The US Justice Department released a new set of rules on Thursday in conjunction with a new Memorandum from President Obama to address the epidemic of sexual assaults in prison that particularly impacts LGBT inmates. It remains to be seen how these rules will be implemented in California’s over-crowded prison system that some still call a “prison industrial complex.”
Justice Department Issues New Rules on Sexual Assault of LGBT Inmates
The new rules coincide with a presidential memorandum mandating that the Prison Rape Elimination Act [PREA], a law passed by Congress with overwhelming bipartisan support nearly a decade ago, applies to all U.S. correctional and detention facilities (the Justice Department has been finalizing rules pertaining to the law over the past several years). "Sexual violence, against any victim, is an assault on human dignity and an affront to American values," President Obama wrote. "To advance the goals of PREA, we must ensure that all agencies that operate confinement facilities adopt high standards to prevent, detect, and respond to sexual abuse." While LGBT advocates have hailed the Justice Department rules as a significant step forward in protecting vulnerable gay and transgender inmates, questions remain about why DOJ's PREA regulations, which it has spent years and millions of dollars developing, do not directly apply to the nation's immigration detention facilities that hold approximately 32,000 people each day. Rather, as detailed by the Justice Department, the Department of Homeland Security, which oversees those immigration facilities, will be tasked with creating its own standards compliant to the law. The presidential memo instructs all agencies with confinement facilities to report their own rules on sexual assault to the attorney general. Allowing DHS to issue its own standards has been a contentious issue for dozens of immigrant and LGBT advocacy groups, which have stressed, in part, that the process creates two separate sets of standards for facilities housing both inmates and immigrant detainees.
The Department of Homeland Security subsequently released this statement from DHS spokesperson Peter Boogaard:
"The Department of Homeland Security fully embraces the Prison Rape Elimination Act (PREA) and looks forward to implementing PREA regulations that will govern DHS detention facilities and further our goal of preventing sexual abuse in confinement facilities. These regulations will build upon the substantial improvements we have made to agency policy and procedures to prevent, detect, and respond to sexual abuse in immigration detention. DHS will move swiftly to promulgate these regulations and will work with the Attorney General and others to ensure that the regulations satisfy the requirements of the statute."
Harmon reports that the Bureau of Justice Statistics also released "sobering figures" on the incidence of prison rape among gay and bisexual inmates:
"According to a survey of former state prisoners conducted in 2008, 39% of gay male inmates reported that they had been assaulted by a fellow inmate, compared to 3.5% of heterosexual male inmates. About one third of bisexual male inmates also reported that they had been sexually assaulted, while lesbian inmates reported incidents of sexual violence perpetrated by staff at twice the rate of female heterosexual inmates. The survey did not include transgender individuals, who by all accounts are among the most vulnerable to sexual assault in prison."
On a conference call with reporters and bloggers, a senior DOJ official said: "There has been a lot of discrimination and violence against LGBT inmates in correctional facilities and DOJ has devoted a lot of attention in this rule to LGBTI issues because of these unique vulnerabilities."
Transgender inmates experience tremendous discrimination and the National Center for Transgender Equality released a statement applauding the new rules.
The U.S. Department of Justice today released landmark National Standards to Prevent, Detect and Respond to Prison Rape. Building on the recommendations provided by the National Center for Transgender Equality (NCTE) and many allied advocates, the Standards include critical provisions for the operation of prisons and the treatment of transgender and gender nonconforming inmates, all aimed at ending sexual abuse. These standards represent nearly a decade of study and effort to comprehensively address rampant sexual abuse in confinement. The standards address several problems transgender people, as well as those with intersex conditions, face, including:
NCTE Executive Director Mara Keisling said, “We have an obligation as civilized people to protect the people we incarcerate. That has always been an American promise, but one we have barely tried to keep. These new standards, if fully implemented, have the potential to help us keep that promise at least in terms of sexual assault.” More than 216,000 youth and adults are sexually abused in prisons, jails and juvenile detention facilities each year. A new report released today by the Department of Justice confirmed that LGBT people face shocking rates of sexual abuse, and our analysis shows that more than one in three transgender former inmates was sexually abused. Studies have shown that trans women are thirteen times more likely than others to be sexually assaulted while incarcerated. Seven percent of respondents in the National Transgender Discrimination Survey reported being locked up at some point in their lives due to their gender identity. These rates skyrocketed for Black (41%) and Latino/a (21%) people. “These statistics point to a grave failure to protect individuals from abuse,” said NCTE Policy Counsel Harper Jean Tobin. “If the DOJ statistics are true, the problem can only be more pervasive for transgender inmates. And combining the trauma of sexual abuse with inadequate medical and health care may lead to other poor health outcomes like depression, substance abuse, and increased HIV infections that all take a heavy toll on survivors and their families.” Keisling added, “The safety of trans people behind bars is of particular concern because too often trans people are incarcerated only because they are transgender or because of how they’ve been forced to live because of being trans.” One critical gap in the new standards is their failure to fully and immediately cover facilities dedicated to housing individuals detained for immigration purposes. Without these standards, transgender and other immigrant detainees remain at risk for abuse. Under a memorandum issued by President Obama today, the Department of Homeland Security and the Department of Health and Human Services are required to develop their own standards to implement PREA over the next eight months. NCTE calls upon DHS and HHS to act swiftly within the 120-day deadline to promulgate rules that are fully equivalent to the new standards. Congress unanimously passed the Prison Rape Elimination Act (PREA) in 2003. Since that time, a Congressionally-appointed commission and the Department of Justice have held countless hearings and three separate public comment periods to develop these standards. LGBT survivors and advocates weighed in at every step of the process, and NCTE worked with other LGBT advocates including the American Civil Liberties Union, the National Center for Lesbian Rights, the Transgender Law Center, Immigration Equality, the Sylvia Rivera Law Project, the National Gay and Lesbian Task Force and others to jointly file more than 100 pages of comments regarding the standards over the past two years. The final standards apply to all prisons, jails, police lock-ups, juvenile detention centers, and community confinement facilities nationwide that accept federal funds. Federal prisons must comply immediately, while all other facilities have one year to comply. Violators could face federal funding penalties. NCTE and other advocates will continue to work with the Department of Justice and the Administration to ensure swift implementation of these standards, and work to ensure that immigrant detainees are protected from sexual abuse.
- Requiring a case-by-case consideration for housing in a male or female facility that is not based on genital status, meaning more trans women will be housed with other women.
- Limiting the use of isolating “protective custody” that can amount to torture.
- Limiting the use of segregated LGBTI units that are often treated as a quick fix and can stigmatize individuals.
- Requiring staff training for professional communication with and treatment of transgender and gender nonconforming inmates and those with intersex conditions to aid in assessing inmate vulnerabilities to sexual abuse.
- Banning the search or physical examination of transgender inmates and those with intersex conditions solely for determining their genital status.
- Minimizing stigma and the threat of abuse from staff by disallowing dedicated LGBTQI units and facilities.
- Requiring facilities to have multiple channels for reporting abuse without placing a time limit on when inmates can file grievances.
Here is the President's Memorandum.
Presidential Memorandum — Implementing the Prison Rape Elimination Act May 17, 2012 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES SUBJECT: Implementing the Prison Rape Elimination Act Sexual violence, against any victim, is an assault on human dignity and an affront to American values. The Prison Rape Elimination Act of 2003 (PREA) was enacted with bipartisan support and established a “zero tolerance standard” for rape in prisons in the United States. 42 U.S.C. 15602(1). My Administration, with leadership from the Department of Justice, has worked diligently to implement the principles set out in PREA. Today, the Attorney General finalized a rule adopting national standards to prevent, detect, and respond to prison rape. This rule expresses my Administration’s conclusion that PREA applies to all Federal confinement facilities, including those operated by executive departments and agencies (agencies) other than the Department of Justice, whether administered by the Federal Government or by a private organization on behalf of the Federal Government. Each agency is responsible for, and must be accountable for, the operations of its own confinement facilities, and each agency has extensive expertise regarding its own facilities, particularly those housing unique populations. Thus, each agency is best positioned to determine how to implement the Federal laws and rules that govern its own operations, the conduct of its own employees, and the safety of persons in its custody. To advance the goals of PREA, we must ensure that all agencies that operate confinement facilities adopt high standards to prevent, detect, and respond to sexual abuse. In addition to adopting such standards, the success of PREA in combating sexual abuse in confinement facilities will depend on effective agency and facility leadership and the development of an agency culture that prioritizes efforts to combat sexual abuse. In order to implement PREA comprehensively across the Federal Government, I hereby direct all agencies with Federal confinement facilities that are not already subject to the Department of Justice’s final rule to work with the Attorney General to propose, within 120 days of the date of this memorandum, any rules or procedures necessary to satisfy the requirements of PREA and to finalize any such rules or procedures within 240 days of their proposal. This memorandum shall be implemented consistent with the requirements of Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments). This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register. BARACK OBAMA
The Justice Department today released a final rule to prevent, detect and respond to sexual abuse in confinement facilities, in accordance with the Prison Rape Elimination Act of 2003 (PREA). This landmark rule sets national standards for four categories of facilities: adult prisons and jails, lockups, community confinement facilities and juvenile facilities. Today's rule is the first-ever federal effort to set standards aimed at protecting inmates in all such facilities at the federal, state and local levels. "The standards we establish today reflect the fact that sexual assault crimes committed within our correctional facilities can have devastating consequences - for individual victims and for communities far beyond our jails and prisons," said Attorney General Eric Holder. "These standards are the result of a thoughtful and deliberative process - and represent a critical step forward in protecting the rights and safety of all Americans." The standards have three clear goals: to prevent, detect and respond to sexual abuse. Prevent: To prevent sexual abuse, the standards require, among other things, that facilities:
- Develop and maintain a zero-tolerance policy regarding sexual abuse;
- Designate a PREA point person to coordinate compliance efforts;
- Screen inmates for risk of being sexually abused or sexually abusive, and use screening information to inform housing, bed, work, education and program assignments;
- Develop and document a staffing plan that provides for adequate levels of staffing and, where applicable, video monitoring;
- Train employees on their responsibilities in preventing, recognizing and responding to sexual abuse;
- Perform background checks on prospective employees and not hire abusers;
- Prevent juveniles from being housed with adult inmates or having unsupervised contact with adult inmates in common spaces;
- Ban cross-gender pat-down searches of female inmates in prisons and jails and of both male and female residents of juvenile facilities;
- Incorporate unique vulnerabilities of lesbian, gay, bisexual, transgender, intersex and gender nonconforming inmates into training and screening protocols;
- Enable inmates to shower, perform bodily functions and change clothing without improper viewing by staff of the opposite gender;
- Restrict the use of solitary confinement as a means of protecting vulnerable inmates; and
- Enter into or renew contracts only with outside entities that agree to comply with the standards.
Detect: To detect sexual abuse, the standards require, among other things, that facilities:
- Make inmates aware of facility policies and inform them of how to report sexual abuse;
- Provide multiple channels for inmates to report sexual abuse, including by contacting an outside entity, and allow inmates to report abuse anonymously upon request;
- Provide a method for staff and other third parties to report abuse on behalf of an inmate;
- Develop policies to prevent and detect any retaliation against those who report sexual abuse or cooperate with investigations; and
- Ensure effective communication about facility policies and how to report sexual abuse with inmates with disabilities and inmates who are limited English proficient;
Respond: To respond to sexual abuse, the standards require, among other things, that facilities:
In addition, the standards require that each facility be audited every three years to assess compliance. The standards set forth in the final rule are binding on the Federal Bureau of Prisons. With regard to states, those that do not comply with the standards are subject to a five percent reduction in funds they would otherwise receive for prison purposes from the department unless the governor certifies that five percent of such funds will be used to enable compliance in future years. No organization responsible for the accreditation of correctional facilities may receive any federal grants unless it adopts accreditation standards consistent with the standards set forth in the final rule. The administration has also determined that PREA applies to all federal confinement facilities, including those operated by executive departments and agencies other than the Department of Justice. According to a presidential memorandum issued today, other federal departments with confinement facilities will work with the attorney general to issue rules or procedures that will satisfy the requirements of PREA, in recognition of the fact that each federal agency is accountable for the operations of its own facilities and, therefore, is best positioned to determine how to implement federal laws and rules that govern its operations and the safety of persons in its custody. Those agencies will work with the attorney general to propose, within 120 days of the date of the Presidential Memorandum, any rules or procedures necessary to satisfy the requirements of PREA, and to finalize any such rules or procedures within 240 days of their proposal. Congress unanimously passed the Prison Rape Elimination Act in 2003 and created the National Prison Rape Elimination Commission to recommend a set of standards to the attorney general, after which it disbanded pursuant to the act. After receiving the commission's recommendations in 2009, the attorney general convened an intradepartmental PREA working group that was tasked with reviewing the commission's recommendations and collecting public feedback on the commission's proposal. Last year the department published a draft rule for public comment. The final rule reflects careful consideration of all public input, including over 1300 public comments on the proposed rule, as well as detailed analysis of anticipated benefits and costs, in light of PREA's requirement that the standards not "impose substantial additional costs compared to the costs presently expended by federal, state and local prison authorities." The department also is seeking additional comment on a standard that mandates specified staff-to-resident ratios in secure juvenile facilities. To assist federal, state and local agencies in their compliance efforts, the department has funded the National Resource Center for the Elimination of Prison Rape to serve as a national resource for online and direct support, training, technical assistance, and research to assist adult and juvenile corrections, detention, and law enforcement professionals in combating sexual abuse in confinement. Focusing on areas such as prevention strategies, improved reporting and detection, investigation, prosecution, and victim-centered responses, it will identify promising programs and practices that have been implemented around the country and demonstrate models for keeping inmates safe from sexual abuse. The center will offer a full library, webinars and other online resources and will provide direct assistance through skilled and experienced training and technical assistance providers. The department also funds the National Center for Youth in Custody to assist facilities in addressing sexual safety for youth. The department is also continuing grantmaking to support state and local demonstration projects aimed at combating sexual abuse in confinement facilities, through the Bureau of Justice Assistance. In addition, the National Institute of Corrections will develop electronic and web-based resource materials based on the standards set forth in the final rule.
- Provide timely and appropriate medical and mental health care to victims of sexual abuse;
- Where available, provide access to victim advocates from rape crisis centers for emotional support services related to sexual abuse;
- Establish an evidence protocol to preserve evidence following an incident and offer victims no-cost access to forensic medical examinations;
- Investigate all allegations of sexual abuse promptly and thoroughly, and deem allegations substantiated if supported by a preponderance of the evidence;
- Discipline staff and inmate assailants appropriately, with termination as the presumptive disciplinary sanction for staff who commit sexual abuse;
- Allow inmates a full and fair opportunity to file grievances regarding sexual abuse so as to preserve their ability to seek judicial redress after exhausting administrative remedies; and
- Maintain records of incidents of abuse and use those records to inform future prevention planning.
The final rule is being sent to the Federal Register today for publication.
The rule may be read in its entirety at www.ojp.usdoj.gov/programs/pdfs/prea_final_rule.pdf.
The Executive Summary is available at www.ojp.usdoj.gov/programs/pdfs/prea_executive_summary.pdf.
The Regulatory Impact Assessment, which summarizes the costs and benefits of the rule, is available at www.ojp.usdoj.gov/programs/pdfs/prea_ria.pdf.
For more information on the National Resource Center for the Elimination of Prison Rape, visit prearesourcecenter.org.