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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In adult prisons and jails, can adult inmates provide inmate peer education to juvenile inmates?
No. Under the Juvenile Justice and Delinquency Prevention Act (JJDPA), juveniles may not have sight or sound contact with adult inmates in any institution. See 42 USC 5601 et seq. Moreover, in any facility that houses juvenile residents, adult inmate trustees may not have sight or sound contact with residents in a juvenile facility. Thus, should an agency that oversees adult and juvenile commitments for a given state decide to utilize peer educators from its adult prison system, such peer educators could not educate juvenile residents, in either a juvenile facility or an adult facility. Even where a state agency does not have jurisdiction over adult and juvenile corrections, a program whereby adult inmates are transported to a juvenile prison to provide face-to-face peer education on any topic would violate the JJDPA.
What is required by the cross-gender announcement in Standard 115.15(d) (adult prisons and jails; and 115.315(d) (juvenile facilities with discrete housing units)?
In adult prisons and jails, and in juvenile facilities with discrete housing units, “staff of the opposite gender” are required to “announce their presence when entering an inmate housing unit.” This is sometimes referred to as the “cover-up rule” and is intended to put inmates on notice when opposite-gender staff may be viewing them. The announcement is required any time an opposite-gender staff enters a housing unit; however, the Department has determined that the purpose of the Standard may be fully realized by requiring the announcement only when an opposite-gender staff enters a housing unit where there is not already another cross-gender staff present. Accordingly, the Department has determined that compliance with the Standard will be achieved when an announcement is made, as follows:
When the status quo of the gender-supervision on a housing unit changes from exclusively same gender, to mixed- or cross-gender supervision, the opposite-gender staff is required to verbally announce their arrival on the unit. The announcement is required for both custody and non-custody staff, and may include, for example, a clinician or case worker who spends time on the unit, or senior staff making supervisory rounds.
Note, a distinct buzzer, bell, or other noisemaking device may be substituted for a verbal announcement, so long as: (1) the buzzer emits a distinctive sound that is noticeably different from other common noisemakers; (2) inmates are adequately educated on the meaning of the buzzer sound and understand its purpose; and (3) the buzzer is not also used for other events at the facility. If used, such buzzers should be used in the identical manner that verbal announcements as required by the above guidance (e.g., when opposite- gender staff enter a housing unit).
The Department has received a number of inquiries about whether the following activities would constitute compliance:
Posting a notice on the housing unit informing the inmates that they may be subject to cross-gender supervision at any time.
Making a single announcement at the beginning of each shift indicating that inmates may be subject to cross-gender supervision at any time.
Making a single announcement at the beginning of a shift indicating that an opposite-gender staff is assigned to the unit for that particular shift.
Toggling a certain color light or flickering the lights in the unit as a signal to the inmates that opposite-gender staff may be on the unit.
The Department has determined that, while these other practices may be helpful supplements to the required verbal announcement, none of them is sufficient to comply with the Standard and compliance measure, as articulated above.
The Department also notes that there is no precise verbal language required by the cross-gender announcement Standard; only that the language put inmates or residents on sufficient notice that an opposite-gender staff member is entering the housing unit. Hence, such language as “man on the unit” or “Officer Smith on the unit” may both meet this requirement.
Consistent with Standard 115.16 and 115.316, the agency shall take appropriate steps to ensure that inmates with disabilities have an equal opportunity to participate in or benefit from all aspects of the agency’s efforts to prevent, detect, and respond to sexual abuse and sexual harassment. Accordingly, additional systems may be needed to supplement the verbal cross-gender announcement in units with inmates who are deaf or hard of hearing.
[1] In lockups and community confinement facilities, and in juvenile facilities that do not have discrete housing units, opposite-gender staff are only required to “announce their presence when entering an area where” detainees and residents “are likely to be showering, performing bodily functions, or changing clothing.” 28 C.F.R. §§ 115.115(c), 115.215(d), and 115.315(d).
Is it ever appropriate for a transgender or intersex inmate or resident to be searched by both a male officer and a female officer, the male officer searching the parts of the body that are anatomically male and the female officer searching parts of the body that are anatomically female?
No. The gender of the staff member searching a transgender or intersex inmate or resident will depend on the specific needs of the individual inmate or resident and on the operational concerns of the facility. Under most circumstances, this will be a case-by-case determination, which may change over the course of incarceration and should take into consideration the gender expression of the inmate or resident.
Making accommodations, if necessary, to search individuals according to gender identity would not violate the prohibitions on cross-gender searches in standards 115.15 (a)-(c) and standards 115.315 (a)-(c). Further, standards 115.15(f) and 115.315(f) state that the agency shall train security staff in how to conduct searches of transgender and intersex inmates or residents in a professional and respectful manner and in the least intrusive manner possible consistent with security needs. Requiring two officers to search transgender inmates or residents would be more intrusive than necessary.
For more information on addressing the needs of transgender or intersex inmates, please see the National Institute of Corrections resource page at http://nicic.gov/lgbti.
Please explain the adult cross-gender viewing and searches standard.
At its most basic, the standard has three parts. First, it prohibits all cross-gender strip and body cavity searches except in exigent circumstances and disallows the use of cross-gender pat searches for female inmates in jails, prisons, and community confinement facilities (the juvenile facility standards prohibit cross-gender pat searches of both male and female residents). Second, it provides for a “knock and announce” practice when an opposite gender staff member enters a housing unit and, more generally, provides that facilities are 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. Third, the standard also provides protection from intrusive searches for the purpose of determining gender for transgender or intersex inmates.
As a practical matter, many agencies already do only same-gender pat-down searches. For example, some juvenile agencies have BFOQ positions based on the privacy rights of girls, and some adult jails that house immigration detainees who are Muslim have banned female staff from searching those detainees. Other agency practices consistent with this standard include knock and announce policies, the use of privacy shields in shower and bathroom areas, and staffing patterns that ensure the availability of male and female staff to perform searches when necessary.
Furthermore, in crafting the final rule, DOJ determined that at least at least 27 states ban the practice, and that it is common practice in several other states for male officers to perform pat-down searches of female prisoners only under exigent circumstances. DOJ believes that adopting such a practice furthers PREA’s mandate without compromising security in corrections settings, infringing impermissibly on the employment rights of officers, or adversely affecting male inmates.
In order to mitigate agency burdens for implementing the staffing changes that PREA standards may require for jails, prisons, and community confinement facilities, DOJ has provided that agencies will have additional time to come into compliance with this particular standard (August 2015, or August 2017 for facilities whose rated capacity is less than 50 inmates).
DOJ is aware that a prohibition on certain cross-gender searches and viewing will not solve the problem of sexual abuse in totality. DOJ is hopeful that adequate training of staff on conducting searches in a professional and respectful manner will decrease the likelihood of reports of sexual abuse due to an intrusive or improperly conducted search.