For The Prevention, Detection, Response, and Monitoring of
Sexual Abuse in:

Adult Prisons and Jails

III. DETECTION AND RESPONSE

(RE)

Reporting (RE)

(RE1)

Inmate reporting

The facility provides multiple internal ways for inmates to report easily, privately, and securely sexual abuse, retaliation by other inmates or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse. The facility also provides at least one way for inmates to report the abuse to an outside public entity or office not affiliated with the agency that has agreed to receive reports and forward them to the facility head (RP-2), except when an inmate requests confidentiality. Staff accepts reports made verbally, in writing, anonymously, and from third parties and immediately puts into writing any verbal reports.

Assessment Checklist	YES	NO
(a) Does the facility provide multiple internal ways for inmates to report easily, privately, and securely sexual abuse, retaliation by other inmates or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse (e.g., locked drop boxes in common areas for reports or requests; grievance procedures; sick-call systems; access to a central or headquarters office)? (Please attach documentation explaining the specific internal reporting mechanisms the facility has in place.)
(b) Does the facility provide at least one way for inmates to report sexual abuse to an outside public entity or office not affiliated with the agency that has agreed to receive reports and forward them to the facility head, except when the inmate requests confidentiality (e.g., ombudsperson; outside law enforcement agency; inspector general’s office; attorney general’s office) (RP-2)? (Please attach documentation explaining the specific outside reporting mechanism(s) the facility has made available to inmates.)
(c) Does staff accept reports made verbally, in writing, anonymously, and by third parties?
(d) Does staff immediately put into writing any verbal reports?

Discussion

The agency should make reporting sexual abuse as easy, private, and secure as possible. The more the agency demonstrates through policy, practice, and staff behaviors its commitment to protecting sexual abuse victims and punishing abusers, the more victims will feel safe coming forward. Although a potential increase in disclosures and investigations may initially tax correctional resources, increased reporting may also signal that inmates are becoming more trustful of the system, which, in turn, may deter potential abusers from engaging in sexually abusive behaviors. Over time, the agency’s initial investment in efforts to make reporting easier and to conduct thorough investigations will serve everyone’s interests. Victims will be better supported, abusers will be held accountable, and staff and inmates will ultimately be able to live and work in safer, more secure environments.

The facility should take seriously all reports of sexual abuse, regardless of the form or format in which they were conveyed. Although the facility may choose to provide different mechanisms for internal reporting, including locked drop boxes in common areas for inmates to drop reports, requests, or grievances or dedicated phones or programmed phones with toll-free hotline numbers to internal investigative departments, staff should be prepared to accept and respond to all types of reports and manners of reporting. For example, an inmate who scrawls a note and passes it to an officer should be treated the same way as an inmate who files a formal grievance.

The standard’s requirement that the agency enable inmates to report to at least one outside public entity or office not affiliated with the agency will signal to inmates that the agency’s chief concern is making sure that inmates feel safe and comfortable reporting sexual abuse. If the agency has established an MOU with an outside public entity or office that has agreed to accept and forward inmate reports of sexual abuse, the outside public entity should be prepared to send those reports to the facility head immediately upon receipt, unless the inmate requests confidentiality (RP-2). If the agency confines inmates under the age of 18 or other inmates who fall under State or local vulnerable persons statutes, the agency may allow such inmates to report directly to the designated State or local services agency that has the authority to conduct investigations into allegations of sexual abuse involving victims who fall under vulnerable persons statutes (RP-3). In addition to developing numerous avenues for receiving reports, staff should be trained and expected to take proactive steps to talk to inmates periodically about any unwanted sexual behaviors or threats they may be experiencing from other inmates or staff.

(RE2)

Exhaustion of administrative remedies

Under agency policy, an inmate has exhausted his or her administrative remedies with regard to a claim of sexual abuse either (1) when the agency makes a final decision on the merits of the report of abuse (regardless of whether the report was made by the inmate, made by a third party, or forwarded from an outside official or office) or (2) when 90 days have passed since the report was made, whichever occurs sooner. A report of sexual abuse triggers the 90-day exhaustion period regardless of the length of time that has passed between the abuse and the report. An inmate seeking immediate protection from imminent sexual abuse will be deemed to have exhausted his or her administrative remedies 48 hours after notifying any agency staff member of his or her need for protection.

Assessment Checklist	YES	NO
(a) Does agency policy reflect that an inmate has exhausted administrative remedies with regard to a claim of sexual abuse under the following circumstances?
• When the agency makes a final decision on the merits of the report of abuse (regardless of whether the report was made by the inmate, made by a third party, or forwarded from an outside official or office) or
• When 90 days have passed since the report was made, whichever occurs sooner
(b) Does agency policy reflect that an inmate seeking immediate protection from imminent sexual abuse has exhausted administrative remedies 48 hours after notifying any agency staff member of his or her need for protection?

Discussion

Currently, under the Federal Prison Litigation Reform Act (PLRA), correctional agencies are able to raise an inmate’s “failure to exhaust administrative remedies” as an affirmative defense against an inmate’s legal claims brought in Federal court. The purpose of this requirement in PLRA is to ensure that agencies have an opportunity to respond to an inmate’s complaint before that inmate files a lawsuit. Agencies are free to determine the procedures by which an inmate “exhausts administrative remedies” by policy. In practice, many agencies have adopted policies that require an inmate to file a grievance within a relatively short timeframe after the incident of abuse and then to make multiple appeals of the agency’s response within specific timeframes to satisfactorily exhaust the agency’s administrative remedies. Policies that require inmates to navigate a complicated grievance procedure within a short time after the abuse can result in the dismissal of meritorious legal claims by victims of sexual abuse. Although the statute of limitations to file a lawsuit may be one year or two depending on the type of claim and the jurisdiction, inmates who fail to file a grievance within one or two weeks after being abused may be permanently barred from court for failing to “exhaust administrative remedies.”

Victims of sexual abuse are particularly vulnerable to having their claims dismissed for this reason because the trauma of sexual abuse and fear of retaliation often prevent them from reporting the incident shortly after it occurs. Furthermore, because grievance procedures are generally not designed as the sole or primary method for reporting incidents of sexual abuse by inmates to staff, victims who do immediately report abuse to authorities may not realize they need to file a grievance as well to satisfy agency exhaustion requirements. For example, a victim might call the agency’s sexual abuse reporting hotline immediately but fail to file a grievance within the short timeframe allowed and later be barred from bringing a valid legal claim because of that failure.

This standard recognizes agencies’ legitimate interest in having a reasonable opportunity to respond to notice of abuse before being required to defend themselves in court. It also recognizes that PREA’s goals are not furthered if inmates are deemed to have forfeited their ability to seek judicial redress for abuse because they have not reported the abuse within a set timeframe after it occurs. The standard requires agencies to adopt policies by which an inmate is deemed to have exhausted his or her administrative remedies no later than 90 days after a report of sexual abuse is made and regardless of the time that has elapsed between the abuse and the report. Any report of sexual abuse should trigger a response by the agency, including an investigation into the merits of the allegation (IN-1, IN-2), the provision of appropriate medical and mental health treatment (MM-2, MM-3), and efforts to protect the alleged victim and other inmates from retaliation and future abuse (OR-5). It is possible that the agency will not have completed its investigation into the report within 90 days, but that is ample time within which the agency can take appropriate steps to protect the inmate and to demonstrate its efforts to find the truth for the purposes of defending against a lawsuit.

Finally, the standard recognizes that there may be urgent, emergency situations when an inmate seeks an immediate injunction from the court to provide protection from imminent harm. In such cases, the standard requires an exception to the 90-day waiting period. Because it is incumbent on the agency to provide protection immediately to an inmate who reports a risk of imminent harm, the agency shall deem the inmate’s administrative remedies exhausted 48 hours after such a report is made to any agency employee. A court can determine whether the inmate’s request merits an injunction, but the inmate seeking the court’s protection should not be required to wait more than 48 hours since the nature of such a request is urgent. If the agency has in fact responded properly to the report or if the report was of such a nature that it did not warrant action on the part of the agency, a court can make that determination at the time the injunction is sought.

(RE3)

Inmate access to outside confidential support services

In addition to providing on-site mental health care services, the facility provides inmates with access to outside victim advocates for emotional support services related to sexual abuse. The facility provides such access by giving inmates the current mailing addresses and telephone numbers, including toll-free hotline numbers, of local, State, and/or national victim advocacy or rape crisis organizations and enabling reasonable communication between inmates and these organizations. The facility ensures that communications with such advocates are private, confidential, and privileged, to the extent allowable by Federal, State, and local law. The facility informs inmates, prior to giving them access, of the extent to which such communications will be private, confidential, and/or privileged.

Assessment Checklist	YES	NO
(a) In addition to providing on-site mental health care services, does the facility provide inmates with the current mailing addresses and telephone numbers, including toll-free hotline numbers, of local, State, and/or national victim advocacy or rape crisis organizations and enable reasonable communication between inmates and these organizations? (Please attach documentation explaining how the facility provides inmates with access to outside confidential support services related to sexual abuse.)
(b) Are inmates able to communicate with outside victim advocates privately in settings in which conversations cannot be overheard?
(c) To ensure privacy of communication, is staff prohibited from reading correspondence to or from victim advocates?
(d) Does the facility explain to inmates, prior to giving them access to outside support services, the rules governing privacy, confidentiality, and/or privilege that apply for disclosures of sexual abuse made to outside victim advocates, including any limits to confidentiality under relevant Federal, State, or local law?

Discussion

Victims of sexual abuse, whether confined or not, often require the support of an advocate. Working with these advocates, such as rape crisis counselors, is not only an essential part of treatment for some victims, but can also help victims overcome any reluctance to report the incident to the appropriate officials. Although the agency might have qualified mental health practitioners on staff who can treat sexual abuse victims, some victims may be reluctant to confide in those practitioners because they see them as part of the institution that failed to protect them from abuse. By giving inmates the option to communicate with outside advocates, the agency will ensure that victims have the greatest access to necessary care.

To meet the requirements of this standard, an agency may need to enter an MOU with a community service provider and may find it useful to provide regular opportunities for inmates to meet face-to-face with advocates (RP-2). In addition to these opportunities, free hotlines that connect inmates to rape crisis service groups and/or other victim advocacy groups are encouraged. Agencies that have limited community resources to draw from should at a minimum provide inmates with contact information for regional and/or national human rights, advocacy, and/or counseling organizations. Telephone use to contact outside advocates and/or letters sent to service organizations should not be subject to any rules or restrictions governing telephone use or mail. Administrators need to make certain that inmates are able to access outside confidential support services as easily and as privately as possible. Inmates should never have to explain to staff members their reasons for wanting to speak or write to outside advocates before being allowed to communicate with those providers.

(RE4)

Third-party reporting

The facility receives and investigates all third-party reports of sexual abuse (IN-1). At the conclusion of the investigation, the facility notifies in writing the third-party individual who reported the abuse and the inmate named in the third-party report of the outcome of the investigation. The facility distributes publicly information on how to report sexual abuse on behalf of an inmate.

Assessment Checklist	YES	NO
(a) Does the facility receive and investigate all third-party reports of sexual abuse?
(b) At the conclusion of the investigation, does the facility notify in writing the third-party individual who reported the abuse and the inmate named in the third-party report of the outcome of the investigation?
(c) Does the facility distribute publicly information on how to report sexual abuse on behalf of an inmate?

Discussion

Information about how to report sexual abuse on behalf of an inmate should be available in multiple languages and in a convenient, easily accessible format. Information may be made available by phone, on a Web site, as part of any preliminary information provided verbally to visitors, in brochures, in flyers, or on posters in visiting areas. Regardless of how the facility chooses to distribute the information, the information itself should convey: (1) the contact information for the corrections official, department, or unit responsible for receiving and responding to third-party allegations; (2) instructions for what information to include when reporting sexual abuse; (3) notice that the allegation will be discussed with the victim named in the report; (4) a statement explaining the allegation will be disclosed only to those who need to know to ensure victim safety and to investigate the allegation; and (5) notice that the facility will inform the individual who reported the abuse of the outcome of the investigation. The facility should periodically review and update, if necessary, the information distributed regarding third-party reporting.

(OR)

Official Response Following an Inmate Report (OR)

(OR1)

Staff and facility head reporting duties

All staff members are required to report immediately and according to agency policy any knowledge, suspicion, or information they receive regarding an incident of sexual abuse that occurred in an institutional setting; retaliation against inmates or staff who reported abuse; and any staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse or retaliation. Apart from reporting to designated supervisors or officials, staff must not reveal any information related to a sexual abuse report to anyone other than those who need to know, as specified in agency policy, to make treatment, investigation, and other security and management decisions. Unless otherwise precluded by Federal, State, or local law, medical and mental health practitioners are required to report sexual abuse and must inform inmates of their duty to report at the initiation of services. If the victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the facility head must report the allegation to the designated State or local services agency under applicable mandatory reporting laws.

Assessment Checklist	YES	NO
(a) Has the agency notified staff members that they are required to report immediately and according to agency policy any knowledge, suspicion, or information they receive regarding an incident of sexual abuse that occurred in an institutional setting, including any knowledge of retaliation against inmates or staff who reported abuse and any staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse or retaliation?
(b) Has the agency notified staff members that they are required to limit information related to any incident of sexual abuse to those who need to know, as specified in agency policy, to make treatment, investigation, and other security and management decisions?
(c) Has the agency notified medical and mental health practitioners of their reporting duties, including their duty to inform inmates of the practitioners’ duty to report at the initiation of services?
(d) If the victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, does the facility head report the allegation to the designated State or local services agency under applicable mandatory reporting laws?

Discussion

Attaining compliance with this standard will require that facility leadership effectively convey to staff that they are mandatory reporters with no discretion to decide whether to report sexual abuse allegations or any other knowledge or suspicion of sexual abuse or harassment. They should make it clear through policy and practice that the agency tolerates neither a staff code of silence nor the mishandling or inappropriate sharing of information (i.e., spreading rumors or conveying information to individuals who have no need to know), and staff should be trained on the difference between spreading rumors and proper reporting. Additionally, it is critical that all staff members understand exactly what, when, how, and to whom they are required to report, including whether their responsibilities differ based on the type of offense or the persons involved. The facility head should know exactly how and to whom he or she is required to report if the incident involves a victim under the age of 18 or a victim considered a vulnerable adult under a State or local vulnerable persons statute (e.g., statutes that address the mentally ill, mentally or physically disabled, or the elderly).

Unless otherwise precluded by Federal, State, or local law, the standard requires medical and mental health practitioners to report sexual abuse and to inform inmates of their duty to report at the initiation of services. Informing inmates of their duty to report at the initiation of services is critical so that inmates know up front what they can expect to be kept confidential and what they can expect will be reported. Although the Commission recognizes that some medical and mental health practitioners may be reluctant to report because of fears that victims will not seek treatment, it nonetheless requires medical and mental health practitioners to report to protect the overall safety and security of the facility as well as the safety of the individual being abused or threatened with abuse.

(OR2)

Reporting to other confinement facilities

When the facility receives an allegation that an inmate was sexually abused while confined at another facility, the head of the facility where the report was made notifies in writing the head of the facility where the alleged abuse occurred. The head of the facility where the alleged abuse occurred ensures the allegation is investigated.

Assessment Checklist	YES	NO
(a) When the facility receives an allegation that an inmate was sexually abused while confined at another facility, does the head of the facility where the report was made notify in writing the head of the facility where the alleged abuse occurred?
(b) If the facility head receives notice that a former inmate has alleged sexual abuse while confined at his or her facility, does he or she ensure that the allegation is investigated?

Discussion

Inmates who have been sexually abused while confined at a lockup, jail, or prison may feel safer reporting the abuse once they are no longer housed at the facility where the abuse occurred. For example, an inmate who was sexually abused at a jail may wait until he or she is transferred to a prison to report. Similarly, someone abused while confined in a State prison may choose to report once he or she is in the custody of a community corrections agency. The head of the facility where the report is made needs to be prepared to notify the appropriate authorities immediately. By the same token, as required by the standard, the head of the agency or facility where the alleged abuse occurred must ensure that the allegation is investigated. This effort to communicate and share information across agencies and facilities should improve safety and security for all inmates and staff.

(OR3)

Staff first responder duties

Upon learning that an inmate was sexually abused within a time period that still allows for the collection of physical evidence, the first security staff member to respond to the report is required to (1) separate the alleged victim and abuser; (2) seal and preserve any crime scene(s); and (3) instruct the victim not to take any actions that could destroy physical evidence, including washing, brushing his or her teeth, changing his or her clothes, urinating, defecating, smoking, drinking, or eating. If the first staff responder is a non-security staff member, he or she is required to instruct the victim not to take any actions that could destroy physical evidence and then notify security staff.

Assessment Checklist	YES	NO
(a) Has the facility notified security staff that upon learning of an incident of sexual abuse that occurred within a time period that still allows for the collection of physical evidence, they are required to separate victims from abusers; seal and preserve any crime scene(s); and instruct victims not to wash, brush their teeth, change their clothes, urinate, defecate, smoke, drink, or eat?
(b) Has the facility notified non-security staff members that upon learning of an incident of sexual abuse, they are required to instruct victims not to wash, brush their teeth, change their clothes, urinate, defecate, smoke, drink, or eat and then notify security staff?

Discussion

In addition to reporting the abuse according to agency policy, the first security staff member who learns of an inmate being sexually abused is responsible for ensuring that the victim is safe and any physical evidence is preserved until an investigator arrives. At the time of publication of this body of standards, the commonly accepted time period for collecting physical evidence is 96 hours. To carry out their duties effectively, security staff members will need to be able to counsel victims who may be in distress while maintaining security and control over the crime scene(s). In the event that a non-security staff member is the first staff responder, he or she needs to be prepared to instruct victims not to take any actions that could destroy physical evidence and then immediately notify security staff.

(OR4)

Coordinated response

All actions taken in response to an incident of sexual abuse are coordinated among staff first responders, medical and mental health practitioners, investigators, and facility leadership. The facility’s coordinated response ensures that victims receive all necessary immediate and ongoing medical, mental health, and support services and that investigators are able to obtain usable evidence to substantiate allegations and hold perpetrators accountable.

Assessment Checklist	YES	NO
(a) Are all actions taken in response to an incident of sexual abuse coordinated among staff first responders, medical and mental health practitioners, investigators, and facility leadership?
(b) Does the facility’s coordinated response ensure that victims receive all necessary immediate and ongoing medical, mental health, and support services?
(c) Does the facility’s coordinated response ensure that investigators are able to obtain usable evidence to substantiate allegations and hold perpetrators accountable?

Discussion

In the community, coordinated sexual assault response teams (SARTs) are recognized as a best practice for responding to incidents of rape and other sexual abuse because they enable key responders from the medical, advocacy, and law enforcement fields to coordinate their actions and share information, helping the victim receive the best care and providing the investigator with the best chance to find the perpetrator. SARTs are generally composed of representatives from the medical and mental health fields, victim advocacy groups (usually from local or regional rape crisis centers), and law enforcement agencies. Although some correctional agencies already use some version of a SART or specialized first response team, or they participate in an existing specialized community response team, the Commission recognizes that not all agencies are equipped to organize a specialized team or spearhead a community SART. The Commission urges those agencies to work toward developing such a team by working with community or regional law enforcement agencies, outside medical and mental health providers, and sexual abuse advocacy groups to establish a coordinated plan to address victims’ needs and improve sexual abuse investigation outcomes. At the time of publication of these standards, the Commission recommends agencies consult the 2004 U.S. Department of Justice’s Office on Violence Against Women publication “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” for guidance and ideas on developing an approach to a coordinated response to sexual abuse.

Regardless of whether or not the agency uses a designated response team or participates in a community SART, the standard requires that all actions taken in response to an incident of sexual abuse be coordinated among staff first responders, medical and mental health practitioners, investigators, and facility leadership. To ensure the best treatment for victims and the greatest likelihood of holding perpetrators accountable, a number of actions should be coordinated, including: (1) assessing the victim’s acute medical needs to determine if he or she needs to be stabilized and/or treated for injuries, conditions, or potential risks; (2) informing the victim of his or her rights under relevant Federal and/or State crime victims’ rights laws; (3) giving the victim the option of undergoing a forensic medical exam for the purpose of collecting and documenting physical evidence of abuse; (4) having a victim advocate available to the inmate victim during the forensic medical exam; (5) providing crisis intervention counseling for the victim before and after the forensic medical exam; (6) interviewing victims and witnesses; (7) collecting evidence; and (8) providing for any special needs a victim might have.

(OR5)

Agency protection against retaliation

The agency protects all inmates and staff who report sexual abuse or cooperate with sexual abuse investigations from retaliation by other inmates or staff. The agency employs multiple protection measures, including housing changes or transfers for inmate victims or abusers, removal of alleged staff or inmate abusers from contact with victims, and emotional support services for inmates or staff who fear retaliation for reporting sexual abuse or cooperating with investigations. The agency monitors the conduct and/or treatment of inmates or staff who have reported sexual abuse or cooperated with investigations, including any inmate disciplinary reports, housing, or program changes, for at least 90 days following their report or cooperation to see if there are changes that may suggest possible retaliation by inmates or staff. The agency discusses any changes with the appropriate inmate or staff member as part of its efforts to determine if retaliation is taking place and, when confirmed, immediately takes steps to protect the inmate or staff member.

Assessment Checklist	YES	NO
(a) Does the agency employ the following measures to protect inmates and staff from retaliation for reporting sexual abuse?
• Housing changes or transfers for inmate victims or abusers
• Removal of alleged staff or inmate abusers from contact with victims
• Employee assistance services or other resources for staff who may need psychological or emotional support
• Available support services for inmates who may need psychological or emotional support
(b) Does the agency monitor the conduct and/or treatment of inmates or staff who have reported sexual abuse or cooperated with investigations, including any inmate disciplinary reports, housing changes, or program changes, for at least 90 days following their report or cooperation to see if there are changes that may suggest possible retaliation by inmates or staff?
(c) When changes have been identified, does the agency discuss those changes with the appropriate inmate or staff member as part of its efforts to determine if retaliation is taking place?
(d) When retaliation has been confirmed, does the agency immediately take steps to protect the inmate or staff member?

Discussion

Fear of retaliation, such as being subjected to harsh or hostile conditions, being attacked by other inmates, or suffering harassment from staff, prevents many inmates and staff from reporting sexual abuse and impedes the ability of the agency to protect the safety and security of its facilities. Retaliation can take many forms. For example, one or more inmates may assault another inmate for “snitching.” An accused staff member or his or her staff allies may suddenly start giving disciplinary tickets to the inmate who made the allegation. A staff member who reports may find that he or she is being snubbed or isolated by other staff. The agency should use every means possible, from information conveyed in training sessions to strict reporting policies to strong disciplinary sanctions for retaliation, to discourage retaliation in any form.

The agency should be alert to the possibility of retaliation from the outset and should initiate and maintain protective measures for as long as it deems necessary. The agency will have to weigh a number of circumstances when deciding how best to protect inmates and staff members who report sexual abuse. When collective bargaining agreements limit an agency’s ability to remove accused staff members from contact positions with inmates who have alleged staff-on-inmate sexual abuse or sexual harassment, the agency should develop and implement alternative protective measures. In general, agencies should try to secure collective bargaining agreements that do not limit their ability to protect inmates or staff from retaliation.

The agency’s protective measures can be adjusted throughout the investigation as necessary, but this does not obviate the agency’s obligation to take immediate and continuing steps to guard against retaliation. Although addressing the situation may require a housing transfer, facility officials should make every reasonable effort to minimize the disruption caused to the inmate’s daily life, including access to programs and other privileges.

(IN)

Investigations (IN)

(IN1)

Duty to investigate

The facility investigates all allegations of sexual abuse, including third-party and anonymous reports, and notifies victims and/or other complainants in writing of investigation outcomes and any disciplinary or criminal sanctions, regardless of the source of the allegation. All investigations are carried through to completion, regardless of whether the alleged abuser or victim remains at the facility.

Assessment Checklist	YES	NO
(a) Does the facility investigate all allegations of sexual abuse from all sources, including third-party and anonymous reports?
(b) Does the facility notify victims and other complainants in writing of investigation outcomes and any disciplinary or criminal sanctions?
(c) Are all investigations carried through to completion, regardless of whether the alleged abuser or victim remains at the facility?

Discussion

One of the challenges agencies face when investigating allegations of sexual abuse is inmate and staff reluctance to report the abuse, whether as victims or as witnesses. This reluctance to report leads to delayed reporting, changed stories, noncooperation, and difficulties obtaining physical evidence. By investigating all allegations of sexual abuse and carrying those investigations through to completion, agencies send a strong message that sexual abuse is taken seriously and will not be tolerated, thereby encouraging all inmates to report.

Carrying investigations through to completion means making sure that an investigation continues even if an alleged staff perpetrator transfers, resigns, or retires or if an alleged inmate perpetrator or victim is transferred or released from custody during an investigation. Consistent application of these practices helps assure the reporting party and others who may be considering reporting sexual abuse or cooperating with the investigation that reports and cooperation will not be fruitless. This assurance is critical given the risks often inherent to reporting sexual abuse and cooperating in an investigation of sexual abuse, both for staff and inmates. Continuing investigations after the alleged perpetrator has left the facility helps ensure that an abuser does not escape accountability and will not remain undetected in another facility or in another jurisdiction and thus can be critical to preventing further abuse. This should be an important risk management consideration for any agency.

This standard requires that victims and complainants be notified of the final investigative outcome (e.g., unfounded/unsubstantiated/substantiated) and any disciplinary or criminal sanctions imposed pursuant to a substantiated allegation of sexual abuse. When the investigative outcome is modified pursuant to review, appeal, or arbitration after notification has taken place, the victim/complainant should be notified of the modified outcome.

The “source” of an allegation of sexual abuse that triggers the duty to investigate may come in the form of evidence obtained during the investigation of a violent incident, or even death, within the facility that does not appear to have any connection to sexual abuse. Facilities should be attuned to the fact that sexual abuse may be the motivating factor behind seemingly unrelated assaults, suicides, and homicides within their facilities. Forensic autopsies should be employed whenever possible to determine whether sexual abuse occurred prior to the act of violence or suicide being investigated.

(IN2)

Criminal and administrative agency investigations

Agency investigations into allegations of sexual abuse are prompt, thorough, objective, and
conducted by investigators who have received special training in sexual abuse investigations (TR-4). When outside agencies investigate sexual abuse, the facility has a duty to keep abreast of the investigation and cooperate with outside investigators (RP-3). Investigations include the following elements:

• Investigations are initiated and completed within the timeframes established by the highest- ranking facility official, and the highest-ranking official approves the final investigative report.

• Investigators gather direct and circumstantial evidence, including physical and DNA evidence when available; interview alleged victims, suspected perpetrators, and witnesses; and review prior complaints and reports of sexual abuse involving the suspected perpetrator.

• When the quality of evidence appears to support criminal prosecution, prosecutors are contacted to determine whether compelled interviews may be an obstacle for subsequent criminal prosecution.

• Investigative findings are based on an analysis of the evidence gathered and a determination of its probative value.

• The credibility of a victim, suspect, or witness is assessed on an individual basis and is not determined by the person’s status as inmate or staff.

• Investigations include an effort to determine whether staff negligence or collusion enabled the abuse to occur.

• Administrative investigations are documented in written reports that include a description of the physical and testimonial evidence and the reasoning behind credibility assessments.

• Criminal investigations are documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and provides a proposed list of exhibits.

• Substantiated allegations of conduct that appears to be criminal are referred for prosecution.

Assessment Checklist	YES	NO
(a) Are investigations of allegations of sexual abuse conducted only by investigators who have received special training in sexual abuse investigations (TR-4)?
(b) When outside agencies investigate sexual abuse, does the facility keep abreast of the investigation and cooperate with outside investigators (RP-3)?
(c) Are investigations of allegations of sexual abuse initiated and completed within prompt timeframes established by the facility?
(d) Do investigations include a review of all direct and circumstantial evidence, including physical and DNA evidence when available; interviews of alleged victims, suspected perpetrators, and witnesses; and prior complaints and reports of sexual abuse or misconduct involving the suspected perpetrator?
(e) Does the facility contact prosecutors when the quality of evidence appears to support criminal prosecution to determine whether compelled interviews may be an obstacle for subsequent criminal prosecution?
(f) Are investigative findings based on the analysis of the evidence gathered and a determination of its probative value?
(g) Do investigators assess the credibility of a victim, suspect, or witness on an individualized basis, rather than using the person’s status as inmate or staff to assess credibility?
(h) Do investigations include an effort to determine whether staff negligence or collusion enabled the abuse to occur?
(i) Are administrative investigations documented in written reports that include a description of the physical and testimonial evidence and the reasoning behind credibility assessments?
(j) Are criminal investigations documented in a written report that contains a thorough description of physical, testimonial, and documentary evidence and provides a proposed list of exhibits?
(k) Are substantiated allegations of conduct that appear to be criminal referred for prosecution?

Discussion

This standard addresses both criminal and administrative investigations. There are significant differences in how each type of investigation is conducted, and it is critically important to keep criminal and administrative investigations separate. However, certain elements are important to both types of investigation, and the standard addresses these elements.

The standard requires that effective investigations be initiated and completed promptly so that physical evidence is available and usable and before memories have faded. Prompt investigations also give credence to an agency’s zero-tolerance commitment to end sexual abuse. Prompt investigations improve facility safety and morale by ensuring that wrongly accused subjects are exonerated as quickly as possible and that abusers are detected and removed and/or disciplined as quickly as possible. Agencies or facilities should ensure that established timelines provide sufficient time for investigators to complete the investigation and for the review process to be completed. However, investigations and their reviews should be completed within the constraints imposed by statutes of limitation or terms and conditions of collective bargaining agreements so as to ensure that the facility has the ability to impose discipline when allegations are substantiated.

This standard also reflects the importance of investigations being conducted by investigators with the skills, objectivity, and sensitivity to resolve allegations credibly and with well-
documented evidence. As the standard reflects, investigators must always be trained in conducting sexual abuse investigations (TR-4).

In cases of alleged staff-on-inmate sexual abuse or harassment, the agency will need to make extra efforts to ensure that those investigations are objective and thorough and should consider using outside investigators whenever possible to ensure the appearance as well as the reality of impartiality.

Because sexual abuse often has no witnesses and does not leave visible injury, investigators must be assiduous in searching out other kinds of direct and circumstantial evidence. To be successful, this requirement, like the other requirements of this standard, will need to be bolstered by investigator training and strong facility policies.

The type of direct and circumstantial evidence that can be gathered and analyzed will vary depending on the nature of the allegation. When forced intercourse or similar abuse is alleged, for example, properly conducted forensic exams may yield DNA evidence. When staff-inmate relationships are alleged, investigators should search for potentially corroborating evidence, such as telephone records, gifts, letters, and similar items. Investigators should also conduct a review of prior complaints of sexual abuse as well as disciplinary findings in those cases—including from other facilities or jurisdictions, whenever possible—as such information may suggest repeated patterns of behavior that bear on the credibility of the suspected abuser. Unless State law specifies otherwise, agencies or facilities should maintain those records for the duration of the inmate’s sentence or staff member’s employment.

Credibility assessments play an important role in the investigation of sexual abuse, as in any other investigation, and particularly so when there is no physical evidence. Properly trained investigators and agency officials must assess the truthfulness of alleged victims, suspected abusers, and witnesses (if there are any) based on a careful consideration of individual factors pertinent to each person (e.g., his or her possible motivations, opportunity, prior history of truthfulness, consistency of statements, etc.). Assumptions about truthfulness should not be based simply on the fact that a person is an inmate or member of the staff. The Commission especially cautions against automatically believing staff and disbelieving inmates when their statements contradict each other.

As this standard reflects, an important aspect of investigations of sexual abuse allegations is determining whether any staff negligence or collusion may have played a role in facilitating or causing the sexual abuse. This inquiry is critical to preventing future sexual abuse and is an important risk management tool for agencies.

As do several other standards, this standard recognizes the importance of coordinating with prosecuting authorities in cases involving sexual abuse allegations. This standard does not advocate delaying the initiation of the administration investigation until the decision of whether to prosecute has been made. However, to avoid compromising criminal investigations,
investigators must contact prosecuting authorities before taking any compelled statements of subjects in potentially criminal cases. Agencies also must refer criminal cases for prosecution whenever the evidence indicates that the abuse appears to be criminal.

(IN3)

Evidence standard for administrative investigations

Allegations of sexual abuse are substantiated if supported by a preponderance of the evidence.

Assessment Checklist	YES	NO
(a) Are allegations of sexual abuse substantiated if supported by a preponderance of the evidence?

Discussion

The goal of this standard is to ensure that the agency uses a standard of proof that is fair to all parties and appropriate for administrative action. This standard of proof applies to both administrative hearings and inmate disciplinary hearings and requires investigators to use the preponderance of the evidence standard that is commonly used in administrative investigations as well as in civil suits involving sexual abuse. The preponderance of the evidence standard requires that an allegation be substantiated when the evidence shows that it is more likely than not that the alleged abuse occurred. Administrative cases do not require that allegations be proven beyond a reasonable doubt.

Some facilities may establish lower thresholds for substantiating allegations of sexual abuse. This standard does not require that such facilities raise the threshold to the preponderance of evidence standard.

When available evidence is insufficient to substantiate an allegation, it may also be insufficient to prove that the alleged abuse did not occur. Such allegations may be determined to be unsubstantiated but cannot properly be categorized as unfounded. Where there are numerous unfounded allegations in a facility, administrators may want to review the quality of the investigations and closely scrutinize policies and protocols because numerous unfounded incidents may indicate problems with the way investigations are being conducted or reveal unknown incidents that actually did occur.

(DI)

Discipline (DI)

(DI1)

Disciplinary sanctions for staff

Staff is subject to disciplinary sanctions up to and including termination when staff has violated agency sexual abuse policies. The presumptive disciplinary sanction for staff members who have engaged in sexually abusive contact or penetration is termination. This presumption does not limit agency discretion to impose termination for other sexual abuse policy violations. All terminations for violations of agency sexual abuse policies are to be reported to law enforcement agencies and any relevant licensing bodies.

Assessment Checklist	YES	NO
(a) When staff has violated agency sexual abuse policies, has the staff member received sanctions up to and including termination?
(b) Do the disciplinary sanctions imposed indicate that the presumptive disciplinary sanction for staff who has engaged in sexually abusive contact or penetration is termination?
(c) Does the agency report to law enforcement agencies and any relevant licensing bodies all individuals terminated by the agency for violating agency sexual abuse policies?

Discussion

Imposing significant disciplinary sanctions for sexual abuse is a critical component of communicating an agency’s zero tolerance of sexual abuse and developing a culture of safety and accountability. The goal of this standard is to ensure fair and consistent accountability for staff members who have violated agency sexual abuse policies and procedures, regardless of whether they are found guilty in criminal proceedings. Violations that require disciplinary sanctions pursuant to this standard include engaging in actual or attempted abuse or harassment, failing to report an incident of sexual abuse, failing to limit information received about an allegation to those who need to know, failing to cooperate with a sexual abuse investigation, engaging in retaliation against inmates or staff who report abuse, and failing to follow any other agency policy regarding sexual abuse in which staff was trained.

Disciplinary hearings for adjudicating allegations of attempted or actual staff-on-inmate sexual abuse or sexual harassment should be fair, and sanctions should be proportional to the nature and circumstances of the accused staff member’s conduct, his or her disciplinary history, and the sanctions meted out for comparable offenses by other staff with similar histories. Sanctions may entail training and counseling. The sanctions should be sufficiently serious in all cases to communicate to all staff and inmates the agency’s refusal to tolerate sexual abuse or any conduct that impedes its efforts to eliminate it.

This standard requires that termination be the “presumptive” but not the mandatory sanction for certain types of sexual abuse in recognition of the fact that disciplinary sanctions must be determined on a case-by-case basis. Establishing termination as a presumption places a heavy burden on the staff person found to have committed the abuse to demonstrate why termination is not the appropriate sanction. This presumption also requires that termination should be the rule for the referenced types of sexual abuse, with exceptions made only in extraordinary circumstances. As the standard reflects, although termination is not the presumption for all types of sexual abuse, it may be the appropriate sanction for instances of sexual abuse less severe than sexually abusive contact or penetration.

This standard is not meant to increase the employment rights of staff who are at-will employees.

(DI2)

Disciplinary sanctions for inmates

Inmates are subject to disciplinary sanctions pursuant to a formal disciplinary process following an administrative ruling that the inmate engaged in inmate-on-inmate sexual abuse or following a criminal finding of guilt for inmate-on-inmate sexual abuse. Sanctions are commensurate with the nature and circumstances of the abuse committed, the inmate’s disciplinary history, and the sanctions meted out for comparable offenses by other inmates with similar histories. The
disciplinary process must consider whether an inmate’s mental disabilities or mental illness contributed to his or her behavior when determining what type of sanction, if any, should be imposed. Possible sanctions also include interventions designed to address and correct underlying reasons or motivation for the abuse, such as requiring the offending inmate to participate in therapy, counseling, or other programs.

Assessment Checklist	YES	NO
(a) When there has been an administrative ruling of inmate-on-inmate sexual abuse or a criminal finding of guilt for inmate-on-inmate sexual abuse, is the inmate perpetrator subject to disciplinary sanctions that are commensurate with the nature of the abuse committed, the inmate’s disciplinary history, and sanctions meted out for comparable offenses by other inmates with similar histories?
(b) Does the disciplinary process include consideration of any mental disabilities or mental illness that may have contributed to the abuse in determining the appropriate disciplinary sanction?
(c) Do possible sanctions include interventions designed to address and correct underlying reasons or motivation for the abuse, such as therapy, counseling, or other programs?

Discussion

Holding inmates accountable for sexually abusing other inmates is essential to deter abuse and to demonstrate to inmates and staff that the agency takes seriously its zero-tolerance policy. Unlike abusive staff, abusive inmates cannot simply be “fired” and removed from a correctional setting. This standard recognizes that inmate accountability and the likely reduction in recidivism may be best achieved by using various kinds of sanctions, including not just punitive ones (e.g., loss of privileges) but positive interventions that may help an inmate learn to better control his or her own behavior (e.g., counseling, participation in group programs, or other therapeutic interventions). All sanctions and interventions should send a clear message that the agency does not tolerate sexual abuse of any sort.

When imposing disciplinary sanctions, the facility should take care to ensure that inmates are not placed for prolonged periods in disciplinary segregation if the conditions in segregation have the potential to cause or aggravate symptoms of mental illness and/or limit access to needed mental health services.

The Commission strongly urges agencies to refrain from imposing disciplinary sanctions on inmates solely because they have participated in apparently consensual sex or romantic relationships with staff. Disciplinary sanctions for such inmates will discourage them from reporting abuse. Additionally, some inmates may fail to report abuse because of larger safety concerns in the facility and therefore should not be punished for concealing sexual activity. Staff should always be held responsible for such abuse. On the other hand, the Commission recognizes that inmates may engage in relationships with staff to obtain contraband or break other facility rules without being punished. The Commission believes inmates should be held responsible for such other rules violations, but not for the sexual relationship that allowed for such violations.

(MM)

Medical and Mental Health Care (MM)

(MM1)

Medical and mental health screenings—history of sexual abuse

Qualified medical or mental health practitioners ask inmates about prior sexual victimization and abusiveness during medical and mental health reception and intake screenings. If an inmate discloses prior sexual victimization or abusiveness, whether it occurred in an institutional
setting or in the community, during a medical or mental health reception or intake screening, the practitioner provides the appropriate referral for treatment, based on his or her professional judgment. Any information related to sexual victimization or abusiveness that occurred in an institutional setting must be strictly limited to medical and mental health practitioners and other staff, as required by agency policy and Federal, State, or local law, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments. Medical and mental health practitioners must obtain informed consent from inmates before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the inmate is under the age of 18.

Assessment Checklist	YES	NO
(a) Do qualified medical or mental health practitioners ask questions about prior sexual victimization and abusiveness during medical and mental health reception and intake screenings?
(b) If an inmate discloses prior sexual victimization or abusiveness, whether it occurred in an institutional setting or in the community, during a medical or mental health reception or intake screening, does the practitioner provide appropriate referral for treatment based on his or her reasonable professional judgment?
(c) Is any information related to sexual victimization or abusiveness that occurred in an institutional setting strictly limited to medical and mental health practitioners and other staff, as determined by agency policy and Federal, State, or local law, to inform treatment plans and security and management decisions, including housing, bed, work, education, and program assignments?
(d) Do medical and mental health practitioners obtain informed consent from inmates before reporting information about prior sexual victimization that did not occur in an institutional setting, unless the inmate is under the age of 18?

Discussion

Facilities typically perform a brief health screening of each inmate upon his or her arrival, followed by a more comprehensive assessment 7 to 14 days after admission. Under this standard, these screenings must include questions about previous sexual victimization and abusiveness, whether in a confinement setting or in the community. Before asking these questions, medical and/or mental health practitioners should inform inmates that they are not required to answer any of the questions pertaining to sexual victimization or abusiveness if they would prefer not to. Not all inmates will feel comfortable answering such questions, and practitioners should respect refusals to answer those questions and not press for answers. During these screenings, an inmate may disclose information about victimization that occurred recently or historically. Incidents of abuse that happened many years ago may still require treatment, and medical and mental health practitioners should exercise their professional judgment to determine what treatment to recommend. Similarly, mental health practitioners should exercise their professional judgment to determine whether an inmate who discloses prior sexually abusive behavior could benefit from counseling, treatment, or other therapeutic interventions.

If an inmate discloses an incident of sexual abuse that occurred within a time period in which physical evidence may still be collected, the medical and/or mental health practitioner is required to provide access to emergency medical treatment and crisis intervention services
(MM-2) and follow the agency’s evidence protocol (RP-1). At the time of publication of this body of standards, 96 hours is the timeframe commonly accepted and used by medical and mental health practitioners, corrections professionals, and criminal investigators.

The information obtained during medical and mental health reception and intake screenings can be vital to keeping inmates safe, in the same way as information obtained during the risk assessment screening (SC-1). By asking these questions during medical and mental health screenings, the facility can ensure that all inmates receive the medical and mental health treatment they need. Additionally, as captured in standards SC-1 and SC-2, prior sexual victimization or prior sexually abusive behavior, especially in an institutional setting, is an important factor to consider when making security and management decisions, including housing, program, education, and work placements for inmates. However, if an inmate discloses to a medical or mental health practitioner prior sexual victimization that occurred in the community, rather than in an institutional setting, this standard requires that the practitioner obtain informed consent before sharing this information with staff making such housing, program, education, and work decisions. Although standard OR-1 requires medical and mental health practitioners to report allegations or incidents of sexual abuse that occurred or may occur in a facility, unless precluded by Federal, State, or local law, the situation in which an inmate discloses previous sexual victimization in the community to a medical or mental health practitioner is different. In that situation, the inmate has a right to determine how or if the medical or mental health practitioner may share that information with other staff.

(MM2)

Access to emergency medical and mental health services

Victims of sexual abuse have timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment. Treatment services must be provided free of charge to the victim and regardless of whether the victim names the abuser. If no qualified medical or mental health practitioners are on duty at the time a report of recent abuse is made, security staff first responders take preliminary steps to protect the victim (OR-3) and immediately notify the appropriate medical and mental health practitioners.

Assessment Checklist	YES	NO
(a) Do inmates have timely, unimpeded access to emergency medical treatment and crisis intervention services, the nature and scope of which are determined by medical and mental health practitioners according to their professional judgment?
(b) Are treatment services provided free of charge to the victim?
(c) Are treatment services provided regardless of whether the victim names the abuser?
(d) If no qualified medical or mental health practitioners are on duty at the time a report is made, do security staff first responders take preliminary steps to protect the victim (OR-3) and immediately notify the appropriate medical and mental health practitioners?

Discussion

Under this standard, the facility is required to provide emergency medical treatment and crisis intervention services free of charge to victims of sexual abuse. Such services may include, but are not limited to: (1) assessing the victim’s acute medical and mental health needs as soon as possible, (2) obtaining consent for treatment from the victim, unless the victim is under 18, (3) treating the victim’s acute medical and mental health needs as soon as possible, (4) documenting the victim’s acute medical and mental health needs and treatment provided as soon as possible, (5) providing support and crisis intervention services, and (6) providing access to a forensic medical exam and, if the victim agrees to an exam, ensuring agency protocol is followed whenever there may be physical evidence of sexual abuse (RP-1).

The standard’s requirement that medical and mental health services be provided even when the victim refuses to name the abuser means that victims must be able to meet with medical or mental health practitioners without having to disclose details of the abuse to an officer or other security staff member. As such, agencies may need to adapt their sick-call policies to allow inmates to access medical and mental health care practitioners without having to describe their victimization.

(MM3)

Ongoing medical and mental health care for sexual abuse victims and abusers

The facility provides ongoing medical and/or mental health evaluation and treatment to all known victims of sexual abuse. The evaluation and treatment of sexual abuse victims must include appropriate follow-up services, treatment plans, and, when necessary, referrals for continued care following their release from custody. The level of medical and mental health care provided to inmate victims must match the community level of care generally accepted by the medical and mental health professional communities. The facility conducts a mental health evaluation of all known abusers and provides treatment, as deemed necessary by qualified mental health practitioners.

Assessment Checklist	YES	NO
(a) Does the facility provide ongoing medical and/or mental health evaluation and treatment to all known victims of sexual abuse?
(b) Does the evaluation and treatment of victims include the following?
• Appropriate follow-up services
• Treatment plans
• When necessary, referrals for continued care for sexual abuse victims following their release from custody
(c) Does the level of medical and mental health care provided to inmate victims match the level of care generally accepted by the medical and mental health professional communities?
(d) Does the facility conduct a mental health evaluation of all known abusers?
(e) Does the facility provide treatment for abusers, as deemed necessary by qualified mental health practitioners?

Discussion

Victims of sexual abuse can experience a range of physical injuries and emotional reactions, even long after the abuse has occurred, that require medical or mental health attention. As required by this standard, the facility must be able to ensure that all victims receive the appropriate medical and/or mental health services recommended by qualified practitioners. Follow-up evaluations and assessments may include the following actions: (1) reviewing any medical and mental health treatment provided immediately following the incident, including whether a forensic medical exam was performed, (2) diagnosing any lingering acute or nonacute physical injuries, including oral trauma, and (3) assessing the psychological impact of the victimization, including the risk of suicide or self-harm and any resulting mental health treatment needs. These follow-up evaluations and assessments will enable mental health and medical practitioners to determine and provide the most appropriate treatment for the inmate, which could include mental health treatment, medical treatment, or both. Reviewing and adjusting victim treatment plans at regular, clinically appropriate intervals will allow the agency to provide the most comprehensive and appropriate care for as long as treatment is required.

Victims and perpetrators of sexual abuse, whether recent or historical, are at risk for sexually transmitted infections (STIs), including HIV. Regardless of whether an inmate has accepted prevention or treatment for STIs, medical practitioners ought to offer and strongly encourage him or her to be tested for HIV and viral hepatitis six to eight weeks following the sexual abuse.

In accordance with this standard’s requirement to provide victims with the level of care generally accepted in the medical and mental health professional communities, if there has been vaginal penetration, female victims who have been recently abused should be offered pregnancy tests at the time of the medical evaluation and, if the test is negative, should be offered retesting approximately six weeks thereafter. Victims who have positive tests should receive counseling and have access to all pregnancy-related medical services that are lawful in the community.

Additionally, this standard requires mental health evaluations and treatment, when appropriate, of all known abusers. Mental health practitioners may find that ongoing mental health treatment, including counseling, group programs, or other therapeutic interventions, may be beneficial to abusers. Mental health treatment may help abusers develop better control over their actions and improve their conduct; in doing so, such treatment may help reduce the likelihood of recidivism and thereby improve facility safety. As noted in the standard, the agency’s mental health practitioners must use their professional judgment to determine the appropriate treatment and services for individuals with a recent or previous history of sexual abusiveness.

Inmates over the age of 18 have the right to refuse medical and/or mental health care after receiving counseling about the potential value of the services they would receive. As a risk management measure, the agency should require inmates to sign refusals of care and document such refusals in the inmate’s medical file.