1. November 14, 2012 Models for Change Cross-Action Network Meeting
Understanding What the Prison Rape Elimination Act (PREA) Means for Youth Dana Shoenberg, Deputy Director Jason Szanyi, Staff Attorney Center for Children’s Law and Policy
November 14, Models for Change Cross-Action Network Meeting

2. Goals
Explain the history and goals of the Prison Rape Elimination Act (PREA)
Describe the PREA standards’ most important requirements
Explain how PREA can inform and support your work

3. The Prison Rape Elimination Act of 2003
First federal civil statute focused specifically on addressing sexual violence in juvenile facilities, jails, prisons, lockups, and other facilities
Established a zero tolerance standard for incidence of prison rape
Included tools aimed at helping jurisdictions prevent, detect, and respond to sexual misconduct

4. Main PREA Provisions
Created the National Prison Rape Elimination Commission (NPREC) to study the issue, conduct hearings, issue a report, and propose national standards
Increased available data on the incidence of sexual victimization
Provided initial funding and training opportunities (and now the PREA Resource Center)
Required the Justice Department to issue binding national standards for juvenile and adult facilities

5. Why is PREA so important?
Estimated numbers of individuals victimized in 2008:*
*From the BJS Surveys of Sexual Violence, as reported in DOJ PREA Notice of Proposed Rule Making, released January 24, 2011
Adult Prisons
91,400
Adult Jails
108,100
Juvenile Facilities
17,100
Total
216,600

6. Prevalence in Juvenile Facilities
The Bureau of Justice Statistics conducted the first comprehensive study of sexual victimization in juvenile facilities using youth’s self-reported answers to a series of questions
Over one in eight youth (12.1%) reported one or more incidents of sexual victimization in the previous 12 months or since admission
Youth were four times as likely to be abused by staff members as they were by other youth
95% of staff perpetrators of sexual abuse were female, and 92% of youth victimized by staff members were male
Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, (2010).

7. Prevalence in Juvenile Facilities (cont’d)
Youth who had been sexually assaulted prior to their confinement experienced sexual victimization in custody at twice the rate of those with no sexual assault history
Male youth were more than twice as likely as female youth to be sexually abused by staff
Female youth were more than four times as likely as male youth to be sexually abused by another youth
© Richard Ross
Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, (2010).

8. Prevalence in Juvenile Facilities (cont’d)
In comparison to heterosexual youth, non- heterosexual youth reported:
Sexual victimization at twice the rate (20.4% compared to 11.1%)
Sexual victimization by facility staff at a higher rate (11.2% compared to 10.2%)
Sexual victimization by another youth at ten times the rate (12.5% compared to 1.3%)
Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, (2010).

9. What contributes to sexual misconduct in facilities that house youth?
In the 2003 Survey of Youth in Residential Placement, youth who reported being beaten up, had property stolen, or were forced to engage in sexual activity were twice as likely to report that staff were not accessible and did not treat residents fairly than to report that staff were accessible and fair.
Cultures that don’t respect youth
Broken reporting, investigation and/or grievance systems
Lack of sufficient effective programming
Mid-level supervision breakdowns
Staffing challenges: not enough people, not the right background and temperament, not enough training, high turnover
Insufficient mental health supports
Lack of access to community advocates

10. What is the status of the PREA standards?
The PREA standards took effect on August 20, 2012
Four sets of standards for different types of facilities:
Juvenile facilities
Adult prisons and jails
Lockups
Community confinement facilities
Immediately binding on facilities operated by the Department of Justice
Federal agencies with confinement facilities must propose and finalize efforts to comply with PREA by mid-January pursuant to a Presidential Memorandum

11. Which facilities do the PREA standards cover?
Juvenile facilities
Facilities “primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system”
A “juvenile” is any person under the age of 18 “unless under adult court supervision and confined or detained in a prison or jail”
Juvenile facility standards apply to community confinement facilities that house youth, such as group homes and staff- secure residential facilities
Youth in adult facilities who are under adult court supervision receive separate protections in those standards

12. Who has to comply with the PREA standards?
Governor must certify that all facilities “under the operational control of the State’s executive branch” comply with the PREA standards or risk losing 5% of Department of Justice “prison” funding
Certification includes contracted facilities operated by private entities on behalf of the state, as well as local facilities that the state contracts with for bed space
No final definition of “prison” funds yet, but would likely include Byrne Grant and JJDPA funds
First certification must be made by August 20, 2013

13. Do locally operated facilities have to comply?
“The PREA standards apply equally to locally operated facilities However PREA provides no direct federal financial penalty for not complying.” PREA Resource Center
Accrediting bodies that receive federal funding must incorporate PREA’s requirements
In litigation over sexual misconduct, courts may interpret PREA standards as “generally accepted professional standards” (too early to know)

14. How do the PREA standards begin to address the problem of sexual misconduct?
Equipping agencies and staff with knowledge and skills to prevent and detect problems
Minimizing opportunities for victimization
Creating effective reporting channels
Coordinating responses to alleged misconduct, including appropriate medical and mental health services
Monitoring efforts to reduce victimization

15. Equipping Agencies and Staff to Prevent and Detect Problems
Establish a zero-tolerance culture toward sexual abuse, including a written policy that outlines agency’s approach to prevention, detection, and response
Designate an agency-wide PREA coordinator with sufficient time and authority to coordinate and monitor efforts and compliance managers to coordinate efforts at each facility

16. Equipping Agencies, Staff and Youth to Prevent and Detect Problems (cont’d)
Train staff initially and provide refresher trainings every two years on a range of topics including:
Reporting responsibilities
Dynamics of sexual abuse in juvenile facilities
Detecting and responding to actual or threatened abuse
Effective communication with LGBTQI and gender non- conforming youth
Train volunteers and contractors
Youth education

17. Minimizing Opportunities for Victimization
Screen youth upon intake for risk of victimization and risk of engaging in misconduct
Use information to make housing and programming assignments
Do not automatically isolate LGBTQI youth or other youth for their protection
Give transgender and intersex youth opportunity to shower separately from other youth
If isolated, youth must receive protections and have regular review of ongoing need for isolation

18. Minimizing Opportunities for Victimization (cont’d)
Limit certain searches and cross- gender viewing
No cross-gender pat-down, strip, or body cavity searches unless performed by a medical professional or in exigent circumstances
No strip searches of transgender or intersex youth solely to determine genital status
Avoid cross-gender viewing of youth when unclothed
© Richard Ross

19. Minimizing Opportunities for Victimization (cont’d)
Develop staffing plans that ensure adequate direct supervision
Video surveillance is not a substitute for in-person direct supervision
Minimum staff-to-youth ratios of 1:8 during waking hours and 1:16 during sleeping hours in secure juvenile facilities*
© Richard Ross
*Note: DOJ requested additional comments on this standard, which may change.

20. Creating Effective Reporting Channels
Educate youth at intake and provide more in-depth information later
Make accommodations for youth with disabilities and youth with limited English proficiency
Ensure that information is available on an ongoing basis through posters, handbooks, or other written formats

21. Creating Effective Reporting Channels (cont’d)
Provide youth with multiple internal mechanisms to report misconduct, plus at least one external mechanism
No time limit on grievances regarding sexual misconduct
No punishment for filing grievances unless determination that youth filed in bad faith
Educate third parties (e.g., parents, attorneys) about ways of reporting on behalf of youth and permit them to file grievances
Respond to allegations in a timely manner and inform youth of outcomes

22. Responding to Alleged Misconduct
Develop written plan to coordinate responses to sexual abuse allegations among staff, medical and mental health professionals, investigators, and facility administrators
If an agency conducts its own investigations:
Use investigators with specialized training and generate thorough report with findings
Follow uniform and developmentally- appropriate evidence collection protocols
© Richard Ross

23. Responding to Alleged Misconduct (cont’d)
Forward allegations of sexual abuse to parents/legal guardians, attorneys, child welfare caseworkers
When appropriate, youth victimized in a facility receive:
Free forensic examinations
Testing and prophylaxis for sexually transmitted infections
Lawful pregnancy-related services
Follow-up medical and mental health care
Have policies and procedures on referrals to outside entities for investigation and criminal prosecution, when appropriate

24. Responding to Alleged Misconduct (cont’d)
Develop relationships with victim advocates to provide support services to youth
If youth reports prior sexual victimization or abusiveness at intake, provide youth with follow-up meeting with medical or mental health professional
If youth alleges misconduct in another facility, notify head of former facility and appropriate investigative agency
Discipline staff for violating sexual misconduct policies (termination is presumptive response for substantiated sexual abuse cases)

25. Responding to Alleged Misconduct (cont’d)
If youth are isolated as a protective measure, they receive:
Daily large muscle exercise
Access to education
Daily visits from medical or mental health clinicians
Access to other programs and opportunities
Review and document continued need for isolation and documentation of lack of other alternatives every 30 days

26. Responding to Alleged Misconduct (cont’d)
Youth who engage in sexual abuse only receive discipline pursuant to formal process that considers disabilities and mental illness
No sanctions for contact with staff unless staff did not consent
If youth are isolated, they receive daily large muscle exercise, access to education, daily visits from medical or mental health clinicians, and access to other programs and opportunities
NOTE: Voluntary sexual contact among youth does not count as sexual abuse for purpose of PREA’s reporting requirements

27. Monitoring Efforts to Reduce Victimization
Conduct sexual abuse incident reviews following each investigation
Gather accurate, uniform data for every sexual abuse allegation
Audit each facility operated by an agency or by private organizations on behalf of an agency at least once every three years
Publicly report data on sexual abuse allegations and results of PREA audits

28. What are the protections for youth in adult facilities?
No contact between youth and adult inmates in housing units
No contact between youth and adults in common areas or ensure youth are constantly and directly supervised by staff
Make “best efforts” to avoid isolation as a means to achieve separation
If isolated, youth receive large muscle exercise and special education services absent “exigent circumstances,” and access to other programs and work opportunities to the extent possible

29. How can I use this information?
Find out what juvenile justice agencies and facilities in your community are doing to comply with PREA
Identify and advocate for implementation of standards that impact your work
Determine whether your governor is considering noncompliance and advocate for compliance

30. How can I use this information?
Offer to join existing working groups or task forces on PREA implementation to contribute your perspective
Encourage local facilities to comply with the standards, even though they may not be subject to a loss of federal funds for noncompliance

31. Resources PREA Resource Center www.prearesourcecenter.org
American University Washington College of Law, Project on Addressing Prison Rape
Center for Children’s Law and Policy

32. Contact Information
Dana Shoenberg
Deputy Director
x107
Jason Szanyi
Staff Attorney
x108