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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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 methods of communication may satisfy the external reporting mechanisms required by standards 115.51, 115.251, and 115.351 (b)? What are the required parameters of anonymity set forth by the standards for inmates who wish to make such reports anonymously?
The standards do not specify the precise reporting mechanisms required to satisfy these standards. However, the PREA Notice of Final Rule (NFR) makes clear that the Department intended to provide agencies with a degree of flexibility with respect to methods of reporting. See 77 Fed. Reg. 37156-57 (June 20, 2012). Accordingly, so long as the avenue(s) for external reporting provides all inmates (and residents) access to an external reporting entity allowing inmates to communicate in a manner that does not reveal the substance of the communication to agency or facility officials, and safeguards to the greatest extent possible the fact that the inmate utilized such mechanism, the reporting method may satisfy this requirement. A telephone, inmate correspondence, and email all may be acceptable avenues for inmates to contact the appropriate external entity.
The NFR also makes clear that the standards require the external reporting entity to accept anonymous reports, and also requires the entity to conceal the identity of the reporting inmate from agency and facility officials when the inmate requests anonymity. Supra. However, if the external entity knows the identity of the reporting inmate and the entity has a legal obligation to report allegations of sexual abuse to another external entity (such as law enforcement officials, or a social services agency in the event of a child abuse allegation), then the external reporting entity may reveal the identity of the reporting inmate to another external entity if required by law.
Finally, because the standards expressly permit the reporting inmate to maintain anonymity with respect to agency and facility officials, agencies must take great care to avoid reporting mechanisms that would necessarily expose the identity of the reporting inmate to facility staff and administrators.
Illustration One: A facility provides, as its only avenue for inmate external reporting, a mailing address to an external agency willing and able to fulfill the requirements of the standard. All regular outgoing inmate correspondence is subject to opening and inspection by facility staff. Further, all outgoing inmate correspondence must include a return address for the inmate including the inmate’s name.
To comply with the standard, the facility should ensure that inmate correspondence addressed to the designated external reporting entity remains unopened. Further, if the facility requires the name of the sending inmate on the letter, the facility should maintain strict policies and procedures that prohibit mailroom staff from revealing to other staff or administrators the fact that the named inmate sent correspondence to the sexual abuse reporting entity.
Illustration Two: A facility maintains a disciplinary isolation unit where inmates have extremely limited access to common areas and programming. Generally, in order for inmates in this unit to obtain access to the telephone, email, or materials for composing and sending correspondence, the inmate must request access from security staff supervising the housing unit.
To comply with the standard, all inmates (including those inmates in restrictive housing) must be afforded an avenue reasonably designed to safeguard knowledge within the facility about the fact that an inmate is making an external report of sexual abuse.
If correspondence is the only external reporting mechanism for inmates, then the facility may provide inmates in this unit with regular and timely access to a “lock box” rather than requiring the inmate to provide the correspondence to the unit’s security staff. Such a lock box should only be accessible by a designated agency official or selected officials. Similarly, if a hotline is the only external reporting mechanism, then configuration of the telephone should not make obvious that any inmate using the telephone system is making an allegation of sexual abuse. For example, if the hotline is a dedicated phone, then the phone should also be used for other purposes besides reporting sexual abuse.
Can an answering service be used to satisfy the requirement in standard 115.51 (b) that the agency provide an outside reporting mechanism?
No. Section 115.51 (b) states 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.” A number of state agencies have reported to DOJ and the PREA Resource Center (PRC) that they have had difficulty finding an outside agency willing to take reports of sexual abuse from its prisons and have, as a means of satisfying the requirement in standard 115.51 (b), sought to hire an answering service to take such calls with the understanding that the answering service would then relay the report back to the agency immediately. This does not satisfy the requirement of the standard because an answering service is not a “public or private entity or office that is not part of the agency.” The intent of the standard is to provide inmates with a means to report to an entity or office with some autonomy. It is anticipated that availability of such an entity or office will increase the likelihood that victims will report sexual abuse within confinement facilities. An answering service in this context is, essentially, no more than an agent of or a contractor to the agency.