Transcript Slide 1

Juvenile Law Update:
Understanding What the
Prison Rape Elimination Act
(PREA) Means for Youth
Jason Szanyi, Staff Attorney
Center for Children’s Law and Policy
October 25, 2012
Missouri Juvenile Justice Association Fall Conference
Goals
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Explain the history and goals of the Prison Rape
Elimination Act (PREA)
Discuss common themes in facilities that have
problems with sexual misconduct
Describe the PREA standards’ most important
requirements and offer tips for implementation
The Prison Rape Elimination Act of 2003
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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
What does PREA do?
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Created the National Prison Rape
Elimination Commission (NPREC) to
study the issue, conduct hearings,
issue a report, and propose national
standards
Increases available data on the
incidence of sexual victimization
Provided initial funding and training
opportunities (PREA Resource
Center)
Required the Justice Department to
issue binding national standards for
juvenile and adult facilities
Why is PREA so important?
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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
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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)
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© 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)
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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).
Key Concepts to Think About
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Isolation
Vulnerability
Power
What contributes to sexual misconduct in
facilities that house youth?
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In the 2003 Survey
of Youth in
Residential
Placement, youth
who were 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.
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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
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How do the PREA standards begin to
address these problems?
Equipping agencies and staff with knowledge and
skills to prevent, detect, and respond to problems
 Minimizing opportunities for victimization
 Creating effective reporting channels
 Coordinating responses to alleged misconduct
 Monitoring efforts to reduce victimization
Remember: The PREA standards are a floor, and
facilities can take additional steps to prevent, detect,
and respond to sexual misconduct
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Which facilities does PREA cover?
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Four sets of standards for different types of facilities:
Juvenile facilities
 Adult prisons and jails
 Lockups
 Community confinement facilities
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Immediately binding on facilities operated by the
Department of Justice (e.g., Bureau of Prisons facilities)
Presidential Memorandum requires federal agencies
with confinement facilities to propose and finalize
efforts to comply with PREA by mid-January 2013
Which facilities does PREA cover?
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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, such as group homes
 Youth in adult prisons, jails, and lockups who are under adult
court supervision receive separate protections in those
standards
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Who has to comply with PREA?
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Governor must certify that all facilities “under the
operational control of the State’s executive branch”
fully comply with the PREA standards or risk losing
five percent of Department of Justice “prison”
funding
 No
final definition of “prison” funds as of yet
 Certification includes contracted facilities operated by
private entities on behalf of the state
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First certification must be made by August 20, 2013
Who has to comply with PREA? (cont’d)
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What about locally-operated facilities?
 “The
PREA standards apply equally to locally operated
facilities, such as lockups, jails, juvenile detention
centers, and locally operated residential community
confinement facilities . . . However, for local facilities or
facilities not operated by the state, PREA provides no
direct federal financial penalty for not complying.”
Who has to comply with PREA? (cont’d)
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Even though a facility may not fall within scope of
Governor’s certification, it may be subject to
litigation for noncompliance if PREA standards are
interpreted as “generally accepted professional
standards” and the conduct at issue is a substantial
departure from those professional standards
Accrediting bodies that receive federal funding
must incorporate PREA’s requirements
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Equipping Agencies and Staff to
Prevent and Detect Problems
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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
Each facility must designate a PREA compliance
manager to coordinate efforts at each facility
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Equipping Agencies and Staff to
Prevent and Detect Problems (cont’d)
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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
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Equipping Agencies and Staff to
Prevent and Detect Problems (cont’d)
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Require immediate reporting of
knowledge, suspicion, or
information regarding
misconduct or neglect of
responsibilities contributing to
misconduct
Report retaliation against youth
or staff who report or help with
investigations of abuse
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Minimizing Opportunities for
Victimization
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Bar hiring, promotion, or contracting with individuals who have
a history of sexual misconduct
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
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Minimizing Opportunities for
Victimization (cont’d)
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Train volunteers and contractors who have contact
with youth
Limit certain searches and cross-gender viewing
 No
cross-gender pat-down, strip, or body cavity
searches unless performed by 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
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Supervisors conduct and document unannounced
rounds on all shifts
Minimizing Opportunities for
Victimization (cont’d)
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Develop staffing plans
that ensure adequate
direct supervision
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Minimum staff-to-youth
ratios of 1:8 during waking
hours and 1:16 during
sleeping hours in secure
juvenile facilities
Note: DOJ requested
additional comments on this
standard, which may
change
© Richard Ross
Minimizing Opportunities for
Victimization (cont’d)
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“[Video surveillance]
cannot substitute for
more direct forms of
staff supervision . . .
and cannot replace
the interactions
between inmates or
residents and staff
that may prove
valuable at
identifying or
preventing abuse.”
-DOJ Commentary
accompanying the
final PREA standards
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Consider sexual misconduct
prevention in any facility upgrade
or new construction, including
appropriate use of video
surveillance to complement direct
supervision
Video surveillance is not a
substitute for in-person direct
supervision
Creating Effective Reporting Channels
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Educate youth at intake and during
orientation
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Upon intake, basic information about
zero-tolerance policy and way to report
incidents
Within 10 days, comprehensive, ageappropriate education
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Right to be free of abuse
Policies and procedures for reporting
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)
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Provide youth with multiple internal mechanisms to report
misconduct, plus at least one external mechanism
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No time limit on grievances regarding sexual misconduct
No punishment for filing grievances unless determination that youth filed
in bad faith
Establish an emergency grievance procedure for youth at
serious risk of imminent abuse
Educate third parties (e.g., parents, attorneys) about ways of
reporting on behalf of youth
Respond to allegations in a timely manner and inform youth of
outcomes
Responding to Alleged Misconduct
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Develop written plan to coordinate
responses to sexual abuse allegations
among staff, medical and mental
health professionals, investigators, and
facility administrators
If agency conducts own investigations:
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Use investigators with specialized training
and generate thorough report with
findings
Follow uniform and developmentallyappropriate evidence collection protocols
© Richard Ross
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Responding to Alleged Misconduct
(cont’d)
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Have policies and procedures on referrals to outside
entities for investigation and criminal prosecution, when
appropriate
Forward allegations to parents/legal guardians,
attorneys, child welfare caseworkers
When appropriate, youth victimized in a facility receive:
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Free forensic examinations
Testing and prophylaxis for sexually transmitted infections
Lawful pregnancy-related services
Follow-up medical and mental health care
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Responding to Alleged Misconduct
(cont’d)
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If youth are isolated as a protective
measure, they receive:
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Daily large muscle exercise
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Access to education
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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
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Responding to Alleged Misconduct
(cont’d)
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Facilities 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 within 72
hours
Agencies discipline staff for violating sexual misconduct
policies (termination is presumptive response for substantiated
sexual abuse cases)
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Responding to Alleged Misconduct
(cont’d)
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Youth only receive discipline pursuant to formal process
that considers disabilities and mental illness
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Can consider treatment in lieu of sanctions, but cannot require
participation as condition to general programming or education
No sanctions for contact with staff unless staff member 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
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Monitoring Efforts to Reduce
Victimization
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Conduct sexual abuse incident reviews following
each investigation
 What
could the facility have done to prevent the
situation?
 Implement recommendations for corrective action
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Gather accurate, uniform data for every sexual
abuse allegation
 Use
to identify problems and take corrective action
 Publicly report data and compliance efforts every year
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Monitoring Efforts to Reduce
Victimization (cont’d)
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Audit each facility operated by an agency or by
private organizations on behalf of an agency at
least once every three years
 Use
independent auditors trained by the Department
of Justice
 Develop and implement corrective action plans within
180 days
 Make results of audit public
What are the protections for youth in adult
facilities?
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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
Tips for Implementation
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Identify a strong leader to guide the work
Think comprehensively - meaningful implementation
requires much more than promulgation of a policy and
a standalone training
Convene a working group to think through tough issues
Cross-gender searches and viewing
 Mandatory reporting
 Contracted and community-based facilities
 Reporting mechanisms for family members and third parties
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Involve other stakeholders who will help make
implementation successful (e.g., investigating agencies,
rape crisis centers)
Resources
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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
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Jason Szanyi
202-637-0377 x108
[email protected]
www.cclp.org