Vol. 26 No. 3- DOJ Proposed Rule Regarding Sexual Abuse In Prisons And Jails


January 25, 2011

The U.S. Department of Justice today released a proposed rule to prevent and respond to sexual abuse in incarceration facilities pursuant to the Prison Rape Elimination Act (PREA).  The National Standards to Prevent, Detect, and Respond to Prison Rape will apply to (1) adult prisons and jails; (2) juvenile facilities; (3) community corrections facilities; and (4) lockups (i.e., temporary holding facilities).

A 60 day period for public comment will follow the publishing of the rule in the Federal Register. Written comments and electronic comments must be sent on or before 60 days from the date of publication in the Federal Register.  A final rule is expected to be published by the end of the year.

PREA Requires AG to Issue Standards

As set forth on the USDOJ website, the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. 1601 et seq., requires the Attorney General to promulgate regulations that adopt national standards for the detection, prevention, reduction, and punishment of prison rape. PREA established the National Prison Rape Elimination Commission (Commission) to carry out a comprehensive legal and factual study of the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States, and to recommend national standards to the Attorney General and to the Secretary of Health and Human Services.

The Commission set forth four sets of recommended national standards for eliminating prison rape and other forms of sexual abuse. The Commission recommended that its standards apply to Federal, State, and local correctional and detention facilities (excluding facilities operated by the Department of Defense and the Bureau of Indian Affairs).

According to a press release from the Department of Justice, the “department’s revisions aim to makethe standards more effective, clarify the responsibilities imposed on correctional agencies, and comply with relevant law, including PREA’s requirement that the new standards not ‘impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities’.”  The requirements contained in the rule, however, appear to be such that additional costs could be inevitable.

Categories of Standards

There are 11 categories contained in the standards: prevention planning; responsive planning; training and education; screening for risk of sexual victimization and abusiveness; reporting; official response following an inmate report; investigations; discipline; medical and mental care; data collection and review; and audits.

Among other things, the proposed standards would require correctional agencies to:  ban cross-gender strip searches; establish a protocol to preserve evidence following an incident; train investigators to act promptly and diligently; provide multiple methods to report sexual abuse; provide appropriate medical and mental health care to victims; and discipline staff assailants appropriately, “with termination as the presumptive disciplinary sanction for staff who have engaged in sexual touching.”

Following publication, the standards will take effect immediately.  “States that do not comply with the standards (would be) 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.”

The Justice Department’s complete proposed rule can be found online atwww.ojp.usdoj.gov/programs/pdfs/prea_nprm.pdf.


As stated above, the standards will apply to all county jails, as well as city lockups, not just state prisons.  As such, it is of utmost importance that if police and sheriff’s agencies wish to be heard, they must review the proposed rule and standards and submit comments to the Department of Justice within the designated time period.

Some of the standards appear to already be part of what California institutions have in place. However, there may be additional obligations created by these standards which will impact on cities and counties in a variety of ways – including fiscal impacts.

As always, it is imperative that you confer with your agency’s legal counsel to secure advice and guidance.  However, if you wish to discuss this in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.