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Understanding What the Prison Rape Elimination Act (PREA) Means for Youth Dana Shoenberg, Deputy Director Jason Szanyi, Staff Attorney Center for Children’s Law and Policy November 14, 2012 Models for Change Cross-Action Network Meeting Goals 2 Explain the history and goals of the Prison Rape Elimination Act (PREA) Describe the PREA standards’ most important requirements Explain how PREA can inform and support your work The Prison Rape Elimination Act of 2003 3 First federal civil statute focused specifically on addressing sexual violence in juvenile facilities, jails, prisons, lockups, and other facilities Established a zero tolerance standard for incidence of prison rape Included tools aimed at helping jurisdictions prevent, detect, and respond to sexual misconduct Main PREA Provisions 4 Created the National Prison Rape Elimination Commission (NPREC) to study the issue, conduct hearings, issue a report, and propose national standards Increased available data on the incidence of sexual victimization Provided initial funding and training opportunities (and now the PREA Resource Center) Required the Justice Department to issue binding national standards for juvenile and adult facilities Why is PREA so important? 5 Estimated numbers of individuals victimized in 2008:* Adult Prisons 91,400 Adult Jails 108,100 Juvenile Facilities 17,100 Total 216,600 *From the BJS Surveys of Sexual Violence, as reported in DOJ PREA Notice of Proposed Rule Making, released January 24, 2011 Prevalence in Juvenile Facilities 6 The Bureau of Justice Statistics conducted the first comprehensive study of sexual victimization in juvenile facilities using youth’s self-reported answers to a series of questions Over one in eight youth (12.1%) reported one or more incidents of sexual victimization in the previous 12 months or since admission Youth were four times as likely to be abused by staff members as they were by other youth 95% of staff perpetrators of sexual abuse were female, and 92% of youth victimized by staff members were male Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 (2010). Prevalence in Juvenile Facilities (cont’d) 7 © Richard Ross Youth who had been sexually assaulted prior to their confinement experienced sexual victimization in custody at twice the rate of those with no sexual assault history Male youth were more than twice as likely as female youth to be sexually abused by staff Female youth were more than four times as likely as male youth to be sexually abused by another youth Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 (2010). Prevalence in Juvenile Facilities (cont’d) 8 In comparison to heterosexual youth, nonheterosexual youth reported: Sexual victimization at twice the rate (20.4% compared to 11.1%) Sexual victimization by facility staff at a higher rate (11.2% compared to 10.2%) Sexual victimization by another youth at ten times the rate (12.5% compared to 1.3%) Source: Bureau of Justice Statistics, Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09 (2010). What contributes to sexual misconduct in facilities that house youth? 9 In the 2003 Survey of Youth in Residential Placement, youth who reported being beaten up, had property stolen, or were forced to engage in sexual activity were twice as likely to report that staff were not accessible and did not treat residents fairly than to report that staff were accessible and fair. Cultures that don’t respect youth Broken reporting, investigation and/or grievance systems Lack of sufficient effective programming Mid-level supervision breakdowns Staffing challenges: not enough people, not the right background and temperament, not enough training, high turnover Insufficient mental health supports Lack of access to community advocates What is the status of the PREA standards? 10 The PREA standards took effect on August 20, 2012 Four sets of standards for different types of facilities: Juvenile facilities Adult prisons and jails Lockups Community confinement facilities Immediately binding on facilities operated by the Department of Justice Federal agencies with confinement facilities must propose and finalize efforts to comply with PREA by mid-January 2013 pursuant to a Presidential Memorandum Which facilities do the PREA standards cover? 11 Juvenile facilities Facilities “primarily used for the confinement of juveniles pursuant to the juvenile justice system or criminal justice system” A “juvenile” is any person under the age of 18 “unless under adult court supervision and confined or detained in a prison or jail” Juvenile facility standards apply to community confinement facilities that house youth, such as group homes and staffsecure residential facilities Youth in adult facilities who are under adult court supervision receive separate protections in those standards Who has to comply with the PREA standards? 12 Governor must certify that all facilities “under the operational control of the State’s executive branch” comply with the PREA standards or risk losing 5% of Department of Justice “prison” funding Certification includes contracted facilities operated by private entities on behalf of the state, as well as local facilities that the state contracts with for bed space No final definition of “prison” funds yet, but would likely include Byrne Grant and JJDPA funds First certification must be made by August 20, 2013 Do locally operated facilities have to comply? 13 “The PREA standards apply equally to locally operated facilities . . . However . . . PREA provides no direct federal financial penalty for not complying.” -- PREA Resource Center Accrediting bodies that receive federal funding must incorporate PREA’s requirements In litigation over sexual misconduct, courts may interpret PREA standards as “generally accepted professional standards” (too early to know) How do the PREA standards begin to address the problem of sexual misconduct? 14 Equipping agencies and staff with knowledge and skills to prevent and detect problems Minimizing opportunities for victimization Creating effective reporting channels Coordinating responses to alleged misconduct, including appropriate medical and mental health services Monitoring efforts to reduce victimization 15 Equipping Agencies and Staff to Prevent and Detect Problems Establish a zero-tolerance culture toward sexual abuse, including a written policy that outlines agency’s approach to prevention, detection, and response Designate an agency-wide PREA coordinator with sufficient time and authority to coordinate and monitor efforts and compliance managers to coordinate efforts at each facility 16 Equipping Agencies, Staff and Youth to Prevent and Detect Problems (cont’d) Train staff initially and provide refresher trainings every two years on a range of topics including: Reporting responsibilities Dynamics of sexual abuse in juvenile facilities Detecting and responding to actual or threatened abuse Effective communication with LGBTQI and gender nonconforming youth Train volunteers and contractors Youth education 17 Minimizing Opportunities for Victimization Screen youth upon intake for risk of victimization and risk of engaging in misconduct Use information to make housing and programming assignments Do not automatically isolate LGBTQI youth or other youth for their protection Give transgender and intersex youth opportunity to shower separately from other youth If isolated, youth must receive protections and have regular review of ongoing need for isolation 18 Minimizing Opportunities for Victimization (cont’d) Limit certain searches and crossgender viewing No cross-gender pat-down, strip, or body cavity searches unless performed by a medical professional or in exigent circumstances No strip searches of transgender or intersex youth solely to determine genital status Avoid cross-gender viewing of youth when unclothed © Richard Ross Minimizing Opportunities for Victimization (cont’d) 19 Develop staffing plans that ensure adequate direct supervision Video surveillance is not a substitute for in-person direct supervision Minimum staff-to-youth ratios of 1:8 during waking hours and 1:16 during sleeping hours in secure juvenile facilities* © Richard Ross *Note: DOJ requested additional comments on this standard, which may change. Creating Effective Reporting Channels 20 Educate youth at intake and provide more in-depth information later Make accommodations for youth with disabilities and youth with limited English proficiency Ensure that information is available on an ongoing basis through posters, handbooks, or other written formats Creating Effective Reporting Channels (cont’d) 21 Provide youth with multiple internal mechanisms to report misconduct, plus at least one external mechanism No time limit on grievances regarding sexual misconduct No punishment for filing grievances unless determination that youth filed in bad faith Educate third parties (e.g., parents, attorneys) about ways of reporting on behalf of youth and permit them to file grievances Respond to allegations in a timely manner and inform youth of outcomes Responding to Alleged Misconduct 22 Develop written plan to coordinate responses to sexual abuse allegations among staff, medical and mental health professionals, investigators, and facility administrators If an agency conducts its own investigations: Use investigators with specialized training and generate thorough report with findings Follow uniform and developmentallyappropriate evidence collection protocols © Richard Ross 23 Responding to Alleged Misconduct (cont’d) Forward allegations of sexual abuse to parents/legal guardians, attorneys, child welfare caseworkers When appropriate, youth victimized in a facility receive: Free forensic examinations Testing and prophylaxis for sexually transmitted infections Lawful pregnancy-related services Follow-up medical and mental health care Have policies and procedures on referrals to outside entities for investigation and criminal prosecution, when appropriate 24 Responding to Alleged Misconduct (cont’d) Develop relationships with victim advocates to provide support services to youth If youth reports prior sexual victimization or abusiveness at intake, provide youth with follow-up meeting with medical or mental health professional If youth alleges misconduct in another facility, notify head of former facility and appropriate investigative agency Discipline staff for violating sexual misconduct policies (termination is presumptive response for substantiated sexual abuse cases) 25 Responding to Alleged Misconduct (cont’d) If youth are isolated as a protective measure, they receive: Daily large muscle exercise Access to education Daily visits from medical or mental health clinicians Access to other programs and opportunities Review and document continued need for isolation and documentation of lack of other alternatives every 30 days 26 Responding to Alleged Misconduct (cont’d) Youth who engage in sexual abuse only receive discipline pursuant to formal process that considers disabilities and mental illness No sanctions for contact with staff unless staff did not consent If youth are isolated, they receive daily large muscle exercise, access to education, daily visits from medical or mental health clinicians, and access to other programs and opportunities NOTE: Voluntary sexual contact among youth does not count as sexual abuse for purpose of PREA’s reporting requirements 27 Monitoring Efforts to Reduce Victimization Conduct sexual abuse incident reviews following each investigation Gather accurate, uniform data for every sexual abuse allegation Audit each facility operated by an agency or by private organizations on behalf of an agency at least once every three years Publicly report data on sexual abuse allegations and results of PREA audits What are the protections for youth in adult facilities? 28 No contact between youth and adult inmates in housing units No contact between youth and adults in common areas or ensure youth are constantly and directly supervised by staff Make “best efforts” to avoid isolation as a means to achieve separation If isolated, youth receive large muscle exercise and special education services absent “exigent circumstances,” and access to other programs and work opportunities to the extent possible How can I use this information? 29 Find out what juvenile justice agencies and facilities in your community are doing to comply with PREA Identify and advocate for implementation of standards that impact your work Determine whether your governor is considering noncompliance and advocate for compliance How can I use this information? 30 Offer to join existing working groups or task forces on PREA implementation to contribute your perspective Encourage local facilities to comply with the standards, even though they may not be subject to a loss of federal funds for noncompliance Resources 31 PREA Resource Center www.prearesourcecenter.org American University Washington College of Law, Project on Addressing Prison Rape http://www.wcl.american.edu/endsilence/ Center for Children’s Law and Policy www.cclp.org/prea.php Contact Information 32 Dana Shoenberg Deputy Director 202-637-0377 x107 [email protected] Jason Szanyi Staff Attorney 202-637-0377 x108 [email protected] www.cclp.org