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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Does the provision in standard 115.17(f) that requires the agency to ask employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of the standard, “in any interview or written self-evaluation conducted as part of reviews of current employees,” still apply if the agency does not interview nor provide employees with an opportunity to self-evaluate as part of their review process? And, if so, does an ongoing affirmative duty to report said misconduct as an employee of the agency satisfy this requirement?
Standard 115.17(f) states, “The agency shall ask all applicants and employees who may have contact with inmates directly about previous misconduct described in paragraph (a) of this section in written applications or interviews for hiring or promotions and in any interviews or written self-evaluations conducted as part of reviews of current employees. The agency shall also impose upon employees a continuing affirmative duty to disclose any such misconduct.”
If the agency does not use written applications, written self-evaluations, or conduct interviews under the circumstances indicated in standard 115.17(f), it has no obligation under this standard to begin these practices. However, the agency does have the obligation to establish a continual affirmative duty to disclose misconduct. The agency must impose on employees the affirmative duty to report any misconduct described in standard 115.17(a) [i.e., paragraph (a) of the standard] at any time that it occurs.
Do the prohibitions in the PREA standards against cross-gender pat searches of female inmates, and male and female juvenile residents; cross-gender strip and visual body cavity searches; and cross-gender viewing of inmates’, residents’, and detainees’ breasts, buttocks, and genitalia extend to confinement facility staff who are supervising inmates, residents, or detainees (referred to inmates in the answer below) outside of confinement facilities?
Yes. In general, confinement facility staff who supervise inmates outside of facilities are required to comply with the PREA standards, and the opposite gender prohibitions identified in this question apply to such staff.
However, nothing in the standards prohibits male staff members from supervising female inmates, or female staff from supervising male inmates. The standards only make clear that agencies, “enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia [except in exigent circumstances or pursuant to routine cell checks].” See 28 C.F.R. § 115.15(a) and (b).
The Department of Justice has received specific questions regarding prohibitions related to the supervision of female inmates who are pregnant and undergoing related medical procedures in external hospital settings. Male staff members may supervise such inmates. However, male staff are not permitted under the PREA standards to observe disrobed female inmates undergoing procedures during which they can view females’ breasts, buttocks, or genitalia. In such cases, accommodations could be made – through the use of privacy screens, curtains, or other, similar measures – that allow female inmates to receive medical care while male facility staff members remain in near proximity and carry out their supervisory responsibilities effectively, without viewing females’ breasts, buttocks, or genitalia.
In addition, absent exigent circumstances, male staff members are not permitted under the standards to conduct cross-gender pat searches,1 or cross-gender strip and visual body cavity searches outside of facilities. An exigent circumstance is defined in the standards as, “any set of temporary and unforeseen circumstances that require immediate action in order to combat a threat to the security or institutional order of a facility.” See 28 C.F.R. § 115.5.
1This cross-gender pat down prohibition for male staff members applies as of August 20, 2015, or August 20, 2017 for facilities whose rated capacity does not exceed 50 inmates.
Are clergy employed by, or who volunteer in, a correctional facility bound by the mandatory staff reporting provision in standard 115.61(a)? Is there any protection for confidential communication with clergy, and is there any special consideration for confidentiality within confessional communication?
In general, staff clergy in confinement facilities are required to report “immediately and according to agency policy any knowledge, suspicion, or information regarding an incident of sexual abuse or sexual harassment that occurred in a facility, whether or not it is part of the agency; retaliation against inmates or staff who reported such an incident; and any staff neglect or violation of responsibilities that may have contributed to an incident or retaliation.” See 28 C.F.R. § 115.61(a).
However, state and local law, and certain religious doctrine include specific requirements for making mandatory and discretionary reports of abuse and, by contrast, requiring that certain inmate-clergy communication remain confidential. Accordingly, certain religious communications between inmates and clergy (e.g., confessionals) may be exempted from the reporting requirements under this standard if the staff clergy is prohibited by law or doctrine from making such a report.
If, by contrast, clergy are not prohibited by law or doctrine to report such information to the facility, then the clergy is required to report under this standard. In such case, clergy should inform a counseled inmate of the clergy’s duty to report, and the limitations of confidentiality, at the initiation of services.
Additionally, agencies implementing the PREA staff reporting requirements under standard 115.61 should do so in a manner consistent with the federal Religious Land Use and Institutionalized Persons Act, the Religious Freedom Restoration Act, and other appropriate authorities.
Do the PREA standards require that agencies conduct criminal records background checks on, and provide PREA-related contractor or volunteer training for, public defenders, other attorneys, interns working with public defenders or other attorneys, or law students practicing as attorneys under a practice agreement, pursuant to legal representation, before they may enter a confinement facility?
No. Standard 115.17 (115.117/115.217/115.317) requires generally that agencies perform a criminal background records check (and in the case of juvenile facilities, consult applicable child abuse registries) before enlisting the services of any contractor. In addition, agencies are required to provide PREA-related training to contractors and volunteers pursuant to standard 115.32 (115.132/115.232/115.332).
Legal counsel are not contractors enlisted by the agency. Therefore, the listed standards do not apply to them.
Revised September 28, 2015. Original posting date October 22, 2014.
Are teachers and other education workers in a PREA-covered facility subject to the criminal background records check of standard 115.17 (115.117/115.217/115.317), or the employee and contractor training requirements of standards 115.31 (115.131/115.231/ 115.331) and 115.32 (115.132/115.232/115.332)?
Education workers who are employees of the confining agency are subject to the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317) and are subject to the employee training requirements of standard 115.31 (115.131/115.231/115.331).
Education workers who are not employees of the confining agency but who provide services in a PREA-covered facility on a recurring basis are considered contractors of the agency, notwithstanding the absence of a formal written contract between the education staff or the educational agency and the confining agency.
The Department has consistently indicated that, for purposes of the PREA Standards, it intends to construe the term “contract” broadly to include, among other things, formal or informal arrangements, intergovernmental services agreements, and other types of agreements to provide services to the agency. Accordingly, non-employee education staff are subject to the criminal background records check requirements of standard 115.17 (115.117/ 115.217/ 115.317) and are subject to the contractor training requirements of standard 115.32 (115.132/ 115.232/ 115.332).
If, however, a teacher or other education worker is not an employee of the confining agency and does not provide services on a recurring basis in the facility (for instance, a guest speaker or a one-time instructor who does not have unsupervised contact with inmates/residents/detainees), the PREA Standards referenced above do not require a criminal background records check or PREA training.
Revised September 28, 2015. Original posting date September 23, 2014.
Many corrections agencies, particularly community confinement agencies, place their inmates or residents in employment settings off-site. In many cases, there is no explicit contractual arrangement between the correctional agency and the employer. However, these employers have significant contact with inmates or residents. In some cases, inmates or residents are sent to other correctional facilities during the day to work. Are there any circumstances in which off-site supervisors would be subject to either the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317) or the contractor training requirements of standard 115.32 (115.132/115.232/115.332)?
In interpreting the standards requiring training and background checks for non-facility staff who have significant contact with inmates or residents, it is appropriate to limit those requirements to individuals who provide services on the facility campus. Inmates or residents who go off-site for work, programming, or other services often are under the supervision of facility staff while off-site. In other cases, the inmates or residents have unsupervised access to the community while off-site, such as in a work-release program. In either of these situations, inmates or residents should have the opportunity to report or seek assistance with regard to any off-site abuse or violations, either when the inmate or resident is out in the community or when the inmate or resident returns to the facility. Moreover, requiring background checks and training for all off-site providers or employers could severely limit the inmates’ or residents’ access to these programs.
Revised September 28, 2015. Original posting date July 3, 2014.
Under what circumstances would medical and mental health care providers who provide services to inmates or residents off-site (only) be subject to the criminal background records check requirements of standard 115.17 (115.117/115.217/115.317), the contractor training requirements under standard 115.32 (115.132/115.232/115.332), and/or the specialized training requirements for medical and mental health care providers in standard 115.35 (115.232/115.332)? Must a formal contract for services exist for these requirements to be triggered? Are the specialized training requirements ever triggered in the case of off-site medical or mental health providers, for instance, when there is no health care available at the facility and so all health care is provided off-site?
Medical and mental health care providers who provide services to inmates or residents off-site (only) are not subject to the criminal background records check requirements in standard 115.17 (115.117/115.217/115.317), the contractor training requirements under standard 115.32 (115.132/115.232/115.332), and/or the specialized training requirements for medical and mental health care providers in standard 115.35 (115.235/115.335). Generally, inmates and residents are taken off-site for medical or mental health care when the required services are not available at the correctional facility. In many rural or isolated locations, the facility’s access to medical and mental health specialists, even off-site, is very limited. As such, requiring facilities to only utilize off-site medical or mental health providers who have complied with the PREA background check and training requirements could impede inmate access to necessary medical and mental health care. When inmates or residents are taken off-site for medical or mental health care, they are generally transported and supervised by correctional staff, though they should have private contact with the medical or mental health provider during an examination or therapy session. Should an off-site medical or mental health provider engage in inappropriate or abusive behavior towards an inmate, the inmate will have the opportunity to report the incident upon leaving the provider’s office.
Revised September 28, 2015. Original posting date June 20, 2014.
What is the distinction between a facility that is under the operational control of the state’s executive branch via a contract, and therefore subject to the governor’s certification or assurance, and a facility with which the state contracts for beds, and is therefore subject to the requirements of standard 115.12 but not deemed to be under the governor’s operational control?
A facility operated by a private organization “on behalf of an agency” is generally controlled by the parent confining agency. Typically, such a facility has a dedicated (or primarily dedicated) inmate population in the legal custody of the parent agency. In addition, such facilities generally operate within the confines of the parent agency’s policies, procedures, and practices. Such facilities are usually owned by (or controlled by) the parent agency. The parent agency typically contracts with private correctional entities to operate the facilities for finite and/or renewable durations.
By contrast, a mere “contract for the confinement of inmates” between a public agency and a private (or another public) agency pursuant to standard 115.12 is generally an arrangement to confine inmates for a fixed or variable fee or on a per diem basis. This arrangement is typically considered a rental of bed space for holding inmates. Contracted facilities in this category will often rent bed space or confine inmates from multiple external public agencies. While the contract may impose a number of requirements or standards on the contracted agency, it is generally a much lower level of operational control than a facility “operated on behalf of” the contracting agency as described in the paragraph above.
It should be noted that, pursuant to standard 115.12, any new contract or contract renewal must include the contracted entity’s obligation to comply with PREA and to allow for appropriate contract monitoring.
See also related FAQs in the 115.12 and Contracting categories.
What constitutes “repeated” to satisfy the definition of “Sexual harassment”?
Sexual harassment includes—
(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and
(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.
"Repeated,” in the context of this provision, means more than one incident. Please note that the seriousness of the conduct should be taken into account in determining the appropriate commensurate response by the agency or facility. Serious misconduct along these lines, even if committed once, should still be addressed by the agency or facility.
How can the PREA Resource Center help?
The PREA Resource Center (PRC) is designed to offer assistance to state and local agencies working to address sexual abuse in their confinement facilities, adult and juvenile. One of our primary purposes is to help with implementation of the standards, but we have a broader mission to help address the issue of prison rape by providing a forum for exchanging ideas and sharing examples of innovation and emerging best practices. The PREA Essentials page is a great starting place for reviewing the standards, including common issues and resources specific to various standard sections. The PRC website offers a full library with research and tools to help agencies learn about the issue and to learn about strategies for preventing, detecting, and responding to sexual abuse in confinement. In addition, the library contains tools to help agencies develop PREA policies and implement the standards. To search the library, click here. The PRC library also contains links to resources for survivors.
The PRC offers training and technical assistance in a variety of forms. We host webinars on topics relevant to standards implementation and addressing sexual abuse in confinement in general. You can find a listing of webinars and other upcoming and archived events here. Where there is need, the PRC responds to individual requests for technical assistance from agencies and facilities. To learn more about our training and technical assistance, click here.