The Prison Rape Elimination Act Overview and Update Responding to Inmate on Inmate Sexual Violence

The Prison Rape Elimination Act of 2003 Public Law Makes important findings about the impact of prison rape on inmates, the economy and state and federal governments

PREA Purposes Increase accountability of prison officials who fail to detect, prevent, reduce and punish prison rape Protect 8thamendment rights of federal, state and local prisoners Establish grant programs Reduce costs of prison rape on interstate commerce

PREA Purposes Establish zero tolerance for the conduct Make prevention a top priority Develop national standards for detection, prevention, reduction and punishment Increase available data and information on incidence in order to improve management and administration Standardize definitions used for collecting data on the incidence of rape

Major Provisions Section 4: Collection of prison rape statistics, data and research – Federal, state and local officials are required to participate – Review panel on prison rape with subpoena power – Public hearings for 3 highest incidence systems and 2 lowest – Report each year on 6/30

BJS Update Expert panel meetings Administrative survey collections Victim self reports – Adults – Youth-Began collection of self-reporting (March 2008) Major tests of tools for evaluation of victimization rates for former inmates

BJS Update Collection of Lock-ups sample Rankings – Prisons-December 2007 – Jails-June 2008 – Lock-ups-2008

Major Provisions Section 5: Prison Rape Prevention and Prosecution – Information and Assistance through clearinghouse – Training and education – Report due on 9/30 annually

NIC Update Completion of informational PREA videos PREA videoconferences Nationwide technical assistance and training on PREA Correctional Officer Handbook

NIC Update Development of curricula – Addressing sexual violence against youth in custody – Responding to inmate-on-inmate sexual violence – Investigating sexual violence in correctional settings Development of legal tool kits for states Development of E-Learning tool

Major Provisions Section 6: Grants to Protect Inmates and Safeguard Communities Protection of the community$ to address overcrowding Risk assessment tools Mapping of concentration of inmates in communities Policy and program development Collaboration between corrections and community on reentry

Major Provisions Section 6: Grants to Protect Inmates and Safeguard Communities – Protection of Inmates Investigations Prosecution Prevention

BJA Update Convened meetings to discuss protecting inmates and community safety 16 states were awarded grants in awards in 2006

State Grant Awards Training Improve or create investigative structures Develop data collection capacities Enhance security by installing cameras or identifying institutional vulnerabilities Develop classification and housing options for victims and perpetrators

State Grant Awards Enhance medical and mental health treatment for victims Community reintegration and services for victims and perpetrators Hiring staff to implement PREA

BJA Update Work with Prosecutors Training Curriculum for Jails and Lockups Community Corrections Materials for Tribal/ Native American jurisdictions Problems and responses to PREA

NIJ Update Policies and practices looking at male and female prison facilities Assessment tools and Instruments and descriptive analysis of characteristics of perpetrators and victims The culture of prison sexual violence Looking at classification and risk assessment

NIJ Update Impact of victimization Several awards were made on sexual violence in jail settings 2008 Research Solicitation – Focus on Staff Sexual Misconduct Cross Gender Supervision Pat searches Investigations and Prosecution Best Practices and evaluation of current policies

Major Provisions Section 7: National Prison Rape Elimination Commission – 9 members authorized (8 sitting) – Conduct legal and factual study of the effects of prison rape in the US – Report due w/in 2 years of initial meeting

Major Provisions Section 7: National Prison Rape Elimination Commission – Recommend national standards – Consultation with accreditation organizations – Can’t impose something that would mandate substantial increased costs to agency – Hold hearings

NPREC Update Expert Panels begun in 2007 – training, medical and mental health, reporting and data collection, classification, investigations, evidence and crime scene collections, immigration, juveniles

Major Provisions Section 8: Adoption and Effect of National Standards – A year after National Prison Rape Elimination Commission issues report, AG publishes a final rule with standards – 90 days after publication --transmission to state departments of correction – FBOP is immediately covered by rule – Possible reduction of 5% each year for failure to meet the standard – Annual report on non-compliance

Major Provisions Section 9: Accreditation organizations must adopt standards or lose federal funds

What does this mean? Increased scrutiny at state, federal and local level on prison rape generally and staff sexual misconduct specifically as a subset Broadened concern about offender on offender conduct Data collection is important Enhanced focus on investigations, prosecution and administrative sanctions Set of national standards that establish minimum standards for treatment of prisoners domestically

Legal Liability for Sexual Abuse of Persons in Custody: Civil and Administrative Responding to Inmate on Inmate Sexual Violence

State Laws Staff sexual misconduct* Sexual assault Statutory rape Sodomy Sex offender registration Vulnerable Adult Statutes Licensing Official misconduct Obstruction of Justice Making false statements to a government official Mandatory reporting

State Custodial Sexual Abuse Laws All 50 states, the Federal Government and DC have laws specifically covering the sexual abuse of persons in custody 32 States cover Community Corrections agencies 29 States cover juveniles explicitly– another 17 States implicitly.

Punishing Consensual Sex of inmates A State’s Sodomy laws constitutional as applied to sex in prisons. Diminished expectation of Privacy. – US v. Brewer, 363 F. Supp. 606 (M.D. Pa. 1973) – People v. Frazier, 64 Cal.Rptr. 447 (Cal. Ct. App.1967) – People v.Coulter, 288 N.W.2d 448 (Mich. Ct. App. 1980)

Civil Liability- Constitutional Claims Most Common legal bases for challenges 42 USC th Amendment 4 th Amendment 14 th Amendment State tort claims

42 U.S.C. §1983 Causes a federal cause of action for the vindication of rights found elsewhere Key elements – Deprived or a right secured by the constitution or law of US – Deprivation by a person acting under color of state law – Don’t forget volunteers and contractors

Eighth Amendment Prohibits cruel and unusual punishment Legal standard is deliberate indifference – Established in a prison rape case Farmer v. Brennan – Two part test The injury must be objectively serious and must have caused an objectively serious injury The official must have a sufficiently culpable of mind and have acted with deliberate indifference or reckless disregard for the inmate’s constitutional rights

What the Courts look for Deliberate indifference to inmate vulnerability – safety or health – Official knew of and disregarded an excessive risk to an inmate’s safety or health – Official must be aware of facts from which an inference could be drawn that a substantial risk of harm exists and he must draw the inference

Fourteenth Amendment— Substantive Due Process Was the individual deprived of life,liberty or property without due process of law? Lower legal Standard than 8 th amendment Depending on the situation—14 th amendment may apply – pre-trial detainees and juveniles

State Tort Law Claims Assault Battery Intentional infliction of emotional distress Negligent infliction of emotional distress Negligent hiring, firing, supervision, staff training

Major Issues Inmate on Inmate Conduct – Rape – Sexual – Voluntary sexual interaction – Consensual sex

Inmate on Inmate Conduct Who raises the issue – Male – Female Nature of the conduct – Forced – Coerced – Consensual

Liability Official Individual Personal

Official Liability Did it happen on your watch? Were you responsible for promulgating and enforcing policy? Did you fail to act or ignore information presented to you? Was it a FAILURE TO TRAIN, SUPERVISE, ETC…

Individual Liability Officials sued in individual capacity may be protected from damages if the wrongful conduct was committed while they preformed a function protected by qualified immunity

Personal Liability Plaintiff must provide notice that the suit is against the official in his/her personal capacity Direct participation not required – Actual or constructive notice of unconstitutional practices – Demonstrated gross negligence or deliberate indifference by failing to act

Qualified Immunity No violation of federal law– constitutional or otherwise Rights and law not clearly established at time of the incident Official’s action was objectively legally reasonable in light of clearly established legal rules at time of the action—deliberate indifference

LEGAL EXAMPLES