Overview of the 2003 Prison Rape Elimination Act (PREA)

Overview of the 2003 Prison Rape Elimination Act (PREA) HACTC RUGBY, ND.2010

PURPOSE: • To ensure detection and prevention of inmate sexual assault while an inmate is in the legal and physical custody of the HACTC.

GOAL • Expectations: • All staff will understand the Prison Rape Elimination Act of 2003 (PREA) and how it impacts our agency. Administration and management will implement the requirements of the law into policy, procedure and practices. • Staff will incorporate the requirements of the law into their daily tasks. • The overall training goal of this course is the detection, prevention, reductions and punishment of sexual assault in the HACTC and programs.

Objectives • Understand the 2003 Prison Rape Elimination Act • Explore approaches for compliance with PREA • Discuss legal and policy responsibilities of staff in detection, investigation, and reporting sexual assault

Be Advised: • Some portions of this topic may be uncomfortable for some persons in class. • Total allegations of sexual victimization increased significantly between 2005 (6,241 incidents) and 2008 (7,444). • The increase in total allegations of sexual victimization between 2005 and 2008 was largely due to prisons, where allegations increased 21%, from 4,791 incidents to 5,796.

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Purposes 1. Zero Tolerance 2. Prevention a top priority 3. National standards for detection, prevention, reduction, and punishment 4. Increase data and information 5.Standardize definitions used for collecting data on the incidence of prison rape 6. Increased accountability

Purposes, continued 7. Protect Offender Rights. 8. Increase the efficiency and effectiveness of federal expenditures through grant programs. health care; mental health care; disease prevention; crime prevention, investigation, and prosecution; prison construction, maintenance, and operation; race relations; poverty; unemployment; and homelessness.

Applicability To all inmates & Staff within the HACTC To inmates on “Jail Side” as well as the Treatment Unit.

DEFINITIONS: Non-Consensual Sexual Act: • Contact of any person without the person’s consent, or contact of a person who is unable to consent or refuse, including: • Contact between the penis and the vagina or the penis and the anus including penetration, however slight; or • Contact between the mouth and the penis, vagina, or anus; or • Penetration of the anal or genital opening of another person by a hand, finger, or other object.

Abusive Sexual Contacts: • Contact of any person without the person’s consent, or contact of a person who is unable to consent or refuse; and intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.

Staff Sexual Misconduct: • Any behavior or act of a sexual nature directed toward an inmate by an employee, volunteer, official visitor, or agency representative. • Romantic relationships between staff and inmates. • Consensual or non-consensual acts including: Intentional touching of the genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, arouse, or gratify sexual desire; or Completed, attempted, threatened, or requested sexual acts, or • Occurrences of indecent exposure, invasion of privacy, or staff voyeurism for sexual gratification.

Staff Sexual Harassment: Repeated verbal statements or comments of a sexual nature to an inmate by an employee, volunteer, official visitor, or agency representative. Demeaning references to gender or derogatory comments about body or clothing; or profane or obscene language or gestures.

Inmate Sexual Assault: The act of sexual intercourse (any penetration, however slight, by the penis into the mouth, vagina, or anus of another person, or any penetration by any part of the body or an object into the anus or vagina of another person), or sexual contact with another person without that person’s consent and knowing that it is without that person’s consent. Non-consensual sexual acts and abusive sexual contacts as defined above are types of sexual assaults.

Inmate Sexual Contact:The act of kissing, hand holding, touching by the intimate parts of one person to any part of another person, or touching by any part of one person or with any object or device, the intimate parts of another person. • Inmate Sexual Harassment:Unwelcome sexual advances, requests for sexual favors, sexually motivated physical conduct or other verbal or physical conduct or communication of a sexual nature.

POLICY: The department will act to reduce sexual assault of offenders through offender orientation, screening, assessment, classification, staff training, data collection and monitoring, counseling, and investigation of alleged sexual assaults.

PROCEDURE: Offender Orientation- Written policy, procedure and practice ensure that information is provided to offenders about sexual abuse/assault including: • prevention/intervention • self-protection • reporting sexual abuse/assault

PROCEDURE: • Treatment and counseling • During the initial intake meeting with the Booking Officer, the inmates will receive a copy of the “Sexual Assault Awareness” pamphlet. The Booking Officer will document on the intake sheet that the offender has received the pamphlet. • Appropriate provisions will be made as necessary for inmates not fluent in English, those with disabilities and those with low literacy levels. • During the Booking process, the Booking Officer or the Shift Supervisor will ask the inmate(s) the questions on the PREA questionnaire, and insure they understand the questions they are answering. • The inmate and the Staff member will both sign the form and forward to the Chief of Security for review.

Intake Screening • Inmates are screened within 24 hours of arrival at the facility for potential vulnerabilities or tendencies of acting out with sexually aggressive behavior. Housing assignments are made accordingly • Inmates identified as high risk with a history of sexually assaultive behavior are assessed by a mental health or other qualified professional. Inmates with a history of sexually assaultive behavior are identified and monitored

Intake Screening • Inmates identified as at risk for sexual victimization are assessed by a mental health or other qualified professional. Inmates at risk for sexual victimization are identified, monitored, and counseled. • Within 24 hours of arrival, the medical staff will meet with the inmates and complete the medical and mental health-screening instrument • Upon completion of the screening, inmates will be identified as being vulnerable or sexually aggressive by their responses to specific questions on the screening form. These inmates will be referred to the medical staff

Intake Screening • The Chief of Security, the Administrator and the Shift Supervisors will use this information in making appropriate housing decisions for the inmate • The Chief of Security will designate an inmate’s status as being sexually vulnerable or sexually assaultive in the “inmate notes” section in the MugShot system so that all Staff will be able to monitor their status as they progress through the facilities

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Inmate Reports of Non-Consensual Sexual Acts, Abusive Sexual Contacts, Staff Sexual Misconduct, or Staff Sexual Harassment. • Inmates may report instances of non-consensual sexual acts, abusive sexual contacts, staff sexual misconduct, or staff sexual harassment, to any employee of the HACTC. • They may do this orally, or by writing an inmate request slip to the staff person. • It is important that this information be passed along to the shift supervisor as soon as possible after the report has been made, in order to begin the investigation and to preserve the crime scene and any potential evidence.

Inmate Reports of Non-Consensual Sexual Acts, Abusive Sexual Contacts, Staff Sexual Misconduct, or Staff Sexual Harassment. • When the shift supervisor receives reports of any of the above types of sexual contact, they must determine the type of sexual contact that occurred, and begin the investigation.

Investigations of Non-Consensual Sexual Acts, Abusive Sexual Contacts, Staff Sexual Misconduct, or Staff Sexual Harassment. • An investigation is conducted and documented whenever a sexual assault or threat is reported. • Inmates who are victims of sexual abuse have the option to report the incident to a designated staff member other than an immediate point of contact line officer.

Investigating Sexual Assault Cont. • Victims of sexual assault are referred under appropriate security provisions to a community facility for treatment and gathering of evidence, or if these procedures are performed in-house, the following guidelines are used: • A history is taken by health care professionals who conduct an examination to document the extent of physical injury and to determine if referral to another medical facility is indicated. With the victim’s consent, the examination includes the collection of evidence from the victim, using a kit approved by the appropriate authority • Provision is made for testing of sexually transmitted diseases (for example, HIV, gonorrhea, hepatitis, and other diseases) and counseling, as appropriate.

Investigating Sexual Assault Cont. • Prophylactic treatment and follow-up for sexually transmitted diseases are offered to all victims, as appropriate. • Following the physical examination, there is availability of an evaluation by a mental health professional to assess the need for crisis intervention counseling and long-term follow-up. • A report is made to the Administrator or designee to assure separation of the victim from his or her assailant.

Investigations of Recent Non-Consensual Sexual Acts (occurring within 72 hours): RESPONSIBILITIES OF THE PERSON RECEIVING THE REPORT OF A RECENT SEXUAL ASSAULT • Remain with the offender to provide support and to ensure that the victim does not wash, shower, or change clothes prior to the examination. • Inform the shift supervisor of the alleged assault • Determine and secure the crime scene • Document the incident as reported to you, in writing, for the investigator

Shift Supervisor/Staff Investigator responsibilities • Notify the Administrator or Designee • Respond to the crime scene. • A determination shall be made, based upon the amount of time that has passed since the alleged incident and other factors, whether there is a possibility of evidence still existing at the crime scene. • If it is determined that evidence may still exist, and/or that a crime has been committed, notify the Sheriff’s Office & ND Bureau of Criminal Investigation and secure the crime scene. Any potential evidence shall remain in place for the Investigator’s examination and investigation. The only persons that should be entering the crime scene are the BCI or Sheriff Department investigators, and medical staff, if needed. • A log shall be kept of all persons entering the crime scene, and the time they entered. The area shall remain secured as a crime scene until the BCI or Sheriff’s Investigator releases it.

Shift Supervisor/Staff Investigator responsibilities (Continued) • As soon as practical, notify the medical professional on duty, and have staff escort the victim to a staff medical professional. • If the alleged aggressor is known, he shall be placed on pre-hearing detention, pending the results of the investigation. The aggressor and the victim must be kept separated throughout the investigation.

Shift Supervisor/Staff Investigator responsibilities (Continued) • Upon completion of the investigation, determine if the incident was a non-consensual sexual act, an abusive sexual contact, or a consensual sexual contact, and ensure that appropriate personnel complete the appropriate institutional misconduct reports. Forward the reports to the disciplinary committee for in-house discipline.

Medical Staff responsibilities • Reassure the offender alleging the assault that health services is involved only to ensure that the proper evaluation and treatment of any injuries is obtained, and psychological support is offered. • Triage the offender to ensure that they can physically be transported to the medical facility outside the institution, most likely the local hospital emergency room. • Sexual assault examinations will all be performed at medical facilities outside of the HACTC. • Explain the necessity and process of a sexual assault examination. • A physician specifically trained in conducting sexual assault examinations will perform the examination. The physician will check for injuries, and sexually transmitted diseases or any biological specimens.

Medical Staff responsibilities (Continued) • If the offender alleging assault refuses to be examined, document in the progress notes and have the offender sign a refusal of treatment form. • Arrange for a sexual assault examination kit at an outside medical facility. Communicate the facts known about the incident, including the infectious disease status of the aggressor (if known), to the emergency room or clinic nurse.

Medical Staff responsibilities (Continued) • Contact the shift supervisor to make arrangements for transporting the offender to the outside medical facility. • Explain to the offender that, as part of the examination there may be a need to draw blood to evaluate the inmate’s current status for exposure to sexually transmitted diseases. • Ensure that Mental Health staff are available to go with offender to the hospital if requested, or to meet with offender upon return. • Complete HIV and infectious disease pre-counseling. • Document all actions taken and communications with the offender in the medical record.

Medical Staff responsibilities (Continued) • Communicate the events to the Director of Medical Services. • Ensure prophylactic treatment is completed. • Ensure that the pre and post HIV counseling has been conducted. • Ensure that the appropriate lab has been completed, and copies of reports from the hospital are obtained and filed in the medial chart. • Ensure that follow-up infectious disease testing is completed, and that that infectious disease testing is completed on the aggressor if and when identified.

Investigation of Non-consensual Sexual acts Occurring 72 Hours or More in the Past • If the alleged assault is reported or discovered more than 72 hours after the incident, the shift supervisor/investigator shall: • Notify the Administrator or designee. • Secure the crime scene, if feasible, as forensic evidence may still exist. • Place the alleged victim in an individual cell, such as observation or the infirmary, and place the alleged aggressor, if known, in a pre-hearing detention cell under investigation status. The aggressor and alleged victim must be kept completely separated from each other.

Investigation of Sexual Assaults Occurring 72 Hours or More in the Past continued • Notify the Sheriff’s Office BCI of the alleged incident and request they begin the investigation. Follow the same procedures for preserving the crime scene as listed previously. • Notify the mental health professional to come assess the alleged victim. The mental health professional will be allowed to sit in on any interviews with the investigator and the alleged victim. • Notify the on-site medical personnel to assess and treat the alleged victim for injuries. A sexual assault examination kit will not be performed when more than 72 hours has passed between the time of the alleged assault.

Investigation of Sexual Assaults Occurring 72 Hours or More in the Past continued • Upon completion of the investigation, determine if the incident was a non-consensual sexual act, an abusive sexual contact, or a consensual sexual contact, and ensure that appropriate personnel complete the appropriate institutional misconduct reports. Forward the reports to the disciplinary committee for in-house discipline, and the results of the investigation to the Director of Administrative Services for inclusion in our annual reporting data.

Investigations of abusive sexual contacts • Any staff receiving notice from an inmate that they have been the victim of an abusive sexual contact should immediately report the incident to the shift supervisor. • As soon as practical, the shift supervisor will meet with the inmate victim and begin the investigation. • Due to the nature of the definition of an abusive sexual contact, there should be no need to send the inmate victim outside the facility for a sexual assault examination, but the supervisor should offer the victim an option to be screened for injuries by facility medical personnel.

Investigations of abusive sexual contacts continued • The shift supervisor should offer the victim the option of speaking with a mental health professional. • Depending on the circumstances of the abusive sexual contact, in most cases the supervisor may wish to segregate the victim from the alleged perpetrator. However there may be circumstances where it would be advantageous to the victim not to force this separation. When determining the course of action, the shift supervisor should consider the best interests of the victim.

Investigations of abusive sexual contacts continued • If after the initial interview with the victim the shift supervisor believes a crime has been committed, the supervisor will notify the Sheriff’s Office, and/or the Bureau of Criminal Investigation, and request that they take over the investigation. • False Accusations- If the investigation reveals that the inmate made a false allegation which the inmate in good faith could not have believed to be true; the facility may take disciplinary action against the inmate.

Investigations of abusive sexual contacts continued • Upon completion of the investigation determine if an institutional rule was violated, and ensure that personnel complete appropriate institutional misconduct reports. Forward the reports to the disciplinary committee for in-house discipline, and the results of the investigation to the Director of Administrative Services for inclusion in our annual reporting data.

Investigations of Allegations of Staff Sexual Misconduct and Staff Sexual Harassment: • Sexual contact between staff and inmates, volunteers, or contract personnel and inmates, regardless of consensual status, is prohibited, and subject to administrative and criminal disciplinary sanctions. • Any employee who receives information about staff sexual misconduct or staff sexual harassment will immediately inform the facility warden/designee. • Information may include rumors from staff or offenders. Failure to report information about staff sexual misconduct or staff sexual harassment may result in disciplinary action, up to and including dismissal.

Investigations of Allegations of Staff Sexual Misconduct and Staff Sexual Harassment: • During the course of their duties, staff may be required to touch parts of inmate’s bodies, or view inmates in various stages of undress, as part of routine security searches and procedures. • Claims of staff sexual misconduct and staff sexual harassment by inmates that have undergone these security procedures will not be investigated • Inmates may process these claims through the normal grievance process.

The Administrator/designee will: • Consult with the Chief of Security and select a person to begin an investigation. The Administrator and investigator will ensure there is separation between the offender and the affected staff during the investigation. This separation does not represent a form of punishment for the offender or affected staff. • In cases of Staff Sexual Misconduct, refer the inmate to medical services and offer an immediate sexual assault investigation kit to the offender, provided the alleged incident occurred less than 72 hours prior to the time the incident was reported.

Investigation continued… • Assure that all offenders that report they have been the victim of staff sexual misconduct or staff sexual harassment are referred to mental health professional for assessment, support, and counseling services.

Investigation continued… • The staff investigator will meet with the inmate and/or review his statement. • Once it becomes apparent that a crime has possibly been committed, the staff investigator shall request assistance from the Sheriff’s Office or the BCI, and work as a liaison with that investigative agency while they take the lead in the investigation. • Only in extreme cases where the staff investigator is certain that this is a false allegation of staff sexual misconduct, based on obvious and irrefutable facts of the case, will an outside agency not be called in to assume the investigation. • Allegations of staff sexual harassment will be handled internally.

Investigation continued… • Employees are required to cooperate fully by providing all pertinent information during the investigation. Failure of an employee to answer any inquiry fully will be grounds for disciplinary action. • Employees will not make any attempt to contact the inmate victim during the time the allegation is first made, until the completion of the investigation. • Employees are prohibited from any form of retaliation against an inmate who makes an allegation of staff sexual misconduct or staff sexual harassment.

Investigation continued… • False Accusations- • If the investigation reveals that the inmate made a false allegation, which he/she in good faith could not have believed to be true, the facility may take disciplinary action against the inmate. • Employees, contract volunteers, official visitors, or agency representatives who are found to have committed staff sexual misconduct as defined above will face internal discipline, and the facility will also work with law enforcement to aid in the prosecution of such charges to the fullest extent possible. • Employees, contract volunteers, official visitors, or agency representatives who are found to have committed staff sexual harassment will be disciplined internally per HACTC personnel policies.

Prosecution: • The law enforcement investigator and the HACTC will work together with the local prosecutors office to assure appropriate criminal prosecution of cases of sexual assault or staff sexual misconduct.

Overview of the 2003 Prison Rape Elimination Act (PREA)