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.