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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Can you please clarify the parameters of conducting a search of a transgender or intersex inmate/resident?
An agency cannot search or physically examine transgender or intersex inmates/residents/detainees for the sole purpose of determining their genital status. As noted in PREA Standards 115.15(d), 115.115(d), 115.215(d), and 115.315(d), if an inmate’s, resident's or detainee's genital status is unknown, an agency can determine it through conversations with the inmate/resident/detainee, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner. Additionally, agencies must provide training to security staff in how to conduct cross-gender pat-down searches and searches of transgender and intersex inmates/residents/detainees. See Standards 115.15, 115.115, 115.215, and 115.315. Security staff must conduct these searches in a professional and respectful manner; in the least intrusive manner possible, and consistent with security needs. Id.
Operationally, four options are in current practice for searches of transgender or intersex inmates/residents/detainees: 1) searches conducted only by medical staff; 2) pat searches of adult inmates conducted by female staff only, especially given there is no prohibition on the pat searches female staff can perform (except in juvenile facilities); 3) asking inmates/residents/detainees to identify the gender of staff with whom they would feel most comfortable conducting the search, and 4) searches conducted in accordance with the inmate’s gender identity.
Revised December 2, 2016. Original posting date February 7, 2013
1a. Does the standard that requires the facility to enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia apply equally to viewing that is done remotely via recorded or live video camera feed?
1b. Does this standard apply to opposite-gender staff who may view inmates in their beds or cells either through direct viewing or remotely by video camera?
1c. If the cross-gender viewing prohibitions do apply to remote viewing and viewing inmates in their beds, please explain the effect, if any, on cross-gender staffing of dormitory settings and cross-gender viewing of video cameras in dormitory settings.
(The following response answers all three questions.)
Yes. The intent of PREA Standards 115.15, 115.115, 115.215, and 115.315 (limits to cross-gender viewing and searches), subsection (d) is to provide inmates with the ability to shower, use the toilet, and change their clothes without being viewed by nonmedical staff of the opposite gender. The standard also functions to ensure that inmates have the information they need in order to cover up when opposite-gender staff members are working in their housing areas. The exception for viewing incidental to routine cell checks acknowledges that opposite-gender staff will work in housing areas and may see an inmate naked in his/her cell while conducting routine cell checks, but this is paired with the requirement that opposite-gender staff announce their presence to enable inmates to cover up during those periods if they do not wish to be viewed. Therefore, to the extent that cameras are focused on an area in which inmates are likely to be undressed or toileting, such as showers, bathrooms, and individual cells, the cameras should only be monitored by officers or nonmedical administrators of the same gender as the inmates viewed through the camera.
Practically, most cameras in correctional facilities are focused on common areas, including dayrooms, hallways, recreation areas, etc. In dormitory units, cameras may be in the common area that includes inmate beds. Cameras are rarely located within shower or toilet areas. It is acknowledged that there is a diminished expectation of privacy in the open area of a dormitory setting or other common areas of correctional facilities. In addition, most facilities have rules prohibiting inmates from disrobing or being unclothed in common areas. If this is the case and these rules are enforced, cameras focused on common areas, including dormitory sleeping units, may be monitored by either gender.
Finally, in order to maintain the ability to conduct thorough and effective investigations and incident reviews involving sexual abuse, sexual harassment, and other misconduct, appropriately trained internal and external investigators, and senior facility and agency administrators are not prohibited by this rule from viewing any cross-gender recorded camera footage in conjunction with an investigation or incident review. Other staff are not prohibited from viewing cross-gender recorded camera footage, as long as the footage does not depict inmates showering, performing bodily functions, changing clothes, or in a state of undress of partial undress.
Revised March 17, 2016. Original posting date March 26, 2014.
How do the requirements of standard 115.15(d) apply to inmates who have been placed on suicide watch? Is there a distinction between suicide watches being conducted via video and those under in-person observation?
The definition of “suicide watch” varies across corrections agencies. Suicide watch generally refers to placing an actively suicidal inmate on a heightened level of monitoring due to high risk of imminent suicidal action.
Actively suicidal inmates should be subject to constant observation. Some agencies also consider suicide watch to include situations where constant monitoring may not be clinically indicated. For example, inmates may require frequent, periodic, and unpredictable observations not to exceed 5 or 15 minute intervals. While suicide watch should be conducted under the direction of a mental health staff member, suicide precautions are often initiated by correctional staff before a mental health evaluation can occur. Continual observation is essential to ensure inmate safety before a mental health professional can assess the situation.
Regardless of the definition of suicide watch, the PREA standards do not prohibit cross gender staff from being assigned to conduct a suicide watch. The relevant portion of standard 115.15(d) states, “The facility shall implement policies and procedures that 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 when such viewing is incidental to routine cell checks.”
Therefore, a cross gender staff can be assigned to suicide watch, including constant observation, so long as the facility has procedures in place that enable an inmate on suicide watch to avoid exposing himself or herself to nonmedical cross gender staff. This may be accomplished by substituting same gender correctional staff or medical staff to observe the periods of time when an inmate is showering, performing bodily functions, or changing clothes. It may also be accomplished by providing a shower with a partial curtain, other privacy shields, or, if the suicide watch is being conducted via live video monitoring, by digitally obscuring an appropriate portion of the cell. Any privacy accommodations must be implemented in a way that does not pose a safety risk for the individual on suicide watch. The privacy standards apply whether the viewing occurs in a cell or elsewhere.
The exceptions for cross gender viewing under exigent circumstances or, for inmates who are not on constant observation, when incidental to routine cell checks apply to suicide watch as well. Because safety is paramount when conducting a suicide watch, if an immediate safety concern or inmate conduct makes it impractical to provide same gender coverage during a period in which the inmate is undressed, such isolated instances of cross gender viewing do not constitute a violation of the standards. Any such incidents should be rare and must be documented.
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.
What are the PREA standards and when are they effective?
The Prison Rape Elimination Act (PREA) was passed in 2003. The law created the National Prison Rape Elimination Commission (NPREC) and charged it with developing standards for the elimination of sexual abuse in confinement. The law required the Department of Justice (DOJ) to review the NPREC standards, make revisions as necessary, and pass the final standards into law.
The final rule was published in the federal register on June 20, 2012, and became effective on August 20, 2012. Certain standards do not go into effect until a later date. The standard that governs external audits provides that the first audit cycle begins on August 20, 2013, and, to be in compliance, that jurisdictions must have at least one third of their facilities audited within the subsequent 12-month period ending August 20, 2014. The restrictions on cross-gender pat-down searches of female inmates in prisons, jails, and community confinement facilities (115.15(b) and 115.215(b)) went into effect on August 20, 2015, for facilities whose rated capacity is 50 or more inmates, and do not go into effect until August 21, 2017, for facilities whose rated capacity does not exceed 50. The standard on minimum staffing ratios in secure juvenile facilities (115.313(c)) does not go into effect until October 1, 2017, unless the facility is already obligated by law, regulation, or judicial consent decree to maintain the minimum staffing ratios set forth in that standard.
Does the use of a virtual scanner by an opposite-gender staff person violate the prohibition against cross-gender viewing and/or cross-gender strip searches?
Section 115.15(a) states, “The facility shall not conduct cross-gender strip searches or cross-gender visual body cavity searches (meaning a search of the anal or genital opening) except in exigent circumstances or when performed by medical practitioners.” The regulations define “strip search” as “a search that requires a person to remove or arrange some or all clothing so as to permit a visual inspection of the person’s breasts, buttocks, or genitalia.” See standard 115.5. The standards also state, “The facility shall implement policies and procedures that enable inmates to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender reviewing their breasts, buttocks, or genitalia, except in exigent circumstances.” See standard 115.15(d).
Whether or not a virtual scanner or other electronic search complies with this provision will depend on the technology involved. For example, some technologies provide images similar to an x-ray, with no discernable body contours. Other technologies only provide an image representing a human form, with no actual body images. The cross-gender use of these technologies complies with the PREA standards.
Other technologies can be more detailed and will provide outlines of breasts, buttocks, or genitalia. Cross-gender use of these technologies by non-medical staff would not comply with the PREA standards, unless used with privacy filters that can blur body contours. If used by cross-gender staff during exigent circumstances without the appropriate filters, the search must be documented under standard 115.15(c).
How is “housing unit” defined for the purposes of the PREA Standards?
The question has been raised in particular as it relates to facilities that have adjacent or interconnected units.
The most common concept of a housing unit is architectural. The generally agreed-upon definition is a space that is enclosed by physical barriers accessed through one or more doors of various types, including commercial-grade swing doors, steel sliding doors, interlocking sally port doors, etc. In addition to the primary entrance and exit, additional doors are often included to meet life safety codes. The unit contains sleeping space, sanitary facilities (including toilets, lavatories, and showers), and a dayroom or leisure space in differing configurations.
Many facilities are designed with modules or pods clustered around a control room. This multiple-pod design provides the facility with certain staff efficiencies and economies of scale. At the same time, the design affords the flexibility to separately house inmates of differing security levels, or who are grouped by some other operational or service scheme. Generally, the control room is enclosed by security glass, and in some cases, this allows inmates to see into neighboring pods. However, observation from one unit to another is usually limited by angled site lines. In some cases, the facility has prevented this entirely by installing one-way glass.
Both the architectural design and functional use of these multiple pods indicate that they are managed as distinct housing units.
Opposite-gender supervisors, staff, or other nonmedical personnel should generally not be permitted to observe the conduct of a same-gender strip search or visual body cavity search (absent exigent circumstances). In cases where supervisors who are opposite gender to the inmate being strip searched (either live or via video monitoring) are required to supervise or observe the strip search, a facility should use a privacy screen or other similar device to obstruct cross-gender viewing of an inmate’s breasts, buttocks, or genitalia. The privacy screen or other similar device need only be of sufficient height and position to obstruct viewing of the listed areas. In cases where other opposite-gender staff or personnel are in the vicinity of the strip search, similar precautions should also be used, unless the opposite-gender staff or personnel are of sufficient distance where the contours of the breasts, genitalia, or buttocks are not readily distinguishable. This interpretative guidance is not intended to require gender-specific staff posts.
Does the opposite-gender “announcement” requirement in 115.15(d) conflict with the requirement in 115.13(d) that supervisory staff conduct unannounced rounds to deter staff sexual abuse and sexual harassment?
No. Section 115.13(d) determines when rounds within an institution should occur; section 115.15(d) sets forth the requirements of how rounds should be conducted in housing units.
Section 115.13(d) requires both a policy and practice of having intermediate-level or higher level supervisors conducting and documenting unannounced rounds to identify and deter staff sexual abuse and sexual harassment. Such policy and practice shall be implemented for night shifts as well as day shifts. The term “unannounced” in this standard is intended to ensure that staff are not unnecessarily alerted to the periodic arrival on a housing unit of management personnel. Accordingly, this section specifically prohibits staff from alerting other staff members that these rounds are occurring, unless such announcement is related to legitimate operational functions. Supervisory staff performing rounds at unexpected, non-routine times helps deter incidents of sexual abuse and sexual harassment.
Section 115.15 (d), on the other hand, requires a facility to implement policies and procedures that 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 when such viewing is incidental to routine cell checks. Such policies and procedures shall require staff of the opposite gender to announce their presence when entering an inmate housing unit. The announcement in this standard is intended to put inmates on notice as to the presence of opposite-gender staff on the unit. This regulation is meant to balance privacy concerns of the inmate population with the security and operational needs of the facility.
Accordingly, intermediate-level or higher level supervisors performing the unannounced supervisory rounds pursuant to 115.13(d) are not exempt from the cross-gender announcement required pursuant to 115.15(d). Click here for additional information regarding the cross-gender announcement requirement.
What gender should transgender staff be considered for the purposes of complying with cross-gender viewing and search prohibitions established in standard 115.15?
Facilities should verify whether there are any specific legal authorities, statutes, or personnel policies that may be relevant to this determination. Absent any specific authorities, facilities should make an individualized determination based on the identified gender of the staff member, and not solely on the basis of the biological gender. This decision should be made at the request of, and in conjunction with, the transgender staff member. The determination may also change during the course of employment, as part of an on-going adjustment process, or as the staff member gains real-life experience living as a person of the identified gender.