Please note that Standards referenced throughout this FAQ often apply to multiple sets of PREA Standards. Along with different standard numbers, the different sets of standards use different terminology to refer to the population they house including “inmate,” “detainee,” and “resident.” When referencing a standard that applies equally to all facilities covered under PREA, the language in the question and answer will, unless specified, refer to the Adult Prisons & Jails standard numbers and use the term “inmate” to refer generally to the populations in those facilities. The FAQ search functionality uses the standard numbering from the Adult Prisons and Jails, regardless of the specific setting. When a standard is selected, the search will identify all FAQs related to that standard across all standard settings.
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Standard 115.73 (c) requires that 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 related to sexual abuse within the facility. For purposes of this FAQ, what does the standard mean by “posted” in an inmate’s unit?
For the purposes of this FAQ, a “post” is considered an established work assignment within a facility that an employee may be given for an entire shift or part of a shift that may include a specific physical location(s) within the facility. These posts may be assigned, or selected at the beginning of each shift, or staff may bid on these posts as part of a collective bargaining agreement. Agencies should be mindful of the requirements of standard 115.66 (a) and its relatedness to this question. For example, Doe Correctional Facility requires two correctional officers to work on units A, B, and C on all shifts. Accordingly, each correctional officer that works those units is considered to be posted to those units. To comply with the standard that a staff member to be “no longer posted” on an inmate’s unit would mean that the staff shall not be assigned to a post on the living unit of the inmate.
Agencies and facilities should be mindful that not all “posts” may have one physical location but if the inmates’ living unit is a part of the post assignment, they should not be permitted to work that specific post. An example of this type of post would be a correctional officer who is considered a “floating” or “rover” officer who goes between units A and B, to assist other officers on those units.
If following a state or local law, administrative policy, labor agreement, directive, or any other rule prevents an agency from complying with a PREA Standard, should the agency or facility be considered compliant or non-compliant with the Standard for following the conflicting law, policy, agreement, directive, or rule?
An agency should be considered to be noncompliant with a PREA Standard if the agency elects to follow another authority and therefore fails to comply with the Standard. It makes no difference whether the other authority was adopted before or after the date of the promulgation of the PREA Standards.
The PREA Standards were designed to operate in conjunction with state and local laws.
Some PREA Standards expressly permit agencies to comply with state or local laws if there is a conflict with the PREA Standards (e.g., Standard 115.89(d) (requiring agencies to maintain sexual abuse data “for at least 10 years after the date of the initial collection unless Federal, State, or local law requires otherwise.”) and Standard 115.261(c)(requiring medical and mental health practitioners to report sexual abuse “unless otherwise precluded by Federal, State, or local law”)).
Some PREA Standards expressly require agencies to comply with applicable state and local laws while complying with the PREA Standards (e.g., Standard 115.17(c)(2) (requiring agencies to follow state and local laws while contacting prior institutional employers for information on substantiated allegations of sexual abuse before hiring individuals who may have contact with inmates) and Standard 115.313(a)(9)(requiring agencies to follow applicable state or local laws, regulations, or standards when determining adequate staffing levels and determining the need for video monitoring)).
How do agencies determine if an agency staff member or staff member of a community-based organization is qualified?
115.21(h) provides that “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.” Appropriateness should be based on factors such as temperament, background, interest level, listening skills, empathy, cultural competence, and schedule availability and not merely the person’s position such as psychology or counseling staff. In addition, it should be voluntary to take on this role.
Standard 115.21(d) provides that agencies must attempt to provide victim advocates. If they are unable to do so, they can provide a qualified staff member from a community-based organization or a qualified agency staff member. How can agencies identify an appropriate community-based organization?
The regulations do not define “community-based organization.” The intent of the standard is for agencies to partner with a non-profit or tribal organization that serves sexual assault victims even if it is not the sole focus of the organization or a nonprofit organization that has a related purpose. Examples are other victim service agencies, culturally specific organizations, LGBTQ organizations, and other multi-service organizations. Factors in determining the appropriateness of an organization include who the organization serves, what services they offer, any experience they have with sexual assault victims, and any training the staff has received on sexual assault.
When a Sexual Assault Forensic Examiner (SAFE) or Sexual Assault Nurse Examiner (SANE) cannot be made available to perform a Sexual Assault Forensic Examination, Standard 115.21 requires that the examination be performed by “other qualified medical practitioners.” What are the criteria for determining whether someone is a “qualified medical practitioner” who can perform the examination in this circumstance?
Standard 115.5 defines a “medical practitioner” as “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.” The definition goes on to provide that a “qualified medical practitioner” refers to such a professional who has also successfully completed specialized training for treating sexual abuse victims.
The Office on Violence Against Women (OVW) has published “National Training Standards for Sexual Assault Medical Forensic Examiners” available on the OVW website (www.justice.gov/ovw) at Training Sexual Assault Forensic Edition (justice.gov). Appendix C provides minimum training recommendations for all providers delivering care to the patient who has been sexually assaulted and/or abused, when there is not a SANE or SAFE available. Qualified medical practitioners should have at least successfully completed this training or its equivalent, although DOJ recommends that they complete more in-depth training. The International Association of Forensic Nurses (IAFN) with OVW support has produced a training, “No SANE in Sight” that incorporates these minimum requirements. This training is available at No SANE In Sight - IAFN (forensicnurses.org) free of charge and takes about 2 hours to complete. State sexual assault coalitions (Local Resources | OVW | Department of Justice) may have information on additional training available in the state, including trainings that provide more in-depth information and information specific to state protocols.
For juvenile facilities, the medical training should also include an understanding of child physical and mental/emotional development.
How should transgender staff and non-binary staff be classified for the purposes of complying with cross-gender viewing and search prohibitions established in PREA Standard 115.15?
The PREA Standards do not provide specific guidance regarding the classification of transgender and nonbinary staff; however, it is important to note that the PREA Standards do not prohibit facilities from classifying transgender employees consistent with their gender identity with regard to all aspects of their employment, including those related to PREA Standard 115.15. For example, it does not violate the PREA standards for a staff member who is a transgender man to conduct strip searches of male inmates.
If for a reason other than the PREA Standards, a facility does not classify a transgender employee consistent with their gender identity, facilities should make an individualized determination based on the gender identity of the staff member and not solely based on the staff member’s sex assigned at birth, the gender designation of the facility or housing unit to which the staff member is assigned, the related and required job duties of the specific staff member, the limits to cross-gender viewing and searches in PREA Standard 115.15, and the goal of the PREA Standards to prevent trauma and sexual abuse. This determination should be made at the request of, and in conjunction with, the transgender or non-binary staff member. Agencies should be aware that the determination of assignment in the facility may change at the request of and in conjunction with the employee as part of an ongoing adjustment process or as the staff member gains experience living consistently with their gender identity.
Note: this FAQ replaces the FAQ from 04/23/2014 regarding transgender staff.
PREA Standard 115.22(a) requires an administrative “or” (emphasis added) criminal investigation to be completed for all allegations of sexual abuse and sexual harassment. Are there circumstances under which both an administrative and a criminal investigation of an allegation of sexual abuse or sexual harassment must be completed?
Yes. Because criminal investigations and administrative investigations review different aspects of the alleged sexual abuse or harassment (suspected criminal activity and suspected agency policy violations, respectively), there are circumstances where both a criminal and administrative investigation will be required.
Criminal investigations must be completed any time criminal activity has been suspected of taking place regarding sexual abuse or harassment allegations. In general, most criminal investigations will not consider what specific policy violations occurred and a criminal investigation thus will not satisfy PREA Standards: 115.73(c), 115.76 , 115.78, and 115.86. For example, a state department of corrections (DOC) prison using a state police agency to criminally investigate an allegation of inmate-on-inmate sexual abuse, may only review if the sexual abuse that occurred meets the definition of rape in the state’s criminal code to bring criminal charges. The state police will not consider what state DOC policies or rules were violated that contributed to the sexual abuse occurring.
During a criminal investigation, if a criminal investigation brings charges, but no conviction, or, if a criminal investigation does not bring any criminal charges against the alleged suspect, then, in these two circumstances, the agency must conduct a separate administrative investigation. It is not acceptable for the agency to determine that an allegation of sexual abuse is administratively unfounded or unsubstantiated based solely on the fact that no criminal charges were brought, or that no criminal conviction was won. This is not acceptable because PREA Standard 115.72 requires a lower standard of proof (i.e., a preponderance of the evidence) to be applied to substantiate an allegation of sexual abuse in an administrative investigation. This standard of proof is lower than the standard of proof (i.e., beyond a reasonable doubt) required to convict in a criminal case.
When a criminal investigation of an allegation of sexual abuse concludes with a criminal conviction, an administrative investigation is also required. It may be possible to substantiate the allegation without conducting a separate administrative investigation, because the ‘preponderance of the evidence’ standard of proof required to substantiate an allegation is lower than the ‘beyond a reasonable doubt’ standard of proof that is required for a criminal conviction. However, since there are a number of PREA Standards that require the agency to scrutinize potential rule and policy violations, as well as practice failures, by staff that contributed to an incident of sexual abuse, a criminal investigation is not likely to identify relevant administrative violations, and policy and practice failures.
Standard 115.52 (d)(1) states: “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.” If the agency has a grievance appeals process with one or more levels of appeal following an initial decision on the grievance, what stage of that process constitutes a “final agency decision?”
The “final agency decision” must be issued at the highest level of appeal available to the inmate who has filed the grievance, and it must be issued within 90 days of the initial filing of the grievance, not counting the time the inmate takes to prepare an appeal at any level. (See Standard 115.52 (d)(2), which states: “Computation of the 90-day time period shall not include time consumed by inmates in preparing any administrative appeal.”) The purpose of Standard 115.52 (d)(1) and (d)(2) is to ensure that inmates can “exhaust” administrative remedies within a timeframe that reasonably allows them to move through the grievance process without missing a state or federal statute of limitations.
Standard 115.52 (d)(3) states: “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.”
PREA Standard 115.52 (a) states: “An agency shall be exempt from this Standard if it does not have administrative procedures to address inmate grievances regarding sexual abuse.” What does an agency need to demonstrate in order to qualify for this exemption, if it has an inmate grievance process?
An agency that has an inmate grievance process or any other administrative remedies process is only exempt from Standard 115.52 if it can demonstrate that as a matter of written agency policy, grievances related to sexual abuse or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse) are immediately converted to investigations that are outside of the agency’s administrative remedies process, and are not considered by the agency to be grievances.
In order to be exempt from compliance with Standard 115.52, it must be clear in written agency policy that the agency does not have an administrative procedure for inmates to exhaust, with regard to incidents or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse). If the agency does not have a written policy that is consistent with what is described in this FAQ, the agency is not exempt from the requirements in Standard 115.52.
If the agency is exempt from Standard 115.52, inmates must be provided notice that grievances related to sexual abuse or allegations of sexual abuse (i.e., allegations of sexual abuse, a fear of sexual abuse, or allegations of mishandling of an incident of sexual abuse) are immediately converted to investigations that are outside of the agency’s administrative remedies process and are not considered by the agency to be grievances. This notice to inmates can be provided in a number of ways, including in inmate handbooks and other written resources and notices to which inmates have regular access, and during the inmate education required by Standard 115.33, which states:
(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 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.
PREA Standard 115.52 (a) and (b) use the language “grievances regarding sexual abuse” or “grievances regarding an allegation of sexual abuse.” What constitutes a grievance “regarding” sexual abuse or an allegation of sexual abuse?
For Standard 115.52 (a) and (b), a grievance regarding an incident or allegation of sexual abuse is any grievance that is about a potential or past incident, or allegation, of sexual abuse. A grievance that alleges a fear of imminent sexual abuse, a grievance that alleges an incident of sexual abuse, or a grievance that alleges the mishandling of a report of sexual abuse are all grievances “regarding allegations of sexual abuse.”