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Frequently Asked Questions

 
 
Prison Rape Elimination Act (PREA)
 
28 C.F.R., Part 115
 
 
 
What is PREA?
 
 
 
PREA was signed into law on September 4, 2003.  The final regulatory standards to implement PREA went into effect on Aug. 20, 2012. 
 
 
 
PREA standards are designed to prevent, detect, respond and eliminate incidences of sexual abuse and sexual harassment.  Every agency facility must undergo a PREA audit by a Department of Justice Certified Auditor once every three-year audit cycle to demonstrate full compliance with the PREA standards.
 
 
 
The department adheres to a zero tolerance standard regarding sexual abuse.  Anyone who engages in fails to report, or knowingly condones sexual abuse or sexual harassment of an inmate shall be subject to disciplinary action, up to and including termination, and may be subject to criminal prosecution.
 
 
 
PREA applies to what types of facilities?
 
 
 
PREA applies to confinement facilities including
 
·         federal and state prisons,
 
·         local jails,
 
·         community corrections,
 
·         lock-ups,
 
·         juvenile detention centers, and
 
·         immigration detention facilities.
 
 
 
What constitutes staff sexual misconduct with inmates?
 
 
 
o   Staff Sexual Misconduct: Sexual abuse of an inmate, detainee, or resident by a staff member, contractor, or volunteer includes any of the following acts, with or without consent of the inmate, detainee, or resident:
§  (1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
§  (2) Contact between the mouth and the penis, vulva, or anus;
§  (3) Contact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
§  (4) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
§  (5) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
§  (6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities described in paragraphs (1)-(5) of this section;
§  (7) Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, detainee, or resident, and
§  (8) Voyeurism by a staff member, contractor, or volunteer.
§  Voyeurism by a staff member, contractor, or volunteer means an invasion of privacy of an inmate, detainee, or resident by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate’s naked body or of an inmate performing bodily functions.
§  Staff sexual harassment includes repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.
o   Inmate-on-Inmate sexual misconduct: Sexual abuse of an inmate, detainee, or resident by another inmate, detainee, or resident includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence, or is unable to consent or refuse:
§  (1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
§  (2) Contact between the mouth and the penis, vulva, or anus;
§  (3) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
§  (4) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.
§  Inmate-on-inmate sexual harassment includes repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another.
 
 
 
What are the possible investigative outcomes of a PREA investigation?
 
 
 
Investigative outcomes can result in findings that are substantiated, unsubstantiated or unfounded.
 
 
 
Substantiated Allegationmeans an allegation that was investigated and determined to have occurred.  The agency shall impose no standard higher than a preponderance of the evidence in determining whether allegations of sexual abuse or sexual harassment are substantiated. (§115.72)
 
 
 
Unsubstantiated Allegation – means an allegation that was investigated and the investigation produced insufficient evidence to make a final determination as to whether or not the event occurred.
 
 
 
Unfounded Allegationmeans an allegation that was investigated and determined not to have occurred. 
 
*In accordance with the PREA standards, inmates are to be notified of the investigative outcome following a sexual abuse investigation in which they were the alleged complainant.
 
 
 
 
 
What is the penalty for engaging in or not reporting sexual abuse and sexual harassment?
 
 
 
Staff may face disciplinary action up to and including termination for violating sexual abuse or sexual harassment policies.  Termination shall be the presumptive disciplinary sanction for staff who have engaged in sexual abuse.  
 
 
 
What does the federal law require of each state?
 
 
 
In order to assure PREA Compliance, all facilities under the Governor’s operational control are required to take action to prevent, detect, reduce and respond to sexual abuse. Among these actions are
 
·         establishment of a zero-tolerance standard for sexual abuse and sexual harassment;
 
·         collection and reporting data of prison sexual violence;
 
·        training staff, contractors or volunteers about the nature of prison sexual violence, and how to prevent, detect and respond to incidents of sexual abuse;
 
·         thorough and appropriate risk assessments and screening of inmates/re-entrants;
 
·         ensuring that victims of sexual abuse have access to medical care, mental health treatment and outside victim advocacy services;
 
·         disciplining and prosecution of those who perpetrate sexual abuse; and
 
·         holding administrators accountable for occurrences of prison sexual abuse.
 
 
 
What if Pennsylvania does not comply with PREA requirements?
 
 
 
Pennsylvania is committed to assuring the sexual safety of all individuals in its custody and creating an environment that is conducive to rehabilitation.  In addition to a five percent reduction in federal criminal justice funding for each year that the Commonwealth is not in compliance, more importantly, the Commonwealth experiences associated indirect costs, such as increased recidivism, consumption of community resources and health effects that it is working diligently to prevent.
 
 
How are placement decisions for transgender or intersex inmates made?
 
Once an inmate identifies as transgender or intersex, an individualized assessment is conducted to determine the most appropriate housing and referrals are initiated to provide access to appropriate healthcare.  A private meeting will take place between the facility’s PREA Compliance Manager and the identified individual within five business days to gather basic information in advance of a Gender Review Committee (GRC) meeting with facility administration.  The GRC will make individualized determinations to ensure the transgender or intersex inmate’s safety.  The transgender or intersex inmate will be informed of the facility’s recommendations and be permitted an opportunity to concur or object to the recommendations.  In all instances where the facility or transgender or intersex inmate request a transfer to a facility consistent with gender identification of the inmate, the request is considered by the Administrative Gender Review Committee (A-GRC) in consultation with outside LGBT subject matter experts.  
 
 
 
Where can I go for more information?
 
 
 
 
 
This page was last updated 02/14/2018