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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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.”
When must confinement facilities offer pregnancy tests to victims of sexually abusive vaginal penetration while incarcerated?
PREA Standard 115.83(d) provides that inmate victims of sexually abusive vaginal penetration while incarcerated shall be offered pregnancy tests. PREA Standard 115.83(e) provides that victims who are pregnant as a result of such penetration shall receive timely information about, and access to, all lawful pregnancy-related medical services. In order for facilities to provide timely information and access to services, they must also provide timely testing. Timely testing shall be consistent with the community level of care, as described in PREA Standard 115.83(c).
What is meant by the term “objective screening instrument” in PREA Standard 115.41?
PREA Standard 115.41 requires facilities to assess all inmates “for their risk of being sexually abused by other inmates or sexually abusive toward other inmates” and such assessments shall be conducted using an objective screening instrument.” (emphasis added).
The Department made clear in the PREA Notice of Final Rule that the “standard provides that the agency shall attempt to ascertain specific information about the [resident, inmate, or detainee] and that the agency develop an objective, rather than subjective, process for using that information…” See 77 Fed. Reg. 37106, 37154 (June 20, 2012) (emphasis added). Objective screening instruments have been used in corrections and other disciplines for decades in order to create uniformity, accuracy, and transparency in internal decision-making processes.1 Such instruments lead to a presumptive determination of risk, and are “point-additive,” “decision-tree,” or “software-based algorithm.”
While a PREA-compliant objective screening instrument must consider various enumerated factors, the Department of Justice made clear that the standards do not “mandate the weight to be assigned to any of the enumerated factors in making placement and classification decisions.” See 77 Fed. Reg. 37106, 37154 (June 20, 2012). The standards require the following factors to be included in the objective risk-screening determinations for risk of 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. See 28 C.F.R. § 115.41(d).
In addition, an objective screening instrument must 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.” See 28 C.F.R. § 115.41(e).
Additional Considerations for PREA-Compliant Objective Screening Instruments
Objective screening instruments are “rules-based” and include the following essential features:
- Developing and implementing a uniform list of risk factors and assigning reasonable weights for each risk factor based on available evidence and reasonably informed assumptions.2
- Assigning objective outcome thresholds based on the totality of weighted risk factors (weighted inputs lead to presumptive outcome determinations).
- Using a uniform process to obtain information on the applicability of each risk factor to individual inmates.
- Making an objective risk determination based on the aggregate of the inmate’s individual weighted risk factors.3
Agencies may include additional relevant factors in their screening instrument(s) based on the availability of additional known risk factors as they become available. For example, additional risk factors may be identified based on agency- and facility-specific sexual abuse incident data. The Bureau of Justice Statistics also publishes data on individual-level characteristics associated with a heightened risk of victimization that an agency may use to identify additional risk factors or inform the weight to be assigned to individual risk factors. Agencies may use one screening instrument to assess both risk of sexual abusiveness and victimization or use separate instruments. It is important to know that an inmate may be both at heightened risk of victimization and abusiveness.
While objective screening instruments are designed to arrive at an objectively presumptive outcome, an agency may override the presumptive outcome based on unusual or unanticipated circumstances. However, override determinations are often subjective and should be limited. Overrides greater than 15-20 percent may transform an objective system into a largely subjective system. In cases where agencies override a large percentage of objective determinations, the agency should consider reassessing their screening instrument and individual factor weightings to accommodate the reasons many determinations are being overturned.
Agencies should attempt to tailor their objective screening instruments to the unique characteristics (e.g., specialized populations, inmate demographics, program type) of their various facility types. For example, the factor weighting appropriate for a minimum-security prison may create considerable over-screening in a sex-offender treatment facility. Similarly, agencies should also periodically reassess their screening instrument over time, as the nature of their facility populations may shift. The goal of an objective classification system is to, in an any given confined population, identify the most vulnerable and most predatory inmates, and keep those inmates separate. See 28 C.F.R. § 115.42(a). If an objective screening instrument identifies 100 percent or zero percent of a population as vulnerable; or conversely predatory; the system may not accomplish this goal.
1 See, e.g., James Austin, Ph.D., Objective Jail Classification Systems, National Institute of Corrections (Feb. 1998) https://www.michigan.gov/documents/corrections/Objective_Jail_Classification_Systems_-_A_Guide_for_Jail_Administrators_294757_7.pdf; Jack Alexander Ph.D., Handbook for Evaluating Objective Prison Classification Systems, National Institute of Corrections (June 1992) https://www.ncjrs.gov/pdffiles1/Digitization/139891NCJRS.pdf; David Steinhart, Juvenile Detention Alternatives Initiative, Annie E. Casey Foundation (2006); https://www.aecf.org/m/resourcedoc/aecf-juveniledetentionriskassessment1-2006.pdf#page=4; Keith Cooprider, Pretrial Risk Assessment and Case Classification: A Case Study Control, Federal probation Journal (Vol. 73, No. 1) https://www.uscourts.gov/sites/default/files/73_1_2_0.pdf (“the practice of objective risk assessment is a basic principle of the Evidence-Based Practice (EBP) initiative…”).
2 The Bureau of Justice Statistics periodically publishes PREA-related data collection reports, among other things, identifying victim-characteristic correlation to victimization: https://www.bjs.gov/index.cfm?ty=tp&tid=20
3 “Validation” is another positive, yet costly, feature of an objective system. The Department chose not to include a validation requirement in its standards. See e.g., 77 Fed. Reg. 37106, 37151 (June 20, 2012); https://www.prearesourcecenter.org/node/3246.
Are rape crisis centers or other victim service providers appropriate entities to serve as external reporting entities, pursuant to PREA Standard 51(b)?
Generally, no. PREA Standard 51(b) provides that: “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.” The purpose of this provision is to provide inmates with a way to report sexual abuse or harassment to someone outside of the corrections agency. The focus of this standard is on reporting of sexual abuse and sexual harassment, not on providing support to victims.
Rape crisis centers and other victim service providers have a mission of providing support and services to victims. Under federal law, if such centers and providers are funded at least in part, either as a direct recipient or as a subrecipient, by the Violence Against Women Act (VAWA, 34 U.S.C. 12291(b)(2)), the Family Violence Prevention and Services Act (FVPSA, 42 U.S.C. 10406(c)(5)), or the Victims of Crime Act Victim Assistance Program (VOCA Assistance, 28 C.F.R. § 94.115), they are required to keep identifying information about victims confidential. The only limited exceptions to this requirement are when the victim signs an informed, written, time-limited release, or when release is required by a legal (court or statutory) mandate. This requirement to keep confidential identifying information about victims conflicts with the requirement of PREA Standard 51(b) to be able to immediately forward reports of sexual abuse and sexual harassment to agency officials.
Although the federal funding/grant restrictions identified above do allow for anonymous reporting, the restrictions do not permit the provider to immediately forward all information about an allegation (including the inmate’s identity) to agency officials in cases where the inmate does not request anonymity. In order to immediately forward all information about an allegation (including the inmate’s identity) to agency officials in cases where the inmate does not request anonymity, the provider would need an immediate written release, which is unlikely to be feasible in the confinement facility context.
Most rape crisis centers and victim service providers receive federal FVPSA, VAWA, and/or VOCA Assistance funds. Many victim services providers may not realize that they are receiving these federal funding streams, because these programs are funded by formula grants that are awarded to local programs by states or territories. Even for those rape crisis centers and victim service providers that are not federally funded, there are often state confidentiality or privilege laws that apply. For more information about the VAWA confidentiality provision, see https://www.justice.gov/ovw/page/file/1006896/download.
It is very unlikely that a rape crisis center or other victim service provider will be able to carry out the requirements of PREA Standard 51(b) without violating state or federal laws.
What is the difference between “anonymous” reporting as used in PREA Standard 115.51(b), “confidential” as used in PREA Standard 115.53, and “privately report” as used in PREA Standard 115.51(d)?
PREA Standard 51(b) requires agencies 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, allowing the inmate to remain anonymous upon request.” The term “anonymous” as used here means that the inmate must have the ability (at the inmate’s request) to keep his or her identity protected from disclosure to agency and facility personnel. However, the external reporting entity must be able to immediately forward the substance of the allegation back to agency officials. Also, when the inmate does not affirmatively request anonymity, the external reporting entity must be able to immediately report the entirety of the allegation back to agency officials. See also, https://www.prearesourcecenter.org/node/3285.
PREA Standard 115.53(a) requires facilities to “provide inmates with access to outside victim advocates for emotional support services related to sexual abuse…” and “shall enable reasonable communication between inmates and these organizations and agencies, in as confidential manner as possible.” The Department of Justice acknowledges that a limited number of agency and facility officials may need to know the identity of the inmate utilizing these services. For example, when these services are provided in-person through the inmate visitation process, certain facility personnel will need to know the nature of the visits. However, in these instances, staff should protect this information from internal dissemination to the greatest extent possible. In addition, it is almost always possible for facilities to maintain complete confidentiality with respect to the substance of communications between the inmate and the outside emotional support service provider. In addition, PREA Standard 115.53(b) requires facilities to “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.”
PREA Standard 115.51(d) requires agencies to “provide a method for staff to privately report sexual abuse and sexual harassment of inmates.” The term “privately report” as used here requires that staff must have an avenue to make a report in a manner that other staff (without a need-to-know) are not made aware of such a report.
As stated in the PREA Notice of Final Rule: “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.” In addition, “[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.” See 77 Fed. Reg. 37157 (June 20, 2012).
What inmate education and information must be available to inmates before an external reporting mechanism may be considered compliant with PREA Standard 115.51(b) and PREA Standard 115.33?
PREA Standard 115.33(a) requires that “[d]uring the intake process, inmates shall receive information explaining…how to report incidents or suspicions of sexual abuse or sexual harassment.” PREA Standard 115.33(f) requires that agencies “ensure that key information is continuously and readily available or visible to inmates through posters, inmate handbooks, or other written formats.”
One item that is generally considered to be “key information” is the ability of inmates to “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 inmates to remain anonymous upon request.” See PREA Standard 115.51(b).
Pursuant to these Standards, the general requirements include:
- Clear and accurate information about which reporting mechanisms satisfy the external reporting requirement;
- Information must be readily accessible to inmates and available from multiple sources (e.g. signs, admission and orientation materials, etc.);
- Information must be consistent among the multiple sources; and
- How to utilize the reporting mechanisms, if the inmate wishes to remain anonymous.
By contrast, the following three examples illustrate scenarios that are not consistent with these standards:
- The facility informs inmates only that they “may report sexual abuse or sexual harassment by: (1) telling any staff member, (2) filing a grievance, (3) sending a note to the PREA Compliance Manager, or (4) contacting the PREA hotline at 555-555-5555.”
This does not satisfy PREA Standard 115.33 or PREA Standard 115.51(b) because the facility does not indicate which avenue, if any, is the external reporting entity. While an inmate could “guess” that the PREA hotline is an external reporting entity, it is at least equally likely that the PREA hotline is an internal agency contact. In addition, there is no indication of how the inmate may request anonymity.
- The facility informs inmates only that they “may report sexual abuse or sexual harassment to the State OIG, an external entity, by calling the PREA hotline at #55. Inmates may request anonymity – that their identity will not be provided to agency personal.” However, inmates are required to enter their identification number prior to gaining access to any call, and facility signage above the phones indicates that “all calls are subject to monitoring and recording by facility staff.”
This does not satisfy PREA Standards 115.33 or PREA Standard 115.51(b) because inmates are provided with conflicting information, and there is no reasonable basis to believe that the State OIG permits anonymity.
- The facility provides all inmates with a handbook at intake that, among other things, informs them that they “may report sexual abuse or sexual harassment by writing to the State OIG, an external reporting entity, at 555 Maple Lane, Capital, State 55555. To do so, inmates must request a prepaid envelope from their Unit Manager. All outgoing mail is subject to inspection by staff. Mail will not be accepted without the inmate’s name and identification number on the envelope.”
This does not satisfy PREA Standard 115.33 or PREA Standard 115.51(b) because there is no information informing inmates about their ability, or how, to request anonymity. In addition, the procedures listed in the handbook would lead most inmates to believe that their report could not be anonymous.
It is important to note that some agencies change their mechanism for inmates to make external reports pursuant to PREA Standard 51(b) over the course of time. When this happens, agencies should ensure that older signage, handbooks, and other educational materials are updated appropriately. It is not uncommon for facilities to maintain legacy information for inmates describing two or more different external reporting mechanisms, even while some of those mechanisms no longer exist. The presence of conflicting and outdated information for inmates on this issue creates confusion and diminishes the effectiveness of this important reporting avenue, and could potentially lead a PREA auditor to find noncompliance.
Finally, inmate education materials and staff training often provide conflated and confusing information regarding how inmates may access the external reporting entity pursuant to PREA Standard 115.51(b), and how to access outside confidential support services pursuant to PREA Standard 115.53. These standards serve different purposes, and each has distinct requirements (e.g., anonymity versus confidentiality). In addition, confidential emotional support service providers are typically not appropriate entities to serve as the external reporting entity. Accordingly, it is important that educational materials make clear the purpose and mechanisms for each of these services, so they are not conflated.
What is the difference between the post-incident victim advocacy required in PREA Standard 115.21, and the outside confidential support services required in PREA Standard 115.53?
PREA Standard 115.21(e) requires agencies to provide a victim advocate to, when requested by the victim, “accompany and support the victim through the forensic medical examination process and investigatory interviews and shall provide emotional support, crisis intervention, information, and referrals.” If a rape crisis center is not available to provide this service, the agency must provide a qualified staff member of a community-based organization, or a qualified agency staff member. The purpose of the standard is to provide victims with in-person advocacy and support during the forensic medical exam and investigatory interview. This is comparable with services that are generally available to victims in the community when they seek forensic exams or report sexual assaults.
PREA Standard 115.53, by contrast, focuses on longer-term or ongoing counseling and support for victims, which could be provided by phone or mail, or offered in person. This standard is also intended to provide victims with a way to reach out to a provider to request support. Specifically, this standard requires the facility to:
- Provide victims with mailing addresses and phone numbers (including toll-free hotlines where available) for victim advocacy or rape crisis organizations, and enable communication between inmates and victim service providers in “as confidential a manner as possible;”
- Inform inmates of the extent to which their communications with victim service providers will be monitored, and the extent to which reports of sexual abuse will be forwarded to authorities, in accordance with mandatory reporting laws; and
- Attempt to enter into agreements with victim service providers to provide inmates with confidential sexual abuse support services.
One example of how facilities and agencies have met these requirements is by signing an agreement with a local rape crisis center to respond to hotline calls and provide advocates on-site at certain dates/times. On-site advocates can meet with individual victims and facilitate support groups. The focus of this on-site work is helping victims to recover from the longer-term trauma and emotional impact related to being a victim of sexual abuse.
While the victim advocacy requirements of PREA Standard 115.21 are generally triggered after an inmate makes a report of sexual abuse within a facility, agencies are required to provide all inmates with access to outside confidential support services under PREA Standard 115.53, whether or not they make allegations of sexual abuse.