comment, which is not meant to 

limit any other comments that any 

interested person may wish to submit. 

Please note that, although this summary 

is meant to provide an overview of the 

IRIA, the questions below presume that 

the commenter has reviewed the 

complete IRIA. As noted above, the 

complete IRIA is available at http://

www.ojp.usdoj.gov/programs/pdfs/

prea_nprm_iria.pdf. 

Questions for Public Comment on 

Regulatory Impact Assessment 

Question 38: Has the Department 

appropriately determined the baseline 

level of sexual abuse in correctional 

settings for purposes of assessing the 

benefit and cost of the proposed PREA 

standards? 

Question 39: Are there any reliable, 

empirical sources of data, other than the 

BJS studies referenced in the IRIA, that 

would be appropriate to use in 

determining the baseline level of prison 

sexual abuse? If so, please cite such 

sources and explain whether and why 

they should be used to supplement or 

replace the BJS data. 

Question 40: Are there reliable 

methods for measuring the extent of 

underreporting and overreporting in 

connection with BJS’s inmate surveys? 

Question 41: Are there sources of data 

that would allow the Department to 

assess the prevalence of sexual abuse in 

lockups and community confinement 

facilities? If so, please supply such data. 

In the absence of such data, are there 

available methodologies for including 

sexual abuse in such settings in the 

overall estimate of baseline prevalence? 

Question 42: Has the Department 

appropriately adjusted the conclusions 

of studies on the value of rape and 

sexual abuse generally to account for 

the differing circumstances posed by 

sexual abuse in confinement settings? 

Question 43: Are there any academic 

studies, data compilations, or 

established methodologies that can be 

used to extrapolate from mental health 

costs associated with sexual abuse in 

community settings to such costs in 

confinement settings? Has the 

Department appropriately estimated 

that the cost of mental health treatment 

associated with sexual abuse in 

confinement settings is twice as large as 

the corresponding costs in community 

settings? 

Question 44: Has the Department 

correctly identified the quantifiable 

costs of rape and sexual abuse? Are 

there other costs of rape and sexual 

abuse that are capable of quantification, 

but are not included in the 

Department’s analysis? 

Question 45: Should the Department 

adjust the ‘‘willingness to pay’’ figures 

on which it relies (developed by 

Professor Mark Cohen for purposes of 

valuing the benefit to society of an 

avoided rape 10) to account for the 

possibility that some people may believe 

sexual abuse in confinement facilities is 

a less pressing problem than it is in 

society as a whole, and might therefore 

think that the value of avoiding such an 

incident in the confinement setting is 

less than the value of avoiding a similar 

incident in the non-confinement setting? 

Likewise, should the Department adjust 

these figures to take into account the 

fact that in the general population the 

vast majority of sexual abuse victims are 

female, whereas in the confinement 

setting the victims are overwhelmingly 

male? Are such differences even 

relevant for purposes of using the 

contingent valuation method to 

monetize the cost of an incident of 

sexual abuse? If either adjustment were 

appropriate, how (or on the basis of 

what empirical data) would the 

Department go about determining the 

amount of the adjustment? 

Question 46: Has the Department 

appropriately accounted for the 

increased costs to the victim and to 

society when the victim is a juvenile? 

Why or why not? 

Question 47: Are there available 

methodologies, or available data from 

which a methodology can be developed, 

to assess the unit value of avoiding a 

nonconsensual sexual act involving 

pressure or coercion? If so, please 

supply them. Is the Department’s 

estimate of this unit value (i.e., 20% of 

the value of a forcible rape) 

appropriately conservative? 

Question 48: Are there available 

methodologies, or available data from 

which a methodology can be developed, 

to assess the unit value of avoiding an 

‘‘abusive sexual contact between 

inmates,’’ as defined in the IRIA? If so, 

please supply them. Is the Department’s 

estimate of this unit value (i.e., $375 for 

adult inmates and $500 for juveniles) 

appropriately conservative? Would a 

higher figure be more appropriate? Why 

or why not? 

Question 49: Are there any additional 

nonmonetary benefits of implementing 

the PREA standards not mentioned in 

the IRIA? 

Question 50: Are any of the 

nonmonetary benefits set forth in the 

IRIA actually capable of quantification? 

If so, are there available methodologies 

for quantifying such benefits or sources 

of data from which such quantification 

can be drawn? 

Question 51: Are there available 

sources of data relating to the 

compliance costs associated with the 

proposed standards, other than the 

sources cited and relied upon in the 

IRIA? If so, please provide them. 

Question 52: Are there available data 

as to the number of lockups that will be 

affected by the proposed standards, the 

number of individuals who are detained 

in lockups on an annual basis, and/or 

the anticipated compliance costs for 

lockups? If so, please provide them. 

Question 53: Are there available data 

as to the number of community 

confinement facilities that will be 

affected by the proposed standards, the 

number of individuals who reside or are 

detained in such facilities on an annual 

basis, or the anticipated compliance 

costs for community confinement 

facilities? If so, please provide them. 

Question 54: Has the Department 

appropriately differentiated the 


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6272 Federal Register / Vol. 76, No. 23 / Thursday, February 3, 2011 / Proposed Rules 

11The legislative history of PREA appears to 

contain only two mentions of the ‘‘substantial 

additional costs’’ provision. The cost estimate that 

was prepared by the Congressional Budget Office 

for the House version of PREA, H.R.1707, states the 

following: 

‘‘This bill would direct the Attorney General to 

adopt national standards for the prevention of 

prison rape. Though the language specifies that 

those standards may not place substantial 

additional costs on Federal, State, or local prison 

authorities, CBO has no basis for estimating what 

those standards might be or what costs State and 

local governments would face in complying with 

them.’’ 

H.R. Rep. No. 108–219, at 16 (2003). The House 

Judiciary Committee Report explains what would 

eventually become 42 U.S.C. 15607(a)(3) as follows: 

‘‘The Attorney General is required to establish a 

rule adopting national standards based on 

recommendations of the Commission, but shall not 

establish national standards that would impose 

substantial increases in costs for Federal, State, or 

local authorities. The Attorney General shall 

transmit the final rule to the governor of each 

State.’’ 

Id. at 20. 

estimated compliance costs with regard 

to the different types of confinement 

facilities (prisons, jails, juvenile 

facilities, community confinement 

facilities, and lockups)? If not, why and 

to what extent should compliance costs 

be expected to be higher or lower for one 

type or another? 

Question 55: Are there additional 

methodologies for conducting an 

assessment of the costs of compliance 

with the proposed standards? If so, 

please propose them. 

Question 56: With respect to 

§§ 115.12, 115.112, 115.212, and 

115.312, are there other methods of 

estimating the extent to which contract 

renewals and renegotiations over the 15- 

year period will lead to costs for 

agencies that adopt the proposed 

standards? 

Question 57: Do agencies expect to 

incur costs associated with proposed 

§§ 115.13, 115.113, 115.213, and 

115.313, notwithstanding the fact that it 

does not mandate any particular level of 

staffing or the use of video monitoring? 

Why or why not? If so, what are the 

potential cost implications of this 

standard under various alternative 

scenarios concerning staffing mandates 

or video monitoring mandates? What 

decisions do agencies anticipate making 

in light of the assessments called for by 

this standard, and what will it cost to 

implement those decisions? 

Question 58: With respect to 

§§ 115.14, 115.114, 115.214, and 

115.314, will the limitations on crossgender viewing (and any associated 

retrofitting and construction of privacy 

panels) impose any costs on agencies? If 

so, please provide any data from which 

a cost estimate can be developed for 

such measures. 

Question 59: Will the requirement in 

§§ 115.31, 115.231, and 115.331 that 

agencies train staff on how to 

communicate effectively and 

professionally with lesbian, gay, 

bisexual, transgender, or intersex 

residents lead to additional costs for 

correctional facilities, over and above 

the costs of other training requirements 

in the standards? If so, please provide 

any data from which a cost estimate can 

be developed for such training. 

Question 60: Has the Department 

accounted for all of the costs associated 

with §§ 115.52, 115.252, and 115.352, 

dealing with exhaustion of 

administrative remedies? If not, what 

additional costs might be incurred, and 

what data exist from which an estimate 

of those costs can be developed? 

Question 61: Is there any basis at this 

juncture to estimate the compliance 

costs associated with §§ 115.93, 

115.193, 115.293, and 115.393, 

pertaining to audits? How much do 

agencies anticipate compliance with 

this standard is likely to cost on a perfacility basis, under various 

assumptions as to the type and 

frequency or breadth of audits? 

Question 62: Has the Department 

used the correct assumptions (in 

particular the assumption of constant 

cost) in projecting ongoing costs in the 

out years? Should it adjust its 

projections for the possibility that the 

cost of compliance may decrease over 

time as correctional agencies adopt new 

innovations that will make their 

compliance more efficient? If such an 

adjustment is appropriate, please 

propose a methodology for doing so and 

a source of data from which valid 

predictions as to ‘‘learning’’ can be 

derived. 

Question 63: Are there any data 

showing how the marginal cost of rape 

reduction is likely to change once 

various benchmarks of reduction have 

been achieved? If not, is it appropriate 

for the Department to assume, for 

purposes of its breakeven analysis, that 

the costs and benefits of reducing prison 

rape are linear, at least within the range 

relevant to the analysis? Why or why 

not? 

Question 64: Are the expectations as 

to the effectiveness of the proposed 

standards that are subsumed within the 

breakeven analysis (e.g., 0.7%–1.7% 

reduction in baseline prevalence needed 

to justify startup costs and 2.06%– 

3.13% reduction required for ongoing 

costs) reasonable? Why or why not? Are 

there available data from which 

reasonable predictions can be made as 

to the extent to which these proposed 

standards will be effective in reducing 

the prevalence of rape and sexual abuse 

in prisons? If so, please supply them. 

Substantial Additional Cost Assessment 

As noted above, PREA mandates that 

the Attorney General may not adopt 

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). 

However, PREA does not further define 

this phrase, and various ANPRM 

commenters submitted differing views 

as to how it should be read.11

A number of agency commenters in 

response to the ANPRM suggested that 

‘‘substantial additional costs’’ should be 

considered in a vacuum—that is, in the 

absolute rather than in comparison to 

some other figure. However, such a 

reading is inconsistent with the plain 

language of the statute, which requires 

that compliance costs be compared 

against current nationwide correctional 

expenditures. 

The Commission itself, on the other 

hand, proposed a very different reading 

in its ANPRM comment. Enclosing a 

letter from former Senate Judiciary 

Committee staffer Robert Toone, Letter 

for Hon. Reggie B. Walton, United States 

District Court for the District of 

Columbia, et al. from Robert Toone, 

Senate Judiciary Committee (Apr. 15, 

2010) (‘‘Toone Letter’’), the Commission 

would interpret the phrase ‘‘substantial 

additional costs’’ in accordance with 

two principles. First, the Commission 

proposes that the Department should 

discount from its calculations any costs 

necessary to bring a particular facility 

into compliance with its Eighth 

Amendment obligations and should 

only subsume within ‘‘substantial 

additional costs’’ those expenses that the 

standards impose over and above this 

level. According to this argument, 

because Congress intended that PREA 

promote, not weaken, enforcement of 

inmates’ constitutional rights to safe 

conditions of confinement, ‘‘any 

application of Section 8(a)(3) should 

consider only those additional costs that 

a proposed national standard would 

impose on constitutionally compliant 

prisons and jails.’’ Toone Letter at 2. 

Second, the Commission argues that 

‘‘substantial additional cost’’ should be 

assessed on a per-standard rather than 

an aggregate basis. In other words, 

‘‘[o]nly a national standard that would, 

on its own, impose ‘substantial 

additional costs’ in relation to total 

current correctional expenditures is 

prohibited under PREA.’’ Id. at 3. 

In drafting its proposed rule, the 

Department has chosen not to adopt 

these interpretations. The first argument 


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12 Indeed, the discussion of ‘‘substantial 

additional costs’’ in PREA’s legislative history refers 

in the plural to ‘‘national standards.’’ See supra 

n.11. The Toone Letter states that notes that ‘‘before 

introducing the bill, the sponsors of PREA changed 

the language of Section 8(a)(3) from ‘significant 

additional costs’ (as originally drafted) to 

‘substantial additional costs.’ ’’ However, the fact 

that the sponsors of a piece of legislation revised 

its language prior to introducing the bill does not 

bear on how the remaining members of Congress 

construed the legislation when they voted to enact 

it. Moreover, it is far from evident that this wording 

change would impact the interpretation of the 

statute. 

is in tension with the plain language of 

the statute and is in any event 

impractical to apply. The PREA 

standards will apply to almost 13,000 

facilities across the country, operated by 

thousands of jurisdictions and entities. 

It is not possible to determine which 

facilities are ‘‘constitutionally 

compliant’’ and which are not, in part 

because constitutional non-compliance 

often becomes apparent only after the 

fact—that is, after a violation. Nor is it 

possible to calculate what subset of the 

total cost of compliance with the 

standards is directed towards bringing 

facilities into compliance with the 

Constitution and what subset 

constitutes expenditures over and above 

the constitutional minimum. 

Nor does the Department believe that 

the impact of the standards should be 

assessed individually. Admittedly, the 

statute uses the singular in providing 

that ‘‘[t]he Attorney General shall not 

establish a national standard under this 

section that would impose substantial 

additional costs . * * *’’ 42 U.S.C. 

15607(a)(3) (emphasis added). However, 

such a reading would yield absurd 

results. On the Commission’s proposed 

reading, the Attorney General is barred 

from imposing one extremely expensive 

standard yet is allowed to promulgate 

myriad smaller standards that, when 

added together, would be just as 

expensive. There is no reason to assume 

that Congress intended such a result. A 

more logical assumption is that 

Congress was concerned with the costs 

of the standards as a whole.12

The Department thus interprets 

‘‘substantial additional costs compared 

to the costs presently expended by 

Federal, State, and local prison 

authorities’’ as costs that impose 

considerable, large, and unreasonable 

burdens on those authorities in a given 

year, in comparison to the total amount 

spent that year by correctional 

authorities nationwide. The first half of 

the comparator—the total costs imposed 

on Federal, State, and local prison 

authorities collectively, as the result of 

complying with the PREA standards 

taken as a whole—is calculated in the 

IRIA and depicted in Table 4. The 

second half of the comparator—the total 

annual expenditures of Federal, State, 

and local prison authorities on 

corrections—amounted to $74.2 billion 

in 2007, the most recent year for which 

figures are available. See BJS, Justice 

Expenditure and Employment Extracts 

2007, ‘‘Table 1: percent distribution of 

expenditure for the justice system by 

type of government, fiscal year 2007’’ 

(Sep. 20, 2010), available at http://bjs.

ojp.usdoj.gov/index.cfm?ty=pbdetail&

iid=2315; Direct Expenditures by 

Criminal Justice Function, 1982–2006, 

in Justice Expenditure and Employment 

Extracts, available at http://bjs.ojp.

usdoj.gov/content/glance/tables/

exptyptab.cfm. 

Tables 9A and 9B compare the cost of 

compliance with the standards from 

2012 through 2026 to projected total 

national expenditures on corrections 

over the same period of time. During the 

15 years from 1993 to 2007, correctional 

expenditures grew at an annual rate of 

5.43%. Id. Tables 9A and 9B assume 

growth at that same rate from 2008– 

2026, applying alternative discount 

rates of 3% (in Table 9A) and 7% (in 

Table 9B) so as to render, in the second 

column, the ensuing inflation-adjusted 

expenditure estimates in present value 

dollars. The third column shows the 

total expected compliance costs for each 

year, as adjusted for inflation and 

discounted to present value, and the 

fourth column presents expected 

compliance costs as a percentage of 

national correctional expenditures. (The 

figures for expected nationwide 

compliance costs depicted in Tables 9A 

and 9B differ from those in Tables 4 and 

5 because the former are adjusted for 

inflation whereas the latter are not.) 

Using a 3% discount rate (Table 9A), 

the ratio of total costs associated with 

the proposed standards to total national 

correctional expenditures never exceeds 

0.63% in any given year and is as low 

as 0.16% in some years. Using a 7% 

discount rate (Table 9B), the range 

extends from 0.03% to 0.72%. Given the 

smallness of these percentages, we do 

not believe that the standards can be 

said to impose considerable, large, or 

unreasonable cost burdens on 

correctional authorities in any given 

year. Therefore, the standards do not 

impose ‘‘substantial additional costs 

compared to the costs * * * expended 

by Federal, State, and local prison 

authorities.’’ 42 U.S.C. 15607(a)(3). 

TABLE 9A—TOTAL ANNUAL COMPLIANCE COSTS, 2012–2026 PROJECTIONS, AS A PERCENTAGE OF TOTAL ANNUAL NATIONWIDE EXPENDITURES ON CORRECTIONS ADJUSTED FOR INFLATION AT 5.4% ANNUALLY AND DISCOUNTED TO

PRESENT VALUE AT 3% IN THOUSANDS OF DOLLARS

Year Total 

corr. exp. 

Compliance 

costs % 

2012 ............................................................................................................................................. $91,104,068 $213,346 0.2342 

2013 ............................................................................................................................................. 93,253,416 574,013 0.6155 

2014 ............................................................................................................................................. 95,453,473 599,847 0.6284 

2015 ............................................................................................................................................. 97,705,433 561,881 0.5751 

2016 ............................................................................................................................................. 100,010,523 510,989 0.5109 

2017 ............................................................................................................................................. 102,369,994 464,707 0.4539 

2018 ............................................................................................................................................. 104,785,131 422,616 0.4033 

2019 ............................................................................................................................................. 107,257,246 384,338 0.3583 

2020 ............................................................................................................................................. 109,787,684 349,527 0.3184 

2021 ............................................................................................................................................. 112,377,821 317,869 0.2829 

2022 ............................................................................................................................................. 115,029,064 289,078 0.2513 

2023 ............................................................................................................................................. 117,742,857 262,895 0.2233 

2024 ............................................................................................................................................. 120,520,674 239,083 0.1984 

2025 ............................................................................................................................................. 123,364,026 217,429 0.1762 

2026 ............................................................................................................................................. 126,274,459 197,735 0.1566 


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TABLE 9A—TOTAL ANNUAL COMPLIANCE COSTS, 2012–2026 PROJECTIONS, AS A PERCENTAGE OF TOTAL ANNUAL NATIONWIDE EXPENDITURES ON CORRECTIONS ADJUSTED FOR INFLATION AT 5.4% ANNUALLY AND DISCOUNTED TO

PRESENT VALUE AT 3% IN THOUSANDS OF DOLLARS—Continued 

Year Total 

corr. exp. 

Compliance 

costs % 

Total ...................................................................................................................................... 1,617,035,869 5,605,353 0.3466 

Average ................................................................................................................................ 107,802,391 373,690 0.3466 

TABLE 9B—TOTAL ANNUAL COMPLIANCE COSTS, 2012–2026 PROJECTIONS, AS A PERCENTAGE OF TOTAL ANNUAL NATIONWIDE EXPENDITURES ON CORRECTIONS ADJUSTED FOR INFLATION AT 5.4% ANNUALLY AND DISCOUNTED TO

PRESENT VALUE AT 7% IN THOUSANDS OF DOLLARS

Year Total 

corr. exp. 

Compliance 

costs % 

2012 ............................................................................................................................................. $84,419,867 $213,346 0.2527 

2013 ............................................................................................................................................. 83,181,183 574,013 0.6901 

2014 ............................................................................................................................................. 81,960,674 593,650 0.7243 

2015 ............................................................................................................................................. 80,758,073 477,473 0.5912 

2016 ............................................................................................................................................. 79,573,119 358,908 0.4510 

2017 ............................................................................................................................................. 78,405,550 269,785 0.3441 

2018 ............................................................................................................................................. 77,255,114 202,792 0.2625 

2019 ............................................................................................................................................. 76,121,557 152,435 0.2003 

2020 ............................................................................................................................................. 75,004,634 114,583 0.1528 

2021 ............................................................................................................................................. 73,904,098 86,130 0.1165 

2022 ............................................................................................................................................. 72,819,711 64,742 0.0889 

2023 ............................................................................................................................................. 71,751,235 48,666 0.0678 

2024 ............................................................................................................................................. 70,698,437 36,581 0.0517 

2025 ............................................................................................................................................. 69,661,086 27,497 0.0395 

2026 ............................................................................................................................................. 68,638,956 20,669 0.0301 

Total ...................................................................................................................................... 1,144,153,294 3,241,270 0.2833 

Average ................................................................................................................................ 76,276,886 216,085 0.2833 

Paperwork Reduction Act 

The Prison Rape Elimination Act of 

2003 requires the Department of Justice 

to adopt national standards for the 

detection, prevention, reduction, and 

punishment of prison rape. These 

national standards will 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. 

The Department of Justice will be 

submitting the following information 

collection request to the Office of 

Management and Budget for review and 

clearance in accordance with the review 

procedures of the Paperwork Reduction 

Act of 1995. The information collection 

is published to obtain comments from 

the public and affected agencies. 

All comments and suggestions, or 

questions regarding additional 

information, should be directed to 

Robert Hinchman, Senior Counsel, 

Office of Legal Policy, Department of 

Justice, 950 Pennsylvania Avenue, NW., 

Room 4252, Washington, DC 20530. 

Written comments and suggestions 

from the public and affected agencies 

concerning the collection of information 

are encouraged. Your comments on the 

information collection-related aspects of 

this rule should address one or more of 

the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

In particular, the Department requests 

comments on the recordkeeping cost 

burden imposed by this rule and will 

use the information gained through such 

comments to assist in calculating the 

cost burden. 

Overview of This Information Collection 

(1) Type of Information Collection: 

New collection. 

(2) Title of the Form/Collection: 

Prison Rape Elimination Act 

Regulations. 

(3) Agency form number, if any, and 

the applicable component of the 

Department of Justice sponsoring the 

collection: No form. Component: 1105. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: 

Primary: State governments, local 

governments. 

Other: None. 

Abstract: The Department of Justice is 

publishing a notice of proposed 

rulemaking to adopt national standards 

for the detection, prevention, reduction, 

and punishment of sexual abuse in 

confinement settings pursuant to the 

Prison Rape Elimination Act of 2003 

(PREA), 42 U.S.C. 15601 et seq. These 

national standards will require covered 

facilities to retain certain specified 


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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. Covered facilities 

include: State and local jails, prisons, 

lockups, community confinement 

facilities, and juvenile facilities. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

keep the required records is: 11,826 

respondents; 158,455 hours. 

The average annual burden hour per 

respondent is 13.4 hours, most of which 

is the additional time keeping required 

records, if such records are not already 

being maintained by the facility for its 

own administrative purposes. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: 158,455 hours. 

At present, covered facilities are 

required to retain certain sexual abuse 

incident data. This data is already 

covered by an information collection 

maintained by the Department of 

Justice, Office of Justice Programs, 

Bureau of Justice Statistics, as part of its 

Survey of Sexual Violence; OMB 

Control No. 1121–0292. The Survey of 

Sexual Violence is the only national 

data collection for facility-reported 

information on sexual abuse within 

correctional facilities, characteristics of 

the victims and perpetrators, 

circumstances surrounding the 

incidents, and how incidents are 

reported, tracked, and adjudicated. 

Please see the following sections: 

Subpart A—Prisons and jails Subpart B— 

Lockups 

Subpart C— 

Community 

corrections 

Subpart D— 

Juvenile 

facilities 

115.87 .......................................................................................................................................... 115.187 115.287 115.387 

115.88 .......................................................................................................................................... 115.188 115.288 115.388 

115.89 .......................................................................................................................................... 115.189 115.289 115.389 

In particular, please see the references 

in 115.87(c), 115.187(c), 115.287(c), and 

115.387(c) to the existing SSV 

collection. 

The balance of the recordkeeping 

requirements set forth by this rule are 

new requirements which will require a 

new OMB Control Number. The 

Department is seeking comment on 

these new requirements as part of this 

NPRM. These new requirements will 

require covered facilities to retain 

certain specified information relating to 

sexual abuse prevention planning, 

responsive planning, education and 

training, investigations and to collect 

and retain certain specified information 

relating to allegations of sexual abuse 

within the facility. Please see the 

following sections of the proposed rule: 

Subpart A—Prisons and jails Subpart B— 

Lockups 

Subpart C— 

Community 

corrections 

Subpart D— 

Juvenile 

facilities 

115.14(b) ...................................................................................................................................... 115.114(b) 115.214(b) 115.314(b) 

115.22(c) ...................................................................................................................................... ........................ 115.222(c) 115.322(c) 

115.31(d) ...................................................................................................................................... 115.131(c) 115.231(d) 115.331(d) 

115.32(c) ...................................................................................................................................... ........................ 115.232(c) 115.332(c) 

115.33(e) ...................................................................................................................................... ........................ 115.233(e) 115.333(e) 

115.35(c) ...................................................................................................................................... ........................ 115.235(c) 115.335(c) 

115.71(h) ...................................................................................................................................... 115.171(h) 115.271(h) 115.371(h) 

If additional information is required 

contact: Lynn Murray, Department 

Clearance Officer, Policy and Planning 

Staff, Justice Management Division, U.S. 

Department of Justice, Two Constitution 

Square, 145 N Street, NE., Suite 2E–502, 

Washington, DC 20530. 

List of Subjects in 28 CFR Part 115 

Community correction facilities, 

Crime, Jails, Juvenile facilities, Lockups, 

Prisons, Prisoners. 

Accordingly, Part 115 of Title 28 of 

the Code of Federal Regulations is 

proposed to be 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; Prison Rape 

Elimination Act (PREA) coordinator. 

115.12 Contracting with other entities for 

the confinement of inmates. 

115.13 Supervision and monitoring. 

115.14 Limits to cross-gender viewing and 

searches. 

115.15 Accommodating inmates with 

special needs. 

115.16 Hiring and promotion decisions. 

115.17 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.21 Evidence protocol and forensic 

medical exams. 

115.22 Agreements with outside public 

entities and community service 

providers. 

115.23 Policies to ensure investigation of 

allegations. 

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. 

115.54 Third-party reporting. 

Official Response Following an Inmate 

Report 

115.61 Staff and agency reporting duties. 


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115.62 Reporting to other confinement 

facilities. 

115.63 Staff first responder duties. 

115.64 Coordinated response. 

115.65 Agency protection against 

retaliation. 

115.66 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 Disciplinary sanctions for inmates. 

115.81 Medical and mental health 

screenings; history of sexual abuse. 

Medical and Mental Care 

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 

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 Limits to cross-gender viewing and 

searches. 

115.115 Accommodating detainees with 

special needs. 

115.116 Hiring and promotion decisions. 

115.117 Upgrades to facilities and 

technologies. 

Responsiveness Training 

115.121 Evidence protocol and forensic 

medical exams. 

115.123 Policies to ensure investigation of 

allegations. 

Training and Education 

115.131 Employee and volunteer training. 

115.132 Detainee, attorney, contractor, and 

inmate worker notification of the 

agency’s zero-tolerance policy. 

115.134 Specialized training; 

investigations. 

Reporting 

115.151 Detainee reporting. 

115.154 Third-party reporting. 

Official Response Following a Detainee 

Report 

115.161 Staff and agency reporting duties. 

115.162 Reporting to other confinement 

facilities. 

115.163 Staff first responder duties. 

115.164 Coordinated response. 

115.165 Agency protection against 

retaliation. 

Investigations 

115.171 Criminal and administrative 

agency investigations. 

115.172 Evidentiary standard for 

administrative investigations. 

Discipline 

115.176 Disciplinary sanctions for staff. 

115.177 Referrals for prosecution for 

detainee-on-detainee sexual abuse. 

Medical Care 

115.182 Access to emergency medical 

services. 

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 Limits to cross-gender viewing and 

searches. 

115.215 Accommodating residents with 

special needs. 

115.216 Hiring and promotion decisions. 

115.217 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.221 Evidence protocol and forensic 

medical exams. 

115.222 Agreements with outside public 

entities and community service 

providers. 

115.223 Policies to ensure investigation of 

allegations. 

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. 

Reporting 

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 Reporting to other confinement 

facilities. 

115.263 Staff first responder duties. 

115.264 Coordinated response. 

115.265 Agency protection against 

retaliation. 

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 Disciplinary sanctions for 

residents. 

Medical and Mental Care 

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 Limits to cross-gender viewing and 

searches. 

115.315 Accommodating residents with 

special needs. 

115.316 Hiring and promotion decisions. 

115.317 Upgrades to facilities and 

technologies. 

Responsiveness Planning 

115.321 Evidence protocol and forensic 

medical exams. 

115.322 Agreements with outside public 

entities and community service 

providers. 

115.323 Policies to ensure investigation of 

allegations. 

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. 

Assessment and Placement of Residents 

115.341 Obtaining information from 

residents. 


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115.342 Placement of residents in housing, 

bed, program, education, and work 

assignments. 

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 Reporting to other confinement 

facilities. 

115.363 Staff first responder duties. 

115.364 Coordinated response. 

115.365 Agency protection against 

retaliation. 

115.366 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 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. 

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) 

in which offenders or defendants reside 

as part of a term of imprisonment or as 

a condition of pre-trial release or postrelease 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. 

Employee means a person who works 

directly for the agency or 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. 

Inmate means any person 

incarcerated or detained in a prison or 

jail. 

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 otherwise defined by 

State law. 

Juvenile facility means a facility 

primarily used for the confinement of 

juveniles. 

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 

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. 

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. 

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. 

Volunteer means an individual who 

donates time and effort on a recurring 

basis to enhance the activities and 

programs of the agency. 

§ 115.6 Definitions related to sexual abuse. 

For purposes of this part, the term— 

Sexual abuse includes— 

(1) Sexual abuse by another inmate, 

detainee, or resident; and 

(2) Sexual abuse of an inmate by a 

staff member, contractor, or volunteer. 

Sexual abuse 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: 


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(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 any 

person, excluding incidents in which 

the intent of the sexual contact is solely 

to harm or debilitate rather than to 

sexually exploit. 

Sexual abuse by a staff member, 

contractor, or volunteer includes— 

(1) Sexual touching by a staff member, 

contractor, or volunteer; 

(2) Any attempted, threatened, or 

requested sexual touching by a staff 

member, contractor, or volunteer; 

(3) Indecent exposure by a staff 

member, contractor, or volunteer; and 

(4) Voyeurism by a staff member, 

contractor, or volunteer. 

Sexual touching by a staff member, 

contractor, or volunteer includes any of 

the following acts, with or without 

consent: 

(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 any 

person, with the intent to abuse, arouse 

or gratify sexual desire. 

Indecent exposure by a staff member, 

contractor, or volunteer means the 

display by a staff member, contractor, or 

volunteer of his or her uncovered 

genitalia, buttocks, or breast in the 

presence of an inmate. 

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. 

Voyeurism by a staff member, 

contractor, or volunteer means an 

invasion of an inmate’s privacy 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, and distributing or 

publishing them. 

Subpart A—Standards for Adult 

Prisons and Jails 

Prevention Planning 

§ 115.11 Zero tolerance of sexual abuse 

and sexual harassment; Prison Rape 

Elimination Act (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 to develop, 

implement, and oversee agency efforts 

to comply with the PREA standards in 

all of its facilities. 

(c) The PREA coordinator shall be a 

full-time position in all agencies that 

operate facilities whose total rated 

capacity exceeds 1000 inmates, but may 

be designated as a part-time position in 

agencies whose total rated capacity does 

not exceed 1000 inmates. 

(d) An agency whose facilities have a 

total rated capacity exceeding 1000 

inmates shall also designate a PREA 

coordinator for each facility, who may 

be full-time or part-time. 

§ 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 contracts or 

contract renewals the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contracts or contract 

renewals shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with PREA 

standards. 

§ 115.13 Supervision and monitoring. 

(a) For each facility, the agency shall 

determine the adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect inmates against 

sexual abuse. In calculating such levels, 

agencies shall take into consideration 

the physical layout of each facility, the 

composition of the inmate population, 

and any other relevant factors. 

(b) The facility shall also establish a 

plan for how to conduct staffing and, 

where applicable, video monitoring, in 

circumstances where the levels 

established in paragraph (a) of this 

section are not attained. 

(c) Each year, the facility shall assess, 

and determine whether adjustments are 

needed to: 

(1) The staffing levels established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; and 

(3) The agency’s deployment of video 

monitoring systems and other 

technologies. 

(d) Each prison facility, and each jail 

facility whose rated capacity exceeds 

500 inmates, 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. 

§ 115.14 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or visual 

body cavity searches except in case of 

emergency or when performed by 

medical practitioners. 

(b) The facility shall document all 

such cross-gender searches. 

(c) 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 the case of 

emergency, by accident, or when such 

viewing is incidental to routine cell 

checks. 

(d) The facility shall not examine a 

transgender inmate to determine the 

inmate’s genital status unless the 

inmate’s genital status is unknown. 

Such examination shall be conducted in 

private by a medical practitioner. 

(e) Following classification, the 

agency shall implement procedures to 

exempt from non-emergency crossgender pat-down searches those inmates 

who have suffered documented prior 

cross-gender sexual abuse while 

incarcerated. 

(f) The agency shall train security staff 

in how to conduct cross-gender patdown searches, and searches of 

transgender inmates, in a professional 

and respectful manner, and in the least 

intrusive manner possible, consistent 

with security needs. 


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§ 115.15 Accommodating inmates with 

special needs. 

(a) The agency shall ensure that 

inmates who are limited English 

proficient, deaf, or disabled are able to 

report sexual abuse and sexual 

harassment to staff directly or through 

other established reporting mechanisms, 

such as abuse hotlines, without relying 

on inmate interpreters, absent exigent 

circumstances. 

(b) The agency shall make 

accommodations to convey verbally all 

written information about sexual abuse 

policies, including how to report sexual 

abuse and sexual harassment, to inmates 

who have limited reading skills or who 

are visually impaired. 

§ 115.16 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote 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. 

(b) Before hiring new employees, the 

agency shall: 

(1) Perform a criminal background 

check; and 

(2) Consistent with Federal, State, and 

local law, make its best effort to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse. 

(c) The agency shall either conduct 

criminal background checks of current 

employees at least every five years or 

have in place a system for otherwise 

capturing such information for current 

employees. 

(d) The agency shall ask all applicants 

and employees directly about previous 

misconduct in written applications for 

hiring or promotions, in interviews for 

hiring or promotions, and in any 

interviews or written self-evaluations 

conducted as part of reviews of current 

employees. 

(e) Material omissions, or the 

provision of materially false 

information, shall be grounds for 

termination. 

(f) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

involving a former employee upon 

receiving a request from an institutional 

employer for whom such employee has 

applied to work. 

§ 115.17 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 exams. 

(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 adapted from 

or otherwise based on the 2004 U.S. 

Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ subsequent updated 

editions, or similarly comprehensive 

and authoritative protocols developed 

after 2010. 

(c) The agency shall offer all victims 

of sexual abuse access to forensic 

medical exams performed by qualified 

medical practitioners, whether onsite or 

at an outside facility, without financial 

cost, where evidentiarily or medically 

appropriate. 

(d) The agency shall make available to 

the victim a qualified staff member or a 

victim advocate from a communitybased organization that provides 

services to sexual abuse victims. 

(e) As requested by the victim, the 

qualified staff member or victim 

advocate shall accompany and support 

the victim through the forensic medical 

exam process and the investigatory 

process 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 inform the investigating entity of 

these policies. 

(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 institutional settings; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in institutional settings. 

(h) For the purposes of this standard, 

a qualified staff member shall be an 

individual who is employed by a facility 

and has received education concerning 

sexual assault and forensic examination 

issues in general. 

§ 115.22 Agreements with outside public 

entities and community service providers. 

(a) The agency shall 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, 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. 

(b) The agency also 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. 

(c) The agency shall maintain copies 

of agreements or documentation 

showing attempts to enter into 

agreements. 

§ 115.23 Policies to ensure investigation of 

allegations. 

(a) The agency shall 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, unless the allegation 

does not involve potentially criminal 

behavior, and shall publish such policy 

on its Web site. 

(b) If a separate entity is responsible 

for conducting criminal investigations, 

such Web site publication shall describe 

the responsibilities of both the agency 

and the investigating entity. 

(c) Any State entity responsible for 

conducting criminal or administrative 

investigations of sexual abuse in 

institutional settings shall have in place 

a policy governing the conduct of such 

investigations. 

(d) Any Department of Justice 

component responsible for conducting 

criminal or administrative 

investigations of sexual abuse in 

institutional settings shall have in place 

a policy governing the conduct of such 

investigations. 


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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 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; 

(5) The dynamics of sexual abuse in 

confinement; 

(6) The common reactions of sexual 

abuse victims; 

(7) How to detect and respond to signs 

of threatened and actual sexual abuse; 

(8) How to avoid inappropriate 

relationships with inmates; and 

(9) How to communicate effectively 

and professionally with inmates, 

including lesbian, gay, bisexual, 

transgender, or intersex inmates. 

(b) Such training shall be tailored to 

the gender of the inmates at the 

employee’s facility. 

(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 annual refresher 

information to all employees to ensure 

that they know the agency’s current 

sexual abuse policies and procedures. 

(d) The agency shall document, via 

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 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 sexual abuse. 

(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, staff 

shall inform inmates of 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 

via video regarding their rights to be free 

from sexual abuse and sexual 

harassment and to be free from 

retaliation for reporting such abuse or 

harassment, and regarding agency 

sexual abuse response policies and 

procedures. 

(c) Current inmates who have not 

received such education shall be 

educated within one year of the 

effective date of the PREA standards, 

and the agency shall provide refresher 

information to all inmates at least 

annually and whenever an inmate is 

transferred to a different facility, to 

ensure that they know the agency’s 

current sexual abuse policies and 

procedures. 

(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. 

(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; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to victims of sexual 

abuse; and 

(4) How and to whom to report 

allegations or suspicions of sexual 

abuse. 

(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. 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.41 Screening for risk of victimization 

and abusiveness. 

(a) All inmates shall be screened 

during the intake process and during the 

initial classification process to assess 

their risk of being sexually abused by 

other inmates or sexually abusive 

toward other inmates. 

(b) Such screening shall be conducted 

using an objective screening instrument, 

blank copies of which shall be made 

available to the public upon request. 

(c) The initial classification process 

shall consider, at a minimum, the 

following criteria to screen inmates for 

risk of sexual victimization: 

(1) Whether the inmate has a mental, 

physical, or developmental disability; 

(2) The age of the inmate, including 

whether the inmate is a juvenile; 

(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 gay, lesbian, 

bisexual, transgender, or intersex; 

(8) Whether the inmate has previously 

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(9) The inmate’s own perception of 

vulnerability; and 

(10) Whether the inmate is detained 

solely on civil immigration charges. 

(d) The initial classification process 

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 screening inmates for risk 

of being sexually abusive. 

(e) An agency shall conduct such 

initial classification within 30 days of 

the inmate’s confinement. 

(f) Inmates shall be rescreened when 

warranted due to a referral, request, or 

incident of sexual victimization. 

Inmates may not be disciplined for 

refusing to answer particular questions 

or for not disclosing complete 

information. 

(g) The agency shall implement 

appropriate controls on the 

dissemination of responses to screening 

questions within the facility 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 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 such an inmate shall be 

reassessed at least twice each year to 

review any threats to safety experienced 

by the inmate. 

(e) Such inmate’s own views with 

respect to his or her own safety shall be 

given serious consideration. 

§ 115.43 Protective custody. 

(a) Inmates at high risk for sexual 

victimization may be placed in 

involuntary segregated housing only 

after an assessment of all available 

alternatives has been made, and then 

only until an alternative means of 

separation from likely abusers can be 

arranged. 

(b) Inmates placed in segregated 

housing for this purpose shall have 

access to programs, education, and work 

opportunities to the extent possible. 

(c) The agency shall not ordinarily 

assign such an inmate to segregated 

housing involuntarily for a period 

exceeding 90 days. 

(d) If an extension is necessary, the 

agency shall clearly document: 

(1) The basis for the agency’s concern 

for the inmate’s safety; and (2) The 

reason why no alternative means of 

separation can be arranged. 

(e) Every 90 days, the agency 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 an incident of 

sexual abuse. 

(b) Pursuant to § 115.22, the agency 

shall also make its 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, and that is able to 

receive and immediately forward inmate 

reports of sexual abuse and sexual 

harassment to agency officials. 

(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)(1) The agency shall provide an 

inmate a minimum of 20 days following 

the occurrence of an alleged incident of 

sexual abuse to file a grievance 

regarding such incident. 

(2) The agency shall grant an 

extension of no less than 90 days from 

the deadline for filing such a grievance 

when the inmate provides 

documentation, such as from a medical 

or mental health provider or counselor, 

that filing a grievance within the normal 

time limit was or would likely be 

impractical, whether due to physical or 

psychological trauma arising out of an 

incident of sexual abuse, the inmate 

having been held for periods of time 

outside of the facility, or other 

circumstances indicating impracticality. 

Such an extension shall be afforded 

retroactively to an inmate whose 

grievance is filed subsequent to the 

normal filing deadline. 

(b)(1) The agency shall issue a final 

agency decision on the merits 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 appealing any adverse 

ruling. 

(3) An 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. 

(4) The agency shall notify the inmate 

in writing of any such extension and 

provide a date by which a decision will 

be made. 

(c)(1) Whenever an agency is notified 

of an allegation that an inmate has been 

sexually abused, other than by 

notification from another inmate, it 

shall consider such notification 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. 

(2) The agency shall inform the 

alleged victim that a grievance or 

request for informal resolution has been 

submitted on his or her behalf and shall 

process it under the agency’s normal 

procedures unless the alleged victim 

expressly requests that it not be 

processed. The agency shall document 

any such request. 

(3) The agency may require the 

alleged victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(4) The agency shall also establish 

procedures to allow the parent or legal 

guardian of a juvenile to file a grievance 

regarding allegations of sexual abuse, 

including appeals, on behalf of such 

juvenile. 

(d)(1) An agency shall establish 

procedures for the filing of an 

emergency grievance where an inmate is 

subject to a substantial risk of imminent 

sexual abuse. 

(2) After receiving such an emergency 

grievance, the agency shall immediately 

forward it to a level of review at which 

corrective action may be taken, provide 

an initial response within 48 hours, and 

a final agency decision within five 

calendar days. 

(3) The agency may opt not to take 

such actions if it determines that no 


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emergency exists, in which case it may 

either: 

(i) Process the grievance as a normal 

grievance; or 

(ii) Return the grievance to the 

inmate, and require the inmate to follow 

the agency’s normal grievance 

procedures. 

(4) The agency shall provide a written 

explanation of why the grievance does 

not qualify as an emergency. 

(5) An agency may discipline an 

inmate for intentionally filing an 

emergency grievance where no 

emergency exists. 

§ 115.53 Inmate access to outside 

confidential support services. 

(a) In addition to providing onsite 

mental health care services, 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 by 

enabling reasonable communication 

between inmates and these 

organizations, as confidential as 

possible, consistent with agency 

security needs. 

(b) The facility shall inform inmates, 

prior to giving them access, of the extent 

to which such communications will be 

monitored. 

§ 115.54 Third-party reporting. 

The facility shall establish a method 

to receive third-party reports of sexual 

abuse and shall distribute publicly 

information on how to report sexual 

abuse 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 that occurred 

in an institutional setting; retaliation 

against inmates or staff who reported 

abuse; and any staff neglect or violation 

of responsibilities that may have 

contributed to an incident of sexual 

abuse 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 

those who need to know, 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 inmates of the practitioner’s duty 

to report at the initiation of services. 

(d) If the 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, including 

third-party and anonymous reports, to 

the facility’s designated investigators. 

§ 115.62 Reporting to other confinement 

facilities. 

(a) Within 14 days of 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 in 

writing the head of the facility or 

appropriate central office of the agency 

where the alleged abuse occurred. 

(b) The facility head or central office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.63 Staff first responder duties. 

(a) Upon learning that an inmate was 

sexually abused within a time period 

that still allows for the collection of 

physical evidence, the first security staff 

member to respond to the report shall be 

required to: 

(1) Separate the alleged victim and 

abuser; 

(2) Seal and preserve any crime scene; 

and 

(3) Request the victim not to take any 

actions that could destroy physical 

evidence, including 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 the victim 

not to take any actions that could 

destroy physical evidence, and then 

notify security staff. 

§ 115.64 Coordinated response. 

The facility shall coordinate actions 

taken in response to an incident of 

sexual abuse, among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 

§ 115.65 Agency protection against 

retaliation. 

(a) The agency shall 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. 

(b) The agency shall employ multiple 

protection measures, including 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) The agency shall monitor the 

conduct and treatment of inmates or 

staff who have reported sexual abuse or 

cooperated with investigations, 

including any inmate disciplinary 

reports, housing, or program changes, 

for at least 90 days following their 

report or cooperation, to see if there are 

changes that may suggest possible 

retaliation by inmates or staff, and shall 

act promptly to remedy any such 

retaliation. The agency shall continue 

such monitoring beyond 90 days if the 

initial monitoring indicates a continuing 

need. 

(d) The agency shall not enter into or 

renew any collective bargaining 

agreement or other agreement that limits 

the agency’s ability to remove alleged 

staff abusers from contact with victims 

pending an investigation. 

§ 115.66 Post-allegation protective 

custody. 

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, it shall do so promptly, 

thoroughly, and objectively, using 

investigators who have received special 

training in sexual abuse investigations 

pursuant to § 115.34, and shall 

investigate all allegations of sexual 

abuse, including third-party and 

anonymous reports. 

(b) 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. 

(c) When the quality of evidence 

appears to support criminal 

prosecution, the agency shall conduct 

compelled interviews only after 

consulting with prosecutors as to 


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whether compelled interviews may be 

an obstacle for subsequent criminal 

prosecution. 

(d) The credibility of a 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. 

(e) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act facilitated 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 findings. 

(f) 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. 

(g) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(h) The agency shall retain such 

investigative records for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(i) 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. 

(j) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(k) 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. 

The agency shall impose no standard 

higher than a preponderance of the 

evidence in determining whether 

allegations of sexual abuse 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, the agency shall 

subsequently inform the inmate 

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) The requirement to inform in 

inmate shall not apply to allegations 

that have been determined to be 

unfounded. 

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 

touching. 

(c) Sanctions 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. 

§ 115.77 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) Any prohibition on inmate-oninmate sexual activity shall not consider 

consensual sexual activity to constitute 

sexual abuse. 

Medical and Mental Care 

§ 115.81 Medical and mental health 

screenings; history of sexual abuse. 

(a) All prisons shall ask inmates about 

prior sexual victimization and 

abusiveness during intake or 

classification screenings. 

(b) If a prison inmate discloses prior 

sexual victimization or abusiveness, 

whether it occurred in an institutional 

setting or in the community, staff shall 

ensure that the inmate is offered a 

follow-up reception with a medical or 

mental health practitioner within 14 

days of the intake screening. 

(c) All jails shall ask inmates about 

prior sexual victimization during the 

intake process or classification 

screenings. 

(d) If a jail inmate discloses 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 

reception with a medical or mental 

health practitioner within 14 days of the 

intake screening. 

(e) 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 required by agency policy and 

Federal, State, or local law, to inform 

treatment plans and security and 

management decisions, including 

housing, bed, work, education, and 

program assignments. 

(f) Medical and mental health 

practitioners shall obtain informed 

consent from inmates before reporting 

information about prior sexual 

victimization that did not occur in an 


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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) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser. 

(c) 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 § 115.63 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(d) Inmate victims of sexual abuse 

while incarcerated shall be offered 

timely information about and access to 

all pregnancy-related medical services 

that are lawful in the community and 

sexually transmitted infections 

prophylaxis, where appropriate. 

§ 115.83 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer ongoing 

medical and mental health evaluation 

and treatment to all inmates who, 

during their present term of 

incarceration, have been victimized by 

sexual abuse. 

(b) The evaluation and treatment of 

sexual abuse victims shall include 

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 inmate 

victims of sexual abuse with medical 

and mental health services consistent 

with the community level of care. 

(d) All prisons shall conduct a mental 

health evaluation of all known inmate 

abusers within 60 days of learning of 

such abuse history and offer treatment 

when deemed appropriate by qualified 

mental health practitioners. 

(e) Inmate victims of sexually abusive 

vaginal penetration while incarcerated 

shall be offered pregnancy tests. 

(f) If pregnancy results, such victims 

shall receive timely information about 

and access to all pregnancy-related 

medical services that are lawful in the 

community. 

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) The review team shall include 

upper management officials, with input 

from line supervisors, investigators, and 

medical or mental health practitioners. 

(c) 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 or otherwise 

caused by the perpetrator or victim’s 

race, ethnicity, sexual orientation, gang 

affiliation, or 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 and 

any recommendations for improvement 

and submit such report to the facility 

head and PREA coordinator, if any. 

§ 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. 

(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’s Bureau of Justice 

Statistics. 

(d) The agency shall collect data from 

multiple sources, 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 

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: 

(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 Web site 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 Web site 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 for at least 10 years after the 

date of its initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.93 Audits of standards. 

(a) An audit shall be considered 

independent if it is conducted by: 

(1) A correctional monitoring body 

that is not part of the agency but that is 

part of, or authorized by, the relevant 

State or local government; 

(2) An auditing entity that is within 

the agency but separate from its normal 

chain of command, such as an inspector 

general or ombudsperson who reports 

directly to the agency head or to the 

agency’s governing board; or 


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(3) Other outside individuals with 

relevant experience. 

(b) No audit may be conducted by an 

auditor who has received financial 

compensation from the agency being 

audited within the three years prior to 

the agency’s retention of the auditor. 

(c) 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 audits. 

(d) All auditors shall be certified by 

the Department of Justice to conduct 

such audits, and shall be re-certified 

every three years. 

(e) The Department of Justice shall 

prescribe methods governing the 

conduct of such audits, including 

provisions for reasonable inspections of 

facilities, review of documents, and 

interviews of staff and inmates. The 

Department of Justice also shall 

prescribe the minimum qualifications 

for auditors. 

(f) The agency shall enable the auditor 

to enter and tour facilities, review 

documents, and interview staff and 

inmates to conduct a comprehensive 

audit. 

(g) The agency shall ensure that the 

auditor’s final report is published on the 

agency’s Web site if it has one or is 

otherwise made readily available to the 

public. 

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, who may be full-time 

or part-time, 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 contracts or 

contract renewals the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contracts or contract 

renewals 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 

determine the adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect detainees against 

sexual abuse. In calculating such levels, 

agencies shall take into consideration 

the physical layout of each lockup, the 

composition of the detainee population, 

and any other relevant factors. 

(b) The lockup shall also establish a 

plan for how to conduct staffing and, 

where applicable, video monitoring, in 

circumstances where the levels 

established in paragraph (a) of this 

section are not attained. 

(c) Each year, the lockup shall assess, 

and determine whether adjustments are 

needed to: 

(1) The staffing levels established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; and 

(3) The agency’s deployment of video 

monitoring systems and other 

technologies. 

(d) Any intake screening or 

assessment shall include consideration 

of a detainee’s potential vulnerability to 

sexual abuse. 

(e) If vulnerable detainees are 

identified, law enforcement 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 on video by a staff member 

sufficiently proximate to intervene, 

unless no such option is determined to 

be feasible. 

(f) If the lockup does not perform 

intake screenings or assessments, it 

shall have a policy and practice 

designed to provide heightened 

protection to a detainee to prevent 

sexual abuse whenever a law 

enforcement staff member observes any 

physical or behavioral characteristics of 

a detainee that suggest the detainee may 

be vulnerable to such abuse. 

§ 115.114 Limits to cross-gender viewing 

and searches. 

(a) The lockup shall not conduct 

cross-gender strip searches or visual 

body cavity searches except in case of 

emergency or when performed by 

medical practitioners. 

(b) The lockup shall document all 

such cross-gender 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 the case of 

emergency, by accident, or when such 

viewing is incidental to routine cell 

checks. 

(d) The lockup shall not examine a 

transgender detainee to determine the 

detainee’s genital status unless the 

detainee’s genital status is unknown. 

Such examination shall be conducted in 

private by a medical practitioner. 

(e) The agency shall train law 

enforcement staff in how to conduct 

cross-gender pat-down searches, and 

searches of transgender detainees, in a 

professional and respectful manner, and 

in the least intrusive manner possible, 

consistent with security needs. 

§ 115.115 Accommodating detainees with 

special needs. 

(a) The agency shall ensure that 

detainees who are limited English 

proficient, deaf, or disabled are able to 

report sexual abuse and sexual 

harassment to staff directly, or through 

other established reporting mechanisms, 

such as abuse hotlines, without relying 

on detainee interpreters, absent exigent 

circumstances. 

(b) The agency shall make 

accommodations to convey verbally all 

written information about sexual abuse 

policies, including how to report sexual 

abuse and sexual harassment, to 

detainees who have limited reading 

skills or who are visually impaired. 

§ 115.116 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote 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. 

(b) Before hiring new employees, the 

agency shall: 

(1) Perform a criminal background 

check; and 

(2) Consistent with Federal, State, and 

local law, make its best effort to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse. 

(c) The agency shall either conduct 

criminal background checks of current 

employees at least every five years or 

have in place a system for otherwise 

capturing such information for current 

employees. 

(d) The agency shall ask all applicants 

and employees directly about previous 

misconduct in written applications for 

hiring or promotions, in interviews for 

hiring or promotions, and in any 

interviews or written self-evaluations 

conducted as part of reviews of current 

employees. 


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(e) Material omissions, or the 

provision of materially false 

information, shall be grounds for 

termination. 

(f) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

involving a former employee upon 

receiving a request from an institutional 

employer for whom such employee has 

applied to work. 

§ 115.117 Upgrades to facilities and 

technologies. 

(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 exams. 

(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 adapted from 

or otherwise based on the 2004 U.S. 

Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ subsequent updated 

editions, or similarly comprehensive 

and authoritative protocols developed 

after 2010. 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 exams performed by qualified 

medical practitioners, whether onsite or 

at an outside facility, without financial 

cost, where evidentiarily or medically 

appropriate. 

(d) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall inform the investigating entity of 

these policies. 

(e) The requirements in paragraphs (a) 

through (d) 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 institutional settings. 

§ 115.123 Policies to ensure investigation 

of allegations. 

(a) 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 investigated by an agency with the 

legal authority to conduct criminal 

investigations, unless the allegation 

does not involve potentially criminal 

behavior, and shall publish such policy 

on its Web site, including a description 

of responsibilities of both the agency 

and the investigating entity. 

(b) Any State entity responsible for 

conducting criminal or administrative 

investigations of sexual abuse in 

lockups shall have in place a policy 

governing the conduct of such 

investigations. 

(c) Any Department of Justice 

component responsible for conducting 

criminal or administrative 

investigations of sexual abuse 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, and to communicate 

effectively and professionally with all 

detainees. 

(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 policies and 

procedures. 

(c) The agency shall document, via 

employee signature or electronic 

verification, that employees understand 

the training they have received. 

§ 115.132 Detainee, attorney, contractor, 

and inmate worker notification of the 

agency’s zero-tolerance policy. 

(a) During the intake process, 

employees shall notify all detainees of 

the agency’s zero-tolerance policy 

regarding sexual abuse. 

(b) The agency shall ensure that, upon 

entering the lockup, attorneys, 

contractors, and any inmates who work 

in the lockup are informed of the 

agency’s zero-tolerance policy regarding 

sexual abuse. 

§ 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. 

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 an incident of 

sexual abuse. 

(b) The agency shall also make its best 

efforts to provide at least one way for 

detainees 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. 

(c) Staff shall accept reports made 

verbally, in writing, anonymously, and 

from third parties and promptly 

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(d) The agency shall provide a method 

for staff to privately report sexual abuse 

and sexual harassment of detainees. 

§ 115.154 Third-party reporting. 

The agency shall establish a method 

to receive third-party reports of sexual 

abuse in its lockups. The agency shall 

distribute publicly information on how 

to report sexual abuse 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 that occurred 

in an agency lockup; retaliation against 

detainees or staff who reported abuse; 

and any staff neglect or violation of 

responsibilities that may have 

contributed to an incident of sexual 

abuse 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 

those who need to know, as specified in 

agency policy, to make treatment and 

investigation decisions. 

(c) If the 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. 

(d) The agency shall report all 

allegations of sexual abuse, including 

third-party and anonymous reports, to 

the agency’s designated investigators. 

§ 115.162 Reporting to other confinement 

facilities. 

(a) Within 14 days of receiving an 

allegation that a detainee was sexually 

abused while confined at another 

facility or lockup, the head of the 

facility or lockup that received the 

allegation shall notify in writing the 

head of the facility or lockup or 

appropriate central office of the agency 

where the alleged abuse occurred. 

(b) The facility or lockup head or 

central office that receives such 

notification shall ensure that the 

allegation is investigated in accordance 

with these standards. 

§ 115.163 Staff first responder duties. 

(a) Upon learning that a detainee was 

sexually abused within a time period 

that still allows for the collection of 

physical evidence, the first law 

enforcement staff member to respond to 

the report shall be required to: 

(1) Separate the alleged victim and 

abuser; 

(2) Seal and preserve any crime scene; 

and 

(3) Request the victim not to take any 

actions that could destroy physical 

evidence, including washing, brushing 

teeth, changing clothes, urinating, 

defecating, smoking, drinking, or eating. 

(b) If the first staff responder is not a 

law enforcement staff member, he or she 

shall be required to request the victim 

not to take any actions that could 

destroy physical evidence and then 

notify law enforcement staff. 

§ 115.164 Coordinated response. 

(a) The agency shall 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. 

§ 115.165 Agency protection against 

retaliation. 

(a) The agency shall 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. 

(b) The agency shall employ multiple 

protection measures, including 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 or 

cooperated with investigations, and 

shall act promptly to remedy any such 

retaliation. 

(d) The agency shall not enter into or 

renew any collective bargaining 

agreement or other agreement that limits 

the agency’s ability to remove alleged 

staff abusers from contact with victims 

pending an investigation. 

Investigations 

§ 115.171 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse, it shall do so promptly, 

thoroughly, and objectively, using 

investigators who have received special 

training in sexual abuse investigations 

pursuant to § 115.134, and shall 

investigate all allegations of sexual 

abuse, including third-party and 

anonymous reports. 

(b) 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. 

(c) 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. 

(d) The credibility of a 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. 

(e) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act facilitated 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 findings. 

(f) 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. 

(g) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(h) The agency shall retain such 

investigative records for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(i) 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. 

(j) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(k) 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. 


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§ 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 are 

substantiated. 

Discipline 

§ 115.176 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 

touching. 

(c) Sanctions 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 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 Care 

§ 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. 

Data Collection and Review 

§ 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) The review team shall include 

upper management officials, with input 

from line supervisors and investigators. 

(c) 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 or otherwise 

caused by the perpetrator or victim’s 

race, ethnicity, sexual orientation, gang 

affiliation, or 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 and 

any recommendations for improvement 

and submit such report to the lockup 

head and agency PREA coordinator. 

§ 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’s Bureau of Justice Statistics, or 

any subsequent form developed by the 

Bureau of Justice Statistics and 

designated for lockups. 

(d) The agency shall collect data from 

multiple sources, 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 

year to the Department of Justice no 

later than June 30. 

§ 115.188 Data review for corrective 

action. 

(a) The agency shall review data 

collected and aggregated pursuant to 

section 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 Web site 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 Web site 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 for at least 10 years after the 

date of its initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.193 Audits of standards. 

(a) An audit shall be considered 

independent if it is conducted by: 

(1) A correctional monitoring body 

that is not part of the agency but that is 

part of, or authorized by, the relevant 

State or local government; 

(2) An auditing entity that is within 

the agency but separate from its normal 

chain of command, such as an inspector 

general or ombudsperson who reports 


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directly to the agency head or to the 

agency’s governing board; or 

(3) Other outside individuals with 

relevant experience. 

(b) No audit may be conducted by an 

auditor who has received financial 

compensation from the agency being 

audited within the three years prior to 

the agency’s retention of the auditor. 

(c) 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 audits. 

(d) All auditors shall be certified by 

the Department of Justice to conduct 

such audits, and shall be re-certified 

every three years. 

(e) The Department of Justice shall 

prescribe methods governing the 

conduct of such audits, including 

provisions for reasonable inspections of 

facilities, review of documents, and 

interviews of staff and detainees. The 

Department of Justice also shall 

prescribe the minimum qualifications 

for auditors. 

(f) The agency shall enable the auditor 

to enter and tour facilities, review 

documents, and interview staff and 

detainees to conduct a comprehensive 

audit. 

(g) The agency shall ensure that the 

auditor’s final report is published on the 

agency’s Web site if it has one or is 

otherwise made readily available to the 

public. 

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. 

(b) An agency shall employ or 

designate an upper-level agency-wide 

PREA coordinator, who may be full-time 

or part-time, 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 contracts or 

contract renewals the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contracts or contract 

renewals shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with 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 

determine the adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect residents against 

sexual abuse. In calculating such levels, 

agencies shall take into consideration 

the physical layout of each facility, the 

composition of the resident population, 

and any other relevant factors. 

(b) The facility shall also establish a 

plan for how to conduct staffing and, 

where applicable, video monitoring, in 

circumstances where the levels 

established in paragraph (a) of this 

section are not attained. 

(c) Each year, the facility shall assess, 

and determine whether adjustments are 

needed to: 

(1) The staffing levels established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; and 

(3) The agency’s deployment of video 

monitoring systems and other 

technologies. 

§ 115.214 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or visual 

body cavity searches except in case of 

emergency or when performed by 

medical practitioners. 

(b) The facility shall document all 

such cross-gender searches. 

(c) 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 the case of 

emergency, by accident, or when such 

viewing is incidental to routine cell 

checks. 

(d) The facility shall not examine a 

transgender resident to determine the 

resident’s genital status unless the 

resident’s genital status is unknown. 

Such examination shall be conducted in 

private by a medical practitioner. 

(e) Following classification, the 

agency shall implement procedures to 

exempt from non-emergency crossgender pat-down searches those 

residents who have suffered 

documented prior cross-gender sexual 

abuse while incarcerated. 

(f) The agency shall train security staff 

in how to conduct cross-gender patdown searches, and searches of 

transgender residents, in a professional 

and respectful manner, and in the least 

intrusive manner. 

§ 115.215 Accommodating residents with 

special needs. 

(a) The agency shall ensure that 

residents who are limited English 

proficient, deaf, or disabled are able to 

report sexual abuse and sexual 

harassment to staff directly or through 

other established reporting mechanisms, 

such as abuse hotlines, without relying 

on resident interpreters, absent exigent 

circumstances. 

(b) The agency shall make 

accommodations to convey verbally all 

written information about sexual abuse 

policies, including how to report sexual 

abuse and sexual harassment, to 

residents who have limited reading 

skills or who are visually impaired. 

§ 115.216 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote 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. 

(b) Before hiring new employees, the 

agency shall: 

(1) Perform a criminal background 

check; and 

(2) Consistent with Federal, State, and 

local law, make its best effort to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse. 

(c) The agency shall either conduct 

criminal background checks of current 

employees at least every five years or 

have in place a system for otherwise 

capturing such information for current 

employees. 

(d) The agency shall also ask all 

applicants and employees directly about 

previous misconduct in written 

applications for hiring or promotions, in 

interviews for hiring or promotions, and 

in any interviews or written selfevaluations conducted as part of 

reviews of current employees. 

(e) Material omissions, or the 

provision of materially false 

information, shall be grounds for 

termination. 

(f) Unless prohibited by law, the 

agency shall provide information on 


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substantiated allegations of sexual abuse 

involving a former employee upon 

receiving a request from an institutional 

employer for whom such employee has 

applied to work. 

§ 115.217 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 

§ 115.221 Evidence protocol and forensic 

medical exams. 

(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 adapted from 

or otherwise based on the 2004 U.S. 

Department of Justice’s Office on 

Violence Against Women publication ‘‘A 

National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ subsequent updated 

editions, or similarly comprehensive 

and authoritative protocols developed 

after 2010. 

(c) The agency shall offer all victims 

of sexual abuse access to forensic 

medical exams performed by qualified 

medical practitioners, whether onsite or 

at an outside facility, without financial 

cost, where evidentiarily or medically 

appropriate. 

(d) The agency shall make available to 

the victim a qualified staff member or a 

victim advocate from a communitybased organization that provides 

services to sexual abuse victims. 

(e) As requested by the victim, the 

qualified staff member or victim 

advocate shall accompany and support 

the victim through the forensic medical 

exam process and the investigatory 

process 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 inform the investigating entity of 

these policies. 

(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 institutional settings; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in institutional settings. 

(h) For the purposes of this standard, 

a qualified staff member shall be an 

individual who is employed by a facility 

and has received education concerning 

sexual assault and forensic examination 

issues in general. 

§ 115.222 Agreements with outside public 

entities and community service providers. 

(a) The agency shall 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 

resident reports of sexual abuse and 

sexual harassment to agency officials 

pursuant to § 115.251, unless the agency 

enables residents 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. 

(b) The agency also 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. 

(c) The agency shall maintain copies 

of agreements or documentation 

showing attempts to enter into 

agreements. 

§ 115.223 Policies to ensure investigation 

of allegations. 

(a) The agency shall 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, unless the allegation 

does not involve potentially criminal 

behavior, and shall publish such policy 

on its Web site. 

(b) If a separate entity is responsible 

for conducting criminal investigations, 

such Web site publication shall describe 

the responsibilities of both the agency 

and the investigating entity. 

(c) Any State entity responsible for 

conducting criminal or administrative 

investigations of sexual abuse in 

institutional settings shall have in place 

a policy governing the conduct of such 

investigations. 

(d) Any Department of Justice 

component responsible for conducting 

criminal or administrative 

investigations of sexual abuse in 

institutional settings 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 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; 

(5) The dynamics of sexual abuse in 

confinement; 

(6) The common reactions of sexual 

abuse victims; 

(7) How to detect and respond to signs 

of threatened and actual sexual abuse; 

(8) How to avoid inappropriate 

relationships with residents; and 

(9) How to communicate effectively 

and professionally with residents, 

including lesbian, gay, bisexual, 

transgender, or intersex residents. 

(b) Such training shall be tailored to 

the gender of the residents at the 

employee’s facility. 

(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 annual refresher 

information to all employees to ensure 

that they know the agency’s current 

sexual abuse policies and procedures. 

(d) The agency shall document, via 

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 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 


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sexual abuse and sexual harassment and 

informed how to report sexual abuse. 

(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, staff 

shall inform residents of 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 abuse or 

harassment, and regarding agency 

sexual abuse response policies and 

procedures. 

(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. 

(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; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to victims of sexual 

abuse; and 

(4) How and to whom to report 

allegations or suspicions of sexual 

abuse. 

(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. 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.241 Screening for risk of 

victimization and abusiveness. 

(a) All residents shall be screened 

during the intake process or during an 

initial classification process to assess 

their risk of being sexually abused by 

other residents or sexually abusive 

toward other residents. 

(b) Such screening shall be conducted 

using an objective screening instrument, 

blank copies of which shall be made 

available to the public upon request. 

(c) The initial classification process 

shall consider, at a minimum, the 

following criteria to screen residents for 

risk of sexual victimization: 

(1) Whether the resident has a mental, 

physical, or developmental disability; 

(2) The age of the resident, including 

whether the resident is a juvenile; 

(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 gay, 

lesbian, bisexual, transgender, or 

intersex; 

(8) Whether the resident has 

previously experienced sexual 

victimization; and 

(9) The resident’s own perception of 

vulnerability. 

(d) The initial classification process 

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 screening residents for 

risk of being sexually abusive. 

(e) An agency shall conduct such 

initial classification within 30 days of 

the resident’s confinement. 

(f) Residents shall be rescreened when 

warranted due to a referral, request, or 

incident of sexual victimization. 

Residents may not be disciplined for 

refusing to answer particular questions 

or for not disclosing complete 

information. 

(g) The agency shall implement 

appropriate controls on the 

dissemination of responses to screening 

questions within the facility 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 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) Such resident’s own views with 

respect to his or her own safety shall be 

given serious consideration. 

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 

abuse and sexual harassment, and staff 

neglect or violation of responsibilities 

that may have contributed to an 

incident of sexual abuse. 

(b) Pursuant to § 115.222, the agency 

shall also make its best efforts to 

provide at least one way for residents 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 


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ombudsperson, and that is able to 

receive and immediately forward 

resident reports of sexual abuse and 

sexual harassment to agency officials. 

(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)(1) The agency shall provide a 

resident a minimum of 20 days 

following the occurrence of an alleged 

incident of sexual abuse to file a 

grievance regarding such incident. 

(2) The agency shall grant an 

extension of no less than 90 days from 

the deadline for filing such a grievance 

when the resident provides 

documentation, such as from a medical 

or mental health provider or counselor, 

that filing a grievance within the normal 

time limit was or would likely be 

impractical, whether due to physical or 

psychological trauma arising out of an 

incident of sexual abuse, the resident 

having been held for periods of time 

outside of the facility, or other 

circumstances indicating impracticality. 

Such an extension shall be afforded 

retroactively to a resident whose 

grievance is filed subsequent to the 

normal filing deadline. 

(b)(1) The agency shall issue a final 

agency decision on the merits 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 appealing any adverse 

ruling. 

(3) An 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. 

(4) The agency shall notify the 

resident in writing of any such 

extension and provide a date by which 

a decision will be made. 

(c)(1)Whenever an agency is notified 

of an allegation that a resident has been 

sexually abused, other than by 

notification from another resident, it 

shall consider such notification as a 

grievance or request for informal 

resolution submitted on behalf of the 

alleged resident victim for purposes of 

initiating the agency administrative 

remedy process. 

(2) The agency shall inform the 

alleged victim that a grievance or 

request for informal resolution has been 

submitted on his or her behalf and shall 

process it under the agency’s normal 

procedures unless the alleged victim 

expressly requests that it not be 

processed. The agency shall document 

any such request. 

(3) The agency may require the 

alleged victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(4) The agency shall also establish 

procedures to allow the parent or legal 

guardian of a juvenile to file a grievance 

regarding allegations of sexual abuse, 

including appeals, on behalf of such 

juvenile. 

(d)(1) An agency shall establish 

procedures for the filing of an 

emergency grievance where a resident is 

subject to a substantial risk of imminent 

sexual abuse. 

(2) After receiving such an emergency 

grievance, the agency shall immediately 

forward it to a level of review at which 

corrective action may be taken, provide 

an initial response within 48 hours, and 

a final agency decision within five 

calendar days. 

(3) The agency may opt not to take 

such actions if it determines that no 

emergency exists, in which case it may 

either: 

(i) Process the grievance as a normal 

grievance; or 

(ii) Return the grievance to the 

resident, and require the resident to 

follow the agency’s normal grievance 

procedures. 

(4) The agency shall provide a written 

explanation of why the grievance does 

not qualify as an emergency. 

(5) An agency may discipline a 

resident for intentionally filing an 

emergency grievance where no 

emergency exists. 

§ 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, as 

confidential as possible, consistent with 

agency security needs. 

(b) The facility shall inform residents, 

prior to giving them access, of the extent 

to which such communications will be 

monitored. 

§ 115.254 Third-party reporting. 

The facility shall establish a method 

to receive third-party reports of sexual 

abuse. The facility shall distribute 

publicly information on how to report 

sexual abuse 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 that occurred 

in an institutional setting; retaliation 

against residents or staff who reported 

abuse; and any staff neglect or violation 

of responsibilities that may have 

contributed to an incident of sexual 

abuse 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 

those who need to know, 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 at the initiation of 

services. 

(d) If the 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, including 

third-party and anonymous reports, to 

the facility’s designated investigators. 

§ 115.262 Reporting to other confinement 

facilities. 

(a) Within 14 days of receiving an 

allegation that a resident was sexually 

abused while confined at another 

community corrections facility, the head 

of the facility that received the 

allegation shall notify in writing the 

head of the facility or appropriate 

central office of the agency where the 

alleged abuse occurred. 

(b) The facility head or central office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.263 Staff first responder duties. 

(a) Upon learning that a resident was 

sexually abused within a time period 

that still allows for the collection of 

physical evidence, the first security staff 

member to respond to the report shall be 

required to: 


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(1) Separate the alleged victim and 

abuser; 

(2) Seal and preserve any crime scene; 

and 

(3) Request the victim not to take any 

actions that could destroy physical 

evidence, including washing, brushing 

teeth, changing clothes, urinating, 

defecating, smoking, drinking, or eating. 

(b) If the first staff responder is not a 

security staff member, he or she shall be 

required to request the victim not to 

take any actions that could destroy 

physical evidence and then notify 

security staff. 

§ 115.264 Coordinated response. 

The facility shall coordinate actions 

taken in response to an incident of 

sexual abuse, among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 

§ 115.265 Agency protection against 

retaliation. 

(a) The agency shall 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. 

(b) The agency shall employ multiple 

protection measures, including 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) The agency shall monitor the 

conduct and treatment of residents or 

staff who have reported sexual abuse or 

cooperated with investigations, 

including any resident disciplinary 

reports, housing, or program changes, 

for at least 90 days following their 

report or cooperation to see if there are 

changes that may suggest possible 

retaliation by residents or staff, and 

shall act promptly to remedy any such 

retaliation. The agency shall continue 

such monitoring beyond 90 days if the 

initial monitoring indicates a continuing 

need. 

(d) The agency shall not enter into or 

renew any collective bargaining 

agreement or other agreement that limits 

the agency’s ability to remove alleged 

staff abusers from contact with victims 

pending an investigation. 

Investigations 

§ 115.271 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse, it shall do so promptly, 

thoroughly, and objectively, using 

investigators who have received special 

training in sexual abuse investigations 

pursuant to § 115.234, and shall 

investigate all allegations of sexual 

abuse, including third-party and 

anonymous reports. 

(b) 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. 

(c) 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. 

(d) The credibility of a 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. 

(e) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act facilitated 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 findings. 

(f) 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. 

(g) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(h) The agency shall retain such 

investigative records for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(i) 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. 

(j) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(k) 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 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, the agency shall 

subsequently inform the resident 

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) The requirement to inform the 

inmate shall not apply to allegations 

that have been determined to be 

unfounded. 

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 

touching. 

(c) Sanctions 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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§ 115.277 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) Any prohibition on resident-onresident sexual activity shall not 

consider consensual sexual activity to 

constitute sexual abuse. 

Medical and Mental Care 

§ 115.282 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) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser. 

(c) 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 § 115.263 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(d) Resident victims of sexual abuse 

while incarcerated shall be offered 

timely information about and access to 

all pregnancy-related medical services 

that are lawful in the community and 

sexually transmitted infections 

prophylaxis, where appropriate. 

§ 115.283 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer ongoing 

medical and mental health evaluation 

and treatment to all residents who, 

during their present term of 

incarceration, have been victimized by 

sexual abuse. 

(b) The evaluation and treatment of 

sexual abuse victims shall include 

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 resident 

victims of sexual abuse with medical 

and mental health services consistent 

with the community level of care. 

(d) All prisons shall conduct a mental 

health evaluation of all known resident 

abusers within 60 days of learning of 

such abuse history and offer treatment 

when deemed appropriate by qualified 

mental health practitioners. 

(e) Resident victims of sexually 

abusive vaginal penetration while 

incarcerated shall be offered pregnancy 

tests. 

(f) If pregnancy results, such victims 

shall receive timely information about 

and access to all pregnancy-related 

medical services that are lawful in the 

community. 

Data Collection and Review 

§ 115.286 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) The review team shall include 

upper management officials, with input 

from line supervisors, investigators, and 

medical or mental health practitioners. 

(c) 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 or otherwise 

caused by the perpetrator or victim’s 

race, ethnicity, sexual orientation, gang 

affiliation, or 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 and 

any recommendations for improvement 

and submit such report to the facility 

head and PREA coordinator, if any. 

§ 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’s Bureau of Justice 

Statistics. 

(d) The agency shall collect data from 

multiple sources, 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 

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; 

(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. 


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(c) The agency’s report shall be 

approved by the agency head and made 

readily available to the public through 

its Web site 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 Web site 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 for at least 10 years after the 

date of its initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.293 Audits of standards. 

(a) An audit shall be considered 

independent if it is conducted by: 

(1) A correctional monitoring body 

that is not part of the agency but that is 

part of, or authorized by, the relevant 

State or local government; 

(2) An auditing entity that is within 

the agency but separate from its normal 

chain of command, such as an inspector 

general or ombudsperson who reports 

directly to the agency head or to the 

agency’s governing board; or 

(3) Other outside individuals with 

relevant experience. 

(b) No audit may be conducted by an 

auditor who has received financial 

compensation from the agency being 

audited within the three years prior to 

the agency’s retention of the auditor. 

(c) 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 audits. 

(d) All auditors shall be certified by 

the Department of Justice to conduct 

such audits, and shall be re-certified 

every three years. 

(e) The Department of Justice shall 

prescribe methods governing the 

conduct of such audits, including 

provisions for reasonable inspections of 

facilities, review of documents, and 

interviews of staff and residents. The 

Department of Justice also shall 

prescribe the minimum qualifications 

for auditors. 

(f) The agency shall enable the auditor 

to enter and tour facilities, review 

documents, and interview staff and 

residents to conduct a comprehensive 

audit. 

(g) The agency shall ensure that the 

auditor’s final report is published on the 

agency’s Web site if it has one or is 

otherwise made readily available to the 

public. 

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 to develop, 

implement, and oversee agency efforts 

to comply with the PREA standards in 

all of its facilities. 

(c) The PREA coordinator shall be a 

full-time position in all agencies that 

operate facilities whose total rated 

capacity exceeds 1000 residents, but 

may be designated as a part-time 

position in agencies whose total rated 

capacity does not exceed 1000 residents. 

(d) An agency whose facilities have a 

total rated capacity exceeding 1000 

residents shall also designate a PREA 

coordinator for each facility, who may 

be full-time or part-time. 

§ 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 contracts or 

contract renewals the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contracts or contract 

renewals shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with PREA 

standards. 

§ 115.313 Supervision and monitoring. 

(a) For each facility, the agency shall 

determine the adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect residents against 

sexual abuse. In calculating such levels, 

agencies shall take into consideration 

the physical layout of each facility, the 

composition of the resident population, 

and any other relevant factors. 

(b) The facility shall also establish a 

plan for how to conduct staffing and, 

where applicable, video monitoring, in 

circumstances where the levels 

established in paragraph (a) of this 

section are not attained. 

(c) Each year, the facility shall assess, 

and determine whether adjustments are 

needed to: 

(1) The staffing levels established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; and 

(3) The agency’s deployment of video 

monitoring systems and other 

technologies. 

(d) Each secure facility shall 

implement a policy and practice of 

having intermediate-level or higherlevel 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. 

§ 115.314 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or visual 

body cavity searches except in case of 

emergency or when performed by 

medical practitioners. 

(b) The facility shall document all 

such cross-gender searches. 

(c) 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 the case of 

emergency, by accident, or when such 

viewing is incidental to routine cell 

checks. 

(d) The facility shall not examine a 

transgender resident to determine the 

resident’s genital status unless the 

resident’s genital status is unknown. 

Such examination shall be conducted in 

private by a medical practitioner. 

(e) The agency shall not conduct 

cross-gender pat-down searches except 

in the case of emergency or other 

unforeseen circumstances. Any such 

search shall be documented and 

justified. 

(f) The agency shall train security staff 

in how to conduct cross-gender patdown searches, and searches of 

transgender residents, in a professional 

and respectful manner, and in the least 

intrusive manner possible, consistent 

with security needs. 


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§ 115.315 Accommodating residents with 

special needs. 

(a) The agency shall ensure that 

residents who are limited English 

proficient, deaf, or disabled are able to 

report sexual abuse and sexual 

harassment to staff directly or through 

other established reporting mechanisms, 

such as abuse hotlines, without relying 

on resident interpreters, absent exigent 

circumstances. 

(b) The agency shall make 

accommodations to convey verbally all 

written information about sexual abuse 

policies, including how to report sexual 

abuse and sexual harassment, to 

residents who have limited reading 

skills or who are visually impaired. 

§ 115.316 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote 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. 

(b) Before hiring new employees, the 

agency shall: 

(1) Perform a criminal background 

check; and 

(2) Consistent with Federal, State, and 

local law, make its best effort to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse. 

(c) The agency shall either conduct 

criminal background checks of current 

employees at least every five years or 

have in place a system for otherwise 

capturing such information for current 

employees. 

(d) The agency shall also ask all 

applicants and employees directly about 

previous misconduct in written 

applications for hiring or promotions, in 

interviews for hiring or promotions, and 

in any interviews or written selfevaluations conducted as part of 

reviews of current employees. 

(e) Material omissions, or the 

provision of materially false 

information, shall be grounds for 

termination. 

(f) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

involving a former employee upon 

receiving a request from an institutional 

employer for whom such employee has 

applied to work. 

§ 115.317 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 exams. 

(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 adapted from 

or otherwise based on the 2004 U.S. 

Department of Justice’s Office on 

Violence Against Women publication ‘‘A 

National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ subsequent updated 

editions, or similarly comprehensive 

and authoritative protocols developed 

after 2010. 

(c) The agency shall offer all residents 

who experience sexual abuse access to 

forensic medical exams performed by 

qualified medical practitioners, whether 

onsite or at an outside facility, without 

financial cost, where evidentiarily or 

medically appropriate. 

(d) The agency shall make available to 

the victim a qualified staff member or a 

victim advocate from a communitybased organization that provides 

services to sexual abuse victims. 

(e) As requested by the victim, the 

qualified staff member or victim 

advocate shall accompany and support 

the victim through the forensic medical 

exam process and the investigatory 

process 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 inform the investigating entity of 

these policies. 

(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 institutional settings; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in institutional settings. 

(h) For the purposes of this standard, 

a qualified staff member shall be an 

individual who is employed by a facility 

and has received education concerning 

sexual assault and forensic examination 

issues in general. 

§ 115.322 Agreements with outside public 

entities and community service providers. 

(a) The agency shall 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 

resident reports of sexual abuse and 

sexual harassment to agency officials 

pursuant to § 115.351, unless the agency 

enables residents 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. 

(b) The agency also shall 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, 

including helping resident sexual abuse 

victims during community re-entry, 

unless the agency is legally required to 

provide such services to all residents. 

(c) The agency shall maintain copies 

of agreements or documentation 

showing attempts to enter into 

agreements. 

§ 115.323 Policies to ensure investigation 

of allegations. 

(a) The agency shall 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, unless the allegation 

does not involve potentially criminal 

behavior, and shall publish such policy 

on its Web site. 

(b) If a separate entity is responsible 

for conducting criminal investigations, 

such Web site publication shall describe 

the responsibilities of both the agency 

and the investigating entity. 

(c) Any State entity responsible for 

conducting criminal or administrative 

investigations of sexual abuse in 

juvenile facilities shall have in place a 

policy governing the conduct of such 

investigations. 

(d) Any Department of Justice 

component responsible for conducting 

criminal or administrative 

investigations of sexual abuse in 

juvenile facilities shall have in place a 

policy governing the conduct of such 

investigations. 


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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 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; 

(5) The dynamics of sexual abuse in 

juvenile facilities; 

(6) The common reactions of juvenile 

victims of sexual abuse; 

(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, or intersex residents; and 

(10) Relevant laws related to 

mandatory reporting. 

(b) Such training shall be tailored to 

the unique needs and attributes of 

residents of juvenile facilities. 

(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 annual refresher 

information to all employees to ensure 

that they know the agency’s current 

sexual abuse policies and procedures. 

(d) The agency shall document, via 

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 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 sexual abuse. 

(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, staff 

shall inform residents in an ageappropriate fashion of the agency’s zerotolerance 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 

age-appropriate education to residents 

either in person or via video regarding 

their rights to be free from sexual abuse 

and sexual harassment and to be free 

from retaliation for reporting such abuse 

or harassment, and regarding agency 

sexual abuse response policies and 

procedures. 

(c) Current residents who have not 

received such education shall be 

educated within one year of the 

effective date of the PREA standards, 

and the agency shall provide refresher 

information to all residents at least 

annually and whenever a resident is 

transferred to a different facility, to 

ensure that they know the agency’s 

current sexual abuse policies and 

procedures. 

(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; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to juvenile victims of 

sexual abuse; and 

(4) How and to whom to report 

allegations or suspicions of sexual 

abuse. 

(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. 

Assessment and Placement of Residents 

§ 115.341 Obtaining information from 

residents. 

(a) During the intake process 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 assessment shall be 

conducted using an objective screening 

instrument, blank copies of which shall 

be made available to the public upon 

request. 

(c) At a minimum, the agency shall 

attempt to ascertain information about: 

(1) Prior sexual victimization or 

abusiveness; 

(2) Sexual orientation, transgender, or 

intersex status; 

(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; 


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(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 

residents 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 

residents’ files. 

(e) The agency shall implement 

appropriate controls on the 

dissemination of responses to screening 

questions within the facility 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 about the resident 

during the intake process and 

subsequently to make placement 

decisions for each resident based upon 

the objective screening instrument with 

the goal of keeping all residents safe and 

free from sexual abuse. 

(b) When determining housing, bed, 

program, education and work 

assignments for residents, the agency 

must take into account: 

(1) A resident’s age; 

(2) The nature of his or her offense; 

(3) Any mental or physical disability 

or mental illness; 

(4) Any history of sexual 

victimization or engaging in sexual 

abuse; 

(5) His or her level of emotional and 

cognitive development; 

(6) His or her identification as lesbian, 

gay, bisexual, transgender, or intersex; 

and 

(7) Any other information obtained 

about the resident pursuant to 

§ 115.341. 

(c) 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. 

(d) 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. 

(e) The agency shall make an 

individualized determination about 

whether a transgender resident should 

be housed with males or with females. 

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 an 

incident of sexual abuse. 

(b) Pursuant to § 115.322, the agency 

shall also make its best efforts to 

provide at least one way for residents 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, and that is able to 

receive and immediately forward 

resident reports of sexual abuse and 

sexual harassment to agency officials. 

(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. 

§ 115.352 Exhaustion of administrative 

remedies. 

(a)(1) The agency shall provide a 

resident a minimum of 20 days 

following the occurrence of an alleged 

incident of sexual abuse to file a 

grievance regarding such incident. 

(2) The agency shall grant an 

extension of no less than 90 days from 

the deadline for filing such a grievance 

when the resident provides 

documentation, such as from a medical 

or mental health provider or counselor, 

that filing a grievance within the normal 

time limit was or would likely be 

impractical, whether due to physical or 

psychological trauma arising out of an 

incident of sexual abuse, the resident 

having been held for periods of time 

outside of the facility, or other 

circumstances indicating impracticality. 

Such an extension shall be afforded 

retroactively to a resident whose 

grievance is filed subsequent to the 

normal filing deadline. 

(b)(1) The agency shall issue a final 

agency decision on the merits 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 appealing any adverse 

ruling. 

(3) An 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. 

(4) The agency shall notify the 

resident in writing of any such 

extension and provide a date by which 

a decision will be made. 

(c)(1)Whenever an agency is notified 

of an allegation that a resident has been 

sexually abused, other than by 

notification from another resident, it 

shall consider such notification as a 

grievance or request for informal 

resolution submitted on behalf of the 

alleged resident victim for purposes of 

initiating the agency administrative 

remedy process. 

(2) The agency shall inform the 

alleged victim that a grievance or 

request for informal resolution has been 

submitted on his or her behalf and shall 

process it under the agency’s normal 

procedures unless the alleged victim 

expressly requests that it not be 

processed. The agency shall document 

any such request. 

(3) The agency may require the 

alleged victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(4) The agency shall also establish 

procedures to allow the parent or legal 

guardian of a juvenile to file a grievance 

regarding allegations of sexual abuse, 

including appeals, on behalf of such 

juvenile. 

(d)(1) An agency shall establish 

procedures for the filing of an 

emergency grievance where a resident is 

subject to a substantial risk of imminent 

sexual abuse. 

(2) After receiving such an emergency 

grievance, the agency shall immediately 

forward it to a level of review at which 

corrective action may be taken, provide 

an initial response within 48 hours, and 

a final agency decision within five 

calendar days. 

(3) The agency may opt not to take 

such actions if it determines that no 

emergency exists, in which case it may 

either: 

(i) Process the grievance as a normal 

grievance; or 

(ii) Return the grievance to the 

resident, and require the resident to 

follow the agency’s normal grievance 

procedures. 

(4) The agency shall provide a written 

explanation of why the grievance does 

not qualify as an emergency. 

(5) An agency may discipline a 

resident for intentionally filing an 

emergency grievance where no 

emergency exists. 


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§ 115.353 Resident access to outside 

support services and legal representation. 

(a) In addition to providing onsite 

mental health care services, 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 tollfree 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, as confidential as 

possible, consistent with agency 

security needs and with applicable law. 

(b) The facility shall inform residents, 

prior to giving them access, of the extent 

to which such communications will be 

monitored. 

(c) The facility shall also provide 

residents with reasonable and 

confidential access to their attorney or 

other legal representation and 

reasonable access to parents or legal 

guardians. 

§ 115.354 Third-party reporting. 

The facility shall establish a method 

to receive third-party reports of sexual 

abuse. The facility shall distribute 

publicly, including to residents’ 

attorneys and parents or legal guardians, 

information on how to report sexual 

abuse 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 

that occurred in an institutional setting; 

retaliation against residents or staff who 

reported abuse; and any staff neglect or 

violation of responsibilities that may 

have contributed to an incident of 

sexual abuse 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 sexual abuse 

report to anyone other than those who 

need to know, 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. 

(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 central 

office of the agency and the 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 victim is under the 

guardianship of the child welfare 

system, the report shall be made to the 

victim’s caseworker instead of the 

victim’s parents or legal guardians. 

(3) If a juvenile court retains 

jurisdiction over a juvenile, the facility 

head or designee shall also report the 

allegation to such court within 14 days 

of receiving the allegation, unless 

additional time is needed to comply 

with applicable rules governing ex parte 

communications. 

(f) The facility shall report all 

allegations of sexual abuse, including 

third-party and anonymous reports, to 

the facility’s designated investigators. 

§ 115.362 Reporting to other confinement 

facilities. 

(a) Within 14 days of 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 in 

writing the head of the facility or 

appropriate central office of the agency 

where the alleged abuse occurred and 

shall also notify the appropriate 

investigative agency. 

(b) The facility head or central office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.363 Staff first responder duties. 

Upon learning that a resident was 

sexually abused within a time period 

that still allows for the collection of 

physical evidence, the first staff member 

to respond to the report shall be 

required to: 

(a) Separate the alleged victim and 

abuser; 

(b) Seal and preserve any crime scene; 

and 

(c) Request the victim not to take any 

actions that could destroy physical 

evidence, including washing, brushing 

teeth, changing clothes, urinating, 

defecating, smoking, drinking, or eating. 

§ 115.364 Coordinated response. 

The facility shall coordinate actions 

taken in response to an incident of 

sexual abuse among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 

§ 115.365 Agency protection against 

retaliation. 

(a) The agency shall 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. 

(b) The agency shall employ multiple 

protection measures, including 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) The agency shall monitor the 

conduct or treatment of residents or staff 

who have reported sexual abuse or 

cooperated with investigations, 

including any resident disciplinary 

reports, housing, or program changes, 

for at least 90 days following their 

report or cooperation, to see if there are 

changes that may suggest possible 

retaliation by residents or staff, and 

shall act promptly to remedy any such 

retaliation. The agency shall continue 

such monitoring beyond 90 days if the 

initial monitoring indicates a continuing 

need. 

(d) The agency shall not enter into or 

renew any collective bargaining 

agreement or other agreement that limits 

the agency’s ability to remove alleged 

staff abusers from contact with residents 

pending an investigation. 

§ 115.366 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, it shall do so promptly, 

thoroughly, and objectively, using 

investigators who have received special 

training in sexual abuse investigations 

involving juvenile victims pursuant to 

§ 115.334, and shall investigate all 

allegations of sexual abuse, including 

third-party and anonymous reports. 


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(b) 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. 

(c) The agency shall not terminate an 

investigation solely because the source 

of the allegation recants the allegation. 

(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 a 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. 

(f) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act facilitated 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 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 such 

investigative records 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. 

§ 115.372 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 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, the agency shall 

subsequently inform the resident 

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) The requirement to inform the 

inmate shall not apply to allegations 

that have been determined to be 

unfounded. 

Discipline 

§ 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 

touching. 

(c) Sanctions 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 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) Any prohibition on resident-onresident sexual activity shall not 

consider consensual sexual activity to 

constitute sexual abuse. 

Medical and Mental Care 

§ 115.381 Medical and mental health 

screenings; history of sexual abuse. 

(a) All facilities shall ask residents 

about prior sexual victimization during 

the intake process or classification 

screenings. 

(b) If a resident discloses 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 reception 

with a medical or mental health 

practitioner within 14 days of the intake 

screening. 

(c) Unless such intake or classification 

screening precedes adjudication, the 

facility shall also ask residents about 

prior sexual abusiveness. 

(d) If a resident discloses prior sexual 

abusiveness, whether it occurred in an 

institutional setting or in the 

community, staff shall ensure that the 

resident is offered a follow-up reception 

with a mental health practitioner within 

14 days of the intake screening. 


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(e) Subject to mandatory reporting 

laws, 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 required by agency policy and 

Federal, State, or local law, to inform 

treatment plans and security and 

management decisions, including 

housing, bed, work, education, and 

program assignments. 

(f) 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) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser. 

(c) 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 § 115.363 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(d) Resident victims of sexual abuse 

while incarcerated shall be offered 

timely information about and access to 

all pregnancy-related medical services 

that are lawful in the community and 

sexually transmitted infections 

prophylaxis, where appropriate. 

§ 115.383 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer ongoing 

medical and mental health evaluation 

and treatment to all residents who, 

during their present term of 

incarceration, have been victimized by 

sexual abuse. 

(b) The evaluation and treatment of 

sexual abuse victims shall include 

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 resident 

victims of sexual abuse with medical 

and mental health services consistent 

with the community level of care. 

(d) The facility shall conduct a mental 

health evaluation of all known resident 

abusers within 60 days of learning of 

such abuse history and offer treatment 

when deemed appropriate by qualified 

mental health practitioners. 

(e) Resident victims of sexually 

abusive vaginal penetration while 

incarcerated shall be offered pregnancy 

tests. 

(f) If pregnancy results, such victims 

shall receive timely information about 

and access to all pregnancy-related 

medical services that are lawful in the 

community. 

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) The review team shall include 

upper management officials, with input 

from line supervisors, investigators, and 

medical or mental health practitioners. 

(c) 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 or otherwise 

caused by the perpetrator or victim’s 

race, ethnicity, sexual orientation, gang 

affiliation, or 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 and 

any recommendations for improvement 

and submit such report to the facility 

head and PREA coordinator, if any. 

§ 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’s Bureau of Justice 

Statistics. 

(d) The agency shall collect data from 

multiple sources, 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 

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 Web site 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. 

(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 Web site 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 for at least 10 years after the 

date of its initial collection unless 


jlentini on DSKJ8SOYB1PROD with PROPOSALS3
6302 Federal Register / Vol. 76, No. 23 / Thursday, February 3, 2011 / Proposed Rules 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.393 Audits of standards. 

(a) An audit shall be considered 

independent if it is conducted by: 

(1) A correctional monitoring body 

that is not part of the agency but that is 

part of, or authorized by, the relevant 

State or local government; 

(2) An auditing entity that is within 

the agency but separate from its normal 

chain of command, such as an inspector 

general or ombudsperson who reports 

directly to the agency head or to the 

agency’s governing board; or 

(3) Other outside individuals with 

relevant experience. 

(b) No audit may be conducted by an 

auditor who has received financial 

compensation from the agency being 

audited within the three years prior to 

the agency’s retention of the auditor. 

(c) 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 audits. 

(d) All auditors shall be certified by 

the Department of Justice to conduct 

such audits, and shall be re-certified 

every three years. 

(e) The Department of Justice shall 

prescribe methods governing the 

conduct of such audits, including 

provisions for reasonable inspections of 

facilities, review of documents, and 

interviews of staff and residents. The 

Department of Justice also shall 

prescribe the minimum qualifications 

for auditors. 

(f) The agency shall enable the auditor 

to enter and tour facilities, review 

documents, and interview staff and 

residents to conduct a comprehensive 

audit. 

(g) The agency shall ensure that the 

auditor’s final report is published on the 

agency’s Web site if it has one or is 

otherwise made readily available to the 

public. 

Dated: January 24, 2011. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2011–1905 Filed 2–2–11; 8:45 am] 

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