Vol. 77 Wednesday, 

No. 119 June 20, 2012 

Part II 

Department of Justice 

28 CFR Part 115 

National Standards To Prevent, Detect, and Respond to Prison Rape; 

Final Rule 


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37106 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

DEPARTMENT OF JUSTICE 

28 CFR Part 115 

[Docket No. OAG–131; AG Order No. 3331– 

2012] 

RIN 1105–AB34 

National Standards To Prevent, Detect, 

and Respond to Prison Rape 

AGENCY: Department of Justice. 

ACTION: Final rule; request for comment 

on specific issue. 

SUMMARY: The Department of Justice 

(Department) is issuing a final rule 

adopting national standards to prevent, 

detect, and respond to prison rape, as 

required by the Prison Rape Elimination 

Act of 2003 (PREA). In addition, the 

Department is requesting comment on 

one issue relating to staffing in juvenile 

facilities. Further discussion of the final 

rule is found in the Executive Summary. 

DATES: This rule is effective August 20, 

2012. Comments on the juvenile staffing 

ratios set forth in § 115.313 must be 

submitted electronically or postmarked 

no later than 11:59 p.m. on August 20, 

2012. 

ADDRESSES: To ensure proper handling 

of solicited additional comments, please 

reference ‘‘Docket No. OAG–131’’ on all 

written and electronic correspondence. 

Written comments being sent through 

regular or express mail should be sent 

to Robert Hinchman, Senior Counsel, 

Office of Legal Policy, Department of 

Justice, 950 Pennsylvania Avenue NW., 

Room 4252, Washington, DC 20530. 

Comments may also be sent 

electronically through http:// 

www.regulations.gov using the 

electronic comment form provided on 

that site. An electronic copy of this 

document is also available at the http:// 

www.regulations.gov 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 through 

regular or express mail will be 

considered timely if postmarked on or 

before the day the comment period 

closes. 

Posting of Solicited Additional Public 

Comments: Please note that all 

comments received are considered part 

of the public record and made available 

for public inspection online at http:// 

www.regulations.gov and in the 

Department’s public docket. Such 

information includes personal 

identifying information (such as your 

name, address, etc.) voluntarily 

submitted by the commenter. 

You are not required to submit 

personal identifying information in 

order to comment on this rule. 

Nevertheless, if you still want to submit 

personal identifying information (such 

as your name, address, etc.) as part of 

your comment, but do not want it to be 

posted online or made available in the 

public docket, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also place 

all the personal identifying information 

you do not want posted online or made 

available in the public docket in the first 

paragraph of your comment and identify 

what information you want redacted. 

If you want to submit confidential 

business information as part of your 

comment, but do not want it to be 

posted online or made available in the 

public docket, you must include the 

phrase ‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted online or made 

available in the public docket. 

Personal identifying information and 

confidential business information 

identified and located as set forth above 

will be redacted and the comment, in 

redacted form, will be posted online and 

placed in the Department’s public 

docket file. Please note that the Freedom 

of Information Act applies to all 

comments received. If you wish to 

inspect the agency’s public docket file 

in person by appointment, please see 

the FOR FURTHER INFORMATION paragraph. 

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. Executive Summary 

A. Overview 

The goal of this rulemaking is to 

prevent, detect, and respond to sexual 

abuse in confinement facilities, 

pursuant to the Prison Rape Elimination 

Act of 2003. For too long, incidents of 

sexual abuse against incarcerated 

persons have not been taken as seriously 

as sexual abuse outside prison walls. In 

popular culture, prison rape is often the 

subject of jokes; in public discourse, it 

has been at times dismissed by some as 

an inevitable—or even deserved— 

consequence of criminality. 

But sexual abuse is never a laughing 

matter, nor is it punishment for a crime. 

Rather, it is a crime, and it is no more 

tolerable when its victims have 

committed crimes of their own. Prison 

rape can have severe consequences for 

victims, for the security of correctional 

facilities, and for the safety and wellbeing of the communities to which 

nearly all incarcerated persons will 

eventually return. 

In passing PREA, Congress noted that 

the nation was ‘‘largely unaware of the 

epidemic character of prison rape and 

the day-to-day horror experienced by 

victimized inmates.’’ 42 U.S.C. 

15601(12). The legislation established a 

National Prison Rape Elimination 

Commission (NPREC) to ‘‘carry out a 

comprehensive legal and factual study 

of the penalogical [sic], physical, 

mental, medical, social, and economic 

impacts of prison rape in the United 

States’’ and to recommend to the 

Attorney General ‘‘national standards 

for enhancing the detection, prevention, 

reduction, and punishment of prison 

rape.’’ 42 U.S.C. 15606(d)(1), (e)(1). The 

statute defines ‘‘prison’’ as ‘‘any 

confinement facility,’’ including jails, 

police lockups, and juvenile facilities, 

and defines ‘‘rape’’ to include a broad 

range of unwanted sexual activity. 42 

U.S.C. 15609(7) & (9). After over four 

years of work, the NPREC released its 

recommended national standards in 

June 2009 and subsequently disbanded, 

pursuant to the statute. 

The statute directs the Attorney 

General to publish a final rule adopting 

‘‘national standards for the detection, 

prevention, reduction, and punishment 

of prison rape * * * based upon the 

independent judgment of the Attorney 

General, after giving due consideration 

to the recommended national standards 

provided by the Commission * * * and 

being informed by such data, opinions, 

and proposals that the Attorney General 

determines to be appropriate to 

consider.’’ 42 U.S.C. 15607(a)(1)–(2). 

However, the standards may not 

‘‘impose substantial additional costs 


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1The standards themselves refer to persons 

confined in prisons and jails as ‘‘inmates,’’ persons 

confined in lockups as ‘‘detainees,’’ and persons 

confined in juvenile facilities or community 

confinement facilities as ‘‘residents.’’ For 

simplicity, however, the discussion and 

explanation of the standards refer collectively to all 

such persons as ‘‘inmates’’ except where 

specifically discussing lockups, juvenile facilities, 

or community confinement facilities. 

compared to the costs presently 

expended by Federal, State, and local 

prison authorities.’’ 42 U.S.C. 

15607(a)(3). 

The standards are to be immediately 

binding on the Federal Bureau of 

Prisons. 42 U.S.C. 15607(b). A State 

whose Governor does not certify full 

compliance with the standards is 

subject to the loss of five percent of any 

Department of Justice grant funds that it 

would otherwise receive for prison 

purposes, unless the Governor submits 

an assurance that such five percent will 

be used only for the purpose of enabling 

the State to achieve and certify full 

compliance with the standards in future 

years. 42 U.S.C. 15607(c). The final rule 

specifies that the Governor’s 

certification applies to all facilities in 

the State under the operational control 

of the State’s executive branch, 

including facilities operated by private 

entities on behalf of the State’s 

executive branch. 

In addition, any correctional 

accreditation organization that seeks 

Federal grants must adopt accreditation 

standards regarding sexual abuse that 

are consistent with the national 

standards in this final rule. 42 U.S.C. 

15608. 

In drafting the final rule, the 

Department balanced a number of 

competing considerations. In the current 

fiscal climate, governments at all levels 

face budgetary constraints. The 

Department has aimed to craft standards 

that will yield the maximum desired 

effect while minimizing the financial 

impact on jurisdictions. In addition, 

recognizing the unique characteristics of 

individual facilities, agencies, and 

inmate populations, the Department has 

endeavored to afford discretion and 

flexibility to agencies to the extent 

feasible. 

The success of the PREA standards in 

combating sexual abuse in confinement 

facilities will depend on effective 

agency and facility leadership, and the 

development of an agency culture that 

prioritizes efforts to combat sexual 

abuse. Effective leadership and culture 

cannot, of course, be directly mandated 

by rule. Yet implementation of the 

standards will help foster a change in 

culture by institutionalizing policies 

and practices that bring these concerns 

to the fore. 

Notably, the standards are generally 

not outcome-based, but rather focus on 

policies and procedures. While 

performance-based standards generally 

give regulated parties the flexibility to 

achieve regulatory objectives in the 

most cost-effective way, it is difficult to 

employ such standards effectively to 

combat sexual abuse in confinement 

facilities, where significant barriers exist 

to the reporting and investigating of 

such incidents. An increase in incidents 

reported to facility administrators might 

reflect increased abuse, or it might just 

reflect inmates’ increased willingness to 

report abuse, due to the facility’s 

success at assuring inmates that 

reporting will yield positive outcomes 

and not result in retaliation. Likewise, 

an increase in substantiated incidents 

could mean either that a facility is 

failing to protect inmates, or else simply 

that it has improved its effectiveness at 

investigating allegations. For these 

reasons, the standards generally aim to 

inculcate policies and procedures that 

will reduce and ameliorate bad 

outcomes, recognizing that one possible 

consequence of improved performance 

is that evidence of more incidents will 

come to light. 

The standards are not intended to 

define the contours of constitutionally 

required conditions of confinement. 

Accordingly, compliance with the 

standards does not establish a safe 

harbor with regard to otherwise 

constitutionally deficient conditions 

involving inmate sexual abuse. 

Furthermore, while the standards aim to 

include a variety of best practices, they 

do not incorporate every promising 

avenue of combating sexual abuse, due 

to the need to adopt national standards 

applicable to a wide range of facilities, 

while taking costs into consideration. 

The standards consist of policies and 

practices that are attainable by all 

affected agencies, recognizing that 

agencies can, and some currently do, 

exceed the standards in a variety of 

ways. The Department applauds such 

efforts, encourages agencies to adopt or 

continue best practices that exceed the 

standards, and intends to support 

further the identification and adoption 

of innovative methods to protect 

inmates from harm. As described in the 

Background section, the Department is 

continuing its efforts to fund training, 

technical assistance, and other support 

for agencies, including through a 

National Resource Center for the 

Elimination of Prison Rape. 

Because the purposes and operations 

of various types of confinement 

facilities differ significantly, there are 

four distinct sets of standards, each 

corresponding to a different type of 

facility: Adult prisons and jails 

(§§ 115.11–115.93); lockups 

(§§ 115.111–115.193); community 

confinement facilities (§§ 115.211– 

115.293); and juvenile facilities 

(§§ 115.311–115.393). The standards 

also include unified sections on 

definitions (§§ 115.5–115.6) and on 

audits and State compliance 

(§§ 115.401–115.405, 115.501).1

The standards contained in this final 

rule apply to facilities operated by, or 

on behalf of, State and local 

governments and the Department of 

Justice. However, in contrast to the 

proposed rule, the final rule concludes 

that PREA encompasses all Federal 

confinement facilities. Given their 

statutory authorities to regulate 

conditions of detention, other Federal 

departments with confinement facilities 

(including but not limited to the 

Department of Homeland Security) will 

work with the Attorney General to issue 

rules or procedures that will satisfy the 

requirements of PREA. 42 U.S.C. 

15607(a)(2). 

B. Summary of Major Provisions 

This summary of the major provisions 

of the standards does not include every 

single aspect of the standards, nor does 

it capture all distinctions drawn in the 

standards on the basis of facility type or 

size. Agencies that are covered by each 

set of standards should read them in full 

rather than rely exclusively on this 

summary. 

General Prevention Planning. To 

ensure that preventing sexual abuse 

receives appropriate attention, the 

standards require that each agency and 

facility designate a PREA point person 

with sufficient time and authority to 

coordinate compliance efforts. Facilities 

may not hire or promote persons who 

have committed sexual abuse in an 

institutional setting or who have been 

adjudicated to have done so in the 

community, and must perform 

background checks on prospective and 

current employees, unless a system is in 

place to capture such information for 

current employees. A public agency that 

contracts for the confinement of its 

inmates with outside entities must 

include in any new contracts or contract 

renewals the entity’s obligation to adopt 

and comply with the PREA standards. 

Supervision and Monitoring. The 

standards require each facility to 

develop and document a staffing plan, 

taking into account a set of specified 

factors, that provides for adequate levels 

of staffing, and, where applicable, video 

monitoring, to protect inmates against 

sexual abuse. The staffing standard 

further requires all agencies to annually 


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assess, determine, and document 

whether adjustments are needed to the 

staffing levels or deployment of 

monitoring technologies. 

Due to the great variation across 

facilities in terms of size, physical 

layout, and composition of the inmate 

population, it would be impractical to 

require a specified level of staffing. 

Likewise, mandating a subjective 

standard such as ‘‘adequate staffing’’ 

would be extremely difficult to measure. 

Instead, the final standard requires that 

prisons and jails use their best efforts to 

comply with the staffing plan on a 

regular basis and document and justify 

any deviations. Given that staffing 

increases often depend on budget 

approval from an external legislative or 

other governmental entity, this revision 

is designed to support proper staffing 

without discouraging agencies from 

attempting to comply with the PREA 

standards due to financial concerns. 

The ‘‘best efforts’’ language 

encourages agencies to compose the 

most appropriate staffing plan for each 

facility without incentivizing agencies 

to set the bar artificially low in order to 

avoid non-compliance. But if the 

facility’s plan is plainly deficient on its 

face, the facility is not in compliance 

with this standard even if it adheres to 

its plan. 

In addition, the standards contained 

in the final rule require that supervisors 

conduct and document unannounced 

rounds to identify and deter staff sexual 

abuse and sexual harassment. 

Staffing of Juvenile Facilities. The 

standards set minimum staffing levels 

for certain juvenile facilities. As 

discussed in greater detail in the 

appropriate section below, the 

Department seeks additional comment 

on this aspect of the standards, and may 

make changes if warranted in light of 

public comments received. Specifically, 

the standards require secure juvenile 

facilities—i.e., those that do not allow 

residents access to the community—to 

maintain minimum security staff ratios 

of 1:8 during resident waking hours, and 

1:16 during resident sleeping hours, 

except during limited and discrete 

exigent circumstances; deviations from 

the staffing plan in such circumstances 

must be documented. Because 

increasing staffing levels takes time and 

money, this requirement does not go 

into effect until October 2017 except for 

facilities that are already obligated by 

law, regulation, or judicial consent 

decree to maintain at least 1:8 and 1:16 

ratios. 

Juveniles in Adult Facilities. The final 

rule, unlike the proposed rule and the 

NPREC’s recommended standards, 

contains a standard that governs the 

placement of juveniles in adult 

facilities. The standard applies only to 

persons under the age of 18 who are 

under adult court supervision and 

incarcerated or detained in a prison, jail, 

or lockup. Such persons are, for the 

purposes of this standard, referred to as 

‘‘youthful inmates’’ (or, in lockups, 

‘‘youthful detainees’’). By contrast, 

youth in the juvenile justice system are 

already protected by the Juvenile Justice 

and Delinquency Prevention Act 

(JJDPA), 42 U.S.C. 5601 et seq., which 

provides formula grants to States 

conditioned on (subject to minimal 

exceptions) separating juveniles from 

adults in secure facilities and removing 

juveniles from adult jails and lockups. 

This standard imposes three 

requirements upon the placement of 

youthful inmates in prisons or jails. 

First, no inmate under 18 may be placed 

in a housing unit where contact will 

occur with adult inmates in a common 

space, shower area, or sleeping quarters. 

Second, outside of housing units, 

agencies must either maintain ‘‘sight 

and sound separation’’—i.e., preventing 

adult inmates from seeing or 

communicating with youth—or provide 

direct staff supervision when the two 

are together. Third, agencies must make 

their best efforts to avoid placing 

youthful inmates in isolation to comply 

with this provision and, absent exigent 

circumstances, must afford them daily 

large-muscle exercise and any legally 

required special education services, and 

must provide them access to other 

programs and work opportunities to the 

extent possible. With regards to lockups, 

the standard requires that juveniles and 

youthful detainees be held separately 

from adult inmates. 

While some commenters asserted that, 

in addition to increasing risk of 

victimization, confining youth in adult 

facilities impedes access to ageappropriate programming and services 

and may actually increase recidivism, 

the Department is cognizant that its 

mandate in promulgating these 

standards extends only to preventing, 

detecting, and responding to sexual 

abuse in confinement facilities. In 

addition, imposing a general prohibition 

on the placement of youth in adult 

facilities, or disallowing such 

placements unless a court finds that the 

youth has been violent or disruptive in 

a juvenile facility, would necessarily 

require a fundamental restructuring of 

existing State laws that permit or 

require such placement. Given the 

current state of knowledge regarding 

youth in adult facilities, and the 

availability of more narrowly tailored 

approaches to protecting youth, the 

Department has decided not to impose 

a complete ban at this time through the 

PREA standards. The Department has 

supported, however, congressional 

efforts to amend the JJDPA to extend its 

jail removal requirements to apply to 

youth under adult criminal court 

jurisdiction awaiting trial, unless a court 

specifically finds that it is in the interest 

of justice to incarcerate the youth in an 

adult facility. 

Cross-Gender Searches and Viewing. 

In a change from the proposed 

standards, the final standards include a 

phased-in ban on cross-gender pat-down 

searches of female inmates in adult 

prisons, jails, and community 

confinement facilities absent exigent 

circumstances—which is currently the 

policy in most State prison systems. 

However, female inmates’ access to 

programming and out-of-cell 

opportunities must not be restricted to 

comply with this provision. 

For juvenile facilities, however, the 

final standards, like the proposed 

standards, prohibit cross-gender patdown searches of both female and male 

residents. And for all facilities, the 

standards prohibit cross-gender strip 

searches and visual body cavity 

searches except in exigent 

circumstances or when performed by 

medical practitioners, in which case the 

searches must be documented. 

The standards also require facilities to 

implement policies and procedures that 

enable inmates to shower, perform 

bodily functions, and change clothing 

without nonmedical staff of the opposite 

gender viewing their breasts, buttocks, 

or genitalia, except in exigent 

circumstances or when such viewing is 

incidental to routine cell checks. In 

addition, facilities must require staff of 

the opposite gender to announce their 

presence when entering an inmate 

housing unit. 

Training and Education. Proper 

training is essential to combating sexual 

abuse in correctional facilities. The 

standards require staff training on key 

topics related to preventing, detecting, 

and responding to sexual abuse. 

Investigators and medical practitioners 

will receive training tailored to their 

specific roles. 

Inmates, too, must understand a 

facility’s policies and procedures in 

order to know that they will be kept safe 

and that the facility will not tolerate 

their committing sexual abuse. The 

standards require that facilities explain 

their zero-tolerance policy regarding 

sexual abuse and sexual harassment 

educate inmates on how to report any 

such incidents. 

Screening. The standards require that 

inmates be screened for risk of being 

sexually abused or sexually abusive and 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 37109 

that screening information be used to 

inform housing, bed, work, education, 

and program assignments. The goal is to 

keep inmates at high risk of 

victimization away from those at high 

risk of committing abuse. However, 

facilities may not simply place victims 

in segregated housing against their will 

unless a determination has been made 

that there is no available alternative 

means of separation, and even then only 

under specified conditions and with 

periodic reassessment. 

Reporting. The standards require that 

agencies provide at least two internal 

reporting avenues, and at least one way 

to report abuse to a public or private 

entity or office that is not part of the 

agency and that can allow inmates to 

remain anonymous upon request. An 

agency must also provide a way for 

third parties to report such abuse on 

behalf of an inmate. 

In addition, agencies are required to 

provide inmates with access to outside 

victim advocates for emotional support 

services related to sexual abuse, by 

giving inmates contact information for 

local, State, or national victim advocacy 

or rape crisis organizations and by 

enabling reasonable communication 

between inmates and these 

organizations, with as much 

confidentiality as possible. 

Responsive Planning. The standards 

require facilities to prepare a written 

plan to coordinate actions taken among 

staff first responders, medical and 

mental health practitioners, 

investigators, and facility leadership in 

response to an incident of sexual abuse. 

Upon learning of an allegation of abuse, 

staff must separate the alleged victim 

and abuser and take steps to preserve 

evidence. 

The standards also require agencies to 

develop policies to prevent and detect 

any retaliation against persons who 

report sexual abuse or who cooperate 

with investigations. Allegations must be 

investigated properly, thoroughly, and 

objectively, and documented 

correspondingly, and must be deemed 

substantiated if supported by a 

preponderance of the evidence. No 

agency may require an inmate to submit 

to a polygraph examination as a 

condition for proceeding with an 

investigation. Nor may an agency enter 

into or renew any agreement that limits 

its ability to remove alleged staff abusers 

from contact with inmates pending an 

investigation or disciplinary 

determination. 

Investigations. Investigations are 

required to follow a uniform evidence 

protocol that maximizes the potential 

for obtaining usable physical evidence 

for administrative proceedings and 

criminal prosecutions. The agency must 

offer victims no-cost access to forensic 

medical examinations where 

evidentiarily or medically appropriate. 

In addition, the agency must attempt to 

make available a victim advocate from 

a rape crisis center. If that option is not 

available, the agency must provide such 

services through either (1) qualified staff 

from other community-based 

organizations or (2) a qualified agency 

staff member. 

Discipline. The standards require that 

staff be subject to discipline for 

violating agency policies regarding 

sexual abuse, with termination the 

presumptive discipline for actually 

engaging in sexual abuse. Terminations 

or resignations linked to violating such 

policies are to be reported to law 

enforcement (unless the conduct was 

clearly not criminal) and to relevant 

licensing bodies. 

Inmates also will be subject to 

disciplinary action for committing 

sexual abuse. Where an inmate is found 

to have engaged in sexual contact with 

a staff member, the inmate may be 

disciplined only where the staff member 

did not consent. Where two inmates 

have engaged in sexual contact, the 

agency may (as the final rule clarifies) 

impose discipline for violating any 

agency policy against such contact, but 

may deem such activity to constitute 

sexual abuse only if it determines that 

the activity was not consensual. In other 

words, upon encountering two inmates 

engaging in sexual activity, the agency 

cannot simply assume that both have 

committed sexual abuse. 

Medical and Mental Health Care. The 

standards require that facilities provide 

timely, unimpeded access to emergency 

medical treatment and crisis 

intervention services, whose nature and 

scope are determined by practitioners 

according to their professional 

judgment. Inmate victims of sexual 

abuse while incarcerated must be 

offered timely information about, and 

timely access to, emergency 

contraception and sexually transmitted 

infections prophylaxis, where medically 

appropriate. Where relevant, inmate 

victims must also receive 

comprehensive information about, and 

timely access to, all lawful pregnancyrelated medical services. In addition, 

facilities are required to offer a followup meeting if the initial screening at 

intake indicates that the inmate has 

experienced or perpetrated sexual 

abuse. 

Grievances. If an agency has a 

grievance process for inmates who 

allege sexual abuse, the agency may not 

impose a time limit on when an inmate 

may submit a grievance regarding such 

allegations. To be sure, a grievance 

system cannot be the only method—and 

should not be the primary method—for 

inmates to report abuse. As noted above, 

agencies must provide multiple internal 

ways to report abuse, as well as access 

to an external reporting channel. 

This standard exists only because the 

Prison Litigation Reform Act, 42 U.S.C. 

1997e, requires that inmates exhaust 

any available administrative remedies as 

a prerequisite to filing suit under 

Federal law with respect to the 

conditions of their confinement. The 

final standard contains a variety of other 

provisions aimed at ensuring that 

grievance procedures that cover sexual 

abuse provide inmates with a full and 

fair opportunity to preserve their ability 

to seek judicial review, without 

imposing undue burdens on agencies or 

facilities. However, agencies that 

exempt sexual abuse allegations from 

their remedial schemes are exempt from 

this standard, because their inmates 

may proceed directly to court. 

Audits. The final rule resolves an 

issue left undecided in the proposed 

rule by including standards that require 

that agencies ensure that each of their 

facilities is audited once every three 

years. Audits must be conducted by: (1) 

A member of a correctional monitoring 

body that is not part of, or under the 

authority of, the agency (but may be part 

of, or authorized by, the relevant State 

or local government); (2) a member of an 

auditing entity such as an inspector 

general’s or ombudsperson’s office that 

is external to the agency; or (3) other 

outside individuals with relevant 

experience. Thus, the final standards 

differ from the proposed standards in 

that audits may not be conducted by an 

internal inspector general or 

ombudsperson who reports directly to 

the agency head or to the agency’s 

governing board. 

The Department will develop and 

issue an audit instrument that will 

provide guidance on the conduct of and 

contents of the audit. All auditors must 

be certified by the Department, pursuant 

to procedures, including training 

requirements, to be issued subsequently. 

Lesbian, Gay, Bisexual, Transgender, 

Intersex (LGBTI) and Gender 

Nonconforming Inmates. The standards 

account in various ways for the 

particular vulnerabilities of inmates 

who are LGBTI or whose appearance or 

manner does not conform to traditional 

gender expectations. The standards 

require training in effective and 

professional communication with 

LGBTI and gender nonconforming 

inmates and require the screening 

process to consider whether the inmate 

is, or is perceived to be, LGBTI or 


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37110 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

gender nonconforming. The standards 

also require that post-incident reviews 

consider whether the incident was 

motivated by LGBTI identification, 

status, or perceived status. 

In addition, in a change from the 

proposed rule, the final standards do 

not allow placement of LGBTI inmates 

in dedicated facilities, units, or wings in 

adult prisons, jails, or community 

confinement facilities solely on the 

basis of such identification or status, 

unless such placement is in a dedicated 

facility, unit, or wing established in 

connection with a consent decree, legal 

settlement, or legal judgment for the 

purpose of protecting such inmates. As 

in the proposed standards, such 

placement is not allowed at all in 

juvenile facilities. 

The standards impose a complete ban 

on searching or physically examining a 

transgender or intersex inmate for the 

sole purpose of determining the 

inmate’s genital status. Agencies must 

train security staff in conducting 

professional and respectful cross-gender 

pat-down searches and searches of 

transgender and intersex inmates. 

In deciding whether to assign a 

transgender or intersex inmate to a 

facility for male or female inmates, and 

in making other housing and 

programming assignments, an agency 

may not simply assign the inmate to a 

facility based on genital status. Rather, 

the agency must consider on a case-bycase basis whether a placement would 

ensure the inmate’s health and safety, 

and whether the placement would 

present management or security 

problems, giving serious consideration 

to the inmate’s own views regarding his 

or her own safety. In addition, 

transgender and intersex inmates must 

be given the opportunity to shower 

separately from other inmates. 

Inmates with Disabilities and Limited 

English Proficient (LEP) Inmates. The 

standards require agencies to develop 

methods to ensure effective 

communication with inmates who are 

deaf or hard of hearing, those who are 

blind or have low vision, and those who 

have intellectual, psychiatric, or speech 

disabilities. Agencies also must take 

reasonable steps to ensure meaningful 

access to all aspects of the agency’s 

efforts to prevent, detect, and respond to 

sexual abuse and sexual harassment to 

inmates who are LEP. Agencies may not 

rely on inmate interpreters or readers 

except in limited circumstances where 

an extended delay in obtaining an 

effective interpreter could compromise 

the inmate’s safety, the performance of 

first-response duties, or an 

investigation. 

C. Costs and Benefits 

The anticipated costs of full 

nationwide compliance with the final 

rule, as well as the benefits of reducing 

the prevalence of prison rape, are 

discussed at length in the Regulatory 

Impact Assessment (RIA), which is 

available at http://www.ojp.usdoj.gov/

programs/pdfs/prea_ria.pdf and is 

summarized below in section IV, 

entitled ‘‘Executive Orders 13563 and 

12866—Regulatory Planning and 

Review.’’ As shown in Table 1, the 

Department estimates that the costs of 

these standards to all covered facilities, 

assuming full nationwide compliance, 

would be approximately $6.9 billion 

over the period 2012–2026, or $468.5 

million per year when annualized at a 

7 percent discount rate. The average 

annualized cost per facility of 

compliance with the standards is 

approximately $55,000 for prisons, 

$50,000 for jails, $24,000 for community 

confinement facilities, and $54,000 for 

juvenile facilities. For lockups, the 

average annualized cost per agency is 

estimated at $16,000. 

TABLE 1—ESTIMATED COST OF FULL STATE AND LOCAL COMPLIANCE WITH THE PREA STANDARDS, IN THE AGGREGATE, 

BY YEAR AND BY FACILITY TYPE, IN MILLIONS OF DOLLARS

Year Prisons Jails Lockups CCF Juveniles Total all 

facilities 

2012 ......................................................... $87.2 $254.6 $180.1 $27.8 $196.0 $745.8 

2013 ......................................................... 55.2 161.0 122.0 16.8 93.3 448.5 

2014 ......................................................... 58.3 157.9 106.6 14.2 92.1 429.2 

2015 ......................................................... 59.2 154.6 93.7 12.1 94.9 414.5 

2016 ......................................................... 61.3 153.5 87.3 11.1 109.3 422.6 

2017 ......................................................... 61.5 152.4 83.6 10.6 151.9 460.1 

2018 ......................................................... 62.9 151.3 80.1 10.1 147.3 451.8 

2019 ......................................................... 63.1 150.7 77.5 9.8 144.7 445.8 

2020 ......................................................... 64.3 150.1 75.0 9.4 142.2 441.0 

2021 ......................................................... 65.7 149.9 73.2 9.2 140.4 438.3 

2022 ......................................................... 65.9 150.1 72.0 9.0 139.2 436.2 

2023 ......................................................... 67.1 150.1 70.8 8.9 138.0 434.9 

2024 ......................................................... 67.1 149.9 69.6 8.7 136.7 432.0 

2025 ......................................................... 67.9 149.5 68.4 8.5 135.5 429.8 

2026 ......................................................... 67.6 148.8 67.2 8.4 134.3 426.3 

15-yr Total ................................................ 974.2 2,384.6 1,327.3 174.8 1,995.8 6,856.7 

Present Value .......................................... 591.2 1,488.4 869.8 116.6 1,201.4 4,267.4 

Annual ...................................................... 64.9 163.4 95.5 12.8 131.9 468.5 

However, these figures are potentially 

misleading. PREA does not require State 

and local facilities to comply with the 

Department’s standards, nor does it 

enact a mechanism for the Department 

to direct or enforce such compliance; 

instead, the statute provides certain 

incentives for such confinement 

facilities to implement the standards. 

Fiscal realities faced by confinement 

facilities throughout the country make it 

virtually certain that the total actual 

outlays by those facilities will, in the 

aggregate, be less than the full 

nationwide compliance costs calculated 

in the RIA. Actual outlays incurred will 

depend on the specific choices that 

State and local correctional agencies 

make with regard to adoption of the 

standards, and correspondingly on the 

annual expenditures that those agencies 

are willing and able to make in choosing 

to implement the standards in their 

facilities. The Department has not 

endeavored in the RIA to project those 

actual outlays. 

With respect to benefits, the RIA 

conducts what is known as a ‘‘breakeven analysis,’’ by first estimating the 

monetary value of preventing various 


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types of prison sexual abuse (from 

incidents involving violence to 

inappropriate touching) and then, using 

those values, calculating the reduction 

in the annual number of victims that 

would need to occur for the benefits of 

the rule to equal the cost of full 

nationwide compliance. 

This analysis begins by estimating the 

current levels of sexual abuse in covered 

facilities. The RIA concludes that in 

2008 more than 209,400 persons were 

victims of sexual abuse in prisons, jails, 

and juvenile facilities, of which at least 

78,500 prison and jail inmates and 4,300 

youth in juvenile facilities were victims 

of the most serious forms of sexual 

abuse, including forcible rape and other 

nonconsensual sexual acts involving 

injury, force, or high incidence. 

Next, the RIA estimates how much 

monetary benefit (to the victim and to 

society) accrues from reducing the 

annual number of victims of prison 

rape. This is, of course, an imperfect 

endeavor, given the inherent difficulty 

in assigning a dollar figure to the cost 

of such an event. Executive Order 13563 

states that agencies ‘‘may consider (and 

discuss qualitatively) values that are 

difficult or impossible to quantify, 

including equity, human dignity, 

fairness, and distributive impacts.’’ Each 

of these values is relevant here, 

including human dignity, which is 

offended by acts of sexual violence. 

While recognizing the limits of 

monetary measures and the difficulty of 

translation into dollar equivalents, the 

RIA extrapolates from the existing 

economic and criminological literature 

regarding rape in the community. On 

the basis of such extrapolations, it finds 

that the monetizable benefit to an adult 

of avoiding the highest category of 

prison sexual misconduct 

(nonconsensual sexual acts involving 

injury or force, or no injury or force but 

high incidence) is worth $310,000 to 

$480,000 per victim; for juveniles, who 

typically experience significantly 

greater injury from sexual abuse than do 

adults, the corresponding category is 

assessed as worth $675,000 per victim. 

Lesser forms of sexual abuse have 

correspondingly lower avoidance 

benefit values. The RIA thus determines 

that the maximum monetizable cost to 

society of prison rape and sexual abuse 

(and correspondingly, the total 

maximum benefit of eliminating it) is 

about $46.6 billion annually for prisons 

and jails, and an additional $5.2 billion 

annually for juvenile facilities. 

The RIA concludes that the breakeven point would be reached if the 

standards reduced the annual number of 

victims of prison rape by 1,671 from the 

baseline levels, which is less than 1 

percent of the total number of victims in 

prisons, jails, and juvenile facilities. The 

Department believes it reasonable to 

expect that the standards, if fully 

adopted and complied with, would 

achieve at least this level of reduction 

in the prevalence of sexual abuse, and 

thus the benefits of the rule justify the 

costs of full nationwide compliance. 

As noted, this analysis inevitably 

excludes benefits that are not 

monetizable, but still must be included 

in a cost-benefit analysis. These include 

the values of equity, human dignity, and 

fairness. Such non-quantifiable benefits 

will be received by victims who receive 

proper treatment after an assault; such 

treatment will in turn enhance their 

ability to re-integrate into the 

community and maintain stable 

employment upon their release from 

prison. Furthermore, making prisons 

safer will increase the general wellbeing and morale of staff and inmates 

alike. Finally, non-quantifiable benefits 

will accrue to society at large, by 

ensuring that inmates re-entering the 

community are less traumatized and 

better equipped to support their 

community. Thus, the true break-even 

level would likely be lower and perhaps 

significantly lower than 1,671, if it were 

possible to account for these nonquantifiable benefits. 

II. Background 

The Prison Rape Elimination Act of 

2003, 42 U.S.C. 15601 et seq., requires 

the Attorney General to promulgate 

regulations that adopt national 

standards for the detection, prevention, 

reduction, and punishment of prison 

rape. PREA established the National 

Prison Rape Elimination Commission to 

carry out a comprehensive legal and 

factual study of the penological, 

physical, mental, medical, social, and 

economic impacts of prison rape in the 

United States, and to recommend 

national standards to the Attorney 

General and to the Secretary of Health 

and Human Services. The NPREC 

released its recommended national 

standards in a report dated June 23, 

2009, and subsequently disbanded, 

pursuant to the statute. The NPREC’s 

report and recommended national 

standards are available at http://www.

ncjrs.gov/pdffiles1/226680.pdf. 

The NPREC set forth four sets of 

recommended national standards for 

eliminating prison rape and other forms 

of sexual abuse. Each set applied to one 

of the following four confinement 

settings: (1) Adult prisons and jails; (2) 

juvenile facilities; (3) community 

corrections facilities; and (4) lockups 

(i.e., temporary holding facilities). The 

NPREC recommended that its standards 

apply to Federal, State, and local 

correctional and detention facilities, 

including immigration detention 

facilities operated by the Department of 

Homeland Security and the Department 

of Health and Human Services. In 

addition to the standards themselves, 

the NPREC prepared assessment 

checklists, designed as tools to provide 

agencies and facilities with examples of 

how to meet the standards’ 

requirements; glossaries of key terms; 

and discussion sections providing 

explanations of the rationale for each 

standard and, in some cases, guidance 

for achieving compliance. These are 

available at http://www.ncjrs.gov/

pdffiles1/226682.pdf (adult prisons and 

jails), http://www.ncjrs.gov/pdffiles1/

226684.pdf (juvenile facilities), http://

www.ncjrs.gov/pdffiles1/226683.pdf 

(community corrections), and http://

www.ncjrs.gov/pdffiles1/226685.pdf 

(lockups). 

Pursuant to PREA, the final rule 

adopting national standards ‘‘shall be 

based upon the independent judgment 

of the Attorney General, after giving due 

consideration to the recommended 

national standards provided by the 

Commission * * * and being informed 

by such data, opinions, and proposals 

that the Attorney General determines to 

be appropriate to consider.’’ 42 U.S.C. 

15607(a)(2). PREA expressly mandates 

that the Department not establish a 

national standard ‘‘that would impose 

substantial additional costs compared to 

the costs presently expended by 

Federal, State, and local prison 

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

Department ‘‘may, however, provide a 

list of improvements for consideration 

by correctional facilities.’’ 42 U.S.C. 

15607(a)(3). 

The Attorney General established a 

PREA Working Group, chaired by the 

Office of the Deputy Attorney General, 

to review each of the NPREC’s proposed 

standards and to assist him in preparing 

rulemaking materials. The Working 

Group included representatives from a 

wide range of Department components, 

including the Access to Justice 

Initiative, the Bureau of Prisons 

(including the National Institute of 

Corrections), the Civil Rights Division, 

the Executive Office for United States 

Attorneys, the Office of Legal Policy, the 

Office of Legislative Affairs, the Office 

of Justice Programs (including the 

Bureau of Justice Assistance, the Bureau 

of Justice Statistics, the National 

Institute of Justice, the Office of Juvenile 

Justice and Delinquency Prevention, 

and the Office for Victims of Crime), the 

Office on Violence Against Women, and 

the United States Marshals Service. 


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The Working Group conducted an indepth review of the standards proposed 

by the NPREC. As part of that process, 

the Working Group conducted a number 

of listening sessions in 2010, at which 

a wide variety of individuals and groups 

provided preliminary input prior to the 

start of the regulatory process. 

Participants included representatives of 

State and local prisons and jails, 

juvenile facilities, community 

corrections programs, lockups, State and 

local sexual abuse associations and 

service providers, national advocacy 

groups, survivors of prison rape, and 

members of the NPREC. 

Because, as noted above, PREA 

prohibits the Department from 

establishing a national standard that 

would impose substantial additional 

costs compared to the costs presently 

expended by Federal, State, and local 

prison authorities, the Working Group 

carefully examined the potential cost 

implications of the standards proposed 

by the NPREC. As part of that process, 

the Department commissioned an 

independent contractor to perform a 

cost analysis of the NPREC’s proposed 

standards. 

On March 10, 2010 (75 FR 11077), 

while awaiting completion of the cost 

analysis, the Department published an 

Advance Notice of Proposed 

Rulemaking (ANPRM) soliciting public 

input on the NPREC’s proposed national 

standards. Approximately 650 

comments were received on the 

ANPRM, including comments from 

current or formerly incarcerated 

individuals, county sheriffs, State 

correctional agencies, private citizens, 

professional organizations, social 

service providers, and advocacy 

organizations concerned with issues 

involving inmate safety and rights, 

sexual violence, discrimination, and 

juvenile justice. 

In general, commenters supported the 

broad goals of PREA and the overall 

intent of the NPREC’s 

recommendations. However, comments 

were sharply divided as to the merits of 

a number of standards. Some 

commenters, particularly those whose 

responsibilities involve the care and 

custody of inmates or juvenile residents, 

expressed concern that the NPREC’s 

recommended national standards 

implementing PREA would impose 

unduly burdensome costs on already 

tight State and local government 

budgets. Other commenters, particularly 

advocacy groups concerned with 

protecting the health and safety of 

inmates and juvenile residents, 

expressed concern that the NPREC’s 

standards did not go far enough, and, 

therefore, would not fully achieve 

PREA’s goals. 

After reviewing the comments on the 

NPREC’s proposed standards, and after 

receiving and reviewing the cost 

analysis of those standards, the 

Department published a Notice of 

Proposed Rulemaking (NPRM) on 

February 3, 2011 (76 FR 6248). The 

scope and content of the Department’s 

standards differed substantially from the 

NPREC’s proposals in a variety of areas. 

The Department revised each of the 

NPREC’s recommended standards, 

weighing the logistical and financial 

feasibility of each standard against its 

anticipated benefits. At the same time, 

the Department published an Initial 

Regulatory Impact Analysis (IRIA), 

which presented a comprehensive 

assessment of the benefits and costs of 

the Department’s proposed standards in 

both quantitative and qualitative terms. 

The IRIA was summarized in the NPRM 

and was published in full on the 

Department’s Web site at http://www.

ojp.usdoj.gov/programs/pdfs/prea_

nprm_iria.pdf. 

The NPRM solicited comments on the 

Department’s proposed standards, and 

posed 64 specific questions on the 

proposed standards and the IRIA. In 

response, the Department received over 

1,300 comments, representing the same 

broad range of stakeholders as 

comments on the ANPRM. Commenters 

provided general assessments of the 

Department’s efforts as well as specific 

and detailed recommendations 

regarding each standard. The 

Department also received a range of 

comments responding to the 64 

questions posed in the NPRM and on 

the assumptions, calculations, and 

conclusions contained in the IRIA. As in 

the comments on the ANPRM, the 

changes recommended by commenters 

reflected a diverse array of views. Many 

commenters asserted that the proposed 

standards provided insufficient 

protection against sexual abuse, while 

others expressed the view that the 

proposed standards would be too 

onerous for correctional agencies. 

Following the public comment 

period, the Department carefully 

reviewed each comment and deliberated 

internally on the revisions that the 

commenters proposed and on the 

critiques of the IRIA’s benefit-cost 

analysis. In addition, the Department 

once again commissioned an 

independent contractor to assist the 

Department in assessing the costs of 

revisions to the standards. 

The final standards reflect a 

considered analysis of the public 

comments and a rigorous assessment of 

the estimated benefits and costs of full 

nationwide compliance with the 

standards. The Department has revised 

the IRIA correspondingly; the final 

Regulatory Impact Analysis is available 

at http://www.ojp.usdoj.gov/programs/

pdfs/prea_ria.pdf. 

This is a final rule; however, the 

Department has identified one provision 

for which it is considering making 

changes to the final rule, if warranted by 

public comments received. The discrete 

provision open for additional comment 

does not affect the finality of the rule. 

To assist agencies in their compliance 

efforts, the Department has funded the 

National Resource Center for the 

Elimination of Prison Rape to serve as 

a national source for online and direct 

support, training, technical assistance, 

and research to assist adult and juvenile 

corrections, detention, and law 

enforcement professionals in combating 

sexual abuse in confinement. Focusing 

on areas such as prevention strategies, 

improved reporting and detection, 

investigation, prosecution, and victimcentered responses, the Resource Center 

will identify promising programs and 

practices that have been implemented 

around the country and demonstrate 

models for keeping inmates safe from 

sexual abuse. It will offer a full library, 

webinars, and other online resources on 

its Web site, and will provide direct 

assistance in the field through skilled 

and experienced training and technical 

assistance providers. The Department 

also funds the National Center for Youth 

in Custody, which will partner closely 

with the Resource Center to assist 

facilities in addressing sexual safety for 

youth. 

The Department is also continuing its 

grantmaking, through its Bureau of 

Justice Assistance, to support State and 

local demonstration projects aimed at 

combating sexual abuse in confinement 

facilities. In addition, the Department’s 

National Institute of Corrections, which 

has provided substantial PREA-related 

training and technical assistance since 

passage of the Act, will be developing 

electronic and web-based resource 

materials aimed at reaching a broad 

audience. 

III. Overview of PREA National 

Standards 

Scope of Standards: Application to 

Other Federal Confinement Facilities 

The proposed rule interpreted the 

statute to bind only facilities operated 

by the Bureau of Prisons, and extended 

the standards to United States Marshals 

Service facilities under other authorities 

of the Attorney General. In light of 

comments on the proposed rule, the 

Department has re-examined whether 


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2NPREC, Standards for the Prevention, Detection, 

Response, and Monitoring of Sexual Abuse in 

Community Corrections, 5, available at http:// 

www.ncjrs.gov/pdffiles1/226683.pdf. 

3The statute authorizes the Attorney General to 

make grants to States to ‘‘safeguard the 

communities to which inmates return’’ by, among 

other things, ‘‘preparing maps demonstrating the 

concentration, on a community-by-community 

basis, of inmates who have been released, to 

facilitate the efficient and effective * * * 

deployment of law enforcement resources 

(including probation and parole resources),’’ and 

‘‘developing policies and programs that reduce 

spending on prisons by effectively reducing rates of 

parole and probation revocation without 

compromising public safety.’’ 42 U.S.C. 

15605(b)(2)(C), (E). 

PREA extends to Federal facilities 

beyond those operated by the 

Department of Justice. The Department 

now concludes that PREA does, in fact, 

encompass any Federal confinement 

facility ‘‘whether administered by [the] 

government or by a private organization 

on behalf of such government,’’ 42 

U.S.C. 15609(7). 

With respect to Bureau of Prisons 

facilities, the Act explicitly provides 

that the national standards apply 

immediately. 42 U.S.C. 15607(b). 

However, the statute does not address 

how it will be implemented at other 

Federal confinement facilities. In 

general, each Federal agency is 

accountable for, and has statutory 

authority to regulate, the operations of 

its own facilities and, therefore, is best 

positioned to determine how to 

implement the Federal laws and rules 

that govern its own operations, the 

conduct of its own employees, and the 

safety of persons in its custody. For 

example, the Department of Homeland 

Security possesses great knowledge and 

experience regarding the specific 

characteristics of its immigration 

facilities, which differ in certain 

respects from Department of Justice, 

State, and local facilities with regard to 

the manner in which they are operated 

and the composition of their 

populations. Indeed, the NPREC 

expressly recognized these distinctions 

by including a supplemental set of 15 

standards applicable only to facilities 

with immigration detainees. Similarly, 

the Department of the Interior’s Bureau 

of Indian Affairs (BIA) possesses 

expertise regarding the various 

confinement facilities in Indian country, 

which are owned and operated pursuant 

to numerous different arrangements by 

BIA and the tribes, and which also differ 

in certain respects from Department of 

Justice, State, and local facilities. 

Given their statutory authorities to 

regulate conditions of detention, other 

Federal departments with confinement 

facilities will work with the Attorney 

General to issue rules or procedures that 

will satisfy the requirements of PREA. 

42 U.S.C. 15607(a)(2). 

Scope of Standards: Pretrial Release, 

Probation, Parole, and Related Programs 

In the proposed rule, the Department 

declined to adopt the NPREC’s 

recommendation that the Department 

adopt a set of standards for community 

corrections, which the NPREC had 

recommended defining as follows: 

‘‘Supervision of individuals, whether 

adults or juveniles, in a community 

setting as a condition of incarceration, 

pretrial release, probation, parole, or 

post-release supervision. These settings 

would include day and evening 

reporting centers.’’ 2 The Department 

determined that to the extent this 

definition included supervision of 

individuals in a non-residential setting, 

it exceeded the scope of PREA’s 

definitions of jail and prison, which 

include only ‘‘confinement facilit[ies].’’ 

42 U.S.C. 15609(3), (7). Accordingly, the 

proposed rule did not reference 

community corrections, but instead 

proposed adopting a set of standards for 

‘‘community confinement facilities,’’ 

defined as 

a community treatment center, halfway 

house, restitution center, mental health 

facility, alcohol or drug rehabilitation center, 

or other community correctional facility 

(including residential re-entry centers) in 

which offenders or defendants reside as part 

of a term of imprisonment or as a condition 

of pre-trial release or post-release 

supervision, while participating in gainful 

employment, employment search efforts, 

community service, vocational training, 

treatment, educational programs, or similar 

facility-approved programs during 

nonresidential hours. 

Several commenters criticized the 

proposed rule for excluding individuals 

who are not incarcerated but are subject 

to pretrial release, probation, parole, or 

post-release supervision. These 

commenters included advocacy groups, 

certain former members of the NPREC, 

and two trade organizations, the 

American Probation and Parole 

Association and the International 

Community Corrections Association. 

Commenters observed that parole and 

probation officers play a significant role 

in the lives of their charges, and that 

such power includes the potential for 

abuse. Some suggested that the 

Department should adopt all of the 

NPREC’s recommendations with regard 

to pretrial release, probation, parole, or 

post-release supervision, while others 

proposed including only certain training 

requirements related to handling 

disclosures of sexual abuse and 

avoiding inappropriate relationships 

with probationers and parolees. 

The final rule does not include these 

suggested changes and instead retains 

the definition quoted above. The 

Department recognizes, of course, that 

staff involved in pretrial release, 

probation, parole, or post-release 

supervision exert great authority. The 

same is true, however, of numerous 

other government officials, including 

police officers who operate in the 

community, law enforcement 

investigators, and certain categories of 

civil caseworkers. While any abuse by 

law enforcement officials or other 

government agents is reprehensible, 

PREA appropriately addresses the 

unique vulnerability of incarcerated 

persons, who literally cannot escape 

their abusers and who lack the ability to 

access community resources available to 

most victims of sexual abuse. 

One commenter observed that PREA 

defines ‘‘prison rape’’ as including ‘‘the 

rape of an inmate in the actual or 

constructive control of prison officials,’’ 

42 U.S.C. 15609(8), and suggested that 

a probationer or parolee should be 

considered to be under the constructive 

control of correctional officials. This 

suggestion, however, neglects the 

statute’s definition of ‘‘inmate’’ as ‘‘any 

person incarcerated or detained in any 

facility who is accused of, convicted of, 

sentenced for, or adjudicated delinquent 

for, violations of criminal law or the 

terms and conditions of parole, 

probation, pretrial release, or 

diversionary program.’’ 42 U.S.C. 

15609(2). An inmate by definition is 

‘‘incarcerated or detained in [a] 

facility’’; the inclusion of inmates who 

are ‘‘under the constructive control of 

correctional officials’’ presumably refers 

to inmates who are temporarily 

supervised by others, such as inmates 

on work details. Furthermore, the 

reference to parole, probation, and 

related programs in the definition of 

‘‘inmate’’ indicates that only a person 

who ‘‘violate[s] * * * the terms and 

conditions’’ of such a program, rather 

than any person who is subject to such 

terms and conditions, qualifies as an 

inmate. Indeed, with the exception of an 

unrelated grant program to safeguard 

communities,3 the statute makes no 

other reference to parole, probation, 

pretrial release, or diversionary 

programs. 

The same commenter noted that 

PREA instructed the NPREC to 

recommend to the Attorney General 

national standards on, in addition to 

specifically enumerated topics, ‘‘such 

other matters as may reasonably be 

related to the detection, prevention, 

reduction, and punishment of prison 

rape.’’ 42 U.S.C. 15606(e)(2)(M). The 


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Department agrees with the commenter 

that this language, by extension, 

provides the Attorney General with a 

broad scope of authority to combat 

sexual abuse in confinement facilities. 

However, this language does not 

necessitate the adoption of standards to 

govern probation, parole, pretrial 

release, or diversionary programs. To be 

sure, former inmates may report to a 

parole officer sexual abuse that occurred 

while they were in a confinement 

facility. However, former inmates— 

unlike current inmates—generally 

possess ample ability to report abuse 

through the same channels as any other 

person living in the community. 

Still, the Department encourages 

probation and parole departments to 

take active steps to ensure that any 

information they learn about sexual 

abuse in confinement facilities is 

transmitted to law enforcement 

authorities or correctional agencies, as 

appropriate. The Department 

recommends that such departments 

train their officers as needed to facilitate 

proper investigation of allegations. 

Finally, one commenter suggested 

that probation departments should be 

included because some probation 

departments operate residential 

facilities, including juvenile detention 

facilities. No change is warranted, 

because the proposed rule already 

included any agency that operates 

residential facilities. For example, to the 

extent that a probation department 

operates a juvenile detention facility, it 

is covered by the Standards for Juvenile 

Facilities, § 115.311 et seq. 

Scope of Standards: Categorization of 

Prisons and Jails 

The Department received a significant 

number of comments from jails 

regarding the ways in which their 

operations differ from prisons. Jail 

commenters noted that prisons, unlike 

jails, generally receive individuals after 

sentencing. Thus, prison inmates have 

already been stabilized medically and 

been searched before being transported 

to the prison. Commenters noted that 

the prison intake unit or facility, unlike 

its jail counterpart, will often have 

received information from the 

sentencing court, and may have 

received records documenting medical 

and mental health conditions, criminal 

and institutional histories, and in some 

cases, program or treatment histories. 

The American Jail Association (AJA), 

plus several sheriffs and jail 

administrators, recommended that the 

Department develop separate standards 

for jails and prisons, due to differences 

in facility size, mission, length of stay, 

and operational considerations. 

The Department recognizes the 

various differences between jails and 

prisons, but concludes that these 

differences do not warrant a separate set 

of standards. Rather, the Department has 

endeavored to provide sufficient 

flexibility such that the standards can be 

adopted by both prisons and jails. 

Where appropriate, various standards 

impose different requirements upon 

prisons and jails, while others 

differentiate on the basis of facility size. 

General Definitions (§ 115.5) 

Community confinement facility. 

Several commenters expressed 

uncertainty as to whether group homes 

that house juveniles would be governed 

by the standards for community 

confinement facilities, the standards for 

juvenile facilities, or both. For clarity, 

the final rule revises the definition of 

community confinement facility to 

expressly exclude juvenile facilities. All 

juvenile facilities, including group 

homes and halfway houses, are 

governed by the Standards for Juvenile 

Facilities, § 115.311 et seq. 

Exigent circumstances. The final rule 

adds a definition of this term, which is 

used in several standards. The term is 

defined to mean ‘‘any set of temporary 

and unforeseen circumstances that 

require immediate action in order to 

combat a threat to the security or 

institutional order of a facility.’’ Such 

circumstances include, for example, the 

unforeseen absence of a staff member 

whose presence is indispensible to 

carrying out a specific standard, or an 

outbreak of violence within the facility 

that requires immediate action. 

Full compliance. The final rule adds 

a definition of this statutory term. As 

discussed above in the Executive 

Summary and below in the section 

titled Executive Order 13132— 

Federalism, PREA provides that the 

Governor of each State must certify ‘‘full 

compliance’’ with the standards or else 

forfeit five percent of any Department of 

Justice grant funds that the State would 

otherwise receive for prison purposes, 

unless the Governor submits an 

assurance that such five percent will be 

used only for the purpose of enabling 

the State to achieve and certify full 

compliance with the standards in future 

years. 42 U.S.C. 15607(c). 

NPRM Question 34 solicited 

comments on how the final rule should 

define ‘‘full compliance.’’ Several 

commenters recommended that full 

compliance be measured by a 

percentage of each standard complied 

with. These recommendations were 

generally between 80 and 100 percent. 

One commenter suggested that each 

standard be designated as either 

mandatory or non-mandatory, with 

differential percentages for each 

category. A number of comments 

recommended that full compliance 

mean complete compliance, with 

exceptions for de minimis violations. 

A number of commenters 

recommended that ‘‘full compliance’’ be 

fully or partially contingent on certain 

outcome measures. In other words, ‘‘full 

compliance’’ could only be achieved if 

a certain objective level of safety and 

security is achieved in a facility. 

Other commenters suggested that, 

instead of relying on ‘‘full compliance,’’ 

the standards should be measured using 

a multi-tiered approach, such as 

‘‘substantial compliance,’’ ‘‘partial 

compliance,’’ ‘‘non-compliance with 

progress,’’ and ‘‘non-compliance.’’ One 

commenter recommended that ‘‘full 

compliance’’ be regarded as achieved 

when the facility meets the spirit of the 

standard. Another suggested that ‘‘full 

compliance’’ be regarded as achieved 

when an agency adopts adequate 

policies and procedures, and has 

demonstrated its intention to comply 

with those policies. 

Finally, a number of comments 

suggested that the standards be ‘‘fully’’ 

complied with, and two suggested that 

‘‘full compliance’’ mean complete 

compliance with the critical elements of 

the standard. 

The final rule defines ‘‘full 

compliance’’ as ‘‘compliance with all 

material requirements of each standard 

except for de minimis violations, or 

discrete and temporary violations 

during otherwise sustained periods of 

compliance.’’ The Department 

concludes that a requirement for 

specific outcome measures would be 

impractical to implement across a broad 

spectrum of facility types, and further 

notes that compliance with procedural 

mandates is usually more within the 

control of a facility than achieving 

specific outcome measures. 

Furthermore, a definition that allows for 

some standards to be non-mandatory, or 

that defines full compliance as a 

percentage or by reference to substantial 

compliance, is not compatible with the 

plain meaning of the statutory term ‘‘full 

compliance.’’ Accordingly, the 

Department lacks the discretion to adopt 

such a definition. 

Below is a nonexhaustive set of 

examples of violations that would be 

consistent with full compliance: 

• A temporary vacancy in the PREA 

coordinator’s position that the agency is 

actively seeking to fill; 

• A small number of instances in 

which an agency fails by a number of 

days to meet a 14-day deadline imposed 

by the rule; 


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• Occasional noncompliance with 

staffing ratios in juvenile facilities due 

to disturbances in other housing units or 

staff illnesses; 

• A short-term telephone malfunction 

that prevents inmate access to a 

confidential reporting hotline, which 

the agency acts promptly to restore once 

the malfunction is brought to its 

attention. 

Generally speaking, the intent of this 

definition is to make clear that a 

Governor may certify ‘‘full compliance’’ 

even if, in circumstances that are not 

reasonably foreseeable, certain of the 

State’s facilities are at times unable to 

comply with the letter of certain 

standards for some short period of time, 

but then act promptly to remedy the 

violation. This definition is in keeping 

with Congress’s view that States would 

be able—and should be encouraged—to 

achieve full compliance. 

The final rule also provides, in 

§ 115.501(b), that the Governor’s 

certification applies to all facilities in 

the State under the operational control 

of the State’s executive branch, 

including facilities operated by private 

entities on behalf of the State’s 

executive branch. The certification, by 

its terms, does not encompass facilities 

under the operational control of 

counties, cities, or other municipalities. 

Gender nonconforming. The final rule 

adds a definition of this term, which is 

used in several standards. The term is 

defined to mean ‘‘a person whose 

appearance or manner does not conform 

to traditional societal gender 

expectations.’’ 

Intersex. Various commenters, 

including both correctional agencies 

and advocates, requested a definition of 

this term, and several advocates 

suggested definitions. The final rule 

defines the term as ‘‘a person whose 

sexual or reproductive anatomy or 

chromosomal pattern does not seem to 

fit typical definitions of male or 

female.’’ The definition also notes that 

‘‘[i]ntersex medical conditions are 

sometimes referred to as disorders of sex 

development.’’ 

Juvenile. Several commenters 

criticized the proposed rule’s definition 

of juvenile as any person under the age 

of 18 unless otherwise defined by State 

law. One commenter noted that State 

law may be inconsistent, defining a 

person as a juvenile for some purposes 

and as an adult for others. For clarity, 

the final rule revises the definition by 

changing ‘‘unless otherwise defined by 

State law’’ to ‘‘unless under adult court 

supervision and confined or detained in 

a prison or jail.’’ For reasons explained 

at greater length below, the Department 

has rejected the suggestion by some 

commenters to define juvenile as any 

person under the age of 18. 

Some commenters recommended that 

the definition of juvenile include 

persons over the age of 18 who are 

currently in the custody of the juvenile 

justice system, because some State 

juvenile justice systems hold persons 

beyond that age who were originally 

adjudicated as juvenile delinquents. The 

final rule does not make that change. 

The set of standards for juvenile 

facilities refers throughout to 

‘‘residents.’’ A ‘‘resident’’ is defined as 

‘‘any person confined or detained in a 

juvenile facility.’’ Thus, the standards 

already cover over-18 persons confined 

in a facility that is primarily used for the 

confinement of under-18 persons, and 

the commenters’ proposed change is not 

needed. In the rare instance that an 

over-18 person in the custody of the 

juvenile justice system is confined in an 

adult facility, it is appropriate for that 

person to be treated the same as others 

of similar age. 

Juvenile facility. For clarifying 

purposes, the final rule adds language to 

make clear that a juvenile facility is one 

that is primarily used to confine 

juveniles ‘‘pursuant to the juvenile 

justice system or criminal justice 

system.’’ A facility that confines 

juveniles pursuant to a social services 

system, or for medical purposes, is 

beyond the scope of these regulations, 

regardless of whether it is administered 

or licensed by a Federal, State, or local 

government or a private organization on 

behalf of such government. 

One commenter suggested amending 

the definition of juvenile facility to 

clarify that it includes all youth 

confined in juvenile facilities, not just 

those who are accused of, or have been 

adjudicated for committing, a 

delinquent act or criminal offense. The 

commenter noted that, as a result of 

shortages in residential mental health 

facilities, juvenile facilities may 

temporarily hold youth who are not 

accused of delinquent or criminal acts, 

while waiting for bed space to open up 

in residential mental health facilities. 

The Department has not made this 

change, because such youth are already 

covered to the extent that they are 

housed in a facility that primarily 

confines juveniles pursuant to the 

juvenile justice system or criminal 

justice system. 

A State juvenile agency requested that 

the standards exempt community-based 

facilities that are not ‘‘physically 

restricting’’ and that serve juvenile 

delinquents as well as non-delinquent 

youth. The Department has not made 

this change. As stated above, the 

definition of juvenile facility includes 

any facility ‘‘primarily used for the 

confinement of juveniles pursuant to the 

juvenile justice system or criminal 

justice system.’’ If a non-secure 

residential facility fits this definition, it 

will fall within the scope of the 

standards, even if it also holds some 

non-delinquent youth. Youth who are 

legally obligated to return to a facility in 

the evening are at risk of sexual abuse 

and therefore warrant protection under 

these standards. Furthermore, where a 

facility is primarily used to confine 

juvenile delinquents, it would be 

illogical to exempt from coverage those 

facilities that happen to confine some 

non-delinquent youth as well. 

Transgender. As with ‘‘intersex,’’ both 

agency and advocacy commenters 

requested that the final rule define this 

term. The definition adopted in the final 

rule—‘‘a person whose gender identity 

(i.e., internal sense of feeling male or 

female) is different from the person’s 

assigned sex at birth’’—reflects the 

suggestions of numerous advocacy 

commenters. 

Other terms. The Department has not 

adopted the suggestion of one 

commenter to define a variety of 

additional terms including jail booking, 

intake, initial screening, and risk 

assessment. These terms are in common 

usage in correctional settings and have 

meanings that are generally understood, 

even if facility practices may vary in 

certain respects. To define these terms 

would risk confusion by imposing a 

one-size-fits-all definition on facilities 

that employ these terms in slightly 

different ways. 

Definitions Related to Sexual Abuse 

(§ 115.6) 

The final rule makes various changes 

to terms related to sexual abuse that 

were defined in the proposed rule. 

Sexual abuse. Various commenters 

criticized the proposed definition for 

referencing the intent of the abuser. 

These commenters expressed the view 

that including an intent element would, 

in the words of one, ‘‘require agencies 

to engage in a complicated time- and 

labor-intensive inquiry into the intent of 

the perpetrator.’’ The final rule revises 

the definition to limit the relevance of 

intent. 

With regard to sexual abuse by an 

inmate, the proposed rule had excluded 

‘‘incidents in which the intent of the 

sexual contact is solely to harm or 

debilitate rather than to sexually 

exploit.’’ The purpose of that language 

was to exclude physical altercations that 

incidentally resulted in injuries to an 

inmate’s genitalia. While correctional 

agencies should, of course, endeavor to 

protect inmates from physical harm of 


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4See National Institute of Corrections/ 

Washington College of Law Project on Addressing 

Prison Rape, Fifty-State Survey of Criminal Laws 

Prohibiting Sexual Abuse of Individuals in Custody, 

available at http://www.wcl.american.edu/

endsilence/documents/ 

50StateSurveyofSSMLawsFINAL2009Update.pdf. 

all sorts, such incidental injury is 

beyond the scope of PREA. To eliminate 

the intent element while still preserving 

this exclusion, the final rule replaces 

the language quoted above with 

‘‘contact incidental to a physical 

altercation.’’ 

With regard to abuse by staff, the 

proposed rule included contact between 

the penis and the vulva or anus; contact 

between the mouth and the penis, 

vulva, or anus; penetration of the anal 

or genital opening; and ‘‘[a]ny other 

intentional touching, either directly or 

through the clothing, of the genitalia, 

anus, groin, breast, inner thigh, or the 

buttocks of any person with the intent 

to abuse, arouse, or gratify sexual 

desire.’’ The final rule replaces the 

intent clause with the following 

language: ‘‘that is unrelated to official 

duties or where the staff member, 

contractor, or volunteer has the intent to 

abuse, arouse or gratify sexual desire.’’ 

Thus, if the touching is unrelated to 

official duties, no finding as to intent is 

necessary. If the touching is related to 

official duties—such as a strip search— 

the touching qualifies as sexual abuse 

only if it is performed in a manner that 

evidences an intent to abuse, arouse, or 

gratify sexual desire. 

One agency recommended replacing 

‘‘sexual abuse’’ with ‘‘rape.’’ The 

Department has not made this change. 

PREA defines ‘‘rape’’ broadly, in a 

manner that is more consistent with the 

customary definition of sexual abuse. 

For example, PREA includes ‘‘sexual 

fondling’’ in its definition of rape, see 

42 U.S.C. 15609(9), (11), even though 

that term is typically associated with 

sexual abuse rather than with rape. The 

Department concludes that sexual abuse 

is a more accurate term to describe the 

behaviors that Congress aimed to 

eliminate. 

An advocate for disability rights 

recommended that the Department 

define what it means for an inmate to be 

‘‘unable to consent,’’ due to variations 

in State law on this issue. The 

Department has not done so, concluding 

that correctional agencies should use 

their judgment, taking into account any 

applicable State law. 

One advocacy organization 

recommended that kissing be added to 

the definition of sexual abuse or sexual 

harassment, due to the possibility that 

kissing could be used as a ‘‘grooming’’ 

technique leading to other sexual 

activities. The Department concludes 

that it is appropriate to consider kissing 

to constitute sexual abuse in certain 

contexts where committed by a staff 

member. Accordingly, the final rule 

adds to the definition of sexual abuse by 

a staff member ‘‘[c]ontact between the 

mouth and any body part where the staff 

member, contractor, or volunteer has the 

intent to abuse, arouse, or gratify sexual 

desire.’’ 

Finally, the Department has made 

various nonsubstantive changes to the 

definition of sexual abuse, including 

simplifying its structure. In addition, 

the final rule provides that sexual abuse 

is not limited to incidents where the 

staff member touches the inmate’s 

genitalia, breasts, anus, groin, inner 

thigh, or buttocks, but also includes 

incidents where the staff member 

induces the inmate to touch the staff 

member in such a manner. 

Sexual harassment. Several 

correctional agencies recommended that 

the final rule remove sexual harassment 

from the scope of the standards. The 

Department has not done so. Although 

PREA does not reference sexual 

harassment, it authorized the NPREC to 

propose, and by extension authorized 

the Attorney General to adopt, standards 

relating to ‘‘such other matters as may 

reasonably be related to the detection, 

prevention, reduction, and punishment 

of prison rape.’’ 42 U.S.C. 

15606(e)(2)(M). Certain standards 

reference sexual harassment in order to 

combat what may be a precursor to 

sexual abuse. 

One commenter took issue with the 

categorization of ‘‘repeated verbal 

comments or gestures of a sexual nature 

* * * including demeaning references 

to gender, sexually suggestive or 

derogatory comments’’ as sexual 

harassment rather than sexual abuse. 

The commenter suggested that this 

categorization inappropriately 

downplayed the harm associated with 

such conduct, especially because many 

of the standards in the proposed rule 

referenced only sexual abuse and not 

sexual harassment. The Department has 

not made this change, largely because 

such activities fit the textbook definition 

of sexual harassment. To label 

comments and gestures as sexual 

harassment is not meant to belittle the 

harm that may ensue. (The question of 

whether specific standards should 

include sexual harassment as well as 

sexual abuse is a separate issue and is 

discussed below in reference to specific 

standards.) However, similar activity, 

when performed by a staff member, does 

constitute sexual abuse. This distinction 

recognizes that staff exert tremendous 

authority over every aspect of inmates’ 

lives—far more authority than 

employers exert over employees in a 

workplace context. An attempt, threat, 

or request to engage in sexual contact, 

even if it does not result in actual sexual 

contact, may lead to grave consequences 

for an inmate, and deserves to be treated 

seriously. Indeed, in many States, such 

contact is considered to be a crime.4

The same commenter also 

recommended defining sexual 

harassment to include all comments of 

a sexual nature, not just repeated 

comments. One correctional agency 

made the same recommendation with 

regard to comments made by staff. The 

Department has not made this change. 

Various standards require remedial 

action in response to sexual harassment; 

while correctional agencies may take 

appropriate action in response to a 

single comment, a concern for efficient 

resource allocation suggests that it is 

best to mandate such action only where 

comments of a sexual nature are 

repeated. 

Voyeurism. Some correctional 

agencies recommended removing 

voyeurism from the scope of the 

standards, fearing that its inclusion 

would result in groundless accusations 

against staff members merely for 

performing their jobs. This change has 

not been made. The Department notes 

that voyeurism is limited to actions 

taken ‘‘for reasons unrelated to official 

duties’’—which constitutes a significant 

limitation. A staff member who happens 

to witness an inmate in a state of 

undress while conducting rounds has 

not engaged in voyeurism. The risk of 

false accusations is an inevitable 

consequence of imposing limits upon 

staff members’ actions, and is neither 

limited to, nor unusually problematic 

in, the context of voyeurism. 

One correctional agency 

recommended that voyeurism be 

considered as a subset of sexual 

harassment and be limited to repeated 

actions, as with sexual harassment. The 

Department has not made this change. 

Voyeurism is appropriately considered 

to be a more serious offense than sexual 

harassment, and indeed is often a crime. 

The same commenter suggested that by 

placing voyeurism within the category 

of sexual abuse, ‘‘there is no 

differentiation between incidences of 

voyeurism and rape.’’ This is incorrect; 

sexual abuse appropriately encompasses 

a broad range of incidents of varying 

degrees of severity. The standards oblige 

correctional agencies to take certain 

actions in response to all incidents of 

sexual abuse, but the appropriate 

response will vary greatly depending 

upon the nature of the incident. 


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Some advocacy commenters, and one 

sheriff’s office, criticized the proposed 

rule for providing that taking images of 

all or part of an inmate’s naked body, or 

of an inmate performing bodily 

functions, constituted voyeurism only if 

the staff member also distributed or 

published them. The final rule removes 

that limitation. Under the revised 

definition, taking such images 

constitutes voyeurism regardless of 

what the staff member does with the 

images afterwards. 

Zero Tolerance; PREA Coordinator 

(§§ 115.11, 115.111, 115.211, 115.311) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that agencies 

establish a zero-tolerance policy toward 

sexual abuse and harassment that 

outlines the agency’s approach to 

preventing, detecting, and responding to 

such conduct. The Department also 

proposed that agencies employ or 

designate an upper-level, agency-wide 

PREA coordinator to oversee efforts to 

comply with the standards. The 

proposed standard specified that the 

agency-wide PREA coordinator would 

be a full-time position in all agencies 

that operate facilities whose total rated 

capacity—i.e., an objective 

determination of available bed space in 

a facility—exceeds 1,000 inmates, but 

could be a part-time position in other 

agencies. The proposed standard also 

required that agencies whose total 

capacity exceeds 1,000 inmates must 

designate an existing full-time or parttime employee at each facility to serve 

as that facility’s PREA coordinator. 

Changes in Final Rule 

The final standard no longer requires 

that the agency-wide PREA coordinator 

be a full-time position for large agencies. 

Instead, the standard provides that the 

PREA coordinator must have ‘‘sufficient 

time and authority’’ to perform the 

required responsibilities, which have 

not been changed from the proposed 

standard. 

The final standard also requires that 

any agency that operates more than one 

facility (regardless of agency size) 

designate a PREA compliance manager 

at each facility with sufficient time and 

authority to coordinate the facility’s 

efforts to comply with the PREA 

standards. 

Comments and Responses 

Comment. Numerous commenters 

criticized the proposed standard for 

requiring that the PREA coordinator be 

a full-time position. Such commenters 

indicated that establishing a full-time 

position would be cost-prohibitive and 

would inappropriately divert resources 

from other important efforts. Some 

recommended that agencies be given 

discretion in how to structure their 

PREA oversight and that coordinators be 

given flexibility to work on related 

tasks. One commenter suggested that the 

standard mandate that the PREA 

coordinator devote a specified 

minimum percentage of time to PREArelated work. Another commenter 

proposed that a full-time PREA 

coordinator be required only if a 

threshold level of verified sexual abuse 

incidents is reached. 

Response. Designating a specific staff 

person to be accountable for PREA 

development, implementation, and 

oversight will help ensure the success of 

such efforts. However, agencies should 

have discretion in how to manage their 

PREA initiatives. Therefore, the final 

standard does not require that the PREA 

coordinator be a full-time position. 

Similarly, mandating a minimum 

percentage of staff time to be spent on 

PREA would be too stringent, and 

would not provide sufficient flexibility. 

Rather, the final standard requires that 

the agency designate a PREA 

coordinator with sufficient time and 

authority to develop, implement, and 

oversee agency efforts to comply with 

the PREA standards. 

As for the suggestion that a full-time 

coordinator be required only if verified 

incidents exceed a specified threshold, 

it is important to note that a low level 

of verified incidents does not 

necessarily mean that sexual abuse is 

not a concern. If an agency is not 

appropriately investigating allegations 

of sexual abuse, or if victims do not feel 

comfortable reporting such incidents, 

the level of verified incidents may not 

accurately reflect the agency’s success at 

combating sexual abuse. 

Comment. Various agency 

commenters requested additional 

flexibility with respect to the 

requirement that agencies with 

aggregate rated capacities of over 1,000 

inmates designate facility-level PREA 

coordinators. Some commenters 

suggested raising or lowering the 

population threshold for this 

requirement. 

Response. Where an agency operates 

multiple facilities, the final standard 

requires that all such facilities, 

regardless of size, designate a PREA 

compliance manager with sufficient 

time and authority to coordinate the 

facility’s efforts to comply with the 

PREA standards. Having a ‘‘point 

person’’ at each facility will be 

beneficial regardless of the size of the 

agency or facility. (The PREA 

coordinator would serve as the ‘‘point 

person’’ at single-facility agencies.) The 

language in the final standard 

appropriately balances the need for 

accountability with the flexibility that 

sound correctional management 

requires. 

Comment. One commenter inquired 

as to whether separate smaller facilities 

could share one PREA coordinator, to 

accommodate workload and cost 

concerns. 

Response. With the additional 

flexibility provided in the final 

standard, such arrangements should not 

be necessary. Facilities are encouraged 

to collaborate on PREA efforts to the 

extent feasible, but ultimately each 

facility will need to ensure that effective 

practices and procedures are in place. 

For this reason, the final standard 

requires each facility in a multi-facility 

agency to have its own PREA 

compliance manager. 

Comment. One commenter requested 

clarification as to the requirement that 

the PREA coordinator be an ‘‘upperlevel’’ staff member. 

Response. While it is not possible to 

define ‘‘upper-level’’ with precision, the 

PREA coordinator should have access to 

agency and facility leadership on a 

regular basis, and have the authority to 

work with other staff, managers, and 

supervisors to effectuate change if 

necessary. By contrast, the facilityspecific PREA compliance manager 

need not be ‘‘upper-level,’’ but should 

have access to facility staff, managers, 

and supervisors in order to guide 

implementation. 

Contracting With Other Entities for 

Confinement of Inmates (§§ 115.12, 

115.112, 115.212, 115.312) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that agencies 

that contract with outside entities 

include in any new contract or contract 

renewal the entity’s obligation to 

comply with the PREA standards. 

Changes in Final Rule 

No substantive changes have been 

made to the proposed standard. 

Comments and Responses 

Comment. Numerous advocates urged 

that the standard be revised to require 

government agencies to impose 

financial sanctions on private 

contractors that fail to comply with the 

standards. These commenters also 

argued that contract entities should be 

held to the same auditing standards as 

agency-run facilities. 

Response. As discussed below, the 

auditing standard (§ 115.401) requires 


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5The full definition is as follows: ‘‘Secure 

juvenile facility means a juvenile facility in which 

the movements and activities of individual 

residents may be restricted or subject to control 

through the use of physical barriers or intensive 

staff supervision. A facility that allows residents 

access to the community to achieve treatment or 

correctional objectives, such as through educational 

or employment programs, typically will not be 

considered to be a secure juvenile facility.’’ § 115.5. 

that every facility operated by an 

agency, or by a private organization on 

behalf of an agency, be audited for 

PREA compliance at least once in every 

three-year auditing cycle. The auditing 

requirements are the same, as are the 

effects of such audits: The Governor of 

each State is required to consider the 

audits of facilities within the 

operational control of the State’s 

executive branch, including the audits 

of private facilities operated by a 

contract entity on behalf of such 

agencies, in determining whether to 

certify that the State is in full 

compliance with the PREA standards. 

However, the final standard does not 

require agencies to impose financial 

sanctions on non-compliant private 

contractors. The standard requires that 

new contracts or contract renewals 

include a provision that obligates the 

entity to adopt and comply with the 

PREA standards. Beyond that, the 

Department sees no need to specify the 

manner in which an agency enforces 

such compliance. 

Supervision and Monitoring (§§ 115.13, 

115.113, 115.213, 115.313) 

Summary of Proposed Rule 

The standard in the proposed rule 

contained four requirements. First, it 

required the agency to make an 

assessment of adequate staffing levels, 

taking into account its use, if any, of 

video monitoring or other technology, 

and the physical layout and inmate 

population of the facility. Second, it 

required agencies to devise a plan for 

how to best protect inmates from sexual 

abuse should staffing levels fall below 

an adequate level. Third, it required 

agencies to reassess at least annually the 

identified adequate staffing levels, as 

well as the staffing levels that actually 

prevailed during the previous year, and 

the facility’s use of video monitoring 

systems and other technologies. Fourth, 

it required prisons, juvenile facilities, 

and jails whose rated capacity exceeds 

500 inmates to implement a policy of 

unannounced rounds by supervisors to 

identify and deter staff sexual abuse and 

sexual harassment. 

Changes in Final Rule 

The final standard requires each 

prison, jail, and juvenile facility to 

develop and document a staffing plan 

that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect inmates against 

sexual abuse. In calculating adequate 

staffing levels and determining the need 

for video monitoring, facilities must 

consider several factors, including: (1) 

Generally accepted detention and 

correctional practices; (2) any judicial 

findings of inadequacy; (3) any findings 

of inadequacy from Federal 

investigative agencies; (4) any findings 

of inadequacy from internal or external 

oversight bodies; (5) all components of 

the facility’s physical plant (including 

‘‘blind spots’’ or areas where staff or 

inmates may be isolated); (6) the 

composition of the inmate population; 

(7) the number and placement of 

supervisory staff; (8) institution 

programs occurring on a particular shift; 

(9) any applicable State or local laws, 

regulations, or standards; (10) the 

prevalence of substantiated and 

unsubstantiated incidents of sexual 

abuse; and (11) any other relevant 

factors. Prisons and jails must use ‘‘best 

efforts to comply with the staffing plan 

on a regular basis’’ and are required to 

document and justify deviations from 

the staffing plan. 

Like the proposed standard, the final 

standard requires all agencies to 

annually assess, determine, and 

document for each facility whether 

adjustments are needed to (1) The 

staffing levels established pursuant to 

this standard; (2) prevailing staffing 

patterns; and (3) the facility’s 

deployment of video monitoring 

systems and other monitoring 

technologies. The final standard also 

adds a requirement that the annual 

assessment examine the resources the 

facility has available to commit to 

ensure adequate staffing levels. 

The final standard requires, lockups 

and community confinement facilities 

to develop and document a staffing plan 

that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect inmates against 

sexual abuse. In circumstances where 

the staffing plan is not complied with, 

lockups and community confinement 

facilities must document and justify all 

deviations from the plan. The final 

standard, like the proposed standard, 

requires lockup and community 

confinement agencies to consider the 

facility’s physical layout, the 

composition of its population, the 

prevalence of substantiated and 

unsubstantiated incidents of sexual 

abuse, and any other relevant factors. If 

vulnerable detainees are identified 

pursuant to the lockup screening 

process set forth in § 115.141, security 

staff must provide such detainees with 

heightened protection, including 

continuous direct sight and sound 

supervision, single-cell housing, or 

placement in a cell that is actively 

monitored, unless no such option is 

determined to be feasible. 

The final standard sets specific 

minimum staffing levels for certain 

juvenile facilities. As set forth below at 

the end of the discussion of the 

Supervision and Monitoring standard, 

the Department seeks additional 

comment on this aspect of the standard. 

Specifically, the final standard requires 

secure juvenile facilities to maintain 

minimum security staff ratios of 1:8 

during resident waking hours, and 1:16 

during resident sleeping hours, except 

during limited and discrete exigent 

circumstances, and to fully document 

deviations from the minimum ratios 

during such circumstances. However, 

any secure juvenile facility that, as of 

the date of publication of the final rule, 

is not already obligated by law, 

regulation, or judicial consent decree to 

maintain the required staffing ratios 

shall have until October 1, 2017, to 

achieve compliance. A secure facility is 

one that typically does not allow its 

residents to leave the facility without 

supervision.5 Group homes and other 

facilities that allow residents access to 

the community to achieve treatment or 

correctional objectives, such as through 

educational or employment programs, 

typically will not be considered to be 

secure facilities. For juvenile facilities, 

the final standard omits the requirement 

to plan for staffing levels that do not 

meet the identified adequate levels. 

The final standard also extends to all 

jails (rather than, as in the proposed 

standards, only those jails whose rated 

capacity exceeds 500 inmates) the 

requirement of unannounced 

supervisory rounds to identify and deter 

staff sexual abuse and sexual 

harassment. In order to address 

concerns that some staff members might 

prevent such rounds from being 

‘‘unannounced’’ by providing 

surreptitious warnings, the final 

standard adds a requirement that 

agencies have a policy to prohibit staff 

members from alerting their colleagues 

that such supervisory rounds are 

occurring, unless such announcement is 

related to the legitimate operational 

functions of the facility. 

Comments and Responses 

The NPRM posed several questions 

regarding staffing. Below is a summary 

of all comments received regarding this 

standard, keyed to the question to 

which they correspond, and the 

Department’s responses. 


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NPRM Question 4: Should the 

standard require that facilities actually 

provide a certain level of staffing, 

whether determined qualitatively, such 

as by reference to ‘‘adequacy,’’ or 

quantitatively, by setting forth more 

concrete requirements? If so, how? 

Comment. Commenters were nearly 

unanimous in opposing a quantitative 

staffing requirement for adult facilities. 

Numerous adult correctional agencies 

expressed a strong preference for 

deference to agency decisions on 

staffing issues, given the varied and 

intricate factors that affect staffing 

levels, such as facility type, layout, 

population, classification levels, and 

whether and how the facility uses video 

surveillance. Many agency commenters 

expressed support for the proposed 

standard as written; some noted that 

many facilities already employ 

mandatory and minimum post/staffing 

criteria, which they can tailor to meet 

specific needs, such as by increasing 

staffing levels in particular units that 

have experienced an increase in 

victimization. Other commenters noted 

that some facilities are already bound by 

State-mandated staffing ratios, and that 

additional or different PREA ratios 

could conflict with State law. Jail 

administrators suggested the absence of 

any national model or best practice that 

supports a specific staffing ratio in local 

jails, due to extreme differences in 

facility size, age, architectural design, 

and population. Agency commenters 

emphasized that facility leadership is 

best positioned to determine ‘‘adequate’’ 

staffing levels. In general, advocacy 

groups agreed that, due to these 

concerns, the final standard should not 

mandate staffing ratios in adult 

facilities. 

In addition to feasibility, many 

correctional commenters stated that the 

costs of establishing a specific staffing 

requirement would be prohibitive. 

These commenters noted that the ability 

to increase staffing levels at a facility is 

often beyond the control of either the 

facility or the agency. Staffing increases 

require additional funding, which 

usually must be legislatively 

appropriated. The commenters also 

noted that budget increases are unlikely 

in the current fiscal climate and would 

require a significant amount of lead time 

for approval. Several correctional 

stakeholders, joined by some advocacy 

groups, commented that specific staffing 

ratios in adult facilities would 

constitute an ‘‘unfunded mandate,’’ 

which might compel some agencies to 

choose not to attempt compliance with 

the PREA standards in general. In 

addition, commenters observed that 

increased costs imposed by a staffing 

mandate could result in elimination of 

programming for inmates due to funding 

limitations. 

On the other hand, one local 

correctional agency commented that, 

given current fiscal conditions, some 

agencies will have difficulties 

expanding staffing unless the final 

standard mandates minimum staffing 

levels. In addition, some advocates 

noted that courts have held that cost is 

not an excuse for failing to provide for 

the safety of persons in custody, and 

argued that if an agency cannot provide 

adequate staffing to ensure inmate 

safety, then it should reduce its inmate 

population. 

Response. The Department recognizes 

the many factors that affect adequate 

staffing and therefore does not 

promulgate a standard with concrete 

staffing requirements for adult facilities. 

The final standard enumerates a broader 

set of factors to be taken into 

consideration in calculating adequate 

staffing levels and determining the need 

for video monitoring: Generally 

accepted detention and correctional 

practices; any judicial findings of 

inadequacy; any findings of inadequacy 

from Federal investigative agencies; any 

findings of inadequacy from internal or 

external oversight bodies; all 

components of the facility’s physical 

plant (including ‘‘blind-spots’’ or areas 

where staff or inmates may be isolated); 

the composition of the inmate 

population (such as gender, age, 

security level, and length of time 

inmates reside in the facility); the 

number and placement of supervisory 

staff; institution programs occurring on 

a particular shift; any applicable State or 

local laws, regulations, or standards; 

and the prevalence of substantiated and 

unsubstantiated incidents of sexual 

abuse. In addition, the final standard 

requires facilities to take into account 

‘‘any other relevant factors.’’ 

Given the intricacies involved in 

formulating an adequate staffing plan, 

the Department does not include 

specific staffing ratios for adult facilities 

in the final standard. The final 

determination as to adequate staffing 

levels remains in the discretion of the 

facility or agency administration. In 

addition, the facility is encouraged to 

reassess its staffing plan as often as 

necessary to account for changes in the 

facility’s demographics or needs. 

With regard to the cost of staffing, the 

Department notes that the Constitution 

requires that correctional facilities 

provide inmates with reasonable safety 

and security from violence, see Farmer 

v. Brennan, 511 U.S. 825, 832 (1994), 

and sufficient staff supervision is 

essential to that requirement. However, 

the Department is sensitive to current 

fiscal conditions and the inability of 

correctional agencies to secure budget 

increases unilaterally. The Department 

is also cognizant of the fact that staffing 

is the largest expense for correctional 

agencies, and recognizes that the costs 

involved in increasing staffing could 

make compliance difficult for some 

facilities. While adequate staffing is 

essential to a safe facility, the 

Department wishes to avoid the 

unintended consequence of decreased 

programming and other opportunities 

for inmates as a result of budgetary 

limitations. 

The final standard also requires the 

agency to reassess, determine, and 

document, at least annually, whether 

adjustments are needed to resources the 

facility has available to commit to 

ensure adherence to the staffing plan. 

This language accounts for the fact that 

resource availability will affect staffing 

levels and provides agencies an 

incentive to request additional staffing 

funds as needed. The Department 

considered including a requirement for 

the agency to request additional funds 

from the appropriate governing 

authority, if necessary, but determined 

that this decision best remained within 

the discretion of the agency. 

The final standard requires agencies 

to use ‘‘best efforts to comply on a 

regular basis’’ with the staffing plan. 

Facilities must document and justify 

deviations from the staffing plan, but 

full compliance with the plan is not 

required to achieve compliance with the 

standard. The Department considered 

including in the standard a specific 

mandate to comply with the staffing 

plan, but determined that requiring 

‘‘best efforts’’ is more appropriate, to 

avoid penalizing agencies that 

unsuccessfully seek to obtain additional 

funds. Lockups and community 

confinement facilities are exempt from 

the ‘‘best efforts’’ language, but must 

document deviations from the staffing 

plan. Juvenile facilities, however, must 

comply with their staffing plans except 

during limited and discrete exigent 

circumstances, and must fully 

document deviations from a plan during 

such circumstances. 

The Department reiterates, however, 

that this standard, like all the standards, 

is not intended to serve as a 

constitutional safe harbor. A facility that 

makes its best efforts to comply with the 

staffing plan is not necessarily in 

compliance with constitutional 

requirements, even if the staffing 

shortfall is due to budgetary factors 

beyond its control. 

Comment. Numerous advocates 

expressed concern that the proposed 


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6See Allen J. Beck and Paige M. Harrison, Bureau 

of Justice Statistics (‘‘BJS’’), Sexual Victimization in 

Prisons and Jails Reported by Inmates, 2008–09, at 

22 (Table 16) (Aug. 2010). 

standard did not require the facilities to 

adhere to a specific staffing plan. These 

commenters noted that the proposed 

standard required agencies to develop a 

staffing plan but did not require that 

agencies safely staff the facilities. In 

addition, because the proposed standard 

required agencies to plan for what to do 

if they failed to comply with their 

staffing goals, commenters suggested 

that it could be read to permit or 

condone unsafe supervision levels. 

These advocates proposed requiring 

agencies to comply with their initial 

staffing goals and eliminating the 

requirement that agencies plan for 

suboptimal staffing. Former members of 

the NPREC, and an advocacy 

organization, recommended that the 

Department revise its proposed 

supervision standard to require agencies 

to annually review staffing and video 

monitoring to assess their effectiveness 

at keeping inmates safe in light of 

reported incidents of sexual abuse, 

identify the changes it considers 

necessary, and actually implement those 

changes. 

Response. The Department recognizes 

the tension in the proposed standard 

between requiring an agency to identify 

adequate staffing levels, but then 

implicitly allowing the facility to 

operate without requisite staffing in 

accordance with a ‘‘backup plan.’’ 

Therefore, the final standard requires 

each prison, jail, and juvenile facility to 

develop, implement, and document a 

staffing plan that provides for adequate 

levels of staffing, and, where applicable, 

video monitoring, to protect inmates 

against sexual abuse, taking into 

account the relevant factors affecting 

staffing needs. In addition, the final 

standard requires that, at least annually, 

the agency must assess, determine, and 

document whether adjustments are 

needed to the staffing plan, but does not 

require implementation of such 

adjustments. Because the Department 

recognizes that staffing levels are often 

dependent on budget approval from an 

external legislative or other 

governmental entity, the final standard 

requires each adult prison and jail to 

use its ‘‘best efforts to comply on a 

regular basis’’ with its staffing plan. 

Given the costs involved and the lack of 

control correctional agencies may have 

with regard to budgetary issues, the 

final standard is designed to encourage 

adequate staffing without discouraging 

agencies from attempting to comply 

with the PREA standards due to 

financial concerns. 

Comment. Advocates expressed 

concern that the proposed standards 

failed to provide sufficient guidance 

with respect to how staffing levels 

should be established. One advocate 

suggested that, in determining safe 

staffing ratios, facilities should start 

with any State requirements and 

standards promulgated by the American 

Correctional Association and the 

American Jail Association. Several 

comments suggested including as 

factors any blind spots within the 

facility, including spaces not designated 

for residents, such as closets, rooms, 

and hallways; high traffic areas within 

the facility; the ease with which 

individual staff members can be alone 

with individual residents in a given 

location; the potential value of 

establishing and retaining video and 

other evidence of sexual misconduct; 

the need to provide enhanced 

supervision of inmates who have abused 

or victimized other inmates; the need to 

ensure that vulnerable inmates receive 

additional protections without being 

subjected to extended isolation or 

deprived of programming; previous 

serious incidents and the staffing and 

other circumstances that existed during 

those incidents; the need for increased 

or improved staff training; the number 

of special needs or vulnerable inmates; 

the number and placement of 

supervisory staff; grievances from 

inmates, staff, visitors, family members, 

or others; compliance with any 

applicable laws and regulations related 

to staffing requirements; individual 

medical and mental health needs; 

availability of technology; custody level; 

management level; capacity; and 

peripheral duty requirements. 

Response. The Department considered 

each suggestion and adopted a final 

standard that requires facilities to 

consider the following factors: (1) 

Generally accepted detention and 

correctional practices; (2) any judicial 

findings of inadequacy; (3) any findings 

of inadequacy from Federal 

investigative agencies; (4) any findings 

of inadequacy from internal or external 

oversight bodies; (5) all components of 

the facility’s physical plant (including 

‘‘blind-spots’’ or areas where staff or 

inmates may be isolated); (6) the 

composition of the inmate population; 

(7) the number and placement of 

supervisory staff; (8) institution 

programs occurring on a particular shift; 

(9) any applicable State or local laws, 

regulations, or standards; (10) the 

prevalence of substantiated and 

unsubstantiated incidents of sexual 

abuse; and (11) any other relevant 

factors. The factors enumerated in the 

final standard are broadly applicable 

across different types of facilities, allow 

for comprehensive analysis without 

prescribing every single detail to be 

considered, and provide sufficient 

guidance as to how to plan for staffing 

levels that will provide adequate 

supervision to protect inmates from 

sexual abuse. The listed factors are not 

exclusive; facilities should consider 

additional issues that are common 

across correctional facilities and 

pertinent to the characteristics of each 

specific facility, and findings from 

reports and empirical studies relevant to 

sexual abuse issued by the Department, 

academia, or professional sources. As an 

example of one finding from a 

Department report that would be 

relevant to determining adequate 

staffing, as well as the need for 

increased video monitoring or the 

frequency of rounds, the Department 

encourages facilities to consider that 

inmate-on-inmate sexual abuse is most 

likely to occur in the evening, when 

inmates are awake but often confined to 

their cells and staffing levels are 

generally lower than during the day.6 In 

addition, the National Resource Center 

for the Elimination of Prison Rape will 

develop guidance to help facilities 

compose an adequate staffing plan, and 

the Department’s National Institute of 

Corrections is available to provide 

technical assistance on developing an 

adequate staffing plan. 

Comment. One correctional agency 

interpreted the proposed standard to 

require direct supervision of inmates, 

which it asserted would have major cost 

implications. 

Response. This comment is based on 

a misinterpretation of the proposed 

standard, which did not require direct 

supervision. Nor does the final 

standard. 

Comment. Some correctional agency 

commenters argued that it is not 

appropriate for the Federal government, 

or for State governments, to set staffing 

standards for a facility run by an 

independently elected constitutional 

officer at the local level. 

Response. The Department is 

sensitive to concerns regarding 

interference with local government. 

However, Congress mandated in PREA 

that the Attorney General adopt 

standards that would apply to local 

facilities as well as Federal and State 

facilities, as evidenced by the statute’s 

definition of ‘‘prison’’ as ‘‘any 

confinement facility of a Federal, State, 

or local government, whether 

administered by such government or by 

a private organization on behalf of such 


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7 In addition, the cost limitation language in the 

statute expressly references local institutions. See 

42 U.S.C. 15607(a)(3) (‘‘The Attorney General shall 

not establish a national standard under this section 

that would impose substantial additional costs 

compared to the costs presently expended by 

Federal, State, and local prison authorities.’’). 

government.’’ 42 U.S.C. 15609.7 The 

application of the staffing standard to 

local correctional agencies is consistent 

with Congress’s mandate to the 

Department. Indeed, it is not uncommon 

for State staffing standards, especially 

for juvenile facilities, to apply to 

facilities that are under the purview of 

an independently elected county or 

municipal official. For these reasons, 

the Department does not view the 

imposition of this standard as 

inappropriately intruding upon the 

prerogatives of local elected officials. 

Comment. One correctional agency 

commented that hiring more staff does 

not necessarily eliminate sexual abuse. 

Response. The Department recognizes 

that adequate staffing levels alone are 

not sufficient to combat sexual abuse in 

a corrections setting. However, adequate 

staffing is essential to providing 

sufficient supervision to protect inmates 

from abuse. 

NPRM Question 5: If a level such as 

‘‘adequacy’’ were mandated, how would 

compliance be measured? 

NPRM Question 11: If the Department 

does not mandate the provision of a 

certain level of staffing, are there other 

ways to supplement or replace the 

Department’s proposed standard in 

order to foster appropriate staffing? 

NPRM Question 14: Are there other 

ways not mentioned above in which the 

Department can improve the proposed 

standard? 

Comment. The Department received 

numerous suggestions from agency 

commenters on proposed methods for 

measuring adequacy. Some stakeholders 

expressed concern that a subjective 

‘‘adequacy’’ standard would be difficult 

to audit. Many commenters requested a 

better definition of ‘‘adequacy.’’ Various 

advocacy and correctional groups 

commented that agencies would benefit 

from a more detailed description of 

what they must consider when 

conducting the staffing and technology 

analyses that PREA requires. Others 

suggested that ‘‘adequate,’’ while 

subjective, is the most appropriate term 

to use in this context. 

Response. The final standard does not 

include a specific definition for 

‘‘adequate staffing’’ but does provide 

greater guidance as to the factors that 

should be considered in developing an 

adequate staffing plan. The Department 

intends to develop, in conjunction with 

the National Resource Center for the 

Elimination of Prison Rape, auditing 

tools that will guide PREA auditors 

regarding the various factors affecting 

the adequacy of staffing. The final 

standard contains additional 

documentation requirements, which 

will aid the auditor in reviewing the 

adequacy of the plan and the facility’s 

efforts at complying with it. The auditor 

will review documentation showing that 

the agency or facility conducted a 

proper staffing analysis taking into 

account all enumerated and relevant 

factors included in the standard. In 

addition, the National Resource Center 

for the Elimination of Prison Rape will 

develop guidance to help facilities 

compose an adequate staffing plan. And, 

as noted above, the Department’s 

National Institute of Corrections can 

provide technical assistance on 

developing an adequate staffing plan. 

Comment. Some correctional 

commenters, including the American 

Jail Association, requested best-practice 

tools for achieving ‘‘adequate’’ staffing. 

They suggested that the Federal 

government develop appropriate tools, 

model policies, and training materials 

that address the basic principles of 

PREA and focus on adequate 

supervision in order to provide facilities 

with ‘‘a greater chance of meaningful 

implementation of this standard.’’ 

Response. As discussed above, the 

National Resource Center for the 

Elimination of Prison Rape will develop 

guidance both for facilities in 

composing an adequate staffing plan 

and for auditors in evaluating adequacy 

of staffing during a PREA audit. These 

materials will be available to aid 

agencies in achieving compliance with 

the final standard. 

Comment. Some correctional agencies 

and advocacy groups recommended 

assessing the adequacy of staffing by 

reviewing any incidents related to 

sexual or physical abuse at a facility to 

determine if inadequate staffing played 

a role. One juvenile justice agency 

suggested that daily monitoring of 

PREA-related incidents could help 

identify staffing needs. Another agency 

commenter suggested reviewing 

incident reports of rule violations at 

particular posts. 

Response. Reviewing incidents of 

abuse and rule violations can provide 

information as to whether staffing is 

adequate in a particular facility or unit 

of a facility. However, incidents of 

abuse should not be the only factor. As 

discussed above, many factors affect 

adequacy of staffing. In addition, the 

reliability of the record of prior 

incidents may depend upon the 

facility’s diligence at investigating 

allegations and its ability to create a 

culture in which inmate victims feel 

comfortable reporting incidents without 

fear of reprisal. Accordingly, it is not 

possible to define adequacy solely in 

these terms. Of course, if a review of 

incident reports indicates that 

insufficient staffing is a contributing 

factor in sexual abuse, such a finding is 

clearly relevant to the ultimate 

determination as to the adequacy of 

staffing. 

Comment. One State correctional 

agency suggested that adequacy could 

be defined by determining the minimum 

staffing levels at which a facility is able 

to operate within constitutional 

requirements and determining whether 

a facility is adhering to such staffing 

levels. 

Response. Adequate staffing is 

essential to providing constitutional 

conditions within a correctional facility. 

However, it is not feasible for the 

Department to determine, at every 

Federal, State, and local facility, the 

level of staffing required to comport 

with the Constitution, especially given 

that the level may change over time as 

the size and nature of the facility’s 

population changes. The PREA audit 

with regard to this standard will focus 

on whether the facility has developed 

and utilized best efforts to comply on a 

regular basis with an adequate staffing 

plan to protect inmates from sexual 

abuse. 

Comment. Some correctional 

commenters suggested that ‘‘adequate’’ 

staffing levels be measured by the 

facility’s ability to perform required 

functions, such as feeding inmates, 

conducting routine checks, holding 

outdoor recreation, and generally 

maintaining the facility schedule 

without requiring significant periods of 

lockdown. 

Response. A facility’s inability to 

perform required functions and operate 

in accordance with the institutional 

schedule without significant periods of 

lockdown may have a direct bearing on 

the adequacy of staffing. However, 

deviations from the schedule and 

performance deficiencies may signal 

deeper problems unrelated to the 

number of staff. In addition, the ability 

to stay on schedule and perform routine 

functions does not necessarily indicate 

a safe or adequately staffed facility. 

While this information may be relevant 

to an auditor’s review of the facility’s 

staffing plan, it cannot be the sole 

determinant of staffing adequacy. 

Comment. Many commenters, 

including correctional agencies and 

advocacy groups, suggested that 

adequacy be measured by assessing 

whether a facility complies with its 

written staffing plan. One agency 


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suggested that compliance should be 

measured by determining whether the 

facility is complying with the plan 

rather than by reviewing the level or 

nature of incidents of abuse. Former 

NPREC members recommended that 

staffing level compliance be measured 

during the baseline audit, and that 

actual staffing patterns should be 

compared with the levels determined by 

the facility needs assessment. If the 

audit outcome reveals that current 

staffing levels are inadequate, facilities 

should be required to develop a 

corrective action plan, a timeline for 

implementation, and regularly 

scheduled assessments to monitor 

progress toward achieving safe staffing 

levels. 

Response. The final standard requires 

agencies to develop, document, and use 

‘‘best efforts’’ to comply on a regular 

basis with a staffing plan that provides 

for adequate levels of staffing, and, 

where applicable, video monitoring, to 

protect inmates against sexual abuse, 

taking into account the relevant, 

enumerated factors. A more stringent 

mandate would unfairly penalize 

agencies that do not have budgetary 

authority or funds to increase staffing. 

In addition, if faced with a specific 

mandate to comply with the staffing 

plan, agencies would have an incentive 

to formulate plans that undercount the 

number of staff needed in order to 

facilitate compliance with the plan. The 

final standard encourages agencies to 

compose the most appropriate staffing 

plan for each facility without concern 

that the agencies will be overly 

conservative in their staffing analysis in 

order to avoid non-compliance with the 

PREA standards. To be sure, if the 

facility’s plan is plainly deficient on its 

face, the facility is not in compliance 

with this standard even if it adheres to 

the plan. 

In addition, a failure to comply with 

identified adequate staffing levels may 

affect a facility’s ability to comply with 

other standards. Pursuant to the 

auditing standards, facilities that receive 

a finding of ‘‘Does Not Meet Standard’’ 

with regard to any of the PREA 

standards will have a 180-day corrective 

action period in which the auditor and 

the agency shall jointly develop a 

corrective action plan to achieve 

compliance and the auditor will take 

necessary and appropriate steps to 

verify implementation of the corrective 

action plan before issuing a final 

determination as to whether the facility 

has achieved compliance. 

Comment. Some correctional 

stakeholders suggested that the 

Department require each facility to 

conduct incident mapping and set 

performance goals, and then measure 

adequacy based on the facility’s ability 

to meet these goals. 

Response. The Department recognizes 

that incident mapping and performance 

goals are important quality 

improvement measures, and encourages 

all facilities to implement a system to 

set goals, collect and review data, 

identify trends, and chart progress 

towards performance goals. However, 

because incident reporting is an 

imperfect measurement of adequate 

staffing, the results of such a system 

cannot provide an ultimate assessment 

of compliance. 

NPRM Question 6: Various States 

have regulations that require 

correctional agencies to set or abide by 

minimum staffing requirements. To 

what extent, if any, should the standard 

take into account such State 

regulations? 

Comment. Agency commenters felt 

strongly that compliance with a State 

minimum staffing requirement should 

lead to a presumption that staffing is 

adequate. Some stakeholders 

commented that concrete staffing 

requirements should apply only if a 

facility is not already subject to staffing 

mandates set by an outside agency or 

commission. Various correctional 

commenters noted that some 

accreditation entities honor compliance 

with State staffing regulations, and 

suggested that the PREA standards do 

the same. On the other hand, some 

advocacy groups argued that Statemandated minimum staffing ratios may 

not be sufficient to establish adequacy 

and that many facilities are not in 

compliance with such ratios. One 

advocate recommended that the 

standards require compliance with any 

applicable State or Federal laws, unless 

the PREA standards offer increased 

protection. 

Response. The final standard directs 

agencies to take into account any 

applicable State or local laws, 

regulations, or standards in formulating 

an adequate staffing plan for jails, 

prisons, and juvenile facilities. While 

regulations setting a minimum staffing 

level may be instructive, they do not 

necessarily equate to adequate staffing 

for each unit of each facility. Applicable 

State laws are a factor to consider, but 

in developing adequate staffing plans, 

an agency must take into account all 

relevant factors that bear on the 

question of adequacy. 

Comment. Some correctional 

stakeholders commented that it would 

violate the Tenth Amendment if the 

PREA standards required compliance 

with a specific staffing standard other 

than that set by the State. 

Response. The Department 

understands the concerns submitted by 

State agencies regarding the impact of 

PREA standards, and has welcomed the 

opportunity to consult with the 

Department’s partners at the State level 

to develop effective standards that 

minimize costs, maximize flexibility, 

and, to the extent feasible, minimize 

conflict with State and local laws and 

regulations. However, the Department 

concludes that PREA is consistent with 

the Federal government’s 

responsibilities to protect the 

constitutional and civil rights of all 

persons in custody. Moreover, PREA is 

an appropriate exercise of Congress’s 

power to condition Federal funding 

upon grantees’ compliance with 

relevant conditions. The application of 

the staffing standard to State and local 

correctional agencies is consistent with 

Congress’s mandate to the Department. 

Indeed, Federal regulations frequently 

impose requirements that exceed 

requirements imposed by specific 

States. Accordingly, the Department 

does not view the imposition of this 

standard as inappropriately intruding 

on State prerogatives. 

NPRM Question 7: Some States 

mandate specific staff-to-resident ratios 

for certain types of juvenile facilities. 

Should the standard mandate specific 

ratios for juvenile facilities? 

Comment. Many advocacy groups 

commented that specific staffing ratios 

are appropriate and commonly utilized 

for juvenile facilities, and specifically 

proposed establishing a minimum 1:6 

ratio for supervision during hours when 

residents are awake and a 1:12 ratio 

during sleeping hours. These 

commenters stated that minimum 

juvenile staffing ratios fall within the 

guidelines established by various States 

and correctional organizations, and that 

two jurisdictions already require the 1:6 

and 1:12 staffing ratios. In contrast to 

adult correctional agencies, juvenile 

agencies were less opposed to 

mandatory staffing ratios for juvenile 

facilities. However, some juvenile 

justice administrators expressed the 

same concerns raised with regard to 

adult facilities—that specific ratios 

would constitute a cost-prohibitive, 

unfunded mandate and that it would be 

impractical to establish one ratio to fit 

all facilities. Multiple agency 

commenters noted that they were 

already subject to mandatory staffing 

ratios and that any such ratios in the 

PREA standards would be duplicative or 

conflicting. 

Response. The Department adopts a 

standard requiring a minimum staffing 

ratio in secure juvenile facilities of 1:8 

for supervision during resident waking 


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8For juvenile facilities, the term ‘‘direct-care 

staff’’ is often used in a manner that approximates 

this rule’s definition of ‘‘security staff.’’ While the 

precise definition varies across jurisdictions, it is 

generally meant to include staff whose exclusive or 

primary duties include the supervision of residents. 

9See National Juvenile Detention Association, 

Minimum Direct Care Staff Ratio in Juvenile 

Detention Centers, at 6 (June 8, 1999), available at 

http://npjs.org/docs/NJDA/ 

NJDA_Position_Statements.pdf. The NJDA position 

statement is generally more restrictive than the 

requirement in the PREA standard. Specifically, 

while the PREA standard defines ‘‘security staff’’ as 

‘‘employees primarily responsible for the 

supervision and control of * * * residents in 

housing units, recreational areas, dining areas, and 

other program areas of the facility,’’ the NJDA 

position statement defines ‘‘direct care staff’’ as 

‘‘[e]mployees whose exclusive responsibility is the 

direct and continuous supervision of juveniles’’ Id. 

(emphases added). 

hours and 1:16 during resident sleeping 

hours. Unlike for adult facilities, it is 

relatively common for juvenile facilities 

to be subject to specific staffing ratios by 

State law or regulation. The 

Department’s research indicates that 

over 30 States already impose staffing 

ratios on some or all of their juvenile 

facilities. 

The standard’s ratios include only 

security staff. Of the States identified as 

requiring specific staffing ratios, 

approximately half count only ‘‘directcare staff’’ in these ratios.8 (For most of 

the remaining States requiring specific 

staffing ratios, the Department has not 

been able to determine precisely which 

categories of staff are included.) In 

addition, the National Juvenile 

Detention Association’s position 

statement, ‘‘Minimum Direct Care Staff 

Ratio in Juvenile Detention Centers,’’ 

which recommends respective day and 

night minimum ratios of 1:8 and 1:16, 

specifically limits the included staff to 

direct-care staff.9

The 1:8 and 1:16 staffing ratios 

adopted by the final standard match or 

are less stringent than the ratios 

currently mandated by twelve States, 

plus the District of Columbia and Puerto 

Rico, for their juvenile detention 

facilities, juvenile correctional facilities, 

or both. The Department’s Civil Rights 

Division has consistently taken the 

position that sufficient staffing is 

integral to keeping youth safe from harm 

and views minimum staffing ratios of 

1:8 during the day and 1:16 at night as 

generally accepted professional 

standards in secure juvenile facilities. 

For this reason, the Civil Rights Division 

has entered into multiple settlement 

agreements that require jurisdictions to 

meet minimum staffing ratios in order to 

ensure constitutional conditions of 

confinement for juveniles. In addition, 

as noted above, the National Juvenile 

Detention Association’s 1999 position 

statement on ‘‘Minimum Direct Care 

Staff Ratio in Juvenile Detention 

Centers’’ supports a minimum ratio of 

1:8 during the day and 1:16 at night. 

Given the widespread practice of 

setting minimum staffing ratios for 

juvenile facilities, the Department 

believes these ratios accord with 

national practice, are an integral 

measure for protecting juveniles from 

sexual assault, and can be implemented 

without excessive additional costs. In 

order to provide agencies with sufficient 

time to readjust staffing levels and, if 

necessary, request additional funding, 

any facility that, as of the date of 

publication of the final rule, is not 

already obligated by law, regulation, or 

judicial consent decree to maintain the 

required staffing ratios shall have until 

October 1, 2017, to achieve compliance. 

The standard excludes non-secure 

juvenile facilities from this requirement. 

Juveniles in non-secure facilities 

typically have less acute violent and 

abusive characteristics than those in 

secure facilities. Many jurisdictions 

utilize a risk screening instrument to 

determine whether a juvenile requires a 

secure placement; juveniles who are 

identified as having a high likelihood 

for assaultive behavior and re-offense 

are generally held in secure facilities. 

Accordingly, many non-secure and 

community-confinement-type facilities 

do not require as intensive staffing 

levels to protect residents from 

victimization. 

Comment. Many correctional 

stakeholders suggested that, if a staffing 

ratio is set for juvenile facilities, the 

standards should differentiate between 

long-term juvenile correctional facilities 

and short-term juvenile detention 

facilities. 

Response. The Department recognizes 

that long-term placement facilities have 

different types of staffing needs than 

short-term detention facilities. For 

example, short-term detention facilities 

serve less stable populations, residents 

without comprehensive housing 

classification information, and residents 

awaiting placement in other residential 

facilities—usually for shorter stays but 

sometimes for extended periods of time. 

These populations tend to be more 

unpredictable and more likely to engage 

in disruptive behavior requiring higher 

levels of staffing. On the other hand, 

long-term placement facilities often 

have significantly higher levels of 

programming requiring continuous 

movement throughout various areas of 

the facility. Such increased movement 

requires higher levels of security staffing 

to maintain security. Accordingly, the 

Department has determined that the 

same staff ratios are appropriate for both 

types of facilities, but for different 

reasons. 

Some States currently mandate higher 

levels of staff supervision in their longterm residential facilities, while others 

require higher levels of staff supervision 

for their short-term detention facilities. 

A number of States currently require 

high levels of staff supervision for both 

facility types. Agencies are encouraged 

to exceed the ratios set forth in the 

standard where the unique 

characteristics of the facility and youth 

require more intensive supervision 

levels. 

Comment. One juvenile correctional 

agency commented that stringent 

staffing levels will not ensure the safety 

of youth if staff do not remain vigilant 

and provide active supervision. This 

commenter posited that if a facility has 

high numbers of incidents, it is most 

likely due to facility culture rather than 

staff size. 

Response. The Department recognizes 

that adequate staffing levels alone are 

not sufficient to combat sexual abuse 

and that developing a healthy facility 

culture is a key component in this effort. 

However, adequate staffing is essential 

to providing sufficient supervision to 

protect residents from abuse. In addition 

to the staffing requirements, the final 

rule contains comprehensive standards 

on a broad range of topics related to 

preventing abuse. While a healthy 

facility culture cannot be mandated 

directly, the adoption and 

implementation of the standards will 

assist greatly in developing such a 

culture, by requiring agencies and 

facilities to institutionalize a set of 

policies and practices that, among other 

things, will elevate the importance of 

agency and facility responsibilities to 

protect against sexual abuse. 

Comment. Some juvenile agencies 

suggested that, if adequate staffing 

levels are mandated, there will be a 

need for guidelines for auditors so that 

sporadic deficiencies in staff levels may 

be excused, while long-term patterns of 

non-compliance are dealt with fairly. 

Response. In the final rule, the 

Department adopts a definition of ‘‘full 

compliance’’ that requires ‘‘compliance 

with all material requirements of each 

standard except for de minimis 

violations, or discrete and temporary 

violations during otherwise sustained 

periods of compliance.’’ § 115.5. 

However, when conducting an audit of 

a particular facility, the PREA auditor 

will assess, with regard to each specific 

standard, whether the facility exceeds 

the standard, meets the standard, or 

requires corrective action. The 

Department intends to develop, in 

conjunction with the National Resource 


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Center for the Elimination of Prison 

Rape, auditing tools that will guide 

PREA auditors through these 

assessments. 

Comment. Some juvenile justice 

agencies commented that, in States that 

currently require a minimum staffing 

ratio for juvenile facilities, additional 

PREA staffing ratio requirements will 

result in agencies and facilities being 

audited on the same standards by two 

different auditing teams—one to 

determine compliance with the State 

requirements and one to determine 

compliance with the PREA standards. 

These commenters remarked that such 

double auditing would be an 

unnecessary duplication of effort and 

should not be required by the PREA 

standards. 

Response. The staffing analysis 

conducted by a PREA auditor will be 

just one aspect of the PREA audit, 

which will examine a facility’s 

compliance with all applicable 

standards. While this may result in 

some duplication of efforts, facilities 

may be able to schedule their triennial 

PREA audits so as to combine the PREA 

audit with other accreditation 

proceedings. In addition, while the 

PREA audit will encompass the 

facility’s compliance with all of the 

PREA standards, it will be focused on 

issues related to sexual abuse and thus 

likely will be narrower in scope than 

other audits to which the facility is 

subjected. 

Comment. Many advocacy groups 

recommended that the juvenile standard 

recognize the value of continuous, 

direct supervision in preventing sexual 

misconduct in juvenile facilities. 

Response. The Department supports 

the use of continuous, direct 

supervision and notes that many 

juvenile facilities already employ direct 

supervision as a matter of course. 

However, some physical plants are not 

conducive to direct supervision. In 

those facilities, a mandate for direct 

supervision would require major 

renovations at a high cost. For this 

reason, the final standard does not 

require direct supervision. With regard 

to under-18 inmates held in adult 

facilities, § 115.14 requires such 

facilities to provide direct staff 

supervision if the under-18 inmates 

have contact with adult inmates. 

NPRM Question 8: If a level of staffing 

were mandated, should the standard 

allow agencies a longer time frame, such 

as a specified number of years, in order 

to reach that level? If so, what time 

frame would be appropriate? 

Comment. Correctional stakeholders, 

while remaining opposed to mandated 

staffing levels, supported an extended 

timeframe, if such requirements were 

included, in order to allow for the local 

governments to allocate additional 

staffing funding. Some suggested a twoyear timeframe; others requested up to 

five years; and some suggested that 

extensions should be granted where 

necessary. One agency proposed tying 

the timeframe to the growth rate of the 

State’s annual per capita gross domestic 

product. Although advocacy groups did 

not promote specific ratios for adult 

facilities, they did state that if specific 

staffing levels are required, there should 

be no extension of the timeframe 

because, in one commenter’s words, 

‘‘adequate staffing to prevent risk of 

harm to incarcerated individuals is 

already required by the Constitution and 

reinforced through case law requiring 

protection from harm.’’ 

Response. The Department adopts 

specific staffing ratios only with regard 

to secure juvenile facilities. Many of 

these facilities are already subject to the 

ratios required by the final standard and 

therefore will not need additional time 

to comply. However, in order to provide 

agencies with sufficient time to readjust 

staffing levels and, if necessary, request 

and obtain additional funding, any 

secure juvenile facility that, as of the 

date of publication of the final rule, is 

not already obligated by law, regulation, 

or judicial consent decree to maintain 

the required staffing ratios shall have 

until October 1, 2017, to achieve 

compliance. The Department recognizes 

that increasing staffing often requires 

additional legislative appropriations, as 

well as time needed to recruit and train 

appropriate new staff. 

NPRM Question 9: Should the 

standard require the establishment of 

priority posts, and, if so, how should 

such a requirement be structured and 

assessed? 

NPRM Question 10: To what extent 

can staffing deficiencies be addressed 

by redistributing existing staff 

assignments? Should the standard 

include additional language to 

encourage such redistribution? 

Comment. In general, correctional 

stakeholders and advocacy groups 

agreed that it would be difficult to 

establish priority posts or regulate staff 

redistribution, given the vast differences 

in facility layout and inmate 

composition. Many comments stated 

that establishing priority posts and 

redistributing staff require detailed 

knowledge of the facility’s needs in 

order to best determine how staff should 

be allocated. Other commenters 

suggested that the Department 

encourage but not mandate this practice. 

One State correctional agency 

recommended that the standard omit 

language regarding redistribution to 

avoid conflict with existing collective 

bargaining agreements and State laws 

governing such agreements. 

Some advocates argued that staffing in 

medical units, work release programs, 

and other opportunities for seclusion 

should be considered priority posts. 

One advocacy group recommended that 

the staffing plan identify those posts 

that must be filled in every shift, 

regardless of unexpected absences or 

staff shortages. 

Response. Given the variation in 

facilities and their operational needs, 

the Department concludes that priority 

posts and staff distribution are best left 

to the agency’s discretion. By requiring 

agencies to reassess their staffing plans 

at least once per year, the final standard 

requires agencies to determine whether 

and to what extent priority posts should 

be established, or existing staff 

redistributed, to account for changed 

circumstances and facility needs. 

Comment. The American Jail 

Association commented that few jails 

are sufficiently similar in layout, 

classification systems, and supervision 

methods to allow for any universal 

definition of priority posts. Therefore, 

the AJA and other correctional 

stakeholders requested that the Federal 

government provide a tool for local jails 

to use in determining risk, thereby 

helping jails to identify priority posts. 

Response. The National Resource 

Center for the Elimination of Prison 

Rape will be available to provide 

technical assistance to agencies who 

seek resources and training. The 

Department encourages agencies to 

contact the Center with requests of this 

type. 

Comment. Some correctional agencies 

suggested that staff redistribution 

should be connected to filed and 

substantiated complaints related to 

sexual abuse, but that the ultimate 

decision should be a management 

activity. 

Response. The Department agrees that 

staff redistribution may be an 

appropriate response to a complaint of 

sexual abuse. The agency retains the 

discretion as to how to handle such staff 

redistribution. 

NPRM Question 12: Should the 

Department mandate the use of 

technology to supplement sexual abuse 

prevention, detection, and response 

efforts? 

NPRM Question 13: Should the 

Department craft the standard so that 

compliance is measured by ensuring 

that the facility has developed a plan for 

securing technology as funds become 

available? 


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Comment. Correctional stakeholders 

strongly opposed any mandate for 

increased technology, which they 

emphasized would be cost-prohibitive. 

Some advocates strongly encouraged 

mandates for cameras throughout the 

facilities, which they viewed as the best 

deterrent against abuse, especially by 

staff, and important to substantiating 

incidents of abuse. Other advocates 

cautioned that cameras in certain 

locations can intrude upon inmate 

privacy. Several advocacy groups 

emphasized that technology should 

supplement, not substitute for, adequate 

staff supervision. These advocates 

opposed a technology mandate when 

the funds could better be spent on 

additional or higher-quality staffing, 

believing that cameras are most 

productive as investigatory tools to 

confirm abuse, rather than as a means to 

prevent abuse. Most commenters were 

receptive to a standard encouraging 

increased use of technology to augment 

supervision. 

Response. The final standard requires 

each facility to develop, implement, and 

document a staffing plan that provides 

for adequate levels of staffing, and, 

where applicable, video monitoring, to 

protect inmates against sexual abuse. 

Given the costs associated with video 

monitoring technology, the Department 

concludes that the issue is best left to 

the agency’s discretion. The facility is in 

the best position not only to determine 

the need for such technology but also to 

determine how and where to place 

cameras. 

The Department recognizes that 

technology is best utilized to 

supplement, but not replace, staff 

supervision. Camera surveillance is a 

powerful deterrent and a useful tool in 

post-incident investigations. But it 

cannot substitute for more direct forms 

of staff supervision (in part because 

blind spots are inevitable even in 

facilities with comprehensive video 

monitoring), and cannot replace the 

interactions between inmates or 

residents and staff that may prove 

valuable at identifying or preventing 

abuse. In addition, cameras generally do 

not translate into a reduction of staff 

levels—additional staff may be required 

to properly monitor the new cameras. 

Indeed, many cameras in correctional 

facilities are currently not continuously 

monitored. 

While the Department encourages 

increased use of video monitoring 

technology to supplement sexual abuse 

prevention, detection, and response 

efforts, the agency is in the best position 

to determine if current or future funds 

are best directed at increasing the 

agency’s use of technology. 

Comment. Former members of the 

NPREC recommended that the 

Department reinstate two distinct 

standards for inmate supervision and 

use of monitoring technology. They 

expressed concern that the Department’s 

decision to incorporate inmate 

supervision and monitoring technology 

into a single standard unintentionally 

emphasizes the use of technology to the 

detriment of the level of supervision 

that is essential to protect inmates from 

sexual abuse. They recommended that 

the Department encourage and facilitate, 

but not mandate, the use of technology 

to supplement sexual abuse prevention, 

detection, and response efforts. 

Response. The final standard does not 

mandate the use of video monitoring 

technology but instructs agencies to take 

such technology into consideration, 

where applicable, in evaluating staffing 

needs. The Department did not intend 

for the combined standard to emphasize 

the use of technology over supervision, 

and based upon comments received, 

does not believe that it was received as 

such. The Department believes it is 

appropriate to consider the technology 

available to a facility, but does not 

consider video monitoring a substitute 

for staff supervision. The National 

Resource Center for the Elimination of 

Prison Rape can provide technical 

assistance for agencies seeking input on 

how to introduce or enhance monitoring 

technology in their facilities. 

Comment. One advocacy group 

commented that the proposed standard 

should provide guidance on who should 

monitor cameras, especially in crossgender circumstances. 

Response. Section 115.15 requires 

that all facilities implement policies and 

procedures that enable inmates to 

shower, perform bodily functions, and 

change clothing without nonmedical 

staff of the opposite gender viewing 

their breasts, buttocks, or genitalia, 

except in the case of emergency (now 

reworded as ‘‘exigent circumstances’’) 

or when such viewing is incidental to 

routine cell checks. Such policies and 

procedures shall require staff of the 

opposite gender to announce their 

presence when entering an inmate 

housing unit (for jails and prisons) or an 

area where detainees or residents are 

likely to be showering, performing 

bodily functions, or changing clothing. 

Accordingly, no staff should monitor a 

camera that is likely to view inmates of 

the opposite gender while they are 

showering, performing bodily functions, 

or changing clothing. 

Comment. One advocacy group 

commented that the proposed standard 

should provide guidance on how long 

recordings should be retained. 

Response. The Department 

encourages sufficient retention policies 

to support an appropriate investigations 

system. Because the final standard does 

not mandate the use of video, it is best 

to leave the specifics to agency 

discretion. 

Comment. Some juvenile justice 

agencies suggested that any mandate 

regarding video monitoring technology 

should be tied directly to a facility’s 

compliance with the PREA standards 

and its overall rate of substantiated 

sexual abuse incidents. A plan for 

securing additional technology funding 

should only be necessary, in their view, 

if a facility is found to have a higher 

than average rate of sexual abuse cases. 

Facilities would then draft a corrective 

active plan that may or may not include 

the need for additional technology. 

Mandated technology expenditures 

would occur only after a facility has 

demonstrated a continued failure to 

reduce a higher-than-average rate of 

sexual abuse incidents. 

Response. While the Department 

encourages the use of video monitoring 

technology to deter sexual abuse and aid 

in the investigatory process, the final 

standard does not require any facility to 

install camera systems. However, an 

agency may determine that the addition 

of cameras is an appropriate response to 

incidents of sexual abuse at a particular 

facility or specific areas within a 

facility. The Department encourages all 

agencies to assess the potential value of 

such technology in combating sexual 

abuse. As discussed elsewhere, the 

Department does not believe that the 

overall rate of substantiated sexual 

abuse incidents can serve as a useful 

trigger for the imposition of additional 

requirements, because the rate is itself 

dependent not only upon a facility’s 

success at combating sexual abuse, but 

its diligence in investigating allegations 

and in creating a culture in which 

victims are comfortable reporting 

incidents without fear of retaliation. 

NPRM Question 15: Should this 

standard mandate a minimum 

frequency for the conduct of such 

rounds, and if so, what should it be? 

Comment. Correctional stakeholders 

generally agreed that unannounced 

supervisory rounds should be 

conducted and are standard correctional 

practice. However, they recommended 

that the frequency of such rounds be left 

to agency discretion. One sheriff’s office 

noted that flexibility in meeting the 

requirement would reduce resistance by 

supervisors. Advocacy groups made 

relatively few proposals regarding the 

frequency of such rounds, ranging from 

every 30 minutes, to weekly, to 

monthly, to ‘‘often enough to prevent 


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10While the Department has not identified 

studies that address the relationship between 

negative outcomes and specific staffing ratios, the 

Department has reviewed studies that address the 

relationship between negative outcomes and the 

quantity of staffing more generally. See New 

Amsterdam Consulting, Performance-based 

Standards for Youth Correction and Detention 

Facilities: 2011 Research Report (unpublished 

study; available in rulemaking docket); Aaron 

Kupchik and R. Bradley Snyder, The Impact of 

Juvenile Inmates’ Perceptions and Facility 

Characteristics on Victimization in Juvenile 

Correctional Facilities, 89 The Prison Journal 265 

(2009), available at http://tpj.sagepub.com/content/ 

89/3/265. 

abuse.’’ Some comments noted that 

frequency should vary so as to preserve 

the element of surprise. Other 

comments stated that the requirement 

should apply to all facilities, not just 

those with more than 500 beds. 

Response. The final standard expands 

the requirement for unannounced 

supervisory rounds to all prisons, jails, 

and juvenile facilities. The Department 

recognizes the value in this practice and 

believes it is appropriate for all 

facilities. The Department concludes 

that the precise frequency of such 

rounds is best left to agency discretion. 

The standard requires that facilities 

implement a policy and practice 

requiring ‘‘unannounced rounds to 

identify and deter staff sexual abuse and 

sexual harassment,’’ document the 

rounds, and conduct the rounds on 

night shifts and day shifts. Thus, rounds 

should be conducted on a regular basis 

in a manner intended to discourage staff 

sexual abuse and sexual harassment. 

Comment. Two advocacy groups 

commented that the standard expressly 

should prohibit so-called ‘‘trip calls,’’— 

i.e., actions by staff to tip off their 

colleagues that a supervisor is en route. 

These commenters asserted that 

allowing trip calls would defeat the 

purpose of unannounced rounds. 

Response. The final standard adds a 

requirement that agencies maintain a 

policy prohibiting staff from alerting 

other staff members that these 

supervisory rounds are occurring, 

unless such announcement is related to 

the legitimate operational functions of 

the facility. 

Comment. One law student 

commented that the standards should 

require a minimum frequency of 

unannounced supervisory rounds 

because the proposed standard could be 

satisfied by one unannounced round in 

a decade. 

Response. The final standard requires 

prisons, jails, and juvenile facilities to 

implement a policy and practice of 

having intermediate level or higherlevel supervisors conduct and document 

unannounced rounds. While the final 

standard does not specify a minimum 

frequency, a policy of one round per 

decade would clearly not serve as 

‘‘unannounced rounds to identify and 

deter staff sexual abuse and sexual 

harassment’’ (emphasis added). 

Comment. One sheriff’s office 

commented that any standard should 

contain wording that would exempt 

random supervisory checks in 

emergency and staffing shortage 

situations. 

Response. Because the final standard 

does not mandate a specific time or 

frequency of such rounds, facilities may 

implement a reasonable policy that does 

not require such rounds during an 

emergency or temporary staffing 

shortage. 

Comment. Another sheriff’s office 

commented that establishing a 

reasonable minimum frequency is 

advisable to prevent disagreements 

between facility administrators and 

auditors as to whether the frequency of 

a facility’s rounds is adequate. The 

commenter cautioned, however, that 

great care must be taken to ensure the 

requirement is reasonable, given the 

vast differences in facilities, and 

suggested that the minimum frequency 

should be once per month. 

Response. While the final standard 

does not set a minimum frequency for 

unannounced supervisory rounds, it 

requires facilities to implement a policy 

and practice requiring ‘‘unannounced 

rounds to identify and deter staff sexual 

abuse and sexual harassment.’’ As such, 

the facilities may set the practice with 

regard to frequency of rounds, but 

rounds should be conducted on a 

regular basis in order to have an effect 

on staff sexual abuse and sexual 

harassment. The Department submits 

that once per month is unlikely to be 

frequent enough to have the intended 

effect. 

Solicitation of Additional Comments 

Regarding the Juvenile Staffing Ratios 

Set Forth in § 115.313(c) 

While this final rule is effective on the 

date indicated herein, the Department 

believes that further discussion is 

warranted regarding the aspect of this 

standard that requires secure juvenile 

facilities to maintain minimum staffing 

ratios during resident waking and 

sleeping hours. The standard contained 

in the final rule requires, in pertinent 

part, that ‘‘[e]ach secure juvenile facility 

shall maintain staff ratios of a minimum 

of 1:8 during resident waking hours and 

1:16 during resident sleeping hours, 

except during limited and discrete 

exigent circumstances, which shall be 

fully documented. Only security staff 

shall be included in these ratios.’’ 

§ 115.313(c). Accordingly, the 

Department solicits additional 

comments limited to this issue. 

Commenters are encouraged to 

address (1) Whether the provision, as 

written, is appropriate; (2) whether the 

specific ratios enumerated in the 

provision are the appropriate minimum 

ratios, or whether the ratios should be 

higher or lower; (3) whether the 

provision appropriately allows an 

exception from the minimum ratios 

during ‘‘limited and discrete exigent 

circumstances’’ (as ‘‘exigent 

circumstances’’ is defined in § 115.5), or 

whether that exception should be 

broadened, limited, or otherwise 

revised; (4) whether certain categories of 

secure juvenile facilities should be 

exempt from the minimum ratio 

requirement or, conversely, whether 

certain categories of non-secure juvenile 

facilities should also be included in the 

minimum ratio requirement; (5) the 

extent to which the provision can be 

expected to be effective in combating 

sexual abuse; (6) the expected costs of 

the provision; (7) whether the required 

ratios may have negative unintended 

consequences or additional positive 

unintended benefits; (8) whether 

empirical studies exist on the 

relationship between staffing ratios and 

sexual abuse or other negative outcomes 

in juvenile facilities; 10 (9) whether 

specific objectively determined resident 

populations within a secure facility 

should be exempt from the minimum 

ratios; (10) whether additional 

categories of staff, beyond security staff, 

should be included in the minimum 

ratios; (11) whether the standard should 

exclude from the minimum ratio 

requirement facilities that meet a 

specified threshold of resident 

monitoring through video technology or 

other means, and, if so, what that 

threshold should include; and (12) 

whether the standard appropriately 

provides an effective date of October 1, 

2017, for any facility not already 

obligated to maintain the staffing ratios. 

Youthful Inmates (§§ 115.14, 115.114) 

Sections 115.14 and 115.114 regulate 

the placement of persons under the age 

of 18 in adult prisons, jails, and 

lockups. The final rule refers to under18 persons in such facilities as 

‘‘youthful inmates’’ (in adult prisons 

and jails) and ‘‘youthful detainees’’ (in 

lockups). 

The proposed rule did not contain a 

standard that governed the placement of 

under-18 inmates in adult facilities. 

Rather, the proposed rule noted, and 

solicited input regarding, ANPRM 

commenters’ recommendations that the 

NPREC’s recommended standards be 

supplemented with an additional 


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standard to govern the placement and 

treatment of juveniles in adult facilities. 

Some ANPRM commenters had 

proposed a full ban on placing persons 

under the age of 18 in adult facilities 

where contact would occur with 

incarcerated adults, while others 

proposed instead that the standards 

incorporate the requirements of the 

Juvenile Justice and Delinquency 

Prevention Act (JJDPA), 42 U.S.C. 5601 

et seq. As the NPRM discussed, the 

JJDPA provides formula grants to States 

conditioned on (subject to minimal 

exceptions) deinstitutionalizing 

juveniles who are charged with or who 

have committed an offense that would 

not be criminal if committed by an adult 

(often referred to as ‘‘status offenders’’), 

separating juveniles from adult inmates 

in secure facilities, and removing 

juveniles from adult jails and lockups. 

See 42 U.S.C. 5633(a)(11)–(14). States 

that participate in the JJDPA Formula 

Grants Program are subject to a partial 

loss of funding if they are found not to 

be in compliance with specified 

requirements. 

Generally speaking, the JJDPA applies 

to juveniles who are in the juvenile 

justice system, as opposed to those who 

are under the jurisdiction of adult 

criminal courts. The JJDPA’s separation 

requirement applies only to juveniles 

who are alleged to be or are found to be 

delinquent, juveniles who are charged 

with or who have committed an offense 

that would not be criminal if committed 

by an adult, or juveniles who are not 

charged with any offense at all. See 42 

U.S.C. 5633(a)(11)–(12). The JJDPA 

defines ‘‘adult inmate’’ as ‘‘an 

individual who * * * has reached the 

age of full criminal responsibility under 

applicable State law; and * * * has 

been arrested and is in custody for or 

awaiting trial on a criminal charge, or is 

convicted of a criminal charge offense.’’ 

42 U.S.C. 5603(26). 

Accordingly, the NPRM expressly 

solicited comments on whether the final 

rule should include a standard that 

governs the placement of juveniles in 

adult facilities, and if so, what the 

standard should require, and how it 

should interact with current JJDPA 

requirements and penalties. 

After reviewing the comments in 

response to the questions posed in the 

NPRM, the Department has chosen to 

adopt a new standard that restricts, but 

does not forbid, the placement of 

juveniles in adult facilities. The 

standard applies only to persons under 

the age of 18 who are under adult court 

supervision and incarcerated or 

detained in a prison, jail, or lockup. 

Such persons are, for the purposes of 

this standard, referred to as ‘‘youthful 

inmates’’ (or, in lockups, ‘‘youthful 

detainees’’). 

The standard imposes three 

requirements for juveniles placed in 

adult prisons or jails. First, it mandates 

that no youthful inmate may be placed 

in a housing unit in which he or she 

will have contact with any adult inmate 

through use of a shared day room or 

other common space, shower area, or 

sleeping quarters. Second, it requires 

that, outside of housing units, agencies 

either maintain ‘‘sight and sound 

separation’’ between youthful inmates 

and adult inmates—i.e., prevent adult 

inmates from seeing or communicating 

with youth—or provide direct staff 

supervision when youthful inmates and 

adult inmates are together. Third, it 

requires that agencies make their best 

efforts to avoid placing youthful inmates 

in isolation to comply with this 

provision and that, absent exigent 

circumstances, agencies comply with 

this standard in a manner that affords 

youthful inmates daily large-muscle 

exercise and any legally required special 

education services, and provides access 

to other programs and work 

opportunities to the extent possible. 

In lockups, the standard requires that 

juveniles and youthful detainees be held 

separately from adult detainees. 

Comments and Responses 

Comment. In response to the 

questions posed in the NPRM, 

comments varied widely. 

Many commenters from advocacy 

organizations recommended a complete 

ban on incarcerating persons under the 

age of 18 in adult facilities, citing 

statistics indicating that youth in adult 

facilities face an increased risk of sexual 

abuse. Some advocates expressed 

concern that attempts to protect youth 

in adult facilities by housing them in 

segregated settings often cause or 

exacerbate mental health problems. 

Furthermore, advocates asserted, 

correctional agencies lack sufficient 

expertise in treating the unique needs of 

the underage population. 

Some advocates proposed, as a 

fallback option, that the standard 

require a presumption that all youth be 

housed in juvenile facilities, unless a 

hearing determines that the interests of 

justice require housing in an adult 

facility. 

Former members of the NPREC— 

whose final report did not include a 

recommended standard that would 

govern the placement of youth in adult 

facilities—submitted a comment that 

supported a standard that would require 

individuals below the age of 18 to be 

held in juvenile facilities, with some 

exceptions. Specifically, the former 

members recommended that a person 

under 18 be transferred to an adult 

facility only upon court order following 

a finding that the juvenile was violent 

or disruptive. If such a juvenile is 

transferred, the facility would need to 

comply with the standards governing 

juvenile facilities, separate the juvenile 

by sight and sound from adult inmates, 

ensure that the juvenile receives daily 

visits from health care providers and 

other staff, and visually check the 

juvenile every 15 minutes. 

With regard to the intersection with 

the JJDPA, advocates indicated that the 

PREA standards could and should 

overlap with the conditions applied to 

formula grants under the JJDPA. 

A significant number of correctional 

agency commenters opposed restricting 

the placement of youth in adult 

facilities. Some commenters noted that 

State law governs placement options for 

youth, and recommended that the 

Department not mandate a standard that 

would contravene such State laws. 

Other comments suggested that any 

such standard might improperly intrude 

into judicial functions by infringing on 

judges’ discretion in making placement 

decisions. One comment suggested that 

a national standard governing the 

placement of juveniles in adult facilities 

would be impractical due to variation in 

facility size, layout, and staffing; 

another recommended against a 

standard regarding the placement of 

youth in adult facilities because the 

zero-tolerance mandate of § 115.11 

already provides adequate protections to 

this population. 

Some agency commenters 

recommended intermediate approaches. 

One commenter suggested that the final 

standard should allow youth to be 

placed in adult facilities only where 

there is ‘‘total separation’’ between the 

two populations. Another commenter 

suggested that adult facilities be 

required (1) to develop and implement 

a plan to provide additional protections 

for juvenile inmates, and (2) to report 

separately instances of abuse involving 

juvenile victims. 

A number of agency commenters 

expressed concerns about importing 

JJDPA requirements into the PREA 

standards. Some remarked that this 

would result in ‘‘double-counting’’ and 

would result in undue weight being 

placed on this standard. 

Response. After reviewing the 

comments received on this issue, the 

Department has decided to adopt a 

standard that restricts the placement of 

youth in adult facilities to the extent 

that such placement would bring youth 

into unsupervised contact with adults. 


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11The Department does not rely on Congress’s 

finding in PREA that ‘‘[j]uveniles are 5 times more 

likely to be sexually assaulted in adult rather than 

juvenile facilities,’’ 42 U.S.C. 15601(4), because 

insufficient data exist to support that assessment. 

Congress’s finding appears to derive from a study 

based on interviews with youth adjudicated or tried 

for violent offenses in four cities between 1981 and 

1984. See Martin Frost, et al., Youths in Prisons and 

Training Schools: Perceptions and Consequences of 

the Treatment-Custody Dichotomy, 40 Juv. & Fam. 

Ct. J. 1, 4 (1989). The study noted that 7 of 81 youth 

sentenced to adult facilities, or 8.6%, reported 

experiencing sexual assault, as compared to 2 of 59 

youth sent to juvenile facilities, or 1.7%. Id. at 4, 

10. While suggesting that this discrepancy, and 

discrepancies regarding other types of 

victimization, ‘‘illustrate the increased danger of 

violence for juveniles sentenced to adult prisons,’’ 

the authors noted that ‘‘the victimization results are 

not statistically significant.’’ Id. at 9. 

12See Beck, BJS, Sexual Violence Reported by 

Correctional Authorities, 2005, Table 4 (2006); and 

Beck, BJS, Sexual Violence Reported by 

Correctional Authorities, 2006, Appendix Table 5 

(2007). 

13See Minton, BJS, Jail Inmates at Midyear 

2010—Statistical Tables, Table 7 (2011). 

14See 42 Pa. Cons. Stat. Ann. 6327 (under-18 

Pennsylvania inmates awaiting trial as adults may 

be detained in juvenile facilities until reaching 18); 

Va. S.B. 259, 2010 Gen. Assem., Reg. Sess. (eff. July 

1, 2010) (presumption that under-18 Virginia 

inmates awaiting trial as adults be held in juvenile 

facilities); Colo. Rev. Stat. 19–2–517 (2012) 

(preventing 14- and 15-year-olds from being tried as 

adults except in murder and sexual assault cases; 

requires prosecutors to state reasons and hear from 

defense counsel before exercising discretion to try 

16- and 17-year-olds as adults); Ariz. S.B. 1009, 

49th Leg., 2d Reg. Sess. (2010) (eliminating 

eligibility of some juveniles to be tried as adults by 

requiring a criminal charge brought against the 

juvenile to be based on their age at the time the 

offense was committed and not when the charge 

was filed); Utah H.B. 14, Gen. Sess. (2010) (granting 

justice court judge discretion to transfer a matter at 

any time to juvenile court if it is in the best interest 

of the minor and the juvenile court concurs); Miss. 

S.B. 2969, 2010 Leg., Reg. Sess. (2010) (limiting the 

types of felonies that 17-year- olds can be tried for 

as an adult); Wash. Rev. Code 

13.04.030(1)(e)(v)(E)(III) (2012) (allowing juveniles 

to be transferred back to juvenile court upon 

agreement of the defense and prosecution.); Wash. 

Rev. Code 13.40.020(14) (providing that juveniles 

previously transferred to adult court are not 

automatically treated as adults for future charges if 

found not guilty of original charge); 2009 Nev. Stat. 

239 (raising the age a juvenile may be 

presumptively certified as an adult from 14 to 16); 

Me. Rev. Stat. Ann. tit. 17–A 1259 (2011) (providing 

that juveniles under 16 who receive adult prison 

sentence must serve sentence in juvenile 

correctional facility until their 18th birthday); 2008 

Ind. Acts 1142–1144 (limiting juvenile courts’ 

ability to waive jurisdiction to felonies and 

requiring access for Indiana criminal justice 

institute inspection and monitoring of facilities that 

are or have been used to house or hold juveniles); 

Conn. Gen. Stat. 54–76b–c (2012) (creating 

presumption that 16- and 17-year-olds are eligible 

to be tried as youthful offenders unless they are 

charged with a serious felony or had previously 

been convicted of a felony or adjudicated a serious 

juvenile offender); 75 Del. Laws 269 (2005) (limiting 

Superior Court’s original jurisdiction over robbery 

cases involving juveniles to crimes committed by 

juveniles who had previously been adjudicated 

delinquent for a felony charge and thereafter 

committed a robbery in which a deadly weapon was 

displayed or serious injury inflicted); 705 Ill. Comp. 

Stat. 405/5–130 (2011) (eliminating the requirement 

that 15- to 17-year-olds charged with aggravated 

battery with a firearm and violations of the Illinois 

Controlled Substances Act, while on or near school 

or public housing agency grounds, be tried as 

adults). 15See Letter from Campaign for Youth Justice, et 

al., to Attorney General Holder, 4 (April 4, 2011), 

available at http://www.campaignforyouthjustice.

org/documents/PREA_sign-on_letter.pdf; NCCHC 

Position Statement, Health Services to Adolescents 

in Adult Correctional Facilities, adopted May 17, 

1998, available at http://www.ncchc.org/resources/

statements/adolescents.html. 

The Department recognizes that the 

statistical evidence regarding the 

victimization of youth in adult facilities 

is not as robust as it is for juvenile 

facilities, in large part because of the 

small number of under-18 inmates in 

adult facilities and the additional 

difficulties in obtaining consent to 

survey such inmates.11

The Department’s Bureau of Justice 

Statistics (BJS) previously reported that, 

based on its surveys of facility 

administrators, 20.6 percent of victims 

of substantiated incidents of inmate-oninmate sexual violence in adult jails in 

2005 were under the age of 18, and 13 

percent of such victims in 2006 were 

under 18,12 despite the fact that under18 inmates accounted for less than one 

percent of the total jail population in 

both years.13 These findings derived 

from facility responses to BJS’s Survey 

of Sexual Violence (SSV), which was 

administered to a representative 

sampling of jail facilities in addition to 

all Federal and State prison facilities. 

However, upon further review, BJS has 

determined that these figures are not 

statistically significant due to the small 

number of reported incidents and the 

small number of jails contained in the 

sample. Indeed, in reporting data from 

the 2007 and 2008 SSVs, BJS 

determined that the standard errors 

around the under-18 estimates for adult 

jails were excessively large, and 

consequently did not report the 

estimates separately, but rather reported 

combined figures for inmates under the 

age of 25. BJS has now determined that 

it should have done the same for 2005 

and 2006. 

However, this conclusion does not 

impact the findings of the same BJS 

surveys performed in State prisons, 

which surveyed all State prisons, in 

contrast to the jails surveys, which 

included only a sampling of jails. 

According to SSV reports, from 2005 

through 2008, 1.5 percent of victims of 

substantiated incidents of inmate-oninmate sexual violence in State prisons 

were under 18, even though under-18 

inmates constituted less than 0.2 

percent of the State prison population. 

While the number of such substantiated 

incidents is small—a total of 10—the 

combined data indicate that State prison 

inmates under the age of 18 are more 

than eight times as likely as the average 

State prison inmate to have experienced 

a substantiated incident of sexual abuse. 

Furthermore, the true prevalence of 

sexual abuse is undoubtedly higher than 

the number of substantiated incidents, 

due to the fact that many incidents are 

not reported, and some incidents that 

are reported are not able to be verified 

and thus are not classified as 

‘‘substantiated.’’ Indeed, it is quite 

possible that prison inmates under 18 

are more reluctant than the average 

inmate to report an incident because of 

their age and relative newness to the 

prison system. 

BJS is currently in the middle of its 

third National Inmate Survey collection, 

which is expected to provide better data 

regarding victimization of under-18 

inmates in adult prisons and jails. This 

extensive survey will reach inmates in 

600 prisons and jails and is designed to 

specifically address this issue by 

oversampling for facilities that house 

under-18 inmates, and oversampling 

such inmates within those facilities. BJS 

expects to provide national-level 

estimates in early 2013. 

The Department’s review of State 

procedures indicates that at least 28 

States have laws, regulations, or policies 

that restrict the confinement of youth in 

adult facilities to varying degrees. Some 

jurisdictions house these youth in 

juvenile facilities until they reach a 

threshold age and then transfer them to 

an adult facility. Other jurisdictions 

require physical separation or sight and 

sound separation between these youth 

and adult offenders. Yet other 

jurisdictions maintain dedicated 

programs, facilities, or housing units for 

youth in the adult system. Overall, there 

appears to be a national trend toward 

limiting interaction between adult and 

under-18 inmates. In recent years, a 

number of States have imposed greater 

restrictions on the placement of youth 

in adult facilities or have passed 

legislation to allow youth tried as adults 

to be housed in juvenile facilities.14

Furthermore, several accrediting and 

correctional associations have 

formulated position statements, issued 

standards, or provided comments urging 

either that all persons under 18 be held 

in juvenile facilities only, or that the 

youth be housed separately from adult 

inmates. For example, the National 

Commission on Correctional Healthcare, 

the American Jail Association, the 

National Juvenile Detention 

Association, and the National 

Association of Juvenile Correctional 

Agencies all support separate housing or 

placement for youth.15


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16See West, Prison Inmates at Midyear 2009– 

Statistical Tables, Table 21, BJS (Rev. 2011); 

Minton, Jail Inmates at Midyear 2010–Statistical 

Tables, Table 6, BJS (Rev. 2011). 

17See Lindsay Hayes, Juvenile Suicide in 

Confinement: A National Survey at 10, 28–29 (Feb. 

2004). 

Although many jurisdictions have 

moved away from incarcerating adults 

with juveniles, a significant number of 

youth continue to be integrated into the 

adult inmate population. The 

Department estimates that in 2009, 

approximately 2,778 juveniles were 

incarcerated in State prisons and 7,218 

were held in local jails.16

As a matter of policy, the Department 

supports strong limitations on the 

confinement of adults with juveniles. 

Under the Federal Juvenile Justice and 

Delinquency Prevention Act (a separate 

statute from the JJDPA), 18 U.S.C. 5031 

et seq., ‘‘[n]o juvenile committed, 

whether pursuant to an adjudication of 

delinquency or conviction for an 

offense, to the custody of the Attorney 

General may be placed or retained in an 

adult jail or correctional institution in 

which he has regular contact with 

adults incarcerated because they have 

been convicted of a crime or are 

awaiting trial on criminal charges.’’ 18 

U.S.C. 5039. Accordingly, the Federal 

Bureau of Prisons contracts with 

juvenile facilities to house the few 

juvenile inmates in its custody. The 

United States Marshals Service 

endeavors to place juveniles in juvenile 

facilities; where that is not possible, the 

juvenile is placed in an adult facility, 

separated by sight and sound from adult 

inmates. In addition, the Department 

endorsed the Juvenile Justice and 

Delinquency Prevention 

Reauthorization Act of 2009, which, had 

it been enacted, would have (among 

other changes) extended the JJDPA’s 

sight and sound separation and jail 

removal core requirements to youth 

under adult criminal court jurisdiction 

awaiting trial, unless a court specifically 

finds that it is in the interest of justice 

to incarcerate the youth in an adult 

facility. 

For a variety of reasons, however, the 

Department has decided against 

adopting a standard that would 

generally prohibit the placement of 

youth in adult facilities. Most 

importantly, the Department is 

cognizant that its mandate in 

promulgating these standards extends 

only to preventing, detecting, and 

responding to sexual abuse in 

confinement facilities. While some 

commenters asserted that confining 

youth in adult facilities impedes access 

to age-appropriate programming and 

services and may actually increase 

recidivism, the PREA standards cannot 

include a ban on those bases. Rather, the 

Department must focus on the extent to 

which such a ban would enhance the 

ability to prevent, detect, and respond to 

sexual abuse. To be sure, implicit in 

PREA is the authority to regulate and 

restrict well-intentioned interventions 

aimed at preventing sexual abuse that 

inadvertently lead to other forms of 

harm. Thus, the Department may adopt 

a standard that governs the placement of 

inmates in isolation, and the 

concomitant denial of programming, 

where such placement is used as a 

means of protecting vulnerable inmates 

against sexual abuse. 

In addition, imposing a general ban 

on the placement of youth in adult 

facilities, or banning such placements 

unless a court finds that the youth has 

been violent or disruptive in a juvenile 

facility, would necessarily require a 

fundamental restructuring of existing 

State laws that permit such placement. 

For example, many States would require 

legislation redefining the age of criminal 

responsibility, eliminating or amending 

youthful offender statutes, making 

changes to direct-file and transfer laws, 

or limiting judicial discretion to 

determine where a youth should be 

placed. Given the current state of 

knowledge regarding youth in adult 

facilities, and the availability of more 

narrowly tailored approaches to 

protecting youth, the Department has 

decided not to impose a complete ban 

at this time through the PREA 

standards. As noted above, BJS is 

currently collecting additional data 

regarding this issue, and the Department 

reserves the right to reexamine this 

question if warranted. 

Juveniles in adult facilities can be 

protected from sexual abuse by adult 

inmates by preventing unsupervised 

contact with adult inmates. The 

Department adopts a final standard 

aimed at preventing such unsupervised 

contact without inadvertently causing 

other harm to youth. 

First, the standard bans the placement 

of youth in housing units where they 

interact with adults. Youth are 

vulnerable to abuse not only by 

cellmates, but also by adults in their 

unit who may have contact with them. 

To be sure, if youth have their own 

cells, and if the housing unit lacks a 

common day room or shower area, then 

such dangers are sufficiently mitigated. 

Thus, the standard requires that no 

youthful inmate be placed in a housing 

unit in which he or she will have sight, 

sound, or physical contact with any 

adult inmate through use of a shared 

day room or other common space, 

shower area, or sleeping quarters. 

Second, the standard limits 

interactions between youthful and adult 

inmates in other areas of the facility. 

The most basic way to limit such 

interaction is to ensure sight and sound 

separation. However, some facilities 

may find it infeasible to achieve total 

sight and sound separation without 

resorting to the use of isolation and 

denial of programming, which raise 

significant concerns of their own, as 

discussed below. Thus, the standard 

provides additional flexibility by 

allowing youthful inmates to commingle 

with adult inmates as long as direct staff 

supervision is provided. Such 

supervision must be sufficient to ensure 

that youth are within sight at all times. 

Third, the standard restricts the use of 

isolation of youth as a means of 

compliance with the requirements 

discussed above. While confining youth 

to their cells is the easiest method of 

protecting them from sexual abuse, such 

protection comes at a cost. Isolation is 

known to be dangerous to mental 

health, especially among youth. Among 

other things, isolation puts youth at 

greater risk of committing suicide. A 

recent survey of juvenile suicides in 

confinement found that 110 suicides 

occurred in juvenile facilities between 

1995 and 1999. Analyzing those 

suicides for which information was 

available, the survey determined that 

50.6 percent of the suicides occurred 

when inmates were confined to their 

rooms outside of traditional nonwaking 

hours as a behavioral sanction.17 (To be 

sure, the suicide risk may be higher 

among juveniles who are committed to 

isolation as punishment, rather than 

among juveniles isolated for protection 

from the general population, as is more 

common in adult facilities.) 

Youth appear to be at increased risk 

of suicide in adult facilities, although 

the extent to which isolation is a 

contributing factor is unknown. Based 

on the BJS Deaths in Custody Reporting 

Program, 2000–2007, 36 under-18 

inmates held in local jails died as a 

result of suicide (with the number 

varying from 3 to 7 each year). The 

suicide rate of youth in jails was 63.0 

per 100,000 under-18 inmates, as 

compared to 42.1 per 100,000 inmates 

overall, and 31 per 100,000 inmates 

aged 18–24. (By contrast, in the general 

population, the suicide risk is twice as 

high for persons aged 18–24 than for 

persons under 18.) The suicide rate of 

youth was approximately six times as 

high in jails than among 15- to 19-yearolds in the U.S. resident population 


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18See Margaret E. Noonan, BJS, Deaths in 

Custody: Local Jail Deaths, Table 9 (Oct. 28, 2010); 

Margaret E. Noonan, BJS, Mortality in Local Jails, 

2000–2007, Table 9 (July 2010); BJS, 2002 Survey 

of Inmates in Local Jails (unpublished data); BJS, 

Annual Survey of Jails, 2007 (unpublished data); 

Melonie Heron, Ph.D., National Vital Statistics 

System, Deaths: Leading Causes for 2007, 59 

National Vital Statistics Reports, No. 8, table 1 

(Aug. 26, 2011); BJS, Deaths in Custody Reporting 

Program, 2002–2005, available at http://bjs.ojp.

usdoj.gov/content/dcrp/juvenileindex.cfm; Census 

of Juveniles in Residential Placement, 2001, 2003, 

and 2006, data available at http://www.ojjdp.gov/

ojstatbb/ezacjrp/asp/selection.asp. Although the 

rate among 15- to 19-year-olds in the U.S. resident 

population was 6.9 per 100,000, the estimated rate 

for a comparable gender distribution is higher after 

adjusting for the fact that 92.3% of youth held in 

jails were male. 

with a comparable gender distribution 

(10.4 per 100,000 in 2007).18

Accordingly, the standard requires 

that agencies make their best efforts to 

avoid placing youth in isolation in order 

to comply with this standard. For 

example, rather than relying on the use 

of isolation, agencies should attempt to 

designate dedicated units, wings, or 

tiers for confined youth; enter into interagency, inter-facility, or cooperative 

agreements for the common placement 

of youth; temporarily house youth in a 

juvenile facility; construct partitions or 

other low-cost facility alterations; or 

explore alternatives to detention or 

incarceration for youth in the agency’s 

custody and care. If isolation is 

unavoidable, the final standard requires 

that, absent exigent circumstances, 

agencies provide youth with daily largemuscle exercise and any special 

education services otherwise mandated 

by law. Youth also shall have access to 

other programs and work opportunities 

to the extent possible. The Department 

believes it is not necessary to impose 

the additional requirements suggested 

by former NPREC members. Requiring a 

facility to abide by the standards for 

juvenile facilities in addition to the 

standards for adult prisons and jails 

could lead to confusion and is unlikely 

to have an impact on the safety of the 

youth. Nor is it likely that mandating 

visits by staff or visual checks would 

provide enhanced protection beyond the 

basic sight and sound separation. 

The Department is mindful of agency 

concerns regarding cost, feasibility, and 

preservation of State law prerogatives. 

The final standard affords facilities and 

agencies flexibility in devising an 

approach to protecting youth. 

Compliance may be achieved by (1) 

Confining youth to a separate unit, (2) 

transferring youth to a facility within 

the agency that enables them to be 

confined to a separate unit, (3) entering 

into a cooperative agreement with an 

outside jurisdiction to enable 

compliance, or (4) ceasing to confine 

youth in adult facilities as a matter of 

policy or law. Agencies may, of course, 

combine these approaches as they see 

fit. 

The Department has decided not to 

incorporate into the standards for adult 

prisons and jails the JJDPA requirements 

that apply to juveniles who are not tried 

as adults. As noted above, § 115.14 

applies only to juveniles under the 

jurisdiction of adult courts, whereas the 

JJDPA’s separation requirement applies 

only to juveniles who are alleged to be 

or are found to be delinquent, juveniles 

who are charged with or who have 

committed an offense that would not be 

criminal if committed by an adult, or 

juveniles who are not charged with any 

offense at all. See 42 U.S.C 5633(a)(11)– 

(12). 

The high degree of compliance with 

the JJDPA indicates that the incentives 

and penalties under the Act are 

operating successfully to ensure that 

juveniles who are tried as juveniles are 

not intermingled with adults except 

under the narrow circumstances the 

JJDPA allows. As discussed above, the 

purposes of the two statutes are 

different: The JJDPA aims to protect 

youth and discourage delinquency, 

whereas PREA is more narrowly limited 

to preventing sexual abuse. Thus, only 

a portion of the requirements that States 

must fulfill in order to receive JJDPA 

grants is relevant to protecting youth 

from sexual abuse. The Department 

concludes that to import such 

requirements in a piecemeal manner 

could risk confusion and would not 

materially increase the protection of 

youth in the juvenile justice system. 

Limits to Cross-Gender Viewing and 

Searches (§§ 115.15, 115.115, 115.215, 

115.315) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.14, 

115.114, 115.214, and 115.314) 

prohibited cross-gender pat-down 

searches in juvenile facilities, but did 

not impose a general ban in other 

facilities. The proposed standard did, 

however, require agencies to exempt 

from non-emergency pat-down searches 

those inmates who have suffered prior 

cross-gender sexual abuse while 

incarcerated. That provision attempted 

to address the possibility that an inmate 

who has experienced prior sexual abuse 

would experience a cross-gender patdown search as particularly 

traumatizing, even if the search was 

conducted properly. 

The proposed standard also 

prohibited cross-gender strip searches 

absent an emergency situation or when 

conducted by a medical practitioner, 

and required documentation for crossgender strip searches. 

Recognizing that transgender inmates 

may be traumatized by genital 

examinations, the proposed standard 

prohibited examining a transgender 

inmate to determine genital status, 

unless genital status is unknown, in 

which case such an examination would 

be conducted in private by a medical 

practitioner. The proposed standard also 

required facilities to minimize oppositegender viewing of inmates as they 

shower, perform bodily functions, or 

change clothes. The standard provided 

an exception for such viewing where 

incidental to routine cell checks. 

The proposed standard also required 

agencies to train security staff in 

properly conducting cross-gender patdown searches, and searches of 

transgender inmates, in a professional 

and respectful manner, and in the least 

intrusive manner possible, consistent 

with security needs. 

Changes in Final Rule 

The most significant change in this 

standard is the inclusion of a ban on 

cross-gender pat-down searches of 

female inmates in adult prisons and jails 

and in community confinement 

facilities, absent exigent circumstances. 

To facilitate compliance, most facilities 

will have three years to comply. 

Recognizing that this requirement may 

be more difficult for smaller facilities to 

implement, facilities with a rated 

capacity of less than 50 inmates are 

provided five years in which to 

implement the ban. The final standard 

also clarified that women’s access to 

programming or out-of-cell 

opportunities should not be restricted to 

comply with this provision. In addition, 

the final standard requires facilities to 

document all cross-gender searches of 

female inmates. 

The final standard retains the general 

rule against cross-gender strip searches 

and body cavity searches and clarifies 

that ‘‘body cavity searches’’ means 

searches of the anal or genital opening. 

The exception for medical practitioners 

has been retained; the emergency 

exception has been replaced with an 

exception for ‘‘exigent circumstances’’ 

to be consistent with similar changes 

from ‘‘emergency’’ to ‘‘exigent’’ 

throughout the final standards. 

The final standard imposes a 

complete ban on searching or physically 

examining a transgender or intersex 

inmate for the sole purpose of 

determining the inmate’s genital status. 

Rather, if the inmate’s genital status is 

unknown, it may be determined during 

conversations with the inmate, by 


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19BJS, unpublished data, 2004 Survey of Inmates 

in State and Federal Correctional Facilities and 

2002 Survey of Inmates in Local Jails. 

20See Catherine C. Classen, Oxana Gronskaya 

Palesh, & Rashi Aggarwal, Sexual Revictimization: 

A Review of the Empirical Literature, 6 Trauma, 

Violence, & Abuse 103, 117 (2005) (‘‘There is 

Continued 

reviewing medical records, or, if 

necessary, by learning that information 

as part of a broader medical 

examination conducted in private by a 

medical practitioner. The final standard 

also retains the requirement for agencies 

to train security staff in conducting 

professional and respectful cross-gender 

pat-down searches and searches of 

transgender inmates, in the least 

intrusive manner possible, consistent 

with security needs. The final standard 

extends these protections to intersex 

inmates as well. 

The final standard retains the 

requirement that each facility 

implement policies and procedures that 

enable inmates to shower, perform 

bodily functions, and change clothing 

without nonmedical staff of the opposite 

gender viewing their breasts, buttocks, 

or genitalia, except in the case of 

emergency (now reworded as ‘‘exigent 

circumstances’’), or when such viewing 

is incidental to routine cell checks. The 

final standard removes ‘‘by accident’’ 

from the list of exceptions, and adds a 

requirement that staff of the opposite 

gender announce their presence when 

entering an inmate housing unit. 

The final standard retains the ban on 

cross-gender pat-down searches for all 

residents in juvenile facilities, and 

narrows the exceptions to the ban to 

include only exigent circumstances. 

Comments and Responses 

Comments on cross-gender pat-down 

searches. The issue of cross-gender patdown searches generated a substantial 

number of comments. In general, 

advocates strongly supported a ban on 

all cross-gender pat-down searches, as 

did two members of Congress. Some 

correctional commenters also noted that 

same-gender pat-down searches are 

accepted practice, but emphasized the 

need for an exception that would permit 

cross-gender pat-down searches in 

exigent circumstances. Advocates 

suggested that a ban on cross-gender 

pat-down searches could be 

accomplished with minimal expense by 

limiting pat-down searches to areas with 

a high contraband risk, or assigning a 

roving officer to various posts. Most 

current and former inmates also 

supported a ban on all cross-gender patdown searches. Other commenters 

stated that cross-gender searches 

contribute to a sexualized environment. 

Two commenters went further by 

proposing limits to cross-gender 

supervision, not just cross-gender 

searches. 

A number of advocates strongly 

recommended that, at a minimum, the 

final standard prohibit cross-gender patdown searches of women. Citing a 1999 

study conducted by the National 

Institute of Corrections, advocates 

suggested that numerous States 

currently ban cross-gender pat-down 

searches of female inmates. A handful of 

commenters recommended that such a 

ban be phased in over a period of two 

or three years to ease the transition. 

In general, agency commenters 

supported the proposed standard as 

written regarding cross-gender searches. 

Several State correctional agencies 

remarked that prohibiting cross-gender 

pat-down searches of female inmates 

was feasible, but that it would be 

difficult to extend a cross-gender ban to 

male inmates. Other agency commenters 

stated that the training requirement 

would address any problems with crossgender searches. 

Commenters noted that gender-based 

requirements could implicate laws that 

bar discrimination in employment on 

the basis of sex. Of these commenters, 

most expressed concern regarding the 

possibility of a standard that prohibited 

both male-on-female pat-down searches 

and female-on-male cross-gender patdown searches. A smaller number of 

commenters expressed similar concerns 

with regard to the possibility of a 

standard that prohibited only male-onfemale searches. A larger number, 

however, expressed confidence that a 

ban on cross-gender pat-down searches 

of female inmates could be 

implemented in a manner that would 

not violate employment laws. Several 

correctional agency commenters 

observed that requiring same-gender 

pat-down searches of female inmates, 

except in exigent circumstances, is 

already an accepted practice in adult 

prisons and jails. 

Multiple agency commenters 

expressed concern that a complete 

prohibition on cross-gender pat-down 

searches could violate collective 

bargaining agreements, which affect 

staff assignments, if the prohibition 

prevented staff of a particular gender 

from retaining a particular assignment. 

Both advocacy and agency 

commenters strongly criticized the 

exemption from cross-gender pat-down 

searches for inmates who have suffered 

documented prior cross-gender sexual 

abuse while incarcerated. Commenters 

expressed concern that inmates who 

avail themselves of the exemption 

would be labeled and ostracized, and 

would possibly be putting themselves at 

greater risk for further abuse. 

Commenters expressed doubt that 

inmates would be willing to reveal their 

sexual abuse history in such a manner, 

which would likely become known to a 

significant number of staff and inmates 

if only victims of prior abuse were 

exempted from cross-gender pat-down 

searches. A number of former inmates 

also expressed skepticism that requests 

for exemptions would actually be 

honored. 

Response. The Department is 

persuaded that adopting a standard that 

generally prohibits cross-gender patdown searches of female inmates in 

prisons and jails will further PREA’s 

mandate of preventing sexual abuse 

without compromising security in 

corrections settings, infringing 

impermissibly on the employment 

rights of officers, or adversely affecting 

male inmates. The final standard 

prohibits cross-gender pat-down 

searches of female inmates and 

residents in adult prisons, jails, and 

community confinement facilities, 

absent exigent circumstances, but does 

not prohibit such searches of male 

inmates. With regard to juvenile 

facilities, the final standard retains the 

proposed standard’s prohibition on all 

cross-gender pat-down searches of 

either male or female residents, absent 

exigent circumstances. 

Pat-down searches are a daily 

occurrence in corrections settings and, 

when performed correctly, require staff 

to have intimate bodily contact with 

inmates. Although most pat-down 

searches are conducted legitimately by 

conscientious staff, it can be difficult to 

distinguish between a pat-down search 

conducted for legitimate security 

purposes and one conducted for the 

illicit gratification of the staff person, 

which would constitute sexual abuse. 

Female inmates are especially 

vulnerable owing to their 

disproportionate likelihood of having 

previously suffered abuse. A BJS survey 

conducted in 2004 found that 42 

percent of female State prisoners and 28 

percent of female Federal prisoners 

reported that they had been sexually 

abused before their current sentence, as 

compared to 6 percent of male State 

prisoners and 2 percent of male Federal 

prisoners. A BJS survey of jail inmates, 

conducted in 2002, found that 36 

percent of female inmates reported 

sexual abuse prior to incarceration, 

compared to 4 percent of male 

inmates.19 According to studies, women 

with histories of sexual abuse— 

including women in prisons and jails— 

are particularly traumatized by 

subsequent abuse.20 In addition, even a 


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considerable evidence that sexual revictimization is 

associated with more distress compared to one 

incident of sexual victimization. * * * The general 

finding appears to be that women who are 

revictimized suffer more PTSD symptoms’’); 

Barbara Bloom, Barbara Owen, and Stephanie 

Covington, Gender-Responsive Strategies: Research, 

Practice, and Guiding Principles for Women 

Offenders, at 37, NIC (2003) (‘‘In addition, standard 

policies and procedures in correctional settings 

(e.g., searches, restraints, and isolation) can have 

profound effects on women with histories of trauma 

and abuse, and often act as triggers to retraumatize 

women who have post-traumatic stress disorder 

(PTSD).’’); Danielle Dirks, Sexual Revictimization 

and Retraumatization of Women in Prison, 32 

Women’s Stud. Q. 102, 102 (2004) (‘‘For women 

with previous histories of abuse, prison life is apt 

to simulate the abuse dynamics already established 

in these women’s lives, thus perpetuating women’s 

further revictimization and retraumatization while 

serving time.’’). In 2009, the Department’s Office of 

the Inspector General, in a report on BOP’s efforts 

at combating sexual abuse by staff, noted that 

‘‘because female prisoners in particular often have 

histories of being sexually abused, they are even 

more traumatized by further abuse inflicted by 

correctional staff while in custody.’’ OIG, United 

States Department of Justice, The Department of 

Justice’s Efforts to Prevent Staff Sexual Abuse of 

Federal Inmates at 1 (2009). 

21See BJS, Sexual Victimization in Prisons and 

Jails Reported by Inmates, National Inmate Survey, 

2008–09, at 24. Corresponding figures in jails were 

62.6% and 27.6%, respectively. Numbers do not 

sum to 100% because some inmates reported being 

victimized by both male and female staff. 

22See OIG, United States Department of Justice, 

The Department of Justice’s Efforts to Prevent Staff 

Sexual Abuse of Federal Inmates at 26–28 (2009). 

Three hundred and twenty-five allegations of 

criminal sexual abuse were made by female inmates 

against male staff, as compared to 382 allegations 

by male inmates against female staff. 

23See id. at 26. 

24See BJS, Annual Survey of Jails (2010) (12% of 

jail inmates are female); BJS, Prisoners in 2009 (7% 

of prison inmates are female). 

25The BFOQ language is found in the section of 

Title VII that pertains to private employers and 

State and local government employers. The section 

of Title VII that applies to executive branch 

agencies such as BOP does not expressly set forth 

a BFOQ defense. See 42 U.S.C. 2000e-16(a). While 

the Department is not aware of any case law on the 

issue, the Equal Employment Opportunities 

Commission has applied the Title VII BFOQ 

defense in petitions against Federal employers. See, 

e.g., Gray v. Nicholson, EEOC DOC 0720050093 

(Feb. 9, 2007). Accordingly, the Department 

believes that the defense would be available to BOP 

and other Federal employers on the same terms as 

other employers. 

professionally conducted cross-gender 

pat-down search may be traumatic and 

perceived as abusive by inmates who 

have experienced past sexual abuse. See 

Jordan v. Gardner, 986 F.2d 1521, 1526 

(9th Cir. 1993) (en banc) (striking down 

cross-gender pat-downs of female 

inmates as unconstitutional ‘‘infliction 

of pain’’ where there was evidence that 

a high percentage of the female inmate 

population had a history of traumatic 

sexual abuse by men and were being retraumatized by the cross-gender patdown searches). Thus, even a 

professionally conducted male-onfemale pat-down search increases the 

risk of harm to female inmates, who 

have a high prevalence of past prior 

abuse. See id. at 1525 (affirming district 

court holding that there ‘‘is a high 

probability of great harm, including 

severe psychological injury and 

emotional pain and suffering, to some 

inmates, from these searches, even if it 

was properly conducted’’). 

Most staff sexual abuse of female 

inmates is committed by male staff. The 

BJS National Inmate Survey found that 

71.8 percent of female prisoners who 

were victims of sexual abuse by staff 

reported that the staff perpetrator was 

male in every instance, compared to 9.3 

percent who reported that the staff 

perpetrators were exclusively female.21

Furthermore, 36.7 percent of female 

inmates who reported sexual touching 

indicated that they experienced sexual 

touching during a pat-down search. 

An analysis of allegations reported by 

BOP inmates to BOP’s Office of Internal 

Affairs, conducted by the Department’s 

Office of the Inspector General (OIG), 

provides further indication of 

vulnerability of female inmates to 

sexual abuse at the hands of male staff. 

OIG found that, from fiscal year 2001 

through 2008, 45.6 percent of all 

allegations of criminal cross-gender 

sexual abuse committed by BOP staff 

were lodged by female prisoners, even 

though women made up less than 7 

percent of the BOP population.22 BOP 

did not prohibit cross-gender pat-down 

searches of female inmates during this 

time period, and OIG reported that 

‘‘BOP officials believed that male staff 

members were most often accused of 

sexual misconduct stemming from pat 

searches.’’ 23

A thorough pat-down search requires 

staff to engage in intimate touching of 

the inmate’s clothed body, including the 

breasts, buttocks, and genital regions. 

Given that female inmates are 

significantly more likely to be sexually 

abused by male officers than by female 

officers, the Department determined that 

it would be prudent, as a prophylactic 

measure to decrease the risk of sexual 

abuse, to prohibit the necessarily 

intimate touching that occurs during 

routine cross-gender pat-down searches 

and that may inadvertently contribute to 

the development of a sexualized 

environment within a facility. A ban on 

cross-gender pat-down searches of 

female inmates, absent exigent 

circumstances, is consistent with 

effective corrections policy, as 

evidenced by the fact that a significant 

number of State and local corrections 

systems already abide by such a 

restriction, as discussed below. 

Currently, as a matter of law or policy, 

most State prison systems do not 

conduct cross-gender pat-down searches 

of female inmates, absent exigent 

circumstances. At the request of the 

Department’s PREA Working Group, the 

National Institute of Corrections (NIC) 

conducted a survey of State corrections 

systems and found that at least 27 States 

ban the practice, and that it is common 

practice in several other States for male 

officers to perform pat-down searches of 

female prisoners only under exigent 

circumstances. While comparable data 

from jails are unavailable, 

representatives of twelve large jail 

agencies who attended a PREA listening 

session convened by the Department all 

stated that they do not permit crossgender pat-down searches of females. 

The Department is not aware of any 

cases successfully challenging the 

practice of banning only cross-gender 

pat-down searches of female prisoners, 

despite the widespread prevalence of 

these restrictions. 

The Department believes that laws 

that prohibit employment 

discrimination on the basis of sex pose 

no obstacle to the implementation of 

this standard. Rather, the prohibition of 

cross-gender pat-down searches of 

female inmates can (and must) be 

implemented in a manner consistent 

with Federal laws prohibiting sex 

discrimination in employment, to 

ensure that implementation has only a 

de minimis impact on employment 

opportunities, or, if the impact is more 

than de minimis, that any sex-based 

limitations on employment 

opportunities satisfy the bona fide 

occupational qualification requirement 

of Federal employment law. 

Notably, female inmates make up a 

very small proportion of the total 

number of incarcerated individuals.24

The small proportion of female inmates 

provides further support for agencies’ 

ability to implement a ban on crossgender pat-down searches of female 

inmates without negatively impacting 

employment opportunities. 

Title VII of the Civil Rights Act of 

1964 states that ‘‘it shall not be an 

unlawful employment practice for an 

employer to hire and employ employees 

* * * on the basis of * * * sex * * * 

where * * * sex * * * is a bona fide 

occupational qualification [‘‘BFOQ’’] 

reasonably necessary to the normal 

operation of that particular business or 

enterprise.’’ 42 U.S.C. 2000e–2(e)(1).25

However, employment decisions that 

have only a de minimis effect on the 

employment opportunities of 


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correctional employees do not trigger or 

require a BFOQ analysis. 

To establish a BFOQ defense, a 

facility must show that a gender-based 

job qualification is related to the essence 

or central function of the facility, and 

that the qualification is reasonably 

necessary to the normal operations of 

the facility. See Dothard v. Rawlinson, 

433 U.S. 321, 332–37 (1977) (holding 

that exclusion of females in contact 

positions in Alabama’s violent male 

maximum security prisons may satisfy 

BFOQ requirement). However, the 

requirement that only female staff 

perform pat-down searches on female 

inmates is unlikely to require a BFOQ 

for single-sex employment positions in 

a facility because, as shown by 

nationwide experience, facilities will 

almost always be able to implement the 

requirement in a minimally intrusive 

way that has only a de minimis effect on 

employment opportunities. See Tharp v. 

Iowa Dep’t of Corr., 68 F.3d 223, 226 

(8th Cir. 1995) (en banc) (holding that a 

prison employer’s reasonable genderbased job assignment policy, 

particularly a policy that is favorable to 

the protected class of women 

employees, will be upheld if it imposes 

only a minimal restriction on other 

employees, and therefore a BFOQ 

analysis was unnecessary). 

Sex-based assignment policies in 

correctional facilities often impose only 

a de minimis restriction on the 

employment opportunities of male 

officers when facilities preclude male 

employees from working only a small 

percentage of certain shifts or job posts 

at particular facilities but make 

numerous comparable shifts or posts 

available to males. See Robino v. Iranon, 

145 F.3d 1109, 1110–11 (9th Cir. 1998) 

(restricting six out of 41 guard positions 

to women had a de minimis effect). 

When only minor adjustments of staff 

schedules and job responsibilities are at 

issue, the effect on employment rights is 

de minimis. See Jordan, 986 F.2d at 

1539 (Reinhardt, J. concurring); Tipler v. 

Douglas Cnty., 482 F.3d 1023, 1025–27 

(8th Cir. 2007) (temporary 

reassignments with no effect on 

promotional opportunities had a de 

minimis effect); Tharp, 68 F.3d at 225– 

27 (policy requiring female residential 

advisors to staff a women’s unit in a 

mixed-gender minimum security had a 

de minimis effect because the prison’s 

male employees did not suffer 

termination, demotion, or a reduction in 

pay). Agencies may implement a ban on 

cross-gender pat-down searches of 

female inmates in the manner most 

appropriate for each facility. 

Facilities and agencies should strive 

to implement this provision in a manner 

that has a de minimis effect so that a 

BFOQ inquiry is not required. If a 

facility or agency implements the crossgender pat-down ban in a way that 

creates materially adverse changes in 

the terms and conditions of employment 

by precluding staff of either sex from 

certain positions entirely, thereby 

affecting their promotions, additional 

pay, seniority, or future eligibility for 

senior positions, then the facility would 

be required to conduct a BFOQ inquiry. 

As noted above, such an inquiry must 

demonstrate that the manner of 

implementation is both related to the 

central function of the facility and 

reasonably necessary for the successful 

operation of the facility. See Dothard, 

433 U.S. at 335–37. There are numerous 

ways in which facilities can eliminate 

cross-gender pat-down searches of 

female inmates, in conformance with 

employment laws. For example, 

agencies can assign or rotate female staff 

to certain key posts within the facility, 

so long as female staff are not limited in 

their opportunities for advancement as 

compared to similarly situated male 

staff; provide for female float staff who 

can conduct searches as necessary; 

allow staff to transfer between agency 

facilities to achieve better gender 

balance; or implement institutional 

schedules that maximize availability of 

female staff for pat-down searches of 

female inmates. 

It is important to note that the 

standard prohibiting cross-gender patdown searches does not, in and of itself, 

create or establish a BFOQ defense to 

claims of sex discrimination in 

employment. If a correctional facility 

cannot implement this standard in a 

manner that imposes only a de minimis 

impact on employment opportunities 

for either sex, it must undertake an 

individualized assessment of its 

particular policies and practices and the 

particular circumstances and history of 

its inmates to determine whether 

altering or reserving job duties or 

opportunities to one sex would justify a 

BFOQ defense with respect to each 

particular employment position or 

opportunity potentially affected by the 

agency’s implementation of the 

standards. 

Female-preference sex-based 

employment assignments in correctional 

facilities can meet the BFOQ standard if 

such assignments are reasonably 

necessary to the normal operation of the 

particular facilities at which they are 

used. This is a high standard. For 

example, one agency used its history of 

rampant sexual abuse of female 

prisoners to justify a BFOQ and 

designate 250 corrections officer and 

residential unit officer positions in the 

housing units of State female prisons as 

‘‘female only.’’ The facially 

discriminatory plan, which affected a 

significant number of male officers, was 

permissible because sex was a BFOQ for 

these particular facilities based on the 

facilities’ histories. See Everson v. 

Michigan Dep’t of Corr., 391 F.3d 737, 

747–61 (6th Cir. 2004). Additionally, 

based on the totality of the 

circumstances at a specific facility, sex 

may be a BFOQ for all positions in the 

living units of a women’s maximum 

security prison where the practice of 

employing only female guards in these 

positions is reasonably necessary to the 

goal of female prisoner rehabilitation. 

See Torres v. Wisconsin Dep’t of Health 

& Human Servs., 859 F.2d 1523, 1530– 

32 (7th Cir. 1988) (en banc). 

However, female-preference sex-based 

staffing polices do not meet the high 

standard necessary to establish a BFOQ 

defense without a high correlation 

between sex and ability to perform a 

particular position. See Breiner v. 

Nevada Dep’t of Corr., 610 F.3d 1201, 

1213 (9th Cir. 2010). For example, being 

female was not a BFOQ for all three 

lieutenant positions at a women’s 

correctional facility because the facility 

did not demonstrate that precluding 

men from serving in supervisory 

positions in women’s prisons was 

necessary to meet its goal of reducing 

instances of sexual abuse of female 

inmates by male correctional officers. 

See id. at 1210–16. A policy banning 

male officers from all posts in female 

housing units also did not meet the 

requirements necessary to establish a 

BFOQ defense when it was predicated 

on a few unspecified past incidents of 

sexual misconduct and generalized 

arguments that the mere presence of 

males caused distress to past victims of 

sexual abuse. See Westchester Cnty. 

Corr. v. Cnty. of Westchester, 346 F. 

Supp. 2d 527, 533–36 (S.D.N.Y. 2004). 

In addition, the final standard allows 

all facilities with more than 50 beds 

three years from the effective date of the 

PREA standards for implementation, 

and five years for facilities smaller than 

50 beds. This extended time frame 

provides facilities of all sizes and 

security levels with ample opportunity 

to develop and implement a practice 

that will protect female prisoners 

without undue burden on the operations 

of the facility. Furthermore, to the 

extent that agencies want to increase 

their percentage of female staff to 

facilitate compliance with the 

standards, agencies can take advantage 

of natural attrition to recruit and hire 

additional female staff without 

terminating male staff. Most agencies 

will be able to implement the ban in a 


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26See James J. Stephan, BJS, Census of State and 

Federal Correctional Facilities, 2005, Appendix 

Table 12 (Oct. 2008); James J. Stephan, BJS, Census 

of Jails, 1999, at 9, 26 (Aug. 2001). 

27See Allen J. Beck and Paige M. Harrison, BJS, 

Sexual Victimization in Prisons and Jails Reported 

by Inmates, 2008–09, at 12, 24. 

28See id. at 24. 

manner that has only a de minimis 

effect on employment opportunities and 

assignments for male employees. And 

given the lengthy time period allowed to 

come into compliance, and the level of 

discretion retained by agencies, the 

Department believes that the standard 

can be implemented in accordance with 

collective bargaining agreements. 

The Department has chosen not to 

include in the final standard a similar 

prohibition on female staff conducting 

pat-down searches of male inmates. The 

Department concludes that the benefit 

of prohibiting cross-gender pat-down 

searches of male inmates is significantly 

less than the benefit of prohibiting 

cross-gender pat-down searches of 

female inmates, whereas the costs of the 

former are significantly higher than the 

costs of the latter. A ban on cross-gender 

pat-down searches only of female 

prisoners does not violate the Equal 

Protection Clause of the Fourteenth 

Amendment because male and female 

prisoners are not similarly situated with 

respect to bodily searches. Male inmates 

are far less likely than female inmates to 

have a history of traumatic sexual abuse 

and are less likely to experience the 

retraumatization that may affect female 

inmates due to a cross-gender pat-down 

search. See Laing v. Guisto, 92 Fed. 

Appx. 422, 423 (9th Cir. 2004); Timm v. 

Gunter, 917 F.2d 1093, 1102–03 (8th 

Cir. 1990); Jordan, 986 at 1525–27; 

Tipler, 482 F.3d at 1027–28; Colman v. 

Vasquez, 142 F. Supp. 2d 226, 232 (D. 

Conn. 2001). 

With regard to cost, the Department 

reaffirms its assessment, as stated in the 

proposed rule, that a ban on crossgender pat-down searches of male 

inmates would impose significant 

financial costs and could limit 

employment opportunities for women. 

The correctional population remains 

overwhelmingly male: 88 percent of jail 

inmates and 93 percent of prison 

inmates are men. Correctional staff, by 

contrast, are considerably more 

balanced by sex: according to BJS data, 

25 percent of Federal and State 

correctional officers were female as of 

2005, and 28 percent of correctional 

officers in local jails were female as of 

1999.26 Female participation in the 

correctional workforce has been 

increasing over the past two decades, 

and it is likely that the disparity 

between the percentage of female 

correctional staff and the percentage of 

female inmates will continue to grow. In 

addition, there is significant variation 

across States: The percentage of female 

correctional officers in State prisons 

ranges from 9 percent in Rhode Island 

to 63 percent in Mississippi. 

Jurisdiction-level data are not available 

for local jails, but statewide data 

indicate that the comparable aggregate 

percentages range from 8 percent in 

Massachusetts to 43 percent in 

Nebraska. In the growing number of 

correctional agencies where the 

percentage of female correctional staff is 

substantial, but the female inmate 

population is (as in most places) quite 

small, it could be difficult to implement 

a ban on female staff patting down male 

inmates without a significant adverse 

impact on employment opportunities 

for women, who would be unable to 

occupy correctional positions that 

involve patting down male inmates, and 

whose prospects for advancement could 

suffer as a result. See Madyun v. 

Franzen, 704 F.2d 954, 962 (7th Cir. 

1983) (gender-based distinctions 

allowing women to serve as guards in 

male prisons and perform tasks that are 

not open to men in female prisons 

serves the important governmental 

objective of equal job opportunity for 

women in fields traditionally closed to 

them). In addition, in facilities with a 

high percentage of female staff, there 

could be an insufficient number of male 

staff to perform pat-down searches on 

male inmates, given the overwhelmingly 

male nature of the inmate population. 

To be sure, in adopting a one-way 

ban, the Department does not suggest 

that male inmates are less likely to have 

experienced cross-gender sexual abuse 

while incarcerated than female inmates. 

In the most recent BJS survey, male 

inmates were somewhat more likely to 

report having experienced staff sexual 

misconduct than female inmates (in 

prisons, 2.9 percent vs. 2.1 percent; in 

jails, 2.1 percent vs. 1.5 percent), and 

were about as likely as female inmates 

to report that the perpetrator was always 

of the opposite sex (in prisons, 68.8 

percent vs. 71.8 percent; in jails, 64.3 

percent vs. 62.6 percent).27 The 

Department also acknowledges that the 

same survey indicated that male 

inmates were nearly as likely as female 

inmates to report sexual touching in a 

pat-down search: 36.3 percent of male 

inmates who reported sexual touching 

indicated that it had occurred at least 

once during a pat-down search, 

compared to 36.7 percent of the 

corresponding set of female inmates.28

However, when evaluating the 

prevalence of cross-gender sexual abuse 

of female inmates, this statistic could be 

misleading in light of the fact that, as 

noted above, many facilities 

nationwide—which may well 

collectively house a majority of all 

inmates—already prohibit cross-gender 

pat-down searches of female inmates 

absent exigent circumstances. Therefore, 

a large percentage of female inmates are 

currently not subject to cross-gender 

pat-down searches as a matter of course. 

This discrepancy may well explain why 

male and female inmates are roughly 

equally likely to report sexual touching 

in a pat-down search. 

The experience of BOP, which has not 

prohibited cross-gender pat-down 

searches, is illustrative. As noted above, 

female inmates lodged 45.6 percent of 

all allegations of criminal cross-gender 

sexual abuse committed by BOP staff, 

even though less than 7 percent of the 

BOP population was female. Unlike a 

majority of State correctional agencies, 

BOP allowed male correctional staff to 

perform pat-down searches of female 

inmates, which may explain why BOP 

experienced a gender imbalance in 

allegations that was not shared 

nationwide. Indeed (as also noted 

above), according to the OIG report, 

BOP officials believed that pat-down 

searches were the most common source 

of allegations of sexual misconduct 

against male staff members. 

The final rule does not include a 

similar restriction on cross-gender patdown searches of female detainees in 

lockups due to the smaller size, limited 

staffing numbers, lack of data on 

incidence of sexual abuse in these 

institutions, and minimal number of 

comments directed at lockups. In 

addition, a pat-down search of a lockup 

detainee is often conducted by the same 

police officer who performed a similar 

search of the detainee upon arrest in the 

field. Therefore, it would be impractical 

to impose different search rules once the 

officer and detainee reach the lockup 

doors. While recognizing that a blanket 

restriction would be unworkable, the 

Department encourages lockups to avoid 

cross-gender pat-down searches of 

female detainees, to the extent feasible. 

Finally, the Department has removed 

the provision that mandated a specific 

exemption from cross-gender pat-down 

searches for inmates who have suffered 

documented prior cross-gender sexual 

abuse while incarcerated. The 

prohibition of cross-gender pat-down 

searches of female inmates largely 

obviates the need for this exemption, 

and the Department concludes that the 

potential benefits of retaining the 

exemption only for male inmates are 


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29Beck, BJS, Sexual Victimization in Juvenile 

Facilities Reported by Youth, 2008–2009 (Jan. 

2010), available at http://bjs.ojp.usdoj.gov/content/ 

pub/pdf/svjfry09.pdf; Beck & Harrison, BJS, Sexual 

Victimization in Prisons and Jails Reported by 

Inmates, 2008–09, at 24. 

outweighed by the disadvantages noted 

by commenters. 

Comments regarding juvenile crossgender pat-down searches. Agencies 

generally agreed with the gender-neutral 

ban on pat-down searches in juvenile 

facilities, so long as exceptions were 

permitted in certain circumstances. One 

large State expressed significant concern 

regarding the cost of implementing the 

part of the ban that prohibits female 

staff from conducting pat-down searches 

of male juveniles. Some organizations 

supported strengthening the standard to 

limit the exceptions to exigent 

circumstances only. 

Response. The Department concludes 

that a gender-neutral cross-gender patdown search ban in juvenile facilities is 

required to help protect youth from staff 

sexual misconduct. 

The percentage of staff-on-resident 

victimization that involves female staff 

and male residents is much higher than 

the analogous percentage in adult 

facilities. A recent BJS survey indicated 

that 92 percent of all youth reporting 

staff sexual misconduct were males 

reporting victimization exclusively by 

female staff, compared to 65 percent in 

adult prisons and 58 percent in jails.29

The Department agreed with 

commenters who recommended 

allowing such searches only in ‘‘exigent 

circumstances.’’ The Department 

removed the exception for ‘‘other 

unforeseen circumstances’’ because the 

phrase is too vague and could lead to 

excessive reliance on the exception. The 

Department intends the exception to the 

cross-gender pat-down search ban to be 

limited to rare instances where truly 

emergent conditions exist. 

Comments regarding searches of 

transgender and intersex inmates. A 

number of advocates urged that 

transgender and intersex inmates be 

allowed to state a preference regarding 

the gender of the staff searching them, 

or that a presumption be created that 

transgender or intersex inmates be 

searched by female staff, because 

transgender and intersex persons are 

often perceived as female and are at 

high risk of being targeted by male staff 

for sexual violence and harassment. 

Numerous commenters, including both 

advocates and agency commenters, 

requested guidance on this issue. 

Many advocates urged the Department 

to prohibit examinations of transgender 

and intersex inmates, even by medical 

professionals, solely to determine 

genital status. Such examinations can be 

highly traumatic, commenters asserted, 

whereas the information regarding 

genital status can be obtained by 

questioning the person or by review of 

medical files. Commenters noted that 

transgender and intersex juveniles are 

particularly likely to be traumatized by 

such examinations. 

Response. The Department agrees that 

guidance is needed on properly 

searching transgender and intersex 

inmates. This guidance should be 

detailed and workable for facilities, 

should adequately protect transgender 

and intersex people, and is best 

provided by the National Resource 

Center for the Elimination of Prison 

Rape. 

The final standard does not include a 

provision allowing individual inmates 

to state a preference for the gender of 

their searcher, because such requests 

have the potential to be arbitrary and 

disruptive to facility administration. 

Rather, the Department believes that the 

concerns that prompted such a proposal 

can be addressed by properly assigning 

(or re-assigning) transgender and 

intersex inmates to facilities or housing 

units that correspond to their gender 

identity, and not making housing 

determinations based solely on genital 

status. Agencies should also recognize 

that the proper placement of a 

transgender inmate may not be a onetime decision, but may need to be 

reevaluated to account for a change in 

the status of the inmate’s gender 

transition. For example, an inmate who 

is initially assigned to a male facility or 

unit may subsequently merit a move to 

a female facility or unit (or vice versa) 

following hormone treatment or surgery. 

Finally, searches of both transgender 

and intersex inmates at intake, before a 

housing determination has been made, 

may present special challenges. In such 

cases, facilities should make individual 

assessments of inmates who may be 

transgender or intersex and consult with 

the inmate regarding the preferred 

gender of the staff member who will 

perform the search. 

The final standard does include 

additional safeguards to protect 

transgender and intersex inmates from 

examinations solely to determine genital 

status. Such targeted examinations will 

rarely be warranted, as the information 

can be gathered without the need for a 

targeted examination of a person’s 

genitals. Accordingly, the final standard 

states that, if an inmate’s genital status 

is unknown, a facility should attempt to 

gain the information by speaking with 

the inmate or by reviewing medical 

records. In the rare circumstances where 

a facility remains unable to determine 

an inmate’s genital status, the 

Department recognizes that the facility 

may have to conduct a medical 

examination. Any such medical 

examination, however, should be 

conducted as part of a regular medical 

examination or screening that is 

required of or offered to all inmates. 

Transgender and intersex inmates 

should not be stigmatized by being 

singled out for specific genital 

examinations. 

Comments regarding privacy. 

Advocates expressed concern that the 

standard allowed nonmedical staff of 

the opposite gender to view inmates as 

they shower, perform bodily functions, 

or change clothing, as long as such 

viewing is incidental to routine cell 

checks. These commenters feared that 

this exception would diminish the 

effectiveness of the Department’s 

intended limitation on cross-gender 

viewing. Some advocates proposed 

strengthening this limitation by 

requiring staff of the opposite gender to 

announce their presence when entering 

a housing unit. 

Some agency commenters expressed 

concern that privacy screens would be 

an unnecessary expense, and others 

feared that such screens would create 

blind spots and therefore security risks. 

Other commenters approved of privacy 

screens as a cost-effective means of 

protecting inmates’ privacy. 

Response. The final standard 

maintains the exception to the crossgender viewing prohibition, if the 

viewing is incidental to routine cell 

checks. However, the Department has 

addressed concerns that this exception 

would lead to widespread cross-gender 

viewing by adding to the standard a 

requirement that staff of the opposite 

gender announce their presence when 

entering a housing unit. 

The Department is sensitive to cost 

concerns and clarifies that the rule is 

not intended to mandate the use of 

privacy screens. Rather, privacy screens 

may be a safe and cost-effective way to 

address privacy concerns in certain 

facilities. 

Comments regarding training. 

Advocates generally supported the 

inclusion of the requirement to train 

staff in conducting cross-gender 

searches. However, some commenters, 

especially juvenile advocacy 

commenters, found the requirement 

confusing because the juvenile standard 

bans cross-gender searches. 

Response. The Department has 

retained this provision, even for 

juvenile facilities, due to the likelihood 

that cross-gender searches of women 

and juveniles may occur in exigent 

circumstances. 


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Comments regarding cross-gender 

strip searches. Few commenters 

discussed the prohibition on crossgender strip searches and body cavity 

searches. One commenter was 

concerned that the prohibition, as 

written, may extend to visual 

examinations of the mouth and ear, 

areas that are commonly inspected by 

members of the opposite sex. Several 

agency commenters recommended that 

all strip searches, not just cross-gender 

strip searches conducted under exigent 

circumstances, be documented. 

Response. The final standard clarifies 

that a body cavity search refers to a 

search of the anal or genital opening, 

and adopts the exigent circumstances 

language proposed by advocates. The 

Department declined to revise the 

standard to require documentation of all 

strip searches, out of concern that such 

a requirement could impose a heavy 

burden on some agencies for no good 

purpose. The standard aims to ensure 

documentation of those strip searches 

that carry the greatest potential for 

abuse; agencies may, of course, 

document all strip searches if they so 

choose. 

Inmates with Disabilities and Inmates 

Who Are Limited English Proficient 

(§§ 115.16, 115.116, 115.216, 115.316) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.15, 

115.115, 115.215, and 115.315) 

governed the accommodation of inmates 

with disabilities and inmates with 

limited English proficiency (LEP). The 

proposed standard required that 

agencies develop methods to ensure that 

inmates who are LEP, deaf, or disabled 

can report sexual abuse and sexual 

harassment to staff directly, and that 

agencies make accommodations to 

convey sexual abuse policies orally to 

inmates with limited reading skills or 

visual impairments. The proposed 

standard allowed for the use of inmate 

interpreters in exigent circumstances. 

Changes in Final Rule 

The final rule revises this standard to 

be consistent with the requirements of 

relevant Federal civil rights laws: Title 

II of the Americans with Disabilities Act 

(ADA), 42 U.S.C. 12101, 12131 et seq.; 

Section 504 of the Rehabilitation Act of 

1973, 29 U.S.C. 794; and Title VI of the 

Civil Rights Act of 1964, 42 U.S.C. 

2000d et seq. 

The final standard requires an agency 

to take appropriate steps to provide 

inmates with disabilities an equal 

opportunity to participate in and benefit 

from all aspects of the agency’s efforts 

to prevent, detect, and respond to sexual 

abuse and sexual harassment. An 

agency is not required to take actions 

that it can demonstrate would result in 

a fundamental alteration in the nature of 

a service, program, or activity, or in 

undue financial and administrative 

burdens, as those terms are used in 

regulations promulgated under Title II 

of the ADA. See 28 CFR 35.164. 

The final standard clarifies that the 

category of ‘‘inmates with disabilities’’ 

includes, for example, inmates who are 

deaf or hard of hearing, those who are 

blind or have low vision, and those with 

intellectual, psychiatric, or speech 

disabilities. It specifies that agencies 

shall provide access to interpreters 

when necessary to ensure effective 

communication with inmates who are 

deaf or hard of hearing, consistent with 

the ADA and its implementing 

regulations. The standard clarifies that 

such interpreters shall be able to 

interpret effectively, accurately, and 

impartially, both receptively and 

expressively, using any necessary 

specialized vocabulary. 

Similarly, with respect to inmates 

who are LEP, the final standard requires 

agencies to take reasonable steps to 

ensure meaningful access to all aspects 

of the agency’s efforts to prevent, detect, 

and respond to sexual abuse and sexual 

harassment, consistent with the 

requirements of Title VI of the Civil 

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

seq., and Executive Order 13166 of 

August 11, 2000, including steps to 

provide interpreters who can interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

Further, the final standard specifies 

that an agency cannot rely on inmate 

interpreters, inmate readers, or other 

types of inmate assistants ‘‘except in 

limited circumstances where an 

extended delay in obtaining an effective 

interpreter could compromise the 

inmate’s safety, the performance of firstresponse duties under § 115.64, or the 

investigation of the inmate’s 

allegations.’’ The quoted phrase replaces 

‘‘exigent circumstances,’’ which has 

been removed in light of the final rule’s 

definition of that term as ‘‘any set of 

temporary and unforeseen 

circumstances that require immediate 

action in order to combat a threat to the 

security or institutional order of a 

facility.’’ § 115.5. 

Note on Intersection With Existing 

Statutes and Regulations 

The Department emphasizes that the 

requirements in this standard are not 

intended to relieve agencies of any 

preexisting obligations imposed by the 

ADA, the Rehabilitation Act of 1973, or 

the meaningful access requirements set 

forth in Title VI of the Civil Rights Act 

of 1964 and Executive Order 13166. The 

Department continues to encourage all 

agencies to refer to the relevant statutes, 

regulations, and guidance when 

determining the extent of their 

obligations. 

The ADA requires State and local 

governments to make their services, 

programs, and activities accessible to 

individuals with all types of disabilities. 

See 42 U.S.C. 12132; 28 CFR 35.130, 

35.149–35.151. The ADA also requires 

State and local governments to take 

appropriate steps to ensure that their 

communications with individuals with 

disabilities (including, for example, 

those who are deaf or hard of hearing, 

those who are blind or have low vision, 

and those with intellectual, psychiatric, 

or speech disabilities) are as effective as 

their communications with individuals 

without disabilities. See 28 CFR 35.160– 

35.164. In addition, the ADA requires 

each State and local government entity 

to make reasonable modifications to its 

policies, practices, and procedures 

when necessary to avoid discrimination 

against individuals with disabilities, 

unless the entity can demonstrate that 

making the modifications would 

fundamentally alter the nature of the 

relevant service, program, or activity. 

See 28 CFR 35.130(b)(7). These 

nondiscrimination obligations apply to 

all correctional and detention facilities 

operated by or on behalf of State or local 

governments. See Pennsylvania Dep’t of 

Corr. v. Yeskey, 524 U.S. 206, 209–10 

(1998). 

Similar requirements apply to 

correctional and detention facilities that 

are federally conducted or receive 

Federal financial assistance. Section 504 

of the Rehabilitation Act of 1973, 29 

U.S.C. 794, prohibits discrimination 

against persons with disabilities by 

entities that receive Federal financial 

assistance. Discrimination includes 

denying persons with disabilities the 

opportunity accorded others to 

participate in the program or activity, or 

denying an equal opportunity to achieve 

the same benefits that others achieve in 

the program or activity. See 28 CFR 

42.503 (implementing Section 504 with 

respect to recipients of Federal financial 

assistance from the Department of 

Justice); 28 CFR 39.160 (implementing 

Section 504 with respect to programs or 

activities conducted by the Department 

of Justice, and providing specifically 

that auxiliary aids and services be 

furnished where necessary to afford an 

equal opportunity to participate). 

Pursuant to Title VI of the Civil Rights 

Act of 1964 and its implementing 


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30Some services may be available free of charge. 

For example, Video Relay Service (VRS) is a form 

of Telecommunications Relay Service (TRS) that 

enables persons with hearing disabilities who use 

American Sign Language to communicate with 

voice telephone users through video equipment, 

rather than through typed text. Like all TRS calls, 

VRS is free to the caller. VRS providers are 

compensated for their costs from the Interstate TRS 

Fund, which the Federal Communications 

Commission oversees. See http://www.fcc.gov/ 

guides/video-relay-services. 

regulations, all State and local agencies 

that receive Federal financial assistance 

must provide LEP persons with 

meaningful access to all programs and 

activities. See Enforcement of Title VI of 

the Civil Rights Act of 1964—National 

Origin Discrimination Against Persons 

with Limited English Proficiency; Policy 

Guidance, 65 FR 50123 (2000). Pursuant 

to Executive Order 13166, each agency 

providing Federal financial assistance is 

obligated to draft Title VI guidance 

regarding LEP persons that is 

specifically tailored to the agency’s 

recipients of Federal financial 

assistance. The Department’s guidance 

for its recipients includes a discussion 

of LEP issues in correctional and 

detention settings. See Guidance to 

Federal Financial Assistance Recipients 

Regarding Title VI Prohibition Against 

National Origin Discrimination 

Affecting Limited English Proficient 

Persons, 67 FR 41455 (2002). For further 

information, agencies are encouraged to 

review Common Language Access 

Questions, Technical Assistance, and 

Guidance for Federally Conducted and 

Federally Assisted Programs (Aug. 

2011), available at http://www.lep.gov/

resources/081511_Language_Access_

CAQ_TA_Guidance.pdf. 

In NPRM Question 17, the 

Department solicited feedback on 

whether the standards should require 

facilities to ensure that inmates with 

disabilities and LEP inmates be able to 

communicate with staff throughout the 

entire investigative and response 

process. The final standard clarifies that 

an agency must take appropriate steps to 

ensure equal opportunity to participate 

in and benefit from all aspects of its 

efforts to prevent, detect, and respond to 

sexual abuse and sexual harassment for 

inmates with disabilities, and take 

reasonable steps to ensure meaningful 

access to inmates who are LEP. These 

requirements are consistent with 

agencies’ obligations under the ADA 

and related regulations, and provide 

sufficient protection to individuals with 

disabilities and individuals who are 

LEP. 

Under the ADA, the nature, length, 

and complexity of the communication 

involved, and the context in which the 

communication takes place, are factors 

for consideration in determining which 

‘‘auxiliary aids and services,’’ including 

interpreters, are necessary for effective 

communication. The ADA title II 

regulation lists a variety of auxiliary 

aids and services, including ‘‘video 

remote interpreting,’’ which may 

potentially afford effective 

communication. Under the ADA title II 

regulation, however, in determining 

which types of auxiliary aids and 

services are necessary for effective 

communication, the public entity is to 

give primary consideration to the 

request of individuals with disabilities. 

See 28 CFR 35.160(b)(2); 35.160(b)(2)(d); 

35.104 (Definitions—Auxiliary aids and 

services); Appendix A to Part 35, 

Guidance to Revisions to ADA 

Regulation on Nondiscrimination on the 

Basis of Disability in State and Local 

Government Services. 

Comments and Responses 

Comment. The comments in response 

to the proposed standard were generally 

positive. Most correctional agency 

commenters expressed support for the 

standard as written. Many correctional 

stakeholders and inmate advocacy 

groups answered affirmatively to 

Question 17, but other commenters 

observed that the ADA already requires 

facilities to accommodate inmates with 

disabilities and therefore suggested that 

additional requirements were 

unnecessary. 

Response. The Department recognizes 

the importance of ensuring that all 

inmates, regardless of disability or LEP 

status, can communicate effectively 

with staff and are included in each 

facility’s efforts to prevent sexual abuse. 

The final standard, in conjunction with 

the ADA, Section 504, Title VI, and 

Federal regulations protecting the rights 

of individuals with disabilities and LEP 

individuals, protects all inmates while 

providing agencies with discretion over 

how to provide the requisite 

information and interpretation services. 

The final standard does not, nor is 

intended to, go beyond what is required 

by the ADA, Section 504, or Title VI, but 

the standard clarifies the agencies’ 

specific responsibilities with regard to 

PREA-related matters and individuals 

who are LEP or who have disabilities. 

Comment. One State correctional 

agency commended the goals of the 

proposed standard, but expressed 

concern that ensuring implementation 

would be difficult due to the vast range 

of communication issues that might 

present themselves. 

Response. The Department 

appreciates that a range of 

communication issues are implicated by 

this standard. With respect to inmates 

with disabilities, agencies are 

encouraged to review the ADA Title II 

regulations and associated technical 

assistance materials for more 

information addressing the broad 

spectrum of communication needs. See 

28 CFR 35.160(b)(2); 35.160(b)(2)(d); 

and 35.104 (Definitions—Auxiliary aids 

and services); and The Americans with 

Disabilities Act, Title II Technical 

Assistance Manual, Covering State and 

Local Government Programs and 

Services (1993), available at http://www.

ada.gov/taman2.html, at II—7.0000–II– 

7.1200. The agency can exercise its 

discretion regarding how to provide the 

required information or interpretation 

for individuals who require additional 

communication services with regard to 

PREA-related issues, including by 

choosing to provide services directly or 

working with an outside entity to ensure 

effective communication with inmates 

with disabilities and meaningful access 

for LEP inmates. 

Comment. Some correctional agency 

commenters stated that the availability 

of technology, internet services, and 

interpreters makes compliance with the 

standard very reasonable, except in 

many rural facilities. The commenters 

further noted that major metropolitan 

corrections facilities may detain people 

from 100 different cultures or countries. 

These commenters requested that the 

Department offer interpretation services 

24 hours a day, rather than placing the 

burden on each facility individually. 

Many correctional stakeholders stated 

that contracting with interpreters can be 

time-consuming and costly; some 

requested that agencies be required to 

comply only to the best of their abilities. 

On the other hand, several State 

correctional agencies and local facilities 

noted that these services are already in 

place, and as such there will be no 

additional costs associated with 

compliance. 

Response. Numerous interpretation 

services are available throughout the 

country, including telephone and 

internet providers that can 

accommodate the needs of small and 

rural facilities. While the Department 

cannot provide these services to all 

agencies, the National Resource Center 

for the Elimination of Prison Rape can 

provide technical assistance to help 

agencies connect with an appropriate 

provider.30 Agencies retain the 

discretion to provide the requisite 

services in the most appropriate manner 

for the specific facility and incident. 

With regard to cost, the Department 

notes that all prisons and jails are 

subject to the ADA, and that all State 

Departments of Corrections and many 

jails are subject to Title VI due to receipt 


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of Federal financial assistance. The 

requirements of this standard are 

informed by the ADA and Title VI; to 

the extent entities are in compliance 

with those requirements, the 

Department does not anticipate that 

additional costs will arise. 

Comment. Some juvenile justice 

administrators suggested that the agency 

document the actions it takes, including 

notes taken by interpreters. These 

commenters noted that agencies can 

keep notes and records of their efforts, 

but cannot ensure that perfect 

communication has occurred, even 

between a victim and investigator 

speaking the same language. An 

advocacy group also recommended that 

the standards require documentation of 

the agencies’ efforts to comply. 

Response. The Department 

encourages agencies to keep accurate 

documentation of their efforts to 

implement and comply with all of the 

PREA standards. Such documentation 

will facilitate the auditing process and 

ensure accurate compliance 

assessments. While an agency cannot 

ensure error-free communication in all 

instances, a valid policy that has clearly 

been implemented to guide 

investigation protocols with regard to 

ensuring effective communication for 

individuals with disabilities and 

meaningful access for individuals who 

are LEP should satisfy the requirements 

of this standard, assuming that the 

agency keeps accurate documentation. 

Comment. Some advocacy groups 

recommended that the final standard 

include a requirement to enter into a 

memorandum of understanding with 

agencies providing specific assistance 

for LEP inmates, who may face 

significant language-related obstacles in 

navigating facilities’ grievance and 

reporting processes. 

Most correctional commenters who 

addressed this issue stated that the 

Department should not require agencies 

to enter into formal agreements with 

outside entities to provide the required 

services, but should allow agencies to 

determine for themselves whether such 

an agreement would help ensure 

compliance. Other correctional 

commenters noted that such agreements 

could be beneficial and should be 

encouraged, in order to ensure adequate 

communication with LEP inmates; a few 

suggested such agreements, or attempts 

to enter into them, should be mandated. 

Response. The Department recognizes 

that many facilities would benefit from 

a formal agreement or memorandum of 

understanding to ensure that LEP 

inmates can effectively communicate. 

Indeed, many State correctional 

agencies noted that they already have 

these types of agreements in place. 

Other facilities provide many 

communication services in-house or 

through the agency; some rarely have a 

need for such services. Given the 

varying needs of different facilities 

throughout the country, the Department 

determined that it is prudent to grant 

the agencies the discretion to provide 

the requisite services in the manner 

most appropriate for the specific facility 

or incident at issue. 

Comment. A State correctional agency 

criticized the proposed standard for 

referencing abuse hotlines as a possible 

method for LEP, deaf, or disabled 

inmates to report abuse without relying 

on inmate interpreters. The commenter 

noted that such a hotline would do little 

for deaf, hearing impaired, or LEP 

inmates, and further noted that, in its 

experience, inmate hotlines prove 

expensive to operate and generate a 

large number of unfounded calls. 

Response. The final standard no 

longer references abuse hotlines, and 

does not require an agency to provide 

any specific type of interpretation or 

communication services. Agencies 

retain the discretion to provide the 

requisite services in the manner most 

appropriate for the specific facility or 

incident at issue, so long as agencies 

provide effective communication for 

inmates with disabilities and 

meaningful access for LEP inmates. 

Comment. Many advocacy groups 

stated that the standards should allow 

inmate interpreters in adult facilities 

only in ‘‘exigent circumstances and with 

the expressed voluntary consent of the 

inmate victim,’’ and should never allow 

resident interpreters to be used in 

juvenile facilities. Some agency 

commenters, by contrast, suggested that 

inmate interpreters be allowed if the 

inmate consents. 

Response. The final standard requires 

that agencies not rely on inmate 

interpreters, readers, or assistants 

‘‘except in limited circumstances where 

an extended delay in obtaining an 

effective interpreter could compromise 

the inmate’s safety, the performance of 

first-response duties under § 115.64, or 

the investigation of the inmate’s 

allegations.’’ The intent of this provision 

is to discourage the use of inmate 

assistance in investigations unless no 

other option is available in a reasonable 

timeframe, and where timing is critical 

to prevent physical harm or to reveal the 

facts. An inmate’s consent to utilizing 

another inmate as an interpreter does 

not guarantee the accuracy of the 

interpretation. While the use of inmate 

interpreters ordinarily is not an 

appropriate practice, the Department 

recognizes that in certain circumstances 

such use may be unavoidable. 

Comment. One State correctional 

agency recommended removing the 

term ‘‘sexual harassment’’ from this 

standard, because it would apply to 

interactions between inmates. The 

commenter suggested that because staff 

are trained in sexual violence in 

correctional settings, and therefore 

recognize the influence such 

verbalizations play, instances of inmateon-inmate sexual harassment are best 

addressed through each facility’s 

reporting and investigation processes, 

and should not be subject to additional 

regulations. 

Response. To the extent that incidents 

are to be reported, as sexual harassment 

is, inmates must be able to communicate 

effectively throughout the process, 

regardless of disability or LEP status. 

Comment. The American Jail 

Association, an association of county 

wardens, and a local sheriff’s 

department recommended that the 

Department encourage jails without 

resources to provide the required 

services to enter into memoranda of 

agreement with larger facilities to house 

victims with disabilities or victims who 

are LEP. 

Response. Given the varying needs of 

different facilities throughout the 

country, agencies should be afforded 

discretion to provide the requisite 

services in the manner most appropriate 

for the specific facility or incident at 

issue. If an agency cannot provide the 

necessary services to an inmate within 

its custody, the agency is not precluded 

from contracting to house such an 

inmate in another, more appropriate 

facility. However, agencies should be 

aware that ADA regulations provide 

that, ‘‘[u]nless it is appropriate to make 

an exception, a public entity . . . [s]hall 

not deprive inmates or detainees with 

disabilities of visitation with family 

members by placing them in distant 

facilities where they would not 

otherwise be housed.’’ 28 CFR 

35.152(b)(2)(iv). 

Comment. The National Disability 

Rights Network (NDRN), a nonprofit 

membership organization consisting of 

federally mandated Protection and 

Advocacy (P&A) Systems and Client 

Assistance Programs (CAP), provided 

extensive comments suggesting effective 

methods for agencies to comply with the 

proposed standards. NDRN noted that 

the proposed standards did not impose 

any new burdens or mandates on 

facilities, but rather reaffirmed the 

applicability of existing 

accommodations. In order to meet their 

legal and constitutional obligations, 

NDRN stated, confinement facilities 


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must provide effective communication 

accommodations when a need for such 

accommodations is known, based on 

requests from individual inmates as 

well as other information sources. 

NDRN suggested several best practices 

for communicating with special needs 

inmates, and recommended adopting 

‘‘universal precautions’’ for 

communicating with all inmates, such 

as using a sixth-grade reading level for 

written materials intended for adults, 

and a third-grade reading level for 

confined juveniles. NDRN suggested, in 

addition to restricting the use of other 

inmates as interpreters, that family 

members and acquaintances should not 

be used as interpreters, except in 

emergency situations when no viable 

alternative option exists, in order to 

protect the confidentiality, privacy, 

dignity, and safety of inmates, and to 

ensure objectivity and fidelity of 

interpretation. NDRN also noted that 

each State has a designated Protection & 

Advocacy office, which can be a 

resource for facilities on disability 

issues, including how to provide 

accessible formats for inmate education 

and effective communication 

accommodations during responses to 

and investigations of sexual abuse or 

harassment reports. 

Response. The Department 

appreciates the detailed suggestions for 

best practices included in NDRN’s 

comment and encourages all agencies to 

consider implementing a variety of 

strategies to ensure effective 

communication with all inmates. The 

National Resource Center for the 

Elimination of Prison Rape will develop 

training modules and provide technical 

assistance to help agencies educate staff 

concerning communication with 

inmates who are LEP and inmates who 

have disabilities. While the Department 

allows the agencies the discretion to 

provide the requisite services in the 

most appropriate manner for the 

specific facility or incident at issue, the 

Department encourages agencies to 

reach out to community providers and 

State offices as resources. As NDRN 

notes, each State has a federally 

mandated Protection & Advocacy office, 

initially created pursuant to 

Developmental Disabilities Assistance 

and Bill of Rights Act of 1975, codified 

as amended at 42 U.S.C. 15001 et seq. 

These offices can serve as valuable 

resources in helping facilities comply 

with the standards and with disability 

law more generally. 

Comment. One State correctional 

agency recommended that the facilities 

establish an early identification system 

as part of the reception process to ‘‘flag’’ 

inmates with disabilities and inmates 

who are LEP, and then develop a 

tracking mechanism that ensures the 

designation follows the inmate 

throughout his or her incarceration. 

Response. In order to ensure proper 

communication for inmates who have 

disabilities or are LEP, facilities will 

need to know which individuals require 

additional assistance. A formal early 

identification system, as suggested by 

the commenter, is a promising method 

of managing this information. Under the 

final standards, however, the agencies 

retain the discretion to develop a system 

to provide the requisite services in the 

most appropriate manner for the 

specific facility or individuals at issue, 

so long as effective communication for 

inmates with disabilities and 

meaningful access for LEP inmates are 

provided. 

Comment. One State correctional 

agency suggested extra time should be 

allotted for agencies to come into 

compliance. 

Response. The final standard requires 

each agency to provide communication 

and information services that are 

consistent with the agency’s 

responsibilities pursuant to the ADA 

and applicable regulations. Agencies 

may exercise discretion in how to 

provide such services, but the 

Department declines to afford additional 

time to comply with an obligation that, 

in large part, is already mandated by 

Federal law. 

Comment. A group that advocates for 

people with mental illness noted that 

the proposed standard was limited to 

protecting individuals with sensory 

disabilities but did not include 

protections for individuals with 

psychiatric or intellectual disabilities. 

The commenter recommended that the 

Department consider clarifying the 

proposed standard to ensure that 

administrators understand that they 

must provide auxiliary aids and services 

to inmates with a broader range of 

disabilities. 

Response. The final standard clarifies 

that agencies must take appropriate 

steps to ensure equal opportunity to 

participate in and benefit from all 

aspects of their efforts to prevent, detect, 

and respond to sexual abuse and sexual 

harassment for inmates with disabilities, 

including those with intellectual or 

psychiatric disabilities. 

Hiring and Promotion Decisions 

(§§ 115.17, 115.117, 115.217, 115.317) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.16, 

115.116, 115.216, and 115.316) 

prohibited the hiring of anyone who has 

engaged in sexual abuse in an 

institutional setting; who has been 

convicted of engaging in sexual activity 

in the community facilitated by force, 

the threat of force, or coercion; or who 

has been civilly or administratively 

adjudicated to have engaged in such 

activity. The proposed standard also 

required agencies to perform a criminal 

background check on new hires and to 

run checks on current employees at 

least every five years or have in place 

a system for otherwise capturing such 

information for current employees. The 

proposed standard required agencies to 

ask about previous misconduct in any 

applications, interviews, or selfevaluations, and provided that material 

omissions would be grounds for 

termination. The proposed standard also 

provided that, unless prohibited by law, 

the agency must provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

an institutional employer for whom 

such employee has applied to work. 

Changes in Final Standard 

The final standard is largely similar to 

the proposed standard, but makes 

several changes. First, the final standard 

narrows its application to employees 

who may have contact with inmates, but 

expands it to include contractors within 

its scope. Second, the final standard 

encompasses attempts to engage in 

improper sexual activity, which is now 

defined more expansively as sexual 

activity that is ‘‘facilitated by force, 

overt or implied threats of force, or 

coercion, or if the victim did not 

consent or was unable to consent or 

refuse.’’ Third, the final standard 

requires agencies to consider any 

incidents of sexual harassment in 

making decisions regarding employees 

and contractors, and to provide 

information regarding such incidents to 

possible future institutional employers 

unless prohibited by law. Fourth, the 

final standard clarifies that an agency 

need only ask applicants about their 

prior abuse history in applications or 

interviews, rather than in both. Fifth, for 

juvenile facilities, the final standard 

requires a check of any child abuse 

registry maintained by the State or 

locality in which the employee would 

work. 

Comments and Responses 

Comment. Several commenters noted 

that the prohibition of hiring and 

promoting anyone with a history of 

sexual abuse may be too burdensome to 

implement, and may not be necessary 

for staff who have no contact with 

inmates. 


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Response. The final standard exempts 

staff who do not have contact with 

inmates, in order to focus agencies’ 

efforts on the relevant set of employees. 

Comment. Several commenters noted 

that contractors were not included in 

this standard. 

Response. The Department agrees that 

this standard should address contractors 

who have contact with inmates and has 

revised it accordingly. 

Comment. Several commenters 

recommended adding convictions or 

restraining orders for domestic violence 

offenses to this list of prior actions that 

would preclude employment. 

Response. The Department agrees that 

agencies should have policies 

addressing a history of domestic 

violence in relation to employment and 

promotions. However, given the wide 

range of factual circumstances, varied 

State and local statutory definitions, and 

the lack of a clear nexus to sexual abuse 

in correctional settings, the Department 

has declined to expand the prohibition 

as suggested. By contrast, the 

Department has added to the final 

standard a requirement that the agency 

check any child abuse registry 

maintained by the State or locality in 

which the employee would work. This 

added requirement is appropriate for 

applicants to work in juvenile facilities 

due to the unique nature of these 

facilities, and the particular need to 

safeguard this population. 

Comment. One commenter noted that 

sexual abuse can occur in institutional 

settings other than corrections or 

detention facilities, and that the 

standard should clarify that such abuse 

is covered. 

Response. The Department agrees that 

sexual abuse that occurs in other 

custodial situations should be included 

in this standard. Accordingly, the final 

standard refers to sexual abuse in a 

prison, jail, lockup, community 

confinement facility, juvenile facility, or 

other ‘‘institution,’’ as that term is 

defined in the Civil Rights of 

Institutionalized Persons Act (CRIPA), 

42 U.S.C. 1997 et seq. Beyond 

correctional and pretrial detention 

facilities, CRIPA defines ‘‘institution’’ to 

include State facilities for persons who 

are mentally ill, disabled, or retarded, or 

chronically ill or handicapped; 

residential care or treatment facilities 

for juveniles; and facilities that provide 

skilled nursing, intermediate or longterm care, or custodial or residential 

care. See 42 U.S.C. 1997(1). 

Comment. Several commenters 

recommended that the standard’s 

prohibition on hiring include prior 

incidents of sexual harassment as well 

as sexual abuse. 

Response. Sexual harassment can 

include a wide range of behaviors, and 

incidents are often addressed without 

criminal, civil, or administrative 

adjudication, making verification 

difficult. Therefore, the Department has 

not revised the standard to include an 

absolute prohibition on hiring or 

promotions of persons who have 

engaged in sexual harassment. The final 

standard does, however, require that an 

agency consider any incidents of sexual 

harassment in determining whether to 

hire or promote anyone, or to enlist the 

services of any contractor, who may 

have contact with inmates. For similar 

reasons, the Department has also added 

a requirement that agencies provide 

other institutional employers with 

information on substantiated incidents 

of sexual harassment—the proposed 

standards referenced only sexual 

abuse—unless prohibited by law. 

Comment. One commenter requested 

clarification regarding the scope of the 

‘‘criminal background check’’ 

referenced in the proposed standard. 

Response. At a minimum, agencies 

should access the standardized criminal 

records databases maintained and 

widely used by law enforcement 

agencies. The final standard clarifies 

this requirement by referring to a 

‘‘criminal background records check.’’ 

Comment. One commenter 

recommended that the standard require 

contacting prior institutional employers 

not only to learn about substantiated 

allegations of sexual abuse, but also to 

inquire about resignations during a 

pending investigation into an allegation 

of sexual abuse. 

Response. The Department agrees 

with this suggestion, and has 

incorporated the requirement into the 

standard. 

Comment. Several commenters 

suggested that criminal background 

record checks for employees should 

occur more frequently than once every 

five years and should be required for 

promotions as well. Correctional agency 

commenters, however, expressed 

concern that increasing criminal 

background record checks would 

impose an excessive burden. One 

commenter suggested that if criminal 

background record checks are not 

required to occur more frequently than 

once every five years, then the final 

standard should mandate that agencies 

require staff members to report any 

incident of sexual abuse that they have 

committed. 

Response. The Department concludes 

that the proposed standard 

appropriately balanced the need for 

criminal background record checks with 

the concerns regarding the burden of 

carrying out this requirement. The 

Department agrees that an affirmative 

staff reporting requirement would be 

beneficial, and has revised the standard 

accordingly. 

Upgrades to Facilities and Technologies 

(§§ 115.18, 115.118, 115.218, 115.318) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.17, 

115.117, 115.217, and 115.317) required 

agencies to take into account how best 

to combat sexual abuse when designing 

or expanding facilities and when 

installing or updating video monitoring 

systems or other technology. 

Changes in Final Rule 

The Department is adopting the 

regulation as proposed. 

Comments and Responses 

Comment. One commenter suggested 

that the regulation should affirmatively 

prohibit an agency from making any 

changes that would diminish its ability 

to protect inmates from sexual abuse. 

Response. Improving agency 

performance in combating sexual abuse 

should be an important goal when 

making any physical changes or 

adopting new technology. However, a 

change may be offset by an agency 

intending to use other methods to 

combat sexual abuse (e.g., a physical 

change made in conjunction with 

increased staff supervision). The 

commenter’s concern is further 

addressed in the requirements in 

§§ 115.13, 115.113, 115.213, and 

115.313 to conduct assessments of 

physical layout and technology as part 

of an overall review of supervision and 

monitoring in conjunction with other 

contributing factors. 

Comment. A commenter requested 

clarification as to the documentation 

requirements concerning this regulation. 

Response. The regulation does not 

entail a regular separate reporting 

requirement, but issues concerning 

physical layouts and technology should 

be addressed as appropriate in 

assessments required under §§ 115.13, 

115.113, 115.213, 115.313, and 

§§ 115.88, 115.188, 115.288, 115.388. 

Agencies may demonstrate compliance 

through a variety of means—e.g., 

through planning meeting minutes, 

statements of work, design 

specifications, or contracting 

documents. 

Comment. One commenter would 

have the regulation require agencies to 

use video-monitoring as a deterrent to 

sexual abuse and an aid to prosecutions. 

Another commenter noted that a 


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mandate to use video technology would 

be cost-prohibitive. 

Response. As discussed in greater 

depth in its responses to comments 

regarding § 115.13, the Department 

agrees that video technology can be 

extremely helpful, yet is also sensitive 

to the cost of mandating such 

technology. 

Evidence Protocol and Forensic Medical 

Examinations (§§ 115.21, 115.121, 

115.221, 115.321) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required agencies 

responsible for investigating allegations 

of sexual abuse to adopt an evidence 

protocol to ensure all usable physical 

evidence is preserved for administrative 

or criminal proceedings, based on the 

Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents’’ (SAFE Protocol), or 

similarly comprehensive and 

authoritative protocols published after 

2011. 

The proposed standard expanded the 

NPREC’s recommendation by requiring 

access to exams not only in cases of 

penetration but whenever evidentiarily 

or medically appropriate. For example, 

if an inmate alleges that she was 

strangled in the course of a sexual 

assault that did not result in 

penetration, a forensic exam might 

provide evidence to support (or refute) 

her contention. 

The proposed standard took into 

account the fact that some agencies are 

not responsible for investigating alleged 

sexual abuse within their facilities and 

that those agencies may not be able to 

dictate the conduct of investigations 

conducted by outside entities. In such 

situations, the proposed standard 

required the agency to inform the 

investigating entity about the standard’s 

requirements with the hope that the 

investigating entity will look to the 

standard as a best-practices guideline. In 

addition, the standard applied to any 

outside State entity or Department of 

Justice component that investigates such 

allegations. 

In all settings except lockups, the 

proposed standard required that the 

agency offer all sexual abuse victims 

access to a person either inside or 

outside the facility who can provide 

support to the victim. Specifically, the 

proposed standard required that the 

agency make available to the victim 

either a victim advocate from a 

community-based organization that 

provides services to sexual abuse 

victims or a ‘‘qualified agency staff 

member,’’ defined as a facility employee 

who been screened for appropriateness 

to serve in this role and has received 

education concerning sexual assault and 

forensic examination issues in general. 

Changes in Final Rule 

The final standard instructs facilities 

to use a Sexual Assault Nurse Examiner 

(SANE) or Sexual Assault Forensic 

Examiner (SAFE) where possible to 

perform the exams. Facilities in areas 

where there is not a SANE or SAFE 

available must document their efforts to 

provide SAFEs or SANEs and then 

provide other qualified medical 

professionals. 

The final standard specifies the use of 

a developmentally appropriate protocol 

where the victim is a prepubescent 

minor, and clarifies that the protocol 

used in adult facilities shall be 

developmentally appropriate for youth, 

where applicable. 

The final standard also recognizes the 

unique role of rape crisis center 

advocates in supporting victims 

throughout the forensic examination 

and investigatory interviews. 

Recognizing that many facilities are in 

rural areas where there may not be a 

rape crisis center available or where the 

rape crisis center may lack the resources 

to assist the facility, the standard 

requires an agency to document its 

efforts to secure advocacy services from 

a rape crisis center. If it fails to obtain 

such services in spite of reasonable 

efforts, it may provide either a qualified 

agency staff member or a qualified 

community-based organization staff 

member. Particularly in rural areas, 

there often are community-based 

organizations that, while not focused on 

rape crisis services, may provide similar 

social services, such as general 

counseling services or advocacy, 

counseling, and supportive services to 

victims of domestic violence. 

Individuals from these organizations 

may not have the training and expertise 

that individuals from a rape crisis center 

have to serve victims, but in the absence 

of available rape crisis services, they 

may still be a useful source of outside 

support for victims, some of whom may 

be reluctant to trust agency staff. In the 

case of community-based organizations 

or agency staff, the final standard 

requires that the staff person serving in 

the support role be screened for 

appropriateness and receive education 

concerning sexual assault and forensic 

examination issues in general. Ideally, 

the staff person would receive the same 

training as that required for victim 

advocates in the State, which is usually 

a forty-hour training and is offered by 

many State sexual assault coalitions, 

usually several times throughout the 

year and at a reasonable cost. A list of 

coalitions is available on the Web site of 

the Department’s Office on Violence 

Against Women at http:// 

www.ovw.usdoj.gov/statedomestic.htm. 

To the extent the agency itself is not 

responsible for investigating allegations 

of sexual abuse, the final standard 

requires the agency to request that the 

investigating entity follow the relevant 

investigatory requirements set out in the 

standard. 

For lockups, the final standard adds a 

requirement that if the victim is 

transported to an outside hospital for 

forensic examinations and that hospital 

offers advocacy services, the detainee 

shall be allowed to use the services to 

the extent available, consistent with 

security needs. 

Comments and Responses 

Comment. Many advocacy groups 

commented that the SAFE Protocol is 

not appropriate for prepubescent 

minors. 

Response. For this reason, the final 

standard specifies the use of a protocol 

that is ‘‘developmentally appropriate for 

youth’’ and based on the National 

Protocol only ‘‘as appropriate.’’ 

Comment. Some groups 

recommended specifying in the 

standard that the protocol for 

prepubescent minors must include such 

specific topics as policies and 

procedures for mandatory reporting, 

consent to treatment, parental 

notification, and scope of 

confidentiality. 

Response. The Department recognizes 

that these topics are important in 

responding to sexual abuse in all 

settings. However, the Department 

believes that knowledge of these topics, 

which are often governed by State laws, 

should be a prerequisite for 

qualification as an examiner rather than 

a mandatory part of the protocol. 

Accordingly, the Department has not 

made this change. 

Comment. Many victim advocacy 

groups recommended that the 

Department require the use of SANEs or 

SAFEs because they are best qualified to 

provide a proper forensic examination. 

Some specifically recommended a 

protocol that includes transport to 

facilities that perform exams through 

SANEs or SAFEs or a requirement that 

an agency document its decision 

whether to transport victims outside or 

perform the examination internally. 

Response. The final standard 

recognizes that the state of the art in 

sexual assault forensic examinations is 

to utilize a specially trained and 


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31 42 U.S.C. 14043g(b)(2)(C) specifies the 

following services: 

(i) 24-hour hotline services providing crisis 

intervention services and referral; 

(ii) accompaniment and advocacy through 

medical, criminal justice, and social support 

systems, including medical facilities, police, and 

court proceedings; 

(iii) crisis intervention, short-term individual and 

group support services, and comprehensive service 

coordination and supervision to assist sexual 

assault victims and family or household members; 

(iv) information and referral to assist the sexual 

assault victim and family or household members; 

(v) community-based, linguistically and 

culturally specific services and support 

mechanisms, including outreach activities for 

underserved communities; and 

(vi) the development and distribution of materials 

on issues related to the services described in 

clauses (i) through (v). 

certified examiner, such as a SANE or 

SAFE, to perform the exams. SANEs and 

SAFEs have specialized training and 

experience so that they are more 

sensitive to victim needs, and are highly 

skilled in the collection of evidence, 

resulting in more successful 

prosecutions. Accordingly, the final 

standard instructs facilities to use 

SANEs or SAFEs where possible, while 

recognizing that they may not always be 

available. The Department does not 

believe it is necessary to dictate to 

facilities how to utilize SANEs or SAFEs 

or to impose additional documentary 

requirements beyond documenting their 

efforts to make SANEs or SAFEs 

available. 

Comment. Two other such groups 

specifically recommended the Sexual 

Assault Response Team (SART) model 

for response during the exam as well as 

the use of SANEs/SAFEs. 

Response. As discussed above, the 

final standard instructs facilities to use 

SANEs or SAFEs where possible. 

Although the final standard does not 

specifically require the SART model for 

response, § 115.64 requires agencies to 

follow specific first responder duties to 

protect the victim and preserve 

evidence and § 115.65 requires agencies 

to develop a written institutional plan to 

coordinate actions taken in response to 

an incident of sexual abuse among staff 

first responders, medical and mental 

health practitioners, investigators, and 

facility leadership. These standards will 

help ensure an appropriate response to 

sexual assault incidents, while 

preserving agency discretion to 

coordinate such responses in the 

manner best suited to the particular 

situation. 

Comment. One inmate commented 

that the exams should be performed by 

an outside medical practitioner. 

Response. The Department believes 

that the choice of an internal or outside 

practitioner is less important than 

making an effort to obtain the services 

of a SANE/SAFE and otherwise 

providing a qualified medical 

practitioner. Accordingly, the 

Department does not mandate the use of 

an outside practitioner. 

Comment. One correctional 

association and one State sheriffs’ 

association expressed concerns about 

the cost of paying for the exams, 

particularly for jails that would have to 

pay an outside entity. 

Response. Under the Violence Against 

Women Act (VAWA) of 1994, as 

reauthorized in 2006, all States must 

certify as a condition of certain formula 

grant funding that victims of sexual 

assault have access to a forensic medical 

examination regardless of the decision 

to cooperate with the criminal justice 

system and that the State or another 

governmental entity bears the full out of 

pocket costs of such exams. See 42 

U.S.C. 3796gg–4. This certification 

requirement applies throughout the 

entire State, including to victims who 

are incarcerated. All States, pursuant to 

their receipt of funds through the STOP 

Violence Against Women formula grant 

program, are required to cover the costs 

of the exams, including exams for 

victims in correctional facilities. The 

Department encourages States and 

correctional agencies to work together to 

craft effective strategies for funding and 

administering these examinations. A list 

of the administering agencies for each 

State for the formula grant funding, 

which should have information about 

the payment mechanism, is available on 

the Department’s Web site at http:// 

www.ovw.usdoj.gov/stopcontactlist.htm. 

Comment. One State correctional 

agency noted that it is in compliance 

with the current SAFE Protocol, but that 

it is a guideline for suggested practices, 

rather than a list of requirements. 

Response. This is the correct 

understanding of the SAFE Protocol, 

which is a tool to be used for developing 

individual protocols. The Department 

will be soon issuing a companion to the 

SAFE Protocol that will specifically 

assist correctional facilities in adapting 

the SAFE Protocol to their needs. 

Comment. One sheriff’s office 

expressed concern that the use of the 

SAFE Protocol could be a moving target 

if agencies were required to comply 

with updates. 

Response. As discussed above, the 

SAFE Protocol is a guideline for best 

practices, rather than a list of 

requirements. 

Comment. A number of advocacy 

organizations and inmates expressed 

concerns with the use of ‘‘qualified 

staff’’ to serve in an advocacy role. 

Concerns included lack of inmate trust 

in staff, including fear of staff bias 

against inmates who are lesbian, gay, 

bisexual, transgender, or intersex 

(LGBTI); conflict between security and 

support roles; lack of sufficient time to 

spend with the victim; and 

confidentiality. Specific 

recommendations included using a 

qualified staff member only when no 

rape crisis center is available; 

documenting efforts to enter into 

agreements with rape crisis centers; 

screening staff for appropriateness to 

serve in the role of a support person, 

including assessing whether the staff 

member has a nonjudgmental attitude 

toward sexual assault victims and 

LGBTI individuals; ensuring round-theclock coverage; providing the staff 

member the full forty hours of training 

that most rape crisis center advocates 

are required to receive; and providing 

the staff member opportunities to 

debrief experts in the victim advocacy 

field. Some advocacy groups suggested 

that it was inconsistent for this standard 

to allow the use of qualified staff 

members to perform these functions, 

given that a separate standard required 

agencies to attempt to enter into 

memoranda of understanding with 

community groups to provide 

confidential emotional support services 

related to sexual abuse. These 

commenters recommended that a 

‘‘qualified staff member’’ be allowed to 

serve as a victim advocate only where 

the agency has not been able to enter 

into an agreement with a communitybased agency to provide such services. 

Some correctional agencies supported 

the decision to allow for a qualified staff 

person, but others expressed concerns 

over the cost of training and supervising 

such staff. 

Response. After considering the wide 

range of comments, the Department has 

decided to require agencies to attempt to 

make available a rape crisis center 

advocate, which the final standard 

defines as ‘‘an entity that provides 

intervention and related assistance, 

such as the services specified in 42 

U.S.C. 14043g(b)(2)(C), to victims of 

sexual assault of all ages.’’ 31 The 

Department is sensitive to concerns that 

inmate victims may be reluctant to 

confide in a ‘‘qualified staff member’’ 

from the agency due to real or perceived 

bias and fear of retaliation. In addition, 

the Department believes that an 

advocacy organization that is 

specifically dedicated to providing 

assistance to victims of sexual abuse is 

best suited to address victims’ needs. A 

victim will most benefit from a trained, 

confidential support person, who can 

focus on the victim and to whom the 


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victim will feel safe talking. However, 

the Department recognizes that a rape 

crisis center advocate will not always be 

available, whether due to geographic 

distance or simply because the local 

rape crisis center lacks sufficient 

resources to serve the facility. If so, the 

agency has the option of using either 

staff from other community-based 

agencies or qualified agency staff, as 

long as such persons have been 

screened for appropriateness to serve in 

this role and the agency has 

documented its attempts to secure 

services from a rape crisis center. Other 

‘‘community-based agencies’’ may 

include any entity—such as faith-based 

groups, non-profit organizations, or 

community counseling services—that 

can provide appropriate victim 

assistance when a rape crisis center is 

not available. In addition, although the 

final standard does not mandate a 

specific number of training hours, it 

requires that agencies ensure that the 

victim advocate has received education 

concerning sexual assault and forensic 

examination issues in general. The 

Department recognizes that these 

precautions will not allay all concerns 

regarding use of a person who is not a 

rape crisis center advocate, but 

anticipates that these safeguards will 

help ensure that these options are 

available as a backstop where such an 

advocate is truly unavailable. In 

providing two fallback options, the 

Department entrusts agencies with 

discretion to utilize whichever option 

provides the most effective and timely 

assistance to the victim. 

With regard to training, the 

Department encourages agencies to 

draw upon outside expertise. Even in 

the absence of local rape crisis centers, 

each State has a State Sexual Assault 

Coalition, which may be a useful 

resource in developing screening tools 

and training. Many coalitions will be 

able to provide the forty-hour advocate 

training for a reasonable cost to facility 

personnel. A list of coalitions is 

available on the Web site of the 

Department’s Office on Violence 

Against Women at http:// 

www.ovw.usdoj.gov/statedomestic.htm. 

Comment. One agency commenter 

construed the draft standard to require 

a qualified staff person to be employed 

by the facility where the incident 

occurred. 

Response. The final standard refers to 

a ‘‘qualified agency staff member,’’ 

making clear that the staff member need 

not work at the facility where the 

incident occurred. 

Comment. One commenter suggested 

that the National Resource Center for 

the Elimination of Prison Rape make 

available an approved curriculum to 

assist individuals in becoming qualified 

staff members. 

Response. The Resource Center will 

do so. 

Comment. Some commenters 

expressed uncertainty regarding the 

meaning of the phrase ‘‘during the 

investigatory process.’’ 

Response. For clarification, this 

phrase has been changed to ‘‘during 

investigatory interviews.’’ 

Comment. One correctional agency 

expressed concern that the standard 

would hold it responsible for the actions 

of an outside individual over whom 

they have no authority. 

Response. This concern is misplaced: 

The agency is not responsible for the 

actions of the victim advocate—only for 

making one available to the victim. The 

Department recommends that agencies 

enter into an agreement with a rape 

crisis center that describes the scope of 

the services and the terms of their 

relationship. 

Comment. One sheriff’s office 

suggested separating this standard into 

separate components for criminal and 

administrative investigation. 

Response. The Department has not 

made this change, because the 

references to investigations in the 

standard apply to either criminal or 

administrative investigations. If the 

agency is responsible for either type of 

investigation, it would be required to 

follow this standard. If it is not 

responsible for any investigations, and 

the responsible entity is a State agency 

or Department component, the State 

entity or Department component would 

be responsible. If the agency is not 

responsible for any type of investigation 

and the responsible entity is not a State 

agency or Department component—i.e., 

another local entity is responsible—then 

the agency would notify the responsible 

entity of the requirements of this 

standard. 

Comment. Some correctional agencies 

expressed concern about the 

requirements in paragraphs (f) and (g) 

regarding outside entities that 

investigate sexual assault cases because 

the agencies do not control such 

entities. 

Response. This standard does not 

require agencies to exert control over 

such outside entities. Paragraph (g) 

separately regulates State agencies that 

investigate these crimes; paragraph (f) 

requires only that correctional agencies 

that do not conduct such investigations 

notify the entity that does. Other than 

the obligation to notify, the standard 

does not require a local agency to take 

any affirmative steps to ensure the 

compliance of the other entities. 

Comment. One correctional agency 

requested clarification regarding the 

provision that this standard applies to 

any ‘‘State entity’’ outside of the 

correctional agency that is responsible 

for investigating allegations of sexual 

abuse in institutional settings. 

Response. The reference to ‘‘State 

entity’’ is meant to include any relevant 

division of the State government, as 

opposed to local government entities. 

Comment. One correctional agency 

requested clarification regarding the 

meaning of ‘‘these policies’’ referenced 

in paragraph (f). 

Response. The final standard clarifies 

that this refers back to the requirements 

of paragraphs (a) through (e). 

Comment. Numerous victim advocacy 

organizations and organizations 

advocating for the rights of inmates 

recommended that the proposed 

standard be revised to require lockups 

to provide a victim advocate or qualified 

staff member. These commenters stated 

that victims in lockups should have the 

same access to advocates as victims in 

the other types of facilities. 

Response. The Department declines to 

amend the proposed standard to 

mandate this requirement for lockups, 

largely for reasons stated in the NPRM. 

First, because lockups are leanly staffed, 

complying with this requirement could 

well require the hiring of an additional 

staff person. Second, there is little 

evidence of a significant amount of 

sexual abuse in lockups that would 

warrant such expenditure. Third, 

lockup inmates are highly transient, and 

thus, in some cases, victims of sexual 

abuse already will have been transferred 

to a jail before the forensic exam can be 

conducted. 

Because lockups do not have on-site 

medical services, a victim would be 

taken to the hospital for exams. In 

§ 115.121(d), the final standard includes 

language specifying that, after reaching 

the hospital, such victims must have the 

same access to advocates as other 

victims, barring any security risks. 

Comment. NPRM Question 18 asked 

whether the standards adequately 

provide support for victims of sexual 

abuse in lockups upon transfer to other 

facilities, and if not, how the standards 

should be modified. The majority of 

correctional organizations were satisfied 

that the standards addressed the needs 

of victims in lockups. Additional 

comments are discussed below. 

Comment. One State correctional 

agency noted that some tribes use 

lockups for longer-term court orders, 

which may raise additional concerns. 

Response. Except to the extent that 

tribes contract with State or local 

facilities to house non-tribal inmates, 


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32The standard numbered in the proposed rule as 

§§ 115.22, 115.222, and 115.322, titled ‘‘Agreements 

with outside public entities and community service 

providers,’’ has been deleted and its contents, as 

modified, have been moved to §§ 115.51, 115.53, 

115.251, 115.253, 115.351, and 115.353. 

this rule does not apply to tribal 

facilities. With regard to confinement 

facilities in Indian country, BIA, like 

other Federal agencies whose operations 

involve confinement facilities, will 

work with the Attorney General to issue 

rules or procedures that will satisfy the 

requirements of PREA. 

Comment. Some correctional 

organizations recommended that the 

standard specify that the processing of 

the inmate to a larger facility should be 

expedited in order to ensure access to 

the services available at the larger 

facility. 

Response. While the Department 

certainly supports this goal, such 

expedited treatment may not always be 

feasible—and should not be attempted if 

doing so delays the provision of medical 

care at hospitals or other offsite 

treatment centers. 

Comment. One State expressed the 

view that a lockup should be 

responsible for aiding a detainee who is 

victimized in the lockup, even if the 

victim has been subsequently 

transferred to another facility. 

Response. As a practical matter, it is 

not feasible to require a lockup to 

provide support to a victim who is 

confined elsewhere. To the extent the 

concern is over who pays for the 

victim’s care, it is best left to the 

individual States and localities to 

determine whether and how to require 

a shifting of costs. 

Policies To Ensure Referrals of 

Allegations for Investigations (§§ 115.22, 

115.122, 115.222, 115.322) 32

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.23, 

115.123, 115.223, and 115.323) 

mandated that each agency have in 

place a policy to ensure that allegations 

of sexual abuse or sexual harassment are 

investigated by an agency with the legal 

authority to conduct criminal 

investigations. The standard mandated 

that the policy be published on the 

agency’s Web site, or otherwise made 

available, and, if a separate entity is 

responsible for investigating criminal 

investigations, that the publication 

delineate the responsibilities of the 

agency and the investigating entity. The 

standard also required that that any 

State entity or Department of Justice 

component that conducts such 

investigations have in place policies 

governing the conduct of such 

investigations. 

Changes in Final Rule 

The final standard contains no 

substantive changes, although it adds 

language that makes explicit what was 

implicit in the proposed standard: ‘‘The 

agency shall ensure that an 

administrative or criminal investigation 

is completed for all allegations of sexual 

abuse and sexual harassment.’’ 

Comments and Responses 

Comment. Some commenters 

recommended that the Department 

restore the NPREC’s recommendations 

that agencies attempt to enter into 

memoranda of understanding with 

outside investigative agencies and with 

prosecutorial agencies. 

Response. The Department recognizes 

that such memoranda of understanding 

have benefited certain agencies, and 

encourages agencies to explore the 

viability of attempting to enter into such 

agreements. However, due to burden 

concerns, the Department does not 

believe that the standard should require 

agencies to make such efforts. In 

comments submitted in response to the 

ANPRM, a number of agency 

commenters expressed concern that a 

standard requiring agencies to enter into 

memoranda, as the NPREC had 

recommended, would impose 

significant burdens, especially in State 

systems where investigations and 

prosecutions are conducted by 

numerous different agencies at the 

county or municipal level. In light of 

these concerns, the Department declines 

to revise the standard to mandate 

attempts to enter into such memoranda. 

Comment. A few agencies commented 

that the requirement to ensure 

completion of an investigation is 

duplicative because many agencies 

already require the investigation of any 

crime that occurs. 

Response. To the extent that an 

agency has such a policy, the 

requirement should not require extra 

effort to implement. 

Comment. Some agency commenters 

expressed concern that the standard 

required allegations of sexual 

harassment to be forwarded on to an 

outside agency to conduct criminal 

investigations even if the allegation does 

not rise to the level of criminal conduct. 

Response. This concern is misplaced. 

As stated in paragraph (b) of the 

relevant sections, there is no need to 

refer an investigation to an outside 

criminal investigation agency if the 

allegation does not involve potentially 

criminal behavior. 

Comment. One commenter asserted 

that local agencies must be allowed to 

promptly address sexual harassment 

complaints and not send complaints to 

outside agencies. 

Response. As noted above, agencies 

need not refer an investigation to an 

outside criminal investigation agency if 

the allegation does not involve 

potentially criminal behavior. And even 

if criminal behavior is alleged, the 

agency may still take administrative 

action during the pendency of a 

criminal investigation. 

Comment. Some agency commenters 

objected to the requirement that agency 

Web sites describe the responsibilities 

of both the confining agency and (where 

different) the agency investigating 

allegations of abuse. A small number of 

such commenters noted that they did 

not have a Web site and lacked the 

resources or support to develop one, 

and some asked if the policy must be 

presented in full. 

Response. The final standard allows 

agencies without a Web site to make the 

information available by other means, 

which should facilitate full publication 

of the policy. 

Comment. A few agencies objected 

that it was outside their agency’s 

authority to publish any information 

describing the responsibilities of 

another agency. 

Response. The Department does not 

agree with the assertion that an agency 

lacks the authority to explain what 

responsibilities it bears, and what 

investigatory responsibilities will be 

carried out by an outside agency. 

Comment. A commenter 

recommended revising the standard 

from ‘‘[t]he agency shall have in place 

a policy to ensure that allegations of 

sexual abuse * * * are investigated by 

an agency with the legal authority to 

conduct criminal investigations’’ to 

‘‘[t]he agency shall have in place a 

policy to ensure that allegations of 

sexual abuse * * * are referred to an 

agency with the legal authority to 

conduct criminal investigations.’’ 

Response. The Department has 

adopted this change, and § 115.22(b) 

now requires agencies to have a policy 

to ensure that allegations are ‘‘referred 

for’’ investigation by an agency with the 

legal authority to conduct criminal 

investigations. 

Comment. Some agencies expressed 

concern that they would be responsible 

for monitoring the compliance of an 

outside entity’s investigation, noting 

that they did not typically have control 

over the manner in which law 

enforcement conducts investigations. 

Response. As the amended text makes 

clear, agencies are responsible only for 


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referring the investigation to the outside 

entity, not for monitoring the outside 

entity’s investigation. 

Comment. One State correctional 

agency commented that proposed 

standard § 115.23(a) would be 

impossible to implement because 

criminal investigation entities in its 

State lack sufficient funding to take on 

the volume of investigations. The 

commenter asserted that it would be 

impossible to divide investigations 

between law enforcement and the 

correctional agency at the beginning of 

a case because it is often difficult to 

predict, at the outset of an investigation, 

whether evidence of criminal behavior 

will be obtained. Another agency 

commenter objected to the requirement 

that it determine whether behavior was 

‘‘potentially criminal’’ because, in its 

view, such a determination can be made 

only by prosecutors and courts. 

Response. As the amended standard 

makes clear, a correctional agency’s sole 

responsibility is to refer allegations of 

potentially criminal behavior to entities 

with the authority to investigate 

criminal matters. An agency need not 

definitively determine whether behavior 

is actually criminal; it need only refer 

allegations of potentially criminal 

behavior to the appropriate law 

enforcement agency. The Department is 

confident that the ability to determine 

whether an allegation might involve 

criminal acts is well within the 

competence of agency officials. 

Comment. A private individual 

recommended that criminal 

investigations be conducted by outside 

agencies, and that inmates have the 

opportunity to appeal the results of 

these investigations. 

Response. The standard requires 

agencies to refer investigations 

regarding potentially criminal behavior 

involving sexual abuse or sexual 

harassment to an agency with the legal 

authority to conduct criminal 

investigations. State or local law may 

dictate which entity has the legal 

authority to conduct such 

investigations, and it would not be 

appropriate for the standards to require 

that an outside jurisdiction conduct 

such investigations. With regard to 

criminal investigations, alleged victims 

of crimes do not ordinarily have the 

right to appeal the results of criminal 

investigations, and the Department 

declines to revise the standard to 

mandate such a right here. 

Comment. A number of advocates 

noted that delay can result where 

multiple investigations are not well 

coordinated, and recommended 

requiring that facilities establish clear 

responsibilities when overlapping 

investigations occur, so that staff 

members understand their roles and 

how to collaborate with other agencies 

to ensure timely resolution of all 

investigations. Specifically, they 

recommended adding the following 

language to the standard: ‘‘The agency 

shall coordinate internal investigations 

of alleged sexual abuse and sexual 

harassment with any external 

investigations by law enforcement, child 

protective services, or other entities 

charged with investigating alleged 

abuse. The agency shall establish an 

understanding between investigative 

bodies with overlapping responsibilities 

so that staff have a clear understanding 

of their roles in evidence collection, 

interviewing, taking statements, 

preserving crime scenes, and other 

investigative responsibilities that 

require clarification.’’ 

Response. The Department recognizes 

the importance of coordinating 

investigations. However, the 

Department concludes that details of 

how to coordinate investigative efforts 

most effectively are best left to the 

agencies involved, and do not warrant 

specific reference within the standards. 

Comment. One stakeholder suggested 

removing sexual harassment from the 

ambit of this standard, while a number 

of other commentators suggested adding 

sexual harassment to sections of the 

proposed standards that referenced only 

sexual abuse. 

Response. Although PREA does not 

reference sexual harassment, it 

authorizes the NPREC, and by extension 

the Attorney General, to propose 

standards relating to ‘‘such other 

matters as may reasonably be related to 

the detection, prevention, reduction, 

and punishment of prison rape.’’ 42 

U.S.C. 15606(e)(2)(M). Referencing 

sexual harassment in certain standards 

is appropriate to combat what may be a 

precursor to sexual abuse. Upon 

reconsideration, the Department has 

added sexual harassment to the portions 

of the standard that reference policies of 

State entities and Department of Justice 

components, in order that these 

provisions parallel the remainder of the 

standard. 

Comment. Two agencies expressed 

uncertainty as to the meaning of ‘‘State 

entity’’ in the proposed standard, and 

suggested adding a specific definition. 

Response. The reference to ‘‘State 

entity’’ is meant to refer to any division 

of the State government, as opposed to 

local government. The Department does 

not believe that a definition is 

necessary. 

Employee Training (§§ 115.31, 115.131, 

115.231, 115.331) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that all 

employees who have contact with 

inmates receive training concerning 

sexual abuse in facilities, including 

specified topics, with refresher training 

to be provided on an annual basis 

thereafter. The proposed standard 

included all training topics proposed by 

the NPREC, and added requirements 

that training be provided on how to 

avoid inappropriate relationships with 

inmates, that training be tailored to the 

gender of the inmates at employees’ 

facilities, that training cover effective 

and professional communication with 

LGBTI residents, and that training in 

juvenile facilities be tailored to the 

juvenile setting. 

The proposed standard required that 

agencies document that employees 

understand the training they have 

received, and that all current employees 

be trained within one year of the 

effective date of the PREA standards. 

In lockups, the proposed standard, 

consistent with the NPREC’s 

corresponding standard, did not specify 

training requirements beyond requiring 

that the agency train all employees and 

volunteers who may have contact with 

lockup detainees to be able to fulfill 

their responsibilities under agency 

sexual abuse prevention, detection, and 

response policies and procedures, and 

to communicate effectively and 

professionally with all detainees. 

Changes in Final Rule 

The Department has added language 

in §§ 115.31(a)(10), 115.131(a)(6), and 

115.231(a)(10), and made conforming 

changes to § 115.331(a)(10), to require 

relevant staff training in all facilities on 

laws related to the mandatory reporting 

of sexual abuse to outside authorities. 

The final standard adds sexual 

harassment to paragraphs (a)(2), (a)(4), 

(a)(5), and (a)(6), which previously 

referenced only sexual abuse, and adds 

‘‘gender nonconforming inmates’’ to 

paragraph (a)(9), which previously 

referenced only LGBTI inmates. 

In an effort to reduce the costs 

associated with providing training, the 

Department has reduced the required 

frequency of staff ‘‘refresher training’’ 

from annual to every two years, while 

adding a requirement that ‘‘refresher 

information’’ be provided to staff in the 

years in which they do not receive 

training. 


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Comments and Responses 

Comment. Most agency commenters 

responded positively to the staff training 

standards, with some stating that that 

they were already in compliance. A 

number of agency commenters 

identified concerns with the cost of 

development and the frequency of 

required training. Other commenters 

expressed concern specifically with 

regard to the costs associated with 

providing training on effective 

communication with LGBTI inmates. 

Response. The Department’s National 

Resource Center for the Elimination of 

Prison Rape intends to develop training 

tools for use by all types of correctional 

agencies. Therefore, costs for training 

development should not be 

burdensome, and agencies should be 

able to integrate this training into their 

training protocols in a cost-effective 

manner. In response to comments 

regarding the frequency of refresher 

training, the Department modified the 

requirement so that agencies need 

provide such training only every two 

years, which will reduce the cost of 

such training. However, the Department 

notes that such refresher training is 

quite valuable: In addition to helping 

ensure that staff know their 

responsibilities and agency policies, the 

periodic repetition of this training will 

foster the development of an agency and 

facility culture that prioritizes efforts to 

combat sexual abuse. 

Comment. Advocate and former 

inmate commenters requested increased 

and specific training for staff on 

effective and professional 

communication with all inmates, and 

specifically with LGBTI and gender 

nonconforming inmates. 

Response. The final standard requires 

staff to receive training in effective and 

professional training with inmates in 

general, and specifically with respect to 

LGBTI and gender nonconforming 

inmates. The Department does not 

believe that the standard itself need 

provide greater detail regarding the 

precise contours of such training. 

Rather, the Department expects that 

agencies will learn from each other and 

will adapt the Resource Center’s 

training materials as needed. 

Comment. Some commenters 

recommended that the standard require 

training of all employees rather than, as 

in the proposed standard, only 

employees who may have contact with 

inmates. 

Response. While agencies are free to 

train all employees, the Department 

reaffirms its determination that it would 

not be appropriate for the standard to 

require agencies to train employees who 

have no documentable inmate contact. 

Comment. Some commenters 

requested that training be expanded to 

include sexual harassment in addition 

to sexual abuse. 

Response. The Department has added 

sexual harassment to certain training 

requirements, where particularly 

relevant. Specifically, the final standard 

requires training on inmates’ right to be 

free from retaliation for reporting sexual 

harassment, the dynamics of sexual 

harassment in confinement, and the 

common reactions of sexual abuse and 

sexual harassment victims. Adding 

sexual harassment to these training 

categories, which in the proposed 

standard referenced only sexual abuse, 

is unlikely to increase costs and may 

help combat what is often a precursor to 

sexual abuse. 

Comment. An advocate commenter 

recommended that staff receive training 

on how histories of sexual abuse and 

domestic violence affect women. 

Additionally, one agency commenter 

suggested that all training should be 

‘‘gender informed.’’ Various other 

commenters expressed concern that 

gender-specific training would be 

interpreted to mean that training should 

be tailored solely to the gender of the 

inmates in the employee’s current work 

assignment, which these commenters 

stated could be problematic if the 

employee is later reassigned. Instead, 

they requested that all staff be trained 

on the gender-specific needs of both 

genders with regard to sexual abuse. 

Response. The proposed standard 

already mandated training on these 

topics, by requiring training on the 

dynamics of sexual abuse in 

confinement and the common reactions 

of sexual abuse victims, and by 

requiring that training be tailored to the 

gender of the inmates at the employee’s 

facility. The final standard retains these 

requirements, and clarifies the last 

provision by requiring that staff 

transferring between gender-specific 

facilities receive gender-appropriate 

training. Requiring gender-specific 

training is unlikely to complicate 

employee transfers; it should not prove 

burdensome for an employee 

transferring from a male facility to a 

female facility, or vice versa, to undergo 

a training module related to the needs 

of the population at the staff member’s 

new facility. 

Comment. Some advocate 

commenters recommended that agencies 

be required to use the incident review 

process to make adjustments to training 

curriculums. 

Response. While the Department 

agrees that incident reviews may be 

instructive as to training needs, it does 

not believe it is necessary to mandate 

such a connection. Instead, the 

Department leaves the issue to the 

discretion of agency officials. 

Comment. A rape crisis center 

recommended that agencies partner 

with local rape crisis centers to provide 

the most current training materials 

regarding sexual abuse. 

Response. The Department 

encourages such linkages, but declines 

to mandate them. Such a mandate could 

be difficult for certain agencies to 

comply with, depending upon the 

availability and interest of local rape 

crisis centers. 

Comment. Several advocacy groups 

proposed requiring that staff be trained 

in State mandatory reporting laws. 

Response. The Department agrees, 

and has added a requirement in 

§§ 115.31(a)(10), 115.131(a), and 

115.231(a)(10) that staff be trained in 

how to comply with relevant laws 

relating to mandatory reporting of 

sexual abuse to outside authorities. The 

Department has modified the analogous 

requirement under § 115.331(a)(10) for 

consistency. Jurisdictions must 

determine their responsibilities under 

applicable laws and train staff 

accordingly. 

Comment. Many commenters 

expressed concern that the proposed 

standard for lockups specified a smaller 

set of training topics than the proposed 

standards for other categories of 

facilities. 

Response. The final standard expands 

the training requirements for lockups, 

adding requirements that training be 

provided on the agency’s zero-tolerance 

policy; detainees’ right to be free from 

sexual abuse and sexual harassment; the 

dynamics of sexual abuse and 

harassment in confinement settings, 

including which detainees are most 

vulnerable in lockup settings; the right 

of detainees and employees to be free 

from retaliation for reporting sexual 

abuse or harassment; how to detect and 

respond to signs of threatened and 

actual abuse; and how to comply with 

relevant laws related to mandatory 

reporting of sexual abuse to outside 

authorities. 

Comment. Juvenile justice agencies 

and juvenile advocacy groups 

recommended that the final standard 

require staff training specific to age of 

consent laws and how to distinguish 

between consensual and abusive sexual 

contact between residents. 

Response. The Department recognizes 

that juveniles may have sexual 

development issues that are distinct 

from adult behaviors. Accordingly, the 

final standard includes these training 


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topics in § 115.331(a)(7) and (11). 

Juvenile facilities will need to identify 

applicable State laws regarding age of 

consent and train staff accordingly. 

Comment. A significant number of 

commenters requested the inclusion of 

staff training in adolescent 

development, behavioral manifestations 

of trauma, the particular needs and 

vulnerabilities of juveniles, sexual 

health, sexual development, healthy 

staff-youth relationships, and other 

topics. 

Response. Many of these topics are 

covered in the final standard, which 

requires training on, among other topics, 

the dynamics of sexual abuse and sexual 

harassment in juvenile facilities, the 

common reactions of juvenile victims of 

sexual abuse and sexual harassment, 

how to detect and respond to signs of 

threatened and actual sexual abuse and 

how to distinguish between consensual 

sexual contact and sexual abuse 

between residents, and how to avoid 

inappropriate relationships with 

residents. While staff may benefit from 

training on sexual health and sexual 

development, such training is not 

essential to combating sexual abuse in 

juvenile facilities. 

Comment. Some commenters 

recommended that the agencies be 

required to train all employees within 

one year, rather than 90 days, upon 

enactment of the final standards. 

Response. The Department believes 

that one year is a suitable amount of 

time, in consideration of the wide 

variety in facility sizes, population, and 

resources. 

Comment. Some commenters 

criticized the Department for not 

including the NPREC’s recommended 

supplemental immigration standard ID– 

2, which would require additional 

training for employees at facilities that 

hold immigration detainees. These 

commenters requested that the final 

standards require specific training 

regarding cultural sensitivity and issues 

unique to immigration detainees. 

Response. The Department recognizes 

that State and local facilities often 

confine very diverse populations, as do 

BOP facilities, even if they do not hold 

immigration detainees. The Department 

believes that the final standard requires 

training that is appropriate and 

responsive to this diversity. By 

mandating that agencies train their 

employees, for example, on how to 

detect and respond to signs of 

threatened and actual sexual abuse and 

to communicate effectively and 

professionally with inmates, the 

standard implicitly contemplates 

training to account for any relevant 

linguistic, ethnic, or cultural 

differences. Because the requirement is 

broad and inclusive, the Department 

concludes that it is not necessary to 

require additional training regarding 

cultural sensitivity to particular 

populations. Instead, the Department 

leaves the issue to the discretion of 

agency officials. 

Volunteer and Contractor Training 

(§§ 115.32, 115.132, 115.232, 115.332) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule mandated that all 

volunteers and contractors who have 

contact with inmates be trained on their 

responsibilities under the agency’s 

sexual abuse and prevention, detection, 

and response policies and procedures, 

in recognition of the fact that 

contractors and volunteers often interact 

with inmates on a regular, sometimes 

daily, basis. The level and type of 

training provided to volunteers and 

contractors would be based on the 

services they provide and level of 

contact they have with inmates; at the 

very least, all volunteers and contractors 

who have contact with inmates would 

be notified of the agency’s zerotolerance policy regarding sexual abuse 

and sexual harassment and informed 

how to report such incidents. 

With regard to lockups, the proposed 

standards mandated, in § 115.132, that 

attorneys, contractors, and any inmates 

who work in the lockup must be 

informed of the agency’s zero-tolerance 

policy regarding sexual abuse. (As noted 

above, § 115.131 governs training of 

lockup volunteers.) 

Changes in Final Rule 

The final standard adds sexual 

harassment to the scope of training for 

volunteers and contractors. For lockups, 

the final standard removes attorneys 

from the scope of persons to be notified 

of the agency’s zero-tolerance policy. 

The proposed standard did not require 

such notification of attorneys in any 

other type of facility, and upon 

reconsideration the Department 

concludes that the purposes of 

notification are not served by requiring 

notification of attorneys in lockups. 

Comments and Responses 

Comment. Commenters supported 

training for volunteers; some requested 

greater specificity in the categories of 

training required. 

Response. The Department believes 

that the training categories included in 

the final standard are sufficient for 

agencies to identify training as 

appropriate for each type of volunteer. 

Inmate Education (§§ 115.33, 115.233, 

115.333) 

Summary of Proposed Rule 

The proposed standard required that 

information about combating sexual 

abuse be provided to individuals in 

custody upon intake and that 

comprehensive education be provided 

within 30 days of intake in person or 

through video. In addition, the proposed 

standard required that agencies ensure 

that key information is continually and 

readily available or visible to inmates 

through posters, inmate handbooks, or 

other written formats. The proposed 

standard required annual refresher 

information, except for community 

confinement facilities, which were 

required to provide refresher 

information only when a resident is 

transferred to a different facility. 

Changes in Final Rule 

The final standard replaces the 

requirement that inmates receive annual 

refresher information with a 

requirement that inmates receive 

additional education upon transfer to a 

different facility to the extent that the 

policies and procedures of the inmate’s 

new facility differ from those of the 

previous facility. In addition, juvenile 

facilities are now required to provide 

comprehensive education within 10 

days of intake, rather than 30 days, 

which remains the timeframe for other 

facilities. 

Comments and Responses 

Comment. Jail agency commenters 

were most critical of the requirement for 

inmate education, indicating that the 

training of a population with rapid 

turnover was difficult to deliver and 

document. Jail agency commenters also 

criticized the requirement to provide 

inmate education during the intake 

process; some noted that jail booking 

processes were not equivalent to intake 

in prisons, because jail inmates are more 

likely to be suffering from increased 

stress, to be less stable emotionally, and 

to be under the influence of drugs or 

alcohol at the time of intake. These 

commenters also remarked that smaller 

jails are not equipped to provide inmate 

education. 

Response. The Department recognizes 

that jails have a unique population and 

rapid turnover rate. The final standard 

clarifies that information can be 

provided at intake through a handout or 

other written material. The 

documentation requirement has not 

been changed, as this can be easily 

added to an intake/admission checklist 

or other form of documentation. Indeed, 


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several agency commenters, including 

jails, stated that they already do so. 

Comment. Agency commenters 

criticized the yearly refresher 

requirement as unwieldy, citing the 

difficulty of delivery, documentation, 

and tracking of this activity. 

Response. The Department has 

removed the annual refresher 

requirement, substituting language 

requiring that inmates receive education 

upon transfer between facilities to the 

extent that the policies and procedures 

differ. This revision is better tailored to 

the goal of ensuring that inmates are 

always aware of relevant procedures, 

consistent with the requirement in 

§ 115.33(f) that agencies ensure that key 

information is continuously and readily 

available or visible to inmates through 

posters, inmate handbooks, or other 

written formats. 

Comment. One former inmate stated 

that inmates do not take video 

education seriously. The commenter 

recommended that inmate training be 

tailored to the type of inmate, including 

separate trainings for first-time inmates, 

who may need more information than is 

currently provided. 

Response. The Department 

encourages agencies to offer in-person 

education and tailored trainings to the 

extent that resources allow, but 

concludes that the standard need not 

mandate either in order to serve the 

purpose of educating inmates. The 

National Resource Center for the 

Elimination of Prison Rape intends to 

develop training tools for use by all 

types of correctional agencies and may 

be able to provide such tailoring. 

Comment. Juvenile justice advocates 

criticized as too long the 30-day 

timeframe in § 115.333(b) for providing 

comprehensive education regarding 

sexual abuse and harassment in juvenile 

facilities. 

Response. The Department agrees, 

and has shortened the timeframe for 

comprehensive education in juvenile 

facilities to ‘‘within 10 days of intake.’’ 

The Department notes that § 115.333(a) 

separately requires that residents 

receive information upon intake 

explaining the agency’s zero-tolerance 

policy regarding sexual abuse and 

sexual harassment and how to report 

incidents or suspicions of sexual abuse 

or sexual harassment. 

Comment. Some commenters 

requested inclusion of a lengthy list of 

additional topics for juveniles, such as 

basic sexual education, sexual anatomy, 

sexual orientation, and gender roles. 

Response. While juvenile residents 

may benefit from learning about such 

topics, these topics appear to be better 

suited for inclusion in a facility’s school 

curriculum rather than in a set of 

mandated topics aimed at combating 

sexual abuse. 

Comment. Some advocate 

commenters requested that the 

Department mandate ‘‘peer-to-peer 

education’’ for inmates. 

Response. The Department recognizes 

that some correctional systems, 

including the California Department of 

Corrections and Rehabilitation, have 

instituted pilot peer-to-peer education 

programs. While the Department 

encourages further development of such 

programs, it believes that at this point 

in time the nationwide imposition of 

such a requirement would be too 

resource-intensive. 

Comment. Some commenters 

proposed that the Department include 

the NPREC’s recommended 

supplemental immigration standard ID– 

3, which would require that education 

regarding sexual abuse be culturally 

appropriate and given to immigration 

detainees separately from information 

regarding their immigration cases. 

Response. The Department believes 

that the final standard is sufficient to 

address concerns that immigration 

detainees in State, local, and BOP 

facilities receive meaningful education 

regarding combating sexual abuse. The 

final standard requires that education be 

accessible to all inmates, including 

those who do not speak English, and 

that educational materials be 

continuously and readily available to 

inmates regardless of their immigration 

status. The Department believes that 

facilities need not be required to tailor 

such education to the culture of the 

detainees, or deliver it separately from 

case-related information, in order to 

ensure that it is meaningful. 

Comment. Several commenters 

suggested that agencies be required to 

distribute an ICE Detainee Handbook, as 

recommended by the NPREC in its 

supplemental immigration standard 

ID–4. 

Response. The final rule does not 

include this change. The NPREC 

recommended that the handbook 

include information regarding the 

agency’s sexual abuse policies, as well 

as information regarding how to contact 

community services organizations, 

consular officials, and DHS officials. 

These issues are already addressed in 

this standard as well as in the final 

standards on Inmate Reporting 

(§§ 115.51, 115.151, 115.251, 115.351) 

and Access to Outside Confidential 

Support Services (§§ 115.53, 115.253, 

115.353), which collectively provide 

appropriate guidance to State, local, and 

BOP facilities that hold immigration 

detainees. 

Specialized Training: Investigations 

(§§ 115.34, 115.134, 115.234, 115.334) 

Summary of Proposed Rule 

The proposed standard required that 

agencies that conduct their own sexual 

abuse investigations provide specialized 

training for their investigators in 

conducting such investigations in 

confinement settings, in addition to the 

general training required for all 

employees, and that any State entity or 

Department of Justice component that 

investigates sexual abuse in 

confinement settings do the same. 

Changes in Final Rule 

No changes have been made. 

Comments and Responses 

Comment. Advocate commenters 

generally supported revising the 

standard to require training on 

distinguishing between abusive and 

consensual sexual contact. Some 

advocates identified this training as 

essential to determining whether what 

may appear to be consensual activity is 

in fact coercive, while others expressed 

an opposite concern: That too many 

incidents would be considered abusive 

unless investigators were properly 

trained. 

Response. While not specifically 

mentioned, this topic should be 

considered part of the relevant training 

in conducting sexual abuse 

investigations in confinement settings as 

mandated by § 115.34(a). The same 

paragraph requires that investigators 

receive the general training provided to 

all inmates pursuant to § 115.31, which 

includes training on the dynamics of 

sexual abuse in confinement. 

Additionally, with regard to juvenile 

facilities, § 115.331 specifically 

mandates training in how to distinguish 

between consensual sexual contact and 

sexual abuse between residents. 

The question of whether sexual 

contact was consensual is a threshold 

determination in investigating any 

allegation of sexual abuse between 

inmates. The investigator is unlikely to 

have observed direct contact between 

the victim and alleged abuser, but will 

need to make this determination based 

on interviews and the evidence 

collected. The final standard requires 

investigators to have specialized 

training in conducting sexual abuse 

investigations in confinement settings, 

including training on techniques for 

interviewing sexual abuse victims and 

the evidence required to substantiate a 

case. Such training will help enable 

investigators to assess whether sexual 

contact was abusive. The National 

Resource Center for the Elimination of 


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Prison Rape will develop training 

modules that will assist the provision of 

such specialized training to 

investigators. 

Comment. Advocate commenters also 

requested a requirement that 

investigators receive specialized 

instruction in accessing LEP resources. 

Response. Sections 115.16, 115.116, 

115.216 and 115.316 address LEP 

inmates and, as revised, require equal 

access to all aspects of efforts to prevent, 

detect, and respond to sexual abuse and 

sexual harassment for inmates who are 

LEP. The Department has not specified 

within individual standards how 

agencies are to implement this standard, 

preferring to leave it to agency 

discretion. 

Specialized Training: Medical and 

Mental Health Care (§§ 115.35, 115.235, 

115.335) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required specialized 

training, and documentation thereof, for 

all medical staff employed by the 

agency or facility. The standard 

exempted lockups, which usually do 

not employ or contract for medical staff. 

The proposed standard also required 

that any agency medical staff who 

conduct forensic evaluations receive 

appropriate training. 

Changes in Final Rule 

The final standard clarifies that 

medical and mental health care 

practitioners shall also receive the 

training mandated for employees under 

§ 115.31 or for contractors and 

volunteers under § 115.32, depending 

upon the practitioner’s status at the 

agency. The final standard also adds a 

requirement that medical staff receive 

training in how to detect, respond to, 

and report sexual harassment. 

Comments and Responses 

Comment. Many comments regarding 

paragraph (b) of the proposed standard, 

which required that any agency medical 

staff who conduct forensic evaluations 

receive appropriate training, appeared 

to misunderstand the intent of this 

requirement. Agency commenters 

expressed concern about the potential 

expense of providing advanced forensic 

training, whereas advocate commenters 

criticized the notion that agency 

medical staff would conduct forensic 

examinations, and seemed to assume 

that any training provided to them 

would be inadequate. 

Response. Paragraph (b) is meant to 

direct agencies to obtain appropriate 

and proper training for in-house 

medical staff if they decide to perform 

forensic examinations on-site. This 

direction is not intended to encourage 

agencies to create in-house forensic 

programs, but rather to call attention to 

the specialized training required to 

perform adequate examinations. The 

Department recommends that on-site 

medical staff conducting forensic 

examinations meet or exceed the 

training guidelines found in the 

Department’s National Training 

Standards for Sexual Assault Medical 

Forensic Examiners. 

Comment. Advocate commenters 

suggested that medical and mental 

health care practitioners should receive 

the same training as all other staff. 

Response. The Department agrees, 

and has added language accordingly. 

Comment. One agency commenter 

stated that specialized training for 

medical and mental health contractors 

would be costly and burdensome. 

Response. The Department does not 

find this comment persuasive. Many 

medical and mental health contractors 

will already have such training, in 

which case the agency need not 

supplement it (beyond the standard 

training for staff and contractors). To the 

extent medical and mental health 

contractors do not have such training, it 

is essential that they receive it. The 

National Resource Center for the 

Elimination of Prison Rape is able to 

develop training modules that will 

assist the provision of such training. 

Screening for Risk of Sexual 

Victimization and Abusiveness 

(§§ 115.41, 115.141 115.241, 115.341) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that prisons, 

jails, and community confinement 

facilities screen inmates during intake 

and during an initial classification 

process for risk of being sexually abused 

by other inmates or being sexually 

abusive toward other inmates. The 

standard required that such screening be 

conducted using an objective screening 

instrument, taking into account a list of 

enumerated factors, and mandated that 

blank copies of the screening instrument 

be made available to the public upon 

request, 

The proposed standard further 

required that the screening be 

conducted within 30 days of intake, and 

required re-screening when warranted. 

The standard prohibited discipline of 

inmates who refuse to answer specific 

questions during the screening process, 

and required protection of sensitive 

inmate information. 

With regard to juveniles, the proposed 

standard did not include a timeframe, 

except to state that the facility should 

attempt to ascertain such information 

during intake and periodically 

throughout the resident’s confinement. 

The proposed standard did not 

include a screening requirement for 

lockups. 

Changes in Final Rule 

Rather than require a screening during 

intake and again during an initial 

classification process, the final standard 

requires an initial intake screening to 

occur ordinarily within 72 hours of 

intake in prisons, jails, and community 

confinement facilities, and requires that 

the facility reassess the inmate’s risk of 

victimization or abusiveness within a 

set time period, not to exceed 30 days 

from the inmate’s arrival at the facility, 

based upon any additional, relevant 

information received by the facility 

subsequent to the intake screening. For 

juvenile facilities, the standard requires 

the initial screening to occur within 72 

hours. 

In the list of factors to consider, the 

requirement to assess whether the 

inmate is LGBTI has been revised by 

adding consideration of whether the 

inmate would be perceived to be so, and 

whether the inmate is or would be 

perceived to be ‘‘gender 

nonconforming,’’ which is defined in 

§ 115.5 as ‘‘a person whose appearance 

or manner does not conform to 

traditional societal gender 

expectations.’’ 

The final standard eliminates the 

requirement that a facility’s screening 

instrument be made publicly available, 

and clarifies that the prohibition on 

disciplining inmates who refuse to 

answer screening questions applies only 

to specific sensitive questions required 

by the standard. 

For lockups, the final standard adds 

an abbreviated risk screening process for 

facilities that do not hold detainees 

overnight, and a more extensive risk 

screening process for detainees in 

lockups that do hold inmates overnight. 

Comments and Responses 

Comment. Advocates and correctional 

agencies alike expressed concern over 

the requirement in the proposed 

standard that the initial classification 

occur within 30 days of the inmate’s 

confinement. Advocates feared that 

allowing facilities up to 30 days to 

complete an initial classification would 

place many inmates at unnecessarily 

high risk of abuse for an extended 

period of time. Advocates preferred that 

information be gathered during the 

intake process to the extent possible, 


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and expressed the view that much of the 

required information should be readily 

available. 

Agency commenters expressed the 

concern slightly differently, noting that 

a large percentage of jail inmates are 

released within 30 days, and thus 30 

days was too long to allow an inmate to 

wait until an initial classification. Some 

jail commenters, including the 

American Jail Association, also 

expressed concern about conducting 

screening at intake, when inmates are 

often under the influence or under great 

stress. In addition, these commenters 

stated that a high percentage of those 

arrested are released directly from the 

‘‘booking floor’’ and suggested that a jail 

intake screening should look similar to 

those conducted at lockup facilities 

until a determination has been made 

that the arrestee will not be released. 

The National Sheriffs Association, plus 

several State sheriffs’ associations, 

commented that the standard in the 

proposed rule would be difficult to 

implement in a jail. Several commenters 

suggested that jail booking operations 

are more similar to processes in lockup 

facilities than to prison intake. 

Response. Upon reconsideration, 

including a review of comments 

submitted in response to NPRM 

Question 22, which asked whether the 

final rule should provide greater 

guidance regarding the required scope 

of the intake screening, the Department 

has decided to make significant changes 

to this standard. 

In order to protect all inmates 

regardless of when they arrive at a 

facility or where they are located within 

the facility, at least minimal information 

must be collected quickly to inform 

decisions about where the arrestee 

should be held awaiting the intake 

procedure and where he or she will be 

housed initially. 

The Department recognizes that some 

jail inmates spend limited time in the 

booking area, at a time when certain 

information needed for appropriate 

classification may not be immediately 

available. However, the brevity of the 

booking process and the possible lack of 

background information do not obviate 

the need to identify potentially 

vulnerable or abusive individuals and 

ensure they do not become victims or 

perpetrators. The final standard 

addresses jails’ concerns by making a 

clearer distinction between the initial 

process of collecting risk information 

upon intake to make provisional 

decisions about protection and 

placement, and the subsequent 

reassessment of the inmate’s risk after 

receiving fuller information. 

The final standard uses the term 

‘‘intake screening’’ to describe the 

collecting of information from a person 

brought to a facility. Facilities should be 

able to readily obtain the information 

referenced in the enumerated criteria, 

and this intake screening can and 

should occur within 72 hours of the 

person’s arrival at the facility. Facilities 

are strongly encouraged to conduct the 

intake screening sooner, to the extent 

circumstances permit. The ten criteria 

enumerated in the standard usually will 

be available through staff observation, 

direct questioning, or records checks 

within the 72-hour timeframe. 

Inmates who are unable to post a 

bond or are held subsequent to other 

warrants or court orders usually remain 

in custody pending a court appearance. 

The final standard requires that inmates 

who remain in custody undergo a more 

extensive classification process. Within 

a set period of time, not to exceed 30 

days, the facility is to reassess the 

inmate’s risk of victimization or 

abusiveness based upon any additional, 

relevant information received by the 

facility since the intake screening. This 

requirement recognizes that information 

relevant to the risk and classification 

needs will become available as staff 

interview, assess, and observe the 

inmate, and as the facility receives 

information from other agencies and 

sources. 

These revisions take into account the 

differences between—and among— 

prisons and jails, as well as the fact that 

information relevant to a more 

comprehensive inmate classification 

may not be immediately accessible. The 

Department recognizes that the time 

limits in this standard imply that some 

inmates will be screened twice, some 

once, and some—hopefully very few— 

not at all. These variations are inevitable 

when crafting a system with sufficient 

structure and flexibility to ensure that 

classifications are both effective and 

efficient. 

Comment. Some jail commenters 

noted that certain inmates are ‘‘frequent 

flyers’’ who rotate in and out of the jail 

on a regular basis. The commenters 

stated that an inmate screening would 

be unnecessary for such inmates, given 

that the jail would already possess a 

significant amount of information from 

their prior admissions. 

Response. A facility is free to rely on 

information previously gathered with 

regard to a returning inmate; however, 

the facility should ensure that its 

assessment captures any changes in risk 

factors that may have occurred 

subsequent to the facility’s prior 

gathering of information regarding that 

inmate. 

Comment. Some agency commenters 

recommended that the final standard 

defer to State or local laws regarding the 

screening of inmates. 

Response. The final standard provides 

a set of requirements that can be 

implemented in a manner consistent 

with State and local laws; to defer 

entirely to such laws would abdicate the 

Department’s responsibility to ensure 

that the standard is satisfied only by 

screening procedures that provide 

sufficient protection against abuse. 

Comment. Some advocacy 

commenters recommended that the 

standard add gender nonconformance to 

the list of risk factors, on the ground 

that gender nonconformance gives rise 

to the same risk of victimization as the 

inmate’s internal identification. 

Response. The Department agrees, 

and has made two additions to this 

standard. First, the final standard 

includes consideration of whether the 

inmate is ‘‘gender nonconforming,’’ 

which is defined in § 115.5 as ‘‘a person 

whose appearance or manner does not 

conform to traditional societal gender 

expectations.’’ Second, the standard 

instructs agencies to take into account 

not only whether the inmate is LGBTI, 

but whether the inmate is perceived to 

be so. 

Comment. Some agency commenters 

feared confusion between § 115.41, 

which in the proposed rule required 

that all inmates be screened during the 

intake process and during initial 

classification, and § 115.81, which 

required that inmates be asked about 

prior victimization and abusiveness 

during intake or classification 

screenings. One jail stated that 

implementing the standards as written 

would require the hiring of one 

additional officer per shift, at an 

additional annual cost of $840,000. 

Other agency commenters also 

expressed budget concerns; some stated 

that requiring two separate screenings is 

overly burdensome and that the two 

standards should be combined. 

Response. The Department agrees 

that, as written, the two standards could 

cause confusion, and has amended 

§ 115.81 accordingly. Instead of 

requiring a separate interview to collect 

information about sexual victimization 

and abusiveness, the requirements of 

§ 115.81 are triggered only if the 

screening mandated by § 115.41 

indicates that an inmate has 

experienced prior sexual victimization 

or perpetrated sexual abuse. This 

adjustment should eliminate the need 

for additional staff to conduct separate 

interviews. 

Comment. One agency commenter 

expressed uncertainty over whether the 


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‘‘PREA screening’’ should be 

incorporated into the initial 

classification instrument, and suggested 

that such incorporation could be 

problematic because the agency requires 

inmates to answer questions during its 

classification process, in contravention 

of the proposed standard, which 

provided that ‘‘[i]nmates may not be 

disciplined for refusing to answer 

particular questions or for not disclosing 

complete information.’’ The agency 

therefore recommended that the ‘‘PREA 

screening’’ be separate and distinct from 

the initial classification process. 

Response. This comment indicates 

that the proposed standard was worded 

too broadly and inadvertently caused 

confusion. The intent of the nodiscipline phrase was not to grant 

immunity from discipline for failure to 

cooperate with intake, but rather to 

ensure that inmates who are fearful of 

disclosing sensitive information about 

risk factors are not punished for failing 

to disclose such information. 

Accordingly, the final standard revises 

this language to clarify that it applies 

only to questions about disabilities, 

LGBTI status, gender nonconformance, 

previous sexual victimization, and the 

inmate’s self-perception of 

vulnerability. 

Comment. A small number of State 

correctional agencies expressed concern 

that staffing levels may need to increase 

to manage additional intake interviews. 

Response. As noted above, the 

clarification of the distinction between 

intake screening and classification 

should negate the need for additional 

classification staff. 

Comment. A few agency commenters 

also expressed concerns that making 

blank copies of their screening 

instruments available to the public 

could compromise their operations; one 

suggested that if the blank forms were 

made available, inmates could 

manipulate the information. The 

commenter recommended that the 

standard instead require agencies to 

identify and publicize the general types 

of information collected. 

Response. Upon reconsideration, the 

Department concludes that it is 

unnecessary to require agencies to make 

available blank copies of their screening 

instruments, and has removed this 

requirement from the standard. 

Comment. A State correctional agency 

expressed concern that the screening 

instrument would collect and rely on 

items that have not been validated as 

predictors of risk. The commenter 

recommended that any instrument used 

to classify inmates be validated and that 

funding be provided to develop such an 

instrument and to revalidate the 

instrument after three years of use. 

Response. To account for the range of 

agency types and available resources, 

the Department has chosen not to 

include a validation requirement. Preimplementation validation and followup validation of risk screening 

instruments is a commendable practice 

and, in State systems and other large 

jurisdictions, comports with generally 

accepted professional standards. 

However, some agencies, such as small 

county jails, may lack sufficient 

resources to engage in a comprehensive 

validation study. Because risk factors 

may have varying degrees of predictive 

correlation in different jurisdictions, 

small agencies may need to rely upon 

reasonable assumptions in developing 

an objective screening instrument and 

classification process. Although 

research into risk factors for 

institutional sexual victimization and 

abusiveness remains ongoing, the 

factors listed in the standard have 

sufficient bearing upon the risk of 

victimization or abusiveness to warrant 

their use when assessing inmates. A 

validation process, where used, can 

assist in determining the weight of each 

identified factor for purposes of 

informing the housing classification 

process. 

Comment. Some advocates expressed 

concern that the proposed standard 

would allow intake and security staff to 

ask sensitive questions of residents 

without requiring the appropriate level 

of training to conduct such interviews. 

Several commenters urged the 

Department to adopt the NPREC’s 

recommendation that only medical or 

mental health providers be allowed to 

ask such questions, at least in a facility 

where such providers work on-site. One 

agency remarked that its screening 

instrument was developed by a mental 

health professional, and suggested that 

an accurate determination of a resident’s 

level of emotional and cognitive 

development, intellectual capabilities, 

and self-perception of vulnerability 

would not be possible without the 

involvement of such professionals. 

Response. The Department remains of 

the view that appropriately trained 

intake staff may be competent to ask 

residents sensitive questions in a 

professional and effective manner, and 

thus the final standard leaves to agency 

discretion how to use staff resources 

most effectively at intake. The 

Department expects that the training 

required in these standards will benefit 

intake staff who are tasked with such 

responsibilities. 

Comment. One juvenile detention 

association expressed concern over the 

lack of distinction between short-term 

juvenile detention facilities and longterm juvenile correctional facilities. The 

commenter noted that in detention 

settings, the facility may have no 

information about the inmate other than 

a court order. The commenter warned 

that asking questions about sexual 

victimization or abusiveness upon the 

resident’s arrival at the facility could be 

viewed as intrusive, could produce 

anxiety, and could ‘‘set the wrong tone 

for the stay in detention.’’ 

Response. The Department recognizes 

that an agency will not always be able 

to ascertain information about each of 

the enumerated factors. For example, 

the resident may choose not to answer 

certain screening questions, or the 

facility may not otherwise have access 

to certain criteria. The standard 

accounts for these considerations by 

making clear that the agency shall only 

‘‘attempt to ascertain’’ the information. 

The Department expects that an agency 

will make necessary and reasonable 

efforts to obtain information. For 

example, an agency can work 

cooperatively with law enforcement and 

social service agencies to obtain 

information about the resident. 

The Department disagrees with the 

commenter that it is inappropriate to 

inquire about the resident’s prior sexual 

victimization or abusiveness. First, this 

information is important in informing 

housing and programming decisions 

with the goal of keeping residents safe 

from abuse. Second, as discussed above, 

appropriately trained staff can make the 

inquiries in a professional and sensitive 

manner. Third, the standard makes clear 

that residents are not required to 

provide this information and may not be 

punished for refusing to provide this 

information. 

Comment. The same commenter 

indicated that unless the screening 

instrument is developed by a mental 

health professional, it will be difficult to 

assess accurately the resident’s level of 

emotional and cognitive development, 

intellectual capabilities, and the 

resident’s own perception of 

vulnerability, and that the development 

of such a screening instrument could be 

expensive. 

Response. The Department 

encourages agencies to develop their 

risk screening instrument and process 

utilizing a multi-disciplinary team, 

including input from an appropriate 

mental health professional. Because 

agencies and facilities typically employ 

or contract with mental health 

professionals, the Department does not 

believe that such input would be cost 

prohibitive. In addition, the National 

Resource Center for the Elimination of 


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Prison Rape and other agencies and 

technical assistance providers can assist 

with the development of a riskscreening program that may be 

applicable or adaptable across systems. 

Comment. NPRM Question 21 asked 

whether, given that lockup detention is 

usually measured in hours, and that 

lockups often have limited placement 

options, the final standard should 

mandate rudimentary screening 

requirements for lockups. Advocates 

strongly favored screening 

requirements, and suggested that many 

police lockups already employ basic 

measures aimed at protecting inmates 

from sexual abuse. Noting that a full 

classification process may not be 

necessary, advocates recommended that 

lockups be required to collect 

information similar to what the 

proposed standard required longer-term 

facilities to gather, especially if lockups 

hold multiple inmates in the same cell. 

Commenters also recommended that 

lockups conduct a basic screening to 

ensure that highly vulnerable inmates 

are not left alone with likely 

perpetrators even for short periods of 

time. 

Advocates proposed adding a list of 

known indicators of vulnerability, 

including mental and physical 

disability, young age, slight build, 

nonviolent history, identification as 

LGBTI, gender nonconforming 

appearance, and prior victimization. 

Some also proposed requiring lockups 

to ask detainees about their own 

perception of vulnerability and to 

provide heightened protection to 

detainees who perceive themselves to be 

vulnerable. 

Few agency commenters responded to 

the question; those that did mostly 

supported requiring lockups to 

administer some type of screening 

instrument or process. Some remarked 

that lockups were so small, and lengths 

of stay so brief, that the standards 

should not mandate a screening, and 

that any such standard should allow 

maximum flexibility. 

Response. The Department has added 

screening requirements for lockup 

facilities, distinguishing between 

lockups that hold detainees for a few 

hours, such as court holding facilities, 

and lockups where individuals may be 

held overnight, such as police stations. 

This revision adds protections for 

lockup detainees while recognizing that 

lockups are situated very differently 

from prisons and jails and often do not 

conduct intake as that term is 

traditionally understood. 

In lockups that are not used to house 

detainees overnight, before placing any 

detainees together in a holding cell, staff 

must consider whether, based on the 

information before them, a detainee may 

be at a high risk of being sexually 

abused and, when appropriate, must 

take necessary steps to mitigate any 

such danger to the detainee. 

In lockups that are utilized to house 

detainees overnight, all detainees must 

be screened to assess their risk of being 

sexually abused by other detainees or 

sexually abusive toward other detainees, 

and all detainees must be asked about 

their own perception of vulnerability. 

The screening process in such lockups 

shall also consider—to the extent that 

the information is available—whether 

the detainee has a mental, physical, or 

developmental disability; the age of the 

detainee; the physical build and 

appearance of the detainee; whether the 

detainee has previously been 

incarcerated; and the nature of the 

detainee’s alleged offense and criminal 

history. In an effort to minimize the 

number of screening requirements in 

lockups, given that there may be no 

privacy to ask individuals screening 

questions, the standard does not 

explicitly include identification as 

LGBTI, gender nonconforming 

appearance, or prior victimization in its 

list of known indicators of vulnerability. 

However, these indicators may be 

ascertainable through other listed 

factors, such as physical build and 

appearance, and the detainee’s own 

perception of risk. 

Use of Screening Information (§§ 115.42, 

115.242, 115.342) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that agencies use 

the risk screening process to inform 

housing, bed, work, education, and 

program assignments with the goal of 

keeping inmates determined to be at risk 

of sexual victimization separate from 

inmates at risk of being sexually 

abusive. The proposed standard 

provided that agencies shall make 

individualized determinations about 

how to ensure the safety of each inmate, 

and required that, in placing 

transgender or intersex inmates, the 

agency consider on a case-by-case basis 

whether a placement would ensure the 

inmate’s health and safety, and whether 

the placement would present 

management or security problems. The 

proposed standard also provided that 

transgender and intersex inmate 

placement be reassessed at least twice 

each year, and that such inmates’ own 

views as to their safety be given serious 

consideration. 

For community confinement facilities, 

the proposed standard generally 

mirrored the standard for prisons and 

jails, but omitted the requirement that 

transgender and intersex residents be 

reassessed twice per year. 

For juvenile facilities, the proposed 

standard required the use of the risk 

screening process and additional 

information in order to determine 

appropriate placement to keep the 

residents safe from sexual abuse. The 

proposed standard also limited the use 

of isolation for purposes of protecting 

residents, and provided that LGBTI 

residents may not be placed in a 

particular housing location based solely 

on such identification. 

The standard in the proposed rule did 

not apply to lockups. 

Changes in Final Rule 

The final standard makes two changes 

applicable to prisons, jails, and 

community confinement facilities. First, 

transgender and intersex inmates must 

be given the opportunity to shower 

separately from other inmates. Second, 

the final standard prohibits placing 

LGBTI inmates in a dedicated unit or 

facility solely on the basis of LGBTI 

identification unless such placement is 

pursuant to a legal requirement for the 

purpose of protecting such inmates. 

The final standard makes multiple 

changes for juvenile facilities. First, to 

avoid duplication and confusion, the 

final standard for juvenile facilities no 

longer enumerates placement factors but 

requires the facility to use the types of 

information obtained pursuant to 

§ 115.341(c) to make housing, bed, 

program, education, and work 

assignments for residents, with the goal 

of keeping all residents safe and free 

from sexual abuse. Second, the final 

standard contains added protections for 

residents who are isolated for purposes 

of protection. During any period of 

isolation, agencies shall not deny 

residents daily large-muscle exercise or 

any legally required educational 

programming or special education 

services. Residents in isolation shall 

receive daily visits from a medical or 

mental health care clinician, and shall 

have access to other programs and work 

opportunities to the extent possible. 

Third, agencies may not consider a 

resident’s LGBTI identification as a 

predictor of likelihood of being sexually 

abusive. Fourth, the final standard 

replaces the requirement that agencies 

make individualized determinations 

about the placement of transgender and 

intersex residents with language 

identical to corresponding language in 

the standard for adult facilities: That 

agencies determine, on a case-by-case 

basis, housing and programming 

assignments for transgender and 


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intersex residents for purposes of 

ensuring the residents’ health and 

safety, as well as any management or 

security concerns, that such placement 

decisions shall be reassessed at least 

twice per year, and that the views of 

transgender and intersex residents 

regarding their own safety be given 

serious consideration. Finally, if a 

resident is isolated for protective 

purposes, the agency shall be required 

to document its justification, and review 

the continued need for isolation at least 

every 30 days. 

Comments and Responses 

Comment. Some agency commenters 

requested definitions of ‘‘transgender’’ 

and ‘‘intersex.’’ 

Response. As noted above, the final 

rule includes definitions of these terms 

in § 115.5. 

Comment. Many advocacy 

commenters urged the inclusion of 

‘‘gender nonconforming’’ and 

‘‘perceived to be’’ LGBTI as screening 

factors. 

Response. As discussed above, the 

Department has made this change. 

Comment. Many advocate 

commenters opposed the omission from 

the proposed standard of the NPREC’s 

recommended ban on assigning inmates 

to particular units based solely on their 

sexual orientation or gender identity. 

Commenters noted that it is impossible 

to state categorically that such units are 

safer and expressed concern that 

occupants might not be afforded 

programs and services equal to those of 

other inmates. Commenters also worried 

that such units could be used to punish 

inmates for their sexual orientation or 

gender identity. 

Several commenters remarked that 

these designated units can be successful 

only in certain circumstances. Some 

asserted that the unit operated by the 

Los Angeles County Jail for gay male 

and transgender inmates, specifically 

mentioned in the discussion of this 

standard in the proposed rule, is the 

exception rather the norm. These 

commenters stated that inmates in this 

unit retain access to substantial 

programming—often more than what is 

available in the general population— 

and that the jail has a sufficiently large 

gay male and transgender population to 

fill multiple wings, thus allowing these 

inmates to be segregated without 

experiencing isolation. The commenters 

suggested that successfully maintaining 

a unit based solely on sexual orientation 

or gender identity requires a 

demonstrated need, sufficient facility 

size and LGBTI inmate population, a 

basic level of cultural competence 

among staff, and an institutional 

commitment to safety and fairness 

toward these populations. 

Many commenters proposed language 

that would allow such units only under 

narrowly defined circumstances, such 

as where placement is based on a 

finding made by a judge or outside 

expert or is pursuant to a consent 

decree, legal settlement, or legal 

judgment—an exception apparently 

designed to encompass the Los Angeles 

County Jail. 

Other commenters supported 

including the NPREC’s recommendation 

that the standard prohibit such units 

entirely; one law professor disputed the 

notion that the Los Angeles County Jail 

was effective at protecting inmates or 

otherwise worthy of emulation. 

Response. Upon reconsideration, the 

Department concludes that agencies 

should retain the option of using 

dedicated facilities, units, or wings to 

house LGBTI inmates. However, the 

Department agrees that to do so carries 

its own risk, and that it should be 

undertaken only in limited contexts. 

Because it would not be feasible for the 

Department to anticipate every case or 

circumstance that might warrant such 

placements, the Department has chosen 

to adopt a final standard that allows use 

of this practice only where the 

dedicated facility, unit, or wing is 

established in connection with a 

consent decree, legal settlement, or legal 

judgment. 

Comment. By contrast, the proposed 

standard did not allow such placements 

in juvenile facilities. One juvenile 

agency expressed concern about this 

prohibition, asserting that it would 

present operational challenges and 

might put residents at risk. 

Response. The Department 

respectfully disagrees with this 

assessment, which was not shared by 

advocacy groups. Despite good 

intentions, the practice of using 

dedicated facilities, units, or wings to 

house LGBTI inmates may result in 

youth being unable to access the same 

privileges and programs as others in 

general population housing, effectively 

punishing youth for their LGBTI status. 

The Department adheres to the 

assessment expressed in the NPRM: 

‘‘Given the small size of the typical 

juvenile facility, it is unlikely that a 

facility would house a large enough 

population of such residents so as to 

enable a fully functioning separate unit, 

as in the Los Angeles County Jail. 

Accordingly, the Department believes 

that the benefit of housing such 

residents separately is likely 

outweighed by the potential for such 

segregation to be perceived as 

punishment or as akin to isolation.’’ 76 

FR 6258. While some LGBTI residents 

may require protective measures, such 

an assessment should occur only after a 

holistic assessment of the risk 

confronting the specific inmate, and 

should not be implemented 

automatically as a matter of facility 

policy. 

Comment. Some advocates 

recommended that the final standard 

ensure that transgender and intersex 

inmates have an opportunity to shower 

separately, owing to the unique risks 

that such inmates face in facilities. 

Response. The final standard adds 

such a requirement. 

Comment. Some commenters 

suggested several additional safeguards 

to protect against excessive use of 

isolation, including reviewing the status 

of a youth in isolation every 24 hours, 

limiting use of isolation to no more than 

72 hours, and ensuring that isolated 

residents are provided access to 

programs and services. 

Response. The Department agrees that 

long periods of isolation have negative 

and, at times, dangerous consequences 

for confined youth. However, in limited 

situations, protective isolation longer 

than 72 hours may be necessary to keep 

youth safe from sexual abuse, especially 

in small facilities with limited housing 

options and programming space. While 

not imposing a specific limit on the 

duration of any such protective 

isolation, the final standard contains a 

number of provisions limiting the use of 

isolation and providing enhanced 

protections for youth when they are 

isolated. First, the final standard 

prohibits the use of protective isolation 

except as a last resort when less 

restrictive measures are inadequate to 

keep them and other residents safe, and 

then only until an alternative housing 

option can be arranged. Second, for any 

such placement, agencies must 

document the need for isolation, and 

reassess its use at least every 30 days. 

In addition to requiring the agency to 

justify the use of isolation and to 

periodically reassess it, this provision 

will provide a mechanism for the PREA 

auditor to examine whether the use of 

isolation is being used appropriately. 

Third, the final standard provides that 

any youth in protective isolation must 

receive daily large-muscle exercise, any 

legally required education and special 

education programming and services, 

and daily visits from medical care or 

mental health care clinicians. In 

addition, agencies must provide isolated 

youth with access to other programming 

to the extent possible. 

Comment. One State juvenile justice 

agency expressed strong concerns about 

proposed standard § 115.342(b), arguing 


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that the specification of information that 

agencies are required to consider 

exceeds PREA’s scope and improperly 

dictates agency placement policy. The 

comment recommended that the 

standard provide only that the risk of 

abuse upon or by a resident be 

considered when making placement 

decisions. 

Response. The risk-screening factors 

enumerated in § 115.341 (and 

incorporated by reference into 

§ 115.342) may yield information that is 

predictive of a resident’s risk of sexual 

victimization or sexual abusiveness. 

Requiring consideration of such factors 

in no way dictates agency placement 

policy; the standard does not require 

that a resident meeting specific 

screening criteria be housed in a 

specific placement. Nor does the 

standard mandate the weight to be 

assigned to any of the enumerated 

factors in making placement or 

classification decisions. Rather, the 

standard provides that the agency shall 

attempt to ascertain specific information 

about the resident, and that the agency 

develop an objective, rather than 

subjective, process for using that 

information with the goal of keeping 

residents safe from sexual abuse. 

Comment. Juvenile justice advocates 

requested that the final standards clarify 

that being LGBTI is a risk factor for 

being victimized by sexual abuse, not 

for committing sexual abuse. 

Response. The Department is not 

aware of any evidence to suggest that 

LGBTI identification or status is a risk 

factor for perpetrating sexual abuse. For 

this reason, and to prevent negative 

stereotypes of such juveniles from 

affecting placement decisions, the final 

standard specifically prohibits 

considering LGBTI identification or 

status as a predictor of sexual 

abusiveness in juvenile facilities. 

Comment. Some advocates criticized 

the Department for failing to adopt 

NPREC supplemental immigration 

standard ID–6, which would require 

immigration detainees to be housed 

separately from other inmates. 

Response. The final standards 

addressing screening (§§ 115.41, 

115.141, 115.241, 115.341) require that 

agencies develop a screening instrument 

that measures risk of sexual 

victimization according to numerous 

criteria, including whether the inmate is 

detained solely for civil immigration 

purposes. The Department believes that 

the requirement that agencies use that 

screening information to make 

individualized determinations regarding 

housing, bed, work, education, and 

program assignments is sufficient to 

protect immigration detainees in State, 

local, and BOP facilities without a 

specific requirement that they be 

housed separately in every instance, 

particularly when weighed against the 

substantial burden that such a mandate 

would impose. 

Protective Custody (§§ 115.43, 115.68, 

115.368) 

Standards in Proposed Rule 

Section 115.43 in the proposed rule 

provided that inmates at high risk of 

sexual victimization, or who are alleged 

to have suffered sexual abuse, may be 

placed in involuntary segregated 

housing only after an assessment of all 

available alternatives has been made— 

and only until an alternative housing 

arrangement can be implemented. The 

proposed standard also specifically 

defined the assessment process, 

specified required documentation, and 

set a presumptive timeframe for 

placement in protective custody. In 

addition, the proposed standard 

provided that, to the extent possible, 

involuntary protective custody should 

not limit access to programming. 

Section 115.66 in the proposed rule 

(now renumbered as § 115.68) provided 

that any use of segregated housing to 

protect an inmate who is alleged to have 

suffered sexual abuse shall be subject to 

the requirements of § 115.43. 

Changes in Final Rule 

The standard contained in the final 

rule clarifies that inmates shall not be 

placed involuntarily in protective 

custody, unless an assessment of 

available alternatives has been made, 

and a determination has been made that 

no other alternative means of separating 

the inmate from the abuser exist. The 

final standard adopts a 24-hour 

timeframe to make this initial 

assessment. 

The final standard also adds a 

requirement that if the facility restricts 

access to programs, privileges, 

education, or work opportunities, it 

must document the opportunities that 

have been limited, the duration of the 

limitation, and the reasons for such 

limitations. 

Finally, the final standard shortens 

the presumptive time limit for 

involuntary protective custody from 90 

days to 30 days, and shortens the 

timeframe for periodic reviews for the 

need for continued separation from 90 

days to 30 days. 

Comments and Responses 

Comment. One advocacy group 

commented that, although the proposed 

standard required programming to be 

provided to inmates in protective 

custody to the extent possible, such 

programming could still be routinely 

denied. The commenter suggested that 

agencies be required to document the 

programming opportunities that have 

been limited, the duration of the 

limitation, and the reasons for the 

limitation. 

Response. The Department agrees that 

a documentation requirement will assist 

in auditing this standard, and would 

provide agencies a formal mechanism to 

use in making programming 

assessments, and has amended the 

standard accordingly. 

Comment. Several commenters 

criticized as too lengthy the 90-day 

presumptive time limit for productive 

custody, as well as the requirement for 

periodic reviews every 90 days. 

Commenters suggested changing both to 

30 days. 

Response. Upon reconsideration, the 

Department concludes that 30 days 

should ordinarily suffice to arrange for 

alternate means of separation from 

likely abusers. In addition, the final 

standard requires that a review be 

provided at least every 30 days 

thereafter, in order to ensure that the 

situation is being actively monitored 

should the initial placement in 

protective custody be extended. 

Comment. A number of inmate, 

advocate, and individual commenters 

indicated that involuntary protective 

custody was, in effect, punitive, because 

inmates subject to this type of 

classification are sometimes isolated or 

otherwise denied essential programming 

and services. These commenters 

suggested that the conditions of 

protective custody housing may deter 

the reporting of sexual abuse or the 

threat of sexual abuse. 

Response. In certain circumstances, 

involuntary protective custody may be 

necessary to keep inmates safe from 

sexual abuse. However, the final 

standard makes clear that this type of 

housing should only be used when, 

pursuant to an administrative 

assessment, no better alternative is 

available. The standard also requires 

that any denial of programming to 

inmates in protective custody be 

documented and justified. 

Comment. A number of advocates 

commented that an inmate’s gender 

identity should not be the sole basis for 

placement of the inmate in involuntary 

protective custody. 

Response. Sections 115.42, 115.242, 

and 115.342 provide that housing 

placement determinations for LGBTI 

inmates shall be made on a ‘‘case-bycase’’ basis. This would preclude 

automatic placement in involuntary 


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protective custody on the basis of 

gender identity. 

Inmate Reporting (§§ 115.51, 115.151, 

115.251, 115.351) 

Summary of Proposed Rule 

In the proposed rule, §§ 115.22(a), 

115.222(a), and 115.322(a) stated that 

agencies should maintain or attempt to 

enter into memoranda of understanding 

or other agreements with an outside 

public entity or office that is able to 

receive and immediately forward inmate 

reports of sexual abuse and sexual 

harassment to agency officials pursuant 

to §§ 115.51, 115.251, or 115.351 unless 

the agency enables inmates to make 

such reports to an internal entity that is 

operationally independent from the 

agency’s chain of command, such as an 

inspector general or ombudsperson who 

reports directly to the agency head. The 

proposed standards also required 

agencies to maintain or attempt to enter 

into memoranda of understanding or 

other agreements with community 

service providers that are able to 

provide inmates with confidential 

emotional support services related to 

sexual abuse. Finally, agencies were 

required to maintain copies of 

agreements or documentation showing 

attempts to enter into agreements. 

Sections 115.51, 115.151, 115.251, 

and 115.351 required agencies to enable 

inmates to privately report sexual abuse 

and sexual harassment and related 

misconduct. Specifically, this standard 

required that agencies provide multiple 

internal ways for inmates to privately 

report sexual abuse and sexual 

harassment, retaliation by other inmates 

or staff for reporting sexual abuse and 

sexual harassment, and staff neglect or 

violation of responsibilities that may 

have contributed to sexual abuse. The 

proposed standard also required that 

agencies make their best efforts to 

provide at least one way for inmates to 

report abuse or harassment to an outside 

governmental entity that is not affiliated 

with the agency or that is operationally 

independent from agency leadership, 

such as an inspector general or 

ombudsperson. 

The proposed standard also mandated 

that agencies establish a method for staff 

to privately report sexual abuse and 

sexual harassment of inmates. 

Finally, the proposed standard 

required that juvenile residents be 

provided access to tools necessary to 

make written reports, whether writing 

implements or computerized reporting. 

Changes in Final Rule 

The final standard requires prisons, 

jails, and juvenile facilities to provide at 

least one way for inmates to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency, and that is able to receive 

and immediately forward inmate reports 

of sexual abuse and sexual harassment 

to agency officials. By contrast, the 

proposed standard required only that 

facilities make their ‘‘best efforts’’ to 

provide such access, and did not allow 

a private entity to serve this function. 

By expanding the outside reporting 

option to include private entities, the 

final standard allows an agency, in its 

discretion, to utilize a private rape crisis 

center or similar community support 

service for these purposes, as 

appropriate. 

The final standard also specifies that 

the outside entity must allow the victim 

to remain anonymous upon request. 

Consistent with these revisions, the 

final standard no longer requires 

agencies to maintain or attempt to enter 

into agreements with an outside public 

entity that is able to receive and 

immediately forward inmate reports of 

sexual abuse. Such a requirement is no 

longer necessary now that agencies are 

required to provide reporting access to 

an outside entity, which may be public 

or private. 

In lockups and community 

confinement facilities, the ‘‘best efforts’’ 

requirement of the proposed standard 

has been replaced with a requirement 

that agencies inform detainees or 

residents of at least one way to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency. 

The standard no longer contemplates 

the use of an internal entity that is 

operationally independent from the 

agency’s chain of command. If the 

agency designates a government office 

to accept reports for the purposes of this 

standard, it must be outside of and 

completely independent from the 

correctional agency. 

Finally, for inmates detained solely 

for civil immigration purposes in jails, 

prisons, and juvenile facilities operated 

by States, localities, and BOP, the final 

standard requires that the facility also 

provide information on how to contact 

relevant consular officials and relevant 

officials at the Department of Homeland 

Security. 

Comments and Responses 

Comment. Section 115.22 appeared to 

engender some confusion because it 

covered agreements for the purpose of 

outside reporting as well as agreements 

for the purpose of providing support 

services for victims. In addition, 

commenters were unclear as to how 

§ 115.22 interacted with §§ 115.51 and 

115.53, given the topical overlap. 

Response. For clarity, the subject 

matter covered by proposed standard 

§ 115.22 has been moved into §§ 115.51 

and 115.53, as appropriate. 

Comment. The proposed standards 

evoked a strong response from current 

and former inmates, who expressed the 

view that an outside reporting 

mechanism is essential to encourage 

reporting incidents of sexual abuse, 

because inmates often do not feel 

comfortable reporting to staff and may 

fear retaliation, especially when the 

abuser is a staff member. Thus, inmates 

may be reluctant to trust any internal 

entity, even if it is ‘‘operationally 

independent’’ from the agency’s chain 

of command. Various advocacy groups 

and rape crisis centers, as well as a 

United States Senator, agreed with this 

reasoning. Many stated that some 

inmates are unlikely to understand or 

trust the distinction between an 

operationally independent entity, 

including an internal inspector general’s 

office, and other agency offices. These 

commenters expressed the view that a 

reporting entity that answers to the 

same agency head could be perceived as 

part of the system that failed to protect 

the inmate in the first place. Many 

inmates commented that reports to 

allegedly independent entities, such as 

an ombudsperson, were routinely 

ignored. 

Some correctional agencies argued 

that requiring an outside reporting 

mechanism would constitute an 

unfunded mandate. Commenters stated 

that local support services may not be 

available to county jails in rural areas, 

and that staffing a hotline can be 

expensive. They also asserted that BJS 

data demonstrate that sexual abuse is 

less likely in rural jails, and that they 

would be paying for a service to respond 

to an event that rarely occurs. One 

correctional agency stated that an 

internal hotline to a facility investigator 

should be sufficient given 

improvements in staff training and 

increased focus on combating sexual 

abuse within facilities. 

Response. The final standard requires 

all prisons, jails, and juvenile facilities 

to provide at least one way for inmates 

to report abuse or harassment to a 

public or private entity or office that is 

not part of the agency. The standard no 

longer allows compliance by relying on 

an internal entity that is operationally 

independent from the agency’s chain of 

command. However, an agency may 

designate a government office that is 

outside of and completely independent 

from the correctional agency. For 

example, if a State has an inspector 


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general’s office that sits outside of, and 

does not report to, the State correctional 

agency, the agency may satisfy this 

standard by designating that office as 

the external reporting entity. An 

inspector general’s office within the 

agency would not qualify under these 

standards, even if it is ‘‘operationally 

independent’’ from the facility 

administration. While this change may 

increase the burden on some agencies, 

inmates must feel comfortable reporting 

any incident of sexual abuse and may be 

loath to do so if their only option is 

reporting to an entity they view as part 

of the agency in which they suffered the 

abuse. 

The Department does not believe that 

this will impose a significant cost 

burden. The final standard does not 

require a hotline or a formal agreement 

between the facility and any specific 

outside entity. Rather, the agency need 

only establish an avenue for inmates to 

make contact with an outside entity— 

whether public or private—that can 

receive and forward reports of sexual 

abuse or sexual harassment to the 

agency. For example, an agency may 

choose to provide access to an external 

reporting hotline, or may provide a 

method for inmates to send confidential 

correspondence to an external entity. 

The standard thus provides flexibility 

for a facility to choose or develop the 

most appropriate external reporting 

mechanism to fit its needs. 

To be sure, the Department recognizes 

the value of internal hotlines and 

encourages their use. Indeed, the final 

standards require multiple internal 

ways for inmates to privately report 

sexual abuse and sexual harassment. 

However, the Department agrees with 

advocates and inmates who argued that 

an external reporting mechanism is 

necessary to address situations in which 

victims do not feel safe reporting to 

anyone inside the correctional system. 

The standard requires lockups and 

community confinement facilities to 

inform detainees or residents of at least 

one way to report abuse or harassment 

to a public or private entity or office that 

is not part of the agency, but does not 

require them affirmatively to provide 

detainees and residents with access, as 

is the case for prisons, jails, and juvenile 

facilities. Unlike adult prisons and jails 

and juvenile facilities, lockups typically 

hold inmates briefly before release or 

transfer to a jail, and community 

confinement facility residents usually 

are able to leave the facility during the 

day for various reasons and generally 

have greater access to community 

resources. Hence, the populations of the 

latter facilities will generally have 

greater access to make contact outside 

these of these facilities. 

Comment. Many advocates, as well as 

former and current inmates, commented 

that the standards must allow 

confidential reporting because some 

inmates may be too afraid of retaliation 

to report otherwise, even when 

reporting to an outside entity. One 

inmate recommended that allegations be 

forwarded to the facility only with the 

victim’s consent. Many rape crisis 

centers and other community support 

groups commented that confidential 

reporting is important because, in their 

experience, victims are much more 

likely to report sexual abuse and 

cooperate with the investigation when 

they feel safe in doing so. 

A number of inmates and advocates 

suggested that some victims would not 

report an incident if the facility would 

learn of the report, even if the victim’s 

identity was not revealed, and therefore 

requested complete confidentiality as an 

option. In contrast, many correctional 

agencies expressed concern that such an 

option would prevent them from 

learning about problems within their 

facilities and would preclude thorough 

investigations into allegations, in 

tension with the goals of a zerotolerance policy. 

One commenter recommended that, 

in case agency officials are not 

responsive, the outside entity should 

have the option to take information to 

outside law enforcement if deemed in 

the victim’s best interest and should be 

allowed not to disclose that information 

to the agency. 

Response. The Department recognizes 

the potential tension between 

encouraging inmates to report sexual 

abuse and ensuring that facilities have 

sufficient information to investigate 

allegations and address safety concerns. 

The final standard includes language 

requiring the outside reporting entity to 

allow the victim to remain anonymous 

upon request and retains the language 

from the proposed standard that 

requires facility staff to accept 

anonymous reports. Allowing 

anonymity protects the inmate’s 

identity, but still provides the facility 

with basic information about the 

allegation. Ideally, a facility would 

receive complete information about 

every alleged incident of sexual abuse, 

including a first-hand report from the 

victim. But an anonymous report about 

an incident is preferable to no report at 

all. As many commenters noted, reports 

made anonymously are otherwise 

unlikely to be reported; thus, providing 

this avenue should actually increase the 

amount of information available to the 

facility. In addition, even if such a 

report may not allow for a full 

investigation into the incident, 

providing information about an incident 

generally, without the identity of the 

victim, will alert staff to potential 

concerns and may help reveal unsafe 

areas within the facility. 

With regard to reporting to law 

enforcement, nothing precludes an 

outside reporting entity from reporting 

allegations of abuse to the relevant law 

enforcement authorities or other 

entities, as appropriate. The outside 

entity should also have the discretion to 

report specific incidents at different 

administrative levels within a facility. 

If, for example, the facility investigator 

is the subject of an inmate report, the 

outside entity should forward that 

report to the facility superintendent or 

other agency administrator, instead of to 

the investigator. 

Comment. Some advocacy groups 

requested that the standards mandate 

entering into a memorandum of 

understanding with an outside agency 

to serve as a third-party reporting entity, 

and allow reliance on an independent, 

internal reporting option only if 

documented attempts to enter into such 

agreements are unsuccessful. On the 

other hand, many correctional agencies 

opposed any requirement for a formal 

agreement with an outside entity as 

unnecessary, expensive, and 

burdensome. Some facilities noted that 

finding a third party to provide such a 

service might be difficult in rural areas. 

Response. Many facilities would 

benefit from a formal agreement or 

memorandum of understanding to 

ensure that inmates can effectively 

report allegations of sexual abuse and 

sexual harassment. Indeed, some 

correctional agencies noted that they 

already have in place these types of 

agreements. Other facilities are able to 

provide outside services without such 

an agreement, whether through a private 

entity or through a government office 

that is external to and independent from 

the correctional agency. Given the 

varying needs and abilities of different 

facilities, the Department has opted to 

grant agencies discretion to provide the 

requisite external reporting mechanism 

in the most appropriate manner for the 

specific facility or incident at issue. 

Comment. Some correctional agencies 

expressed concern that the proposed 

standard would conflict with applicable 

State law. For example, the Florida 

Department of Corrections stated that, 

under Florida law, it maintains 

authority over investigations within the 

prison system, and that requiring 

inmates to report allegations to an entity 

that has no jurisdiction would conflict 

with a State statute. 


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Response. The standard does not 

require the external reporting entity to 

investigate the allegations of sexual 

abuse. Rather, the external entity should 

receive and immediately forward inmate 

reports of sexual abuse and sexual 

harassment to agency officials, keeping 

the name of the inmate anonymous 

upon request. 

Comment. A juvenile justice agency 

and the Council of Juvenile Correctional 

Administrators requested that 

§ 115.351(e) be revised to require 

agencies to provide a method for staff to 

‘‘officially’’ report sexual abuse and 

sexual harassment of residents, instead 

of allowing for staff to report 

‘‘privately.’’ These commenters stated 

that because staff are legally obliged to 

report sexual abuse and harassment of 

youth, there should be no provision for 

‘‘private’’ reporting. 

Response. The Department does not 

believe that private reporting conflicts 

with the obligation to comply with 

mandatory reporting laws. In requiring 

agencies to provide a method for staff to 

report sexual abuse and sexual 

harassment ‘‘privately,’’ the Department 

means that agencies must enable staff to 

report abuse or harassment directly to 

an investigator, administrator, or other 

agency entity without the knowledge of 

the staff member’s direct colleagues or 

immediate supervisor. A private 

reporting mechanism may provide a 

level of comfort to staff who are 

concerned about retaliation, especially 

where the staff member reports 

misconduct committed by a colleague. 

As some advocates noted, a private 

reporting option, partnered with zero 

tolerance for sexual abuse, may 

encourage staff who would otherwise 

remain silent, despite mandatory 

reporting laws, to report sexual abuse 

and sexual harassment. 

Comment. In the NPRM, the 

Department noted that the Department 

of Defense provides a ‘‘restricted 

reporting’’ option that allows service 

members to confidentially disclose the 

details of a sexual assault to specified 

employees or contractors and receive 

medical treatment and counseling 

without triggering the official 

investigative process and, subject to 

certain exceptions, without requiring 

the notification of command officials or 

law enforcement. See Department of 

Defense Directive 6495.01, Enclosure 

Three; Department of Defense 

Instruction 6495.02. NPRM Question 23 

asked whether the final standards 

should mandate that agencies provide 

inmates with the option of making a 

similarly restricted report to an outside 

public entity, and to what extent, if any, 

such an option would conflict with 

applicable State or local law. 

Correctional agencies that responded 

to this question were generally opposed 

to a reporting option that would 

prohibit an official investigation. 

Agencies stressed the need to 

adequately investigate any potential 

abuse in order to ensure inmate safety 

and compliance with other standards. 

Some stated that a restricted reporting 

option would conflict with the goals of 

a zero-tolerance policy; others suggested 

it could conflict with State laws 

requiring mandatory reporting. One 

commented that a restricted reporting 

option would be contrary to the intent 

of the Prison Litigation Reform Act, 

which seeks to encourage issues to be 

brought to the attention of prison 

administrators before litigation occurs. 

Advocacy groups generally did not 

focus on Question 23, but many 

advocate comments recommended that 

the standards return to the NPREC’s 

proposed language that allowed inmates 

to request confidentiality or permit 

confidential reports ‘‘to the extent 

allowable by law.’’ One law student 

stated that inmates should be entitled to 

separate their need for medical care 

from the investigation process, 

particularly if the inmate believes an 

investigation is unlikely to positively 

affect the situation or may lead to 

danger. 

Response. Restricted reporting 

represents a tradeoff between the 

victim’s interest in privacy and 

preventing retaliation and, on the other 

hand, the institution’s interest in 

identifying the abuser for purposes of 

discipline and preventing further abuse. 

In some cases, a victim will be too 

fearful to report if he or she knows that 

the information will be disseminated 

beyond medical staff. The Department 

recognizes that, in the absence of a 

restricted reporting policy, some victims 

will not seek needed care. 

The cost of a restricted reporting 

policy, however, is that the institution 

cannot take steps to prevent the 

recurrence of the abuse. The dynamics 

of sexual abuse in correctional facilities 

make it quite likely that an abuser will 

subsequently abuse other inmates. An 

agency that learns of such abuse is far 

better equipped to prevent future 

incidents. 

Given the competing costs and 

benefits of restricted reporting policies, 

the Department chooses not to include 

in the standards a requirement to adopt 

a restricted reporting option. Instead, 

provisions in other standards are 

designed to mitigate the risks that 

inmates may be too fearful to come 

forward. The final standard requires 

each prison, jail, and juvenile facility to 

provide multiple ways for inmates to 

report sexual abuse and sexual 

harassment, including at least one 

external reporting mechanism. 

Anonymous reports must be accepted, 

but all reports will be forwarded to the 

facility for investigation. These 

requirements will enable some inmates 

who are reluctant to report to facility 

authorities some ability to find support, 

and may lead them to reconsider their 

initial decision not to come forward. In 

addition, this system should ensure that 

the facility is made aware of allegations 

of abuse, while protecting the identities 

of those inmates who would not come 

forward if they were not permitted to 

report anonymously. Finally, §§ 115.82 

and 115.83 provide that facilities may 

not condition any medical or mental 

health care on the victim’s cooperation 

with any ensuing investigation. A 

victim who needs care but is reluctant 

to name the perpetrator of the abuse— 

or who may not even admit that the 

injury occurred as result of a sexual 

assault—must be offered the same level 

of care as any other inmate presenting 

similar injuries. Given these 

requirements, the Department has 

determined it is not necessary to 

include a restricted reporting option. 

Comment. Some advocacy 

organizations recommended that the 

Department include NPREC 

supplemental immigration standard ID– 

7, which would require agencies to 

provide contact information for relevant 

consular and DHS officials to 

immigration detainees. These 

commenters noted that, for these 

detainees, the DHS Office of the 

Inspector General and the Office for 

Civil Rights and Civil Liberties, as well 

as consular offices, serve the 

ombudsperson function that is 

contemplated in the final standard and 

thus should be made available to 

immigration detainees who complain of 

sexual abuse. 

Response. The final standard requires 

that individuals detained solely for civil 

immigration purposes in State, local, or 

BOP facilities be provided with 

information on how to contact relevant 

consular officials as well as relevant 

DHS officials. 

Exhaustion of Administrative Remedies 

(§§ 115.52, 115.252, 115.352) 

Summary of Proposed Rule 

Paragraph (a) of the standard 

contained in the proposed rule governed 

the amount of time allotted inmates to 

file a request for administrative 

remedies (typically known as 

grievances) following an incident of 


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sexual abuse. The proposed standard set 

this time at 20 days, with an additional 

90 days available if an inmate provides 

documentation, such as from a medical 

or mental health provider or counselor, 

that filing sooner would have been 

impractical due to trauma, removal from 

the facility, or other reasons. 

Paragraph (b) of the proposed 

standard governed the amount of time 

that agencies have to resolve a grievance 

alleging sexual abuse before it is 

deemed to be exhausted, in order to 

ensure that the agency is allotted a 

reasonable amount of time to investigate 

the allegation, after which the inmate 

may seek judicial redress. Paragraph (b) 

required that agencies take no more than 

90 days to resolve grievances alleging 

sexual abuse, unless additional time is 

needed, in which case the agency may 

extend up to 70 additional days. The 

proposed standard did not count time 

consumed by inmates in making appeals 

against these time limits. 

Paragraph (c) required that agencies 

treat third-party notifications of alleged 

sexual abuse as a grievance or request 

for informal resolution submitted on 

behalf of the alleged inmate victim for 

purposes of initiating the agency 

administrative remedy process. The 

proposed standard required reports of 

sexual abuse to be channeled into the 

normal grievance system (including 

requests for informal resolution where 

required) unless the alleged victim 

requested otherwise. This requirement 

exempted reports from other inmates in 

order to reduce the likelihood that 

inmates would attempt to manipulate 

staff or other inmates by making false 

allegations. The proposed standard 

permitted agencies to require alleged 

victims to perform properly all 

subsequent steps in the grievance 

process, unless the alleged victim of 

sexual abuse is a juvenile, in which case 

a parent or guardian could continue to 

file appeals on the juvenile’s behalf 

unless the juvenile does not consent. 

Paragraph (d) governed procedures for 

dealing with emergency claims alleging 

imminent sexual abuse. The proposed 

standard required agencies to establish 

emergency grievance procedures 

resulting in a prompt response—unless 

the agency determined that no 

emergency exists, in which case the 

grievance could be processed normally 

or returned to the inmate, as long as the 

agency provides a written explanation 

of why the grievance does not qualify as 

an emergency. To deter abuse, the 

proposed standard provided that an 

agency could discipline an inmate for 

intentionally filing an emergency 

grievance where no emergency exists. 

Changes in Final Rule 

The final standard includes numerous 

changes. 

First, the final standard requires that 

agencies not impose any deadline on the 

submission of a request for 

administrative remedies regarding 

sexual abuse incidents. 

Second, the final standard no longer 

requires agencies to treat third-party 

notifications of alleged sexual abuse as 

a grievance or request for informal 

resolution submitted on behalf of the 

alleged inmate victim for purposes of 

initiating the agency administrative 

remedy process. Rather, the final 

standard requires agencies to allow 

third parties to submit grievances on 

behalf of inmates. If a third party 

submits such a request on behalf of an 

inmate, the facility may require as a 

condition of processing the request that 

the alleged victim agree to have the 

request submitted on his or her behalf, 

and may also require the alleged victim 

to personally pursue any subsequent 

steps in the administrative remedy 

process. The final standard also 

provides that third parties, including 

fellow inmates, staff members, family 

members, attorneys, and outside 

advocates, shall be permitted to assist 

inmates in filing requests for 

administrative remedies relating to 

allegations of sexual abuse. 

Third, the final standard revises the 

emergency-grievance provision, which 

allows an inmate to seek an expedited 

response where the inmate alleges that 

he or she is subject to a substantial risk 

of imminent sexual abuse. As in the 

proposed standard, the final standard 

requires an initial agency response 

within 48 hours and a final decision 

within five days. However, the standard 

no longer requires that, if the agency 

determines that no emergency exists, it 

must process the grievance as a nonemergency grievance. 

The final standard forbids agencies 

from requiring inmates to seek informal 

resolution of a grievance alleging sexual 

abuse as a prerequisite to submitting a 

formal request for administrative 

remedies. 

The final standard provides that 

agencies shall ensure that inmates may 

submit requests for administrative 

remedies without needing to submit the 

request to the alleged abuser, and that 

no request will be referred to an alleged 

abuser. 

The final standard states expressly 

that an agency that lacks administrative 

procedures to address inmate grievances 

regarding sexual abuse need not create 

such procedures in order to comply 

with the standard. 

Comments and Responses 

Comment. Several State correctional 

agencies asserted that imposing a 

standard governing the exhaustion of 

administrative remedies would 

undermine or violate the Prison 

Litigation Reform Act (PLRA). 

Response. The final standard is not 

inconsistent with the PLRA. The PLRA 

does not require a State to impose any 

particular administrative exhaustion 

requirements. Rather, the PLRA requires 

that an inmate exhaust ‘‘such 

administrative remedies as are 

available’’ before bringing an action 

under Federal law. 42 U.S.C. 1997e(a). 

The PLRA thus affords States a 

procedural defense in court by requiring 

inmates with grievances to satisfy such 

administrative exhaustion requirements 

as States may adopt. Providing a State 

with an incentive to structure an 

administrative remedy in a particular 

manner would not relieve an inmate of 

the PLRA’s requirement that he or she 

exhaust whatever administrative 

remedies a State ultimately chooses to 

make available. Furthermore, the PLRA 

does not immunize from change any 

exhaustion requirements that States may 

adopt, nor does it bar the use of Federal 

financial incentives, such as the 

incentives provided by PREA, to induce 

States to revise their requirements. 

Comment. Several correctional agency 

commenters noted that they either do 

not have administrative remedy 

proceedings at all, or otherwise do not 

apply their administrative remedy 

proceedings to allegations or grievances 

involving sexual abuse. Some such 

commenters, joined by a number of 

advocacy organizations, suggested that 

administrative remedy procedures are 

not appropriate for grievances involving 

sexual abuse. 

Response. Paragraph (a) of the final 

standard clarifies that an agency need 

not create administrative procedures to 

address grievances involving allegations 

of sexual abuse if it currently lacks such 

procedures. This standard is meant to 

govern only the contours of 

administrative remedy procedures, due 

to the fact that under the PLRA, 

exhaustion of any such procedures is a 

prerequisite to access to judicial 

remedies. The Department leaves to 

agency discretion whether to utilize 

such administrative remedies as part of 

its procedures to combat sexual abuse. 

As noted in § 115.51 and its 

counterparts, agencies must provide 

multiple internal ways to report abuse, 

as well as access to an external reporting 

channel. A grievance system cannot be 

the only method—and should not be 

expected to be the primary method—for 


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33See W.Va. Code 25–1A–2(c); White v. Haines, 

618 SE.2d 423, 431 (W. Va. 2005). 

34See City of New York Department of 

Correction, Directive 3375R–A, at 2 (2008), 

available at http://www.nyc.gov/html/doc/

downloads/pdf/3375R-A.pdf. 

35See Martin A. Schwartz, 1 Section 1983 

Litigation § 12.02[B][5] (2007 ed.). Several courts of 

appeals have held that the same statute of 

limitations should apply to actions against Federal 

officials filed under Bivens v. Six Unknown Named 

Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1971). See Kelly v. Serna, 87 F.3d 1235, 1238 

(11th Cir. 1996) (citing cases). 

inmates to report abuse. Agencies 

should remain aware that inmates’ 

concern for confidentiality and fear of 

retaliation, whether or not wellfounded, may discourage inmates from 

availing themselves of administrative 

remedies. 

An inmate in an agency that lacks any 

administrative remedies may proceed to 

court directly. Accordingly, this 

standard is inapplicable to agencies that 

lack administrative remedy schemes. 

Likewise, if an agency exempts sexual 

abuse allegations from its administrative 

remedies scheme, an inmate who alleges 

sexual abuse may proceed to court 

directly with regard to such allegations, 

and this standard would not apply. 

Some agencies exempt sexual abuse 

allegations from their remedial schemes 

entirely, such as the West Virginia 

Division of Corrections,33 while others 

exempt only such allegations against 

staff, such as the City of New York 

Department of Correction.34 In the latter 

case, this standard would continue to 

apply to allegations against inmates. 

Comment. Many advocates 

recommended that the final standard 

require that agencies not impose any 

time limit for submitting administrative 

grievances alleging sexual abuse. These 

commenters opined that inmates may 

take months or even years to report 

sexual abuse, perhaps waiting until 

their abuser is no longer housed or 

posted in their vicinity. Commenters 

stressed that the time limits would pose 

particular difficulties for juveniles, who 

may be more hesitant than adults to 

report abuse. Some advocates 

recommended eliminating the deadline 

altogether, while others suggested that if 

a deadline were required, it should be 

180 days. 

The 90-day extension provision 

received significant criticism. Advocates 

asserted that obtaining the 

documentation required by the 

proposed standard to justify such an 

extension would be difficult at best and 

often impossible. Many correctional 

agency commenters agreed with 

advocates that the 90-day extension was 

unworkable. One State correctional 

agency commented that such a 

requirement might well subject its 

counselors and mental health providers 

to complaints and lawsuits for failing to 

provide requested documentation in a 

timely manner. 

Response. After considering the many 

comments on this issue, the Department 

has revised the standard to require that 

agencies not impose any time limit on 

the filing of a grievance alleging sexual 

abuse. While some inmates will submit 

false grievances, it is unlikely that the 

number of such false grievances will 

rise appreciably if an inmate is granted 

more time to submit a grievance 

regarding sexual abuse. Even in an 

agency with a 20-day limit, an inmate 

who is inclined to invent an incident of 

sexual abuse could simply allege that it 

occurred within 20 days. The 

Department found merit in comments 

that expressed concern that inmates 

may require a significant amount of time 

in order to feel comfortable filing a 

grievance, and might need to wait until 

their abuser is no longer able to 

retaliate. Requiring the removal of time 

limits increases the ability of such 

inmates to obtain legal redress and 

increases the chance that litigation will 

play a beneficial role in ensuring that 

correctional systems devote sufficient 

attention to combating sexual abuse. 

The Department considered revising 

the standard to allow a lengthy time 

limit, such as 180 days, but concluded 

that no interest is served by allowing the 

filing of grievances up until that point 

but not beyond. Importantly, one key 

time limit will still apply: The statute of 

limitations. Federal suits filed against 

State officials under 42 U.S.C. 1983 are 

governed by the general State personal 

injury statute of limitations, see Owens 

v. Okure, 488 U.S. 235 (1989), which in 

the vast majority of States is three years 

or less.35 Paragraph (b)(4) clarifies that 

this standard does not restrict an 

agency’s ability to defend a lawsuit on 

the ground that any applicable statute of 

limitations has expired. Thus, if the 

applicable State statute of limitations is 

three years, an inmate who files a 

grievance alleging that abuse occurred 

four years ago will be unable to seek 

judicial redress after exhausting 

administrative remedies if the agency 

asserts a statute of limitations defense. 

The statute of limitations provides a 

backstop against the filing of stale 

claims, as it does for analogous claims 

of sexual abuse experienced in the 

community at large. 

Paragraph (b)(2) has been added to 

make clear that paragraph (b)(1) applies 

only to those portions of a grievance 

that actually involve allegations of 

sexual abuse. In other words, if an 

agency applies time limits to grievances 

that do not involve allegations of sexual 

abuse, inmates may not circumvent 

those timelines by including such 

allegations in a grievance that also 

alleges sexual abuse. 

Comment. Several advocacy groups 

recommended that the final standard 

mandate that agencies allow inmates to 

submit a formal grievance without first 

requiring them to avail themselves of 

informal grievance processes. 

Commenters noted that, in cases where 

an inmate alleges sexual abuse by a staff 

member, informal resolution may 

require the inmate to interact with the 

perpetrator or with a person who may 

be complicit in the abuse. 

Response. The final standard 

prohibits requiring inmates to seek 

informal resolution of a grievance 

alleging sexual abuse as a prerequisite to 

submitting a formal request for 

administrative remedies. Informal 

resolution typically requires the inmate 

to discuss the subject of the grievance 

with staff. In the case of sexual abuse, 

this process is unlikely to resolve the 

grievance, and may force the inmate to 

discuss the grievance with the abuser or 

with a staff member who works closely 

with the abuser. 

Comment. Several advocates 

recommended that the final standard 

require that agencies ensure that 

inmates may file grievances without 

having contact with their alleged 

abusers. 

Response. The final standard makes 

clear that agencies shall establish 

procedures pursuant to which inmates 

can submit grievances alleging sexual 

abuse to staff members who are not 

subjects of the complaint, and that such 

grievances may not be referred to any 

subject of the complaint. These explicit 

protections will help ensure that 

inmates are not dissuaded from 

submitting grievances following sexual 

abuse, and that staff members who are 

subjects of such grievances cannot 

influence the administrative process 

that ensues. 

Comment. Few comments were 

received on the elements of the 

proposed standard that governed the 

amount of time to resolve administrative 

grievances involving allegations of 

sexual abuse. A few commenters 

believed the timeframe was too long, 

while one State correctional agency 

recommended extending the 

presumptive time limit from 90 days to 

100. 

Response. The final standard retains 

the basic structure of this provision, 

with certain changes. Paragraph (d)(2) 

clarifies that the 90-day time period 

does not include time consumed by 


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inmates ‘‘in preparing any 

administrative appeal,’’ rather than 

merely ‘‘in appealing any adverse 

ruling.’’ The revised language is more 

accurate and inclusive, because in some 

cases inmates may appeal rulings that 

are not necessarily or entirely 

‘‘adverse,’’ but that do not afford the 

inmate the full remedy sought. 

The Department added paragraph 

(d)(4) in the final standard to address 

comments that the proposed standard, 

as written, could be interpreted to mean 

that a grievance might not be considered 

exhausted if a correctional agency 

adopted the 90/160-day time limits but 

nevertheless failed to timely respond to 

a grievance alleging sexual abuse. 

Paragraph (d)(4) makes clear that, when 

an agency fails to respond to an 

administrative grievance alleging sexual 

abuse according to its guidelines, an 

inmate may consider that failure a 

denial at the corresponding level of 

administrative review, including at the 

final level (in which case, the inmate 

may consider the absence of a timely 

response as the final agency decision for 

purposes of exhaustion). 

Comment. Several agency 

commenters stated that the proposed 

standard’s requirement that an agency 

treat any notification of an alleged 

sexual assault as a grievance, regardless 

of the method by which notification was 

made (other than by notification by a 

fellow inmate), would pose 

administrative difficulties, particularly 

when such notification came from a 

third party. Commenters suggested that 

it would be burdensome and 

impracticable to require staff to 

complete a grievance form on behalf of 

an inmate whenever staff learns of an 

allegation of sexual abuse. 

Conversely, several commenters 

supported a requirement that agencies 

treat any notification of alleged sexual 

assault as a grievance, including 

notifications by other inmates. These 

commenters stated that complicated 

administrative processes could frustrate 

the ability of victims of sexual abuse to 

exhaust their remedies and seek redress 

in court. Commenters noted that 

difficulties in filing and exhausting 

grievances were particularly acute for 

complaints involving sexual abuse. 

Further, many commenters (including 

correctional agency commenters) noted 

that juveniles may be more susceptible 

to peer pressure or other factors that 

might dissuade them from pursuing a 

valid grievance alleging sexual abuse. 

These commenters expressed concern 

over the provision in the proposed 

standard that allowed agencies not to 

treat a notification as a grievance if the 

alleged victim requests that it not be 

processed as such. 

Response. The final standard does not 

require agencies to treat any notification 

as a grievance. Rather, paragraph (e)(1) 

provides that third parties shall be 

allowed to submit such grievances on 

behalf of inmates (and to assist inmates 

in submitting grievances alleging sexual 

abuse). If a third party files such a 

request on behalf of an inmate, the 

facility may require as a condition of 

processing the request that the inmate 

agree to have the request filed on his or 

her behalf, and may also require the 

inmate to pursue personally any 

subsequent steps in the administrative 

remedy process. If the inmate declines 

to have the request processed on his or 

her behalf, the standard requires that the 

agency document the inmate’s decision. 

With regard to juvenile facilities, the 

final standard requires that agencies 

accept third-party grievances submitted 

by parents or guardians regardless of the 

juveniles’ acquiescence. This revision 

addresses concerns that juveniles may 

be particularly reluctant to agree to the 

filing of a grievance by a third party. 

Because parents and guardians 

represent reliable sources for such 

complaints, it is appropriate to require 

their complaints to be treated as 

grievances, even where the juvenile 

requests otherwise. 

The Department is sympathetic to 

agency concerns that the requirement in 

the proposed standard was impractical. 

In light of other changes to the proposed 

standard, there is less need to require 

that a third-party notification be treated 

as a grievance. By requiring that 

agencies not impose a deadline on 

submitting an administrative grievance 

alleging sexual abuse, allowing third 

parties to submit grievances on an 

inmate’s behalf, allowing third parties to 

assist inmates in filing their own 

grievances, and requiring agencies to 

implement procedures to avoid the 

submission or referral of complaints to 

their subjects, the Department has made 

it significantly easier for sexual abuse 

grievances to be filed by the victim or 

by someone acting expressly on the 

victim’s behalf. As a result of these 

changes, the Department concludes that 

it is no longer worthwhile to require 

agency staff to file grievances whenever 

they hear of an allegation. 

Comment. Some commenters 

expressed concern that inmates may 

attempt to circumvent otherwise 

applicable rules by piggybacking 

grievances that are governed by those 

rules onto allegations involving sexual 

abuse, which may be treated differently. 

Response. The final standard 

addresses this concern in three places. 

As noted above, paragraph (b)(2) states 

that the agency may apply otherwise 

applicable time limits on any portion of 

a grievance that does not allege an 

incident of sexual abuse. The addition 

of ‘‘any portion of’’ in paragraph (d)(1) 

makes clear that the 90-day time limit 

applies only to those portions of 

grievances that actually allege sexual 

abuse. These changes ensure that 

inmates cannot circumvent stricter 

deadlines for grievances that do not 

involve sexual abuse by bootstrapping 

such grievances onto a grievance that 

also alleges sexual abuse. Finally, 

paragraph (f)(2) clarifies that only the 

portion of a grievance that involves an 

allegation of substantial risk of 

imminent sexual abuse need be treated 

as an emergency grievance. 

Comment. Some correctional agency 

commenters remarked that the 

emergency procedures required in these 

standards will be difficult to implement. 

Response. The Department believes 

that the time limits in the emergency 

procedures provision are reasonable. As 

noted in the NPRM, these procedures 

are modeled on emergency procedures 

already in place in several State 

correctional agencies. Numerous 

correctional agencies (and many other 

commenters) emphasized the need for 

an immediate response to serious 

allegations of imminent sexual abuse, 

and this provision should assist such 

efforts. 

Comment. The proposed standard, in 

paragraphs (d)(3) and (d)(4), would have 

permitted agencies to make an initial 

determination that an emergency 

grievance did not involve a substantial 

risk of imminent sexual abuse, and 

thereafter treat the grievance not as an 

emergency grievance but rather as an 

ordinary grievance. Numerous 

commenters objected to this provision 

of the proposed standard, noting that 

agencies could make such an initial 

determination and thus not be required 

to provide an initial response within 48 

hours or a final agency decision within 

5 calendar days. These commenters 

expressed concern that this escape valve 

for agencies could essentially swallow 

the entire rule by allowing agencies to 

make an initial determination in 

response to any emergency grievance 

and thereafter ignore the truncated 

timelines designed to address such 

grievances. In cases in which the 

agency’s initial determination was 

erroneous, these commenters argued, 

the consequences could be disastrous 

for the inmate involved. 

Response. The final standard requires 

the agency to treat all grievances 

alleging the substantial risk of imminent 

sexual abuse as emergency grievances, 


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even if the agency determines that no 

such risk exists. In the event the agency 

makes that determination, it shall 

document that decision, but it must do 

so within the timeframes required by 

the emergency grievance procedure. 

Comment. Numerous commenters 

objected to paragraph (d)(5) of the 

proposed standard, noting that it would 

permit agencies to discipline inmates 

who submitted emergency grievances 

while fearing imminent sexual abuse, 

but where the agency determined that 

no such danger existed. Commenters 

stated that such a rule would have a 

chilling effect on valid grievances, 

because inmates would fear reprisal if 

an agency made a factual determination 

that the grievance did not meet the 

threshold required for an emergency 

grievance, even where the inmate 

believed he or she was in danger. Some 

commenters recommended that no 

disciplinary measures should be 

allowed. 

Response. Paragraph (g) of the final 

standard provides that an agency may 

discipline an inmate for submitting a 

grievance alleging sexual abuse only 

where the agency can demonstrate that 

the inmate submitted the grievance in 

bad faith. Upon reconsideration, the 

Department agrees that the proposed 

standard erred in allowing discipline 

whenever an emergency was found not 

to exist, without requiring a showing of 

bad faith. 

However, the Department declines to 

revise the standard to disallow 

disciplinary measures entirely. Agencies 

should have the discretion to discipline 

inmates who are not victims of sexual 

abuse but who attempt to circumvent 

agency rules by making intentionally 

frivolous allegations. Such allegations 

not only waste agency time and 

resources but also may make 

correctional officials more dubious 

about allegations of sexual abuse in 

general, which could lead to valid 

allegations receiving insufficient 

attention. 

Access to Outside Support Services 

(§§ 115.53, 115.253, 115.353) 

Summary of Proposed Rule 

In the standard contained in the 

proposed rule, paragraphs (b) and (c) of 

§§ 115.22, 115.222, and 115.322 

required agencies to maintain or attempt 

to enter into memoranda of 

understanding or other agreements with 

community service providers that could 

provide inmates with confidential 

emotional support services related to 

sexual abuse. The proposed standard 

also required agencies to maintain 

copies of agreements or documentation 

showing attempts to enter into 

agreements. 

Sections 115.53, 115.253, and 115.353 

required agencies to provide inmates 

access to outside victim advocacy 

organizations for emotional support 

services related to sexual abuse, similar 

to the NPREC’s recommended standard. 

The proposed standard required that 

such communications be as confidential 

as possible consistent with agency 

security needs. In addition, the 

proposed standard required that 

juvenile facilities be instructed 

specifically to provide residents with 

access to their attorneys or other legal 

representation and to their families, in 

recognition of the fact that juveniles 

may be especially vulnerable and 

unaware of their rights in confinement. 

The proposed standard mandated that 

juvenile facilities provide access that is 

reasonable (and, with respect to 

attorneys and other legal representation, 

confidential) rather than unimpeded. 

Changes in Final Rule 

The final standard includes several 

small changes. 

First, the language from § 115.22(b) 

and (c) and its counterparts has been 

moved into § 115.53(c) and the latter’s 

counterparts. Only one substantive 

change has been made in this area: The 

final standard requires all juvenile 

agencies to maintain or attempt to enter 

into memoranda of understanding or 

other agreements with community 

service providers that are able to 

provide residents with emotional 

support services related to sexual abuse. 

The proposed standard had exempted 

juvenile agencies that were legally 

required to provide such services to all 

residents. 

Second, the final standard includes, 

in the standards for prisons/jails and 

juveniles, access to immigrant services 

agencies for persons detained solely for 

civil immigration purposes in State, 

local, and BOP facilities. 

Third, where the proposed standard 

required that the facility enable 

reasonable communications with such 

organizations ‘‘as confidential as 

possible, consistent with agency 

security needs,’’ the final standard 

requires that such communication be 

‘‘in as confidential a manner as 

possible.’’ The facility is also required to 

inform the victim of the extent to which 

communications will be monitored and 

the extent to which reports of abuse will 

be forwarded to authorities in 

accordance with mandatory reporting 

laws. 

Comments and Responses 

Comment. As noted above, § 115.22 of 

the proposed standards appeared to 

cause confusion because it covered both 

agreements regarding outside reporting 

and agreements regarding support 

services for victims. In addition, 

commenters were unclear as to how 

§ 115.22 interacted with § 115.53, given 

the topical overlap. 

Response. For clarity, the subject 

matter covered by proposed standard 

§ 115.22 has been moved into §§ 115.51 

and 115.53, as appropriate. 

Comment. Numerous nonprofit 

organizations and some inmates 

supported the requirement in the 

proposed standard that agencies 

maintain or attempt to enter into 

memoranda of understanding or other 

agreements with community service 

providers that could provide inmates 

with confidential emotional support 

services related to sexual abuse. These 

organizations recommended that the 

agreements between correctional 

agencies and victim advocacy 

organizations clarify the services that 

the organizations can provide and the 

limits to confidentiality. 

Response. The Department agrees that 

such clarifications are a best practice 

and will assist the facilities in meeting 

their obligation to inform victims of the 

extent to which reports of abuse will be 

forwarded to authorities in accordance 

with mandatory reporting laws. As 

many service providers noted, affording 

victims the opportunity for confidential 

discussions with advocates will help 

them feel more supported and thus 

more likely to report abuse and 

cooperate with its investigation and 

prosecution. 

Comment. A few service providers 

recommended expanding this standard 

to include sexual harassment. One 

organization also recommended 

requiring agreements with agencies that 

‘‘help victims of sexual abuse during 

their transition from incarceration into 

the community.’’ 

Response. The Department welcomes 

agencies’ participation in these 

activities. However, the need is greatest 

with regard to victims of sexual abuse 

who are currently incarcerated. 

Transitioning into the community is, of 

course, extremely important, but other 

programs currently exist to serve the 

needs of reentry more generally. 

Comment. Some correctional agencies 

expressed concern that this standard 

could threaten the Victims of Crime Act 

(VOCA) funding of victim services 

organizations. 

Response. Through a separate 

rulemaking process, the Department 


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intends to propose removing the current 

ban on VOCA funding for treatment and 

rehabilitation services for incarcerated 

victims of sexual abuse. In addition, 

even under current requirements, victim 

services organizations can use other 

funding to serve incarcerated victims 

without violating the VOCA 

requirements. 

Comment. The AJA noted that many 

jails are in rural areas and do not have 

local agencies to assist. 

Response. In such cases, the jail 

would need only to document its efforts 

to obtain such assistance and show that 

there are no local programs that can 

help. 

Comment. One State juvenile justice 

agency recommended expanding the 

exception in proposed standard 

§ 115.322, which required juvenile 

facilities to attempt to enter into 

memoranda of understanding with 

community service providers to provide 

residents with emotional support 

services related to sexual abuse. The 

proposed standard contained an 

exception for facilities that were already 

legally required to provide such 

services; the commenter recommended 

excepting all agencies that in fact 

provide such services, whether or not 

they are legally required to do so. 

Response. The final standard removes 

this exception. A facility’s own support 

services may be helpful, but are 

inherently limited in this context— 

through no fault of their own—by being 

situated in and run by the facility in 

which the abuse occurred, and in which 

the abuser either lives or works. 

Whether or not a facility provides such 

services, therefore, does not affect the 

need to allow access to outside support. 

Comment. Most commenters, 

including some correctional agencies, 

expressed support for the requirement 

that agencies provide inmates with 

access to outside victim advocates for 

emotional support services related to 

sexual abuse. Many advocates, inmates, 

and a United States Senator expressed 

concern regarding language in the 

proposed standard requiring 

confidentiality only if ‘‘consistent with 

agency security needs.’’ These 

commenters noted that victims who 

receive confidential support are more 

likely to report their assault and 

cooperate with the investigation. Some 

advocacy organizations proposed 

replacing that phrase with ‘‘to the extent 

allowed by the law.’’ On the other hand, 

one sheriff’s department expressed 

concern about allowing confidential 

communications, because it might lead 

to incidents being reported to outside 

organizations without enabling the 

facility to learn of the incidents. 

Response. The Department believes 

that it is important for victims to have 

access to confidential services. The 

Department concludes that ‘‘consistent 

with agency security needs’’ should be 

removed because the broad phrasing 

could create a significant potential for 

overuse by agencies. The final standard 

requires agencies to ‘‘enabl[e] 

reasonable communication between 

inmates and these organizations, in as 

confidential a manner as possible.’’ The 

final standard does not add the phrase 

‘‘to the extent allowed by law,’’ because 

it may be difficult for agencies to ensure 

complete confidentiality with all forms 

of communication due to factors such as 

the physical layout of the facility or the 

use of automatic phone monitoring 

systems, which may be difficult to 

suspend for support calls without 

requiring the inmate to make a specific 

request. 

Comment. Some advocacy groups also 

recommended that the juvenile standard 

include access to family members and 

opportunities for family involvement. 

Response. While the Department 

welcomes agencies and victims service 

organizations who are able to integrate 

family members into the counseling 

process, the logistical challenges of 

doing so counsel against adding such a 

requirement to the standard. 

Comment. Various inmates and one 

sheriff’s office expressed concerns with 

the logistics of allowing victims to 

contact outside support services. Many 

facilities are set up with open phone 

banks in common day rooms, and the 

inmate would have to specifically 

request to use a private phone in order 

to make a completely confidential 

phone call. 

Response. Providing access to outside 

support services may involve 

surmounting logistical hurdles, but the 

potential benefits of such access should 

make the effort worthwhile. The 

National Resource Center for the 

Elimination of Prison Rape is available 

to help facilities develop ways to 

provide such access. 

The Department encourages agencies 

to establish multiple avenues for inmate 

victims of sexual abuse to contact 

external victim services agencies. While 

not ensuring optimal privacy, phones 

may provide the best opportunity for 

inmates to seek help in a timely manner. 

Privacy concerns may be allayed 

through other methods of contacting 

outside organizations, such as allowing 

confidential correspondence, 

opportunities for phone contact in more 

private settings, or the ability of the 

inmate to make a request to contact an 

outside victim advocate through a 

chaplain, clinician, or other service 

provider. 

Comment. Another inmate stated that, 

because he is incarcerated for a sex 

crime, he was not able to receive 

assistance from a sexual assault services 

provider. 

Response. The Department expects 

that organizations that enter into such 

memoranda of understanding should 

help victims of sexual abuse without 

regard to whether they may have 

perpetrated sexual abuse in the past. 

Comment. One inmate expressed a 

preference for in-person counseling. 

Response. The Department is aware 

that some correctional systems have 

been able to offer in-person counseling, 

and encourages systems to consider 

doing so. However, logistical challenges 

militate against making this a 

requirement in the standard. 

Comment. One State juvenile justice 

agency recommended that contact with 

outside services be at the discretion of 

agency mental health staff. 

Response. The purpose of this 

standard is for victims to be able to 

reach out for help without seeking staff 

approval, which may require disclosing 

information to staff that the resident 

may prefer, at least for the time being, 

to remain confidential. 

Comment. A regional jail association 

recommended providing specific 

actions or checklists to help guide 

auditors. 

Response. The National Resource 

Center for the Elimination of Prison 

Rape will do so. 

Comment. Some advocacy 

organizations commented that the 

Department should adopt NPREC 

supplemental immigration standard ID– 

8, which would require agencies with 

immigration detainees to provide those 

individuals with access to community 

service providers that specialize in 

immigrant services, as well as 

supplemental standard ID–1, which 

would mandate agreements or 

memoranda of understanding with these 

organizations. These commenters noted 

that immigration detainees who suffer 

from sexual abuse may have unique 

needs that only specialized service 

providers can meet. 

Response. The Department agrees that 

agencies covered by these standards 

should provide immigration detainees 

with access to service providers that can 

best meet their needs. The final 

standards require that State, local, or 

BOP facilities that detain individuals 

solely for civil immigration purposes 

provide those individuals with access to 

immigrant services agencies. It also 

requires agencies to enter into, or 

attempt to enter into, agreements with 


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organizations that provide these 

services. 

Third-Party Reporting (§§ 115.54, 

115.154, 115.254, 115.354) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required facilities to 

establish a method to receive third-party 

reports of sexual abuse and to distribute 

publicly information on how to report 

sexual abuse on behalf of an inmate. In 

addition, the proposed standard 

required juvenile facilities to distribute 

such information to residents’ attorneys 

and parents or legal guardians. 

Changes in Final Rule 

The final standard includes the 

proposed requirements and adds sexual 

harassment to its scope. The final 

standard also references ‘‘agency’’ 

instead of ‘‘facility.’’ 

Comments and Responses 

Comment. A State association of 

juvenile justice agencies commented 

that the requirement to distribute 

information on reporting to the 

residents’ attorneys and their parents or 

legal guardians would significantly 

increase postage expenses and suggested 

instead that the information could be 

posted on a facility’s Web site. 

Response. This standard does not 

require mailings. The agency may, in its 

discretion, make such information 

readily available through a Web site, 

postings at the facility, printed 

pamphlets, or other appropriate means. 

Comment. Some advocacy groups for 

juveniles recommended adding other 

family members to the list of people 

who will receive this information, 

because it is common for youth in 

juvenile facilities to have been raised by 

grandparents or other family members. 

Response. The Department 

encourages facilities to provide notice to 

other family members at its discretion, 

but believes that requiring the provision 

of such notice to parents and legal 

guardians, plus attorneys, is sufficient 

for the purposes of a national standard. 

Comment. Some advocacy 

organizations recommended adding 

sexual harassment to this standard. 

Response. Because sexual harassment 

can lead to further abusive behavior, the 

Department agrees that it is appropriate 

to allow third parties to report incidents 

of sexual harassment, as well as sexual 

abuse, and has made this change. 

Staff and Agency Reporting Duties 

(§§ 115.61, 115.161, 115.261, 115.361) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that staff be 

trained and informed about how to 

properly report incidents of sexual 

abuse while maintaining the privacy of 

the victim. The proposed standard also 

required that staff immediately report 

(1) Any knowledge, suspicion, or 

information regarding incidents of 

sexual abuse that take place in an 

institutional setting, (2) any retaliation 

against inmates or staff who report 

abuse, and (3) any staff neglect or 

violation of responsibilities that may 

have contributed to the abuse. The 

proposed standard also required that the 

facility report all allegations of sexual 

abuse to the facility’s designated 

investigators, including third-party and 

anonymous reports. 

Changes in Final Rule 

The final standard includes several 

small changes. In paragraph (a), the staff 

reporting requirements have been 

expanded to add sexual harassment, in 

addition to sexual abuse. This paragraph 

no longer refers to incidents that occur 

in an ‘‘institutional setting,’’ but rather 

refers to incidents that occurred in a 

‘‘facility, whether or not it is part of the 

agency.’’ In §§ 115.61(e), 115.261(e), and 

115.361(f), the final standard requires 

that the facility report all allegations of 

sexual harassment, as well as sexual 

abuse, to the facility’s designated 

investigators. 

In paragraph (b) of §§ 115.61, 115.161, 

and 115.261, and in paragraph (c) of 

§ 115.361, the Department has clarified 

the exception that allowed staff to reveal 

information relating to a report of sexual 

abuse to ‘‘those who need to know, as 

specified in agency policy, to make 

treatment, investigation and other 

security and management decisions.’’ 

The Department has replaced ‘‘those 

who need to know’’ with ‘‘to the extent 

necessary’’ in order to clarify that staff 

should not share information relating to 

a sexual abuse report unless necessary 

for the limited purposes listed in the 

rule. 

In §§ 115.61(c) and 115.261(c), the 

final standard requires medical and 

mental health practitioners to inform 

inmates and residents of ‘‘the 

limitations of confidentiality,’’ as well 

as of their duty to report. 

For precision and consistency, the 

Department has qualified ‘‘victim’’ with 

‘‘alleged’’ in §§ 115.61(d), 115.161(c), 

115.261(d), and 115.361(d). 

Finally, the Department has made 

several changes to § 115.361(e)(3). The 

final standard no longer requires that 

courts retaining jurisdiction over a 

juvenile be notified of any allegations of 

sexual abuse. Rather, it requires that, 

where a court retains jurisdiction over 

an alleged juvenile victim, the juvenile’s 

attorney or other legal representative of 

record be notified within 14 days of 

receiving the allegation. 

Comments and Response 

Comment. Several commenters 

recommended that the standard apply to 

reports relating to sexual harassment as 

well as sexual abuse. 

Response. Sexual harassment can be a 

predictor of and precursor to sexual 

abuse, and should be brought to the 

attention of agency and facility 

leadership who can determine the 

appropriate response, if any. The final 

standard therefore mandates that staff be 

required to report any knowledge, 

suspicion, or information regarding an 

incident of sexual harassment that 

occurred in a facility, retaliation against 

inmates or staff who reported such an 

incident, and any staff neglect or 

violation of responsibilities that may 

have contributed to an incident of 

sexual harassment. In addition, the final 

standard requires that facilities report 

allegations of sexual harassment to their 

designated investigators. 

Comment. A State juvenile justice 

agency noted that the phrase 

‘‘institutional setting’’ is undefined and 

recommended replacing it with 

‘‘facility.’’ 

Response. The Department agrees, 

and has changed §§ 115.61(a), 

115.261(a), and 115.361 to clarify that 

staff must report any knowledge, 

suspicion, or information regarding an 

incident of sexual abuse or sexual 

harassment that occurred in a facility, 

whether or not it is part of the agency. 

Comment. Several commenters 

requested that the standard allow for 

greater confidentiality between inmates 

and medical and mental health staff. A 

State child services agency observed 

that the requirement that clinicians 

disclose their duty to report before 

providing services could have a chilling 

effect on youth’s willingness to report, 

and may prevent necessary investigation 

and treatment. An advocacy group 

recommended that the standards afford 

inmates an opportunity to speak 

confidentially with medical and mental 

health staff about sexual abuse. Other 

advocacy groups recommended 

removing the requirement under 

§§ 115.61(c), 115.161(c), and 115.261(c) 

that medical and mental health 

practitioners report sexual abuse unless 

otherwise precluded by State or Federal 

law. Instead, these commenters would 


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require practitioners to determine 

whether, consistent with Federal, State, 

or local law and the standards of their 

professions, they are required to report 

sexual abuse and to disclose these 

reporting requirements to patients. In 

addition, these groups requested that 

the standards compel providers to 

inform patients of any duty to report, as 

well as the limits of confidentiality, 

both at the initiation of services ‘‘and 

each time the practitioner makes the 

determination that he or she is required 

or permitted to breach confidentiality.’’ 

Finally, these organizations would add 

language requiring that the agency 

specify in a written policy the extent of 

health care providers’ obligations to 

report sexual abuse. 

Response. The Department agrees 

with commenters that it is essential that 

victims of sexual abuse feel comfortable 

seeking medical and mental health care 

services, and recognizes that some 

individuals may choose not to do so 

upon learning of their provider’s duty to 

report. However, it is also critical that 

incidents of sexual abuse be brought to 

the attention of facility and agency staff 

to enable the appropriate response 

measures detailed elsewhere in these 

standards. The Department has therefore 

maintained the reporting requirement 

for medical and mental health 

practitioners, unless otherwise 

precluded by law. Because this language 

is preserved, a requirement that the 

agency specify in a written policy the 

extent of health care providers’ 

obligations to report sexual abuse is 

unnecessary. The Department has, 

however, accepted the commenters’ 

recommendation that practitioners be 

required to inform patients of ‘‘the 

limitations of confidentiality,’’ as well 

as of the practitioners’ duty to report, in 

order to emphasize that, while inmates 

should never be discouraged from 

reporting abuse, they must understand 

that correctional medical and mental 

health practitioners cannot ensure 

complete confidentiality. 

Comment. Advocates also 

recommended adding language to 

§§ 115.61(b), 115.161(b), and 115.261(b) 

to clarify that personnel who need to 

receive information related to a sexual 

abuse report in order to make treatment, 

investigation, and other security and 

management decisions shall receive 

only the information necessary for them 

to perform their job functions safely and 

effectively. These commenters stated 

that the fact that a staff member needs 

some information about a sexual abuse 

report does not mean that all such 

information must, or should, be shared. 

Response. The Department agrees that 

it is important to limit, to the extent 

possible, the information shared relating 

to a sexual abuse report. An individual 

who needs to know certain information 

relating to a sexual abuse report should 

receive only the information necessary 

to make treatment, investigation, and 

other security and management 

decisions—and no more. The 

Department has therefore replaced the 

phrase ‘‘other than those who need to 

know’’ under §§ 115.61(b), 115.161(b), 

115.261(b), and 115.361(c) with ‘‘other 

than to the extent necessary.’’ This 

revision makes clear that the standard 

requires facilities to prohibit the sharing 

of any more information than is 

necessary to make treatment, 

investigation, or other security and 

management decisions. 

Comment. One State correctional 

agency recommended clarifying that the 

facility head is the person responsible 

for ensuring that all allegations of sexual 

abuse, including third-party and 

anonymous reports, are reported to 

appropriate investigative staff. 

Response. The Department does not 

believe clarification is necessary. To the 

extent the facility head is responsible 

for all facility operations, he or she is 

responsible for ensuring that allegations 

are reported appropriately. The facility 

head may, of course, delegate 

responsibilities to other supervisory 

staff who ultimately report to the facility 

head. 

Comment. An inmate and an 

advocacy organization recommended 

that agencies be required to take 

disciplinary action against staff who do 

not report their knowledge, suspicion, 

or information relating to sexual abuse. 

Response. The Department agrees that 

discipline may be warranted in such 

contexts, but believes that is adequately 

addressed under §§ 115.76, 115.176, 

115.276, and 115.376, which govern 

disciplinary sanctions for staff. That 

standard provides, in paragraph (a), that 

‘‘[s]taff shall be subject to disciplinary 

sanctions up to and including 

termination for violating agency sexual 

abuse or sexual harassment policies.’’ 

Comment. A State office of juvenile 

justice suggested replacing ‘‘promptly’’ 

with ‘‘immediately’’ under 

§ 115.361(e)(1), because ‘‘promptly’’ is 

ambiguous and subject to interpretation. 

Response. The Department trusts that 

facilities will accurately interpret 

‘‘promptly’’ to mean ‘‘without delay.’’ 

Comment. One commenter 

recommended that States pursue and 

investigate allegations of violence 

against children through the relevant 

agency, such as child welfare agencies, 

that investigate analogous allegations in 

the community. 

Response. Each State has its own 

reporting system for allegations of child 

abuse and neglect, and the final 

standard requires agencies and staff to 

comply with the State’s child abuse 

reporting laws. The final standard 

allows States appropriate discretion in 

determining which agency conducts the 

investigation; a bright-line rule 

requiring a child welfare agency to 

conduct the investigation would not 

necessarily ensure that investigations 

are conducted optimally. 

Comment. Several commenters raised 

concerns about § 115.361(e)(3). State 

juvenile justice agencies urged 

clarification that notice to the court is 

required only where the court retains 

jurisdiction over an alleged juvenile 

victim, rather than jurisdiction over an 

alleged juvenile perpetrator, in order to 

avoid undermining the alleged 

perpetrator’s due process rights. The 

same commenters questioned the value 

of court notification of unsubstantiated 

allegations. One agency asked whether 

notice to a juvenile’s attorney is 

required; an advocacy group 

recommended that such notification be 

required to facilitate post-dispositional 

representation. 

Response. The final standard clarifies 

that the notification requirement in 

§ 115.361(e)(3) applies only to alleged 

victims, not alleged perpetrators. The 

Department agrees that where a court 

retains jurisdiction over an alleged 

juvenile victim, notifying the juvenile’s 

attorney or other legal representation of 

record of the allegation is appropriate, 

and has added this requirement. Given 

this revision, the Department concludes 

that court notification is no longer 

necessary. The Department has therefore 

replaced the court notification 

requirement under § 115.361(e)(3) with 

a requirement that, where a juvenile 

court retains jurisdiction over an alleged 

juvenile victim, the facility must report 

an allegation of sexual abuse to the 

juvenile’s attorney or other legal 

representative of record within 14 days 

of receiving the allegation. 

Comment. A coalition of juvenile 

advocacy organizations proposed 

revising the parent/guardian notification 

exception in § 115.361(e)(1) from 

‘‘unless the facility has official 

documentation showing the parents or 

legal guardians should not be notified’’ 

to ‘‘unless the facility has official 

documentation of parental termination, 

or has notice of other circumstances 

related to a youth’s physical or 

emotional well-being which indicate 

that parents or legal guardians should 

not be notified.’’ 

Response. The Department concludes 

that requiring ‘‘official documentation’’ 


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appropriately defines the scope of 

agency discretion, and helps ensure that 

decisions will be objective and not 

influenced by a desire to withhold 

information that could reflect poorly 

upon the facility. 

Comment. A number of advocates 

expressed concern that the proposed 

standard fails to provide guidance 

regarding age of consent laws as they 

relate to how juvenile facilities should 

handle the reporting of incidents of 

voluntary sexual contact between 

residents. 

Response. The Department believes 

these concerns are addressed under the 

staff training requirements of § 115.331, 

which requires specific training on, 

among other topics, distinguishing 

between consensual sexual contact and 

sexual abuse between residents, relevant 

laws regarding the applicable age of 

consent, and how to comply with 

relevant laws related to mandatory 

reporting of sexual abuse to outside 

parties. 

Agency Protection Duties (§§ 115.62, 

115.162, 115.262, 115.362) 

The Department has added this 

standard, which did not appear in the 

proposed rule, in order to make explicit 

what was implicit in the proposed rule: 

That an agency must act immediately to 

protect an inmate whenever it learns 

that he or she faces a substantial risk of 

imminent sexual abuse. 

Reporting to Other Confinement 

Facilities (§§ 115.63, 115.163, 115.263, 

115.363) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.62, 

115.162, 115.262, and 115.362) required 

that a facility that receives an allegation 

that one of its inmates was sexually 

abused at another facility must inform 

that other facility of the allegation 

within 14 days. The proposed standard 

also required the facility receiving the 

information to investigate the allegation. 

Changes in Final Rule 

The Department has made several 

small changes to this standard. In order 

to ensure that facilities report 

allegations promptly, the Department 

has removed reference to the 14-day 

timeframe in paragraph (a) and has 

added a new paragraph (b) requiring 

that such notification be provided as 

soon as possible, but no later than 72 

hours after receiving the allegation. The 

final standard no longer requires that 

notification be in writing. 

In paragraph (a), the Department has 

removed the word ‘‘central’’ from the 

phrase, ‘‘the head of the facility or 

appropriate central office of the 

agency.’’ In the paragraph formerly 

designated as (b), now designated as (d), 

the Department has replaced ‘‘central 

office’’ with ‘‘agency office.’’ 

The Department intends for all 

facilities, including community 

confinement facilities, to report 

allegations of sexual abuse occurring at 

any other facility. Accordingly, in 

§ 115.263, the Department has replaced 

the phrase ‘‘while confined at another 

community corrections facility’’ with 

‘‘while confined at another facility.’’ 

In § 115.163, the Department has 

replaced the phrase ‘‘while confined at 

another facility or lockup’’ with ‘‘while 

confined at another facility,’’ to clarify 

that the definition of facility includes 

lockups. 

Comments and Responses 

Comment. Numerous commenters, 

including both advocacy groups and 

correctional agencies, recommended 

shortening the 14-day timeframe. 

Several commenters suggested replacing 

‘‘Within 14 days of * * *’’ with 

‘‘Immediately upon * * *’’ One 

advocacy group recommended requiring 

that verbal notice be provided within 

one business day, followed by notice in 

writing within three business days. 

However, one county probation 

department recommended extending the 

timeframe by allowing for a written 

report within 30 days, noting that there 

may be occasions where the initial factgathering takes additional time, 

especially if the complaint is against the 

facility manager. 

Response. The Department is 

persuaded that a 14-day timeframe for 

reporting to other facilities is too long, 

and that facilities should be required to 

report allegations of sexual abuse 

occurring at other facilities to those 

facilities as soon as possible to 

encourage and facilitate a prompt 

investigation. The Department has 

therefore revised the standard to require 

that facilities provide notification as 

soon as possible, but no later than 72 

hours after receiving an allegation. 

Because written notification may not be 

as prompt as other means of 

notification, the Department has 

removed the requirement that 

notification be in writing. Facilities are 

encouraged, however, to document such 

notification in writing as a supplement 

to other notification. 

Comment. Several commenters 

expressed concern about the logistics of 

the notification requirement in 

paragraph (a). A juvenile detention 

center and an association of juvenile 

justice administrators remarked that 

they would not necessarily be able to 

identify the appropriate investigative 

staff at the other facility, and did not 

believe they should have to attempt to 

do so. A county sheriff’s office 

suggested clarifying that notification be 

made to the other facility’s PREA 

coordinator. 

Response. Commenters’ confusion 

about whom to contact may stem from 

the reference to the ‘‘appropriate central 

office.’’ The Department has therefore 

removed the term ‘‘central’’ from the 

phrase ‘‘appropriate central office of the 

agency’’ in paragraph (a), and has 

replaced ‘‘central’’ with ‘‘agency’’ in 

paragraph (c). The Department has also 

removed the word ‘‘central’’ from 

§ 115.61(e)(1). 

The Department does not expect 

facilities to be able to identify the 

appropriate investigative staff, 

especially at facilities operated by other 

agencies. Where a facility is uncertain 

about whom to contact, it may simply 

contact the facility head. 

Staff First Responder Duties (§§ 115.64, 

115.164, 115.264, 115.364) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.63, 

115.163, 115.263, and 115.363) set forth 

staff first responder responsibilities, 

recognizing that staff must be able to 

adequately counsel victims while 

maintaining security and control over 

the crime scene so that any physical 

evidence is preserved until an 

investigator arrives. Specifically, the 

standard required that the first 

responder separate abuser and victim, 

seal and preserve any crime scene, and 

request that the victim not take any 

actions that could destroy physical 

evidence. Where the first staff responder 

is not a security staff member, the 

proposed standard required that the 

responder be required to request that the 

victim not take any actions that could 

destroy physical evidence, and then 

notify security staff. 

Changes in Final Rule 

The Department has made several 

clarifying changes to this standard. The 

Department has removed the phrase 

‘‘within a time period that still allows 

for the collection of physical evidence’’ 

from paragraph (a) and added language 

to paragraphs (a)(3) and (a)(4) stating: ‘‘If 

the abuse occurred within a time period 

that still allows for the collection of 

physical evidence.’’ 

The Department has replaced ‘‘seal 

and preserve any crime scene’’ in 

paragraph (a)(2) with ‘‘preserve and 

protect any crime scene,’’ which is more 


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appropriate for non-law-enforcement 

staff members, and has clarified that any 

evidence must be preserved until 

appropriate steps can be taken to collect 

it. In paragraph (a)(3), the Department 

has clarified that victims must be 

instructed to avoid actions that could 

destroy physical evidence, such as 

urinating or defecating, only where 

appropriate given the incident alleged. 

The Department has also added a new 

paragraph (a)(4), which requires the 

responder to ensure that the abuser not 

take any actions that could destroy 

physical evidence. 

Finally, the Department has clarified 

that the standard applies after learning 

‘‘of an allegation’’ that an inmate was 

sexually abused, and, as elsewhere in 

the final standards, has qualified 

‘‘victim’’ with ‘‘alleged.’’ 

Comments and Responses 

Comment. Two advocacy groups 

expressed concern over the phrase 

‘‘within a time period that still allows 

for the collection of physical evidence,’’ 

noting that physical evidence may 

persist for a long time and urging that 

staff assume that evidence may still be 

available in all cases. 

Response. The Department agrees that 

paragraph (a)(1), which requires the first 

responder to separate the alleged victim 

and the alleged abuser, and paragraph 

(a)(2), which requires that any crime 

scene be protected until appropriate 

steps can be taken to collect any 

evidence, should not be contingent 

upon the amount of time that has passed 

between the alleged incident of sexual 

abuse and the allegation. However, the 

Department remains of the view that it 

is appropriate to request that the alleged 

victim, and ensure that the alleged 

abuser, not take certain actions—such as 

brushing teeth, urinating, or drinking— 

only when the abuse occurred within a 

time period that still allows for the 

collection of physical evidence. 

Accordingly, the Department has 

removed the phrase ‘‘within a time 

period that still allows for the collection 

of physical evidence’’ from paragraph 

(a) and has added comparable language 

to paragraphs (a)(3) and (a)(4). 

Comment. An inmate recommended 

that the final standard require that first 

responders make arrangements to have 

the victim transported within 4–6 hours 

of notification for screening, evidence 

collection, and treatment for sexually 

transmitted diseases. 

Response. The Department agrees that 

it is critical that victims receive 

emergency medical care after an 

incident of sexual abuse, but believes 

that this need is adequately addressed 

under §§ 115.82, 115.182, 115.282, and 

115.382. 

Comment. A State juvenile justice 

agency recommended that § 115.364(c) 

remove smoking from the list of 

activities that victims should be 

requested to avoid post-incident. The 

commenter suggested that references to 

smoking would be inapplicable in 

juvenile facilities. 

Response. Because juveniles are 

sometimes able to smuggle contraband 

cigarettes into facilities, the Department 

has retained language requiring first 

responders to request alleged juvenile 

victims and abusers not to take any 

actions that could destroy physical 

evidence, including smoking. 

Comment. A county juvenile justice 

agency suggested that this standard 

conflicts with § 115.351(e), which 

requires agencies to provide a method 

for staff to privately report sexual abuse 

and sexual harassment of residents. The 

commenter inquired whether a staff 

member could choose to abandon the 

responsibilities outlined in this 

standard and privately report the matter 

instead. 

Response. The requirement that 

agencies provide a method for staff to 

privately report sexual abuse and sexual 

harassment of residents is consistent 

with the staff first responder duties 

outlined in this standard. By ‘‘first 

responder,’’ the Department means the 

first security staff member to respond to 

a report of sexual abuse. The first 

responder need not be the same staff 

member who initially reports the 

allegation. For example, if a staff 

member privately reports alleged sexual 

abuse to an investigator pursuant to 

§§ 115.51, 115.151, 115.251, or 115.351, 

the investigator would then initiate 

protocols for responding to the 

allegation, including assigning 

appropriate staff to fulfill the 

requirements set out in §§ 115.64, 

115.164, 115.264, and 115.364. 

Coordinated Response (§§ 115.65, 

115.165, 115.265, 115.365) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.64, 

115.164, 115.264, and 115.364) required 

a coordinated response among first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership whenever an incident of 

sexual abuse occurs. 

Changes in the Final Rule 

The final standard requires the 

development of a written institutional 

plan to coordinate responses. 

Comments and Responses 

Comment. NPRM Question 25 asked 

whether the proposed standard 

provided sufficient guidance as to how 

compliance would be measured. Many 

commenters, including both agency 

commenters and advocacy 

organizations, suggested that having a 

written plan would be a good way to 

assess compliance. Other suggestions 

included documentation of responses or 

meeting minutes. 

Response. After reviewing the 

responses to this question, the 

Department concludes that requiring a 

written plan would be the simplest and 

most effective way to document 

compliance, and has revised the 

standard accordingly. 

Comment. Former members of the 

NPREC recommended that specific 

details be added to the standard, such 

as a list of actions to be coordinated, 

and that victim advocates be included 

where the victim is a juvenile. 

Response. The Department believes 

that it is not necessary to specify the set 

of actions to be coordinated. As a 

general guide to ensuring that the victim 

receives the best possible care and that 

investigators have the best chance of 

apprehending the perpetrator—and as 

noted in the discussion of this standard 

in the NPRM—the Department 

recommends, but does not mandate, 

coordination of the following actions, as 

appropriate: (1) Assessing the victim’s 

acute medical needs, (2) informing the 

victim of his or her rights under relevant 

Federal or State law, (3) explaining the 

need for a forensic medical exam and 

offering the victim the option of 

undergoing one, (4) offering the 

presence of a victim advocate or a 

qualified staff member during the exam, 

(5) providing crisis intervention 

counseling, (6) interviewing the victim 

and any witnesses, (7) collecting 

evidence, and (8) providing for any 

special needs the victim may have. The 

use of victim advocates is discussed in 

response to the comments on § 115.21 

and its counterparts. 

Comment. Other advocate 

commenters recommended that the 

Department specifically require formal 

coordinated response teams and that the 

written plan include a specific list of 

staff positions that make up the teams 

and their duties. 

Response. While facilities are 

encouraged to formalize the 

composition of their response teams, the 

Department believes that it is not 

necessary to mandate a specific list of 

staff positions and duties, which may 

change based upon experience and 

personnel adjustments. 


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Comment. Many agency commenters 

supported the standard, but some 

expressed concerns. One agency 

commenter suggested that the eight 

actions to be coordinated might fall 

exclusively within the purview of the 

outside criminal investigating agency. 

Response. This standard would not 

require any agency to take actions 

outside the scope of its own authority, 

but only to coordinate with all 

responders involved. 

Comment. Another agency commenter 

requested a definition of ‘‘first 

responder.’’ 

Response. The Department intends for 

this term to have its usual meaning: the 

staff person or persons who first arrive 

at the scene of an incident. 

Comment. One correctional agency 

stated that the use of a sexual assault 

response team should be a 

recommendation rather than a mandate. 

Response. As noted in the NPRM, this 

standard was modeled after coordinated 

sexual assault response teams (SARTs), 

which are widely accepted as a best 

practice for responding to rape and 

other incidents of sexual abuse. 

However, whether a facility formally 

designates its responders as a SART is 

at its discretion. As noted in the NPRM, 

agencies are encouraged to work with 

existing community SARTs or may 

create their own plan for a coordinated 

response. 

Comment. In response to NPRM 

Question 25, which asked whether this 

standard provided sufficient guidance 

as to how compliance would be 

measured, many commenters, including 

agency commenters and advocacy 

organizations, suggested that the 

existence of a written plan should 

constitute compliance. Other 

suggestions recommended using 

documentation of responses or meeting 

minutes as proof of compliance. 

Response. The final standard requires 

facilities to develop a written 

institutional plan to coordinate 

responsive actions. An auditor will 

measure compliance by ensuring that a 

facility has such a plan in place and that 

the plan is sufficient to ensure a 

coordinated response. For example, the 

auditor will assess whether the plan 

includes appropriate personnel or 

whether additional facility staff should 

be involved. 

Preservation of Ability To Protect 

Inmates From Contact With Abusers 

(§§ 115.66, 115.166, 115.266, 115.366) 

Summary of Proposed Rule 

A paragraph within a standard 

contained in the proposed rule 

(numbered as §§ 115.65(d), 115.165(d), 

115.265(d), and 115.365(d)) prohibited 

agencies from entering into or renewing 

any collective bargaining agreements or 

other agreements that limit the agency’s 

ability to remove alleged staff abusers 

from contact with victims pending an 

investigation. 

Changes in Final Rule 

The final rule breaks out this 

provision as a separate standard, and 

strengthens the standard by (1) covering 

the agency’s ability to limit contact with 

any inmate, not only alleged victims; 

and (2) extending the period of time 

within which the agency may remove 

staff from contact with victims to 

include the pendency of a 

determination of whether and to what 

extent discipline is warranted. In 

addition, the final standard extends to 

any government agency negotiating 

collective bargaining agreements on the 

correctional agency’s behalf, in 

recognition of the fact that correctional 

agencies often do not conduct their own 

collective bargaining. 

The final standard adds language to 

clarify that this standard is not intended 

to restrict agreements that govern the 

conduct of the disciplinary process or 

that address whether a no-contact 

assignment that is imposed pending the 

outcome of an investigation shall be 

expunged from or retained in the staff 

member’s personnel file following a 

determination that the allegation of 

sexual abuse is not substantiated. 

Comments and Responses 

Comment. One county sheriff’s office 

suggested that this provision be 

converted into a separate standard. 

Response. The Department agrees that 

it is more appropriate to treat this 

requirement as a separate standard, as it 

is a precursor to the requirement in 

§ 115.67 that the agency take protective 

measures against retaliation. 

Comment. Two State correctional 

agencies and a county sheriff’s office 

commented that correctional agencies 

typically are not responsible for 

negotiating employee contracts. 

Response. The Department has 

revised the standard to apply to any 

governmental entity responsible for 

collective bargaining on an agency’s 

behalf. 

Comment. One advocacy group 

recommended amending the proposed 

standard to make clear that agencies 

may not enter into or renew contracts 

with private prison companies that limit 

the agency’s ability to remove the 

alleged staff abusers from contact with 

victims pending an investigation. 

Response. While the standard 

emphasizes collective bargaining 

agreements, the standard also expressly 

includes any ‘‘other agreement that 

limits the agency’s ability to remove 

alleged staff abusers from contact with 

inmates pending the outcome of an 

investigation or of a determination of 

whether and to what extent discipline is 

warranted.’’ The Department intends the 

standard to preclude agencies from 

entering into any agreements that would 

limit the agency’s ability to place 

alleged staff abusers on no-contact 

status during the investigatory or 

disciplinary process. 

Comment. One sheriff’s office 

predicted that this standard will limit 

collective bargaining agreements. 

Response. The Department does not 

believe that this standard will impede 

agencies and unions from reaching 

agreements. To the extent that it does, 

such an (unlikely) outcome is necessary 

in order to ensure that alleged staff 

abusers are kept out of contact with 

alleged victims. 

Comment. A State juvenile justice 

agency recommended that the contract 

language in collective bargaining 

agreements include the following 

specific language: ‘‘prohibit alleged staff 

abusers from contact with residents 

pending the results of an investigation 

or placing a staff abuser on 

administrative leave pending the results 

of the investigation.’’ 

Response. The Department does not 

find it necessary to require agencies to 

adopt specific contract language in 

order to meet their obligations under 

this standard. 

Comment. A legal services 

organization asserted that the proposed 

standard would be ineffective because it 

aimed only at preserving agencies’ 

ability to protect inmates from contact 

with abusers pending an investigation. 

In the commenter’s view, investigations 

are often little more than whitewashes 

and only a small fraction of complaints 

are substantiated. Moreover, the 

commenter asserted that corrections 

officials will still claim that they cannot 

remove staff from a bid position unless 

an arbitrator agrees with their position. 

The commenter recommended that the 

standard require facilities to prevent 

contact between staff and an inmate 

when the administrator has an 

objectively reasonable belief that the 

staff member poses a risk to the inmate’s 

safety. If the facility cannot do so 

because of an employment contract, the 

commenter recommended that the 

agency be required to take all legal steps 

to re-negotiate that contract during its 

term and, at a minimum, be directed not 

to enter again into such a contract. 

Response. Upon reconsideration, the 

Department concludes that the proposed 


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standard was insufficiently broad in that 

it applied only ‘‘pending an 

investigation.’’ In addition, the 

proposed standard did not appropriately 

address agencies’ ability to provide such 

protection to all inmates. The 

Department has therefore extended the 

standard to prohibit agencies, or 

governmental entities negotiating on the 

agency’s behalf, from entering into or 

renewing agreements that limit the 

agency’s ability to remove alleged staff 

abusers from contact with any inmate 

pending the outcome of an investigation 

or a disciplinary determination. 

This standard does not mandate that 

an agency take any specific action 

against alleged staff abusers; rather, it 

requires that the agency not tie its hands 

by entering into a collective bargaining 

agreement that limits the agency’s 

ability to remove a staff member from a 

post that involves contact with inmates, 

as a prophylactic measure, while the 

agency determines what happened and 

what measure of discipline is 

warranted. An agency may determine, 

consistent with the standard, that it is 

best to decide on a case-by-case basis, 

taking into account the gravity and 

credibility of the allegations, whether to 

place a staff member in a no-contact 

status pending such determinations. 

The Department notes that placing staff 

accused of sexual misconduct or other 

serious inmate abuse on no-contact 

status is a common practice in many 

facilities and is consistent with best 

practices. This is particularly true in the 

context of juvenile justice facilities, 

where it would be extremely unusual to 

permit staff accused of serious resident 

abuse to continue supervising residents 

pending the outcome of an 

administrative assessment and, if 

appropriate, an internal or criminal 

investigation. 

This standard is limited in scope in 

that it does not purport to govern 

agreements regarding the conduct of the 

disciplinary process, as long as such 

agreements are consistent with 

§§ 115.72, 115.172, 115.272, and 

115.372, which forbid imposition of a 

standard higher than a preponderance of 

the evidence in determining whether 

allegations of sexual abuse or sexual 

harassment are substantiated, and with 

§§ 115.76, 115.176, 115.276, and 

115.376, which generally govern 

disciplinary sanctions for staff and 

which provide that termination shall be 

the presumptive disciplinary sanction 

for staff who have engaged in sexual 

abuse. In addition, the standard does 

not restrict entering into agreements that 

address whether and in what form the 

record of the staff member’s no-contact 

assignment will be retained in the 

employee’s personnel file if the 

allegations against the employee are not 

substantiated. 

The Department declines to impose 

further restrictions on the use of 

arbitration in discipline determinations. 

What is crucial is establishing proper 

ground rules to govern the disciplinary 

process, pursuant to §§ 115.72, 115.172, 

115.272, and 115.372, and §§ 115.76, 

115.176, 115.276, and 115.376, and 

ensuring that the agency has the ability 

to take prophylactic action while the 

disciplinary process runs its course. 

With those conditions in place, the 

Department does not believe that the 

final standards need restrict the use of 

arbitrators to review factual findings or 

disciplinary determinations in order to 

ensure that the interests of inmates are 

protected. 

Agency Protection Against Retaliation 

(§§ 115.67, 115.167, 115.267, 115.367) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.65, 

115.165, 115.265, and 115.365) required 

that the agency protect all inmates and 

staff from retaliation for reporting sexual 

abuse or for cooperating with sexual 

abuse investigations, in recognition of 

the fact that retaliation for reporting 

instances of sexual abuse and for 

cooperating with sexual abuse 

investigations is a serious concern in 

correctional facilities. The proposed 

standard required agencies to adopt 

policies that help ensure that persons 

who report sexual abuse are properly 

monitored and protected, including but 

not limited to providing information in 

training sessions, enforcing strict 

reporting policies, imposing strong 

disciplinary sanctions for retaliation, 

making housing changes or transfers for 

inmate victims or abusers, removing 

alleged staff or inmate abusers from 

contact with victims, and providing 

emotional support services for inmates 

or staff who fear retaliation. 

The proposed standard also required 

that agencies monitor the conduct and 

treatment of inmates and staff who have 

reported sexual abuse or cooperated 

with investigations for at least 90 days 

to see if there are changes that may 

suggest possible retaliation by inmates 

or staff, and act promptly to remedy any 

such retaliation. In addition, the 

proposed standard required that 

monitoring continue beyond 90 days if 

the initial monitoring conducted during 

the initial 90-day period indicated 

concerns that warranted further 

monitoring. 

Changes in Final Rule 

In paragraph (a), the final standard 

specifies that an agency shall ‘‘establish 

a policy’’ to protect against retaliation, 

‘‘and shall designate which staff 

members or departments are charged 

with monitoring retaliation.’’ 

In paragraph (c), the final standard 

clarifies that the agency must monitor 

the conduct and treatment of inmates 

who have been reported to have suffered 

sexual abuse, in addition to inmates and 

staff who have reported sexual abuse 

directly. The final standard adds 

language in §§ 115.67(d), 115.267(d), 

and 115.367(d) requiring that 

monitoring of inmates include periodic 

status checks. 

In addition, the final standard 

specifies that an agency need not 

continue monitoring if it determines 

that an allegation is unfounded. 

The final standard also includes 

various clarifying changes. In paragraph 

(b), the phrase ‘‘including housing 

changes or transfers’’ has been changed 

to ‘‘such as housing changes or 

transfers,’’ and in §§ 115.67(c), 

115.267(c), and 115.367(c), ‘‘including 

any inmate disciplinary reports, housing 

or program changes’’ has been changed 

to ‘‘[i]tems the agency should monitor 

include any inmate disciplinary reports 

* * *’’ In §§ 115.67(c), 115.267(c), and 

115.367(c), the list of actions that 

should be considered possible evidence 

of retaliation now includes examples of 

retaliation against staff. 

Comments and Responses 

Comment. A few correctional agencies 

recommended replacing ‘‘[t]he agency 

shall protect all inmates and staff who 

report’’ with ‘‘the agency shall 

reasonably protect’’ or ‘‘shall establish 

an adequate level of protection against 

retaliation.’’ Two advocacy 

organizations recommended requiring 

that the agency establish a written 

policy on retaliation and designate who 

is responsible for monitoring. 

Response. In order to make the 

requirements of this standard more 

concrete, the Department has revised 

this language to require agencies to 

establish a policy to protect all inmates 

and staff, including designating which 

staff members or departments are 

charged with monitoring retaliation. 

Comment. While many correctional 

agencies expressed general satisfaction 

with the proposed standard, several 

expressed concern that the requirement 

that agencies monitor for 90 days all 

individuals who have cooperated with 

an investigation was excessively 

burdensome, particularly in large prison 

systems where hundreds of people 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 37169 

could be involved in investigations at 

any given time. One sheriff’s office 

stated that identifying for monitoring 

purposes all inmates who have 

cooperated with an investigation could 

raise confidentiality concerns. 

Commenters offered a range of 

suggestions for limiting the scope of 

monitoring requirements. Some 

correctional agencies recommended that 

monitoring not be required where 

allegations are determined to be 

unfounded; another agency 

recommended that monitoring not be 

required either for unfounded or 

unsubstantiated allegations. Some 

agency commenters suggested that 

monitoring be required only of persons 

who ‘‘materially’’ cooperate with 

investigations, and recommended 

clarifying that the provision applies to 

inmates who report abuse during their 

present term of incarceration. Another 

agency would limit the monitoring 

requirement to the inmate or staff 

member who made the report, or, if the 

report was made by a third party, to the 

alleged victim if he or she cooperated 

with the investigation. 

Response. Upon reconsideration, the 

Department has modified the 

monitoring requirements in order to 

focus resources where monitoring is 

likely to be most important. 

First, the Department has removed the 

requirement that agencies automatically 

monitor all individuals who cooperate 

with an investigation. Instead, the final 

standard requires agencies to take 

appropriate measures to protect any 

individual who has cooperated with an 

investigation and expresses a fear of 

retaliation. The final standard retains 

the requirement to monitor inmates and 

staff who have reported sexual abuse, 

and adds a requirement to monitor 

victims who have been reported to have 

suffered sexual abuse. 

Second, the Department has added 

language terminating the agencies’ 

obligation to monitor if the agency 

determines that the allegation is 

unfounded. Monitoring remains 

appropriate where an agency has 

classified an allegation as 

‘‘unsubstantiated’’—which means, as 

defined in § 115.5, that the investigation 

produced insufficient evidence to 

enable the agency to make a final 

determination as to whether or not the 

event occurred. 

The Department understands the 

concern that identifying individuals for 

monitoring may raise confidentiality 

issues, but believes that this risk can be 

managed. The Department encourages 

agencies, in developing their policies, to 

limit the number of staff with access to 

the names of individuals under 

monitoring and to be mindful of 

situations in which a staff member who 

poses a threat of retaliation may also be 

entrusted with monitoring 

responsibilities. 

Comment. Several commenters 

suggested adding the NPREC’s 

recommended language requiring that 

the agency discuss any changes in 

treatment of inmates or staff with the 

appropriate inmate or staff member as 

part of its efforts to determine if 

retaliation is occurring. 

Response. The Department agrees that 

monitoring of inmates who have 

reported sexual abuse or who have been 

reported to have suffered sexual abuse 

should also include periodic status 

checks, and has revised the standard 

accordingly. 

Comment. A few agencies, joined by 

the AJA, recommended that the 

standards account for the physical 

limitations of smaller jails and juvenile 

detention centers. The AJA 

recommended adding language to 

clarify that housing changes would 

occur ‘‘to the extent the physical layout 

of the jail will allow.’’ Another 

commenter suggested substituting ‘‘such 

as’’ for ‘‘including’’ in paragraph (b), to 

account for facilities that cannot make 

housing changes. 

Response. The Department recognizes 

that, because of space constraints, some 

facilities will not be able to 

accommodate housing changes, and 

may need to employ alternative 

protection measures. To clarify that the 

measures included in the standard are 

examples rather than requirements, the 

final standard replaces ‘‘including’’ with 

‘‘such as.’’ 

Comment. Several agency 

commenters recommended clarifying 

how staff should be protected from 

retaliation. One suggested that negative 

performance reviews or reassignment 

could indicate retaliation against 

cooperating staff. 

Response. To better clarify what 

monitoring of staff should entail, the 

Department has added ‘‘negative 

performance reviews or reassignments 

of staff’’ to §§ 115.67(c), 115.267(c), and 

115.367(c) as examples of conduct or 

treatment that might indicate retaliation 

against staff. Of course, these are merely 

examples; agencies should be mindful 

that retaliation may be manifested in 

other ways. 

Comment. The Department received 

numerous responses to NPRM Question 

26, which asked whether the standard 

should be revised to provide additional 

guidance regarding when continuing 

monitoring is warranted. Most 

commenters found the current language 

sufficient, including many agency 

commenters. However, several State 

correctional agencies requested 

additional guidance. Specific requests 

included: clarification of what 

monitoring consists of and how it differs 

from general monitoring of offenders 

and staff; examples of what level of 

monitoring would be acceptable to meet 

the standard and what incidents would 

warrant continued monitoring; and 

detailed training on how to monitor. In 

addition, an advocacy organization 

suggested that agencies restart the 90- 

day clock after each new incident of 

retaliation; an inmate recommended 

that monitoring be mandated for eight 

months; an anonymous commenter 

proposed that the standard require that 

monitoring continue until the agency is 

reasonably certain that retaliation has 

ceased; and an agency asked whether 

the 90-day monitoring needed to be 

documented in any particular way. 

Response. In light of the fact that most 

commenters expressed satisfaction with 

the level of detail included in this 

standard, and in order to afford agencies 

flexibility to develop a monitoring 

policy consistent with their existing 

operations and professional judgment, 

the Department declines to provide a 

detailed definition of monitoring or to 

list scenarios in which continuing 

monitoring would be warranted. 

However, the Department expects that 

the final standards’ addition of 

examples of how staff might experience 

retaliation, as well as the new 

requirement that monitoring for certain 

individuals include periodic status 

checks, will assist agencies in 

developing their policies to protect 

against retaliation. 

The Department does not find it 

necessary to specify that a new incident 

of retaliation must restart the 90-day 

clock, as the final standard requires 

agencies to continue monitoring beyond 

90 days if the initial monitoring 

indicates a continuing need. The 

Department trusts that agencies will 

recognize that an incident of retaliation 

indicates a continuing need for 

monitoring. Finally, in light of the 

requirement that agencies continue 

monitoring beyond 90 days if the initial 

monitoring indicates a continuing need, 

as well as agencies’ concerns about the 

cost and burden of a monitoring 

requirement, the Department declines to 

revise the standard to require agencies 

to monitor for eight months. 


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37170 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

Criminal and Administrative Agency 

Investigations (§§ 115.71, 115.171, 

115.271, 115.371) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that agencies 

that conduct their own investigations do 

so promptly, thoroughly, and 

objectively. The proposed standard 

required investigations whenever an 

allegation of sexual abuse is made, 

including third-party and anonymous 

reports, and prohibited the termination 

of an investigation on the ground that 

the alleged abuser or victim is no longer 

employed or housed by the facility or 

agency. The proposed standard required 

that investigators gather and preserve all 

available direct and circumstantial 

evidence. 

The proposed standard required that 

investigators be trained in conducting 

sexual abuse investigations in 

compliance with §§ 115.34, 115.134, 

115.234, and 115.334. 

To ensure an unbiased evaluation of 

witness credibility, the standard 

required that credibility assessments be 

made objectively rather than on the 

basis of the individual’s status as an 

inmate or a staff member. 

In addition, the proposed standard 

required that all investigations, whether 

administrative or criminal, be 

documented in written reports, which 

must be retained for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

Changes in Final Rule 

The final standard contains several 

small changes. 

In paragraph (a), the duty to 

investigate allegations promptly, 

thoroughly, and objectively has been 

extended to sexual harassment in 

addition to sexual abuse. 

In paragraph (e) of §§ 115.71, 115.171, 

and 115.271, and paragraph (f) of 

§ 115.371, the final standard provides 

that no agency shall require an inmate 

who alleges sexual abuse to submit to a 

polygraph examination or other truthtelling device as a condition for 

proceeding with the investigation of 

such an allegation. 

In paragraph (f) of §§ 115.71, 115.171, 

and 115.271, and paragraph (g) of 

§ 115.371, the final standard provides 

that administrative investigations 

should endeavor to determine whether 

staff actions or failures to act 

‘‘contributed to’’ the abuse, rather than 

‘‘facilitated to’’ as in the proposed 

standard. 

In paragraph (i) of §§ 115.71, 115.171, 

and 115.271, the final standard provides 

that the duty to retain documents 

applies to ‘‘all written reports 

referenced in paragraphs (f) and (g),’’ 

rather than ‘‘such investigative records’’ 

as in the proposed standard. The final 

standard for juvenile facilities makes a 

similar change in § 115.371(j). 

In paragraph (j) of the standard for 

juvenile facilities, the final standard 

allows for a shorter retention period for 

written reports regarding abuse 

committed by residents where the 

retention for the time period otherwise 

required by the standard is prohibited 

by law. 

Comments and Responses 

Comment. One commenter expressed 

concern that the restriction on 

conducting compelled interviews until 

prosecutors are consulted failed to 

account for the fact that it is not always 

known if a criminal prosecution is a 

possibility when an investigation 

begins. 

Response. This standard requires 

consultation with prosecutors before 

conducting compelled interviews when 

the quality of existing evidence would 

support a criminal prosecution. The 

standard would not prohibit an 

administrative investigation when 

evidence does not support a criminal 

prosecution. If that assessment changes 

during the course of an administrative 

investigation due to new evidence, 

prosecutors should be consulted at that 

time. In case of doubt at any point in the 

investigation, prosecutors should be 

consulted. 

Comment. Some advocates suggested 

strengthening this standard in various 

ways, including by requiring 

consultation with prosecutors to 

determine whether the quality of 

evidence appears to support criminal 

prosecution. 

Response. While the Department 

recommends consultations with 

prosecutors in case of doubt, it is not 

necessary to require such consultation 

during all investigations. Agencies 

usually will be able to determine 

whether the contours of an incident 

indicate that criminal wrongdoing may 

have occurred, and are encouraged to 

consult with prosecutors in case of 

doubt. 

Comment. Some advocates suggested 

requiring that a preliminary 

investigation commence immediately 

upon receiving an allegation of sexual 

abuse. 

Response. The standard requires 

investigations to be conducted 

‘‘promptly,’’ which is intended to 

emphasize the importance of 

investigating without delay. 

Comment. Some advocates suggested 

requiring agencies to rely on available, 

accepted sexual assault protocols. 

Response. Section 115.21 requires 

that agencies responsible for 

investigating allegations of sexual abuse 

follow a uniform evidence protocol that 

maximizes the potential for obtaining 

usable physical evidence for 

administrative proceedings and criminal 

prosecutions. Section 115.21 requires 

that the protocol be adapted from or 

otherwise based on the Department’s 

SAFE Protocol, or similarly 

comprehensive and authoritative 

protocols developed after 2011. 

Comment. Some advocates 

recommended requiring a 

comprehensive written plan—including 

a memorandum of understanding—to 

guide the coordination of administrative 

and criminal investigations. 

Response. In the interest of affording 

agencies flexibility in implementing 

these standards, the Department 

declines to mandate such a plan or 

memorandum, although it encourages 

agencies to consider whether doing so 

will help coordinate its investigatory 

efforts. 

Comment. A number of inmates 

stressed the importance of the provision 

requiring that credibility be assessed on 

an individual basis, as opposed to the 

person’s status as inmate or staff, given 

that, in their view, agencies 

inappropriately favor staff over inmates 

when their statements conflict. One 

agency commenter recommended that 

this standard be removed, on the 

grounds that it is not measurable and 

constitutes a best practice. 

Response. Objective assessments of 

credibility are crucial in investigations 

of sexual abuse in correctional settings, 

especially when abuse by staff is 

alleged. While this standard is not easily 

quantifiable, it is quite possible that a 

blatant failure to abide by it will be 

readily evident. For example, when an 

inmate makes an allegation of staff 

abuse, and there is no objective 

evidence that the allegation is false, the 

investigator should attempt to find other 

avenues to corroborate or disprove the 

allegation rather than assessing the 

allegation in a vacuum. In such cases, 

indications in the investigative file as to 

whether the investigator interviewed 

witnesses, reviewed the staff member’s 

disciplinary history, and reviewed the 

inmate’s history of lodging complaints 

would assist the auditor in determining 

whether the accuser’s status as an 

inmate compromised the investigation’s 

objectivity. 

Comment. An inmate recommended 

that the standards be amended to allow 

victims the opportunity to take a 


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polygraph test to prove the truth of their 

statements. However, many advocates 

opposed polygraph testing because it 

often yields inaccurate results and can 

be traumatizing for a victim. They also 

noted that the Department prohibits 

States receiving grants under the STOP 

(Services, Training, Officers, 

Prosecutors) Violence Against Women 

Formula Grant Program from using 

polygraph testing for victims of sexual 

violence. These advocates 

recommended that the standard be 

amended to explicitly prohibit 

polygraph testing for inmates who 

report abuse. 

Response. The Department has 

amended the standard so that it 

prohibits agencies from requiring 

inmates who allege sexual abuse to 

submit to a polygraph examination or 

other truth-telling device as a condition 

for proceeding with the investigation of 

such an allegation. This requirement 

corresponds to a similar condition on 

the receipt of certain VAWA grants 

awarded by the Department. See 42 

U.S.C. 3796gg–8. The Department 

recognizes that polygraph examinations 

are imperfect assessors of credibility. 

Given that States are precluded from 

receiving certain funds if they condition 

investigations upon the alleged victim’s 

agreement to submit to a polygraph test, 

the Department concludes that a 

corresponding requirement is 

appropriate in the PREA context. 

However, this does not prohibit the 

administration of such tests to victims 

who request them. 

Comment. A few inmates 

recommended that the standard be 

strengthened by adding language 

expressly prohibiting staff from 

attempting to coerce inmates into not 

reporting sexual abuse. 

Response. A prohibition against 

coercion of inmates is implicit in the 

standards, including in the requirement 

in this standard to investigate all inmate 

accusations of sexual abuse, and in the 

standard that provides for protection 

against retaliation. 

Comment. A number of advocates 

recommended that the standard also 

encompass investigations into 

allegations of sexual harassment. 

Response. The Department agrees that 

the requirement to investigate 

allegations promptly, thoroughly, and 

objectively should apply to allegations 

of sexual harassment as well, and has 

amended paragraph (a) accordingly. 

Comment. Some stakeholders 

commented that the use of the word 

‘‘facilitated’’ in §§ 115.71(f)(1), 

115.171(f)(1), 115.271(f)(1), and 

115.371(g)(1) appears to require a 

determination of whether staff acted in 

a manner that encouraged or directly 

resulted in the occurrence of the abuse. 

Response. The final standard clarifies 

this provision by replacing ‘‘facilitated’’ 

with ‘‘contributed to.’’ 

Comment. A State correctional agency 

commented that its administrative 

investigations determine facts, but do 

not result in ‘‘findings.’’ 

Response. For clarity, the Department 

has amended §§ 115.71(f)(2), 

115.171(f)(2), 115.271(f)(2), and 

115.371(g)(2) to include both 

investigative ‘‘facts’’ as well as 

‘‘findings.’’ 

Comment. A number of correctional 

commenters asserted that the record 

retention requirements in paragraph (h) 

of the proposed standard (paragraph (i) 

in the juvenile standard) conflicted with 

applicable State or local law, including 

State or local records retention 

schedules. One noted that records may 

not be under the full control of the 

agencies. In some States, the commenter 

noted, juvenile records are under the 

control of the juvenile court and can be 

purged at the request of the juvenile 

offender. Another commenter suggested 

that this requirement would be difficult 

to implement, as the juvenile facility 

would not know when or if a person 

incarcerated in an adult facility is 

released. A number of such commenters 

recommended allowing agencies to 

retain records in a manner consistent 

with State law. One commenter 

expressed concern about the cost and 

administrative burden of maintaining all 

investigative records beyond the period 

of employment or incarceration, and 

recommended that it should suffice to 

retain the final report. Another 

recommended that the standard require 

that such records be kept confidential 

and not be subject to public inspection 

under the Freedom of Information Act 

or similar State laws. 

Response. The recordkeeping 

requirement of this standard, now 

contained in paragraph (i) (paragraph (j) 

in the juvenile standard) applies only to 

records generated pursuant to 

paragraphs (f) and (g) (paragraphs (g) 

and (h) in the juvenile standard), which 

are within the agencies’ control. There 

is no barrier to retaining these records 

beyond the length of time mandated by 

this standard if required by State or 

local regulation (or if the agency 

chooses to do so for its own reasons). To 

the extent that State or local laws 

mandate the disposal of these records 

within a shorter period, agencies are 

encouraged to seek revisions of such 

laws to the extent necessary in order to 

retain these documents. To reduce 

potential conflicts, the Department has 

amended the standard to allow for a 

shorter retention span when the abuser 

is a juvenile resident and when 

retention of records for the time period 

mandated by the standard is prohibited 

by law. 

The Department does not believe that 

the requirement of maintaining the 

records generated pursuant to 

paragraphs (f) and (g) will prove overly 

burdensome, especially in light of the 

clarification in the final standard that 

only the written reports documenting 

investigations need be retained. 

Finally, the Department lacks the 

authority to determine whether these 

records should be subject to public 

inspection under freedom of 

information laws, which will depend 

upon the relevant laws of the 

jurisdiction in which the custodian of 

the records is located. 

Comment. One agency recommended 

defining ‘‘State entity’’ in § 115.71(k) to 

make clear to which specific entity this 

requirement applies. 

Response. As noted above, the use of 

‘‘State entity’’ in this context refers to 

any division of the State government, as 

opposed to local government. 

Evidentiary Standard for Administrative 

Investigations (§§ 115.72, 115.172, 

115.272, 115.372) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that agencies not 

impose a standard higher than a 

preponderance of the evidence in 

determining whether allegations of 

sexual abuse are substantiated. 

Changes in Final Rule 

The final standard encompasses 

allegations of sexual harassment. 

Comments and Responses 

Comment. Correctional agencies and 

advocates generally supported this 

standard, though a few agencies 

expressed uncertainty as to whether it 

applied to criminal investigations as 

well as administrative investigations. 

Response. As the title of the standard 

indicates, this standard applies only to 

administrative investigations. 

Comment. Some advocates 

recommended that sexual harassment be 

added to this standard, noting that 

allegations of sexual harassment 

typically would be dealt with through 

administrative investigations. 

Response. Upon reconsideration, the 

Department agrees with this 

recommendation and has amended the 

standard to include sexual harassment. 


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Reporting to Inmates (§§ 115.73, 

115.273, 115.373) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that, upon 

completion of an investigation into an 

inmate’s allegation that he or she 

suffered sexual abuse in an agency 

facility, the agency must inform the 

inmate whether the allegation was 

deemed substantiated, unsubstantiated, 

or unfounded. If the agency itself did 

not conduct the investigation, the 

proposed standard required that the 

agency request the relevant information 

from the investigating entity in order to 

inform the inmate. The proposed 

standard further provided that, if an 

inmate alleges that a staff member 

committed sexual abuse, the agency 

must inform the inmate whenever (1) 

The staff member is no longer posted in 

the inmate’s unit, (2) the staff member 

is no longer employed at the facility, (3) 

the staff member has been indicted on 

a charge related to the reported conduct, 

or (4) the indictment results in a 

conviction. The proposed standard did 

not apply to allegations that have been 

determined to be unfounded, and did 

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

Changes in Final Rule 

The final standard adds a requirement 

that all such notification or attempted 

notification must be documented. The 

final standard also expands the 

requirement to inform the inmate if his 

or her abuser is indicted or convicted to 

apply where the abuser is a fellow 

inmate. In addition, the final standard 

clarifies that the agency’s duty to report 

to an alleged victim terminates if the 

victim is released from the agency’s 

custody, and terminates with regard to 

notifications regarding staff 

reassignments, departures, indictments, 

or convictions if the allegation is 

determined to be unfounded. 

Comments and Responses 

Comment. Several agency 

commenters expressed concern with the 

proposed standard on human resource 

practice, security, or privacy grounds. 

These commenters questioned the 

wisdom of providing written 

information to victims and third-party 

complainants given that, in their view, 

such information could easily become 

widely known throughout the facility, 

possibly endangering other inmates or 

staff. 

Response. The Department does not 

believe that notifying an inmate that a 

staff member is no longer posted within 

the unit or facility would imperil other 

inmates or staff. 

Comment. Some agency commenters 

asserted that privacy laws may restrict 

the dissemination of certain information 

about staff members. 

Response. The Department does not 

believe that the disclosure of 

information referenced in this standard 

implicates any privacy interests. 

Importantly, this standard does not 

require that the facility disclose the 

reason why the staff member is no 

longer posted within the inmate’s 

facility or unit. Thus, the facility need 

not reveal whether the staff member’s 

absence is due to a voluntary departure 

or an adverse employment action. 

Indictments and convictions, of course, 

are public facts in which an employee 

or former employee has no privacy 

interest. 

Comment. Other agency commenters 

suggested that gathering this 

information would impose 

administrative difficulties, and some 

recommended that the investigating or 

prosecuting agency be tasked with 

informing the inmate about indictments 

or convictions. One commenter 

recommended that the information 

reported to the inmate be limited to 

information that was publicly available. 

Response. It is highly unlikely that an 

indictment or conviction would result 

without the agency learning about it. 

Even so, the standard does not impose 

any affirmative burden upon agencies to 

gather information for the purpose of 

informing inmates. Rather, it requires 

that the agency inform the inmate 

whenever ‘‘[t]he agency learns’’ that a 

staff member has been indicted or 

convicted on a charge related to sexual 

abuse within the facility (emphasis 

added). 

Comment. A number of advocates 

recommended that the standard be 

amended to provide additional 

information to inmates. They 

recommend requiring that the agency, in 

the case of substantiated claims, inform 

the victim what the agency has done in 

response to the abuse, whether 

administrative sanctions have been 

imposed, whether the agency has 

reported the abuse to prosecutors, and 

the results of any criminal proceeding. 

These advocates also recommended 

requiring disclosure to third-party 

complainants. 

Response. The final standard does not 

incorporate these suggestions. First, 

while the Department encourages 

agencies to communicate with victims 

regarding remedial action taken, it 

would be an inappropriate intrusion 

upon agency operations to require 

agencies to disclose the actions they 

have taken. Second, disclosing the 

imposition of administrative sanctions 

may implicate employees’ privacy rights 

under governing laws. The victim’s 

interests in safety are served by 

requiring disclosure of whether the staff 

member is no longer posted on the 

victim’s unit or in the victim’s facility, 

and the victim’s interest in justice is 

served by requiring disclosure of any 

indictments or convictions. Third, for 

similar reasons, the Department 

declines to revise the standard to 

mandate disclosure of whether the 

agency has reported the abuse to 

prosecutors, or of the results of criminal 

proceedings beyond the fact of a 

conviction. Fourth, such interests do not 

support requiring disclosure to thirdparty complainants, who are not 

similarly situated to the victim. Of 

course, agencies may choose to disclose 

additional information, even if such 

disclosure is not covered by this 

standard. 

Comment. Advocates recommended 

requiring documentation, signed by the 

inmate, that he or she received the 

required information. 

Response. The Department finds merit 

in the suggestion that such notifications 

be documented and has incorporated 

this into the final standard. However, 

the Department does not believe it is 

necessary to require that the inmate sign 

such notifications. 

Comment. Some commenters 

expressed concern that the standard 

could be read to require that 

information be reported to the accuser 

as the investigation unfolds. 

Response. The final standard requires 

an agency to report to an inmate who 

has alleged sexual abuse when the 

allegation has been determined to be 

substantiated, unsubstantiated, or 

unfounded, if the abuser has been 

indicted or convicted on a charge 

related to sexual abuse within the 

facility, and, if the alleged abuse was 

committed by a staff member, when the 

staff member is no longer posted within 

the inmate’s unit or is no longer 

employed at the facility. While agencies 

may determine it is prudent to provide 

an inmate with additional updates if an 

investigation is prolonged, the standard 

does not require an agency to provide 

information during the course of the 

investigation. 

Comment. Some commenters 

recommended that the standard define 

‘‘unfounded’’ and ‘‘unsubstantiated.’’ 

Response. Section 115.5 contains 

definitions of ‘‘unfounded allegation’’ 

and ‘‘unsubstantiated allegation.’’ 

Comment. Some commenters asserted 

that the terms ‘‘substantiated’’ and 

‘‘unsubstantiated’’ apply only to 


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36NPREC, Standards for the Prevention, 

Detection, Response, and Monitoring of Sexual 

Abuse in Adult Prisons and Jails, 47, available at 

http://www.ncjrs.gov/pdffiles1/226682.pdf. 

administrative investigations and 

therefore recommended that paragraph 

(a) be amended to apply only to 

administrative investigations. 

Response. These terms, as defined in 

the final rule, are applicable to all types 

of investigations. Indeed, the BJS Survey 

of Sexual Violence, which for several 

years has been collecting data from 

agencies regarding substantiated, 

unsubstantiated, and unfounded 

allegations, does not limit its inquiries 

to administrative investigations. 

Comment. Some commenters 

recommended that staff be required to 

explain to inmates the meaning of 

substantiated, unsubstantiated, and 

unfounded. 

Response. The Department believes 

that the reporting requirement 

implicitly requires staff to ensure that 

inmates understand the result of the 

investigation. 

Comment. Other commenters 

recommended that the Department 

adopt a standard requiring juvenile 

facilities to report this information to 

parents and legal guardians of juvenile 

victims. 

Response. The Department 

encourages juvenile facilities to share 

such information with parents and legal 

guardians in accordance with the 

facility’s general policies regarding 

communication with parents and legal 

guardians. However, because the 

interests implicated in these disclosures 

most directly impact the victim, the 

Department declines to require agencies 

to do so. 

Comment. Some advocates 

recommended requiring notifications 

analogous to those required by 

paragraph (c) when the perpetrator is 

another inmate. 

Response. Because staff members 

exert complete authority over inmates, 

safety interests compel the notification 

of inmates regarding the transfer or 

departure of a staff member. Because 

fellow inmates lack such authority over 

other inmates, the Department has 

chosen not to require similar 

notification when the perpetrator is 

another inmate. However, the final 

standard expands the indictment/ 

conviction notification requirement to 

cover cases in which the defendant 

abuser is an inmate. 

Comment. One correctional 

commenter recommended that the 

standard require only ‘‘reasonable 

efforts’’ to inform an inmate, because 

the inmate may be released while an 

investigation is still ongoing and may be 

difficult to locate. 

Response. The final standard states 

that an agency has no obligation to 

report to inmates who have been 

released from its custody. 

Comment. A few correctional 

commenters recommended that this 

standard exempt allegations that have 

been determined to be unsubstantiated. 

Response. The Department disagrees 

with this recommendation. By 

definition, an unsubstantiated allegation 

is one in which there is insufficient 

evidence to determine whether or not 

the event occurred. The possibility that 

the event occurred justifies the minimal 

burden of informing the inmate that the 

staff member is no longer posted within 

the inmate’s unit. In addition, an inmate 

who is informed that his or her 

allegation is unsubstantiated may wish 

to provide, or attempt to obtain, 

additional evidence that would benefit 

the investigation. 

Disciplinary Sanctions for Staff 

(§§ 115.76, 115.176, 115.276, 115.376) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule provided that staff shall 

be subject to disciplinary sanctions up 

to and including termination for 

violating agency sexual abuse or sexual 

harassment policies, and that 

termination shall be the presumptive 

disciplinary sanction for staff who have 

engaged in sexual touching. 

The proposed standard further 

provided that sanctions be 

commensurate with the nature and 

circumstances of the acts committed, 

the staff member’s disciplinary history, 

and the sanctions imposed for 

comparable offenses by other staff with 

similar histories. If a staff member is 

terminated for violating such policies, 

or if a staff member resigns in lieu of 

termination, the proposed standard 

required that a report be made to law 

enforcement agencies (unless the 

activity was clearly not criminal) and to 

any relevant licensing bodies. 

Changes in Final Rule 

The final standard provides that 

termination shall be the presumptive 

disciplinary sanction for staff who have 

engaged in sexual abuse, not only sexual 

touching. 

Comments and Responses 

Comment. Several advocate 

commenters stated that termination 

should be the mandatory sanction for 

employees that have engaged in sexual 

abuse, rather than a presumptive 

sanction. 

Response. The Department believes 

that a change is not warranted, for the 

reasons stated by the NPREC in the 

discussion section that accompanied its 

corresponding standard, labeled as 

DI–1: 

This standard requires that termination be 

the ‘‘presumptive’’ but not the mandatory 

sanction for certain types of sexual abuse in 

recognition of the fact that disciplinary 

sanctions must be determined on a case-bycase basis. Establishing termination as a 

presumption places a heavy burden on the 

staff person found to have committed the 

abuse to demonstrate why termination is not 

the appropriate sanction. This presumption 

also requires that termination should be the 

rule for the referenced types of sexual abuse, 

with exceptions made only in extraordinary 

circumstances.36

Comment. A number of agency 

commenters expressed concern that 

collective bargaining agreements may 

limit their ability to assure termination. 

Response. The Department is aware 

that, pursuant to collective bargaining 

agreements, final decisions regarding 

termination may rest in the hands of an 

arbitrator. This standard is intended to 

govern the sanction sought by the 

agency, recognizing that, in some 

circumstances, the agency may not have 

the authority to make the final 

determination. 

Comment. A large number of 

commenters across all commenter types 

requested that the standard be revised to 

provide that termination shall be the 

presumptive disciplinary sanction not 

only for staff who have engaged in 

sexual touching, but also for staff who 

have engaged in other types of sexual 

misconduct such as indecent exposure 

and voyeurism. 

Response. The Department has 

changed the term ‘‘sexual touching’’ to 

‘‘sexual abuse.’’ 

Comment. Some advocate 

commenters expressed concern that the 

range of discipline contemplated in 

paragraph (c) was too broad. In addition, 

one agency commenter suggested that 

the inclusion of a range of discipline 

was not consistent with a zero-tolerance 

policy. 

Response. The Department has 

revised paragraph (c) to make clear that 

it refers to policy violations that do not 

constitute sexual abuse. Coupled with 

the shift from ‘‘sexual touching’’ to 

‘‘sexual abuse’’ in paragraph (b), the 

final standard draws a line between 

sexual abuse by staff, for which 

termination is the presumptive sanction, 

and other policy violations, for which 

agencies are afforded discretion to 

impose discipline as warranted. Such 

violations may include, for example, a 

failure to take required responsive 


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actions following an incident, negligent 

supervision that led to or could have led 

to an incident, or willfully ignoring 

evidence that a colleague has abused an 

inmate. 

Comment. An advocate commenter 

suggested that the final standard 

mandate disciplinary sanctions for staff 

who regularly work on shifts when 

incidents of sexual abuse occur, noting 

that ‘‘standing by while assaults happen 

is a violation of staff responsibility.’’ 

Response. The Department agrees that 

a staff member’s failure to act to prevent 

sexual abuse merits discipline. 

However, a blanket rule mandating 

sanctions for staff who work on shifts 

when incidents occur would not be 

appropriate. Rather, a determination 

whether to impose discipline should be 

made on a case-by-case basis. 

Comment. Commenters in all 

categories requested that this standard 

be expanded to include volunteers and 

contractors. 

Response. The final rule adds a new 

standard, discussed immediately below, 

to address this concern. 

Corrective Action for Contractors and 

Volunteers (§§ 115.77, 115.177, 115.277, 

115.377) 

The final rule adds a new standard 

requiring that an agency or facility 

prohibit from contact with inmates any 

contractor or volunteer who engages in 

sexual abuse. The standard also requires 

that any incident of sexual abuse be 

reported to law enforcement agencies, 

unless the activity was clearly not 

criminal, and to relevant licensing 

bodies. With regard to any other 

violation of agency sexual abuse or 

sexual harassment policies by a 

contractor or volunteer, the new 

standard requires that the facility take 

appropriate remedial measures and 

consider whether to prohibit further 

contact with inmates. 

The wording of this standard takes 

into account that contractors and 

volunteers are not employees and thus 

are not subject to termination or 

discipline as those terms are typically 

construed. However, the consequences 

set forth in this standard parallel the 

consequences for staff members, with 

discretion left to agencies and facilities 

to take appropriate remedial measures 

commensurate with the nature of the 

violation. 

Disciplinary Sanctions, Interventions, 

and Prosecutorial Referrals for Inmates 

(§§ 115.78, 115.178, 115.278, 115.378) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule (numbered as §§ 115.77, 

115.177, 115.277, and 115.377) 

mandated that inmates be subject to 

disciplinary sanctions pursuant to a 

formal disciplinary process following a 

finding that the inmate sexually abused 

another inmate. The standard mandated 

that sanctions be appropriate for the 

offense, taking into account the inmate’s 

history and whether any mental 

disabilities or mental illness contributed 

to the behavior. 

As with sanctions against staff, the 

proposed standard required that 

sanctions against inmates be fair and 

proportional, taking into consideration 

the inmate’s actions, disciplinary 

history, and sanctions imposed on other 

inmates in similar situations. The 

proposed standard also required that the 

disciplinary process take into account 

any mitigating factors, such as mental 

illness or mental disability, and that it 

consider whether to incorporate 

therapy, counseling, or other 

interventions that might help reduce 

recidivism. 

The proposed standard provided that 

inmates shall not be disciplined for 

sexual contact with staff without a 

finding that the staff member did not 

consent to such contact. The standard 

further provided that inmates may not 

be punished for making good-faith 

allegations of sexual abuse, even if the 

allegation is not substantiated following 

an investigation. Finally, the standard 

provided that an agency must not 

consider consensual sexual contact 

between inmates to constitute sexual 

abuse. 

With regard to lockups, which 

generally do not hold inmates for 

prolonged periods of time and thus do 

not impose discipline, the proposed 

standard required a referral to the 

appropriate prosecuting authority when 

probable cause exists to believe that one 

lockup detainee sexually abused 

another. If the lockup is not responsible 

for investigating allegations of sexual 

abuse, the standard required that it 

inform the responsible investigating 

entity. The proposed standard also 

applied to any State entity or 

Department of Justice component that is 

responsible for investigating sexual 

abuse in lockups. 

Changes in Final Rule 

The final standard makes clear that it 

does not limit an agency’s ability to 

prohibit sexual activity among inmates, 

or to discipline inmates for violating 

such a prohibition. 

Comments and Responses 

Comment. A large number of advocate 

commenters objected to the provision 

that allowed discipline of inmates for 

sexual contact with staff ‘‘upon a 

finding that the staff member did not 

consent to such contact.’’ Commenters 

criticized this language as easily 

exploitable by an abusive staff member, 

who could coerce an inmate into sexual 

activity and then falsely claim that she 

or he did not consent to sex with the 

inmate. Fearing that the language in the 

proposed standard could discourage 

inmates from reporting staff sexual 

abuse, several advocate commenters 

recommended allowing discipline of 

inmates for sexual contact with staff 

only if the inmate used or threatened to 

use force against the staff member. 

Response. As stated in the NPRM, the 

responsibility for preventing inmatestaff sexual contact presumptively rests 

with the staff member, due to the vast 

power imbalance between staff and 

inmates. Even if it appears that a staff 

member and an inmate willingly 

engaged in sexual activity, the very real 

possibility that the inmate was coerced 

into doing so militates against 

automatically disciplining both parties 

for such behavior. Otherwise, inmates 

may be reluctant to report being coerced 

into sexual activity by staff, for fear of 

discipline. For this reason, the proposed 

standard required the facility to make a 

finding that the staff member did not 

consent, rather than merely taking the 

word of the staff member. 

However, exempting from discipline 

non-consensual activity that did not 

involve force or threat of force would 

tilt too far in the opposite direction. 

Such a rule would exempt from 

discipline, for example, a large and 

muscular inmate who did not use or 

threaten force but who coerced a 

physically slight staff member into 

sexual activity by trapping her in a 

confined space. Likewise, an inmate 

who drugged a staff member and 

sexually abused her while she was 

unconscious would be immune from 

discipline. Finally, it is doubtful that 

the language suggested by advocates 

would eliminate the risk of false 

allegations by staff members. A staff 

member who would falsely allege that 

he or she did not consent to sexual 

activity with an inmate could, if this 

language were adopted, instead falsely 

assert that the inmate had threatened to 

use force. For these reasons, the 

Department rejects this proposed 

change. 

Comment. Many commenters, of 

various types, expressed confusion over 

the requirement in the proposed 

standard that ‘‘[a]ny prohibition on 

inmate-on-inmate sexual activity shall 

not consider consensual sexual activity 

to constitute sexual abuse.’’ A number 

of commenters appeared to interpret the 


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use of ‘‘consensual’’ in the proposed 

standard as indicating a permissive 

attitude toward inmates engaging in 

sexual activity. 

Response. The Department did not 

intend to limit agencies’ ability to 

prohibit or otherwise restrict inmate 

sexual activity. Rather, the Department 

meant to ensure that such activity is not 

automatically classified as ‘‘sexual 

abuse.’’ The Department recognizes that 

it may be difficult to discern whether 

sexual activity between inmates is truly 

consensual; activity that may seem to be 

voluntary may actually be coerced. Yet 

it is essential that staff make 

individualized assessments regarding 

each inmate’s behavior, and not simply 

label as an abuser every inmate caught 

having sex with another inmate. The 

Department has revised this language to 

make clear that the standard does not 

limit an agency’s ability to prohibit 

sexual activity among inmates, or to 

discipline inmates for violating such a 

prohibition. However, while consensual 

sexual activity between inmates may be 

prohibited, it should not be viewed as 

sexual abuse unless the activity was 

coerced. 

Comment. Many commenters, 

including advocates and agencies alike, 

criticized the proposed standard for 

juveniles as setting an inappropriately 

punitive tone. Some comments 

interpreted the proposed standard to 

require disciplinary sanctions for 

residents. 

Response. Unlike many adult 

correctional systems, juvenile agencies 

typically operate on a rehabilitative 

model, and focus on positive 

programming and treatment rather than 

punishment. The Department agrees 

that juvenile agencies should have 

discretion as to the types of 

interventions they find most appropriate 

in responding to sexually abusive 

behavior. For example, rather than 

imposing a disciplinary sanction, the 

agency might choose to direct the 

juvenile perpetrator to a sex offender 

treatment program aimed at 

rehabilitation. 

In consideration of these concerns, 

§ 115.378 is now titled ‘‘Interventions 

and disciplinary sanctions for 

residents.’’ Further, the Department has 

reworded § 115.378 to make clear that 

the standard does not require any 

particular type of intervention or 

discipline, and that juvenile agencies 

retain discretion to determine the most 

appropriate response. When agencies 

choose to impose discipline, the 

sanction must be commensurate with 

the nature of the offense and must take 

into consideration other relevant factors. 

Comment. Advocate commenters 

strongly objected to the lack of 

restrictions on the use of isolation in 

disciplining juveniles in the proposed 

standards. Some specifically requested a 

72-hour time limit on the use of 

isolation in juvenile facilities. 

Response. The final standard requires 

that residents in isolation shall not be 

denied daily large-muscle exercise or 

access any to legally required education 

programming or special education 

services. In addition, such residents 

must receive daily visits from a medical 

or mental health care clinician, as well 

as access to other programs and work 

opportunities to the extent possible. 

The Department did not incorporate a 

time limit into the final standard, 

recognizing that agencies must balance 

the well-being of sexually abusive youth 

with that of other youth in its custody. 

In rare cases, a facility may find it 

necessary to isolate youth beyond 72 

hours due to safety and security 

concerns. However, isolated youth 

remain subject to the protections 

discussed above. The Department 

encourages facilities to minimize their 

reliance on isolation for juveniles to the 

greatest extent possible. 

Comment. Advocate commenters also 

objected to language in § 115.378(d) of 

the proposed standards regarding a 

facility’s ability to limit access to 

programming for abusers who refuse to 

participate in therapy, counseling or 

interventions designed to address or 

correct underlying reasons for the abuse. 

Response. In recognition of the fact 

that some sex offender treatment 

programs require admission of the 

underlying act, and that such an 

admission could have consequences for 

any subsequent criminal case, the 

Department believes that youth should 

not be punished for failing to 

participate. Accordingly, the 

Department has revised § 115.378(d) to 

clarify that a facility may limit an 

abuser’s access to rewards-based 

management or behavior-based 

incentives due to their failure to 

participate in therapeutic interventions, 

but may not limit access to general 

programming and education. This 

revision is consistent with a 

rehabilitative approach to juvenile 

corrections. 

Comment. Many advocate 

commenters expressed concern with the 

Department’s lack of guidance to 

juvenile agencies regarding adherence to 

and interpretation of State age of 

consent laws and mandatory reporting 

requirements. 

Response. The Department believes it 

has appropriately addressed these 

concerns by expanding and specifying 

the training requirements in § 115.331, 

which now mandates training on how to 

distinguish between abusive and nonabusive sexual contact between 

residents and on how to comply with 

relevant age of consent laws and 

mandatory reporting. The Department 

intends for these standards to be read in 

conjunction with, rather than to 

supersede, existing State laws regarding 

mandatory reporting and age of consent. 

Medical and Mental Health Screenings 

(§§ 115.81, 115.381) 

Summary of Proposed Rule 

The standard in the proposed rule 

required that inmates be asked about 

any prior history of sexual victimization 

and abusiveness during intake or 

classification screenings. The proposed 

standard further required that inmates 

be offered a follow-up meeting with a 

medical or mental health practitioner 

within 14 days of the intake screening. 

The proposed standard also limited the 

inquiry required in jails by not requiring 

an inquiry about prior sexual 

abusiveness. 

The proposed standard did not apply 

to lockups, given the relatively short 

time that they are responsible for inmate 

care, or to community confinement 

facilities, which do not undertake a 

similar screening process. 

Changes in Final Rule 

The final standard no longer requires 

that facilities make these inquiries 

during intake screenings. Rather, the 

Department has replaced this language 

with a reference to the screening 

conducted pursuant to §§ 115.41 and 

115.341. The Department has also 

revised the standard to require that 

inmates be offered a follow-up meeting 

when screening indicates that they have 

experienced prior sexual victimization 

or perpetrated sexual abuse, rather than 

only when the inmate discloses such 

information. Finally, for clarity, the 

Department has changed ‘‘follow-up 

reception’’ to ‘‘follow-up meeting.’’ 

Comments and Responses 

Comment. Numerous commenters, 

including correctional agencies and 

advocacy organizations, asserted that 

the screening requirements under 

§§ 115.81(a) and 115.381(a) were 

duplicative of—and inconsistent with— 

the screening requirements under 

§§ 115.41 and 115.341. These 

commenters requested that the two 

standards be consolidated. 

Response. The Department is 

persuaded that the separate screening 

requirement under §§ 115.81(a) and 

115.381(a) is unnecessary in light of 


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§§ 115.41 and 115.341. Accordingly, the 

Department has replaced this screening 

requirement with a reference to 

screenings conducted pursuant to 

§§ 115.41 and 115.341. 

Comment. Several commenters 

criticized the 14-day timeframe for a 

follow-up meeting where there is an 

indication of prior sexual victimization 

or abusiveness. Several advocates and a 

State council on juvenile detention 

suggested that 14 days was too long for 

victims and abusers to wait for 

treatment; some commenters requested 

that, at a minimum, the timeframe be 

shortened in juvenile facilities because 

of the urgency of addressing these issues 

among juveniles and because of the 

shorter average length of stay at juvenile 

facilities. A State juvenile justice agency 

recommended that, for youth in shortterm facilities, the standard mandate a 

follow-up meeting within 10 days of 

release from the facility or within 14 

days of intake for youth that remain in 

the facility. A State correctional agency 

recommended that treating victims 

receive priority, and criticized the 

proposed standard for providing the 

same 14-day timeframe for victims and 

abusers, without distinguishing between 

the two. 

Finally, some juvenile justice agencies 

asserted that the 14-day timeframe 

under §§ 115.81 and 115.381 is 

inconsistent with the requirement under 

§§ 115.83 and 115.383 that facilities 

conduct a mental health evaluation of 

all known abusers within 60 days of 

learning of such abuse history. 

Response. The Department agrees that 

an inmate with a history of 

victimization or abuse should receive a 

follow-up meeting with a health care 

practitioner as soon as possible. 

However, some facilities, particularly 

smaller facilities, have limited access to 

medical and mental health practitioners. 

While the Department encourages 

facilities to arrange for follow-up 

meetings as soon as possible, the final 

standard preserves the 14-day deadline 

in order to accommodate these staffing 

challenges. 

The requirement that prisons provide 

follow-up meetings within 14 days for 

inmates whose intake screenings 

indicate prior abusiveness is distinct 

from—and consistent with—the 

requirement that prisons attempt to 

conduct mental health evaluations 

within 60 days. The follow-up meeting 

is intended to emphasize immediate 

mental health needs and security risks, 

while the evaluation is a comprehensive 

mental health assessment intended to 

inform future treatment plans. 

Comment. A State correctional agency 

argued that it is appropriate to require 

facilities to offer a follow-up meeting to 

an inmate with a history of 

victimization but that it should be left 

to the facility’s discretion to determine 

whether to offer a follow-up meeting to 

an inmate whose screening indicates 

prior abusiveness. 

Response. The Department believes 

that the potential for reducing future 

incidents of sexual abuse and creating 

an improved overall sense of safety 

within a facility justifies the burden of 

requiring the facility to offer a follow-up 

meeting to an inmate whose screening 

indicates prior abusiveness. However, as 

reflected in §§ 115.83, 115.283, and 

115.383, the Department agrees that it 

should be left to the discretion of a 

mental health practitioner to determine, 

following a mental health evaluation, 

whether treatment is appropriate for a 

known inmate-on-inmate or resident-onresident abuser. 

Comment. Advocacy organizations 

and a county sheriff’s office questioned 

the Department’s decision to exclude 

jails from the requirement to inquire 

about past sexual abusiveness. The 

sheriff’s office asserted that, in light of 

the safety risks posed by an individual 

who has previously perpetrated abuse, it 

is especially critical that jails consider 

that history. By contrast, several 

juvenile justice agencies and advocacy 

groups requested an analogous carve-out 

for short-term juvenile facilities. 

Response. The Department has 

preserved the exemption for jails from 

the requirement under § 115.81 that 

inmates whose screenings indicate prior 

sexual abusiveness be offered a followup meeting with a medical or mental 

health practitioner within 14 days, as 

well as the requirement under § 115.83 

that known inmate-on-inmate abusers 

be offered a mental health evaluation 

and treatment, where deemed 

appropriate. Because of the smaller 

capacity of many jails and high inmate 

turnover, it would be overly 

burdensome to require jails to provide 

mental health follow-up meetings or 

evaluations for individuals whose 

screenings indicate prior sexual 

abusiveness. 

In light of the importance of providing 

mental health support to youth who 

have reported sexual abusiveness—a 

point underscored by numerous 

commenters who requested that the 14- 

day timeframe for a follow-up meeting 

be reduced for juveniles—the final 

standard does not exempt any juvenile 

facilities from the medical and mental 

health care requirements for abusers. 

Comment. Two State juvenile justice 

agencies raised concerns about the 

standard’s interaction with mandatory 

reporting laws. One recommended that 

the standard require staff members 

conducting screenings to provide 

appropriate notice regarding the 

agency’s mandatory reporting 

obligations under State law; another 

suggested that the standards offer 

guidance on following such laws. 

Response. The Department recognizes 

the importance of providing staff with 

guidance on how to comply with Statemandated reporting laws. However, 

given the range of State mandatory 

reporting laws and agency policies for 

complying with such laws, the 

Department is not in a position to 

provide detailed instructions for 

compliance. Instead, the Department 

has revised §§ 115.31, 115.131 and 

115.231 to require that staff receive 

training on how to comply with relevant 

laws relating to mandatory reporting of 

sexual abuse. 

Comment. A State juvenile justice 

agency recommended adding language 

to the standard to specify the distinction 

between previously reported and neverbefore-reported sexual victimization. 

Response. The Department does not 

find it necessary to distinguish in the 

standard between new reports of sexual 

victimization and previously reported 

sexual victimization. A resident’s 

history of prior sexual victimization or 

abusive behavior may contribute to 

medical or mental health concerns, 

regardless of whether such victimization 

was previously reported upon a prior 

admission to the facility. The resident 

should be offered a follow-up meeting 

with a medical or mental health 

practitioner within 14 days of the new 

intake screening, but if the practitioner 

determines through such follow-up 

meeting that treatment is not warranted, 

the facility need not provide such 

services. The requirements relating to 

mandatory reporting laws, 

confidentiality, and informed consent 

under the paragraphs newly designated 

as § 115.381(c) and (d) adequately 

address any legal issues that could arise 

pertaining to a new report of sexual 

victimization. 

Comment. Two commenters raised 

concerns about confidentiality. A State 

juvenile justice agency recommended 

modifying the confidentiality provisions 

(designated in the final rule as 

§§ 115.81(c) and 115.381(c)) to specify 

that any information relating to sexual 

victimization or abusiveness may be 

provided to staff only on a need-toknow basis to inform treatment plans 

and security and management decisions. 

A county sheriff argued that an inmate 

should not be able to maintain 

confidentiality regarding his or her prior 

abusiveness in institutional settings, as 

it could imperil other inmates. 


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In addition, a State sheriffs’ 

association raised concerns that 

inquiring about an inmate’s sexual 

history in a public setting, where intake 

screenings are currently conducted, 

would violate the inmate’s privacy. The 

association expressed apprehension that 

facilities would be required to build 

private screening rooms, which the 

association suggested would raise issues 

of cost and space. 

Response. The final standard requires 

that dissemination of information 

related to sexual victimization or 

abusiveness be ‘‘strictly limited’’ to 

medical and mental health practitioners 

and other staff, as necessary, to inform 

treatment plans and security and 

management decisions, or as otherwise 

required by Federal, State, or local law. 

The Department interprets this to mean 

that such information shall be shared 

only to the extent necessary to ensure 

inmate safety and proper treatment and 

to comply with the law. The facility 

retains discretion in how to provide the 

necessary degree of confidentiality 

while still accounting for safety, 

treatment, and operational issues. 

Sections 115.41, 115.141, 115.241, 

and 115.341 do not require that intake 

screenings occur in private rooms. 

However, the Department expects that 

screening will be conducted in a 

manner that is conducive to eliciting 

complete and accurate information. 

Comment. A State juvenile probation 

commission requested that the 

Department define the terms 

‘‘abusiveness’’ and ‘‘victimization.’’ 

Response. In light of the rule’s 

detailed definition of sexual abuse, the 

Department does not find it necessary to 

define sexual abusiveness or sexual 

victimization. 

Comment. A State juvenile justice 

agency recommended replacing ‘‘followup reception’’ with ‘‘follow-up 

appointment,’’ and suggested adding a 

requirement to paragraph (b) that staff 

ensure that the inmate or resident is 

offered a follow-up appointment with a 

medical or mental health provider ‘‘and 

is referred to a medical practitioner 

when indicated.’’ 

Response. The Department agrees that 

the phrase ‘‘follow-up reception’’ is 

unclear and has changed ‘‘reception’’ to 

‘‘meeting.’’ As discussed above, the 

Department intends for a ‘‘follow-up 

meeting,’’ in contrast to an evaluation, 

to entail an interaction between a health 

care provider and inmate or resident in 

which the provider focuses on 

mitigating immediate mental health 

concerns and assessing security risks, as 

well as informing decisions with regard 

to further treatment. In light of the 

requirements for ongoing medical and 

mental health care under §§ 115.83 and 

115.383, the Department does not find 

it necessary for the standard to require 

that inmates or residents be referred to 

a medical practitioner when indicated. 

Access to Emergency Medical and 

Mental Health Services (§§ 115.82, 

115.182, 115.282, 115.382) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that victims of 

sexual abuse receive free access to 

emergency medical treatment and crisis 

intervention services. 

Changes in Final Rule 

The Department has added a 

requirement for prisons, jails, 

community confinement facilities, and 

juvenile facilities that victims of sexual 

abuse while incarcerated be offered 

timely information about and timely 

access to emergency contraception, in 

accordance with professionally accepted 

standards of care. 

In addition, the Department has made 

four clarifying changes. First, the 

Department has specified that sexually 

transmitted infections prophylaxis must 

be offered where ‘‘medically’’ 

appropriate, to clarify that the 

assessment of whether to offer 

prophylaxis should be based solely on 

a medical judgment. Second, the final 

standard specifies that such prophylaxis 

must be offered in accordance with 

professionally accepted standards of 

care. Third, the final standard clarifies 

that a victim cannot be charged for any 

of the services described in this 

standard, or required to name the abuser 

as a condition of receipt of care. Finally, 

the Department has qualified the word 

‘‘access’’ with ‘‘timely’’ to underscore 

the time-sensitive nature of emergency 

contraception and sexually transmitted 

infections prophylaxis and to ensure 

that drugs are provided within their 

window of efficacy. 

Comments and Responses 

Comment. A number of advocacy 

organizations commented that major 

medical organizations and sexual 

assault treatment guides recommend the 

provision of emergency contraception as 

a standard part of treatment for rape 

victims. These commenters requested 

(1) that the standards provide specific 

guidance regarding the provision of 

emergency contraception at no cost to 

inmate victims who may be at risk of 

pregnancy, and (2) in light of the 

contraceptive’s time-sensitive nature, 

that the standards explicitly require 

facilities to stock an adequate supply of 

emergency contraception so that it will 

be immediately available. In addition, 

an advocacy organization requested that 

the Department clarify that pregnancyrelated services and sexually 

transmitted infections prophylaxis be 

offered without cost, and recommended 

that the phrase ‘‘where appropriate’’ be 

replaced with ‘‘where medically 

appropriate.’’ Finally, one commenter 

remarked that the requirement that 

female victims be given access to 

pregnancy-related services is 

duplicative of §§ 115.83, 115.283, and 

115.383. 

Response. The Department agrees that 

it is essential that inmates at risk of 

pregnancy following an incident of 

sexual abuse be given timely access to 

emergency contraception. Accordingly, 

the Department has modified the 

standard to specify that such inmates 

shall be offered timely information 

about and timely access to emergency 

contraception, in accordance with 

professionally accepted standards of 

care, where medically appropriate. The 

Department declines to specify that 

facilities must stock a particular drug, 

but has clarified that access to 

emergency contraception must be 

‘‘timely’’; certainly, timeliness is 

achieved only if the contraceptive is 

provided within its window of efficacy. 

To ensure that emergency contraception 

and sexually transmitted infections 

prophylaxis are available at no cost to 

the victim, the Department has moved 

to the end of the standard the clause 

requiring that treatment services be 

provided to the victim without financial 

cost; the Department intends for the 

phrase ‘‘treatment services’’ to 

encompass the provision of medical 

drugs. The Department has also clarified 

that the determination of whether 

emergency contraception or sexually 

transmitted infections prophylaxis 

should be offered to a victim must be 

based solely on whether the drug is 

‘‘medically’’ appropriate. Finally, to 

avoid duplication of §§ 115.83, 115.283, 

and 115.383, the Department has 

eliminated the reference to pregnancyrelated services in this standard. 

Comment. Some advocacy groups 

recommended expanding the lockup 

standard to require facilities to offer 

detainee victims of sexual abuse timely 

information about and access to all 

pregnancy-related services and sexually 

transmitted infections prophylaxis, 

where appropriate. 

Response. In light of the very shortterm nature of lockup detention, the 

Department does not believe that it is 

necessary to require lockups to provide 

emergency contraception or sexually 

transmitted infections prophylaxis. 

Consistent with its obligation to provide 


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appropriate emergency care, a lockup 

would transfer such a detainee to an 

appropriate emergency medical 

provider, which would be expected to 

provide such care as appropriate. 

Comment. One State correctional 

agency remarked that ‘‘unimpeded 

access’’ is nearly impossible to ensure, 

even in the community. 

Response. The Department has 

preserved the requirement that access to 

emergency medical and mental health 

care services for sexual abuse victims be 

‘‘unimpeded’’ to make clear that 

agencies may not impose administrative 

hurdles that could delay access to these 

critical services. 

Comment. A State correctional agency 

recommended that the Department 

define the term ‘‘sexually transmitted 

infections prophylaxis.’’ 

Response. The Department intends for 

‘‘sexually transmitted infections 

prophylaxis’’ to encompass appropriate 

post-incident treatment to reduce the 

risk of sexually transmitted diseases 

resulting from an incident of sexual 

abuse, and does not find it necessary to 

include a definition for that term in the 

final rule. 

Ongoing Medical and Mental Health 

Care for Sexual Abuse Victims and 

Abusers (§§ 115.83, 115.283, 115.383) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule required that victims of 

sexual abuse receive access to ongoing 

medical and mental health care, and 

that abusers receive access to care as 

well. The standard required facilities to 

offer ongoing medical and mental health 

care consistent with the community 

level of care for as long as such care is 

needed. 

The standard also required that 

known inmate abusers receive a mental 

health evaluation within 60 days of the 

facility learning that the abuse had 

occurred. 

In addition, with respect to victims, 

the standard required that agencies 

provide, where relevant, pregnancy tests 

and timely information about and access 

to all pregnancy-related medical 

services that are lawful in the 

community. The Department also 

proposed requiring the provision of 

timely information about and access to 

sexually transmitted infections 

prophylaxis where appropriate. 

Changes in Final Rule 

The Department has expanded the 

duty to provide non-emergency medical 

and mental health care to victims of 

sexual abuse by requiring care for 

individuals who were victimized in any 

prison, jail, lockup, or juvenile facility 

rather than only for those who were 

victimized ‘‘during their present term of 

incarceration.’’ However, the 

Department has clarified that such care 

need not be ‘‘ongoing’’ but need be 

provided only ‘‘as appropriate.’’ 

The final standard adds a requirement 

that victims of sexual abuse while 

incarcerated be offered tests for sexually 

transmitted infections as medically 

appropriate, and clarifies that 

information about pregnancy-related 

medical services must be 

‘‘comprehensive’’ and access to 

pregnancy-related medical services 

must be ‘‘timely.’’ 

For clarity, the Department has 

replaced the reference to access to ‘‘all 

pregnancy-related medical services that 

are lawful in the community’’ with ‘‘all 

lawful pregnancy-related medical 

services.’’ 

The Department has also added 

language, identical to a provision in 

§ 115.82, that requires that all treatment 

services under this standard be made 

available without financial cost to the 

victim and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

Finally, the Department has made 

several clarifying changes to the 

requirement that facilities conduct 

mental health evaluations of inmate 

abusers and offer treatment when 

deemed appropriate: The final standard 

specifies that facilities need only 

‘‘attempt’’ to conduct mental health 

evaluations; indicates that this clause 

applies only to inmate-on-inmate 

abusers; and no longer requires that 

only ‘‘qualified’’ mental health 

practitioners be permitted to determine 

whether it is appropriate to offer 

treatment. The final standard also 

clarifies the wording of references to 

sexual abuse victims. 

Comments and Responses 

Comment. A State juvenile justice 

agency noted that the phrase ‘‘resident 

victims’’ could refer to individuals who 

were victimized prior to placement in 

the facility. For clarity, the commenter 

also requested that the standard 

uniformly refer to victims of sexual 

abuse as ‘‘residents who, during their 

term of incarceration, have been 

victimized.’’ 

Response. The Department intends for 

the standard to encompass individuals 

who were victimized while in another 

facility. Accordingly, the final standard 

clarifies that medical and mental health 

evaluation and, as appropriate, 

treatment must be offered to all inmates 

or residents who have been victimized 

by sexual abuse in any facility. 

Comment. A county sheriff predicted 

that a large percentage of inmates will 

claim to have been victimized, which 

would overload the system and impose 

substantial additional costs. 

Response. The final standard requires 

an evaluation and treatment ‘‘as 

appropriate.’’ To the extent that an 

inmate falsely alleges prior 

victimization, such treatment would not 

be appropriate. Furthermore, all 

facilities are already obligated to 

provide adequate care to meet inmates’ 

serious mental health needs. See Estelle 

v. Gamble, 429 U.S. 97, 104 (1976). By 

providing evaluation and treatment to 

sexual abuse victims ‘‘as appropriate,’’ 

facilities are simply providing 

constitutional conditions of care. 

Comment. Numerous commenters 

expressed support for the requirement 

that women who become pregnant as a 

result of rape receive access to 

pregnancy tests and timely information 

about and access to pregnancy-related 

services. Several commenters requested 

that the standard be clarified to reflect 

the fact that female inmates retain the 

right to an abortion. These commenters 

recommended modifying the standard 

to ensure that victims who become 

pregnant as a result of sexual abuse 

receive adequate information to make 

decisions about their pregnancy as well 

as any assistance necessary to carry out 

those decisions. 

In particular, a group of women’s 

rights organizations requested that a 

woman who becomes pregnant as a 

result of sexual abuse while 

incarcerated be provided with 

comprehensive and unbiased 

counseling on options, including 

information on how pregnancy will 

affect the conditions of her confinement 

and information on the full spectrum of 

her parental rights and responsibilities. 

These commenters also requested that 

the standards specify that an 

incarcerated rape victim be able to 

terminate her pregnancy at no financial 

cost, and that counseling include an 

explanation that she will not have to 

pay for her medical care, whether she 

chooses to terminate the pregnancy or 

carry to term. In addition, these 

commenters requested that facilities be 

required to protect from coercion and 

retaliation women who accuse staff 

members of rape and then choose to 

carry to term, and that the standards 

specify that facilities must provide 

transportation for abortion care, 

distance and cost notwithstanding. 

Finally, the commenters criticized as 

excessively vague the proposed 

standard’s requirement that pregnant 


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rape victims receive timely information 

about and access to all pregnancyrelated medical services ‘‘that are lawful 

in the community.’’ Commenters 

expressed concern that facility staff may 

take an unduly narrow view in 

evaluating which services are ‘‘lawful in 

the community,’’ possibly concluding 

that because there is no abortion 

provider in the county, abortion services 

are not ‘‘lawful in the community.’’ 

These commenters requested that the 

standard be revised to clarify that 

victims have access to all pregnancyrelated medical services, including the 

right to terminate a pregnancy or carry 

to term. 

Response. The Department agrees that 

women who are sexually abused while 

incarcerated and become pregnant as a 

result must receive comprehensive 

information about and meaningful 

access to all lawful pregnancy-related 

medical services at no financial cost. 

The final standard includes several 

clarifying revisions. First, the 

Department has specified that such 

victims must receive timely and 

comprehensive information about all 

lawful pregnancy-related medical 

services, and that access to pregnancyrelated medical services must be timely. 

Second, the Department has removed 

the phrase ‘‘that are lawful in the 

community’’ and instead required 

facilities to provide information about 

and access to ‘‘all lawful’’ pregnancyrelated medical services. Third, the 

Department has added a requirement 

that treatment services provided under 

this standard be made available without 

financial cost and regardless of whether 

the victim names the abuser. This 

provision mirrors the requirement under 

§§ 115.82, 115.282, and 115.382 that 

emergency services must be made 

available at no financial cost to the 

victim. 

The Department believes that the 

commenters’ requests regarding the 

provision of specific information are 

encompassed by the requirement that 

facilities provide ‘‘comprehensive’’ 

information about all lawful pregnancyrelated medical services, and that 

additional guidance on transportation is 

unnecessary given the requirement that 

victims be provided ‘‘timely access’’ to 

all lawful pregnancy-related medical 

services—which necessarily includes 

transportation. Finally, while the 

Department appreciates commenters’ 

concern about the risk of coercion or 

retaliation by staff members accused of 

sexual abuse in cases where a victim 

becomes pregnant, the Department 

believes that the protections against 

retaliation provided in §§ 115.67, 

115.167, 115.267, and 115.367 are 

adequate to address this risk. 

Comment. A national coalition of 

LGBTI advocacy organizations 

recommended that the standards 

expressly require facilities to offer 

testing for HIV and other sexually 

transmitted infections, accompanied by 

counseling before and after the test and 

contingent upon written consent from 

the inmate. However, they urged that 

victims should not be required to 

undergo testing and not be punished for 

declining testing. A State juvenile 

justice agency also recommended 

testing for sexually transmitted 

infections. 

Response. The Department agrees that 

the standards should expressly require 

that facilities offer testing for sexually 

transmitted infections, and has added a 

new paragraph (f) that requires facilities 

to offer such tests, as medically 

appropriate, to victims of sexual abuse 

while incarcerated. The language stating 

that victims ‘‘shall be offered’’ tests 

makes clear that victims are not 

required to undergo such testing. The 

Department trusts that medical 

practitioners administering such tests 

will adhere to professionally accepted 

standards for pre- and post-test 

counseling and written consent. 

Comment. Several State correctional 

agencies, sheriff’s offices, and sheriff’s 

associations asserted that conducting a 

mental health evaluation of abusers and 

offering treatment where deemed 

appropriate would be prohibitively 

costly. A State correctional agency 

stated that the mental health care 

requirements for abusers could be 

burdensome and that victims should 

remain the top priority. However, an 

advocacy organization agreed with the 

Department’s statement in the NPRM 

that the benefit of reducing future abuse 

by known abusers justifies the 

additional costs. 

Response. The Department remains of 

the view that the benefit of reducing 

future abuse by known inmate-oninmate or resident-on-resident abusers— 

by avoiding incidents and improving 

the perception of safety within the 

facility—justifies the cost of mental 

health evaluations and, where 

appropriate, treatment. However, the 

Department underscores that, as stated 

in the NPRM, the standard is not 

intended to require a specialized 

comprehensive sex offender treatment 

program, which could impose a 

significant financial burden. The 

Department believes that requiring 

agencies to offer reasonable treatment, 

when deemed appropriate by a mental 

health practitioner, is justifiable in light 

of the anticipated costs and benefits. 

The Department agrees that mental 

health care for victims should be the 

priority and accordingly has provided 

more detail on the minimum standards 

of care for victims than for abusers. The 

standard specifies that evaluation and 

treatment of sexual abuse victims shall 

include, as appropriate, follow-up 

services, treatment plans, and, when 

necessary, referrals for continued care 

following their transfer to, or placement 

in, other facilities, or their release from 

custody. The standard further requires 

that facilities provide victims of sexual 

abuse with medical and mental health 

services consistent with the community 

level of care. 

Comment. Numerous commenters 

expressed concern over the requirement 

that facilities provide a mental health 

evaluation of all known inmate-oninmate abusers within 60 days. Several 

correctional agency commenters 

suggested that 60 days is too long, and 

recommended reducing the timeframe 

to 30 days, 14 days, 7 days, or 72 hours. 

An advocacy organization stated that 

the 60-day requirement is incompatible 

with the shorter average length of stay 

in juvenile facilities and recommended 

a seven-day timeframe for juveniles, 

which the commenter asserted is in line 

with the relevant standards established 

by the National Commission on 

Correctional Healthcare. 

Several commenters took the opposite 

position, and recommended extending 

the timeframe or removing it all 

together. A State correctional agency 

observed that this requirement might 

pose difficulties for smaller agencies, 

which may lack in-house staff capable 

of conducting a mental health 

evaluation; as a compromise, the 

commenter recommended requiring 

agencies to arrange for an evaluation 

within 60 days and to conduct the 

evaluation as soon as practicable 

thereafter. 

One State correctional agency 

suggested that conducting an evaluation 

within 60 days is unrealistic due to a 

State law requirement that, where a 

determination that an inmate is a sex 

offender is made pursuant to procedures 

established by the State department of 

corrections, such determination must be 

made following an adversarial hearing 

conducted by a licensed attorney 

serving as an administrative hearing 

officer. 

Response. The Department has 

preserved the 60-day requirement as the 

best balance of the various concerns 

noted by commenters. The Department 

acknowledges that certain inmates with 

a history of abusiveness will be 

transferred or released from the facility 

before undergoing a mental health 


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evaluation or receiving treatment. 

However, smaller facilities may find it 

challenging to find a practitioner 

equipped to provide treatment to 

abusers, and very short-term treatment 

is likely to be ineffective. The 

Department has therefore constructed 

the standard so as to afford facilities 

some flexibility. 

The 60-day clock starts only upon the 

agency’s ‘‘learning of such abuse 

history’’; thus, where an agency is 

required to hold a hearing in order to 

determine whether an inmate is an 

abuser, the treatment need not be 

offered until the determination is made. 

Comment. Two State correctional 

agencies recommended that facilities be 

required only to perform mental health 

assessments, rather than evaluations, on 

known inmate-on-inmate abusers. 

Response. An assessment is unlikely 

to provide a mental health practitioner 

with sufficient information on which to 

base a determination about future 

treatment. Thus, the final standard 

retains the evaluation requirement. 

Comment. Several agency 

commenters raised concerns about the 

requirement that known abusers be 

offered treatment where deemed 

appropriate by a mental health 

practitioner, asserting that many 

facilities lack the time or expertise to 

provide effective treatment to abusers. 

One agency suggested that ‘‘supportive 

therapy’’ would be a better requirement 

than ‘‘treatment.’’ Another State 

correctional agency worried about the 

legal implications of compelling an 

alleged abuser with a criminal case 

pending to participate in this program. 

Response. The final standard requires 

only that the facility offer an evaluation 

and, if the inmate consents to that 

evaluation, offer treatment ‘‘when 

deemed appropriate by mental health 

practitioners.’’ The standard does not 

mandate the type or extent of treatment, 

but leaves it to the discretion of the 

mental health practitioner to 

recommend therapy, a structured 

treatment program, medication, or 

whatever course of action is best suited 

for the needs of the specific inmate and 

the capabilities of the facility. The 

standard does not require that abusers 

be compelled to participate in 

treatment. 

The Department notes that the 

standard only requires that a known 

inmate-on-inmate or resident-onresident abuser be offered treatment 

where deemed appropriate by a mental 

health practitioner. The standard does 

not require the agency to compel 

participation. 

Comment. A county correctional 

agency asked how long a facility would 

be required to provide treatment. 

Response. The standard’s reference to 

treatment that is ‘‘appropriate’’ leaves it 

to the facility’s mental health 

practitioners to determine the length of 

treatment. 

Comment. A State sheriff’s association 

and a county correctional agency asked 

whether the standard requires the 

agency to provide treatment for abuse 

that did not occur in the facility. A State 

juvenile justice agency observed that the 

standard does not distinguish between 

abuse that occurred prior to 

incarceration and abuse that occurred 

during incarceration. 

Response. The final standard clarifies 

that facilities must offer medical and 

mental health evaluation and, as 

appropriate, treatment to all inmates or 

residents who have been victimized by 

sexual abuse in any prison, jail, lockup, 

or juvenile facility. 

Comment. A State correctional agency 

suggested that the standard refer to 

‘‘inmate-on-inmate’’ and ‘‘resident-onresident abusers’’ rather than ‘‘inmate 

abusers’’ and ‘‘resident abusers’’. One 

State correctional agency wondered why 

the standard seemingly applied to staff 

members who have abused inmates or 

residents. An individual commenter 

proposed classifying individuals as 

‘‘known resident abusers’’ by three 

measures: Criminal history indicating 

that the resident has been found guilty 

of a felony sex offense or a misdemeanor 

sex offense involving sexual abuse; an 

admission at any time to having 

committed sexual abuse regardless of 

prosecution; or a finding of abuse 

following a sexual abuse allegation and 

subsequent investigation. A State 

department of corrections asked 

whether ‘‘known inmate abuser’’ 

includes someone who committed 

inmate-on-inmate abuse many years ago. 

An organization that advocates for 

disability rights proposed adding a 

statement that the relevant abuse be 

defined as having occurred within the 

past two years in the facility in which 

the individual is currently confined, 

and two State juvenile justice agencies 

requested revising the standard to 

define ‘‘known resident abusers’’ as 

residents who have committed sexual 

abuse or sexual harassment during their 

present term of incarceration. 

Response. The final standard clarifies 

that evaluation and treatment for 

abusers is intended for ‘‘known inmateon-inmate abusers’’ or ‘‘known residenton-resident abusers.’’ It does not 

encompass inmates or residents who 

committed a sex offense in the 

community, or staff who have abused 

inmates or residents. However, the 

Department declines to impose a time 

limit on classification as an inmate-oninmate or resident-on-resident abuser, 

or a requirement that the abuse must 

have occurred in the facility in which 

the individual is currently confined. 

The safety risks posed by an individual 

who has previously committed sexual 

abuse while in a confinement facility, 

and the need for mental health care, 

may persist regardless of where or when 

the incident occurred. 

Finally, in light of the unfortunate 

reality that sexual harassment is 

pervasive among inmates and residents, 

the Department believes that a 

requirement to provide mental health 

evaluations and treatment for all 

inmates and residents who have 

committed sexual harassment would 

impose an excessive burden upon 

facilities. 

Comment. A State correctional agency 

requested that the standard allow for 

mental health evaluations to be 

conducted by staff other than medical 

and mental health practitioners. 

Response. While the standard does 

not specify that only medical and 

mental health practitioners may conduct 

the mental health evaluation, generally 

accepted professional standards dictate 

that only a qualified and trained 

medical or mental health practitioner 

can adequately evaluate an individual’s 

mental health needs and determine 

when it is appropriate to offer treatment. 

Comment. A company that owns and 

manages prisons and detention centers 

asserted that the requirement that 

mental health practitioners have special 

qualifications is too great a burden to 

meet. A State correctional agency 

recommended expanding the definition 

of ‘‘qualified mental health practitioner’’ 

to include a provider ‘‘who has also 

successfully completed specialized 

training for treating sexual abusers.’’ 

Response. The Department agrees that 

it may be challenging for smaller 

facilities to employ mental health 

practitioners with documented expertise 

in sexual victimization or sexual abuse, 

and has removed the phrase ‘‘qualified 

mental health practitioner.’’ The final 

standard requires facilities to offer 

treatment to an inmate-on-inmate or 

resident-on-resident abuser when 

deemed appropriate by ‘‘mental health 

practitioners.’’ 

Comment. The AJA and a State jail 

wardens’ association commented that it 

would be difficult for small, rural jails 

to provide treatment to abusers. They 

stated that jails are unlikely to have onsite mental health services, and that the 

nearest mental health facility may object 

to treating inmates on their premises 


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due to the lack of a secure area. On the 

other hand, a county sheriff’s office 

questioned why jails were excluded 

from the provision relating to the 

evaluation and treatment of abusers. 

Response. The Department agrees it 

may be difficult for some jails to 

evaluate and treat abusers. Accordingly, 

the final standard preserves the 

exemption for jails from the provision 

requiring facilities to attempt to conduct 

a mental health evaluation for known 

abusers and to offer treatment when 

deemed appropriate by mental health 

practitioners. 

Comment. A State juvenile justice 

agency recommended that treatment of 

resident-on-resident abusers in juvenile 

facilities not be identified as sex 

offender treatment unless the resident 

has been adjudicated for the offense. 

Response. The Department trusts that 

facilities will refer to the treatment of 

known resident-on-resident abusers in a 

manner that is accurate and considerate 

of the resident’s privacy needs. 

Comment. A juvenile detention center 

recommended that the Department 

promulgate separate standards for shortand long-term juvenile facilities. 

Response. The Department concludes 

that it is essential that all juvenile 

facilities comply with the standard for 

ongoing medical and mental health care, 

including the provisions relating to 

treatment for known resident-onresident abusers. The final standard 

requires agencies to attempt to conduct 

a mental health evaluation of known 

abusers within 60 days, recognizing that 

facilities that house inmates for shorter 

periods of time may not be able to 

provide such an evaluation. While 

ideally all known abusers would be 

offered such evaluations, the 

Department notes also that those who 

are confined for shorter periods of time 

present a smaller risk of committing 

further abuse. 

Sexual Abuse Incident Reviews 

(§§ 115.86, 115.186, 115.286, 115.386) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule set forth requirements for 

sexual abuse incident reviews, 

including when reviews should take 

place and who should participate. 

Unlike the sexual abuse investigation, 

which is intended to determine whether 

the abuse occurred, the sexual abuse 

incident review is intended to evaluate 

whether the facility’s policies and 

procedures need to be changed in light 

of the alleged incident. The Department 

proposed that a review occur at the 

conclusion of every investigation of an 

alleged incident, unless the 

investigation concludes that the 

allegation was unfounded. The 

Department further required the review 

to consider: (1) Whether changes in 

policy or practice are needed to improve 

the prevention, detection, or response to 

sexual abuse incidents similar to the 

alleged incident; (2) whether race, 

ethnicity, sexual orientation, gang 

affiliation, or group dynamics in the 

facility played a role; (3) whether 

physical barriers in the facility 

contributed to the incident; (4) whether 

staffing levels need to be changed in 

light of the alleged incident; and (5) 

whether more video monitoring is 

needed. 

Changes in Final Rule 

In order to ensure that an incident 

review results in timely action, the final 

standard includes a new paragraph (b) 

specifying that the review should 

ordinarily occur within 30 days of the 

conclusion of the investigation. In the 

paragraph formerly designated as (b), 

now designated as (c), the Department 

has replaced ‘‘upper’’ with ‘‘upperlevel.’’ In what was paragraph (c)(2), 

now (d)(2), the Department has revised 

the list of factors to be considered 

during the review by replacing ‘‘sexual 

orientation’’ with ‘‘gender identity; 

lesbian, gay, bisexual, transgender, or 

intersex identification, status, or 

perceived status.’’ In what was 

paragraph (c)(6), now (d)(6), ‘‘PREA 

coordinator, if any’’ has been changed to 

‘‘PREA compliance manager,’’ and the 

Department has clarified that the review 

team’s report must include any 

determinations made pursuant to 

paragraphs (d)(1)–(d)(5). In addition, the 

final standard requires the facility either 

to implement the review team’s 

recommendations for improvement or 

document its reasons for not doing so. 

Comments and Responses 

Comment. Several commenters 

recommended that the standard specify 

a timeline for the review. Two advocacy 

organizations suggested, in particular, 

that the Department implement 

measurable benchmarks, including a 

timeline, in order to ensure that the 

results of an incident review translate 

into action and to assist the auditor in 

measuring compliance with the review 

provision. 

Response. The final standard states 

that the sexual abuse incident review 

shall ordinarily occur within 30 days of 

the conclusion of the sexual abuse 

investigation. 

Comment. An advocacy group 

recommended requiring the facility 

head and PREA coordinator to 

determine, after receiving the report, 

which recommendations to carry out 

and to document benchmarks and a 

timeline for doing so as an addendum 

to the report. 

Response. The Department believes 

that the timeline added as the new 

paragraph (b) will suffice to ensure 

timely compliance with the standard. 

The required submission of the report of 

the review team’s findings and any 

recommendations to both the facility 

head and the PREA compliance manager 

also ensures effective oversight. In 

addition, facilities must either 

implement the recommendations for 

improvement or document the reasons 

for not doing so, which will encourage 

thoughtful reform. While the 

Department encourages facilities to 

develop a plan for implementing any 

revisions to their policies, the 

Department concludes that it is not 

necessary to require documentation of 

benchmarks and a timeline. 

Comment. Some commenters 

recommended that the Department add 

sexual harassment to this standard, 

because sexual harassment is often a 

precursor to sexual abuse. 

Response. The Department has 

incorporated coverage of sexual 

harassment into the final standards 

where feasible. The Department 

concludes that adding sexual 

harassment to the incidents requiring 

review would needlessly complicate the 

process by introducing a separate 

process for sexual harassment incidents. 

Under § 115.11, facilities are already 

required to maintain a written zerotolerance policy toward sexual 

harassment. The Department believes 

that the cost of requiring review of 

sexual harassment incidents, which may 

be far more numerous than incidents of 

sexual abuse, could impose an 

unnecessary burden upon facilities and 

make compliance with the standard 

more difficult. 

Comment. Commenters recommended 

defining ‘‘substantiated,’’ 

‘‘unsubstantiated,’’ and ‘‘unfounded’’ to 

ensure that the meaning of the findings 

is understood. 

Response. Section 115.5 contains 

definitions of ‘‘substantiated 

allegation,’’ ‘‘unfounded allegation,’’ 

and ‘‘unsubstantiated allegation.’’ 

Comment. Some commenters 

recommended that the Department 

require review teams to consider, in 

addition to the areas listed in the 

standard, whether training curricula 

should be modified or expanded. A 

juvenile advocacy organization also 

recommended that incident reviews 

include input from victims, witnesses, 

family members, and guardians on how 


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to improve the investigation and 

response processes. 

Response. The Department concludes 

that the limited benefits from these 

recommended revisions would be 

outweighed by the additional burdens 

that would be imposed by adding such 

requirements for every post-incident 

review. Of course, the Department 

encourages facilities to reexamine 

training curricula periodically based 

upon accumulated knowledge gleaned 

from the facilities’ experience in 

combating sexual abuse. And, as the 

commenter suggests, facilities may wish 

to solicit input from victims and 

witnesses as a guide to improving their 

practices. 

Comment. Several commenters 

recommended that the Department 

clarify who constitutes an ‘‘upper-level 

management official’’ for purposes of 

participating in a sexual abuse incident 

review. 

Response. This term cannot be 

defined with precision; it properly 

affords facilities discretion to make 

reasonable judgments as to which 

officials should participate. 

Comment. A victim services 

organization recommended requiring 

that the upper-level management 

responsible for review be independent 

from the investigation and have 

authority to make agency-level changes 

in response to information received 

from the reviews. 

Response. The Department believes 

that it is unnecessary for the standard to 

regulate at this level of detail. Rather, it 

is preferable to leave sufficient 

flexibility to the facility to organize its 

staff and resources to conduct an 

effective review. In particular, it is 

impractical to require the involvement 

of an administrator with the authority to 

make agency-level changes, given that 

the review is intended to occur at the 

facility level. 

Comment. Commenters suggested 

that, in order to ensure compliance with 

the review’s findings, the review team 

should include the facility’s PREA 

coordinator, and the report should be 

submitted to the agency head for review 

and implementation of recommended 

changes. 

Response. The Department declines to 

revise the relevant provision, which 

requires that the review team’s findings 

and recommendations for improvement 

be submitted to the facility head and to 

the PREA coordinator (renamed as the 

PREA compliance manager in the final 

standards). The Department believes 

that oversight by the facility head and 

PREA compliance manager will ensure 

implementation without needlessly 

micromanaging the facility’s review 

process. 

Comment. Some commenters 

questioned whether the consideration of 

race, ethnicity, sexual orientation, gang 

affiliation, and other group dynamics as 

possible motivations for an alleged 

incident may require special training 

and, if so, whether the cost of that 

training would hinder compliance. 

Response. The Department believes 

that additional training is unnecessary 

in light of the range of training topics 

already required in § 115.31. 

Comment. A juvenile justice agency 

questioned whether the review should 

make such a determination if a criminal 

investigation is proceeding at the same 

time. 

Response. The final standard states 

that the incident review should occur at 

the conclusion of every sexual abuse 

investigation, unless the allegation has 

been determined to be unfounded. If the 

facility’s investigation is put on hold 

during a criminal investigation, the 

facility can wait to conduct the incident 

review until the investigation has 

concluded. Furthermore, the incident 

review required by this standard is 

intended to allow the facility to identify 

systemic problems in policies, practices, 

dynamics, physical barriers, staffing 

levels, and monitoring that may have 

contributed to an incident or allegation 

of sexual abuse, so that the facility can 

improve conditions to avoid future 

incidents or allegations. Such a review 

should not interfere with a criminal 

investigation. 

Comment. Several advocates 

recommended that gender identity be 

included in the list of possible 

motivating factors to be considered. 

Response. The Department has added 

gender identity to the list of possible 

motivating factors to be considered. 

Data Collection (§§ 115.87, 115.187, 

115.287, 115.387) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule specified the incidentbased data that each agency is required 

to collect in order to detect possible 

patterns and to help prevent future 

incidents. The Department proposed 

that the agency be required to collect, at 

a minimum, sufficient data to answer 

fully all questions in the most recent 

revision of the Survey of Sexual 

Violence (SSV) conducted by BJS. The 

Department further proposed that the 

agency collect data from multiple 

sources (e.g., reports, investigation files, 

and sexual abuse incident reviews), that 

it aggregate the data at least annually, 

that it obtain the corresponding data 

from all private facilities with which it 

contracts for confinement, and that it 

make this data available to the 

Department upon request. 

Changes in Final Rule 

The final standard includes three 

small changes. Paragraph (c) now refers 

to the Department as whole rather than 

BJS. In paragraph (d), ‘‘collect data from 

multiple sources’’ has been changed to 

‘‘maintain, review, and collect data as 

needed from all available incident-based 

documents.’’ In paragraph (f), 

‘‘calendar’’ has been added before 

‘‘year.’’ 

Comments and Responses 

Comment. Several commenters 

asserted that the data collection and 

review requirements in this standard, 

and in §§ 115.88 and 115.89, would be 

overly burdensome. Some State 

correctional agencies and a county 

sheriffs’ association suggested that the 

large collection of data would require 

significant hiring of new staff or staff 

reallocation. A State juvenile justice 

agency stated that meeting the standard 

would require it to redesign its 

computer systems and purchase data 

collection software. 

A county juvenile justice agency 

suggested that this standard would be 

especially burdensome for smaller 

juvenile facilities such as group homes 

and private placement facilities. The 

commenter remarked that if those 

facilities are deemed non-compliant 

with the PREA standards due to an 

inability to provide data under 

§ 115.387, the agency would likely need 

to cancel contracts with those facilities 

in order to protect itself and the county 

from liability. The commenter suggested 

that canceling contracts with such 

facilities would exacerbate difficulties 

in placing minors ordered removed from 

parents’ custody. Furthermore, the 

commenter stated, delays could result in 

longer waits in juvenile detention 

facilities and in the occupation of beds 

needed for pre-adjudication minors, and 

the cost of having to provide more beds 

long-term would be substantial. Two 

State correctional agencies objected that 

the standard would require the agencies 

to increase or realign staff, without 

funding to match. 

Response. The Department 

acknowledges that facilities may need to 

incur costs to comply with the 

standards for data review and 

collection. Yet these costs should be 

manageable, and exceeded by the 

benefits that will accrue from managing 

and publishing the data in accordance 

with these standards. Many, if not all, 

of these agencies have existing reporting 


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37The latest version of the SSV can be found at 

http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&

iid=406. 

requirements and may, therefore, have 

existing support staff that can be trained 

to fulfill the functions outlined in these 

standards. The Department is not 

persuaded that this standard will 

impose a disproportionate cost on 

smaller agencies and facilities—which, 

in keeping with their size, should have 

correspondingly fewer allegations to 

document and report. 

Comment. Several commenters 

recommended adding sexual 

harassment to this standard. 

Response. The Department declines to 

make this change, largely for the same 

reasons discussed above with respect to 

§ 115.86. While sexual harassment may 

be a precursor to sexual abuse, it is both 

more frequent and less damaging than 

sexual abuse. Requiring the collection of 

incident-based data on sexual 

harassment would therefore impose a 

greater burden and result in fewer 

benefits than requiring the same data for 

incidents of sexual abuse. 

Comment. Some commenters 

expressed concern that because the data 

collection requirement applies to all 

allegations regardless of legitimacy, it 

could overburden facilities. One 

juvenile agency recommended 

restricting the requirement to 

substantiated allegations. 

Response. For allegations that are not 

substantiated, the data collection 

burden is minimal: to collect data 

necessary to answer all questions from 

the most recent version of the SSV.37

The SSV requests detailed information 

only for substantiated incidents; for 

incidents that are determined to be 

unsubstantiated or unfounded, or 

subject to an ongoing investigation, the 

current SSV requires only that the 

facility list the number of each type of 

allegation, divided into sexual abuse 

and sexual harassment. 

Comment. A few juvenile agencies 

questioned the requirement in 

paragraph (d) that data be collected from 

multiple sources, because multiple 

sources may not always be needed to 

compile the requisite aggregate data. 

Response. The Department agrees and 

has revised paragraph (d) accordingly. 

Comment. An administrative office of 

the courts suggested that ‘‘Survey of 

Sexual Violence’’ should read ‘‘Survey 

on Sexual Violence.’’ 

Response. The Department has not 

made this change; the BJS data 

collection is titled ‘‘Survey of Sexual 

Violence.’’ 

Comment. Some commenters 

suggested broadening the scope of who 

is deemed in compliance with the 

regulation. A State juvenile justice 

agency recommended, in particular, that 

jurisdictions that currently use 

standardized instruments such as the 

Performance-based Standards (PbS) and 

Community-based Standards (CbS) 

should be deemed automatically in 

compliance for purposes of data 

collection. The commenter noted that 

standardized instruments and uniform 

sexual abuse definitions are already 

used by PbS and CbS programs 

operating in 28 States and the District of 

Columbia and suggested that States 

participating in PbS or CbS programs 

should be considered to be in 

compliance with this standard by virtue 

of their participation. 

Response. The Department sees no 

reason for States that have PbS and CbS 

programs to be deemed automatically in 

compliance. However, such States, like 

all entities that currently compile data, 

may not need to make significant 

adjustments to their data collection 

policies if their collections currently 

include, as required by the standard, 

data necessary to answer all questions 

from the most recent version of the SSV. 

Comment. A county sheriff’s office 

noted that paragraph (e) requires 

agencies to collect data from private 

facilities with which they contract for 

confinement, whereas the most recent 

revision to the SSV excludes contracted 

facilities because BJS contacts these 

facilities directly. 

Response. The Department believes 

that making public agencies responsible 

for collecting data from facilities that 

they supervise directly and from private 

facilities with whom they contract for 

confinement is the best way to ensure 

compliance. Centralizing data collection 

in this way will maximize the 

likelihood of effective oversight by the 

agency and the Department. 

Comment. The same commenter 

requested clarification as to whether 

paragraph (f) requires a separate report 

or the information will be provided by 

BJS to the relevant Department 

components. The commenter also 

inquired as to whether, if the 

Department intends to contact agencies 

directly, it will request information 

different from the information required 

by the SSV. 

Response. Pursuant to the wording of 

the standard, the Department reserves 

the right to request all data compiled by 

the agency. The data will not be 

obtained from BJS. Under its 

authorizing legislation, BJS is not 

allowed to release publicly information 

that could identify victims or 

perpetrators. In addition, PREA 

provides that BJS must ensure the 

confidentiality of participants in the 

PREA-related surveys that it conducts. 

See 42 U.S.C. 15603(a)(1). 

Comment. A State juvenile justice 

agency recommended deleting 

paragraph (f) as duplicative of reporting 

requirements in other standards. If the 

paragraph is retained, the commenter 

recommended that the Department 

define ‘‘all such data’’ and clarify 

facilities’ reporting obligations by 

specifying how far in advance and 

under what circumstances a request for 

data may be made (e.g., annually or only 

in connection with an audit). The 

commenter further proposed amending 

the paragraph to provide a specific 

timeframe for an agency to prepare and 

provide its responses. Additionally, the 

commenter recommended that the 

Department require that (as in 

§ 115.89(c)) ‘‘when data is aggregated, 

confidential information shall be 

redacted and personal identifiers shall 

be removed.’’ 

Response. The Department does not 

believe that paragraph (f) is duplicative. 

Rather, it serves an additional function 

in requiring that the agency make its 

data available to the Department upon 

request. By ‘‘all such data,’’ the 

Department references all data collected 

pursuant to this standard. The 

Department declines to create a separate 

framework for the timing of requests 

from the Department, which could 

unnecessarily hamper the Department’s 

flexibility in obtaining data as needed. 

Furthermore, pursuant to § 115.88, each 

agency will be required to review the 

data, prepare an annual report of its 

findings, and make that report available 

to the public through the agency’s Web 

site. Finally, the Department declines to 

add a redaction requirement—the 

interest in confidentiality regarding a 

release of data to the public does not 

apply to the release of information to 

the Department. 

Comment. The same agency 

recommended that the Department add 

‘‘calendar’’ after ‘‘previous’’ in 

paragraph (f) to clarify the meaning of 

‘‘previous year.’’ Because the SSV 

requires aggregated data for the previous 

calendar year, the commenter suggested 

that the Department use the same period 

for data collection. 

Response. The Department agrees and 

has revised paragraph (f) accordingly. 

Comment. A State juvenile justice 

agency asked that data collected by the 

State agency from private facilities be 

limited to those that are in the same 

jurisdiction, because allegations of 

abuse reported from an out-of-State 

provider will be investigated by that 

jurisdiction’s law enforcement. The 

commenter further recommended that 


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data requested by the Department be 

limited to information provided in the 

SSV and that the Department provide 

sufficient advance time to submit this 

information. 

Response. The Department believes 

that proper oversight of the collection 

and review of data must come through 

the agencies, in conjunction with the 

Department. Because agencies contract 

with private entities for confinement, 

they are responsible for reviewing the 

data from these entities, even where a 

private facility may belong to a different 

jurisdiction. The Department further 

observes that limiting the information 

that the Department can seek to what is 

required by the SSV, and limiting the 

timeframe in which this information can 

be sought, would diminish the 

Department’s effectiveness in assessing 

data collected by agencies under this 

standard. 

Comment. Several advocates 

recommended that the Department 

adopt NPREC supplemental 

immigration standard ID–11, which 

would require that, for each incident of 

alleged sexual abuse, data be collected 

regarding whether the alleged 

perpetrator or victim is an immigration 

detainee. 

Response. The most recent version of 

the SSV does not contain ‘‘immigration 

detainee’’ as a data point, and the 

Department declines to impose this 

additional burden on correctional 

agencies. 

Data Review for Corrective Action 

(§§ 115.88, 115.188, 115.288, 115.388) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule described how the 

collected data should be analyzed and 

reported. The Department proposed that 

agencies be required to use the data to 

identify problem areas, to take ongoing 

corrective action, and to prepare an 

annual report for each facility and for 

the agency as a whole. In order to 

promote agency accountability, the 

proposed standard further mandated 

that the report compare the current 

year’s data with data from prior years 

and provide an assessment of the 

agency’s progress in addressing sexual 

abuse. The proposed standard required 

that the agency make its report publicly 

available through its Web site or other 

means. The proposed standard allowed 

agencies to redact specific material 

when publication would present a clear 

and specific threat to the safety and 

security of a facility, as long as the 

nature of the redacted material is 

indicated. 

Changes in Final Rule 

The Department has reviewed and 

considered commenters’ suggested 

changes to this standard but has made 

no substantive changes. 

Comments and Responses 

Comment. A State sheriffs’ association 

contended that making agencies include 

an annual comparison would be laborintensive; the association recommended 

that, instead, the Department set a 

broader timeframe for evaluating an 

agency’s progress in addressing sexual 

abuse. The commenter noted that 

annual reports may be appropriate for 

agencies with higher incidence of sexual 

abuse, but would be impracticable for 

smaller facilities. 

Response. The Department has 

weighed the costs and benefits of 

various timelines for reporting and 

believes that an annual report will best 

fit the various purposes of the reporting 

requirements, including effective 

oversight, transparency in making 

information regularly available to the 

public, and uniformity across agencies 

and facilities. Because data collection is 

keyed to the calendar year, it is 

appropriate for the reporting 

requirement to be annual as well. To 

vary the timelines of the reporting 

requirement on the basis of facility size 

would introduce needless complexity 

and make it more difficult for agencies 

that supervise facilities of varying sizes 

to perform the essential task of 

reviewing data to implement needed 

improvements in policies and practices. 

Additionally, facilities of all sizes 

already have annual review 

requirements in a wide range of other 

areas. Requiring an annual report will 

ensure consistency with other reporting 

requirements and will help assess 

progress in meeting the goals of PREA. 

Comment. A State juvenile justice 

agency suggested that the Department 

specify what ‘‘other means’’ would be 

acceptable for making the annual report 

readily available to the public. A State 

sheriffs’ association also noted that the 

preparation of the annual report would 

impose extra costs for support staffing 

and that additional funds would be 

needed to cover the cost of changing the 

Web site and adding material to it. 

Response. Posting the annual report 

online will maximize public visibility 

and accessibility. Only agencies that 

lack a Web site may make the report 

available to the public through other 

means. Such means might include, for 

example, submitting the report to the 

relevant legislative body. 

The Department recognizes that the 

preparation of the report will incur 

support staff time and effort, but 

believes that the cost of adding material 

to the Web site will be minimal and 

outweighed by the benefits of public 

accessibility. 

Comment. Various commenters 

recommended that the Department 

revise the standard to encourage 

facilities to implement changes in 

response to sexual abuse incidents in an 

ongoing manner, rather than in response 

to data aggregated annually. An 

advocacy organization stated that if 

agencies are required to compile 

aggregate data only once per year, they 

might miss critical opportunities to 

implement changes to practices, 

policies, staffing, training, and 

monitoring. Accordingly, the 

commenter recommended that 

paragraph (a) be revised by adding at the 

beginning ‘‘[a]nnually and after 

significant incidents.’’ A juvenile 

advocacy organization suggested 

deleting ‘‘and aggregated’’ and 

encouraging facilities to make 

appropriate changes to policies and 

practices on an ongoing, rather than 

yearly, basis. 

Response. The requirement that data 

be collected and aggregated annually is 

a floor, not a ceiling. Requiring an 

annual report will properly facilitate 

compliance with the data reporting and 

review requirements without overly 

burdening agencies. Mandating a more 

frequent review could prove costly for 

some agencies and may be of little 

additional benefit. The standard 

appropriately leaves to agency 

discretion whether to collect aggregate 

data more frequently and how to 

respond to incidents and concerns in an 

ongoing way. Implementing the 

commenters’ proposals would restrict 

agencies’ ability to comply with the 

standard in a manner that most 

effectively utilizes their limited 

resources. 

Data Storage, Publication, and 

Destruction (§§ 115.89, 115.189, 

115.289, 115.389) 

Summary of Proposed Rule 

The standard contained in the 

proposed rule provided guidance on 

how to store, publish, and retain data. 

The Department proposed that data 

must be securely retained for at least ten 

years after the date of initial collection 

unless Federal, State, or local law 

requires otherwise. In addition, the 

proposed standard required that 

agencies make aggregated data publicly 

available through their Web sites or 

other means, after removing all personal 

identifiers. 


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Changes in Final Rule 

The Department has added language 

to clarify that ‘‘sexual abuse data’’ in 

paragraph (d) refers to data collected 

pursuant to §§ 115.87, 115.187, 115.287, 

and 115.387. 

Comments and Responses 

Comment. A county sheriff’s office 

questioned whether ‘‘sexual abuse data’’ 

refers to the sexual abuse incident 

review, the data reported to BJS through 

the SSV, or the public reports published 

on the agency’s Web site. The 

commenter noted that if ‘‘sexual abuse 

data’’ refers to all records created during 

the sexual abuse investigation, then the 

standard would conflict with the recordretention requirement of § 115.71. 

Response. The Department has 

revised the standard to clarify that 

‘‘data’’ refers to data that the agency 

collects pursuant to § 115.87. Section 

115.71 covers a different set of records 

and therefore does not conflict with 

§ 115.87. Specifically § 115.71 requires 

that agencies retain written reports that 

document administrative and criminal 

investigations for the duration of the 

alleged abuser’s incarceration or 

employment by the facility, plus five 

years. Section 115.89, by contrast, 

requires that the agency retain for at 

least ten years after the date of its initial 

collection (unless otherwise required by 

law) accurate uniform data for each 

allegation, using a standardized 

instrument and set of definitions, 

including at a minimum the data 

necessary to answer all questions from 

the most recent version of the SSV. Put 

differently, § 115.71 covers written 

reports and the associated records; 

§ 115.89 covers statistics. While it is 

true that the agency can consult 

investigative findings as part of its 

review and collection of incident-based 

and aggregate data, the latter data are 

separate from the investigative records 

themselves and give rise to the different 

reporting requirements contained in this 

standard. The differing retention 

requirements, therefore, do not conflict. 

Comment. Two juvenile justice 

agencies recommended deleting 

paragraph (b) on the basis that the 

requirement in § 115.388 to publish an 

annual report and to make the report 

available on the agency’s Web site 

already includes a requirement to 

publish the aggregated sexual abuse 

data. 

Response. Section 115.388 requires 

agencies to create an annual report 

documenting their findings and 

corrective actions based on the 

aggregated data, but does not require 

publication of the actual data. The 

instant standard, by contrast, governs 

the retention and publication of the 

data. Specifying a separate requirement 

for the publication of the data will 

ensure that agencies can be held 

accountable for their findings and 

corrective actions by allowing the 

public to inspect the data on which 

these findings and actions were based. 

Auditing and State Compliance 

(§§ 115.93, 115.193, 115.293, 115.393, 

115.401, 115.402, 115.403, 115.404, 

115.405, 115.501) 

Summary of Proposed Rule 

In the proposed rule, the Department 

declined to resolve how frequently, and 

on what basis, audits should be 

conducted. Determining that further 

discussion was necessary in order to 

assess these issues, the Department 

included in the NPRM several questions 

regarding the nature and scope of 

audits. 

The standard contained in the 

proposed rule did specify the 

requirements for an audit to be 

considered independent. If an agency 

uses an outside auditor, the proposed 

standard required that the agency 

ensure that it not have a financial 

relationship with the auditor for three 

years before or after the audit, other 

than payment for the audit conducted. 

The proposed standard also specified 

that the audit may be conducted by an 

external monitoring body that is part of, 

or authorized by, State or local 

government, such as a government 

agency or nonprofit entity whose 

purpose is to oversee or monitor 

correctional facilities. In addition, the 

proposed standard allowed an agency to 

utilize an internal inspector general or 

ombudsperson who reports directly to 

the agency head or to the agency’s 

governing board. 

The proposed standard further stated 

that the Department will prescribe 

methods governing the conduct of such 

audits, including provisions for 

reasonable inspections of facilities, 

review of documents, and interviews of 

staff and inmates, as well as the 

minimal qualifications for auditors. 

The proposed standard provided that 

an agency shall enable the auditor to 

enter and tour facilities, review 

documents, and interview staff and 

inmates to conduct a comprehensive 

audit. 

Finally, the proposed standard 

provided that an agency shall ensure 

that the auditor’s final report is 

published on the agency’s Web site if it 

has one, or is otherwise made readily 

available to the public. 

Changes in Final Rule 

In the final rule, the Department 

creates a single, unified auditing system 

for all facilities, except for lockups that 

do not hold detainees overnight, such as 

court holding facilities. The final 

standard addresses the frequency and 

scope of audits, required auditor 

qualifications, audit report contents and 

findings, audit corrective action plans, 

the audit appeals process, and the effect 

of the audit results on the Governor’s 

certification of compliance. 

The final standard provides that 

audits shall be conducted on a threeyear cycle, with the first auditing period 

commencing one year after the effective 

date of the standards. Each year, the 

agency shall ensure that at least onethird of each facility type operated by 

the agency, or by a private organization 

on behalf of the agency, is audited. 

During the three-year cycle, the agency 

shall ensure that each facility operated 

by the agency, or by a private 

organization on behalf of the agency, is 

audited at least once. In some cases, the 

Department may recommend that an 

agency conduct an expedited audit if 

the Department has reason to believe 

that a particular facility may be 

experiencing problems relating to sexual 

abuse. The recommendation may also 

include referrals to resources that may 

assist the agency with PREA-related 

issues. 

The Department will develop and 

issue an audit instrument that will 

provide guidance on the conduct of and 

contents of the audit. 

The auditor shall review all relevant 

agency-wide policies, procedures, 

reports, internal and external audits, 

and accreditations for each facility type, 

as well as, at a minimum, a sampling of 

relevant documents and other records 

and information for the most recent oneyear period. The auditor shall be 

permitted to request and receive copies 

of any relevant documents (including 

electronically stored information), and 

shall retain and preserve all 

documentation (such as video tapes and 

interview notes) relied upon in making 

audit determinations. Such 

documentation shall be provided to the 

Department upon request. The auditor 

shall interview a representative sample 

of inmates, staff, supervisors, and 

administrators, and shall have access to 

and observe all areas of the audited 

facilities. 

The auditor shall be permitted to 

conduct private interviews with 

inmates, and inmates shall be permitted 

to send confidential information or 

correspondence to the auditor in the 

same manner as if they were 


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communicating with legal counsel. 

Auditors shall attempt to communicate 

with community-based or victim 

advocates who may have insight into 

relevant conditions in the facility. 

The final standard provides that an 

audit shall be conducted by: (1) A 

member of a correctional monitoring 

body that is not part of, or under the 

authority of, the agency (but may be part 

of, or authorized by, the relevant State 

or local government); (2) a member of an 

auditing entity such as an inspector 

general’s or ombudsperson’s office that 

is external to the agency; or (3) other 

outside individuals with relevant 

experience. Thus, the final standard 

differs from the proposed standard in 

that it does not allow audits to be 

conducted by an internal inspector 

general or ombudsperson who reports 

directly to the agency head or to the 

agency’s governing board. 

Auditors shall be certified by the 

Department, pursuant to procedures to 

be developed, including training 

requirements. 

For each standard, the auditor shall 

determine whether the audited facility 

reaches one of the following findings: 

‘‘Exceeds Standard’’ (substantially 

exceeds requirement of standard); 

‘‘Meets Standard’’ (substantial 

compliance; complies in all material 

ways with the standard for the relevant 

review period); or ‘‘Does Not Meet 

Standard’’ (requires corrective action). 

The audit summary shall indicate, 

among other things, the number of 

provisions the facility has achieved at 

each grade level. 

A finding of ‘‘Does Not Meet 

Standard’’ with one or more standards 

shall trigger a 180-day corrective action 

period. The auditor and the agency shall 

jointly develop a corrective action plan 

to achieve compliance. The auditor 

shall take necessary and appropriate 

steps to verify implementation of the 

corrective action plan, such as 

reviewing updated policies and 

procedures or re-inspecting portions of 

a facility. After the 180-day corrective 

action period ends, the auditor shall 

issue a final determination as to 

whether the facility has achieved 

compliance with those standards 

requiring corrective action. If the agency 

does not achieve compliance with each 

standard, it may (at its discretion and 

cost) request a subsequent audit once it 

believes that it has achieved 

compliance. 

An agency may lodge an appeal with 

the Department regarding any specific 

audit finding that it believes to be 

incorrect. If the Department determines 

that the agency has stated good cause for 

a re-evaluation, the agency may 

commission a re-audit by an auditor 

mutually agreed upon by the 

Department and the agency, at the 

agency’s cost. The findings of the reaudit shall be final. 

Section 115.501(a) provides that, in 

determining pursuant to 42 U.S.C. 

15607(c)(2) whether the State is in full 

compliance with the PREA standards, 

the Governor shall consider the results 

of the most recent agency audits. 

Section 115.501(b) provides that the 

Governor’s certification shall apply to 

all facilities in the State under the 

operational control of the State’s 

executive branch, including facilities 

operated by private entities on behalf of 

the State’s executive branch. 

Comments and Responses 

Comment. A wide range of comments 

were received on the question of 

whether audits should be conducted at 

set intervals or, alternatively, whether 

audits should be conducted only for 

cause, based upon a reason to believe 

that a particular facility or agency is 

materially out of compliance with the 

standards. Many comments 

recommended audits be conducted at 

set intervals; most such comments 

recommended audits occur on a threeyear cycle, as the NPREC had 

recommended. A number of comments 

proposed a combination of automatic 

periodic audits plus for-cause audits. 

Two commenters recommended that 

audits be conducted both at random 

intervals and for cause. A number of 

comments recommended that audits be 

performed for cause only, or where a 

facility has received a large number of 

complaints regarding sexual abuse. 

Several comments recommended 

various hybrid thresholds and 

timeframes for required audits. Some 

suggested a combination of 

‘‘streamlined’’ audits and full audits, 

more frequent or less frequent audits 

depending upon prior audit results or 

reasons to suspect noncompliance, and 

different audit timelines for smaller 

agencies. 

Several comments recommended 

audits only for a random sampling of all 

facilities, or of facilities not otherwise 

subject to accreditation. Several 

comments suggested that all facilities be 

audited. A number of other comments 

suggested various hybrid approaches, 

including: statistical reporting with 

random audits to confirm data; auditing 

of all large facilities and random 

sampling of small facilities; differential 

auditing cycles for large and small 

facilities; auditing of all facilities during 

the first auditing cycle with various 

triggers or random selection for 

subsequent audits; or annual internal 

audits with random sampling for 

external PREA audits or as requested by 

the agency. 

A comment submitted by former 

members of the NPREC recommended 

that all facilities be audited within the 

first three years to establish a ‘‘baseline’’ 

that would guide future audits. 

Performance on the baseline audit 

would determine when the next regular 

audit would occur. The members 

suggested that if an agency or facility’s 

compliance with the standards was 

determined to exceed 85 percent, the 

subsequent audit would occur five years 

later. If compliance was between 50 and 

85 percent, the next audit would be in 

three years, and if compliance was less 

than 50 percent the next audit would be 

one year later. Former NPREC members 

further recommended that a random 

sample of agencies and facilities receive 

unscheduled audits after the initial 

baseline audit. In addition, the members 

recommended for-cause audits based 

upon reasons to suspect problems in 

specific agencies or facilities. 

Response. The Department has 

determined that all facilities should be 

subject to audits, and that audits should 

occur at all facilities at least every three 

years, and at least one third of the 

facilities operated by an agency must be 

audited every year. The standard thus 

allows agencies substantial flexibility in 

scheduling audits within each threeyear cycle while ensuring that facility 

audits occur regularly. 

The Department has chosen not to 

require audits only for cause, as this 

would make it difficult to determine 

whether a broad range of facilities are 

complying with the standards, and 

would make it harder to assess whether 

a State is in full compliance with the 

statute. Under PREA, certification of full 

compliance by the Governor of a State 

is necessary in order to avoid a 

reduction in certain grant funding from 

the Department, unless the Governor 

commits to using the amount that 

otherwise would be forfeited for the 

purpose of enabling the State to achieve 

full compliance in future years. See 42 

U.S.C. 15607(c)(2). In addition, 

requiring audits to be conducted only 

for cause could discourage agencies 

from strengthening their reporting and 

investigating procedures, for fear that 

revelation of incidents could result in 

an audit that the facility would 

otherwise escape. 

The final standard does incorporate 

the concept of a for-cause audit by 

providing a mechanism through which 

the Department can recommend to an 

agency that an expedited audit be 

conducted on any facility if the 

Department has reason to believe that 


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the facility is experiencing problems 

related to sexual abuse. However, the 

Department concludes that a hybrid 

audit scheme would prove 

unnecessarily complex and would lack 

the required predictability and 

flexibility to permit agencies to budget 

and plan for the audits. 

The Department believes that audits 

conducted through random sampling 

would be insufficient to assess the scope 

of compliance with the PREA standards. 

The Department is cognizant of the 

burden that audits pose on institutions 

but believes that the triennial cycle 

appropriately balances the level of effort 

and resources that will need to be 

expended. In addition, the Department 

anticipates that the actual audit 

complexity and duration will be scaled 

to the size and type of facility. 

Comment. Many agency commenters 

recommended that agencies be allowed 

to audit themselves; by contrast, many 

advocacy commenters criticized the 

proposed standard for allowing internal 

inspectors general or ombudspersons to 

conduct audits, out of concern that 

permitting agency employees to audit 

the agency’s facilities could compromise 

the objectivity and credibility of the 

auditing process. One commenter 

suggested that audits performed by an 

auditor within the agency should be 

subject to review by an independent 

agency or elected body. 

Response. While internal audits may 

prove helpful in assessing an 

institution’s performance, the 

Department believes that external audits 

are necessary to ensure that the audits 

are conducted, and are perceived to be 

conducted, independently and 

objectively. Accordingly, the final 

standard requires that the audit be 

performed by an auditor external to the 

agency. An audit may, however, be 

conducted by a sister governmental 

agency, including by an entity that 

ultimately reports to the same 

overarching department as the agency 

under audit. 

Comment. Comments varied in 

response to NPRM Question 32, which 

asked to what extent, if any, agencies 

should be able to combine a PREA audit 

with an audit performed by an 

accrediting body or with other types of 

audits. A number of comments 

recommended that audits not be 

combined with other types of audits. 

Several comments suggested that PREA 

audits should be incorporated with 

accreditation or other audit types. A 

number of comments stated that State 

bodies that inspect local jails should be 

able to include PREA audits in the 

inspection process. 

Response. The final standard places 

no restriction on auditor certification for 

individuals who are employed by an 

accrediting or oversight entity that is 

separate and independent from the 

agency. For example, a qualified 

individual within a State office of 

inspector general (if outside the agency) 

or a member of an accrediting body 

could obtain Department certification 

and, if not otherwise conflicted, would 

be permitted to conduct the PREA audit, 

or incorporate the PREA audit as part of 

a more comprehensive facility 

inspection program. 

Comment. NPRM Question 33 asked 

whether the wording of any of the 

substantive standards should be revised 

in order to facilitate a determination of 

whether a jurisdiction is in compliance 

with the standard. Some comments 

suggested that the standards be 

expressed using objective criteria. Other 

comments recommended that the 

standards be written in a performancebased format, or subject to specific 

outcome measures. Still others 

suggested a combination of qualitative 

and quantitative standards. A number of 

comments suggested requiring that 

agencies fully document their efforts to 

comply with the standards. Finally, one 

comment recommended that the auditor 

have discretion to determine whether a 

facility is complying with the standard. 

Response. The Department has 

attempted to incorporate objective 

criteria and written documentation 

requirements wherever practicable, 

although auditors will necessarily have 

some discretion to determine 

compliance regarding certain standards. 

The Department intends to jointly 

develop, with the National Resource 

Center for the Elimination of Prison 

Rape, comprehensive auditing 

instruments for the various facility types 

and sizes that will provide guidance to 

the auditor on determining compliance. 

In addition, the Department will 

develop uniform training and 

certification requirements for individual 

auditors, and may periodically issue 

interpretive guidance regarding the 

PREA standards. 

The Department declines to 

incorporate into the standards specific 

outcome measures. While performancebased standards facilitate compliance 

assessments, it is difficult to employ 

such standards effectively to combat 

sexual abuse in confinement facilities. 

An increase in incidents reported to 

facility administration may reflect 

increased abuse due to the facility’s 

inability to protect inmates from harm. 

Alternatively, it might reflect inmates’ 

increased willingness to report abuse, 

due to the facility’s success at assuring 

inmates that reporting abuse will yield 

positive outcomes and not result in 

retaliation. 

Comment. Several commenters 

recommended that auditors have 

expertise in, or receive specialized 

training in, such topics as working with 

victims of sexual abuse, applicable civil 

rights laws, adolescent and child 

development, and crisis counseling. 

Response. The Department intends to 

develop and issue auditor training 

requirements, and will work with the 

National Resource Center for the 

Elimination of Prison Rape (or other 

contracted entity) to develop an audit 

training curriculum. 

Comment. A number of comments 

recommended that the auditor receive 

unfettered facility access, including 

access to inmates, full access to a 

facility’s physical plant and documents, 

the ability to consult with the PREA 

coordinator, access to facility personnel, 

and the ability to conduct unannounced 

inspections. 

Response. The final standard 

incorporates many of these elements to 

enable thorough audits. However, the 

Department declines to require that 

auditors be permitted to conduct 

unannounced facility audits, as this 

could prove inordinately burdensome 

for facility and agency personnel. 

Comment. Former NPREC members 

recommended that the Department’s 

Office of the Inspector General conduct 

audits of BOP facilities. 

Response. BOP facilities will be 

audited pursuant to the auditing 

standard. However, the Department 

declines to mandate in the standard the 

specific entity that will conduct BOP 

audits. 

Comment. Two commenters 

recommended that the audit reports 

describe the auditor’s methodology, the 

evidence used to support each audit 

finding, and recommendations for any 

required corrective action. 

Response. The final standard includes 

these elements. 

Comments. NPRM Question 35 asked 

to what extent, if any, audits should 

bear on determining whether a State is 

in full compliance with PREA. Several 

comments recommended that the audits 

be the primary basis for determining 

‘‘full compliance.’’ A number of other 

comments suggested that the audit 

results be one of a number of factors in 

determining ‘‘full compliance.’’ Some 

comments suggested that audit results 

have only a marginal bearing on the 

determination, or be relevant to 

determining only State-level 

compliance. A number of comments 

suggested that audit results, combined 

with appropriate and verified corrective 


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38These figures include all facility types and all 

types of sexual abuse (from the most to the least 

severe), and take into account the fact that many 

victims are victimized multiple times (i.e., an 

avoided victim subsumes all of the incidents of 

sexual abuse that victim experiences). In the RIA, 

the Department calculates the break-even figures in 

six different ways corresponding to different 

methods of calculating the baseline prevalence of 

prison sexual abuse and different approaches to 

monetizing the value of avoiding prison sexual 

abuse. The figures in Table 2 reflect the 

Department’s preferred approach among these six 

alternatives. When reflected as a range, the six 

approaches collectively provide that, for the costs 

of full nationwide compliance to break even with 

the monetized benefits of avoiding prison rape, the 

standards would have to be successful in reducing 

action, determine State-level ‘‘full 

compliance.’’ One comment suggested 

that the audit results, combined with an 

appropriate explanation from the 

Governor, enable the State to certify 

‘‘full compliance.’’ 

Response. The Department intends 

the audits to be a primary factor in 

determining State-level ‘‘full 

compliance.’’ Accordingly, the final rule 

requires the Governor to consider the 

most recent audit results in making his 

or her certification determination, 

which shall apply to facilities under the 

operational control of the State’s 

executive branch, including facilities 

operated by private entities on behalf of 

the State’s executive branch. 

IV. Regulatory Certifications 

Executive Orders 13563 and 12866— 

Regulatory Planning and Review 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ as recently reaffirmed and 

supplemented by Executive Order 

13563, ‘‘Improving Regulation and 

Regulatory Review.’’ The Department 

has determined that this final rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, § 3(f)(1), and 

accordingly has submitted it to the 

Office of Management and Budget 

(OMB) for review. 

Executive Order 12866 requires 

Federal agencies to conduct a regulatory 

impact assessment (benefit-cost 

analysis) for any ‘‘significant regulatory 

action’’ likely to result in a rule that 

may have an annual impact on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities. See Executive Order 

12866, Sec. 6(a)(3)(C). 

The Department has concluded that 

the economic impact of its adoption of 

the final rule, if complied with by all 

entities to which it applies, is likely to 

exceed this $100 million threshold. 

Assuming full nationwide compliance, 

the standards would affect the 

management of all State, local, privately 

operated, and Department of Justice 

confinement facilities, which 

collectively house over 2.4 million 

individuals at any given time and which 

spent more than $79.5 billion in 2008. 

See BJS, Justice Expenditure and 

Employment Extracts 2008, advance 

estimate (unpublished). 

The final rule, moreover, ‘‘materially 

alters * * * the rights and obligations of 

grant recipients,’’ and ‘‘raise[s] novel 

legal or policy issues.’’ Executive Order 

12866, Secs. 3(f)(3), (4). Accordingly, in 

compliance with OMB Circular A–4, the 

Department has prepared a Regulatory 

Impact Assessment (RIA) to accompany 

the final rule. 

Regulatory Impact Assessment 

The RIA is available in full at 

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

pdfs/prea_ria.pdf and is summarized 

here. The RIA assesses, and monetizes 

to the extent feasible, the benefits of 

combating rape and sexual abuse in 

America’s prisons, jails, lockups, 

community confinement facilities, and 

juvenile facilities, and the costs of full 

nationwide compliance with the final 

rule. It also summarizes the comments 

relating to the costs and benefits of the 

standards that the Department received 

in response to the NPRM and the Initial 

Regulatory Impact Assessment (IRIA). 

The cost estimates set forth in the RIA 

are the costs of full nationwide 

compliance with all of the standards 

and their implementation in all covered 

facilities. The Department concludes 

that full nationwide compliance with 

the standards would cost the 

correctional community, in the 

aggregate, approximately $6.9 billion 

over the period 2012–2026, or $468.5 

million per year when annualized at a 

7 percent discount rate. The average 

annualized cost per facility of 

compliance with the standards is 

approximately $55,000 for prisons, 

$50,000 for jails, $24,000 for community 

confinement facilities, and $54,000 for 

juvenile facilities. For lockups, the 

average annualized cost per agency is 

estimated at $16,000. 

However, these figures are potentially 

misleading. PREA does not require full 

nationwide compliance with the 

Department’s standards, nor does it 

enact a mechanism for the Department 

to direct or enforce such compliance; 

instead, the statute provides certain 

incentives for State (but not local or 

privately operated) confinement 

facilities to implement the standards. 

Fiscal realities faced by confinement 

facilities throughout the country make it 

virtually certain that the total actual 

outlays by those facilities will, in the 

aggregate, be less than the full 

nationwide compliance costs calculated 

in this RIA. Actual outlays incurred will 

depend on the specific choices that 

State, local, and private correctional 

agencies make with regard to adoption 

of the standards, and correspondingly 

on the annual expenditures that those 

agencies are willing and able to make in 

choosing to implement the standards in 

their facilities. The Department has not 

endeavored in the RIA to project those 

actual outlays. 

Summary of Cost Justification Analysis 

In developing the final rule, the 

Department was constrained by two 

separate and independent limitations 

relating to the potential costs of the 

standards. The first was the 

requirement, set forth in Executive 

Order 12866, that each agency ‘‘propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs,’’ recognizing that some 

benefits and costs are difficult to 

quantify. Executive Order 12866, Sec. 

1(b)(6). Executive Order 13563, 

moreover, directs agencies ‘‘to use the 

best available techniques to quantify 

anticipated present and future benefits 

and costs as accurately as possible.’’ 

Executive Order 13563, Sec. 1(c). The 

second was the provision, set forth in 

PREA itself, prohibiting the Attorney 

General from adopting any standards 

‘‘that would impose substantial 

additional costs compared to the costs 

presently expended by Federal, State, 

and local prison authorities.’’ 42 U.S.C. 

15607(a)(3). The RIA addresses both sets 

of limitations and concludes that the 

final rule does not contravene either 

constraint, and is in fact fully justified 

under both analyses. 

With respect to the analysis called for 

by the Executive Orders, the RIA 

undertakes a break-even analysis to 

demonstrate that the anticipated costs of 

full nationwide compliance with the 

PREA standards are amply justified by 

the anticipated benefits. The results of 

this break-even analysis are summarized 

in Table 2. As shown there, using the 

Department’s preferred estimation 

method, for the costs of full nationwide 

compliance to break even with the 

monetized benefits of avoiding prison 

rape, the standards would have to be 

successful in reducing the annual 

number of prison sexual abuse victims 

by about 1,671, for a total reduction 

from the baseline over fifteen years of 

about 25,000 victims.38 As a 


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the annual number of prison sexual abuse victims 

by between 1,667 and 2,329, for a total reduction 

from the baseline over fifteen years of about 25,000– 

35,000 victims. 39Prevalence figures reflect the Department’s 

‘‘principal’’ approach to determining prevalence 

(among the three alternative approaches discussed 

below) and include all forms of sexual abuse. As 

explained in the RIA, prevalence figures for lockups 

and community confinement facilities are 

unknown; the total for prisons, jails, and juvenile 

centers under the principal approach is 209,422. 

The ‘‘value of 1% reduction’’ row sets forth the 

RIA’s estimate of the monetizable value (in millions 

of dollars) of the benefit of a 1% reduction from the 

baseline annual prevalence of sexual abuse in 

prisons, jails, and juvenile centers, using the 

Department’s preferred methodology, the victim 

compensation model, and taking into account the 

fact that many victims of prison rape are victimized 

multiple times. The ‘‘value of 1 victim avoided’’ 

row sets forth the corresponding estimate for 

lockups and community confinement facilities, but 

sets forth the value (again in millions) of avoiding 

a single victim of abuse. 

Cost figures represent the cost of full nationwide 

compliance with all of the PREA standards, in the 

aggregate, in millions of dollars. ‘‘Breakeven 

percent,’’ for prisons, jails, and juvenile centers, 

shows the total percentage reduction from the 

baseline annual prevalence of prison sexual abuse 

that the standards would have to achieve in each 

sector in order for their annual benefits, in 

monetary terms, to break even with their annual 

costs, again assuming full nationwide compliance. 

‘‘Breakeven Number of Victims’’ shows how many 

individual victims of prison sexual abuse the 

standards would have to be successful in 

preventing each year, in each sector (again taking 

into account the phenomenon of serial 

victimization), for the standards’ annual benefits, in 

monetary terms, to break even with the annual costs 

of full nationwide compliance. 

40See 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). 

41Prevalence essentially measures the number of 

victims of sexual abuse over a period of time, 

whereas incidence refers to the number of discrete 

victimizations over that period. The difference 

between the two arises from the fact that many 

prison rape victims are victimized many times. 

42The estimates of prevalence are based on 

surveys of inmates, who are asked to state whether, 

as of the date the survey is administered, they have 

experienced sexual abuse in that facility during the 

previous twelve months. If the answer is 

affirmative, the inmate is asked follow-up questions 

about the nature and frequency of the abuse. In a 

cross-section (also known as ‘‘stock’’) approach to 

estimating prevalence, the estimates are based on 

the responses given by the inmates who happen to 

be at the facility on the day the survey was 

administered. However, this approach risks 

significantly understating the actual prevalence, 

especially in jails, because the majority of inmates 

remain in their facility for less than one year, and 

there will have been many inmates who were at the 

facility earlier during the twelve-month survey 

period but who are no longer there when the survey 

is administered. A flow approach to estimating 

prevalence compensates for this phenomenon by 

extrapolating from the cross-sectional figures an 

estimate of the total number of victims among the 

total population of inmates who flowed through the 

facility during the twelve-month period. 

43At the time the RIA was prepared, the 

Department lacked data regarding the prevalence of 

sexual abuse in community confinement facilities. 

A BJS study of former State prisoners that was 

finalized in May 2012, too late for incorporation 

Continued 

comparison, the RIA estimates that in 

2008 more than 209,400 persons were 

victims of sexual abuse in America’s 

prisons, jails, and juvenile centers, of 

which at least 78,500 prison and jail 

inmates and 4,300 youth in juvenile 

facilities were victims of the most 

serious forms of sexual abuse, including 

forcible rape and other nonconsensual 

sexual acts involving injury, force, or 

high incidence. 

TABLE 2—SUMMARY OF BREAK-EVEN ANALYSIS FOR PREA STANDARDS 39

[In millions of dollars] 

Prisons Jails Lockup 

Community 

confinement 

facilities 

Juvenile Total 

Prevalence ...................................................................... 89,688 109,181 Unknown .... Unknown .... 10,553 209,422 

Value of 1% Reduction ................................................... $206.4 $260.1 Unknown .... Unknown .... $52.4 

Value of 1 Victim Avoided .............................................. .................... .................... $0.25 .......... $0.25 .......... .................... ....................

Cost ................................................................................ $64.9 $163.4 $95.5 .......... $12.8 .......... $131.9 $468.5 

Breakeven Percent ......................................................... 0.32% 0.64% Unknown .... Unknown .... 2.55% ....................

Breakeven Number of Victims ........................................ 282 686 385 ............. 52 ............... 266 1671 

The Department believes it reasonable 

to expect that the standards, if fully 

adopted and complied with, would 

achieve at least this level of reduction 

in the prevalence of prison sexual 

abuse. Taking into account the 

considerable non-monetized benefits of 

avoiding prison rape, the justification 

for the standards becomes even stronger. 

Of course, if the nation’s confinement 

facilities spend less annually than full 

nationwide compliance is estimated to 

require, then the annual reduction in 

the number of prison sexual abuse 

victims that would need to be achieved 

in order for actual outlays to break even 

with benefits would be correspondingly 

lower. 

With respect to the analysis that 

Congress required in PREA, the RIA 

concludes that the costs of full 

nationwide compliance do not amount 

to ‘‘substantial additional costs’’ when 

compared to total national expenditures 

on correctional operations. In the most 

recent tabulation, correctional agencies 

nationwide spent approximately $79.5 

billion on correctional operations in 

2008. As noted, the RIA estimates that 

full nationwide compliance with the 

final standards would cost these 

agencies approximately $468.5 million 

per year, when annualized over 15 years 

at a 7 percent discount rate, or a mere 

0.6 percent of total annual correctional 

expenditures in 2008. The Department 

concludes that this does not amount to 

substantial additional costs. 

Measuring the Relevant Baseline 

As a starting point, the RIA measures 

the baseline level of prison rape and 

sexual abuse in prisons, jails, and 

juvenile facilities. It estimates the 

annual prevalence of six categories of 

inappropriate sexual contact in adult 

prisons and jails, and five different 

categories in juvenile facilities. The 

precise definitions of these categories 

are set forth in detail in the RIA, but 

these types of sexual contact are 

essentially differentiated based on the 

existence and nature of force or threat 

of force, the nature and intrusiveness of 

the physical contact, and how often the 

victim has experienced abuse (i.e., 

whether the victim has experienced a 

low or high incidence of contact), 

among other factors. 

Relying largely on tabulations made 

by BJS and the Office of Juvenile Justice 

and Delinquency Prevention, the RIA 

examines the available statistics on the 

prevalence of each type of inappropriate 

sexual contact 40 and addresses a 

number of issues with those statistics, 

including the problem of serial 

victimization (prevalence vs. 

incidence),41 cross-section vs. flow,42

underreporting of sexual victimization 

(false negatives), and false allegations 

(overreporting). The RIA also describes 

difficulties in measuring the prevalence 

of sexual abuse in community 

confinement facilities and lockups.43


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into the prevalence assessments of the RIA, 

provides for the first time some data regarding such 

prevalence. See BJS, Sexual Victimization Reported 

by Former State Prisoners, 2008 (NCJ 237363) (May 

2012). The Department remains unaware of any 

data regarding the prevalence of sexual abuse in 

lockups. 

44For the definitions of the various types of 

sexual conduct listed in these tables, see Tables 1.1 

and 1.2 in the RIA. 

The RIA presents three alternatives 

for estimating the prevalence of sexual 

abuse, each relying on different 

assumptions to account for the 

possibility of underreporting (false 

negatives) and overreporting (false 

positives) of sexual abuse. Under the 

‘‘principal’’ method—the one the 

Department prefers among the three—no 

adjustment is made to the prevalence 

estimates to account either for false 

negatives (sexual abuses that occurred 

but were never reported) or false 

positives (sexual abuses that were 

reported by inmates but that did not 

actually occur). The ‘‘adjusted’’ 

approach uses an upper bound 

assumption as to the number of false 

negatives and a conservative approach 

to the adjustment for false positives; the 

‘‘lower bound’’ approach uses a lower 

bound assumption as to the number of 

false negatives and a less conservative 

approach to adjusting for false positives. 

Under the principal approach, the RIA 

concludes that in 2008 more than 

209,400 persons were victims of sexual 

abuse in America’s prisons, jails, and 

juvenile centers. Of these, at least 

78,500 were prison and jail inmates and 

4,300 were youth in juvenile facilities 

who were victims of the most serious 

forms of sexual abuse, including forcible 

rape and other nonconsensual sexual 

acts involving injury, force, or high 

incidence. 

Table 3 shows the estimated baseline 

prevalence of rape and sexual abuse in 

adult prison and jail facilities under 

each of the RIA’s prevalence estimation 

methods. Table 4 shows the 

corresponding estimates for juvenile 

facilities, and Table 5 shows the 

composite prevalence estimates among 

all facility types.44

TABLE 3—BASELINE PREVALENCE OF SEXUAL ABUSE, ADULT PRISON AND JAIL FACILITIES, USING ALTERNATIVE

PREVALENCE ESTIMATION APPROACHES, BY TYPE OF INCIDENT, 2008 

Adult prisons Adult jails 

Principal Adjusted Lower 

bound Principal Adjusted Lower bound 

Nonconsensual Sexual Acts—High ................................. 32,900 33,100 25,600 45,600 43,000 26,000 

Nonconsensual Sexual Acts—Low .................................. 11,300 11,600 8,800 8,900 7,900 5,000 

‘‘Willing’’ Sex with Staff .................................................... 17,600 17,800 13,500 15,500 14,800 10,400 

Abusive Sexual Contacts—High ...................................... 7,300 7,000 6,100 8,500 7,800 6,300 

Abuse Sexual Contacts—Low ......................................... 10,900 11,200 9,000 14,400 13,600 10,700 

Staff Sexual Misconduct Touching Only .......................... 9,700 9,400 7,500 16,300 14,200 10,800 

Total .......................................................................... 89,700 90,100 70,500 109,200 101,300 69,200 

TABLE 4—BASELINE PREVALENCE OF SEXUAL ABUSE, JUVENILE FACILITIES, USING ALTERNATIVE PREVALENCE

ESTIMATION APPROACHES, BY TYPE OF INCIDENT, 2008 

Principal Adjusted Lower 

bound 

Serious Sexual Acts—High ..................................................................................................................... 4,300 4,600 3,800 

‘‘Willing’’ Sex With Staff—High ................................................................................................................ 2,800 2,700 2,500 

Serious Sexual Acts—Low ...................................................................................................................... 2,000 2,700 1,800 

Other Sexual Acts—High ......................................................................................................................... 600 600 500 

Other Sexual Acts—Low ......................................................................................................................... 900 1,000 900 

Total .................................................................................................................................................. 10,600 11,600 9,500 

TABLE 5—BASELINE PREVALENCE OF SEXUAL ABUSE, SUMMARY CHART

Principal Adjusted Lower 

bound 

Prisons ..................................................................................................................................................... 89,700 90,100 70,500 

Jails .......................................................................................................................................................... 109,200 101,300 69,200 

Juveniles .................................................................................................................................................. 10,600 11,600 9,500 

Total .................................................................................................................................................. 209,400 203,000 149,200 

Estimating the Monetized Unit Benefit 

of Avoiding a Prison Rape or Sexual 

Abuse 

As a number of commenters observed, 

placing a monetary value on avoided 

sexual abuse confronts considerable 

methodological difficulties. One 

commenter remarked that ‘‘estimating 

the monetary ‘costs’ of crime is at best 

a fraught and imperfect effort, 

particularly when dealing with crimes 

such as sexual abuse whose principal 

cost is due to the pain, suffering, and 

quality of life diminution of the 

victims.’’ Executive Order 12866 

nevertheless instructs agencies to 

measure quantifiable benefits ‘‘to the 

fullest extent that [they] can be usefully 

estimated.’’ Executive Order 12866, Sec. 

1(a); see also Executive Order 13563, 

Sec. 1(c) (‘‘[E]ach agency is directed to 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 37191 

45See, e.g., National Institute of Justice Research 

Report, Victim Costs and Consequences: A New 

Look (NCJ 155282) (Jan. 1996), available at http:// 

www.ncjrs.gov/pdffiles/victcost.pdf; Ted R. Miller et 

al., Minn. Dep’t of Health, Costs of Sexual Violence 

in Minnesota (July 2007), available at http:// 

www.pire.org/documents/mn_brochure.pdf; Mark 

A. Cohen et al., Willingness-to-Pay for Crime 

Control Programs, 42 Criminology 89 (2004). 

46These costs translate to benefits for the purpose 

of the RIA—i.e., the benefits that would accrue from 

avoiding such incidents. 

47The RIA calculates these figures six different 

ways, using the three different prevalence 

estimation approaches (principal, adjusted, and 

lower bound), and the two different approaches to 

monetizing avoidance benefit values (WTP and 

WTA). Expressed as a range that captures all six 

approaches, the RIA determines that the maximum 

monetizable cost to society of rape and sexual abuse 

in prisons, jails, and juvenile facilities (and 

correspondingly, the total maximum benefit of 

eliminating it from those facilities) ranges from 

$26.9 billion to $51.9 billion. These figures exclude 

the cost to society of rape and sexual abuse in 

community confinement facilities and lockups 

because of the unavailability of data regarding the 

prevalence of sexual abuse in those facilities. 

use the best available techniques to 

quantify anticipated present and future 

benefits and costs as accurately as 

possible.’’). Some uncertainty in such 

estimates is not itself reason to abandon 

the effort. 

The RIA estimates the monetary value 

of certain benefits of avoiding prison 

sexual abuse using values derived from 

general literature assessing the cost of 

rape,45 with adjustments made to 

account for the unique characteristics of 

sexual abuse in the prison setting. Using 

an approach known as the willingness 

to pay (WTP) model, the RIA first 

monetizes the benefit of avoiding sexual 

abuse in a confinement facility by 

consulting studies that have estimated 

how much society is willing to pay for 

the reduction of various crimes, 

including rape, and then assessing 

whether the conclusions of those 

studies would be different in the 

specific context of sexual abuse in 

confinement facilities. This approach 

yields a reliable estimate of the costs of 

the most serious categories of sexual 

abuse assessed in the RIA,46 but because 

of limitations in the way the underlying 

studies were conducted, it cannot be 

effectively used to monetize the cost of 

the less serious categories of sexual 

abuse. 

In part because of these limitations, 

the RIA also uses an alternative 

approach known as the victim 

compensation or willingness-to-accept 

(WTA) model, which estimates how 

much the average victim of prison rape 

would be willing to accept as 

compensation for injuries suffered in 

the assault, including intangible injuries 

such as pain, suffering, and diminished 

quality of life. To do this, the RIA 

assesses certain monetizable costs of 

prison rape to the victim, such as the 

costs of medical and mental health care, 

and adds an element, drawn primarily 

from jury verdicts, to cover the 

intangible costs associated with pain 

and suffering. All of these costs were 

identified by reviewing the literature on 

the cost of rape generally, and then 

extrapolating the analogous costs in 

confinement facilities. Although the RIA 

calculates avoidance benefits on a per 

victim basis, it accounts for the fact that 

many victims of prison rape are 

victimized multiple times. 

Thus, the RIA essentially uses a 

hybrid approach that combines the WTP 

and WTA elements: For the one 

category of sexual conduct as to which 

an estimate using the WTP was possible 

(the most serious category for adult 

victims), it identifies a range of 

avoidance benefit values, with the WTP 

estimate at one bound and the WTA 

estimate on the other; for the remaining 

categories of conduct, as to which a 

WTP estimate was not possible, the RIA 

uses only the WTA estimate. Using this 

approach, the RIA derives monetized 

values for avoiding each of the six types 

of sexual contact (five for juveniles), 

depending upon whether the victim is 

a juvenile or an adult. These values are 

depicted in Tables 6 and 7. The RIA 

estimates the monetizable benefit to an 

adult of avoiding the highest category of 

prison sexual misconduct 

(nonconsensual sexual acts involving 

injury or force, or no injury or force but 

high incidence) as worth about $310,000 

per victim using the willingness to pay 

model and $480,000 per victim under 

the victim compensation model. For 

juveniles, who typically experience 

significantly greater injury from sexual 

abuse than adults, the corresponding 

category is assessed as worth $675,000 

per victim under the victim 

compensation model. (A willingness to 

pay estimate was not calculated for 

juveniles.) These estimates are higher 

than in the IRIA because of changes the 

Department made, in response to public 

comments, to the definitions of the 

different types of sexual abuse and to 

the methodologies for monetizing the 

benefit of avoiding each type. 

TABLE 6—AVOIDANCE BENEFIT VALUES FOR SEXUAL ABUSE, ADULT

PRISON AND JAIL FACILITIES, BY VICTIMIZATION TYPE AND VALUATION

METHOD

WTP 

Victim 

compensation 

(WTA) 

Nonconsensual Sexual Acts—High ...... $310,000 $480,000 

Nonconsensual Sexual Acts—Low ....... ................ 160,000 

‘‘Willing’’ Sex With 

Staff ....................... ................ 160,000 

Abusive Sexual Contacts—High ............ ................ 5,200 

Abusive Sexual Contacts—Low ............ ................ 600 

Staff Sexual Misconduct Touching 

Only ....................... ................ 600 

TABLE 7—UNIT AVOIDANCE VALUES

FOR SEXUAL ABUSE, JUVENILE FACILITIES, BY VICTIMIZATION TYPE

Victim 

compensation 

(WTA) 

Serious Sexual Acts—High .. $675,000 

‘‘Willing’’ Sex With Staff— 

High ................................... 672,000 

Serious Sexual Acts—Low ... 225,000 

Other Sexual Acts—High ..... 7,300 

Other Sexual Acts—Low ...... 900 

The RIA next calculates the maximum 

monetizable benefit to society of totally 

eliminating each of the types of 

inappropriate sexual contact, by 

multiplying the baseline prevalence of 

such events by the unit benefit of an 

avoided victim. As depicted in Table 8, 

under the Department’s principal 

approach for estimating prevalence, and 

using the victim compensation model, 

the RIA determines that the maximum 

monetizable cost to society of prison 

rape and sexual abuse (and 

correspondingly, the total maximum 

benefit of eliminating it) is about $46.6 

billion annually for prisons and jails, 

and an additional $5.2 billion annually 

for juvenile facilities.47

It bears cautioning, however, that the 

Department has not estimated in the 

RIA the expected monetized benefit of 

the standards themselves but has 

instead opted for a break-even approach 

that estimates the number of victims 

that would need to be avoided (taking 

into account the fact that many victims 

are victimized multiple times) for the 

benefits of the standards to break even 

with the costs of full nationwide 

compliance. Thus, the RIA does not 

estimate that the standards will actually 

yield an annual monetized benefit of 

$52 billion, except in the hypothetical 

scenario where the standards would, by 

themselves, lead to the complete 

elimination of prison rape and sexual 

abuse. The actual monetized benefit of 

the standards will certainly be less than 

this hypothetical figure and will depend 

on a number of factors, including the 

extent to which facilities comply with 


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48For detailed sources, see RIA, at p. 70, n. 108. 

the standards, and the extent to which the standards are effective in achieving 

their goals. 

TABLE 8—TOTAL COST OF SEXUAL ABUSE, ACROSS PRISONS, JAILS, AND JUVENILE FACILITIES, VICTIM COMPENSATION

METHOD, BY PREVALENCE APPROACH

[In millions of dollars] 

Principal Adjusted Lower 

bound 

Prisons ..................................................................................................................................................... $20,637 $20,814 $16,051 

Jails .......................................................................................................................................................... 26,011 24,493 15,083 

Juveniles .................................................................................................................................................. 5,239 5,532 4,654 

Total .................................................................................................................................................. 51,887 50,839 35,788 

Non-Monetizable Benefits 

Executive Order 13563 states that, 

‘‘[w]here appropriate and permitted by 

law, each agency may consider (and 

discuss qualitatively) values that are 

difficult or impossible to quantify, 

including equity, human dignity, 

fairness, and distributive impacts.’’ 

Executive Order 13563, Sec. 1(c). Under 

Executive Order 12866, costs and 

benefits must ‘‘include both quantifiable 

measures (to the fullest extent that these 

can be usefully estimated) and 

qualitative measures of costs and 

benefits that are difficult to quantify but 

nevertheless essential to consider.’’ 

Executive Order 12866, Sec. 1(a). 

Benefits of regulatory action include 

‘‘the enhancement of health and safety, 

the protection of the natural 

environment, and the elimination or 

reduction of discrimination or bias.’’ Id. 

In concluding its assessment of the 

benefits of prison rape avoidance, the 

RIA identifies a number of benefits that 

cannot be monetized. These are some of 

the most important and consequential 

benefits of the final rule, and the 

discussion in the RIA describes both the 

nature and scale of those benefits so that 

they can be appropriately factored into 

the analysis. For example, the RIA 

examines benefits for rape victims, for 

inmates who are not rape victims, for 

families of victims, for prison 

administrators and staff, and for society 

at large. These benefits include those 

relating to public health and public 

safety, as well as economic benefits and 

existence value benefits. The RIA also 

describes benefits to inmates in lockups 

and community confinement facilities, 

as to which information was lacking 

relating to the baseline prevalence of 

sexual abuse. 

Additionally, Congress predicated 

PREA on its conclusion—consistent 

with decisions by the Supreme Court— 

that ‘‘deliberate indifference to the 

substantial risk of sexual assault violates 

prisoners’ rights under the Cruel and 

Unusual Punishment Clause of the 

Eighth Amendment.’’ 42 U.S.C. 

15601(13) (citing Farmer v. Brennan, 

511 U.S. 825 (1994)). The individual 

rights enshrined in the Constitution 

express our nation’s deepest 

commitments to human dignity and 

equality, and American citizens place 

great value on knowing that their 

government aspires to protect those 

rights to their fullest extent. In thinking 

about the qualitative benefits that will 

accrue from the implementation of the 

final rule, these values carry great 

weight. 

Cost Analysis 

The RIA presents a detailed analysis 

of the costs of full nationwide 

compliance with the standards in the 

final rule. The RIA concludes that full 

nationwide compliance with the 

standards would cost the correctional 

community approximately $6.9 billion 

over the period 2012–2026, or $468.5 

million per year when annualized at a 

7 percent discount rate. The details of 

the RIA’s cost estimates are summarized 

in Tables 9–14: 

TABLE 9: NUMBER OF FACILITIES ASSUMED TO ADOPT AND IMPLEMENT

THE STANDARDS, FOR COST ANALYSIS PURPOSES 48

Type Number of 

facilities 

Prisons (Federal) .................. 117 

Prisons (State) ...................... 1,190 

Jails ....................................... 2,860 

Lockups (Police) ................... 3,753 

Lockups (Court) .................... 2,330 

Community Confinement ...... 529 

Juvenile ................................. 2,458 


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TABLE 11—ESTIMATED COST OF FULL STATE AND LOCAL COMPLIANCE WITH THE PREA STANDARDS, IN THE

AGGREGATE, BY YEAR AND BY FACILITY TYPE

[In Millions of dollars] 

Year Prisons Jails Lockups 

Community 

confinement 

facilities 

Juveniles Total all 

facilities 

2012 ................................................................................. $87.2 $254.6 $180.1 $27.8 $196.0 $745.8 

2013 ................................................................................. 55.2 161.0 122.0 16.8 93.3 448.5 

2014 ................................................................................. 58.3 157.9 106.6 14.2 92.1 429.2 

2015 ................................................................................. 59.2 154.6 93.7 12.1 94.9 414.5 

2016 ................................................................................. 61.3 153.5 87.3 11.1 109.3 422.6 

2017 ................................................................................. 61.5 152.4 83.6 10.6 151.9 460.1 

2018 ................................................................................. 62.9 151.3 80.1 10.1 147.3 451.8 

2019 ................................................................................. 63.1 150.7 77.5 9.8 144.7 445.8 

2020 ................................................................................. 64.3 150.1 75.0 9.4 142.2 441.0 

2021 ................................................................................. 65.7 149.9 73.2 9.2 140.4 438.3 

2022 ................................................................................. 65.9 150.1 72.0 9.0 139.2 436.2 

2023 ................................................................................. 67.1 150.1 70.8 8.9 138.0 434.9 

2024 ................................................................................. 67.1 149.9 69.6 8.7 136.7 432.0 

2025 ................................................................................. 67.9 149.5 68.4 8.5 135.5 429.8 

2026 ................................................................................. 67.6 148.8 67.2 8.4 134.3 426.3 

15-yr Total ................................................................. 974.2 2,384.6 1,327.3 174.8 1,995.8 6,856.7 

Present Value .................................................................. 591.2 1,488.4 869.8 116.6 1,201.4 4,267.4 

Annual .............................................................................. 64.9 163.4 95.5 12.8 131.9 468.5 

TABLE 12—ESTIMATED AVERAGE ANNUALIZED COMPLIANCE COST PER UNIT FACILITY, BY TYPE

Type Cost per unit 

facility 

Prisons ................................................................................................................................................................................................. $54,546 

Jails ...................................................................................................................................................................................................... 49,959 

Lockups (per Agency) .......................................................................................................................................................................... 15,700 

Community Confinement Facilities ...................................................................................................................................................... 24,190 

Juvenile Facilities ................................................................................................................................................................................. 53,666 


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Again, these tables reflect the 

estimated costs of full nationwide 

compliance, which will occur only if all 

State, local, and private confinement 

facilities adopt the standards contained 

in the final rule and then immediately 

and fully implement them. In this sense, 

the cost impact of the final rule, as 

represented here, is essentially 

theoretical—in effect treating the 

standards as if they were binding 

regulations on State and local 

confinement facilities. 

The true cost impact (which the RIA 

does not purport to assess), like the true 

impact of the final rule on preventing, 

detecting, and minimizing the effects of 

sexual abuse, will depend on the 

specific choices and expenditures that 

State, local, and private correctional 

agencies make with regard to adoption 

and implementation of the standards. 

In assessing the nationwide 

compliance costs for many of the 

standards, the RIA relies on work 

performed by the consulting firm Booz 

Allen Hamilton, with which the 

Department contracted to undertake cost 

analyses, first of the standards 

recommended by the NPREC, then of 

the standards proposed in the NPRM, 

and finally of the standards contained in 

the final rule. Booz Allen’s initial cost 

analysis was based on a field study in 

which it surveyed 49 agencies of various 

types from across the country about the 

costs they would incur to comply with 

various aspects of the NPREC’s 

recommended standards. Each of the 

final standards is examined in detail in 

the RIA to determine the full 

implementation costs of that standard. 

Where possible, the RIA distinguishes 

among costs applicable to prisons, jails, 

juvenile facilities, community 

confinement facilities, and lockups. 

Many of the standards are assessed as 

likely having minimal to no associated 


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compliance costs, including §§ 115.15, 

115.215, and 115.315, which, among 

other things, impose a general ban on 

cross-gender pat-down searches of 

female inmates in adult prisons and jails 

and in community confinement 

facilities, and of male and female 

residents in juvenile facilities; and 

§§ 115.83, 115.283, and 115.383, which 

requires agencies to provide medical 

and mental health care assessments and 

treatment to victims and to certain 

abusers. The conclusion of zero cost for 

these standards is predicated on a high 

level of baseline compliance and on the 

expectation that agencies will adopt the 

least costly means of complying with 

requirements when given flexibility to 

determine how to apply those 

requirements to the specific 

characteristics of their agencies. 

On an annualized basis, the most 

expensive standards, by the RIA’s 

estimate, are: §§ 115.13, 115.113, 

115.213, and 115.313, which relate to 

staffing, supervision, and video 

monitoring and would impose annual 

compliance costs of $120 million per 

year if fully adopted; §§ 115.11, 115.111, 

115.211, and 115.311, which establish a 

zero-tolerance policy and require 

agencies to designate an agency-wide 

PREA coordinator and facilities to 

designate a PREA compliance manager, 

and would cost $110 million annually if 

fully adopted; the training standards 

(§§ 115.31–115.35, 115.131–115.132, 

115.134, 115.231–115.235, and 115.331– 

115.335), which the RIA estimates 

would cost $82 million per year if fully 

adopted; and the screening standards 

(§§ 115.41–115.42, 115.141, 115.241– 

115.242, and 115.341–115.342), which 

would have an estimated $61 million in 

annual costs if there were full 

nationwide compliance. Together, full 

nationwide compliance with these four 

sets of standards would cost $372 

million annually, or about 80 percent of 

the total for all of the standards. 

Booz Allen’s analyses assessed only 

the costs that State, local, and private 

agencies would incur if they adopted 

and implemented the standards in their 

own facilities. Thus, Booz Allen’s 

analyses do not include the compliance 

costs of those Federal facilities to which 

the final rule applies. The RIA 

supplements these analyses with the 

Department’s own internal assessments 

of the costs that its two relevant 

components—the Bureau of Prisons and 

the United States Marshals Service— 

would incur in implementing the 

standards in the facilities they operate 

or oversee. As shown in Table 15, these 

two components expect to spend 

approximately $1.75 million per year 

over fifteen years to comply with the 

standards. 

TABLE 15—ESTIMATED COST OF COMPLIANCE WITH PREA STANDARDS FOR DEPARTMENT OF JUSTICE ENTITIES, BY

STANDARD, ANNUALIZED OVER 2012–2026 AT 7% DISCOUNT RATE

Standard BOP USMS 

115.11 Zero Tolerance .................................................................................................................................................. $797,000 $445,000 

115.21 Evidence Protocol ............................................................................................................................................. 37,000 0 

115.31–.35 Training ...................................................................................................................................................... 20,000 103,000 

115.41 Screening .......................................................................................................................................................... 500 0 

115.53 Inmate Reporting ............................................................................................................................................... 9,500 0 

115.93, .402–.405 Audits .............................................................................................................................................. 312,000 0 

Total .......................................................................................................................................................................... 1,176,000 548,000 

Comparison to Alternatives 

Executive Order 13563 calls upon 

agencies, ‘‘in choosing among 

alternative regulatory approaches,’’ to 

select ‘‘those approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety, and other advantages; 

distributive impacts; and equity).’’ 

Executive Order 13563, sec. 1(b)(3). The 

Attorney General has concluded that, 

among the available alternatives, the 

standards in the final rule define 

measures and programs that, when 

implemented, will prove effective in 

accomplishing the goals of the statute 

while also promoting flexible decisions 

by the affected agencies on how to 

achieve compliance in a manner that 

works best given their unique 

circumstances and environments. 

Standards that could potentially 

maximize net benefits in the abstract 

would risk actually being less effective, 

either due to the failure of States and 

localities to adopt them at all, or due to 

the damaging consequences that the full 

costs of compliance could have on 

funding available for other critical 

correctional programs. 

The RIA examines the cost 

implications of the two most obvious 

alternatives to the final standards—the 

NPREC’s recommended standards, 

which are more stringent than the final 

rule in many respects, and the standards 

proposed in the NPRM, which by and 

large are less stringent—and finds that 

the standards in the final rule are the 

most effective and cost-effective among 

the three alternatives. As shown in 

Table 16, the final standards are the 

least expensive of the three alternatives. 

TABLE 16—COMPARISON OF PROJECTED NATIONWIDE FULL COMPLIANCE COSTS, FINAL RULE VS. NPRM VS. NPREC 

RECOMMENDATIONS, IN THOUSANDS OF ANNUALIZED DOLLARS

NPREC NPRM Final rule 

Prisons ..................................................................................................................................................... $1,018,301 $53,318 $64,910 

Jails .......................................................................................................................................................... 2,278,566 332,106 163,416 

Lockups .................................................................................................................................................... 2,246,775 72,914 95,504 

Community Confinement Facilities .......................................................................................................... 235,884 2,147 12,797 

Juvenile Facilities ..................................................................................................................................... 188,215 50,002 131,912 

Total .................................................................................................................................................. 5,967,741 510,487 468,539 


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49A small number of States operate unified 

correctional systems, in which correctional 

facilities typically administered by counties or 

cities—such as jails—are operated instead by State 

agencies. See Barbara Krauth, A Review of the Jail 

Function Within State Unified Corrections Systems 

(Sept. 1997), available at http://static.nicic.gov/ 

Library/014024.pdf. In such States, an assessment of 

whether the State is in full compliance would 

encompass those facilities as well. 

50The statute provides that an organization 

responsible for the accreditation of Federal, State, 

local, or private prisons, jails, or other penal 

facilities may not receive any new Federal grants 

unless it adopts accreditation standards consistent 

with the standards in the final rule. 42 U.S.C. 

15608. 

Executive Order 13132—Federalism 

In drafting the standards, the 

Department was mindful of its 

obligation to meet the objectives of 

PREA while also minimizing conflicts 

between State law and Federal interests. 

In accordance with Executive Order 

13132, it is determined that this final 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a Federalism Assessment. 

Notwithstanding the determination 

that the formal consultation process 

described in Executive Order 13132 is 

not required for this final rule, the 

Department’s PREA Working Group 

consulted with representatives of State 

and local prisons and jails, juvenile 

facilities, community confinement 

programs, and lockups—among other 

individuals and groups—during the 

listening sessions the Working Group 

conducted in 2010. The Department also 

solicited and received input from 

numerous public entities at several 

levels of government in both the 

ANPRM and the NPRM stages of this 

rulemaking. 

Insofar as it sets forth national 

standards that apply to confinement 

facilities operated by State and local 

governments, this final rule has the 

potential to affect the States, the 

relationship between the national 

government and the States, and the 

distribution of power and 

responsibilities among the various 

levels of government. However, with 

respect to the thousands of State and 

local agencies, and private companies, 

that own and operate confinement 

facilities across the country, PREA 

provides the Department with no direct 

authority to mandate binding standards 

for their facilities. Instead, PREA 

depends upon State and local agencies 

to make voluntary decisions to adopt 

and implement them. 

For State agencies that receive grant 

funding from the Department to support 

their correctional operations, Congress 

has provided that the Department shall 

withhold 5 percent of prison-related 

grant funding to any State that fails to 

certify that it ‘‘has adopted, and is in 

full compliance with, the national 

standards,’’ or that fails to alternatively 

provide ‘‘an assurance that not less than 

5 percent’’ of the relevant grant funding 

‘‘shall be used only for the purpose of 

enabling the State to adopt, and achieve 

full compliance with, those national 

standards, so as to ensure that a 

certification [of compliance] may be 

submitted in future years.’’ 42 U.S.C. 

15607(c)(2). For county, municipal, and 

privately run agencies that operate 

confinement facilities, PREA lacks any 

corresponding sanctions for facilities 

that do not adopt or comply with the 

standards.49

Despite the absence of statutory 

authority to promulgate standards that 

would bind State, local, and private 

agencies, other consequences may flow 

from the issuance of national standards, 

which could provide incentives for 

voluntary compliance. For example, 

these standards may influence the 

standard of care that courts will apply 

in considering legal and constitutional 

claims brought against corrections 

agencies and their employees arising out 

of allegations of sexual abuse. Moreover, 

agencies seeking to be accredited by the 

major accreditation organizations may 

need to comply with the standards as a 

condition of accreditation.50

Nevertheless, pivotal to the statutory 

scheme is a voluntary decision by State, 

county, local, and private correctional 

agencies to adopt the standards and to 

comply with them (or alternatively, for 

States, to commit to expending 5 

percent of Department of Justice prisonrelated grant funds to come into 

compliance in future years). In deciding 

whether to adopt these standards, 

agencies will of necessity conduct their 

own analyses of whether they can 

commit to adopting the standards in 

light of other demands on their 

correctional budgets. 

The Department cannot assume that 

all agencies will choose to adopt and 

implement these standards. An agency 

assessing whether to do so may choose 

not to based upon an assessment that, 

with regard to that specific agency, the 

costs outweigh the benefits. Such a 

course of action would be regrettable. 

The Department certainly hopes that it 

will not be common, and that agencies 

will instead consider the benefits of 

prison rape prevention not only to the 

agencies themselves but also to the 

inmates in their charge and to the 

communities to which the agencies are 

accountable. 

Nevertheless, the Department cannot 

ignore the straitened fiscal realities 

confronting many correctional agencies. 

Congress was acutely aware of these 

circumstances in passing PREA, which 

authorized the Department to make 

grants to States ‘‘to assist those States in 

ensuring that budgetary circumstances 

(such as reduced State and local 

spending on prisons) do not 

compromise efforts to protect inmates 

(particularly from prison rape).’’ 42 

U.S.C. 15605(a). Congress did not intend 

for the Department to impose unrealistic 

or unachievable standards but rather 

expected it to partner with those 

agencies in adopting and implementing 

policies that will yield successes at 

combating sexual abuse in confinement 

facilities, while enabling State and local 

correctional authorities to continue 

other correctional programs vital to 

protecting inmates, staff, and the 

community, and ensuring that inmates’ 

eventual reintegration into the 

community is successful. 

The statute does not mandate any 

specific approach in developing the 

standards, but instead relies upon the 

Attorney General to exercise his 

independent judgment. The Attorney 

General has concluded that the 

standards in the final rule define 

measures and programs that, when 

implemented, will prove effective in 

accomplishing the goals of the statute 

while also promoting voluntary 

compliance decisions by State and local 

agencies. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Unfunded Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) requires Federal 

agencies, unless otherwise prohibited by 

law, to assess the effects of Federal 

regulatory actions on State, local, and 

tribal governments, and the private 

sector (other than to the extent that such 

regulations incorporate requirements 

specifically set forth in law). 

The Department has assessed the 

probable impact of the final PREA 

standards and, as is more fully 

described in the RIA, believes that these 

standards, if fully adopted and 

implemented by all State, local, and 

private operators of confinement 

facilities, would theoretically result in 

an aggregate expenditure by such 

operators of approximately $467 million 

annually (i.e., the total of $468.5 million 

annually set forth above, minus $1.75 

million annually attributable to 

Department of Justice entities), when 

annualized over fifteen years at a 7 

percent discount rate. 


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However, the Department concludes 

that the requirements of the UMRA do 

not apply to the PREA standards 

because UMRA excludes from its 

definition of ‘‘Federal 

intergovernmental mandate’’ those 

regulations imposing an enforceable 

duty on other levels of government 

which are ‘‘a condition of Federal 

assistance.’’ 2 U.S.C. 658(5)(A)(i)(I). 

PREA provides that any amount that a 

State would otherwise receive for prison 

purposes from the Department in a 

given fiscal year shall be reduced by 5 

percent unless the chief executive of the 

State certifies either that the State is in 

‘‘full compliance’’ with the standards or 

that not less than 5 percent of such 

amount shall be used to enable the State 

to achieve full compliance with the 

standards. Accordingly, compliance 

with these PREA standards is a 

condition of Federal assistance for State 

governments. 

While the Department does not 

believe that a formal statement pursuant 

to the UMRA is required, it has, for the 

convenience of the public, summarized 

as follows various matters that are 

discussed at greater length elsewhere in 

this rulemaking and that would have 

been included in a UMRA statement 

should that have been required: 

• These national standards are being 

issued pursuant to the requirements of 

the Prison Rape Elimination Act of 

2003, 42 U.S.C. 15601 et seq.; 

• A qualitative and quantitative 

assessment of the anticipated costs and 

benefits of these national standards 

appears above in the section on 

Executive Order 12866, as elaborated in 

the RIA; 

• The Department does not believe 

that these national standards will have 

an effect on national productivity, 

economic growth, full employment, 

creation of productive jobs, or 

international competitiveness of United 

States goods and services, except to the 

extent described in the RIA, which 

postulates inter alia that some agencies 

may add staff in order to comply with 

some of the standards; 

• Notwithstanding how limited the 

Department’s obligations may be under 

the formal requirements of UMRA, the 

Department has engaged in a variety of 

contacts and consultations with State 

and local governments, including 

during the listening sessions the 

Working Group conducted in 2010. In 

addition, the Department solicited and 

received input from public entities in 

both its ANPRM and its NPRM. The 

Department received numerous 

comments on its NPRM from State and 

local entities, the vast majority of which 

addressed the potential costs associated 

with certain of the proposed standards. 

Standards of particular cost concern 

included the training standards, the 

auditing standard, and the standards 

regarding staff supervision and video 

monitoring. The Department has altered 

various standards in ways that it 

believes will appropriately mitigate the 

cost concerns identified in the 

comments. State and local entities also 

expressed concern that the standards 

were overly burdensome on small 

correctional systems and facilities, 

especially in rural areas. The 

Department’s final standards include 

various revisions to the proposed rule to 

address this issue. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This final rule is a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. It 

may result in an annual effect on the 

economy of $100,000,000 or more, 

although it will not result in a major 

increase in costs or prices, or significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or on the ability of United 

States-based enterprises to compete 

with foreign-based enterprises in 

domestic and export markets. 

Regulatory Flexibility Act 

The Department of Justice drafted this 

final rule so as to minimize its impact 

on small entities, in accordance with the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612, while meeting PREA’s intended 

objectives. The Department has 

conducted an extensive consideration of 

the impact of this rule on small 

governmental entities, and available 

alternatives, as elaborated in the RIA 

and in the above discussions of 

Federalism and UMRA. 

The Department provided notice of 

the proposed standards to potentially 

affected small governments by 

publishing the ANPRM and NPRM, by 

conducting listening sessions, and by 

other activities; enabled officials of 

affected small governments to provide 

meaningful and timely input through 

the methods listed above; and worked 

(and will continue to work) to inform, 

educate, and advise small governments 

on compliance with the requirements. 

As discussed in the RIA summarized 

above, the Department has identified 

and considered a reasonable number of 

regulatory alternatives and from those 

alternatives has attempted to select the 

least costly, most cost-effective, and 

least burdensome alternative that 

achieves the objectives of PREA. 

Paperwork Reduction Act 

This final rule contains a new 

‘‘collection of information’’ covered by 

the Paperwork Reduction Act of 1995 

(PRA), as amended, 44 U.S.C. 3501– 

3521. Under the PRA, a covered agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid control 

number assigned by OMB. 44 U.S.C. 

3507(a)(3), 3512. 

The information collections in this 

final rule require covered facilities to 

retain certain specified information 

relating to sexual abuse prevention 

planning, responsive planning, 

education and training, and 

investigations, as well as to collect and 

retain certain specified information 

relating to allegations of sexual abuse 

within the facility. 

At the time of the proposed rule, the 

Department submitted an information 

collection request to OMB for review 

and approval in accordance with the 

review procedures of the PRA. 

As part of the comment process on the 

NPRM, the Department received a few 

comments pertaining to the PRA, mostly 

raising questions whether certain 

recordkeeping requirements of the 

PREA standards duplicated in part the 

recordkeeping requirements imposed by 

other Department regulations. These 

comments and the Department’s 

responses thereto are discussed above in 

the SUPPLEMENTARY INFORMATION portion 

of this preamble and in the RIA. 

Changes to the PREA standards made 

in response to comments on the NPRM 

and due to additional analysis resulted 

in the total PRA burden hours being 

greater than those estimated in the 

Department’s initial information 

collection request. None of the 

comments received on the NPRM 

pertaining to the PRA aspects of the rule 

necessitated any changes in the PRA 

burden hours estimated by the 

Department. However, the Department 

has submitted to OMB a revised 

information collection request with the 

new burden estimates for review and 

approval. 

List of Subjects in 28 CFR Part 115 

Community confinement facilities, 

Crime, Jails, Juvenile facilities, Lockups, 

Prisons, Prisoners. 

■ Accordingly, part 115 of Title 28 of 

the Code of Federal Regulations is 

added as follows: 

PART 115—PRISON RAPE 

ELIMINATION ACT NATIONAL 

STANDARDS 

Sec. 


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115.5 General definitions. 

115.6 Definitions related to sexual abuse. 

Subpart A—Standards for Adult Prisons 

and Jails 

Prevention Planning 

115.11 Zero tolerance of sexual abuse and 

sexual harassment; PREA coordinator. 

115.12 Contracting with other entities for 

the confinement of inmates. 

115.13 Supervision and monitoring. 

115.14 Youthful inmates. 

115.15 Limits to cross-gender viewing and 

searches. 

115.16 Inmates with disabilities and 

inmates who are limited English 

proficient. 

115.17 Hiring and promotion decisions. 

115.18 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.21 Evidence protocol and forensic 

medical examinations. 

115.22 Policies to ensure referrals of 

allegations for investigations. 

Training and Education 

115.31 Employee training. 

115.32 Volunteer and contractor training. 

115.33 Inmate education. 

115.34 Specialized training: Investigations. 

115.35 Specialized training: Medical and 

mental health care. 

Screening for Risk of Sexual Victimization 

and Abusiveness 

115.41 Screening for risk of victimization 

and abusiveness. 

115.42 Use of screening information. 

115.43 Protective custody. 

Reporting 

115.51 Inmate reporting. 

115.52 Exhaustion of administrative 

remedies. 

115.53 Inmate access to outside 

confidential support services. 

115.54 Third-party reporting. 

Official Response Following an Inmate 

Report 

115.61 Staff and agency reporting duties. 

115.62 Agency protection duties. 

115.63 Reporting to other confinement 

facilities. 

115.64 Staff first responder duties. 

115.65 Coordinated response. 

115.66 Preservation of ability to protect 

inmates from contact with abusers. 

115.67 Agency protection against 

retaliation. 

115.68 Post-allegation protective custody. 

Investigations 

115.71 Criminal and administrative agency 

investigations. 

115.72 Evidentiary standard for 

administrative investigations. 

115.73 Reporting to inmates. 

Discipline 

115.76 Disciplinary sanctions for staff. 

115.77 Corrective action for contractors and 

volunteers. 

115.78 Disciplinary sanctions for inmates. 

Medical and Mental Care 

115.81 Medical and mental health 

screenings; history of sexual abuse. 

115.82 Access to emergency medical and 

mental health services. 

115.83 Ongoing medical and mental health 

care for sexual abuse victims and 

abusers. 

Data Collection and Review 

115.86 Sexual abuse incident reviews. 

115.87 Data collection. 

115.88 Data review for corrective action. 

115.89 Data storage, publication, and 

destruction. 

Audits 

115.93 Audits of standards. 

Subpart B—Standards for Lockups 

Prevention Planning 

115.111 Zero tolerance of sexual abuse and 

sexual harassment; PREA coordinator. 

115.112 Contracting with other entities for 

the confinement of detainees. 

115.113 Supervision and monitoring. 

115.114 Juveniles and youthful detainees. 

115.115 Limits to cross-gender viewing and 

searches. 

115.116 Detainees with disabilities and 

detainees who are limited English 

proficient. 

115.117 Hiring and promotion decisions. 

115.118 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.121 Evidence protocol and forensic 

medical examinations. 

115.122 Policies to ensure referrals of 

allegations for investigations. 

Training and Education 

115.131 Employee and volunteer training. 

115.132 Detainee, contractor, and inmate 

worker notification of the agency’s zerotolerance policy. 

115.133 [Reserved] 

115.134 Specialized training: 

Investigations. 

115.135 [Reserved] 

Screening for Risk of Sexual Victimization 

and Abusiveness 

115.141 Screening for risk of victimization 

and abusiveness. 

115.142 [Reserved] 

115.143 [Reserved] 

Reporting 

115.151 Detainee reporting. 

115.152 [Reserved] 

115.153 [Reserved] 

115.154 Third-party reporting. 

Official Response Following a Detainee 

Report 

115.161 Staff and agency reporting duties. 

115.162 Agency protection duties. 

115.163 Reporting to other confinement 

facilities. 

115.164 Staff first responder duties. 

115.165 Coordinated response. 

115.166 Preservation of ability to protect 

detainees from contact with abusers. 

115.167 Agency protection against 

retaliation. 

115.168 [Reserved] 

Investigations 

115.171 Criminal and administrative 

agency investigations. 

115.172 Evidentiary standard for 

administrative investigations. 

115.173 [Reserved] 

Discipline 

115.176 Disciplinary sanctions for staff. 

115.177 Corrective action for contractors 

and volunteers. 

115.178 Referrals for prosecution for 

detainee-on-detainee sexual abuse. 

Medical and Mental Care 

115.181 [Reserved] 

115.182 Access to emergency medical 

services. 

115.183 [Reserved] 

Data Collection and Review 

115.186 Sexual abuse incident reviews. 

115.187 Data collection. 

115.188 Data review for corrective action. 

115.189 Data storage, publication, and 

destruction. 

Audits 

115.193 Audits of standards. 

Subpart C—Standards for Community 

Confinement Facilities 

Prevention Planning 

115.211 Zero tolerance of sexual abuse and 

sexual harassment; PREA coordinator. 

115.212 Contracting with other entities for 

the confinement of residents. 

115.213 Supervision and monitoring. 

115.214 [Reserved] 

115.215 Limits to cross-gender viewing and 

searches. 

115.216 Residents with disabilities and 

residents who are limited English 

proficient. 

115.217 Hiring and promotion decisions. 

115.218 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.221 Evidence protocol and forensic 

medical examinations. 

115.222 Policies to ensure referrals of 

allegations for investigations. 

Training and Education 

115.231 Employee training. 

115.232 Volunteer and contractor training. 

115.233 Resident education. 

115.234 Specialized training: 

Investigations. 

115.235 Specialized training: Medical and 

mental health care. 

Screening for Risk of Sexual Victimization 

and Abusiveness 

115.241 Screening for risk of victimization 

and abusiveness. 

115.242 Use of screening information. 

115.243 [Reserved] 

Reporting 

115.251 Resident reporting. 

115.252 Exhaustion of administrative 

remedies. 


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115.253 Resident access to outside 

confidential support services. 

115.254 Third-party reporting. 

Official Response Following a Resident 

Report 

115.261 Staff and agency reporting duties. 

115.262 Agency protection duties. 

115.263 Reporting to other confinement 

facilities. 

115.264 Staff first responder duties. 

115.265 Coordinated response. 

115.266 Preservation of ability to protect 

residents from contact with abusers. 

115.267 Agency protection against 

retaliation. 

115.268 [Reserved] 

Investigations 

115.271 Criminal and administrative 

agency investigations. 

115.272 Evidentiary standard for 

administrative investigations. 

115.273 Reporting to residents. 

Discipline 

115.276 Disciplinary sanctions for staff. 

115.277 Corrective action for contractors 

and volunteers. 

115.278 Disciplinary sanctions for 

residents. 

Medical and Mental Care 

115.281 [Reserved] 

115.282 Access to emergency medical and 

mental health services. 

115.283 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

Data Collection and Review 

115.286 Sexual abuse incident reviews. 

115.287 Data collection. 

115.288 Data review for corrective action. 

115.289 Data storage, publication, and 

destruction. 

Audits 

115.293 Audits of standards. 

Subpart D—Standards for Juvenile 

Facilities 

Prevention Planning 

115.311 Zero tolerance of sexual abuse and 

sexual harassment; PREA coordinator. 

115.312 Contracting with other entities for 

the confinement of residents. 

115.313 Supervision and monitoring. 

115.314 [Reserved] 

115.315 Limits to cross-gender viewing and 

searches. 

115.316 Residents with disabilities and 

residents who are limited English 

proficient. 

115.317 Hiring and promotion decisions. 

115.318 Upgrades to facilities and 

technologies. 

Responsive Planning 

115.321 Evidence protocol and forensic 

medical examinations. 

115.322 Policies to ensure referrals of 

allegations for investigations. 

Training and Education 

115.331 Employee training. 

115.332 Volunteer and contractor training. 

115.333 Resident education. 

115.334 Specialized training: 

Investigations. 

115.335 Specialized training: Medical and 

mental health care. 

Screening for Risk of Sexual Victimization 

and Abusiveness 

115.341 Obtaining information from 

residents. 

115.342 Placement of residents in housing, 

bed, program, education, and work 

assignments. 

115.343 [Reserved] 

Reporting 

115.351 Resident reporting. 

115.352 Exhaustion of administrative 

remedies. 

115.353 Resident access to outside support 

services and legal representation. 

115.354 Third-party reporting. 

Official Response Following a Resident 

Report 

115.361 Staff and agency reporting duties. 

115.362 Agency protection duties. 

115.363 Reporting to other confinement 

facilities. 

115.364 Staff first responder duties. 

115.365 Coordinated response. 

115.366 Preservation of ability to protect 

residents from contact with abusers. 

115.367 Agency protection against 

retaliation. 

115.368 Post-allegation protective custody. 

Investigations 

115.371 Criminal and administrative 

agency investigations. 

115.372 Evidentiary standard for 

administrative investigations. 

115.373 Reporting to residents. 

Discipline 

115.376 Disciplinary sanctions for staff. 

115.377 Corrective action for contractors 

and volunteers. 

115.378 Interventions and disciplinary 

sanctions for residents. 

Medical and Mental Care 

115.381 Medical and mental health 

screenings; history of sexual abuse. 

115.382 Access to emergency medical and 

mental health services. 

115.383 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

Data Collection and Review 

115.386 Sexual abuse incident reviews. 

115.387 Data collection. 

115.388 Data review for corrective action. 

115.389 Data storage, publication, and 

destruction. 

Audits 

115.393 Audits of standards. 

Subpart E—Auditing and Corrective Action 

115.401 Frequency and scope of audits. 

115.402 Auditor qualifications. 

115.403 Audit contents and findings. 

115.404 Audit corrective action plan. 

115.405 Audit appeals. 

Subpart F—State Compliance 

115.501 State determination and 

certification of full compliance. 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 15601–15609. 

§ 115.5 General definitions. 

For purposes of this part, the term— 

Agency means the unit of a State, 

local, corporate, or nonprofit authority, 

or of the Department of Justice, with 

direct responsibility for the operation of 

any facility that confines inmates, 

detainees, or residents, including the 

implementation of policy as set by the 

governing, corporate, or nonprofit 

authority. 

Agency head means the principal 

official of an agency. 

Community confinement facility 

means a community treatment center, 

halfway house, restitution center, 

mental health facility, alcohol or drug 

rehabilitation center, or other 

community correctional facility 

(including residential re-entry centers), 

other than a juvenile facility, in which 

individuals reside as part of a term of 

imprisonment or as a condition of pretrial release or post-release supervision, 

while participating in gainful 

employment, employment search 

efforts, community service, vocational 

training, treatment, educational 

programs, or similar facility-approved 

programs during nonresidential hours. 

Contractor means a person who 

provides services on a recurring basis 

pursuant to a contractual agreement 

with the agency. 

Detainee means any person detained 

in a lockup, regardless of adjudication 

status. 

Direct staff supervision means that 

security staff are in the same room with, 

and within reasonable hearing distance 

of, the resident or inmate. 

Employee means a person who works 

directly for the agency or facility. 

Exigent circumstances means any set 

of temporary and unforeseen 

circumstances that require immediate 

action in order to combat a threat to the 

security or institutional order of a 

facility. 

Facility means a place, institution, 

building (or part thereof), set of 

buildings, structure, or area (whether or 

not enclosing a building or set of 

buildings) that is used by an agency for 

the confinement of individuals. 

Facility head means the principal 

official of a facility. 

Full compliance means compliance 

with all material requirements of each 

standard except for de minimis 

violations, or discrete and temporary 

violations during otherwise sustained 

periods of compliance. 


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Gender nonconforming means a 

person whose appearance or manner 

does not conform to traditional societal 

gender expectations. 

Inmate means any person 

incarcerated or detained in a prison or 

jail. 

Intersex means a person whose sexual 

or reproductive anatomy or 

chromosomal pattern does not seem to 

fit typical definitions of male or female. 

Intersex medical conditions are 

sometimes referred to as disorders of sex 

development. 

Jail means a confinement facility of a 

Federal, State, or local law enforcement 

agency whose primary use is to hold 

persons pending adjudication of 

criminal charges, persons committed to 

confinement after adjudication of 

criminal charges for sentences of one 

year or less, or persons adjudicated 

guilty who are awaiting transfer to a 

correctional facility. 

Juvenile means any person under the 

age of 18, unless under adult court 

supervision and confined or detained in 

a prison or jail. 

Juvenile facility means a facility 

primarily used for the confinement of 

juveniles pursuant to the juvenile 

justice system or criminal justice 

system. 

Law enforcement staff means 

employees responsible for the 

supervision and control of detainees in 

lockups. 

Lockup means a facility that contains 

holding cells, cell blocks, or other 

secure enclosures that are: 

(1) Under the control of a law 

enforcement, court, or custodial officer; 

and 

(2) Primarily used for the temporary 

confinement of individuals who have 

recently been arrested, detained, or are 

being transferred to or from a court, jail, 

prison, or other agency. 

Medical practitioner means a health 

professional who, by virtue of 

education, credentials, and experience, 

is permitted by law to evaluate and care 

for patients within the scope of his or 

her professional practice. A ‘‘qualified 

medical practitioner’’ refers to such a 

professional who has also successfully 

completed specialized training for 

treating sexual abuse victims. 

Mental health practitioner means a 

mental health professional who, by 

virtue of education, credentials, and 

experience, is permitted by law to 

evaluate and care for patients within the 

scope of his or her professional practice. 

A ‘‘qualified mental health practitioner’’ 

refers to such a professional who has 

also successfully completed specialized 

training for treating sexual abuse 

victims. 

Pat-down search means a running of 

the hands over the clothed body of an 

inmate, detainee, or resident by an 

employee to determine whether the 

individual possesses contraband. 

Prison means an institution under 

Federal or State jurisdiction whose 

primary use is for the confinement of 

individuals convicted of a serious 

crime, usually in excess of one year in 

length, or a felony. 

Resident means any person confined 

or detained in a juvenile facility or in a 

community confinement facility. 

Secure juvenile facility means a 

juvenile facility in which the 

movements and activities of individual 

residents may be restricted or subject to 

control through the use of physical 

barriers or intensive staff supervision. A 

facility that allows residents access to 

the community to achieve treatment or 

correctional objectives, such as through 

educational or employment programs, 

typically will not be considered to be a 

secure juvenile facility. 

Security staff means employees 

primarily responsible for the 

supervision and control of inmates, 

detainees, or residents in housing units, 

recreational areas, dining areas, and 

other program areas of the facility. 

Staff means employees. 

Strip search means a search that 

requires a person to remove or arrange 

some or all clothing so as to permit a 

visual inspection of the person’s breasts, 

buttocks, or genitalia. 

Substantiated allegation means an 

allegation that was investigated and 

determined to have occurred. 

Transgender means a person whose 

gender identity (i.e., internal sense of 

feeling male or female) is different from 

the person’s assigned sex at birth. 

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. 

Youthful inmate means any person 

under the age of 18 who is under adult 

court supervision and incarcerated or 

detained in a prison or jail. 

Youthful detainee means any person 

under the age of 18 who is under adult 

court supervision and detained in a 

lockup. 

§ 115.6 Definitions related to sexual abuse. 

For purposes of this part, the term— 

Sexual abuse includes— 

(1) Sexual abuse of an inmate, 

detainee, or resident by another inmate, 

detainee, or resident; and 

(2) Sexual abuse of an inmate, 

detainee, or resident by a staff member, 

contractor, or volunteer. 

Sexual abuse of an inmate, detainee, 

or resident by another inmate, detainee, 

or resident includes any of the following 

acts, if the victim does not consent, is 

coerced into such act by overt or 

implied threats of violence, or is unable 

to consent or refuse: 

(1) Contact between the penis and the 

vulva or the penis and the anus, 

including penetration, however slight; 

(2) Contact between the mouth and 

the penis, vulva, or anus; 

(3) Penetration of the anal or genital 

opening of another person, however 

slight, by a hand, finger, object, or other 

instrument; and 

(4) Any other intentional touching, 

either directly or through the clothing, 

of the genitalia, anus, groin, breast, 

inner thigh, or the buttocks of another 

person, excluding contact incidental to 

a physical altercation. 

Sexual abuse of an inmate, detainee, 

or resident by a staff member, 

contractor, or volunteer includes any of 

the following acts, with or without 

consent of the inmate, detainee, or 

resident: 

(1) Contact between the penis and the 

vulva or the penis and the anus, 

including penetration, however slight; 

(2) Contact between the mouth and 

the penis, vulva, or anus; 

(3) Contact between the mouth and 

any body part where the staff member, 

contractor, or volunteer has the intent to 

abuse, arouse, or gratify sexual desire; 

(4) Penetration of the anal or genital 

opening, however slight, by a hand, 

finger, object, or other instrument, that 

is unrelated to official duties or where 

the staff member, contractor, or 

volunteer has the intent to abuse, 

arouse, or gratify sexual desire; 

(5) Any other intentional contact, 

either directly or through the clothing, 

of or with the genitalia, anus, groin, 

breast, inner thigh, or the buttocks, that 

is unrelated to official duties or where 

the staff member, contractor, or 

volunteer has the intent to abuse, 

arouse, or gratify sexual desire; 

(6) Any attempt, threat, or request by 

a staff member, contractor, or volunteer 

to engage in the activities described in 

paragraphs (1) through (5) of this 

definition; 

(7) Any display by a staff member, 

contractor, or volunteer of his or her 

uncovered genitalia, buttocks, or breast 

in the presence of an inmate, detainee, 

or resident, and 


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(8) Voyeurism by a staff member, 

contractor, or volunteer. 

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 privacy of an inmate, 

detainee, or resident by staff for reasons 

unrelated to official duties, such as 

peering at an inmate who is using a 

toilet in his or her cell to perform bodily 

functions; requiring an inmate to expose 

his or her buttocks, genitals, or breasts; 

or taking images of all or part of an 

inmate’s naked body or of an inmate 

performing bodily functions. 

Subpart A—Standards for Adult 

Prisons and Jails 

Prevention Planning 

§ 115.11 Zero tolerance of sexual abuse 

and sexual harassment; PREA coordinator. 

(a) An agency shall have a written 

policy mandating zero tolerance toward 

all forms of sexual abuse and sexual 

harassment and outlining the agency’s 

approach to preventing, detecting, and 

responding to such conduct. 

(b) An agency shall employ or 

designate an upper-level, agency-wide 

PREA coordinator with sufficient time 

and authority to develop, implement, 

and oversee agency efforts to comply 

with the PREA standards in all of its 

facilities. 

(c) Where an agency operates more 

than one facility, each facility shall 

designate a PREA compliance manager 

with sufficient time and authority to 

coordinate the facility’s efforts to 

comply with the PREA standards. 

§ 115.12 Contracting with other entities for 

the confinement of inmates. 

(a) A public agency that contracts for 

the confinement of its inmates with 

private agencies or other entities, 

including other government agencies, 

shall include in any new contract or 

contract renewal the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contract or contract 

renewal shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with the PREA 

standards. 

§ 115.13 Supervision and monitoring. 

(a) The agency shall ensure that each 

facility it operates shall develop, 

document, and make its best efforts to 

comply on a regular basis with a staffing 

plan that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect inmates against 

sexual abuse. In calculating adequate 

staffing levels and determining the need 

for video monitoring, facilities shall take 

into consideration: 

(1) Generally accepted detention and 

correctional practices; 

(2) Any judicial findings of 

inadequacy; 

(3) Any findings of inadequacy from 

Federal investigative agencies; 

(4) Any findings of inadequacy from 

internal or external oversight bodies; 

(5) All components of the facility’s 

physical plant (including ‘‘blind-spots’’ 

or areas where staff or inmates may be 

isolated); 

(6) The composition of the inmate 

population; 

(7) The number and placement of 

supervisory staff; 

(8) Institution programs occurring on 

a particular shift; 

(9) Any applicable State or local laws, 

regulations, or standards; 

(10) The prevalence of substantiated 

and unsubstantiated incidents of sexual 

abuse; and 

(11) Any other relevant factors. 

(b) In circumstances where the 

staffing plan is not complied with, the 

facility shall document and justify all 

deviations from the plan. 

(c) Whenever necessary, but no less 

frequently than once each year, for each 

facility the agency operates, in 

consultation with the PREA coordinator 

required by § 115.11, the agency shall 

assess, determine, and document 

whether adjustments are needed to: 

(1) The staffing plan established 

pursuant to paragraph (a) of this section; 

(2) The facility’s deployment of video 

monitoring systems and other 

monitoring technologies; and 

(3) The resources the facility has 

available to commit to ensure adherence 

to the staffing plan. 

(d) Each agency operating a facility 

shall implement a policy and practice of 

having intermediate-level or 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. Each agency shall 

have a policy to prohibit staff from 

alerting other staff members that these 

supervisory rounds are occurring, 

unless such announcement is related to 

the legitimate operational functions of 

the facility. 

§ 115.14 Youthful inmates. 

(a) A youthful inmate shall not be 

placed in a housing unit in which the 

youthful inmate will have sight, sound, 

or physical contact with any adult 

inmate through use of a shared dayroom 

or other common space, shower area, or 

sleeping quarters. 

(b) In areas outside of housing units, 

agencies shall either: 

(1) Maintain sight and sound 

separation between youthful inmates 

and adult inmates, or 

(2) Provide direct staff supervision 

when youthful inmates and adult 

inmates have sight, sound, or physical 

contact. 

(c) Agencies shall make best efforts to 

avoid placing youthful inmates in 

isolation to comply with this provision. 

Absent exigent circumstances, agencies 

shall not deny youthful inmates daily 

large-muscle exercise and any legally 

required special education services to 

comply with this provision. Youthful 

inmates shall also have access to other 

programs and work opportunities to the 

extent possible. 

§ 115.15 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or crossgender visual body cavity searches 

(meaning a search of the anal or genital 

opening) except in exigent 

circumstances or when performed by 

medical practitioners. 

(b) As of August 20, 2015, or August 

21, 2017 for a facility whose rated 

capacity does not exceed 50 inmates, 

the facility shall not permit cross-gender 

pat-down searches of female inmates, 

absent exigent circumstances. Facilities 

shall not restrict female inmates’ access 

to regularly available programming or 

other out-of-cell opportunities in order 

to comply with this provision. 

(c) The facility shall document all 

cross-gender strip searches and crossgender visual body cavity searches, and 

shall document all cross-gender patdown searches of female inmates. 

(d) The facility shall implement 

policies and procedures that enable 

inmates to shower, perform bodily 

functions, and change clothing without 

nonmedical staff of the opposite gender 

viewing their breasts, buttocks, or 

genitalia, except in exigent 

circumstances or when such viewing is 

incidental to routine cell checks. Such 

policies and procedures shall require 

staff of the opposite gender to announce 


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their presence when entering an inmate 

housing unit. 

(e) The facility shall not search or 

physically examine a transgender or 

intersex inmate for the sole purpose of 

determining the inmate’s genital status. 

If the inmate’s genital status is 

unknown, it may be determined during 

conversations with the inmate, by 

reviewing medical records, or, if 

necessary, by learning that information 

as part of a broader medical 

examination conducted in private by a 

medical practitioner. 

(f) The agency shall train security staff 

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

transgender and intersex inmates, in a 

professional and respectful manner, and 

in the least intrusive manner possible, 

consistent with security needs. 

§ 115.16 Inmates with disabilities and 

inmates who are limited English proficient. 

(a) The agency shall take appropriate 

steps to ensure that inmates with 

disabilities (including, for example, 

inmates who are deaf or hard of hearing, 

those who are blind or have low vision, 

or those who have intellectual, 

psychiatric, or speech disabilities), have 

an equal opportunity to participate in or 

benefit from all aspects of the agency’s 

efforts to prevent, detect, and respond to 

sexual abuse and sexual harassment. 

Such steps shall include, when 

necessary to ensure effective 

communication with inmates who are 

deaf or hard of hearing, providing access 

to interpreters who can interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. In 

addition, the agency shall ensure that 

written materials are provided in 

formats or through methods that ensure 

effective communication with inmates 

with disabilities, including inmates who 

have intellectual disabilities, limited 

reading skills, or who are blind or have 

low vision. An agency is not required to 

take actions that it can demonstrate 

would result in a fundamental alteration 

in the nature of a service, program, or 

activity, or in undue financial and 

administrative burdens, as those terms 

are used in regulations promulgated 

under title II of the Americans With 

Disabilities Act, 28 CFR 35.164. 

(b) The agency shall take reasonable 

steps to ensure meaningful access to all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment to inmates 

who are limited English proficient, 

including steps to provide interpreters 

who can interpret effectively, 

accurately, and impartially, both 

receptively and expressively, using any 

necessary specialized vocabulary. 

(c) The agency shall not rely on 

inmate interpreters, inmate readers, or 

other types of inmate assistants except 

in limited circumstances where an 

extended delay in obtaining an effective 

interpreter could compromise the 

inmate’s safety, the performance of firstresponse duties under § 115.64, or the 

investigation of the inmate’s allegations. 

§ 115.17 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote anyone who may have contact 

with inmates, and shall not enlist the 

services of any contractor who may have 

contact with inmates, who— 

(1) Has engaged in sexual abuse in a 

prison, jail, lockup, community 

confinement facility, juvenile facility, or 

other institution (as defined in 42 U.S.C. 

1997); 

(2) Has been convicted of engaging or 

attempting to engage in sexual activity 

in the community facilitated by force, 

overt or implied threats of force, or 

coercion, or if the victim did not 

consent or was unable to consent or 

refuse; or 

(3) Has been civilly or 

administratively adjudicated to have 

engaged in the activity described in 

paragraph (a)(2) of this section. 

(b) The agency shall consider any 

incidents of sexual harassment in 

determining whether to hire or promote 

anyone, or to enlist the services of any 

contractor, who may have contact with 

inmates. 

(c) Before hiring new employees who 

may have contact with inmates, the 

agency shall: 

(1) Perform a criminal background 

records check; and 

(2) Consistent with Federal, State, and 

local law, make its best efforts to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse or any resignation 

during a pending investigation of an 

allegation of sexual abuse. 

(d) The agency shall also perform a 

criminal background records check 

before enlisting the services of any 

contractor who may have contact with 

inmates. 

(e) The agency shall either conduct 

criminal background records checks at 

least every five years of current 

employees and contractors who may 

have contact with inmates or have in 

place a system for otherwise capturing 

such information for current employees. 

(f) The agency shall ask all applicants 

and employees who may have contact 

with inmates directly about previous 

misconduct described in paragraph (a) 

of this section in written applications or 

interviews for hiring or promotions and 

in any interviews or written selfevaluations conducted as part of 

reviews of current employees. The 

agency shall also impose upon 

employees a continuing affirmative duty 

to disclose any such misconduct. 

(g) Material omissions regarding such 

misconduct, or the provision of 

materially false information, shall be 

grounds for termination. 

(h) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

an institutional employer for whom 

such employee has applied to work. 

§ 115.18 Upgrades to facilities and 

technologies. 

(a) When designing or acquiring any 

new facility and in planning any 

substantial expansion or modification of 

existing facilities, the agency shall 

consider the effect of the design, 

acquisition, expansion, or modification 

upon the agency’s ability to protect 

inmates from sexual abuse. 

(b) When installing or updating a 

video monitoring system, electronic 

surveillance system, or other monitoring 

technology, the agency shall consider 

how such technology may enhance the 

agency’s ability to protect inmates from 

sexual abuse. 

Responsive Planning 

§ 115.21 Evidence protocol and forensic 

medical examinations. 

(a) To the extent the agency is 

responsible for investigating allegations 

of sexual abuse, the agency shall follow 

a uniform evidence protocol that 

maximizes the potential for obtaining 

usable physical evidence for 

administrative proceedings and criminal 

prosecutions. 

(b) The protocol shall be 

developmentally appropriate for youth 

where applicable, and, as appropriate, 

shall be adapted from or otherwise 

based on the most recent edition of the 

U.S. Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ or similarly 

comprehensive and authoritative 

protocols developed after 2011. 

(c) The agency shall offer all victims 

of sexual abuse access to forensic 

medical examinations, whether on-site 

or at an outside facility, without 

financial cost, where evidentiarily or 

medically appropriate. Such 

examinations shall be performed by 

Sexual Assault Forensic Examiners 

(SAFEs) or Sexual Assault Nurse 


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Examiners (SANEs) where possible. If 

SAFEs or SANEs cannot be made 

available, the examination can be 

performed by other qualified medical 

practitioners. The agency shall 

document its efforts to provide SAFEs 

or SANEs. 

(d) The agency shall attempt to make 

available to the victim a victim advocate 

from a rape crisis center. If a rape crisis 

center is not available to provide victim 

advocate services, the agency shall make 

available to provide these services a 

qualified staff member from a 

community-based organization, or a 

qualified agency staff member. Agencies 

shall document efforts to secure services 

from rape crisis centers. For the purpose 

of this standard, a rape crisis center 

refers to an entity that provides 

intervention and related assistance, 

such as the services specified in 42 

U.S.C. 14043g(b)(2)(C), to victims of 

sexual assault of all ages. The agency 

may utilize a rape crisis center that is 

part of a governmental unit as long as 

the center is not part of the criminal 

justice system (such as a law 

enforcement agency) and offers a 

comparable level of confidentiality as a 

nongovernmental entity that provides 

similar victim services. 

(e) As requested by the victim, the 

victim advocate, qualified agency staff 

member, or qualified community-based 

organization staff member shall 

accompany and support the victim 

through the forensic medical 

examination process and investigatory 

interviews and shall provide emotional 

support, crisis intervention, 

information, and referrals. 

(f) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall request that the investigating 

agency follow the requirements of 

paragraphs (a) through (e) of this 

section. 

(g) The requirements of paragraphs (a) 

through (f) of this section shall also 

apply to: 

(1) Any State entity outside of the 

agency that is responsible for 

investigating allegations of sexual abuse 

in prisons or jails; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in prisons or jails. 

(h) For the purposes of this section, a 

qualified agency staff member or a 

qualified community-based staff 

member shall be an individual who has 

been screened for appropriateness to 

serve in this role and has received 

education concerning sexual assault and 

forensic examination issues in general. 

§ 115.22 Policies to ensure referrals of 

allegations for investigations. 

(a) The agency shall ensure that an 

administrative or criminal investigation 

is completed for all allegations of sexual 

abuse and sexual harassment. 

(b) The agency shall have in place a 

policy to ensure that allegations of 

sexual abuse or sexual harassment are 

referred for investigation to an agency 

with the legal authority to conduct 

criminal investigations, unless the 

allegation does not involve potentially 

criminal behavior. The agency shall 

publish such policy on its Web site or, 

if it does not have one, make the policy 

available through other means. The 

agency shall document all such 

referrals. 

(c) If a separate entity is responsible 

for conducting criminal investigations, 

such publication shall describe the 

responsibilities of both the agency and 

the investigating entity. 

(d) Any State entity responsible for 

conducting administrative or criminal 

investigations of sexual abuse or sexual 

harassment in prisons or jails shall have 

in place a policy governing the conduct 

of such investigations. 

(e) Any Department of Justice 

component responsible for conducting 

administrative or criminal 

investigations of sexual abuse or sexual 

harassment in prisons or jails shall have 

in place a policy governing the conduct 

of such investigations. 

Training and Education 

§ 115.31 Employee training. 

(a) The agency shall train all 

employees who may have contact with 

inmates on: 

(1) Its zero-tolerance policy for sexual 

abuse and sexual harassment; 

(2) How to fulfill their responsibilities 

under agency sexual abuse and sexual 

harassment prevention, detection, 

reporting, and response policies and 

procedures; 

(3) Inmates’ right to be free from 

sexual abuse and sexual harassment; 

(4) The right of inmates and 

employees to be free from retaliation for 

reporting sexual abuse and sexual 

harassment; 

(5) The dynamics of sexual abuse and 

sexual harassment in confinement; 

(6) The common reactions of sexual 

abuse and sexual harassment victims; 

(7) How to detect and respond to signs 

of threatened and actual sexual abuse; 

(8) How to avoid inappropriate 

relationships with inmates; 

(9) How to communicate effectively 

and professionally with inmates, 

including lesbian, gay, bisexual, 

transgender, intersex, or gender 

nonconforming inmates; and 

(10) How to comply with relevant 

laws related to mandatory reporting of 

sexual abuse to outside authorities. 

(b) Such training shall be tailored to 

the gender of the inmates at the 

employee’s facility. The employee shall 

receive additional training if the 

employee is reassigned from a facility 

that houses only male inmates to a 

facility that houses only female inmates, 

or vice versa. 

(c) All current employees who have 

not received such training shall be 

trained within one year of the effective 

date of the PREA standards, and the 

agency shall provide each employee 

with refresher training every two years 

to ensure that all employees know the 

agency’s current sexual abuse and 

sexual harassment policies and 

procedures. In years in which an 

employee does not receive refresher 

training, the agency shall provide 

refresher information on current sexual 

abuse and sexual harassment policies. 

(d) The agency shall document, 

through employee signature or 

electronic verification, that employees 

understand the training they have 

received. 

§ 115.32 Volunteer and contractor training. 

(a) The agency shall ensure that all 

volunteers and contractors who have 

contact with inmates have been trained 

on their responsibilities under the 

agency’s sexual abuse and sexual 

harassment prevention, detection, and 

response policies and procedures. 

(b) The level and type of training 

provided to volunteers and contractors 

shall be based on the services they 

provide and level of contact they have 

with inmates, but all volunteers and 

contractors who have contact with 

inmates shall be notified of the agency’s 

zero-tolerance policy regarding sexual 

abuse and sexual harassment and 

informed how to report such incidents. 

(c) The agency shall maintain 

documentation confirming that 

volunteers and contractors understand 

the training they have received. 

§ 115.33 Inmate education. 

(a) During the intake process, inmates 

shall receive information explaining the 

agency’s zero-tolerance policy regarding 

sexual abuse and sexual harassment and 

how to report incidents or suspicions of 

sexual abuse or sexual harassment. 

(b) Within 30 days of intake, the 

agency shall provide comprehensive 

education to inmates either in person or 

through video regarding their rights to 

be free from sexual abuse and sexual 

harassment and to be free from 

retaliation for reporting such incidents, 

and regarding agency policies and 


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procedures for responding to such 

incidents. 

(c) Current inmates who have not 

received such education shall be 

educated within one year of the 

effective date of the PREA standards, 

and shall receive education upon 

transfer to a different facility to the 

extent that the policies and procedures 

of the inmate’s new facility differ from 

those of the previous facility. 

(d) The agency shall provide inmate 

education in formats accessible to all 

inmates, including those who are 

limited English proficient, deaf, visually 

impaired, or otherwise disabled, as well 

as to inmates who have limited reading 

skills. 

(e) The agency shall maintain 

documentation of inmate participation 

in these education sessions. 

(f) In addition to providing such 

education, the agency shall ensure that 

key information is continuously and 

readily available or visible to inmates 

through posters, inmate handbooks, or 

other written formats. 

§ 115.34 Specialized training: 

Investigations. 

(a) In addition to the general training 

provided to all employees pursuant to 

§ 115.31, the agency shall ensure that, to 

the extent the agency itself conducts 

sexual abuse investigations, its 

investigators have received training in 

conducting such investigations in 

confinement settings. 

(b) Specialized training shall include 

techniques for interviewing sexual 

abuse victims, proper use of Miranda 

and Garrity warnings, sexual abuse 

evidence collection in confinement 

settings, and the criteria and evidence 

required to substantiate a case for 

administrative action or prosecution 

referral. 

(c) The agency shall maintain 

documentation that agency investigators 

have completed the required specialized 

training in conducting sexual abuse 

investigations. 

(d) Any State entity or Department of 

Justice component that investigates 

sexual abuse in confinement settings 

shall provide such training to its agents 

and investigators who conduct such 

investigations. 

§ 115.35 Specialized training: Medical and 

mental health care. 

(a) The agency shall ensure that all 

full- and part-time medical and mental 

health care practitioners who work 

regularly in its facilities have been 

trained in: 

(1) How to detect and assess signs of 

sexual abuse and sexual harassment; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to victims of sexual abuse 

and sexual harassment; and 

(4) How and to whom to report 

allegations or suspicions of sexual abuse 

and sexual harassment. 

(b) If medical staff employed by the 

agency conduct forensic examinations, 

such medical staff shall receive the 

appropriate training to conduct such 

examinations. 

(c) The agency shall maintain 

documentation that medical and mental 

health practitioners have received the 

training referenced in this standard 

either from the agency or elsewhere. 

(d) Medical and mental health care 

practitioners shall also receive the 

training mandated for employees under 

§ 115.31 or for contractors and 

volunteers under § 115.32, depending 

upon the practitioner’s status at the 

agency. 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.41 Screening for risk of victimization 

and abusiveness. 

(a) All inmates shall be assessed 

during an intake screening and upon 

transfer to another facility for their risk 

of being sexually abused by other 

inmates or sexually abusive toward 

other inmates. 

(b) Intake screening shall ordinarily 

take place within 72 hours of arrival at 

the facility. 

(c) Such assessments shall be 

conducted using an objective screening 

instrument. 

(d) The intake screening shall 

consider, at a minimum, the following 

criteria to assess inmates for risk of 

sexual victimization: 

(1) Whether the inmate has a mental, 

physical, or developmental disability; 

(2) The age of the inmate; 

(3) The physical build of the inmate; 

(4) Whether the inmate has previously 

been incarcerated; 

(5) Whether the inmate’s criminal 

history is exclusively nonviolent; 

(6) Whether the inmate has prior 

convictions for sex offenses against an 

adult or child; 

(7) Whether the inmate is or is 

perceived to be gay, lesbian, bisexual, 

transgender, intersex, or gender 

nonconforming; 

(8) Whether the inmate has previously 

experienced sexual victimization; 

(9) The inmate’s own perception of 

vulnerability; and 

(10) Whether the inmate is detained 

solely for civil immigration purposes. 

(e) The initial screening shall consider 

prior acts of sexual abuse, prior 

convictions for violent offenses, and 

history of prior institutional violence or 

sexual abuse, as known to the agency, 

in assessing inmates for risk of being 

sexually abusive. 

(f) Within a set time period, not to 

exceed 30 days from the inmate’s arrival 

at the facility, the facility will reassess 

the inmate’s risk of victimization or 

abusiveness based upon any additional, 

relevant information received by the 

facility since the intake screening. 

(g) An inmate’s risk level shall be 

reassessed when warranted due to a 

referral, request, incident of sexual 

abuse, or receipt of additional 

information that bears on the inmate’s 

risk of sexual victimization or 

abusiveness. 

(h) Inmates may not be disciplined for 

refusing to answer, or for not disclosing 

complete information in response to, 

questions asked pursuant to paragraphs 

(d)(1), (d)(7), (d)(8), or (d)(9) of this 

section. 

(i) The agency shall implement 

appropriate controls on the 

dissemination within the facility of 

responses to questions asked pursuant 

to this standard in order to ensure that 

sensitive information is not exploited to 

the inmate’s detriment by staff or other 

inmates. 

§ 115.42 Use of screening information. 

(a) The agency shall use information 

from the risk screening required by 

§ 115.41 to inform housing, bed, work, 

education, and program assignments 

with the goal of keeping separate those 

inmates at high risk of being sexually 

victimized from those at high risk of 

being sexually abusive. 

(b) The agency shall make 

individualized determinations about 

how to ensure the safety of each inmate. 

(c) In deciding whether to assign a 

transgender or intersex inmate to a 

facility for male or female inmates, and 

in making other housing and 

programming assignments, the agency 

shall consider on a case-by-case basis 

whether a placement would ensure the 

inmate’s health and safety, and whether 

the placement would present 

management or security problems. 

(d) Placement and programming 

assignments for each transgender or 

intersex inmate shall be reassessed at 

least twice each year to review any 

threats to safety experienced by the 

inmate. 

(e) A transgender or intersex inmate’s 

own views with respect to his or her 

own safety shall be given serious 

consideration. 

(f) Transgender and intersex inmates 

shall be given the opportunity to shower 

separately from other inmates. 


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(g) The agency shall not place lesbian, 

gay, bisexual, transgender, or intersex 

inmates in dedicated facilities, units, or 

wings solely on the basis of such 

identification or status, unless such 

placement is in a dedicated facility, 

unit, or wing established in connection 

with a consent decree, legal settlement, 

or legal judgment for the purpose of 

protecting such inmates. 

§ 115.43 Protective custody. 

(a) Inmates at high risk for sexual 

victimization shall not be placed in 

involuntary segregated housing unless 

an assessment of all available 

alternatives has been made, and a 

determination has been made that there 

is no available alternative means of 

separation from likely abusers. If a 

facility cannot conduct such an 

assessment immediately, the facility 

may hold the inmate in involuntary 

segregated housing for less than 24 

hours while completing the assessment. 

(b) Inmates placed in segregated 

housing for this purpose shall have 

access to programs, privileges, 

education, and work opportunities to 

the extent possible. If the facility 

restricts access to programs, privileges, 

education, or work opportunities, the 

facility shall document: 

(1) The opportunities that have been 

limited; 

(2) The duration of the limitation; and 

(3) The reasons for such limitations. 

(c) The facility shall assign such 

inmates to involuntary segregated 

housing only until an alternative means 

of separation from likely abusers can be 

arranged, and such an assignment shall 

not ordinarily exceed a period of 30 

days. 

(d) If an involuntary segregated 

housing assignment is made pursuant to 

paragraph (a) of this section, the facility 

shall clearly document: 

(1) The basis for the facility’s concern 

for the inmate’s safety; and 

(2) The reason why no alternative 

means of separation can be arranged. 

(e) Every 30 days, the facility shall 

afford each such inmate a review to 

determine whether there is a continuing 

need for separation from the general 

population. 

Reporting 

§ 115.51 Inmate reporting. 

(a) The agency shall provide multiple 

internal ways for inmates to privately 

report sexual abuse and sexual 

harassment, retaliation by other inmates 

or staff for reporting sexual abuse and 

sexual harassment, and staff neglect or 

violation of responsibilities that may 

have contributed to such incidents. 

(b) The agency shall also provide at 

least one way for inmates to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency, and that is able to receive 

and immediately forward inmate reports 

of sexual abuse and sexual harassment 

to agency officials, allowing the inmate 

to remain anonymous upon request. 

Inmates detained solely for civil 

immigration purposes shall be provided 

information on how to contact relevant 

consular officials and relevant officials 

at the Department of Homeland 

Security. 

(c) Staff shall accept reports made 

verbally, in writing, anonymously, and 

from third parties and shall promptly 

document any verbal reports. 

(d) The agency shall provide a method 

for staff to privately report sexual abuse 

and sexual harassment of inmates. 

§ 115.52 Exhaustion of administrative 

remedies. 

(a) An agency shall be exempt from 

this standard if it does not have 

administrative procedures to address 

inmate grievances regarding sexual 

abuse. 

(b)(1) The agency shall not impose a 

time limit on when an inmate may 

submit a grievance regarding an 

allegation of sexual abuse. 

(2) The agency may apply otherwiseapplicable time limits to any portion of 

a grievance that does not allege an 

incident of sexual abuse. 

(3) The agency shall not require an 

inmate to use any informal grievance 

process, or to otherwise attempt to 

resolve with staff, an alleged incident of 

sexual abuse. 

(4) Nothing in this section shall 

restrict the agency’s ability to defend 

against an inmate lawsuit on the ground 

that the applicable statute of limitations 

has expired. 

(c) The agency shall ensure that— 

(1) An inmate who alleges sexual 

abuse may submit a grievance without 

submitting it to a staff member who is 

the subject of the complaint, and 

(2) Such grievance is not referred to 

a staff member who is the subject of the 

complaint. 

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

agency decision on the merits of any 

portion of a grievance alleging sexual 

abuse within 90 days of the initial filing 

of the grievance. 

(2) Computation of the 90-day time 

period shall not include time consumed 

by inmates in preparing any 

administrative appeal. 

(3) The agency may claim an 

extension of time to respond, of up to 

70 days, if the normal time period for 

response is insufficient to make an 

appropriate decision. The agency shall 

notify the inmate in writing of any such 

extension and provide a date by which 

a decision will be made. 

(4) At any level of the administrative 

process, including the final level, if the 

inmate does not receive a response 

within the time allotted for reply, 

including any properly noticed 

extension, the inmate may consider the 

absence of a response to be a denial at 

that level. 

(e)(1) Third parties, including fellow 

inmates, staff members, family 

members, attorneys, and outside 

advocates, shall be permitted to assist 

inmates in filing requests for 

administrative remedies relating to 

allegations of sexual abuse, and shall 

also be permitted to file such requests 

on behalf of inmates. 

(2) If a third party files such a request 

on behalf of an inmate, the facility may 

require as a condition of processing the 

request that the alleged victim agree to 

have the request filed on his or her 

behalf, and may also require the alleged 

victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(3) If the inmate declines to have the 

request processed on his or her behalf, 

the agency shall document the inmate’s 

decision. 

(f)(1) The agency shall establish 

procedures for the filing of an 

emergency grievance alleging that an 

inmate is subject to a substantial risk of 

imminent sexual abuse. 

(2) After receiving an emergency 

grievance alleging an inmate is subject 

to a substantial risk of imminent sexual 

abuse, the agency shall immediately 

forward the grievance (or any portion 

thereof that alleges the substantial risk 

of imminent sexual abuse) to a level of 

review at which immediate corrective 

action may be taken, shall provide an 

initial response within 48 hours, and 

shall issue a final agency decision 

within 5 calendar days. The initial 

response and final agency decision shall 

document the agency’s determination 

whether the inmate is in substantial risk 

of imminent sexual abuse and the action 

taken in response to the emergency 

grievance. 

(g) The agency may discipline an 

inmate for filing a grievance related to 

alleged sexual abuse only where the 

agency demonstrates that the inmate 

filed the grievance in bad faith. 

§ 115.53 Inmate access to outside 

confidential support services. 

(a) The facility shall provide inmates 

with access to outside victim advocates 

for emotional support services related to 

sexual abuse by giving inmates mailing 


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addresses and telephone numbers, 

including toll-free hotline numbers 

where available, of local, State, or 

national victim advocacy or rape crisis 

organizations, and, for persons detained 

solely for civil immigration purposes, 

immigrant services agencies. The 

facility shall enable reasonable 

communication between inmates and 

these organizations and agencies, in as 

confidential a manner as possible. 

(b) The facility shall inform inmates, 

prior to giving them access, of the extent 

to which such communications will be 

monitored and the extent to which 

reports of abuse will be forwarded to 

authorities in accordance with 

mandatory reporting laws. 

(c) The agency shall maintain or 

attempt to enter into memoranda of 

understanding or other agreements with 

community service providers that are 

able to provide inmates with 

confidential emotional support services 

related to sexual abuse. The agency 

shall maintain copies of agreements or 

documentation showing attempts to 

enter into such agreements. 

§ 115.54 Third-party reporting. 

The agency shall establish a method 

to receive third-party reports of sexual 

abuse and sexual harassment and shall 

distribute publicly information on how 

to report sexual abuse and sexual 

harassment on behalf of an inmate. 

Official Response Following an Inmate 

Report 

§ 115.61 Staff and agency reporting duties. 

(a) The agency shall require all staff 

to report immediately and according to 

agency policy any knowledge, 

suspicion, or information regarding an 

incident of sexual abuse or sexual 

harassment that occurred in a facility, 

whether or not it is part of the agency; 

retaliation against inmates or staff who 

reported such an incident; and any staff 

neglect or violation of responsibilities 

that may have contributed to an 

incident or retaliation. 

(b) Apart from reporting to designated 

supervisors or officials, staff shall not 

reveal any information related to a 

sexual abuse report to anyone other than 

to the extent necessary, as specified in 

agency policy, to make treatment, 

investigation, and other security and 

management decisions. 

(c) Unless otherwise precluded by 

Federal, State, or local law, medical and 

mental health practitioners shall be 

required to report sexual abuse pursuant 

to paragraph (a) of this section and to 

inform inmates of the practitioner’s duty 

to report, and the limitations of 

confidentiality, at the initiation of 

services. 

(d) If the alleged victim is under the 

age of 18 or considered a vulnerable 

adult under a State or local vulnerable 

persons statute, the agency shall report 

the allegation to the designated State or 

local services agency under applicable 

mandatory reporting laws. 

(e) The facility shall report all 

allegations of sexual abuse and sexual 

harassment, including third-party and 

anonymous reports, to the facility’s 

designated investigators. 

§ 115.62 Agency protection duties. 

When an agency learns that an inmate 

is subject to a substantial risk of 

imminent sexual abuse, it shall take 

immediate action to protect the inmate. 

§ 115.63 Reporting to other confinement 

facilities. 

(a) Upon receiving an allegation that 

an inmate was sexually abused while 

confined at another facility, the head of 

the facility that received the allegation 

shall notify the head of the facility or 

appropriate office of the agency where 

the alleged abuse occurred. 

(b) Such notification shall be 

provided as soon as possible, but no 

later than 72 hours after receiving the 

allegation. 

(c) The agency shall document that it 

has provided such notification. 

(d) The facility head or agency office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.64 Staff first responder duties. 

(a) Upon learning of an allegation that 

an inmate was sexually abused, the first 

security staff member to respond to the 

report shall be required to: 

(1) Separate the alleged victim and 

abuser; 

(2) Preserve and protect any crime 

scene until appropriate steps can be 

taken to collect any evidence; 

(3) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating; and 

(4) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, ensure that the 

alleged abuser does not take any actions 

that could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating. 

(b) If the first staff responder is not a 

security staff member, the responder 

shall be required to request that the 

alleged victim not take any actions that 

could destroy physical evidence, and 

then notify security staff. 

§ 115.65 Coordinated response. 

The facility shall develop a written 

institutional plan to coordinate actions 

taken in response to an incident of 

sexual abuse, among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 

§ 115.66 Preservation of ability to protect 

inmates from contact with abusers. 

(a) Neither the agency nor any other 

governmental entity responsible for 

collective bargaining on the agency’s 

behalf shall enter into or renew any 

collective bargaining agreement or other 

agreement that limits the agency’s 

ability to remove alleged staff sexual 

abusers from contact with any inmates 

pending the outcome of an investigation 

or of a determination of whether and to 

what extent discipline is warranted. 

(b) Nothing in this standard shall 

restrict the entering into or renewal of 

agreements that govern: 

(1) The conduct of the disciplinary 

process, as long as such agreements are 

not inconsistent with the provisions of 

§§ 115.72 and 115.76; or 

(2) Whether a no-contact assignment 

that is imposed pending the outcome of 

an investigation shall be expunged from 

or retained in the staff member’s 

personnel file following a determination 

that the allegation of sexual abuse is not 

substantiated. 

§ 115.67 Agency protection against 

retaliation. 

(a) The agency shall establish a policy 

to protect all inmates and staff who 

report sexual abuse or sexual 

harassment or cooperate with sexual 

abuse or sexual harassment 

investigations from retaliation by other 

inmates or staff, and shall designate 

which staff members or departments are 

charged with monitoring retaliation. 

(b) The agency shall employ multiple 

protection measures, such as housing 

changes or transfers for inmate victims 

or abusers, removal of alleged staff or 

inmate abusers from contact with 

victims, and emotional support services 

for inmates or staff who fear retaliation 

for reporting sexual abuse or sexual 

harassment or for cooperating with 

investigations. 

(c) For at least 90 days following a 

report of sexual abuse, the agency shall 

monitor the conduct and treatment of 

inmates or staff who reported the sexual 

abuse and of inmates who were reported 

to have suffered sexual abuse to see if 


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there are changes that may suggest 

possible retaliation by inmates or staff, 

and shall act promptly to remedy any 

such retaliation. Items the agency 

should monitor include any inmate 

disciplinary reports, housing, or 

program changes, or negative 

performance reviews or reassignments 

of staff. The agency shall continue such 

monitoring beyond 90 days if the initial 

monitoring indicates a continuing need. 

(d) In the case of inmates, such 

monitoring shall also include periodic 

status checks. 

(e) If any other individual who 

cooperates with an investigation 

expresses a fear of retaliation, the 

agency shall take appropriate measures 

to protect that individual against 

retaliation. 

(f) An agency’s obligation to monitor 

shall terminate if the agency determines 

that the allegation is unfounded. 

§ 115.68 Post-allegation protective 

custody. 

Any use of segregated housing to 

protect an inmate who is alleged to have 

suffered sexual abuse shall be subject to 

the requirements of § 115.43. 

Investigations 

§ 115.71 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse and sexual harassment, it shall do 

so promptly, thoroughly, and 

objectively for all allegations, including 

third-party and anonymous reports. 

(b) Where sexual abuse is alleged, the 

agency shall use investigators who have 

received special training in sexual abuse 

investigations pursuant to § 115.34. 

(c) Investigators shall gather and 

preserve direct and circumstantial 

evidence, including any available 

physical and DNA evidence and any 

available electronic monitoring data; 

shall interview alleged victims, 

suspected perpetrators, and witnesses; 

and shall review prior complaints and 

reports of sexual abuse involving the 

suspected perpetrator. 

(d) When the quality of evidence 

appears to support criminal 

prosecution, the agency shall conduct 

compelled interviews only after 

consulting with prosecutors as to 

whether compelled interviews may be 

an obstacle for subsequent criminal 

prosecution. 

(e) The credibility of an alleged 

victim, suspect, or witness shall be 

assessed on an individual basis and 

shall not be determined by the person’s 

status as inmate or staff. No agency shall 

require an inmate who alleges sexual 

abuse to submit to a polygraph 

examination or other truth-telling 

device as a condition for proceeding 

with the investigation of such an 

allegation. 

(f) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act contributed to the abuse; 

and 

(2) Shall be documented in written 

reports that include a description of the 

physical and testimonial evidence, the 

reasoning behind credibility 

assessments, and investigative facts and 

findings. 

(g) Criminal investigations shall be 

documented in a written report that 

contains a thorough description of 

physical, testimonial, and documentary 

evidence and attaches copies of all 

documentary evidence where feasible. 

(h) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(i) The agency shall retain all written 

reports referenced in paragraphs (f) and 

(g) of this section for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(j) The departure of the alleged abuser 

or victim from the employment or 

control of the facility or agency shall not 

provide a basis for terminating an 

investigation. 

(k) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(l) When outside agencies investigate 

sexual abuse, the facility shall cooperate 

with outside investigators and shall 

endeavor to remain informed about the 

progress of the investigation. 

§ 115.72 Evidentiary standard for 

administrative investigations. 

The agency shall impose no standard 

higher than a preponderance of the 

evidence in determining whether 

allegations of sexual abuse or sexual 

harassment are substantiated. 

§ 115.73 Reporting to inmates. 

(a) Following an investigation into an 

inmate’s allegation that he or she 

suffered sexual abuse in an agency 

facility, the agency shall inform the 

inmate as to whether the allegation has 

been determined to be substantiated, 

unsubstantiated, or unfounded. 

(b) If the agency did not conduct the 

investigation, it shall request the 

relevant information from the 

investigative agency in order to inform 

the inmate. 

(c) Following an inmate’s allegation 

that a staff member has committed 

sexual abuse against the inmate, the 

agency shall subsequently inform the 

inmate (unless the agency has 

determined that the allegation is 

unfounded) whenever: 

(1) The staff member is no longer 

posted within the inmate’s unit; 

(2) The staff member is no longer 

employed at the facility; 

(3) The agency learns that the staff 

member has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(4) The agency learns that the staff 

member has been convicted on a charge 

related to sexual abuse within the 

facility. 

(d) Following an inmate’s allegation 

that he or she has been sexually abused 

by another inmate, the agency shall 

subsequently inform the alleged victim 

whenever: 

(1) The agency learns that the alleged 

abuser has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(2) The agency learns that the alleged 

abuser has been convicted on a charge 

related to sexual abuse within the 

facility. 

(e) All such notifications or attempted 

notifications shall be documented. 

(f) An agency’s obligation to report 

under this standard shall terminate if 

the inmate is released from the agency’s 

custody. 

Discipline 

§ 115.76 Disciplinary sanctions for staff. 

(a) Staff shall be subject to 

disciplinary sanctions up to and 

including termination for violating 

agency sexual abuse or sexual 

harassment policies. 

(b) Termination shall be the 

presumptive disciplinary sanction for 

staff who have engaged in sexual abuse. 

(c) Disciplinary sanctions for 

violations of agency policies relating to 

sexual abuse or sexual harassment 

(other than actually engaging in sexual 

abuse) shall be commensurate with the 

nature and circumstances of the acts 

committed, the staff member’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other staff with similar histories. 

(d) All terminations for violations of 

agency sexual abuse or sexual 

harassment policies, or resignations by 

staff who would have been terminated 

if not for their resignation, shall be 

reported to law enforcement agencies, 

unless the activity was clearly not 

criminal, and to any relevant licensing 

bodies. 

§ 115.77 Corrective action for contractors 

and volunteers. 

(a) Any contractor or volunteer who 

engages in sexual abuse shall be 


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prohibited from contact with inmates 

and shall be reported to law 

enforcement agencies, unless the 

activity was clearly not criminal, and to 

relevant licensing bodies. 

(b) The facility shall take appropriate 

remedial measures, and shall consider 

whether to prohibit further contact with 

inmates, in the case of any other 

violation of agency sexual abuse or 

sexual harassment policies by a 

contractor or volunteer. 

§ 115.78 Disciplinary sanctions for 

inmates. 

(a) Inmates shall be subject to 

disciplinary sanctions pursuant to a 

formal disciplinary process following an 

administrative finding that the inmate 

engaged in inmate-on-inmate sexual 

abuse or following a criminal finding of 

guilt for inmate-on-inmate sexual abuse. 

(b) Sanctions shall be commensurate 

with the nature and circumstances of 

the abuse committed, the inmate’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other inmates with similar histories. 

(c) The disciplinary process shall 

consider whether an inmate’s mental 

disabilities or mental illness contributed 

to his or her behavior when determining 

what type of sanction, if any, should be 

imposed. 

(d) If the facility offers therapy, 

counseling, or other interventions 

designed to address and correct 

underlying reasons or motivations for 

the abuse, the facility shall consider 

whether to require the offending inmate 

to participate in such interventions as a 

condition of access to programming or 

other benefits. 

(e) The agency may discipline an 

inmate for sexual contact with staff only 

upon a finding that the staff member did 

not consent to such contact. 

(f) For the purpose of disciplinary 

action, a report of sexual abuse made in 

good faith based upon a reasonable 

belief that the alleged conduct occurred 

shall not constitute falsely reporting an 

incident or lying, even if an 

investigation does not establish 

evidence sufficient to substantiate the 

allegation. 

(g) An agency may, in its discretion, 

prohibit all sexual activity between 

inmates and may discipline inmates for 

such activity. An agency may not, 

however, deem such activity to 

constitute sexual abuse if it determines 

that the activity is not coerced. 

Medical and Mental Care 

§ 115.81 Medical and mental health 

screenings; history of sexual abuse. 

(a) If the screening pursuant to 

§ 115.41 indicates that a prison inmate 

has experienced prior sexual 

victimization, whether it occurred in an 

institutional setting or in the 

community, staff shall ensure that the 

inmate is offered a follow-up meeting 

with a medical or mental health 

practitioner within 14 days of the intake 

screening. 

(b) If the screening pursuant to 

§ 115.41 indicates that a prison inmate 

has previously perpetrated sexual abuse, 

whether it occurred in an institutional 

setting or in the community, staff shall 

ensure that the inmate is offered a 

follow-up meeting with a mental health 

practitioner within 14 days of the intake 

screening. 

(c) If the screening pursuant to 

§ 115.41 indicates that a jail inmate has 

experienced prior sexual victimization, 

whether it occurred in an institutional 

setting or in the community, staff shall 

ensure that the inmate is offered a 

follow-up meeting with a medical or 

mental health practitioner within 14 

days of the intake screening. 

(d) Any information related to sexual 

victimization or abusiveness that 

occurred in an institutional setting shall 

be strictly limited to medical and 

mental health practitioners and other 

staff, as necessary, to inform treatment 

plans and security and management 

decisions, including housing, bed, work, 

education, and program assignments, or 

as otherwise required by Federal, State, 

or local law. 

(e) Medical and mental health 

practitioners shall obtain informed 

consent from inmates before reporting 

information about prior sexual 

victimization that did not occur in an 

institutional setting, unless the inmate 

is under the age of 18. 

§ 115.82 Access to emergency medical 

and mental health services. 

(a) Inmate victims of sexual abuse 

shall receive timely, unimpeded access 

to emergency medical treatment and 

crisis intervention services, the nature 

and scope of which are determined by 

medical and mental health practitioners 

according to their professional 

judgment. 

(b) If no qualified medical or mental 

health practitioners are on duty at the 

time a report of recent abuse is made, 

security staff first responders shall take 

preliminary steps to protect the victim 

pursuant to § 115.62 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(c) Inmate victims of sexual abuse 

while incarcerated shall be offered 

timely information about and timely 

access to emergency contraception and 

sexually transmitted infections 

prophylaxis, in accordance with 

professionally accepted standards of 

care, where medically appropriate. 

(d) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

§ 115.83 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer medical and 

mental health evaluation and, as 

appropriate, treatment to all inmates 

who have been victimized by sexual 

abuse in any prison, jail, lockup, or 

juvenile facility. 

(b) The evaluation and treatment of 

such victims shall include, as 

appropriate, follow-up services, 

treatment plans, and, when necessary, 

referrals for continued care following 

their transfer to, or placement in, other 

facilities, or their release from custody. 

(c) The facility shall provide such 

victims with medical and mental health 

services consistent with the community 

level of care. 

(d) Inmate victims of sexually abusive 

vaginal penetration while incarcerated 

shall be offered pregnancy tests. 

(e) If pregnancy results from the 

conduct described in paragraph (d) of 

this section, such victims shall receive 

timely and comprehensive information 

about and timely access to all lawful 

pregnancy-related medical services. 

(f) Inmate victims of sexual abuse 

while incarcerated shall be offered tests 

for sexually transmitted infections as 

medically appropriate. 

(g) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

(h) All prisons shall attempt to 

conduct a mental health evaluation of 

all known inmate-on-inmate abusers 

within 60 days of learning of such abuse 

history and offer treatment when 

deemed appropriate by mental health 

practitioners. 

Data Collection and Review 

§ 115.86 Sexual abuse incident reviews. 

(a) The facility shall conduct a sexual 

abuse incident review at the conclusion 

of every sexual abuse investigation, 

including where the allegation has not 

been substantiated, unless the allegation 

has been determined to be unfounded. 

(b) Such review shall ordinarily occur 

within 30 days of the conclusion of the 

investigation. 

(c) The review team shall include 

upper-level management officials, with 


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input from line supervisors, 

investigators, and medical or mental 

health practitioners. 

(d) The review team shall: 

(1) Consider whether the allegation or 

investigation indicates a need to change 

policy or practice to better prevent, 

detect, or respond to sexual abuse; 

(2) Consider whether the incident or 

allegation was motivated by race; 

ethnicity; gender identity; lesbian, gay, 

bisexual, transgender, or intersex 

identification, status, or perceived 

status; or gang affiliation; or was 

motivated or otherwise caused by other 

group dynamics at the facility; 

(3) Examine the area in the facility 

where the incident allegedly occurred to 

assess whether physical barriers in the 

area may enable abuse; 

(4) Assess the adequacy of staffing 

levels in that area during different 

shifts; 

(5) Assess whether monitoring 

technology should be deployed or 

augmented to supplement supervision 

by staff; and 

(6) Prepare a report of its findings, 

including but not necessarily limited to 

determinations made pursuant to 

paragraphs (d)(1) through (d)(5) of this 

section, and any recommendations for 

improvement and submit such report to 

the facility head and PREA compliance 

manager. 

(e) The facility shall implement the 

recommendations for improvement, or 

shall document its reasons for not doing 

so. 

§ 115.87 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. 

(d) The agency shall maintain, review, 

and collect data as needed from all 

available incident-based documents, 

including reports, investigation files, 

and sexual abuse incident reviews. 

(e) The agency also shall obtain 

incident-based and aggregated data from 

every private facility with which it 

contracts for the confinement of its 

inmates. 

(f) Upon request, the agency shall 

provide all such data from the previous 

calendar year to the Department of 

Justice no later than June 30. 

§ 115.88 Data review for corrective action. 

(a) The agency shall review data 

collected and aggregated pursuant to 

§ 115.87 in order to assess and improve 

the effectiveness of its sexual abuse 

prevention, detection, and response 

policies, practices, and training, 

including by: 

(1) Identifying problem areas; 

(2) Taking corrective action on an 

ongoing basis; and 

(3) Preparing an annual report of its 

findings and corrective actions for each 

facility, as well as the agency as a 

whole. 

(b) Such report shall include a 

comparison of the current year’s data 

and corrective actions with those from 

prior years and shall provide an 

assessment of the agency’s progress in 

addressing sexual abuse. 

(c) The agency’s report shall be 

approved by the agency head and made 

readily available to the public through 

its 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 collected pursuant to 

§ 115.87 for at least 10 years after the 

date of the initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.93 Audits of standards. 

The agency shall conduct audits 

pursuant to §§ 115.401 through 115.405. 

Subpart B—Standards for Lockups 

Prevention Planning 

§ 115.111 Zero tolerance of sexual abuse 

and sexual harassment; PREA coordinator. 

(a) An agency shall have a written 

policy mandating zero tolerance toward 

all forms of sexual abuse and sexual 

harassment and outlining the agency’s 

approach to preventing, detecting, and 

responding to such conduct. 

(b) An agency shall employ or 

designate an upper-level, agency-wide 

PREA coordinator with sufficient time 

and authority to develop, implement, 

and oversee agency efforts to comply 

with the PREA standards in all of its 

lockups. 

§ 115.112 Contracting with other entities 

for the confinement of detainees. 

(a) A law enforcement agency that 

contracts for the confinement of its 

lockup detainees in lockups operated by 

private agencies or other entities, 

including other government agencies, 

shall include in any new contract or 

contract renewal the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contract or contract 

renewal shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with the PREA 

standards. 

§ 115.113 Supervision and monitoring. 

(a) For each lockup, the agency shall 

develop and document a staffing plan 

that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect detainees against 

sexual abuse. In calculating adequate 

staffing levels and determining the need 

for video monitoring, agencies shall take 

into consideration; 

(1) The physical layout of each 

lockup; 

(2) The composition of the detainee 

population; 

(3) The prevalence of substantiated 

and unsubstantiated incidents of sexual 

abuse; and 

(4) Any other relevant factors. 

(b) In circumstances where the 

staffing plan is not complied with, the 

lockup shall document and justify all 

deviations from the plan. 

(c) Whenever necessary, but no less 

frequently than once each year, the 

lockup shall assess, determine, and 

document whether adjustments are 

needed to: 

(1) The staffing plan established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; 

(3) The lockup’s deployment of video 

monitoring systems and other 

monitoring technologies; and 

(4) The resources the lockup has 

available to commit to ensure adequate 

staffing levels. 

(d) If vulnerable detainees are 

identified pursuant to the screening 

required by § 115.141, security staff 

shall provide such detainees with 


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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. 

§ 115.114 Juveniles and youthful 

detainees. 

Juveniles and youthful detainees shall 

be held separately from adult detainees. 

§ 115.115 Limits to cross-gender viewing 

and searches. 

(a) The lockup shall not conduct 

cross-gender strip searches or crossgender visual body cavity searches 

(meaning a search of the anal or genital 

opening) except in exigent 

circumstances or when performed by 

medical practitioners. 

(b) The lockup shall document all 

cross-gender strip searches and crossgender visual body cavity searches. 

(c) The lockup shall implement 

policies and procedures that enable 

detainees to shower, perform bodily 

functions, and change clothing without 

nonmedical staff of the opposite gender 

viewing their breasts, buttocks, or 

genitalia, except in exigent 

circumstances or when such viewing is 

incidental to routine cell checks. Such 

policies and procedures shall require 

staff of the opposite gender to announce 

their presence when entering an area 

where detainees are likely to be 

showering, performing bodily functions, 

or changing clothing. 

(d) The lockup shall not search or 

physically examine a transgender or 

intersex detainee for the sole purpose of 

determining the detainee’s genital 

status. If the detainee’s genital status is 

unknown, it may be determined during 

conversations with the detainee, by 

reviewing medical records, or, if 

necessary, by learning that information 

as part of a broader medical 

examination conducted in private by a 

medical practitioner. 

(e) The agency shall train law 

enforcement staff in how to conduct 

cross-gender pat-down searches, and 

searches of transgender and intersex 

detainees, in a professional and 

respectful manner, and in the least 

intrusive manner possible, consistent 

with security needs. 

§ 115.116 Detainees with disabilities and 

detainees who are limited English 

proficient. 

(a) The agency shall take appropriate 

steps to ensure that detainees with 

disabilities (including, for example, 

detainees who are deaf or hard of 

hearing, those who are blind or have 

low vision, or those who have 

intellectual, psychiatric, or speech 

disabilities), have an equal opportunity 

to participate in or benefit from all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment. Such 

steps shall include, when necessary to 

ensure effective communication with 

detainees who are deaf or hard of 

hearing, providing access to interpreters 

who can interpret effectively, 

accurately, and impartially, both 

receptively and expressively, using any 

necessary specialized vocabulary. In 

addition, the agency shall ensure that 

written materials are provided in 

formats or through methods that ensure 

effective communication with detainees 

with disabilities, including detainees 

who have intellectual disabilities, 

limited reading skills, or who are blind 

or have low vision. An agency is not 

required to take actions that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a service, program, or activity, or in 

undue financial and administrative 

burdens, as those terms are used in 

regulations promulgated under title II of 

the Americans With Disabilities Act, 28 

CFR 35.164. 

(b) The agency shall take reasonable 

steps to ensure meaningful access to all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment to 

detainees who are limited English 

proficient, including steps to provide 

interpreters who can interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

(c) The agency shall not rely on 

detainee interpreters, detainee readers, 

or other types of detainee assistants 

except in limited circumstances where 

an extended delay in obtaining an 

effective interpreter could compromise 

the detainee’s safety, the performance of 

first-response duties under § 115.164, or 

the investigation of the detainee’s 

allegations. 

§ 115.117 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote anyone who may have contact 

with detainees, and shall not enlist the 

services of any contractor who may have 

contact with detainees, who— 

(1) Has engaged in sexual abuse in a 

prison, jail, lockup, community 

confinement facility, juvenile facility, or 

other institution (as defined in 42 U.S.C. 

1997); 

(2) Has been convicted of engaging or 

attempting to engage in sexual activity 

in the community facilitated by force, 

overt or implied threats of force, or 

coercion, or if the victim did not 

consent or was unable to consent or 

refuse; or 

(3) Has been civilly or 

administratively adjudicated to have 

engaged in the activity described in 

paragraph (a)(2) of this section. 

(b) The agency shall consider any 

incidents of sexual harassment in 

determining whether to hire or promote 

anyone, or to enlist the services of any 

contractor, who may have contact with 

detainees. 

(c) Before hiring new employees who 

may have contact with detainees, the 

agency shall: 

(1) Perform a criminal background 

records check; and 

(2) Consistent with Federal, State, and 

local law, make its best efforts to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse or any resignation 

during a pending investigation of an 

allegation of sexual abuse. 

(d) The agency shall also perform a 

criminal background records check 

before enlisting the services of any 

contractor who may have contact with 

detainees. 

(e) The agency shall either conduct 

criminal background records checks at 

least every five years of current 

employees and contractors who may 

have contact with detainees or have in 

place a system for otherwise capturing 

such information for current employees. 

(f) The agency shall ask all applicants 

and employees who may have contact 

with detainees directly about previous 

misconduct described in paragraph (a) 

of this section in written applications or 

interviews for hiring or promotions and 

in any interviews or written selfevaluations conducted as part of 

reviews of current employees. The 

agency shall also impose upon 

employees a continuing affirmative duty 

to disclose any such misconduct. 

(g) Material omissions regarding such 

misconduct, or the provision of 

materially false information, shall be 

grounds for termination. 

(h) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

an institutional employer for whom 

such employee has applied to work. 

§ 115.118 Upgrades to facilities and 

technologies. 

(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 


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upon the agency’s ability to protect 

detainees from sexual abuse. 

(b) When installing or updating a 

video monitoring system, electronic 

surveillance system, or other monitoring 

technology, the agency shall consider 

how such technology may enhance the 

agency’s ability to protect detainees 

from sexual abuse. 

Responsive Planning 

§ 115.121 Evidence protocol and forensic 

medical examinations. 

(a) To the extent the agency is 

responsible for investigating allegations 

of sexual abuse in its lockups, the 

agency shall follow a uniform evidence 

protocol that maximizes the potential 

for obtaining usable physical evidence 

for administrative proceedings and 

criminal prosecutions. 

(b) The protocol shall be 

developmentally appropriate for youth 

where applicable, and, as appropriate, 

shall be adapted from or otherwise 

based on the most recent edition of the 

U.S. Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ or similarly 

comprehensive and authoritative 

protocols developed after 2011. As part 

of the training required in § 115.131, 

employees and volunteers who may 

have contact with lockup detainees 

shall receive basic training regarding 

how to detect and respond to victims of 

sexual abuse. 

(c) The agency shall offer all victims 

of sexual abuse access to forensic 

medical examinations whether on-site 

or at an outside facility, without 

financial cost, where evidentiarily or 

medically appropriate. Such 

examinations shall be performed by 

Sexual Assault Forensic Examiners 

(SAFEs) or Sexual Assault Nurse 

Examiners (SANEs) where possible. If 

SAFEs or SANEs cannot be made 

available, the examination can be 

performed by other qualified medical 

practitioners. The agency shall 

document its efforts to provide SAFEs 

or SANEs. 

(d) If the detainee is transported for a 

forensic examination to an outside 

hospital that offers victim advocacy 

services, the detainee shall be permitted 

to use such services to the extent 

available, consistent with security 

needs. 

(e) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall request that the investigating 

agency follow the requirements of 

paragraphs (a) through (d) of this 

section. 

(f) The requirements in paragraphs (a) 

through (e) of this section shall also 

apply to: 

(1) Any State entity outside of the 

agency that is responsible for 

investigating allegations of sexual abuse 

in lockups; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in lockups. 

§ 115.122 Policies to ensure referrals of 

allegations for investigations. 

(a) The agency shall ensure that an 

administrative or criminal investigation 

is completed for all allegations of sexual 

abuse and sexual harassment. 

(b) If another law enforcement agency 

is responsible for conducting 

investigations of allegations of sexual 

abuse or sexual harassment in its 

lockups, the agency shall have in place 

a policy to ensure that such allegations 

are referred for investigation to an 

agency with the legal authority to 

conduct criminal investigations, unless 

the allegation does not involve 

potentially criminal behavior. The 

agency shall publish such policy, 

including a description of 

responsibilities of both the agency and 

the investigating entity, on its Web site, 

or, if it does not have one, make 

available the policy through other 

means. The agency shall document all 

such referrals. 

(c) Any State entity responsible for 

conducting administrative or criminal 

investigations of sexual abuse or sexual 

harassment in lockups shall have in 

place a policy governing the conduct of 

such investigations. 

(d) Any Department of Justice 

component responsible for conducting 

administrative or criminal 

investigations of sexual abuse or sexual 

harassment in lockups shall have in 

place a policy governing the conduct of 

such investigations. 

Training and Education 

§ 115.131 Employee and volunteer 

training. 

(a) The agency shall train all 

employees and volunteers who may 

have contact with lockup detainees to 

be able to fulfill their responsibilities 

under agency sexual abuse prevention, 

detection, and response policies and 

procedures, including training on: 

(1) The agency’s zero-tolerance policy 

and detainees’ right to be free from 

sexual abuse and sexual harassment; 

(2) The dynamics of sexual abuse and 

harassment in confinement settings, 

including which detainees are most 

vulnerable in lockup settings; 

(3) The right of detainees and 

employees to be free from retaliation for 

reporting sexual abuse or harassment; 

(4) How to detect and respond to signs 

of threatened and actual abuse; 

(5) How to communicate effectively 

and professionally with all detainees; 

and 

(6) How to comply with relevant laws 

related to mandatory reporting of sexual 

abuse to outside authorities. 

(b) All current employees and 

volunteers who may have contact with 

lockup detainees shall be trained within 

one year of the effective date of the 

PREA standards, and the agency shall 

provide annual refresher information to 

all such employees and volunteers to 

ensure that they know the agency’s 

current sexual abuse and sexual 

harassment policies and procedures. 

(c) The agency shall document, 

through employee signature or 

electronic verification, that employees 

understand the training they have 

received. 

§ 115.132 Detainee, contractor, and inmate 

worker notification of the agency’s zerotolerance policy. 

(a) During the intake process, 

employees shall notify all detainees of 

the agency’s zero-tolerance policy 

regarding sexual abuse and sexual 

harassment. 

(b) The agency shall ensure that, upon 

entering the lockup, contractors and any 

inmates who work in the lockup are 

informed of the agency’s zero-tolerance 

policy regarding sexual abuse and 

sexual harassment. 

§ 115.133 [Reserved] 

§ 115.134 Specialized training: 

Investigations. 

(a) In addition to the general training 

provided to all employees and 

volunteers pursuant to § 115.131, the 

agency shall ensure that, to the extent 

the agency itself conducts sexual abuse 

investigations, its investigators have 

received training in conducting such 

investigations in confinement settings. 

(b) Specialized training shall include 

techniques for interviewing sexual 

abuse victims, proper use of Miranda 

and Garrity warnings, sexual abuse 

evidence collection in confinement 

settings, and the criteria and evidence 

required to substantiate a case for 

administrative action or prosecution 

referral. 

(c) The agency shall maintain 

documentation that agency investigators 

have completed the required specialized 

training in conducting sexual abuse 

investigations. 

(d) Any State entity or Department of 

Justice component that investigates 


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sexual abuse in lockups shall provide 

such training to their agents and 

investigators who conduct such 

investigations. 

§ 115.135 [Reserved] 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.141 Screening for risk of 

victimization and abusiveness. 

(a) In lockups that are not utilized to 

house detainees overnight, before 

placing any detainees together in a 

holding cell, staff shall consider 

whether, based on the information 

before them, a detainee may be at a high 

risk of being sexually abused and, when 

appropriate, shall take necessary steps 

to mitigate any such danger to the 

detainee. 

(b) In lockups that are utilized to 

house detainees overnight, all detainees 

shall be screened to assess their risk of 

being sexually abused by other 

detainees or sexually abusive toward 

other detainees. 

(c) In lockups described in paragraph 

(b) of this section, staff shall ask the 

detainee about his or her own 

perception of vulnerability. 

(d) The screening process in the 

lockups described in paragraph (b) of 

this section shall also consider, to the 

extent that the information is available, 

the following criteria to screen detainees 

for risk of sexual victimization: 

(1) Whether the detainee has a mental, 

physical, or developmental disability; 

(2) The age of the detainee; 

(3) The physical build and appearance 

of the detainee; 

(4) Whether the detainee has 

previously been incarcerated; and 

(5) The nature of the detainee’s 

alleged offense and criminal history. 

§ 115.142 [Reserved] 

§ 115.143 [Reserved] 

Reporting 

§ 115.151 Detainee reporting. 

(a) The agency shall provide multiple 

ways for detainees to privately report 

sexual abuse and sexual harassment, 

retaliation by other detainees or staff for 

reporting sexual abuse and sexual 

harassment, and staff neglect or 

violation of responsibilities that may 

have contributed to such incidents. 

(b) The agency shall also inform 

detainees of at least one way to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency, and that is able to receive 

and immediately forward detainee 

reports of sexual abuse and sexual 

harassment to agency officials, allowing 

the detainee to remain anonymous upon 

request. 

(c) Staff shall accept reports made 

verbally, in writing, anonymously, and 

from third parties and promptly 

document any verbal reports. 

(d) The agency shall provide a method 

for staff to privately report sexual abuse 

and sexual harassment of detainees. 

§ 115.152 [Reserved] 

§ 115.153 [Reserved] 

§ 115.154 Third-party reporting. 

The agency shall establish a method 

to receive third-party reports of sexual 

abuse and sexual harassment in its 

lockups and shall distribute publicly 

information on how to report sexual 

abuse and sexual harassment on behalf 

of a detainee. 

Official Response Following a Detainee 

Report 

§ 115.161 Staff and agency reporting 

duties. 

(a) The agency shall require all staff 

to report immediately and according to 

agency policy any knowledge, 

suspicion, or information regarding an 

incident of sexual abuse or sexual 

harassment that occurred in an agency 

lockup; retaliation against detainees or 

staff who reported such an incident; and 

any staff neglect or violation of 

responsibilities that may have 

contributed to an incident or retaliation. 

(b) Apart from reporting to designated 

supervisors or officials, staff shall not 

reveal any information related to a 

sexual abuse report to anyone other than 

to the extent necessary, as specified in 

agency policy, to make treatment and 

investigation decisions. 

(c) If the alleged victim is under the 

age of 18 or considered a vulnerable 

adult under a State or local vulnerable 

persons statute, the agency shall report 

the allegation to the designated State or 

local services agency under applicable 

mandatory reporting laws. 

(d) The agency shall report all 

allegations of sexual abuse, including 

third-party and anonymous reports, to 

the agency’s designated investigators. 

§ 115.162 Agency protection duties. 

When an agency learns that a detainee 

is subject to a substantial risk of 

imminent sexual abuse, it shall take 

immediate action to protect the 

detainee. 

§ 115.163 Reporting to other confinement 

facilities. 

(a) Upon receiving an allegation that 

a detainee was sexually abused while 

confined at another facility, the head of 

the facility that received the allegation 

shall notify the head of the facility or 

appropriate office of the agency where 

the alleged abuse occurred. 

(b) Such notification shall be 

provided as soon as possible, but no 

later than 72 hours after receiving the 

allegation. 

(c) The agency shall document that it 

has provided such notification. 

(d) The facility head or agency office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.164 Staff first responder duties. 

(a) Upon learning of an allegation that 

a detainee was sexually abused, the first 

law enforcement staff member to 

respond to the report shall be required 

to: 

(1) Separate the alleged victim and 

abuser; 

(2) Preserve and protect any crime 

scene until appropriate steps can be 

taken to collect any evidence; 

(3) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating; and 

(4) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, ensure that the 

alleged abuser does not take any actions 

that could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating. 

(b) If the first staff responder is not a 

law enforcement staff member, the 

responder shall be required to request 

that the alleged victim not take any 

actions that could destroy physical 

evidence and then notify law 

enforcement staff. 

§ 115.165 Coordinated response. 

(a) The agency shall develop a written 

institutional plan to coordinate actions 

taken in response to a lockup incident 

of sexual abuse, among staff first 

responders, medical and mental health 

practitioners, investigators, and agency 

leadership. 

(b) If a victim is transferred from the 

lockup to a jail, prison, or medical 

facility, the agency shall, as permitted 

by law, inform the receiving facility of 

the incident and the victim’s potential 

need for medical or social services, 

unless the victim requests otherwise. 


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§ 115.166 Preservation of ability to protect 

detainees from contact with abusers. 

(a) Neither the agency nor any other 

governmental entity responsible for 

collective bargaining on the agency’s 

behalf shall enter into or renew any 

collective bargaining agreement or other 

agreement that limits the agency’s 

ability to remove alleged staff sexual 

abusers from contact with detainees 

pending the outcome of an investigation 

or of a determination of whether and to 

what extent discipline is warranted. 

(b) Nothing in this standard shall 

restrict the entering into or renewal of 

agreements that govern: 

(1) The conduct of the disciplinary 

process, as long as such agreements are 

not inconsistent with the provisions of 

§§ 115.172 and 115.176; or 

(2) Whether a no-contact assignment 

that is imposed pending the outcome of 

an investigation shall be expunged from 

or retained in the staff member’s 

personnel file following a determination 

that the allegation of sexual abuse is not 

substantiated. 

§ 115.167 Agency protection against 

retaliation. 

(a) The agency shall establish a policy 

to protect all detainees and staff who 

report sexual abuse or sexual 

harassment or cooperate with sexual 

abuse or sexual harassment 

investigations from retaliation by other 

detainees or staff, and shall designate 

which staff members or departments are 

charged with monitoring retaliation. 

(b) The agency shall employ multiple 

protection measures, such as housing 

changes or transfers for detainee victims 

or abusers, removal of alleged staff or 

detainee abusers from contact with 

victims, and emotional support services 

for staff who fear retaliation for 

reporting sexual abuse or sexual 

harassment or for cooperating with 

investigations. 

(c) The agency shall monitor the 

conduct and treatment of detainees or 

staff who have reported sexual abuse 

and of detainees who were reported to 

have suffered sexual abuse, and shall act 

promptly to remedy any such 

retaliation. 

(d) If any other individual who 

cooperates with an investigation 

expresses a fear of retaliation, the 

agency shall take appropriate measures 

to protect that individual against 

retaliation. 

(e) An agency’s obligation to monitor 

shall terminate if the agency determines 

that the allegation is unfounded. 

§ 115.168 [Reserved] 

Investigations 

§ 115.171 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse and sexual harassment, it shall do 

so promptly, thoroughly, and 

objectively for all allegations, including 

third-party and anonymous reports. 

(b) Where sexual abuse is alleged, the 

agency shall use investigators who have 

received special training in sexual abuse 

investigations pursuant to § 115.134. 

(c) Investigators shall gather and 

preserve direct and circumstantial 

evidence, including any available 

physical and DNA evidence and any 

available electronic monitoring data; 

shall interview alleged victims, 

suspected perpetrators, and witnesses; 

and shall review prior complaints and 

reports of sexual abuse involving the 

suspected perpetrator. 

(d) When the quality of evidence 

appears to support criminal 

prosecution, the agency shall conduct 

compelled interviews only after 

consulting with prosecutors as to 

whether compelled interviews may be 

an obstacle for subsequent criminal 

prosecution. 

(e) The credibility of an alleged 

victim, suspect, or witness shall be 

assessed on an individual basis and 

shall not be determined by the person’s 

status as detainee or staff. No agency 

shall require a detainee who alleges 

sexual abuse to submit to a polygraph 

examination or other truth-telling 

device as a condition for proceeding 

with the investigation of such an 

allegation. 

(f) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act contributed to the abuse; 

and 

(2) Shall be documented in written 

reports that include a description of the 

physical and testimonial evidence, the 

reasoning behind credibility 

assessments, and investigative facts and 

findings. 

(g) Criminal investigations shall be 

documented in a written report that 

contains a thorough description of 

physical, testimonial, and documentary 

evidence and attaches copies of all 

documentary evidence where feasible. 

(h) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(i) The agency shall retain all written 

reports referenced in paragraphs (f) and 

(g) of this section for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(j) The departure of the alleged abuser 

or victim from the employment or 

control of the lockup or agency shall not 

provide a basis for terminating an 

investigation. 

(k) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(l) When outside agencies investigate 

sexual abuse, the agency shall cooperate 

with outside investigators and shall 

endeavor to remain informed about the 

progress of the investigation. 

§ 115.172 Evidentiary standard for 

administrative investigations. 

The agency shall impose no standard 

higher than a preponderance of the 

evidence in determining whether 

allegations of sexual abuse or sexual 

harassment are substantiated. 

§ 115.173 [Reserved] 

Discipline 

§ 115.176 Disciplinary sanctions for staff. 

(a) Staff shall be subject to 

disciplinary sanctions up to and 

including termination for violating 

agency sexual abuse or sexual 

harassment policies. 

(b) Termination shall be the 

presumptive disciplinary sanction for 

staff who have engaged in sexual abuse. 

(c) Disciplinary sanctions for 

violations of agency policies relating to 

sexual abuse or sexual harassment 

(other than actually engaging in sexual 

abuse) shall be commensurate with the 

nature and circumstances of the acts 

committed, the staff member’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other staff with similar histories. 

(d) All terminations for violations of 

agency sexual abuse or sexual 

harassment policies, or resignations by 

staff who would have been terminated 

if not for their resignation, shall be 

reported to law enforcement agencies, 

unless the activity was clearly not 

criminal, and to any relevant licensing 

bodies. 

§ 115.177 Corrective action for contractors 

and volunteers. 

(a) Any contractor or volunteer who 

engages in sexual abuse shall be 

prohibited from contact with detainees 

and shall be reported to law 

enforcement agencies, unless the 

activity was clearly not criminal, and to 

relevant licensing bodies. 

(b) The facility shall take appropriate 

remedial measures, and shall consider 

whether to prohibit further contact with 

detainees, in the case of any other 

violation of agency sexual abuse or 


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sexual harassment policies by a 

contractor or volunteer. 

§ 115.178 Referrals for prosecution for 

detainee-on-detainee sexual abuse. 

(a) When there is probable cause to 

believe that a detainee sexually abused 

another detainee in a lockup, the agency 

shall refer the matter to the appropriate 

prosecuting authority. 

(b) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall inform the investigating entity of 

this policy. 

(c) Any State entity or Department of 

Justice component that is responsible 

for investigating allegations of sexual 

abuse in lockups shall be subject to this 

requirement. 

Medical and Mental Care 

§ 115.181 [Reserved] 

§ 115.182 Access to emergency medical 

services. 

(a) Detainee victims of sexual abuse in 

lockups shall receive timely, 

unimpeded access to emergency 

medical treatment. 

(b) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

§ 115.183 [Reserved] 

Data Collection and Review 

§ 115.186 Sexual abuse incident reviews. 

(a) The lockup shall conduct a sexual 

abuse incident review at the conclusion 

of every sexual abuse investigation, 

including where the allegation has not 

been substantiated, unless the allegation 

has been determined to be unfounded. 

(b) Such review shall ordinarily occur 

within 30 days of the conclusion of the 

investigation. 

(c) The review team shall include 

upper-level management officials, with 

input from line supervisors and 

investigators. 

(d) The review team shall: 

(1) Consider whether the allegation or 

investigation indicates a need to change 

policy or practice to better prevent, 

detect, or respond to sexual abuse; 

(2) Consider whether the incident or 

allegation was motivated by race; 

ethnicity; gender identity; lesbian, gay, 

bisexual, transgender, or intersex 

identification, status, or perceived 

status; or gang affiliation; or was 

motivated or otherwise caused by other 

group dynamics at the lockup; 

(3) Examine the area in the lockup 

where the incident allegedly occurred to 

assess whether physical barriers in the 

area may enable abuse; 

(4) Assess the adequacy of staffing 

levels in that area during different 

shifts; 

(5) Assess whether monitoring 

technology should be deployed or 

augmented to supplement supervision 

by staff; and 

(6) Prepare a report of its findings, 

including but not necessarily limited to 

determinations made pursuant to 

paragraphs (d)(1) through (d)(5) of this 

section, and any recommendations for 

improvement and submit such report to 

the lockup head and agency PREA 

coordinator. 

(e) The lockup shall implement the 

recommendations for improvement, or 

shall document its reasons for not doing 

so. 

§ 115.187 Data collection. 

(a) The agency shall collect accurate, 

uniform data for every allegation of 

sexual abuse at lockups under its direct 

control using a standardized instrument 

and set of definitions. 

(b) The agency shall aggregate the 

incident-based sexual abuse data at least 

annually. 

(c) The incident-based data collected 

shall include, at a minimum, the data 

necessary to answer all questions from 

the most recent version of the Local Jail 

Jurisdictions Survey of Sexual Violence 

conducted by the Department of Justice, 

or any subsequent form developed by 

the Department of Justice and 

designated for lockups. 

(d) The agency shall maintain, review, 

and collect data as needed from all 

available incident-based documents, 

including reports, investigation files, 

and sexual abuse incident reviews. 

(e) The agency also shall obtain 

incident-based and aggregated data from 

any private agency with which it 

contracts for the confinement of its 

detainees. 

(f) Upon request, the agency shall 

provide all such data from the previous 

calendar year to the Department of 

Justice no later than June 30. 

§ 115.188 Data review for corrective 

action. 

(a) The agency shall review data 

collected and aggregated pursuant to 

§ 115.187 in order to assess and improve 

the effectiveness of its sexual abuse 

prevention, detection, and response 

policies, practices, and training, 

including: 

(1) Identifying problem areas; 

(2) Taking corrective action on an 

ongoing basis; and 

(3) Preparing an annual report of its 

findings and corrective actions for each 

lockup, as well as the agency as a 

whole. 

(b) Such report shall include a 

comparison of the current year’s data 

and corrective actions with those from 

prior years and shall provide an 

assessment of the agency’s progress in 

addressing sexual abuse. 

(c) The agency’s report shall be 

approved by the agency head and made 

readily available to the public through 

its 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 collected pursuant to 

§ 115.187 for at least 10 years after the 

date of the initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.193 Audits of standards. 

The agency shall conduct audits 

pursuant to §§ 115.401 through 115.405. 

Audits need not be conducted of 

individual lockups that are not utilized 

to house detainees overnight. 

Subpart C—Standards for Community 

Confinement Facilities 

Prevention Planning 

§ 115.211 Zero tolerance of sexual abuse 

and sexual harassment; PREA coordinator. 

(a) An agency shall have a written 

policy mandating zero tolerance toward 

all forms of sexual abuse and sexual 

harassment and outlining the agency’s 

approach to preventing, detecting, and 

responding to such conduct. 

(b) An agency shall employ or 

designate an upper-level, agency-wide 

PREA coordinator, with sufficient time 

and authority to develop, implement, 

and oversee agency efforts to comply 


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with the PREA standards in all of its 

community confinement facilities. 

§ 115.212 Contracting with other entities 

for the confinement of residents. 

(a) A public agency that contracts for 

the confinement of its residents with 

private agencies or other entities, 

including other government agencies, 

shall include in any new contract or 

contract renewal the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contract or contract 

renewal shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with the PREA 

standards. 

(c) Only in emergency circumstances 

in which all reasonable attempts to find 

a private agency or other entity in 

compliance with the PREA standards 

have failed, may the agency enter into 

a contract with an entity that fails to 

comply with these standards. In such a 

case, the public agency shall document 

its unsuccessful attempts to find an 

entity in compliance with the standards. 

§ 115.213 Supervision and monitoring. 

(a) For each facility, the agency shall 

develop and document a staffing plan 

that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect residents against 

sexual abuse. In calculating adequate 

staffing levels and determining the need 

for video monitoring, agencies shall take 

into consideration: 

(1) The physical layout of each 

facility; 

(2) The composition of the resident 

population; 

(3) The prevalence of substantiated 

and unsubstantiated incidents of sexual 

abuse; and 

(4) Any other relevant factors. 

(b) In circumstances where the 

staffing plan is not complied with, the 

facility shall document and justify all 

deviations from the plan. 

(c) Whenever necessary, but no less 

frequently than once each year, the 

facility shall assess, determine, and 

document whether adjustments are 

needed to: 

(1) The staffing plan established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; 

(3) The facility’s deployment of video 

monitoring systems and other 

monitoring technologies; and 

(4) The resources the facility has 

available to commit to ensure adequate 

staffing levels. 

§ 115.214 [Reserved] 

§ 115.215 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or crossgender visual body cavity searches 

(meaning a search of the anal or genital 

opening) except in exigent 

circumstances or when performed by 

medical practitioners. 

(b) As of August 20, 2015, or August 

21, 2017 for a facility whose rated 

capacity does not exceed 50 residents, 

the facility shall not permit cross-gender 

pat-down searches of female residents, 

absent exigent circumstances. Facilities 

shall not restrict female residents’ 

access to regularly available 

programming or other outside 

opportunities in order to comply with 

this provision. 

(c) The facility shall document all 

cross-gender strip searches and crossgender visual body cavity searches, and 

shall document all cross-gender patdown searches of female residents. 

(d) The facility shall implement 

policies and procedures that enable 

residents to shower, perform bodily 

functions, and change clothing without 

nonmedical staff of the opposite gender 

viewing their breasts, buttocks, or 

genitalia, except in exigent 

circumstances or when such viewing is 

incidental to routine cell checks. Such 

policies and procedures shall require 

staff of the opposite gender to announce 

their presence when entering an area 

where residents are likely to be 

showering, performing bodily functions, 

or changing clothing. 

(e) The facility shall not search or 

physically examine a transgender or 

intersex resident for the sole purpose of 

determining the resident’s genital status. 

If the resident’s genital status is 

unknown, it may be determined during 

conversations with the resident, by 

reviewing medical records, or, if 

necessary, by learning that information 

as part of a broader medical 

examination conducted in private by a 

medical practitioner. 

(f) The agency shall train security staff 

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

transgender and intersex residents, in a 

professional and respectful manner, and 

in the least intrusive manner possible, 

consistent with security needs. 

§ 115.216 Residents with disabilities and 

residents who are limited English proficient. 

(a) The agency shall take appropriate 

steps to ensure that residents with 

disabilities (including, for example, 

residents who are deaf or hard of 

hearing, those who are blind or have 

low vision, or those who have 

intellectual, psychiatric, or speech 

disabilities), have an equal opportunity 

to participate in or benefit from all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment. Such 

steps shall include, when necessary to 

ensure effective communication with 

residents who are deaf or hard of 

hearing, providing access to interpreters 

who can interpret effectively, 

accurately, and impartially, both 

receptively and expressively, using any 

necessary specialized vocabulary. In 

addition, the agency shall ensure that 

written materials are provided in 

formats or through methods that ensure 

effective communication with residents 

with disabilities, including residents 

who have intellectual disabilities, 

limited reading skills, or who are blind 

or have low vision. An agency is not 

required to take actions that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a service, program, or activity, or in 

undue financial and administrative 

burdens, as those terms are used in 

regulations promulgated under title II of 

the Americans With Disabilities Act, 28 

CFR 35.164. 

(b) The agency shall take reasonable 

steps to ensure meaningful access to all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment to 

residents who are limited English 

proficient, including steps to provide 

interpreters who can interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

(c) The agency shall not rely on 

resident interpreters, resident readers, 

or other types of resident assistants 

except in limited circumstances where 

an extended delay in obtaining an 

effective interpreter could compromise 

the resident’s safety, the performance of 

first-response duties under § 115.264, or 

the investigation of the resident’s 

allegations. 

§ 115.217 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote anyone who may have contact 

with residents, and shall not enlist the 

services of any contractor who may have 

contact with residents, who— 

(1) Has engaged in sexual abuse in a 

prison, jail, lockup, community 

confinement facility, juvenile facility, or 

other institution (as defined in 42 U.S.C. 

1997); 

(2) Has been convicted of engaging or 

attempting to engage in sexual activity 

in the community facilitated by force, 

overt or implied threats of force, or 


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coercion, or if the victim did not 

consent or was unable to consent or 

refuse; or 

(3) Has been civilly or 

administratively adjudicated to have 

engaged in the activity described in 

paragraph (a)(2) of this section. 

(b) The agency shall consider any 

incidents of sexual harassment in 

determining whether to hire or promote 

anyone, or to enlist the services of any 

contractor, who may have contact with 

residents. 

(c) Before hiring new employees who 

may have contact with residents, the 

agency shall: 

(1) Perform a criminal background 

records check; and 

(2) Consistent with Federal, State, and 

local law, make its best efforts to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse or any resignation 

during a pending investigation of an 

allegation of sexual abuse. 

(d) The agency shall also perform a 

criminal background records check 

before enlisting the services of any 

contractor who may have contact with 

residents. 

(e) The agency shall either conduct 

criminal background records checks at 

least every five years of current 

employees and contractors who may 

have contact with residents or have in 

place a system for otherwise capturing 

such information for current employees. 

(f) The agency shall also ask all 

applicants and employees who may 

have contact with residents directly 

about previous misconduct described in 

paragraph (a) of this section in written 

applications or interviews for hiring or 

promotions and in any interviews or 

written self-evaluations conducted as 

part of reviews of current employees. 

The agency shall also impose upon 

employees a continuing affirmative duty 

to disclose any such misconduct. 

(g) Material omissions regarding such 

misconduct, or the provision of 

materially false information, shall be 

grounds for termination. 

(h) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

an institutional employer for whom 

such employee has applied to work. 

§ 115.218 Upgrades to facilities and 

technologies. 

(a) When designing or acquiring any 

new facility and in planning any 

substantial expansion or modification of 

existing facilities, the agency shall 

consider the effect of the design, 

acquisition, expansion, or modification 

upon the agency’s ability to protect 

residents from sexual abuse. 

(b) When installing or updating a 

video monitoring system, electronic 

surveillance system, or other monitoring 

technology, the agency shall consider 

how such technology may enhance the 

agency’s ability to protect residents from 

sexual abuse. 

Responsive Planning 

§ 115.221 Evidence protocol and forensic 

medical examinations. 

(a) To the extent the agency is 

responsible for investigating allegations 

of sexual abuse, the agency shall follow 

a uniform evidence protocol that 

maximizes the potential for obtaining 

usable physical evidence for 

administrative proceedings and criminal 

prosecutions. 

(b) The protocol shall be 

developmentally appropriate for youth 

where applicable, and, as appropriate, 

shall be adapted from or otherwise 

based on the most recent edition of the 

U.S. Department of Justice’s Office on 

Violence Against Women publication, 

‘‘A National Protocol for Sexual Assault 

Medical Forensic Examinations, Adults/ 

Adolescents,’’ or similarly 

comprehensive and authoritative 

protocols developed after 2011. 

(c) The agency shall offer all victims 

of sexual abuse access to forensic 

medical examinations whether on-site 

or at an outside facility, without 

financial cost, where evidentiarily or 

medically appropriate. Such 

examinations shall be performed by 

Sexual Assault Forensic Examiners 

(SAFEs) or Sexual Assault Nurse 

Examiners (SANEs) where possible. If 

SAFEs or SANEs cannot be made 

available, the examination can be 

performed by other qualified medical 

practitioners. The agency shall 

document its efforts to provide SAFEs 

or SANEs. 

(d) The agency shall attempt to make 

available to the victim a victim advocate 

from a rape crisis center. If a rape crisis 

center is not available to provide victim 

advocate services, the agency shall make 

available to provide these services a 

qualified staff member from a 

community-based organization or a 

qualified agency staff member. Agencies 

shall document efforts to secure services 

from rape crisis centers. For the purpose 

of this standard, a rape crisis center 

refers to an entity that provides 

intervention and related assistance, 

such as the services specified in 42 

U.S.C. 14043g(b)(2)(C), to victims of 

sexual assault of all ages. The agency 

may utilize a rape crisis center that is 

part of a governmental unit as long as 

the center is not part of the criminal 

justice system (such as a law 

enforcement agency) and offers a 

comparable level of confidentiality as a 

nongovernmental entity that provides 

similar victim services. 

(e) As requested by the victim, the 

victim advocate, qualified agency staff 

member, or qualified community-based 

organization staff member shall 

accompany and support the victim 

through the forensic medical 

examination process and investigatory 

interviews and shall provide emotional 

support, crisis intervention, 

information, and referrals. 

(f) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall request that the investigating 

agency follow the requirements of 

paragraphs (a) through (e) of this 

section. 

(g) The requirements of paragraphs (a) 

through (f) of this section shall also 

apply to: 

(1) Any State entity outside of the 

agency that is responsible for 

investigating allegations of sexual abuse 

in community confinement facilities; 

and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in community confinement facilities. 

(h) For the purposes of this standard, 

a qualified agency staff member or a 

qualified community-based staff 

member shall be an individual who has 

been screened for appropriateness to 

serve in this role and has received 

education concerning sexual assault and 

forensic examination issues in general. 

§ 115.222 Policies to ensure referrals of 

allegations for investigations. 

(a) The agency shall ensure that an 

administrative or criminal investigation 

is completed for all allegations of sexual 

abuse and sexual harassment. 

(b) The agency shall have in place a 

policy to ensure that allegations of 

sexual abuse or sexual harassment are 

referred for investigation to an agency 

with the legal authority to conduct 

criminal investigations, unless the 

allegation does not involve potentially 

criminal behavior. The agency shall 

publish such policy on its Web site or, 

if it does not have one, make the policy 

available through other means. The 

agency shall document all such 

referrals. 

(c) If a separate entity is responsible 

for conducting criminal investigations, 

such publication shall describe the 

responsibilities of both the agency and 

the investigating entity. 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 37217 

(d) Any State entity responsible for 

conducting administrative or criminal 

investigations of sexual abuse or sexual 

harassment in community confinement 

facilities shall have in place a policy 

governing the conduct of such 

investigations. 

(e) Any Department of Justice 

component responsible for conducting 

administrative or criminal 

investigations of sexual abuse or sexual 

harassment in community confinement 

facilities shall have in place a policy 

governing the conduct of such 

investigations. 

Training and Education 

§ 115.231 Employee training. 

(a) The agency shall train all 

employees who may have contact with 

residents on: 

(1) Its zero-tolerance policy for sexual 

abuse and sexual harassment; 

(2) How to fulfill their responsibilities 

under agency sexual abuse and sexual 

harassment prevention, detection, 

reporting, and response policies and 

procedures; 

(3) Residents’ right to be free from 

sexual abuse and sexual harassment; 

(4) The right of residents and 

employees to be free from retaliation for 

reporting sexual abuse and sexual 

harassment; 

(5) The dynamics of sexual abuse and 

sexual harassment in confinement; 

(6) The common reactions of sexual 

abuse and sexual harassment victims; 

(7) How to detect and respond to signs 

of threatened and actual sexual abuse; 

(8) How to avoid inappropriate 

relationships with residents; 

(9) How to communicate effectively 

and professionally with residents, 

including lesbian, gay, bisexual, 

transgender, intersex, or gender 

nonconforming residents; and 

(10) How to comply with relevant 

laws related to mandatory reporting of 

sexual abuse to outside authorities. 

(b) Such training shall be tailored to 

the gender of the residents at the 

employee’s facility. The employee shall 

receive additional training if the 

employee is reassigned from a facility 

that houses only male residents to a 

facility that houses only female 

residents, or vice versa. 

(c) All current employees who have 

not received such training shall be 

trained within one year of the effective 

date of the PREA standards, and the 

agency shall provide each employee 

with refresher training every two years 

to ensure that all employees know the 

agency’s current sexual abuse and 

sexual harassment policies and 

procedures. In years in which an 

employee does not receive refresher 

training, the agency shall provide 

refresher information on current sexual 

abuse and sexual harassment policies. 

(d) The agency shall document, 

through employee signature or 

electronic verification, that employees 

understand the training they have 

received. 

§ 115.232 Volunteer and contractor 

training. 

(a) The agency shall ensure that all 

volunteers and contractors who have 

contact with residents have been trained 

on their responsibilities under the 

agency’s sexual abuse and sexual 

harassment prevention, detection, and 

response policies and procedures. 

(b) The level and type of training 

provided to volunteers and contractors 

shall be based on the services they 

provide and level of contact they have 

with residents, but all volunteers and 

contractors who have contact with 

residents shall be notified of the 

agency’s zero-tolerance policy regarding 

sexual abuse and sexual harassment and 

informed how to report such incidents. 

(c) The agency shall maintain 

documentation confirming that 

volunteers and contractors understand 

the training they have received. 

§ 115.233 Resident education. 

(a) During the intake process, 

residents shall receive information 

explaining the agency’s zero-tolerance 

policy regarding sexual abuse and 

sexual harassment, how to report 

incidents or suspicions of sexual abuse 

or sexual harassment, their rights to be 

free from sexual abuse and sexual 

harassment and to be free from 

retaliation for reporting such incidents, 

and regarding agency policies and 

procedures for responding to such 

incidents. 

(b) The agency shall provide refresher 

information whenever a resident is 

transferred to a different facility. 

(c) The agency shall provide resident 

education in formats accessible to all 

residents, including those who are 

limited English proficient, deaf, visually 

impaired, or otherwise disabled as well 

as residents who have limited reading 

skills. 

(d) The agency shall maintain 

documentation of resident participation 

in these education sessions. 

(e) In addition to providing such 

education, the agency shall ensure that 

key information is continuously and 

readily available or visible to residents 

through posters, resident handbooks, or 

other written formats. 

§ 115.234 Specialized training: 

Investigations. 

(a) In addition to the general training 

provided to all employees pursuant to 

§ 115.231, the agency shall ensure that, 

to the extent the agency itself conducts 

sexual abuse investigations, its 

investigators have received training in 

conducting such investigations in 

confinement settings. 

(b) Specialized training shall include 

techniques for interviewing sexual 

abuse victims, proper use of Miranda 

and Garrity warnings, sexual abuse 

evidence collection in confinement 

settings, and the criteria and evidence 

required to substantiate a case for 

administrative action or prosecution 

referral. 

(c) The agency shall maintain 

documentation that agency investigators 

have completed the required specialized 

training in conducting sexual abuse 

investigations. 

(d) Any State entity or Department of 

Justice component that investigates 

sexual abuse in confinement settings 

shall provide such training to its agents 

and investigators who conduct such 

investigations. 

§ 115.235 Specialized training: Medical 

and mental health care. 

(a) The agency shall ensure that all 

full- and part-time medical and mental 

health care practitioners who work 

regularly in its facilities have been 

trained in: 

(1) How to detect and assess signs of 

sexual abuse and sexual harassment; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to victims of sexual abuse 

and sexual harassment; and 

(4) How and to whom to report 

allegations or suspicions of sexual abuse 

and sexual harassment. 

(b) If medical staff employed by the 

agency conduct forensic examinations, 

such medical staff shall receive the 

appropriate training to conduct such 

examinations. 

(c) The agency shall maintain 

documentation that medical and mental 

health practitioners have received the 

training referenced in this standard 

either from the agency or elsewhere. 

(d) Medical and mental health care 

practitioners shall also receive the 

training mandated for employees under 

§ 115.231 or for contractors and 

volunteers under § 115.232, depending 

upon the practitioner’s status at the 

agency. 


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37218 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.241 Screening for risk of 

victimization and abusiveness. 

(a) All residents shall be assessed 

during an intake screening and upon 

transfer to another facility for their risk 

of being sexually abused by other 

residents or sexually abusive toward 

other residents. 

(b) Intake screening shall ordinarily 

take place within 72 hours of arrival at 

the facility. 

(c) Such assessments shall be 

conducted using an objective screening 

instrument. 

(d) The intake screening shall 

consider, at a minimum, the following 

criteria to assess residents for risk of 

sexual victimization: 

(1) Whether the resident has a mental, 

physical, or developmental disability; 

(2) The age of the resident; 

(3) The physical build of the resident; 

(4) Whether the resident has 

previously been incarcerated; 

(5) Whether the resident’s criminal 

history is exclusively nonviolent; 

(6) Whether the resident has prior 

convictions for sex offenses against an 

adult or child; 

(7) Whether the resident is or is 

perceived to be gay, lesbian, bisexual, 

transgender, intersex, or gender 

nonconforming; 

(8) Whether the resident has 

previously experienced sexual 

victimization; and 

(9) The resident’s own perception of 

vulnerability. 

(e) The intake screening shall 

consider prior acts of sexual abuse, prior 

convictions for violent offenses, and 

history of prior institutional violence or 

sexual abuse, as known to the agency, 

in assessing residents for risk of being 

sexually abusive. 

(f) Within a set time period, not to 

exceed 30 days from the resident’s 

arrival at the facility, the facility will 

reassess the resident’s risk of 

victimization or abusiveness based upon 

any additional, relevant information 

received by the facility since the intake 

screening. 

(g) A resident’s risk level shall be 

reassessed when warranted due to a 

referral, request, incident of sexual 

abuse, or receipt of additional 

information that bears on the resident’s 

risk of sexual victimization or 

abusiveness. 

(h) Residents may not be disciplined 

for refusing to answer, or for not 

disclosing complete information in 

response to, questions asked pursuant to 

paragraphs (d)(1), (d)(7), (d)(8), or (d)(9) 

of this section. 

(i) The agency shall implement 

appropriate controls on the 

dissemination within the facility of 

responses to questions asked pursuant 

to this standard in order to ensure that 

sensitive information is not exploited to 

the resident’s detriment by staff or other 

residents. 

§ 115.242 Use of screening information. 

(a) The agency shall use information 

from the risk screening required by 

§ 115.241 to inform housing, bed, work, 

education, and program assignments 

with the goal of keeping separate those 

residents at high risk of being sexually 

victimized from those at high risk of 

being sexually abusive. 

(b) The agency shall make 

individualized determinations about 

how to ensure the safety of each 

resident. 

(c) In deciding whether to assign a 

transgender or intersex resident to a 

facility for male or female residents, and 

in making other housing and 

programming assignments, the agency 

shall consider on a case-by-case basis 

whether a placement would ensure the 

resident’s health and safety, and 

whether the placement would present 

management or security problems. 

(d) A transgender or intersex 

resident’s own views with respect to his 

or her own safety shall be given serious 

consideration. 

(e) Transgender and intersex residents 

shall be given the opportunity to shower 

separately from other residents. 

(f) The agency shall not place lesbian, 

gay, bisexual, transgender, or intersex 

residents in dedicated facilities, units, 

or wings solely on the basis of such 

identification or status, unless such 

placement is in a dedicated facility unit, 

or wing established in connection with 

a consent decree, legal settlement, or 

legal judgment for the purpose of 

protecting such residents. 

§ 115.243 [Reserved] 

Reporting 

§ 115.251 Resident reporting. 

(a) The agency shall provide multiple 

internal ways for residents to privately 

report sexual abuse and sexual 

harassment, retaliation by other 

residents or staff for reporting sexual 

abuse and sexual harassment, and staff 

neglect or violation of responsibilities 

that may have contributed to such 

incidents. 

(b) The agency shall also inform 

residents of at least one way to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency and that is able to receive 

and immediately forward resident 

reports of sexual abuse and sexual 

harassment to agency officials, allowing 

the resident to remain anonymous upon 

request. 

(c) Staff shall accept reports made 

verbally, in writing, anonymously, and 

from third parties and shall promptly 

document any verbal reports. 

(d) The agency shall provide a method 

for staff to privately report sexual abuse 

and sexual harassment of residents. 

§ 115.252 Exhaustion of administrative 

remedies. 

(a) An agency shall be exempt from 

this standard if it does not have 

administrative procedures to address 

resident grievances regarding sexual 

abuse. 

(b)(1) The agency shall not impose a 

time limit on when a resident may 

submit a grievance regarding an 

allegation of sexual abuse. 

(2) The agency may apply otherwiseapplicable time limits on any portion of 

a grievance that does not allege an 

incident of sexual abuse. 

(3) The agency shall not require a 

resident to use any informal grievance 

process, or to otherwise attempt to 

resolve with staff, an alleged incident of 

sexual abuse. 

(4) Nothing in this section shall 

restrict the agency’s ability to defend 

against a lawsuit filed by a resident on 

the ground that the applicable statute of 

limitations has expired. 

(c) The agency shall ensure that— 

(1) A resident who alleges sexual 

abuse may submit a grievance without 

submitting it to a staff member who is 

the subject of the complaint, and 

(2) Such grievance is not referred to 

a staff member who is the subject of the 

complaint. 

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

agency decision on the merits of any 

portion of a grievance alleging sexual 

abuse within 90 days of the initial filing 

of the grievance. 

(2) Computation of the 90-day time 

period shall not include time consumed 

by residents in preparing any 

administrative appeal. 

(3) The agency may claim an 

extension of time to respond, of up to 

70 days, if the normal time period for 

response is insufficient to make an 

appropriate decision. The agency shall 

notify the resident in writing of any 

such extension and provide a date by 

which a decision will be made. 

(4) At any level of the administrative 

process, including the final level, if the 

resident does not receive a response 

within the time allotted for reply, 

including any properly noticed 

extension, the resident may consider the 

absence of a response to be a denial at 

that level. 


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(e)(1) Third parties, including fellow 

residents, staff members, family 

members, attorneys, and outside 

advocates, shall be permitted to assist 

residents in filing requests for 

administrative remedies relating to 

allegations of sexual abuse, and shall 

also be permitted to file such requests 

on behalf of residents. 

(2) If a third party files such a request 

on behalf of a resident, the facility may 

require as a condition of processing the 

request that the alleged victim agree to 

have the request filed on his or her 

behalf, and may also require the alleged 

victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(3) If the resident declines to have the 

request processed on his or her behalf, 

the agency shall document the 

resident’s decision. 

(f)(1) The agency shall establish 

procedures for the filing of an 

emergency grievance alleging that a 

resident is subject to a substantial risk 

of imminent sexual abuse. 

(2) After receiving an emergency 

grievance alleging a resident is subject 

to a substantial risk of imminent sexual 

abuse, the agency shall immediately 

forward the grievance (or any portion 

thereof that alleges the substantial risk 

of imminent sexual abuse) to a level of 

review at which immediate corrective 

action may be taken, shall provide an 

initial response within 48 hours, and 

shall issue a final agency decision 

within 5 calendar days. The initial 

response and final agency decision shall 

document the agency’s determination 

whether the resident is in substantial 

risk of imminent sexual abuse and the 

action taken in response to the 

emergency grievance. 

(g) The agency may discipline a 

resident for filing a grievance related to 

alleged sexual abuse only where the 

agency demonstrates that the resident 

filed the grievance in bad faith. 

§ 115.253 Resident access to outside 

confidential support services. 

(a) The facility shall provide residents 

with access to outside victim advocates 

for emotional support services related to 

sexual abuse by giving residents mailing 

addresses and telephone numbers, 

including toll-free hotline numbers 

where available, of local, State, or 

national victim advocacy or rape crisis 

organizations, and by enabling 

reasonable communication between 

residents and these organizations, in as 

confidential a manner as possible. 

(b) The facility shall inform residents, 

prior to giving them access, of the extent 

to which such communications will be 

monitored and the extent to which 

reports of abuse will be forwarded to 

authorities in accordance with 

mandatory reporting laws. 

(c) The agency shall maintain or 

attempt to enter into memoranda of 

understanding or other agreements with 

community service providers that are 

able to provide residents with 

confidential emotional support services 

related to sexual abuse. The agency 

shall maintain copies of agreements or 

documentation showing attempts to 

enter into such agreements. 

§ 115.254 Third-party reporting. 

The agency shall establish a method 

to receive third-party reports of sexual 

abuse and sexual harassment and shall 

distribute publicly information on how 

to report sexual abuse and sexual 

harassment on behalf of a resident. 

Official Response Following a Resident 

Report 

§ 115.261 Staff and agency reporting 

duties. 

(a) The agency shall require all staff 

to report immediately and according to 

agency policy any knowledge, 

suspicion, or information regarding an 

incident of sexual abuse or sexual 

harassment that occurred in a facility, 

whether or not it is part of the agency; 

retaliation against residents or staff who 

reported such an incident; and any staff 

neglect or violation of responsibilities 

that may have contributed to an 

incident or retaliation. 

(b) Apart from reporting to designated 

supervisors or officials, staff shall not 

reveal any information related to a 

sexual abuse report to anyone other than 

to the extent necessary, as specified in 

agency policy, to make treatment, 

investigation, and other security and 

management decisions. 

(c) Unless otherwise precluded by 

Federal, State, or local law, medical and 

mental health practitioners shall be 

required to report sexual abuse pursuant 

to paragraph (a) of this section and to 

inform residents of the practitioner’s 

duty to report, and the limitations of 

confidentiality, at the initiation of 

services. 

(d) If the alleged victim is under the 

age of 18 or considered a vulnerable 

adult under a State or local vulnerable 

persons statute, the agency shall report 

the allegation to the designated State or 

local services agency under applicable 

mandatory reporting laws. 

(e) The facility shall report all 

allegations of sexual abuse and sexual 

harassment, including third-party and 

anonymous reports, to the facility’s 

designated investigators. 

§ 115.262 Agency protection duties. 

When an agency learns that a resident 

is subject to a substantial risk of 

imminent sexual abuse, it shall take 

immediate action to protect the resident. 

§ 115.263 Reporting to other confinement 

facilities. 

(a) Upon receiving an allegation that 

a resident was sexually abused while 

confined at another facility, the head of 

the facility that received the allegation 

shall notify the head of the facility or 

appropriate office of the agency where 

the alleged abuse occurred. 

(b) Such notification shall be 

provided as soon as possible, but no 

later than 72 hours after receiving the 

allegation. 

(c) The agency shall document that it 

has provided such notification. 

(d) The facility head or agency office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.264 Staff first responder duties. 

(a) Upon learning of an allegation that 

a resident was sexually abused, the first 

security staff member to respond to the 

report shall be required to: 

(1) Separate the alleged victim and 

abuser; 

(2) Preserve and protect any crime 

scene until appropriate steps can be 

taken to collect any evidence; 

(3) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating; and 

(4) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, ensure that the 

alleged abuser does not take any actions 

that could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating. 

(b) If the first staff responder is not a 

security staff member, the responder 

shall be required to request that the 

alleged victim not take any actions that 

could destroy physical evidence and 

then notify security staff. 

§ 115.265 Coordinated response. 

The facility shall develop a written 

institutional plan to coordinate actions 

taken in response to an incident of 

sexual abuse, among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 


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37220 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

§ 115.266 Preservation of ability to protect 

residents from contact with abusers 

(a) Neither the agency nor any other 

governmental entity responsible for 

collective bargaining on the agency’s 

behalf shall enter into or renew any 

collective bargaining agreement or other 

agreement that limits the agency’s 

ability to remove alleged staff sexual 

abusers from contact with residents 

pending the outcome of an investigation 

or of a determination of whether and to 

what extent discipline is warranted. 

(b) Nothing in this standard shall 

restrict the entering into or renewal of 

agreements that govern: 

(1) The conduct of the disciplinary 

process, as long as such agreements are 

not inconsistent with the provisions of 

§§ 115.272 and 115.276; or 

(2) Whether a no-contact assignment 

that is imposed pending the outcome of 

an investigation shall be expunged from 

or retained in the staff member’s 

personnel file following a determination 

that the allegation of sexual abuse is not 

substantiated. 

§ 115.267 Agency protection against 

retaliation. 

(a) The agency shall establish a policy 

to protect all residents and staff who 

report sexual abuse or sexual 

harassment or cooperate with sexual 

abuse or sexual harassment 

investigations from retaliation by other 

residents or staff and shall designate 

which staff members or departments are 

charged with monitoring retaliation. 

(b) The agency shall employ multiple 

protection measures, such as housing 

changes or transfers for resident victims 

or abusers, removal of alleged staff or 

resident abusers from contact with 

victims, and emotional support services 

for residents or staff who fear retaliation 

for reporting sexual abuse or sexual 

harassment or for cooperating with 

investigations. 

(c) For at least 90 days following a 

report of sexual abuse, the agency shall 

monitor the conduct and treatment of 

residents or staff who reported the 

sexual abuse and of residents who were 

reported to have suffered sexual abuse 

to see if there are changes that may 

suggest possible retaliation by residents 

or staff, and shall act promptly to 

remedy any such retaliation. Items the 

agency should monitor include any 

resident disciplinary reports, housing, 

or program changes, or negative 

performance reviews or reassignments 

of staff. The agency shall continue such 

monitoring beyond 90 days if the initial 

monitoring indicates a continuing need. 

(d) In the case of residents, such 

monitoring shall also include periodic 

status checks. 

(e) If any other individual who 

cooperates with an investigation 

expresses a fear of retaliation, the 

agency shall take appropriate measures 

to protect that individual against 

retaliation. 

(f) An agency’s obligation to monitor 

shall terminate if the agency determines 

that the allegation is unfounded. 

§ 115.268 [Reserved] 

Investigations 

§ 115.271 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse and sexual harassment, it shall do 

so promptly, thoroughly, and 

objectively for all allegations, including 

third-party and anonymous reports. 

(b) Where sexual abuse is alleged, the 

agency shall use investigators who have 

received special training in sexual abuse 

investigations pursuant to § 115.234. 

(c) Investigators shall gather and 

preserve direct and circumstantial 

evidence, including any available 

physical and DNA evidence and any 

available electronic monitoring data; 

shall interview alleged victims, 

suspected perpetrators, and witnesses; 

and shall review prior complaints and 

reports of sexual abuse involving the 

suspected perpetrator. 

(d) When the quality of evidence 

appears to support criminal 

prosecution, the agency shall conduct 

compelled interviews only after 

consulting with prosecutors as to 

whether compelled interviews may be 

an obstacle for subsequent criminal 

prosecution. 

(e) The credibility of an alleged 

victim, suspect, or witness shall be 

assessed on an individual basis and 

shall not be determined by the person’s 

status as resident or staff. No agency 

shall require a resident who alleges 

sexual abuse to submit to a polygraph 

examination or other truth-telling 

device as a condition for proceeding 

with the investigation of such an 

allegation. 

(f) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 

failures to act contributed to the abuse; 

and 

(2) Shall be documented in written 

reports that include a description of the 

physical and testimonial evidence, the 

reasoning behind credibility 

assessments, and investigative facts and 

findings. 

(g) Criminal investigations shall be 

documented in a written report that 

contains a thorough description of 

physical, testimonial, and documentary 

evidence and attaches copies of all 

documentary evidence where feasible. 

(h) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(i) The agency shall retain all written 

reports referenced in paragraphs (f) and 

(g) of this section for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years. 

(j) The departure of the alleged abuser 

or victim from the employment or 

control of the facility or agency shall not 

provide a basis for terminating an 

investigation. 

(k) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(l) When outside agencies investigate 

sexual abuse, the facility shall cooperate 

with outside investigators and shall 

endeavor to remain informed about the 

progress of the investigation. 

§ 115.272 Evidentiary standard for 

administrative investigations. 

The agency shall impose no standard 

higher than a preponderance of the 

evidence in determining whether 

allegations of sexual abuse or sexual 

harassment are substantiated. 

§ 115.273 Reporting to residents. 

(a) Following an investigation into a 

resident’s allegation of sexual abuse 

suffered in an agency facility, the 

agency shall inform the resident as to 

whether the allegation has been 

determined to be substantiated, 

unsubstantiated, or unfounded. 

(b) If the agency did not conduct the 

investigation, it shall request the 

relevant information from the 

investigative agency in order to inform 

the resident. 

(c) Following a resident’s allegation 

that a staff member has committed 

sexual abuse against the resident, the 

agency shall subsequently inform the 

resident (unless the agency has 

determined that the allegation is 

unfounded) whenever: 

(1) The staff member is no longer 

posted within the resident’s unit; 

(2) The staff member is no longer 

employed at the facility; 

(3) The agency learns that the staff 

member has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(4) The agency learns that the staff 

member has been convicted on a charge 

related to sexual abuse within the 

facility. 

(d) Following a resident’s allegation 

that he or she has been sexually abused 

by another resident, the agency shall 

subsequently inform the alleged victim 

whenever: 


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Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 37221 

(1) The agency learns that the alleged 

abuser has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(2) The agency learns that the alleged 

abuser has been convicted on a charge 

related to sexual abuse within the 

facility. 

(e) All such notifications or attempted 

notifications shall be documented. 

(f) An agency’s obligation to report 

under this standard shall terminate if 

the resident is released from the 

agency’s custody. 

Discipline 

§ 115.276 Disciplinary sanctions for staff. 

(a) Staff shall be subject to 

disciplinary sanctions up to and 

including termination for violating 

agency sexual abuse or sexual 

harassment policies. 

(b) Termination shall be the 

presumptive disciplinary sanction for 

staff who have engaged in sexual abuse. 

(c) Disciplinary sanctions for 

violations of agency policies relating to 

sexual abuse or sexual harassment 

(other than actually engaging in sexual 

abuse) shall be commensurate with the 

nature and circumstances of the acts 

committed, the staff member’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other staff with similar histories. 

(d) All terminations for violations of 

agency sexual abuse or sexual 

harassment policies, or resignations by 

staff who would have been terminated 

if not for their resignation, shall be 

reported to law enforcement agencies, 

unless the activity was clearly not 

criminal, and to any relevant licensing 

bodies. 

§ 115.277 Corrective action for contractors 

and volunteers. 

(a) Any contractor or volunteer who 

engages in sexual abuse shall be 

prohibited from contact with residents 

and shall be reported to law 

enforcement agencies, unless the 

activity was clearly not criminal, and to 

relevant licensing bodies. 

(b) The facility shall take appropriate 

remedial measures, and shall consider 

whether to prohibit further contact with 

residents, in the case of any other 

violation of agency sexual abuse or 

sexual harassment policies by a 

contractor or volunteer. 

§ 115.278 Disciplinary sanctions for 

residents. 

(a) Residents shall be subject to 

disciplinary sanctions pursuant to a 

formal disciplinary process following an 

administrative finding that the resident 

engaged in resident-on-resident sexual 

abuse or following a criminal finding of 

guilt for resident-on-resident sexual 

abuse. 

(b) Sanctions shall be commensurate 

with the nature and circumstances of 

the abuse committed, the resident’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other residents with similar histories. 

(c) The disciplinary process shall 

consider whether a resident’s mental 

disabilities or mental illness contributed 

to his or her behavior when determining 

what type of sanction, if any, should be 

imposed. 

(d) If the facility offers therapy, 

counseling, or other interventions 

designed to address and correct 

underlying reasons or motivations for 

the abuse, the facility shall consider 

whether to require the offending 

resident to participate in such 

interventions as a condition of access to 

programming or other benefits. 

(e) The agency may discipline a 

resident for sexual contact with staff 

only upon a finding that the staff 

member did not consent to such contact. 

(f) For the purpose of disciplinary 

action, a report of sexual abuse made in 

good faith based upon a reasonable 

belief that the alleged conduct occurred 

shall not constitute falsely reporting an 

incident or lying, even if an 

investigation does not establish 

evidence sufficient to substantiate the 

allegation. 

(g) An agency may, in its discretion, 

prohibit all sexual activity between 

residents and may discipline residents 

for such activity. An agency may not, 

however, deem such activity to 

constitute sexual abuse if it determines 

that the activity is not coerced. 

Medical and Mental Care 

§ 115.281 [Reserved] 

§ 115.282 Access to emergency medical 

and mental health services. 

(a) Resident victims of sexual abuse 

shall receive timely, unimpeded access 

to emergency medical treatment and 

crisis intervention services, the nature 

and scope of which are determined by 

medical and mental health practitioners 

according to their professional 

judgment. 

(b) If no qualified medical or mental 

health practitioners are on duty at the 

time a report of recent abuse is made, 

security staff first responders shall take 

preliminary steps to protect the victim 

pursuant to § 115.262 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(c) Resident victims of sexual abuse 

while incarcerated shall be offered 

timely information about and timely 

access to emergency contraception and 

sexually transmitted infections 

prophylaxis, in accordance with 

professionally accepted standards of 

care, where medically appropriate. 

(d) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

§ 115.283 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer medical and 

mental health evaluation and, as 

appropriate, treatment to all residents 

who have been victimized by sexual 

abuse in any prison, jail, lockup, or 

juvenile facility. 

(b) The evaluation and treatment of 

such victims shall include, as 

appropriate, follow-up services, 

treatment plans, and, when necessary, 

referrals for continued care following 

their transfer to, or placement in, other 

facilities, or their release from custody. 

(c) The facility shall provide such 

victims with medical and mental health 

services consistent with the community 

level of care. 

(d) Resident victims of sexually 

abusive vaginal penetration while 

incarcerated shall be offered pregnancy 

tests. 

(e) If pregnancy results from conduct 

specified in paragraph (d) of this 

section, such victims shall receive 

timely and comprehensive information 

about and timely access to all lawful 

pregnancy-related medical services. 

(f) Resident victims of sexual abuse 

while incarcerated shall be offered tests 

for sexually transmitted infections as 

medically appropriate. 

(g) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

(h) The facility shall attempt to 

conduct a mental health evaluation of 

all known resident-on-resident abusers 

within 60 days of learning of such abuse 

history and offer treatment when 

deemed appropriate by mental health 

practitioners. 

Data Collection and Review 

§ 115.286 Sexual abuse incident reviews. 

(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. 


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(b) Such review shall ordinarily occur 

within 30 days of the conclusion of the 

investigation. 

(c) The review team shall include 

upper-level management officials, with 

input from line supervisors, 

investigators, and medical or mental 

health practitioners. 

(d) The review team shall: 

(1) Consider whether the allegation or 

investigation indicates a need to change 

policy or practice to better prevent, 

detect, or respond to sexual abuse; 

(2) Consider whether the incident or 

allegation was motivated by race; 

ethnicity; gender identity; lesbian, gay, 

bisexual, transgender, or intersex 

identification, status, or perceived 

status; or gang affiliation; or was 

motivated or otherwise caused by other 

group dynamics at the facility; 

(3) Examine the area in the facility 

where the incident allegedly occurred to 

assess whether physical barriers in the 

area may enable abuse; 

(4) Assess the adequacy of staffing 

levels in that area during different 

shifts; 

(5) Assess whether monitoring 

technology should be deployed or 

augmented to supplement supervision 

by staff; and 

(6) Prepare a report of its findings, 

including but not necessarily limited to 

determinations made pursuant to 

paragraphs (d)(1) through (d)(5) of this 

section, and any recommendations for 

improvement, and submit such report to 

the facility head and PREA compliance 

manager. 

(e) The facility shall implement the 

recommendations for improvement, or 

shall document its reasons for not doing 

so. 

§ 115.287 Data collection. 

(a) The agency shall collect accurate, 

uniform data for every allegation of 

sexual abuse at facilities under its direct 

control using a standardized instrument 

and set of definitions. 

(b) The agency shall aggregate the 

incident-based sexual abuse data at least 

annually. 

(c) The incident-based data collected 

shall include, at a minimum, the data 

necessary to answer all questions from 

the most recent version of the Survey of 

Sexual Violence conducted by the 

Department of Justice. 

(d) The agency shall maintain, review, 

and collect data as needed from all 

available incident-based documents 

including reports, investigation files, 

and sexual abuse incident reviews. 

(e) The agency also shall obtain 

incident-based and aggregated data from 

every private facility with which it 

contracts for the confinement of its 

residents. 

(f) Upon request, the agency shall 

provide all such data from the previous 

calendar year to the Department of 

Justice no later than June 30. 

§ 115.288 Data review for corrective 

action. 

(a) The agency shall review data 

collected and aggregated pursuant to 

§ 115.287 in order to assess and improve 

the effectiveness of its sexual abuse 

prevention, detection, and response 

policies, practices, and training, 

including: 

(1) Identifying problem areas; 

(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. 

§ 115.289 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 collected pursuant to 

§ 115.287 for at least 10 years after the 

date of the initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.293 Audits of standards. 

The agency shall conduct audits 

pursuant to §§ 115.401 through 115.405. 

Subpart D—Standards for Juvenile 

Facilities 

Prevention Planning 

§ 115.311 Zero tolerance of sexual abuse 

and sexual harassment; PREA coordinator. 

(a) An agency shall have a written 

policy mandating zero tolerance toward 

all forms of sexual abuse and sexual 

harassment and outlining the agency’s 

approach to preventing, detecting, and 

responding to such conduct. 

(b) An agency shall employ or 

designate an upper-level, agency-wide 

PREA coordinator with sufficient time 

and authority to develop, implement, 

and oversee agency efforts to comply 

with the PREA standards in all of its 

facilities. 

(c) Where an agency operates more 

than one facility, each facility shall 

designate a PREA compliance manager 

with sufficient time and authority to 

coordinate the facility’s efforts to 

comply with the PREA standards. 

§ 115.312 Contracting with other entities 

for the confinement of residents. 

(a) A public agency that contracts for 

the confinement of its residents with 

private agencies or other entities, 

including other government agencies, 

shall include in any new contract or 

contract renewal the entity’s obligation 

to adopt and comply with the PREA 

standards. 

(b) Any new contract or contract 

renewal shall provide for agency 

contract monitoring to ensure that the 

contractor is complying with the PREA 

standards. 

§ 115.313 Supervision and monitoring. 

(a) The agency shall ensure that each 

facility it operates shall develop, 

implement, and document a staffing 

plan that provides for adequate levels of 

staffing, and, where applicable, video 

monitoring, to protect residents against 

sexual abuse. In calculating adequate 

staffing levels and determining the need 

for video monitoring, facilities shall take 

into consideration: 

(1) Generally accepted juvenile 

detention and correctional/secure 

residential practices; 

(2) Any judicial findings of 

inadequacy; 

(3) Any findings of inadequacy from 

Federal investigative agencies; 

(4) Any findings of inadequacy from 

internal or external oversight bodies; 

(5) All components of the facility’s 

physical plant (including ‘‘blind spots’’ 

or areas where staff or residents may be 

isolated); 

(6) The composition of the resident 

population; 


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(7) The number and placement of 

supervisory staff; 

(8) Institution programs occurring on 

a particular shift; 

(9) Any applicable State or local laws, 

regulations, or standards; 

(10) The prevalence of substantiated 

and unsubstantiated incidents of sexual 

abuse; and 

(11) Any other relevant factors. 

(b) The agency shall comply with the 

staffing plan except during limited and 

discrete exigent circumstances, and 

shall fully document deviations from 

the plan during such circumstances. 

(c) Each secure juvenile facility shall 

maintain staff ratios of a minimum of 

1:8 during resident waking hours and 

1:16 during resident sleeping hours, 

except during limited and discrete 

exigent circumstances, which shall be 

fully documented. Only security staff 

shall be included in these ratios. Any 

facility that, as of the date of publication 

of this final rule, is not already obligated 

by law, regulation, or judicial consent 

decree to maintain the staffing ratios set 

forth in this paragraph shall have until 

October 1, 2017, to achieve compliance. 

(d) Whenever necessary, but no less 

frequently than once each year, for each 

facility the agency operates, in 

consultation with the PREA coordinator 

required by § 115.311, the agency shall 

assess, determine, and document 

whether adjustments are needed to: 

(1) The staffing plan established 

pursuant to paragraph (a) of this section; 

(2) Prevailing staffing patterns; 

(3) The facility’s deployment of video 

monitoring systems and other 

monitoring technologies; and 

(4) The resources the facility has 

available to commit to ensure adherence 

to the staffing plan. 

(e) Each secure facility shall 

implement a policy and practice of 

having intermediate-level or higher 

level supervisors conduct and document 

unannounced rounds to identify and 

deter staff sexual abuse and sexual 

harassment. Such policy and practice 

shall be implemented for night shifts as 

well as day shifts. Each secure facility 

shall have a policy to prohibit staff from 

alerting other staff members that these 

supervisory rounds are occurring, 

unless such announcement is related to 

the legitimate operational functions of 

the facility. 

§ 115.314 [Reserved] 

§ 115.315 Limits to cross-gender viewing 

and searches. 

(a) The facility shall not conduct 

cross-gender strip searches or crossgender visual body cavity searches 

(meaning a search of the anal or genital 

opening) except in exigent 

circumstances or when performed by 

medical practitioners. 

(b) The agency shall not conduct 

cross-gender pat-down searches except 

in exigent circumstances. 

(c) The facility shall document and 

justify all cross-gender strip searches, 

cross-gender visual body cavity 

searches, and cross-gender pat-down 

searches. 

(d) The facility shall implement 

policies and procedures that enable 

residents to shower, perform bodily 

functions, and change clothing without 

nonmedical staff of the opposite gender 

viewing their breasts, buttocks, or 

genitalia, except in exigent 

circumstances or when such viewing is 

incidental to routine cell checks. Such 

policies and procedures shall require 

staff of the opposite gender to announce 

their presence when entering a resident 

housing unit. In facilities (such as group 

homes) that do not contain discrete 

housing units, staff of the opposite 

gender shall be required to announce 

their presence when entering an area 

where residents are likely to be 

showering, performing bodily functions, 

or changing clothing. 

(e) The facility shall not search or 

physically examine a transgender or 

intersex resident for the sole purpose of 

determining the resident’s genital status. 

If the resident’s genital status is 

unknown, it may be determined during 

conversations with the resident, by 

reviewing medical records, or, if 

necessary, by learning that information 

as part of a broader medical 

examination conducted in private by a 

medical practitioner. 

(f) The agency shall train security staff 

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

transgender and intersex residents, in a 

professional and respectful manner, and 

in the least intrusive manner possible, 

consistent with security needs. 

§ 115.316 Residents with disabilities and 

residents who are limited English proficient. 

(a) The agency shall take appropriate 

steps to ensure that residents with 

disabilities (including, for example, 

residents who are deaf or hard of 

hearing, those who are blind or have 

low vision, or those who have 

intellectual, psychiatric, or speech 

disabilities), have an equal opportunity 

to participate in or benefit from all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment. Such 

steps shall include, when necessary to 

ensure effective communication with 

residents who are deaf or hard of 

hearing, providing access to interpreters 

who can interpret effectively, 

accurately, and impartially, both 

receptively and expressively, using any 

necessary specialized vocabulary. In 

addition, the agency shall ensure that 

written materials are provided in 

formats or through methods that ensure 

effective communication with residents 

with disabilities, including residents 

who have intellectual disabilities, 

limited reading skills, or who are blind 

or have low vision. An agency is not 

required to take actions that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a service, program, or activity, or in 

undue financial and administrative 

burdens, as those terms are used in 

regulations promulgated under title II of 

the Americans With Disabilities Act, 28 

CFR 35.164. 

(b) The agency shall take reasonable 

steps to ensure meaningful access to all 

aspects of the agency’s efforts to 

prevent, detect, and respond to sexual 

abuse and sexual harassment to 

residents who are limited English 

proficient, including steps to provide 

interpreters who can interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

(c) The agency shall not rely on 

resident interpreters, resident readers, 

or other types of resident assistants 

except in limited circumstances where 

an extended delay in obtaining an 

effective interpreter could compromise 

the resident’s safety, the performance of 

first-response duties under § 115.364, or 

the investigation of the resident’s 

allegations. 

§ 115.317 Hiring and promotion decisions. 

(a) The agency shall not hire or 

promote anyone who may have contact 

with residents, and shall not enlist the 

services of any contractor who may have 

contact with residents, who— 

(1) Has engaged in sexual abuse in a 

prison, jail, lockup, community 

confinement facility, juvenile facility, or 

other institution (as defined in 42 U.S.C. 

1997); 

(2) Has been convicted of engaging or 

attempting to engage in sexual activity 

in the community facilitated by force, 

overt or implied threats of force, or 

coercion, or if the victim did not 

consent or was unable to consent or 

refuse; or 

(3) Has been civilly or 

administratively adjudicated to have 

engaged in the activity described in 

paragraph (a)(2) of this section. 

(b) The agency shall consider any 

incidents of sexual harassment in 

determining whether to hire or promote 

anyone, or to enlist the services of any 


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contractor, who may have contact with 

residents. 

(c) Before hiring new employees who 

may have contact with residents, the 

agency shall: 

(1) Perform a criminal background 

records check; 

(2) Consult any child abuse registry 

maintained by the State or locality in 

which the employee would work; and 

(3) Consistent with Federal, State, and 

local law, make its best efforts to contact 

all prior institutional employers for 

information on substantiated allegations 

of sexual abuse or any resignation 

during a pending investigation of an 

allegation of sexual abuse. 

(d) The agency shall also perform a 

criminal background records check, and 

consult applicable child abuse 

registries, before enlisting the services of 

any contractor who may have contact 

with residents. 

(e) The agency shall either conduct 

criminal background records checks at 

least every five years of current 

employees and contractors who may 

have contact with residents or have in 

place a system for otherwise capturing 

such information for current employees. 

(f) The agency shall also ask all 

applicants and employees who may 

have contact with residents directly 

about previous misconduct described in 

paragraph (a) of this section in written 

applications or interviews for hiring or 

promotions and in any interviews or 

written self-evaluations conducted as 

part of reviews of current employees. 

The agency shall also impose upon 

employees a continuing affirmative duty 

to disclose any such misconduct. 

(g) Material omissions regarding such 

misconduct, or the provision of 

materially false information, shall be 

grounds for termination. 

(h) Unless prohibited by law, the 

agency shall provide information on 

substantiated allegations of sexual abuse 

or sexual harassment involving a former 

employee upon receiving a request from 

an institutional employer for whom 

such employee has applied to work. 

§ 115.318 Upgrades to facilities and 

technologies. 

(a) When designing or acquiring any 

new facility and in planning any 

substantial expansion or modification of 

existing facilities, the agency shall 

consider the effect of the design, 

acquisition, expansion, or modification 

upon the agency’s ability to protect 

residents from sexual abuse. 

(b) When installing or updating a 

video monitoring system, electronic 

surveillance system, or other monitoring 

technology, the agency shall consider 

how such technology may enhance the 

agency’s ability to protect residents from 

sexual abuse. 

Responsive Planning 

§ 115.321 Evidence protocol and forensic 

medical examinations. 

(a) To the extent the agency is 

responsible for investigating allegations 

of sexual abuse, the agency shall follow 

a uniform evidence protocol that 

maximizes the potential for obtaining 

usable physical evidence for 

administrative proceedings and criminal 

prosecutions. 

(b) The protocol shall be 

developmentally appropriate for youth 

and, as appropriate, shall be adapted 

from or otherwise based on the most 

recent edition of the U.S. Department of 

Justice’s Office on Violence Against 

Women publication, ‘‘A National 

Protocol for Sexual Assault Medical 

Forensic Examinations, Adults/ 

Adolescents,’’ or similarly 

comprehensive and authoritative 

protocols developed after 2011. 

(c) The agency shall offer all residents 

who experience sexual abuse access to 

forensic medical examinations whether 

on-site or at an outside facility, without 

financial cost, where evidentiarily or 

medically appropriate. Such 

examinations shall be performed by 

Sexual Assault Forensic Examiners 

(SAFEs) or Sexual Assault Nurse 

Examiners (SANEs) where possible. If 

SAFEs or SANEs cannot be made 

available, the examination can be 

performed by other qualified medical 

practitioners. The agency shall 

document its efforts to provide SAFEs 

or SANEs. 

(d) The agency shall attempt to make 

available to the victim a victim advocate 

from a rape crisis center. If a rape crisis 

center is not available to provide victim 

advocate services, the agency shall make 

available to provide these services a 

qualified staff member from a 

community-based organization or a 

qualified agency staff member. Agencies 

shall document efforts to secure services 

from rape crisis centers. For the purpose 

of this standard, a rape crisis center 

refers to an entity that provides 

intervention and related assistance, 

such as the services specified in 42 

U.S.C. 14043g(b)(2)(C), to victims of 

sexual assault of all ages. The agency 

may utilize a rape crisis center that is 

part of a governmental unit as long as 

the center is not part of the criminal 

justice system (such as a law 

enforcement agency) and offers a 

comparable level of confidentiality as a 

nongovernmental entity that provides 

similar victim services. 

(e) As requested by the victim, the 

victim advocate, qualified agency staff 

member, or qualified community-based 

organization staff member shall 

accompany and support the victim 

through the forensic medical 

examination process and investigatory 

interviews and shall provide emotional 

support, crisis intervention, 

information, and referrals. 

(f) To the extent the agency itself is 

not responsible for investigating 

allegations of sexual abuse, the agency 

shall request that the investigating 

agency follow the requirements of 

paragraphs (a) through (e) of this 

section. 

(g) The requirements of paragraphs (a) 

through (f) of this section shall also 

apply to: 

(1) Any State entity outside of the 

agency that is responsible for 

investigating allegations of sexual abuse 

in juvenile facilities; and 

(2) Any Department of Justice 

component that is responsible for 

investigating allegations of sexual abuse 

in juvenile facilities. 

(h) For the purposes of this standard, 

a qualified agency staff member or a 

qualified community-based staff 

member shall be an individual who has 

been screened for appropriateness to 

serve in this role and has received 

education concerning sexual assault and 

forensic examination issues in general. 

§ 115.322 Policies to ensure referrals of 

allegations for investigations. 

(a) The agency shall ensure that an 

administrative or criminal investigation 

is completed for all allegations of sexual 

abuse and sexual harassment. 

(b) The agency shall have in place a 

policy to ensure that allegations of 

sexual abuse or sexual harassment are 

referred for investigation to an agency 

with the legal authority to conduct 

criminal investigations, unless the 

allegation does not involve potentially 

criminal behavior. The agency shall 

publish such policy on its Web site or, 

if it does not have one, make the policy 

available through other means. The 

agency shall document all such 

referrals. 

(c) If a separate entity is responsible 

for conducting criminal investigations, 

such publication shall describe the 

responsibilities of both the agency and 

the investigating entity. 

(d) Any State entity responsible for 

conducting administrative or criminal 

investigations of sexual abuse or sexual 

harassment in juvenile facilities shall 

have in place a policy governing the 

conduct of such investigations. 

(e) Any Department of Justice 

component responsible for conducting 

administrative or criminal 

investigations of sexual abuse or sexual 


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harassment in juvenile facilities shall 

have in place a policy governing the 

conduct of such investigations. 

Training and Education 

§ 115.331 Employee training. 

(a) The agency shall train all 

employees who may have contact with 

residents on: 

(1) Its zero-tolerance policy for sexual 

abuse and sexual harassment; 

(2) How to fulfill their responsibilities 

under agency sexual abuse and sexual 

harassment prevention, detection, 

reporting, and response policies and 

procedures; 

(3) Residents’ right to be free from 

sexual abuse and sexual harassment; 

(4) The right of residents and 

employees to be free from retaliation for 

reporting sexual abuse and sexual 

harassment; 

(5) The dynamics of sexual abuse and 

sexual harassment in juvenile facilities; 

(6) The common reactions of juvenile 

victims of sexual abuse and sexual 

harassment; 

(7) How to detect and respond to signs 

of threatened and actual sexual abuse 

and how to distinguish between 

consensual sexual contact and sexual 

abuse between residents; 

(8) How to avoid inappropriate 

relationships with residents; 

(9) How to communicate effectively 

and professionally with residents, 

including lesbian, gay, bisexual, 

transgender, intersex, or gender 

nonconforming residents; and 

(10) How to comply with relevant 

laws related to mandatory reporting of 

sexual abuse to outside authorities; 

(11) Relevant laws regarding the 

applicable age of consent. 

(b) Such training shall be tailored to 

the unique needs and attributes of 

residents of juvenile facilities and to the 

gender of the residents at the 

employee’s facility. The employee shall 

receive additional training if the 

employee is reassigned from a facility 

that houses only male residents to a 

facility that houses only female 

residents, or vice versa. 

(c) All current employees who have 

not received such training shall be 

trained within one year of the effective 

date of the PREA standards, and the 

agency shall provide each employee 

with refresher training every two years 

to ensure that all employees know the 

agency’s current sexual abuse and 

sexual harassment policies and 

procedures. In years in which an 

employee does not receive refresher 

training, the agency shall provide 

refresher information on current sexual 

abuse and sexual harassment policies. 

(d) The agency shall document, 

through employee signature or 

electronic verification, that employees 

understand the training they have 

received. 

§ 115.332 Volunteer and contractor 

training. 

(a) The agency shall ensure that all 

volunteers and contractors who have 

contact with residents have been trained 

on their responsibilities under the 

agency’s sexual abuse and sexual 

harassment prevention, detection, and 

response policies and procedures. 

(b) The level and type of training 

provided to volunteers and contractors 

shall be based on the services they 

provide and level of contact they have 

with residents, but all volunteers and 

contractors who have contact with 

residents shall be notified of the 

agency’s zero-tolerance policy regarding 

sexual abuse and sexual harassment and 

informed how to report such incidents. 

(c) The agency shall maintain 

documentation confirming that 

volunteers and contractors understand 

the training they have received. 

§ 115.333 Resident education. 

(a) During the intake process, 

residents shall receive information 

explaining, in an age appropriate 

fashion, the agency’s zero tolerance 

policy regarding sexual abuse and 

sexual harassment and how to report 

incidents or suspicions of sexual abuse 

or sexual harassment. 

(b) Within 10 days of intake, the 

agency shall provide comprehensive 

age-appropriate education to residents 

either in person or through video 

regarding their rights to be free from 

sexual abuse and sexual harassment and 

to be free from retaliation for reporting 

such incidents, and regarding agency 

policies and procedures for responding 

to such incidents. 

(c) Current residents who have not 

received such education shall be 

educated within one year of the 

effective date of the PREA standards, 

and shall receive education upon 

transfer to a different facility to the 

extent that the policies and procedures 

of the resident’s new facility differ from 

those of the previous facility. 

(d) The agency shall provide resident 

education in formats accessible to all 

residents, including those who are 

limited English proficient, deaf, visually 

impaired, or otherwise disabled, as well 

as to residents who have limited reading 

skills. 

(e) The agency shall maintain 

documentation of resident participation 

in these education sessions. 

(f) In addition to providing such 

education, the agency shall ensure that 

key information is continuously and 

readily available or visible to residents 

through posters, resident handbooks, or 

other written formats. 

§ 115.334 Specialized training: 

Investigations. 

(a) In addition to the general training 

provided to all employees pursuant to 

§ 115.331, the agency shall ensure that, 

to the extent the agency itself conducts 

sexual abuse investigations, its 

investigators have received training in 

conducting such investigations in 

confinement settings. 

(b) Specialized training shall include 

techniques for interviewing juvenile 

sexual abuse victims, proper use of 

Miranda and Garrity warnings, sexual 

abuse evidence collection in 

confinement settings, and the criteria 

and evidence required to substantiate a 

case for administrative action or 

prosecution referral. 

(c) The agency shall maintain 

documentation that agency investigators 

have completed the required specialized 

training in conducting sexual abuse 

investigations. 

(d) Any State entity or Department of 

Justice component that investigates 

sexual abuse in juvenile confinement 

settings shall provide such training to 

its agents and investigators who conduct 

such investigations. 

§ 115.335 Specialized training: Medical 

and mental health care. 

(a) The agency shall ensure that all 

full- and part-time medical and mental 

health care practitioners who work 

regularly in its facilities have been 

trained in: 

(1) How to detect and assess signs of 

sexual abuse and sexual harassment; 

(2) How to preserve physical evidence 

of sexual abuse; 

(3) How to respond effectively and 

professionally to juvenile victims of 

sexual abuse and sexual harassment; 

and 

(4) How and to whom to report 

allegations or suspicions of sexual abuse 

and sexual harassment. 

(b) If medical staff employed by the 

agency conduct forensic examinations, 

such medical staff shall receive the 

appropriate training to conduct such 

examinations. 

(c) The agency shall maintain 

documentation that medical and mental 

health practitioners have received the 

training referenced in this standard 

either from the agency or elsewhere. 

(d) Medical and mental health care 

practitioners shall also receive the 

training mandated for employees under 

§ 115.331 or for contractors and 

volunteers under § 115.332, depending 


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upon the practitioner’s status at the 

agency. 

Screening for Risk of Sexual 

Victimization and Abusiveness 

§ 115.341 Obtaining information from 

residents. 

(a) Within 72 hours of the resident’s 

arrival at the facility and periodically 

throughout a resident’s confinement, the 

agency shall obtain and use information 

about each resident’s personal history 

and behavior to reduce the risk of sexual 

abuse by or upon a resident. 

(b) Such assessments shall be 

conducted using an objective screening 

instrument. 

(c) At a minimum, the agency shall 

attempt to ascertain information about: 

(1) Prior sexual victimization or 

abusiveness; 

(2) Any gender nonconforming 

appearance or manner or identification 

as lesbian, gay, bisexual, transgender, or 

intersex, and whether the resident may 

therefore be vulnerable to sexual abuse; 

(3) Current charges and offense 

history; 

(4) Age; 

(5) Level of emotional and cognitive 

development; 

(6) Physical size and stature; 

(7) Mental illness or mental 

disabilities; 

(8) Intellectual or developmental 

disabilities; 

(9) Physical disabilities; 

(10) The resident’s own perception of 

vulnerability; and 

(11) Any other specific information 

about individual residents that may 

indicate heightened needs for 

supervision, additional safety 

precautions, or separation from certain 

other residents. 

(d) This information shall be 

ascertained through conversations with 

the resident during the intake process 

and medical and mental health 

screenings; during classification 

assessments; and by reviewing court 

records, case files, facility behavioral 

records, and other relevant 

documentation from the resident’s files. 

(e) The agency shall implement 

appropriate controls on the 

dissemination within the facility of 

responses to questions asked pursuant 

to this standard in order to ensure that 

sensitive information is not exploited to 

the resident’s detriment by staff or other 

residents. 

§ 115.342 Placement of residents in 

housing, bed, program, education, and 

work assignments. 

(a) The agency shall use all 

information obtained pursuant to 

§ 115.341 and subsequently to make 

housing, bed, program, education, and 

work assignments for residents with the 

goal of keeping all residents safe and 

free from sexual abuse. 

(b) Residents may be isolated from 

others only as a last resort when less 

restrictive measures are inadequate to 

keep them and other residents safe, and 

then only until an alternative means of 

keeping all residents safe can be 

arranged. During any period of isolation, 

agencies shall not deny residents daily 

large-muscle exercise and any legally 

required educational programming or 

special education services. Residents in 

isolation shall receive daily visits from 

a medical or mental health care 

clinician. Residents shall also have 

access to other programs and work 

opportunities to the extent possible. 

(c) Lesbian, gay, bisexual, 

transgender, or intersex residents shall 

not be placed in particular housing, bed, 

or other assignments solely on the basis 

of such identification or status, nor shall 

agencies consider lesbian, gay, bisexual, 

transgender, or intersex identification or 

status as an indicator of likelihood of 

being sexually abusive. 

(d) In deciding whether to assign a 

transgender or intersex resident to a 

facility for male or female residents, and 

in making other housing and 

programming assignments, the agency 

shall consider on a case-by-case basis 

whether a placement would ensure the 

resident’s health and safety, and 

whether the placement would present 

management or security problems. 

(e) Placement and programming 

assignments for each transgender or 

intersex resident shall be reassessed at 

least twice each year to review any 

threats to safety experienced by the 

resident. 

(f) A transgender or intersex resident’s 

own views with respect to his or her 

own safety shall be given serious 

consideration. 

(g) Transgender and intersex residents 

shall be given the opportunity to shower 

separately from other residents. 

(h) If a resident is isolated pursuant to 

paragraph (b) of this section, the facility 

shall clearly document: 

(1) The basis for the facility’s concern 

for the resident’s safety; and 

(2) The reason why no alternative 

means of separation can be arranged. 

(i) Every 30 days, the facility shall 

afford each resident described in 

paragraph (h) of this section a review to 

determine whether there is a continuing 

need for separation from the general 

population. 

§ 115.343 [Reserved] 

Reporting 

§ 115.351 Resident reporting. 

(a) The agency shall provide multiple 

internal ways for residents to privately 

report sexual abuse and sexual 

harassment, retaliation by other 

residents or staff for reporting sexual 

abuse and sexual harassment, and staff 

neglect or violation of responsibilities 

that may have contributed to such 

incidents. 

(b) The agency shall also provide at 

least one way for residents to report 

abuse or harassment to a public or 

private entity or office that is not part 

of the agency and that is able to receive 

and immediately forward resident 

reports of sexual abuse and sexual 

harassment to agency officials, allowing 

the resident to remain anonymous upon 

request. Residents detained solely for 

civil immigration purposes shall be 

provided information on how to contact 

relevant consular officials and relevant 

officials at the Department of Homeland 

Security. 

(c) Staff shall accept reports made 

verbally, in writing, anonymously, and 

from third parties and shall promptly 

document any verbal reports. 

(d) The facility shall provide residents 

with access to tools necessary to make 

a written report. 

(e) The agency shall provide a method 

for staff to privately report sexual abuse 

and sexual harassment of residents. 

§ 115.352 Exhaustion of administrative 

remedies. 

(a) An agency shall be exempt from 

this standard if it does not have 

administrative procedures to address 

resident grievances regarding sexual 

abuse. 

(b)(1) The agency shall not impose a 

time limit on when a resident may 

submit a grievance regarding an 

allegation of sexual abuse. 

(2) The agency may apply otherwiseapplicable time limits on any portion of 

a grievance that does not allege an 

incident of sexual abuse. 

(3) The agency shall not require a 

resident to use any informal grievance 

process, or to otherwise attempt to 

resolve with staff, an alleged incident of 

sexual abuse. 

(4) Nothing in this section shall 

restrict the agency’s ability to defend 

against a lawsuit filed by a resident on 

the ground that the applicable statute of 

limitations has expired. 

(c) The agency shall ensure that— 

(1) A resident who alleges sexual 

abuse may submit a grievance without 

submitting it to a staff member who is 

the subject of the complaint, and 


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(2) Such grievance is not referred to 

a staff member who is the subject of the 

complaint. 

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

agency decision on the merits of any 

portion of a grievance alleging sexual 

abuse within 90 days of the initial filing 

of the grievance. 

(2) Computation of the 90-day time 

period shall not include time consumed 

by residents in preparing any 

administrative appeal. 

(3) The agency may claim an 

extension of time to respond, of up to 

70 days, if the normal time period for 

response is insufficient to make an 

appropriate decision. The agency shall 

notify the resident in writing of any 

such extension and provide a date by 

which a decision will be made. 

(4) At any level of the administrative 

process, including the final level, if the 

resident does not receive a response 

within the time allotted for reply, 

including any properly noticed 

extension, the resident may consider the 

absence of a response to be a denial at 

that level. 

(e)(1) Third parties, including fellow 

residents, staff members, family 

members, attorneys, and outside 

advocates, shall be permitted to assist 

residents in filing requests for 

administrative remedies relating to 

allegations of sexual abuse, and shall 

also be permitted to file such requests 

on behalf of residents. 

(2) If a third party, other than a parent 

or legal guardian, files such a request on 

behalf of a resident, the facility may 

require as a condition of processing the 

request that the alleged victim agree to 

have the request filed on his or her 

behalf, and may also require the alleged 

victim to personally pursue any 

subsequent steps in the administrative 

remedy process. 

(3) If the resident declines to have the 

request processed on his or her behalf, 

the agency shall document the 

resident’s decision. 

(4) A parent or legal guardian of a 

juvenile shall be allowed to file a 

grievance regarding allegations of sexual 

abuse, including appeals, on behalf of 

such juvenile. Such a grievance shall 

not be conditioned upon the juvenile 

agreeing to have the request filed on his 

or her behalf. 

(f)(1) The agency shall establish 

procedures for the filing of an 

emergency grievance alleging that a 

resident is subject to a substantial risk 

of imminent sexual abuse. 

(2) After receiving an emergency 

grievance alleging a resident is subject 

to a substantial risk of imminent sexual 

abuse, the agency shall immediately 

forward the grievance (or any portion 

thereof that alleges the substantial risk 

of imminent sexual abuse) to a level of 

review at which immediate corrective 

action may be taken, shall provide an 

initial response within 48 hours, and 

shall issue a final agency decision 

within 5 calendar days. The initial 

response and final agency decision shall 

document the agency’s determination 

whether the resident is in substantial 

risk of imminent sexual abuse and the 

action taken in response to the 

emergency grievance. 

(g) The agency may discipline a 

resident for filing a grievance related to 

alleged sexual abuse only where the 

agency demonstrates that the resident 

filed the grievance in bad faith. 

§ 115.353 Resident access to outside 

support services and legal representation. 

(a) The facility shall provide residents 

with access to outside victim advocates 

for emotional support services related to 

sexual abuse, by providing, posting, or 

otherwise making accessible mailing 

addresses and telephone numbers, 

including toll free hotline numbers 

where available, of local, State, or 

national victim advocacy or rape crisis 

organizations, and, for persons detained 

solely for civil immigration purposes, 

immigrant services agencies. The 

facility shall enable reasonable 

communication between residents and 

these organizations and agencies, in as 

confidential a manner as possible. 

(b) The facility shall inform residents, 

prior to giving them access, of the extent 

to which such communications will be 

monitored and the extent to which 

reports of abuse will be forwarded to 

authorities in accordance with 

mandatory reporting laws. 

(c) The agency shall maintain or 

attempt to enter into memoranda of 

understanding or other agreements with 

community service providers that are 

able to provide residents with 

confidential emotional support services 

related to sexual abuse. The agency 

shall maintain copies of agreements or 

documentation showing attempts to 

enter into such agreements. 

(d) The facility shall also provide 

residents with reasonable and 

confidential access to their attorneys or 

other legal representation and 

reasonable access to parents or legal 

guardians. 

§ 115.354 Third-party reporting. 

The agency shall establish a method 

to receive third-party reports of sexual 

abuse and sexual harassment and shall 

distribute publicly information on how 

to report sexual abuse and sexual 

harassment on behalf of a resident. 

Official Response Following a Resident 

Report 

§ 115.361 Staff and agency reporting 

duties. 

(a) The agency shall require all staff 

to report immediately and according to 

agency policy any knowledge, 

suspicion, or information they receive 

regarding an incident of sexual abuse or 

sexual harassment that occurred in a 

facility, whether or not it is part of the 

agency; retaliation against residents or 

staff who reported such an incident; and 

any staff neglect or violation of 

responsibilities that may have 

contributed to an incident or retaliation. 

(b) The agency shall also require all 

staff to comply with any applicable 

mandatory child abuse reporting laws. 

(c) Apart from reporting to designated 

supervisors or officials and designated 

State or local services agencies, staff 

shall be prohibited from revealing any 

information related to a sexual abuse 

report to anyone other than to the extent 

necessary, as specified in agency policy, 

to make treatment, investigation, and 

other security and management 

decisions. 

(d)(1) Medical and mental health 

practitioners shall be required to report 

sexual abuse to designated supervisors 

and officials pursuant to paragraph (a) 

of this section, as well as to the 

designated State or local services agency 

where required by mandatory reporting 

laws. 

(2) Such practitioners shall be 

required to inform residents at the 

initiation of services of their duty to 

report and the limitations of 

confidentiality. 

(e)(1) Upon receiving any allegation of 

sexual abuse, the facility head or his or 

her designee shall promptly report the 

allegation to the appropriate agency 

office and to the alleged victim’s parents 

or legal guardians, unless the facility 

has official documentation showing the 

parents or legal guardians should not be 

notified. 

(2) If the alleged victim is under the 

guardianship of the child welfare 

system, the report shall be made to the 

alleged victim’s caseworker instead of 

the parents or legal guardians. 

(3) If a juvenile court retains 

jurisdiction over the alleged victim, the 

facility head or designee shall also 

report the allegation to the juvenile’s 

attorney or other legal representative of 

record within 14 days of receiving the 

allegation. 

(f) The facility shall report all 

allegations of sexual abuse and sexual 

harassment, including third-party and 

anonymous reports, to the facility’s 

designated investigators. 


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§ 115.362 Agency protection duties. 

When an agency learns that a resident 

is subject to a substantial risk of 

imminent sexual abuse, it shall take 

immediate action to protect the resident. 

§ 115.363 Reporting to other confinement 

facilities. 

(a) Upon receiving an allegation that 

a resident was sexually abused while 

confined at another facility, the head of 

the facility that received the allegation 

shall notify the head of the facility or 

appropriate office of the agency where 

the alleged abuse occurred and shall 

also notify the appropriate investigative 

agency. 

(b) Such notification shall be 

provided as soon as possible, but no 

later than 72 hours after receiving the 

allegation. 

(c) The agency shall document that it 

has provided such notification. 

(d) The facility head or agency office 

that receives such notification shall 

ensure that the allegation is investigated 

in accordance with these standards. 

§ 115.364 Staff first responder duties. 

(a) Upon learning of an allegation that 

a resident was sexually abused, the first 

staff member to respond to the report 

shall be required to: 

(1) Separate the alleged victim and 

abuser; 

(2) Preserve and protect any crime 

scene until appropriate steps can be 

taken to collect any evidence; 

(3) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, request that the 

alleged victim not take any actions that 

could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating; and 

(4) If the abuse occurred within a time 

period that still allows for the collection 

of physical evidence, ensure that the 

alleged abuser does not take any actions 

that could destroy physical evidence, 

including, as appropriate, washing, 

brushing teeth, changing clothes, 

urinating, defecating, smoking, 

drinking, or eating. 

(b) If the first staff responder is not a 

security staff member, the responder 

shall be required to request that the 

alleged victim not take any actions that 

could destroy physical evidence, and 

then notify security staff. 

§ 115.365 Coordinated response. 

The facility shall develop a written 

institutional plan to coordinate actions 

taken in response to an incident of 

sexual abuse among staff first 

responders, medical and mental health 

practitioners, investigators, and facility 

leadership. 

§ 115.366 Preservation of ability to protect 

residents from contact with abusers. 

(a) Neither the agency nor any other 

governmental entity responsible for 

collective bargaining on the agency’s 

behalf shall enter into or renew any 

collective bargaining agreement or other 

agreement that limits the agency’s 

ability to remove alleged staff sexual 

abusers from contact with residents 

pending the outcome of an investigation 

or of a determination of whether and to 

what extent discipline is warranted. 

(b) Nothing in this standard shall 

restrict the entering into or renewal of 

agreements that govern: 

(1) The conduct of the disciplinary 

process, as long as such agreements are 

not inconsistent with the provisions of 

§§ 115.372 and 115.376; or 

(2) Whether a no-contact assignment 

that is imposed pending the outcome of 

an investigation shall be expunged from 

or retained in the staff member’s 

personnel file following a determination 

that the allegation of sexual abuse is not 

substantiated. 

§ 115.367 Agency protection against 

retaliation. 

(a) The agency shall establish a policy 

to protect all residents and staff who 

report sexual abuse or sexual 

harassment or cooperate with sexual 

abuse or sexual harassment 

investigations from retaliation by other 

residents or staff and shall designate 

which staff members or departments are 

charged with monitoring retaliation. 

(b) The agency shall employ multiple 

protection measures, such as housing 

changes or transfers for resident victims 

or abusers, removal of alleged staff or 

resident abusers from contact with 

victims, and emotional support services 

for residents or staff who fear retaliation 

for reporting sexual abuse or sexual 

harassment or for cooperating with 

investigations. 

(c) For at least 90 days following a 

report of sexual abuse, the agency shall 

monitor the conduct or treatment of 

residents or staff who reported the 

sexual abuse and of residents who were 

reported to have suffered sexual abuse 

to see if there are changes that may 

suggest possible retaliation by residents 

or staff, and shall act promptly to 

remedy any such retaliation. Items the 

agency should monitor include any 

resident disciplinary reports, housing, 

or program changes, or negative 

performance reviews or reassignments 

of staff. The agency shall continue such 

monitoring beyond 90 days if the initial 

monitoring indicates a continuing need. 

(d) In the case of residents, such 

monitoring shall also include periodic 

status checks. 

(e) If any other individual who 

cooperates with an investigation 

expresses a fear of retaliation, the 

agency shall take appropriate measures 

to protect that individual against 

retaliation. 

(f) An agency’s obligation to monitor 

shall terminate if the agency determines 

that the allegation is unfounded. 

§ 115.368 Post-allegation protective 

custody. 

Any use of segregated housing to 

protect a resident who is alleged to have 

suffered sexual abuse shall be subject to 

the requirements of § 115.342. 

Investigations 

§ 115.371 Criminal and administrative 

agency investigations. 

(a) When the agency conducts its own 

investigations into allegations of sexual 

abuse and sexual harassment, it shall do 

so promptly, thoroughly, and 

objectively for all allegations, including 

third-party and anonymous reports. 

(b) Where sexual abuse is alleged, the 

agency shall use investigators who have 

received special training in sexual abuse 

investigations involving juvenile 

victims pursuant to § 115.334. 

(c) Investigators shall gather and 

preserve direct and circumstantial 

evidence, including any available 

physical and DNA evidence and any 

available electronic monitoring data; 

shall interview alleged victims, 

suspected perpetrators, and witnesses; 

and shall review prior complaints and 

reports of sexual abuse involving the 

suspected perpetrator. 

(d) The agency shall not terminate an 

investigation solely because the source 

of the allegation recants the allegation. 

(e) When the quality of evidence 

appears to support criminal 

prosecution, the agency shall conduct 

compelled interviews only after 

consulting with prosecutors as to 

whether compelled interviews may be 

an obstacle for subsequent criminal 

prosecution. 

(f) The credibility of an alleged 

victim, suspect, or witness shall be 

assessed on an individual basis and 

shall not be determined by the person’s 

status as resident or staff. No agency 

shall require a resident who alleges 

sexual abuse to submit to a polygraph 

examination or other truth-telling 

device as a condition for proceeding 

with the investigation of such an 

allegation. 

(g) Administrative investigations: 

(1) Shall include an effort to 

determine whether staff actions or 


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failures to act contributed to the abuse; 

and 

(2) Shall be documented in written 

reports that include a description of the 

physical and testimonial evidence, the 

reasoning behind credibility 

assessments, and investigative facts and 

findings. 

(h) Criminal investigations shall be 

documented in a written report that 

contains a thorough description of 

physical, testimonial, and documentary 

evidence and attaches copies of all 

documentary evidence where feasible. 

(i) Substantiated allegations of 

conduct that appears to be criminal 

shall be referred for prosecution. 

(j) The agency shall retain all written 

reports referenced in paragraphs (g) and 

(h) of this section for as long as the 

alleged abuser is incarcerated or 

employed by the agency, plus five years, 

unless the abuse was committed by a 

juvenile resident and applicable law 

requires a shorter period of retention. 

(k) The departure of the alleged 

abuser or victim from the employment 

or control of the facility or agency shall 

not provide a basis for terminating an 

investigation. 

(l) Any State entity or Department of 

Justice component that conducts such 

investigations shall do so pursuant to 

the above requirements. 

(m) When outside agencies investigate 

sexual abuse, the facility shall cooperate 

with outside investigators and shall 

endeavor to remain informed about the 

progress of the investigation. 

§ 115.372 Evidentiary standard for 

administrative investigations. 

The agency shall impose no standard 

higher than a preponderance of the 

evidence in determining whether 

allegations of sexual abuse or sexual 

harassment are substantiated. 

§ 115.373 Reporting to residents. 

(a) Following an investigation into a 

resident’s allegation of sexual abuse 

suffered in an agency facility, the 

agency shall inform the resident as to 

whether the allegation has been 

determined to be substantiated, 

unsubstantiated, or unfounded. 

(b) If the agency did not conduct the 

investigation, it shall request the 

relevant information from the 

investigative agency in order to inform 

the resident. 

(c) Following a resident’s allegation 

that a staff member has committed 

sexual abuse against the resident, the 

agency shall subsequently inform the 

resident (unless the agency has 

determined that the allegation is 

unfounded) whenever: 

(1) The staff member is no longer 

posted within the resident’s unit; 

(2) The staff member is no longer 

employed at the facility; 

(3) The agency learns that the staff 

member has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(4) The agency learns that the staff 

member has been convicted on a charge 

related to sexual abuse within the 

facility. 

(d) Following a resident’s allegation 

that he or she has been sexually abused 

by another resident, the agency shall 

subsequently inform the alleged victim 

whenever: 

(1) The agency learns that the alleged 

abuser has been indicted on a charge 

related to sexual abuse within the 

facility; or 

(2) The agency learns that the alleged 

abuser has been convicted on a charge 

related to sexual abuse within the 

facility. 

(e) All such notifications or attempted 

notifications shall be documented. 

(f) An agency’s obligation to report 

under this standard shall terminate if 

the resident is released from the 

agency’s custody. 

Discipline 

§ 115.376 Disciplinary sanctions for staff. 

(a) Staff shall be subject to 

disciplinary sanctions up to and 

including termination for violating 

agency sexual abuse or sexual 

harassment policies. 

(b) Termination shall be the 

presumptive disciplinary sanction for 

staff who have engaged in sexual abuse. 

(c) Disciplinary sanctions for 

violations of agency policies relating to 

sexual abuse or sexual harassment 

(other than actually engaging in sexual 

abuse) shall be commensurate with the 

nature and circumstances of the acts 

committed, the staff member’s 

disciplinary history, and the sanctions 

imposed for comparable offenses by 

other staff with similar histories. 

(d) All terminations for violations of 

agency sexual abuse or sexual 

harassment policies, or resignations by 

staff who would have been terminated 

if not for their resignation, shall be 

reported to law enforcement agencies, 

unless the activity was clearly not 

criminal, and to any relevant licensing 

bodies. 

§ 115.377 Corrective action for contractors 

and volunteers. 

(a) Any contractor or volunteer who 

engages in sexual abuse shall be 

prohibited from contact with residents 

and shall be reported to law 

enforcement agencies, unless the 

activity was clearly not criminal, and to 

relevant licensing bodies. 

(b) The facility shall take appropriate 

remedial measures, and shall consider 

whether to prohibit further contact with 

residents, in the case of any other 

violation of agency sexual abuse or 

sexual harassment policies by a 

contractor or volunteer. 

§ 115.378 Interventions and disciplinary 

sanctions for residents. 

(a) A resident may be subject to 

disciplinary sanctions only pursuant to 

a formal disciplinary process following 

an administrative finding that the 

resident engaged in resident-on-resident 

sexual abuse or following a criminal 

finding of guilt for resident-on-resident 

sexual abuse. 

(b) Any disciplinary sanctions shall 

be commensurate with the nature and 

circumstances of the abuse committed, 

the resident’s disciplinary history, and 

the sanctions imposed for comparable 

offenses by other residents with similar 

histories. In the event a disciplinary 

sanction results in the isolation of a 

resident, agencies shall not deny the 

resident daily large-muscle exercise or 

access to any legally required 

educational programming or special 

education services. Residents in 

isolation shall receive daily visits from 

a medical or mental health care 

clinician. Residents shall also have 

access to other programs and work 

opportunities to the extent possible. 

(c) The disciplinary process shall 

consider whether a resident’s mental 

disabilities or mental illness contributed 

to his or her behavior when determining 

what type of sanction, if any, should be 

imposed. 

(d) If the facility offers therapy, 

counseling, or other interventions 

designed to address and correct 

underlying reasons or motivations for 

the abuse, the facility shall consider 

whether to offer the offending resident 

participation in such interventions. The 

agency may require participation in 

such interventions as a condition of 

access to any rewards-based behavior 

management system or other behaviorbased incentives, but not as a condition 

to access to general programming or 

education. 

(e) The agency may discipline a 

resident for sexual contact with staff 

only upon a finding that the staff 

member did not consent to such contact. 

(f) For the purpose of disciplinary 

action, a report of sexual abuse made in 

good faith based upon a reasonable 

belief that the alleged conduct occurred 

shall not constitute falsely reporting an 

incident or lying, even if an 

investigation does not establish 

evidence sufficient to substantiate the 

allegation. 


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(g) An agency may, in its discretion, 

prohibit all sexual activity between 

residents and may discipline residents 

for such activity. An agency may not, 

however, deem such activity to 

constitute sexual abuse if it determines 

that the activity is not coerced. 

Medical and Mental Care 

§ 115.381 Medical and mental health 

screenings; history of sexual abuse. 

(a) If the screening pursuant to 

§ 115.341 indicates that a resident has 

experienced prior sexual victimization, 

whether it occurred in an institutional 

setting or in the community, staff shall 

ensure that the resident is offered a 

follow-up meeting with a medical or 

mental health practitioner within 14 

days of the intake screening. 

(b) If the screening pursuant to 

§ 115.341 indicates that a resident has 

previously perpetrated sexual abuse, 

whether it occurred in an institutional 

setting or in the community, staff shall 

ensure that the resident is offered a 

follow-up meeting with a mental health 

practitioner within 14 days of the intake 

screening. 

(c) Any information related to sexual 

victimization or abusiveness that 

occurred in an institutional setting shall 

be strictly limited to medical and 

mental health practitioners and other 

staff, as necessary, to inform treatment 

plans and security and management 

decisions, including housing, bed, work, 

education, and program assignments, or 

as otherwise required by Federal, State, 

or local law. 

(d) Medical and mental health 

practitioners shall obtain informed 

consent from residents before reporting 

information about prior sexual 

victimization that did not occur in an 

institutional setting, unless the resident 

is under the age of 18. 

§ 115.382 Access to emergency medical 

and mental health services. 

(a) Resident victims of sexual abuse 

shall receive timely, unimpeded access 

to emergency medical treatment and 

crisis intervention services, the nature 

and scope of which are determined by 

medical and mental health practitioners 

according to their professional 

judgment. 

(b) If no qualified medical or mental 

health practitioners are on duty at the 

time a report of recent abuse is made, 

staff first responders shall take 

preliminary steps to protect the victim 

pursuant to § 115.362 and shall 

immediately notify the appropriate 

medical and mental health practitioners. 

(c) Resident victims of sexual abuse 

while incarcerated shall be offered 

timely information about and timely 

access to emergency contraception and 

sexually transmitted infections 

prophylaxis, in accordance with 

professionally accepted standards of 

care, where medically appropriate. 

(d) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

§ 115.383 Ongoing medical and mental 

health care for sexual abuse victims and 

abusers. 

(a) The facility shall offer medical and 

mental health evaluation and, as 

appropriate, treatment to all residents 

who have been victimized by sexual 

abuse in any prison, jail, lockup, or 

juvenile facility. 

(b) The evaluation and treatment of 

such victims shall include, as 

appropriate, follow-up services, 

treatment plans, and, when necessary, 

referrals for continued care following 

their transfer to, or placement in, other 

facilities, or their release from custody. 

(c) The facility shall provide such 

victims with medical and mental health 

services consistent with the community 

level of care. 

(d) Resident victims of sexually 

abusive vaginal penetration while 

incarcerated shall be offered pregnancy 

tests. 

(e) If pregnancy results from conduct 

specified in paragraph (d) of this 

section, such victims shall receive 

timely and comprehensive information 

about and timely access to all lawful 

pregnancy-related medical services. 

(f) Resident victims of sexual abuse 

while incarcerated shall be offered tests 

for sexually transmitted infections as 

medically appropriate. 

(g) Treatment services shall be 

provided to the victim without financial 

cost and regardless of whether the 

victim names the abuser or cooperates 

with any investigation arising out of the 

incident. 

(h) The facility shall attempt to 

conduct a mental health evaluation of 

all known resident-on-resident abusers 

within 60 days of learning of such abuse 

history and offer treatment when 

deemed appropriate by mental health 

practitioners. 

Data Collection and Review 

§ 115.386 Sexual abuse incident reviews. 

(a) The facility shall conduct a sexual 

abuse incident review at the conclusion 

of every sexual abuse investigation, 

including where the allegation has not 

been substantiated, unless the allegation 

has been determined to be unfounded. 

(b) Such review shall ordinarily occur 

within 30 days of the conclusion of the 

investigation. 

(c) The review team shall include 

upper-level management officials, with 

input from line supervisors, 

investigators, and medical or mental 

health practitioners. 

(d) The review team shall: 

(1) Consider whether the allegation or 

investigation indicates a need to change 

policy or practice to better prevent, 

detect, or respond to sexual abuse; 

(2) Consider whether the incident or 

allegation was motivated by race; 

ethnicity; gender identity; lesbian, gay, 

bisexual, transgender, or intersex 

identification, status, or perceived 

status; or, gang affiliation; or was 

motivated or otherwise caused by other 

group dynamics at the facility; 

(3) Examine the area in the facility 

where the incident allegedly occurred to 

assess whether physical barriers in the 

area may enable abuse; 

(4) Assess the adequacy of staffing 

levels in that area during different 

shifts; 

(5) Assess whether monitoring 

technology should be deployed or 

augmented to supplement supervision 

by staff; and 

(6) Prepare a report of its findings, 

including but not necessarily limited to 

determinations made pursuant to 

paragraphs (d)(1) through (d)(5) of this 

section, and any recommendations for 

improvement and submit such report to 

the facility head and PREA compliance 

manager. 

(e) The facility shall implement the 

recommendations for improvement, or 

shall document its reasons for not doing 

so. 

§ 115.387 Data collection. 

(a) The agency shall collect accurate, 

uniform data for every allegation of 

sexual abuse at facilities under its direct 

control using a standardized instrument 

and set of definitions. 

(b) The agency shall aggregate the 

incident-based sexual abuse data at least 

annually. 

(c) The incident-based data collected 

shall include, at a minimum, the data 

necessary to answer all questions from 

the most recent version of the Survey of 

Sexual Violence conducted by the 

Department of Justice. 

(d) The agency shall maintain, review, 

and collect data as needed from all 

available incident-based documents, 

including reports, investigation files, 

and sexual abuse incident reviews. 

(e) The agency also shall obtain 

incident-based and aggregated data from 

every private facility with which it 

contracts for the confinement of its 

residents. 


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(f) Upon request, the agency shall 

provide all such data from the previous 

calendar year to the Department of 

Justice no later than June 30. 

§ 115.388 Data review for corrective 

action. 

(a) The agency shall review data 

collected and aggregated pursuant to 

§ 115.387 in order to assess and improve 

the effectiveness of its sexual abuse 

prevention, detection, and response 

policies, practices, and training, 

including: 

(1) Identifying problem areas; 

(2) Taking corrective action on an 

ongoing basis; and 

(3) Preparing an annual report of its 

findings and corrective actions for each 

facility, as well as the agency as a 

whole. 

(b) Such report shall include a 

comparison of the current year’s data 

and corrective actions with those from 

prior years and shall provide an 

assessment of the agency’s progress in 

addressing sexual abuse. 

(c) The agency’s report shall be 

approved by the agency head and made 

readily available to the public through 

its 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 collected pursuant to 

§ 115.387 for at least 10 years after the 

date of its initial collection unless 

Federal, State, or local law requires 

otherwise. 

Audits 

§ 115.393 Audits of standards. 

The agency shall conduct audits 

pursuant to §§ 115.401 through 115.405. 

Subpart E—Auditing and Corrective 

Action 

§ 115.401 Frequency and scope of audits. 

(a) During the three-year period 

starting on August 20, 2013, and during 

each three-year period thereafter, the 

agency shall ensure that each facility 

operated by the agency, or by a private 

organization on behalf of the agency, is 

audited at least once. 

(b) During each one-year period 

starting on August 20, 2013, the agency 

shall ensure that at least one-third of 

each facility type operated by the 

agency, or by a private organization on 

behalf of the agency, is audited. 

(c) The Department of Justice may 

send a recommendation to an agency for 

an expedited audit if the Department 

has reason to believe that a particular 

facility may be experiencing problems 

relating to sexual abuse. The 

recommendation may also include 

referrals to resources that may assist the 

agency with PREA-related issues. 

(d) The Department of Justice shall 

develop and issue an audit instrument 

that will provide guidance on the 

conduct of and contents of the audit. 

(e) The agency shall bear the burden 

of demonstrating compliance with the 

standards. 

(f) The auditor shall review all 

relevant agency-wide policies, 

procedures, reports, internal and 

external audits, and accreditations for 

each facility type. 

(g) The audits shall review, at a 

minimum, a sampling of relevant 

documents and other records and 

information for the most recent one-year 

period. 

(h) The auditor shall have access to, 

and shall observe, all areas of the 

audited facilities. 

(i) The auditor shall be permitted to 

request and receive copies of any 

relevant documents (including 

electronically stored information). 

(j) The auditor shall retain and 

preserve all documentation (including, 

e.g., video tapes and interview notes) 

relied upon in making audit 

determinations. Such documentation 

shall be provided to the Department of 

Justice upon request. 

(k) The auditor shall interview a 

representative sample of inmates, 

residents, and detainees, and of staff, 

supervisors, and administrators. 

(l) The auditor shall review a 

sampling of any available videotapes 

and other electronically available data 

(e.g., Watchtour) that may be relevant to 

the provisions being audited. 

(m) The auditor shall be permitted to 

conduct private interviews with 

inmates, residents, and detainees. 

(n) Inmates, residents, and detainees 

shall be permitted to send confidential 

information or correspondence to the 

auditor in the same manner as if they 

were communicating with legal counsel. 

(o) Auditors shall attempt to 

communicate with community-based or 

victim advocates who may have insight 

into relevant conditions in the facility. 

§ 115.402 Auditor qualifications. 

(a) An audit shall be conducted by: 

(1) A member of a correctional 

monitoring body that is not part of, or 

under the authority of, the agency (but 

may be part of, or authorized by, the 

relevant State or local government); 

(2) A member of an auditing entity 

such as an inspector general’s or 

ombudsperson’s office that is external to 

the agency; or 

(3) Other outside individuals with 

relevant experience. 

(b) All auditors shall be certified by 

the Department of Justice. The 

Department of Justice shall develop and 

issue procedures regarding the 

certification process, which shall 

include training requirements. 

(c) No audit may be conducted by an 

auditor who has received financial 

compensation from the agency being 

audited (except for compensation 

received for conducting prior PREA 

audits) within the three years prior to 

the agency’s retention of the auditor. 

(d) The agency shall not employ, 

contract with, or otherwise financially 

compensate the auditor for three years 

subsequent to the agency’s retention of 

the auditor, with the exception of 

contracting for subsequent PREA audits. 

§ 115.403 Audit contents and findings. 

(a) Each audit shall include a 

certification by the auditor that no 

conflict of interest exists with respect to 

his or her ability to conduct an audit of 

the agency under review. 

(b) Audit reports shall state whether 

agency-wide policies and procedures 

comply with relevant PREA standards. 

(c) For each PREA standard, the 

auditor shall determine whether the 

audited facility reaches one of the 

following findings: Exceeds Standard 

(substantially exceeds requirement of 

standard); Meets Standard (substantial 

compliance; complies in all material 

ways with the standard for the relevant 

review period); Does Not Meet Standard 

(requires corrective action). The audit 

summary shall indicate, among other 

things, the number of provisions the 

facility has achieved at each grade level. 

(d) Audit reports shall describe the 

methodology, sampling sizes, and basis 

for the auditor’s conclusions with regard 

to each standard provision for each 


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37232 Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / Rules and Regulations 

audited facility, and shall include 

recommendations for any required 

corrective action. 

(e) Auditors shall redact any 

personally identifiable inmate or staff 

information from their reports, but shall 

provide such information to the agency 

upon request, and may provide such 

information to the Department of 

Justice. 

(f) The agency shall ensure that the 

auditor’s final report is published on the 

agency’s Web site if it has one, or is 

otherwise made readily available to the 

public. 

§ 115.404 Audit corrective action plan. 

(a) A finding of ‘‘Does Not Meet 

Standard’’ with one or more standards 

shall trigger a 180-day corrective action 

period. 

(b) The auditor and the agency shall 

jointly develop a corrective action plan 

to achieve compliance. 

(c) The auditor shall take necessary 

and appropriate steps to verify 

implementation of the corrective action 

plan, such as reviewing updated 

policies and procedures or re-inspecting 

portions of a facility. 

(d) After the 180-day corrective action 

period ends, the auditor shall issue a 

final determination as to whether the 

facility has achieved compliance with 

those standards requiring corrective 

action. 

(e) If the agency does not achieve 

compliance with each standard, it may 

(at its discretion and cost) request a 

subsequent audit once it believes that is 

has achieved compliance. 

§ 115.405 Audit appeals. 

(a) An agency may lodge an appeal 

with the Department of Justice regarding 

any specific audit finding that it 

believes to be incorrect. Such appeal 

must be lodged within 90 days of the 

auditor’s final determination. 

(b) If the Department determines that 

the agency has stated good cause for a 

re-evaluation, the agency may 

commission a re-audit by an auditor 

mutually agreed upon by the 

Department and the agency. The agency 

shall bear the costs of this re-audit. 

(c) The findings of the re-audit shall 

be considered final. 

Subpart F—State Compliance 

§ 115.501 State determination and 

certification of full compliance. 

(a) In determining pursuant to 

42 U.S.C. 15607(c)(2) whether the State 

is in full compliance with the PREA 

standards, the Governor shall consider 

the results of the most recent agency 

audits. 

(b) The Governor’s certification shall 

apply to all facilities in the State under 

the operational control of the State’s 

executive branch, including facilities 

operated by private entities on behalf of 

the State’s executive branch. 

Dated: May 17, 2012. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2012–12427 Filed 6–19–12; 8:45 am] 

BILLING CODE 4410–05–P; 4410–18–P 


srobinson on DSK4SPTVN1PROD with RULES2