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

Lockups

III. DETECTION AND RESPONSE

(RE)

Reporting (RE)

(RE1)

Detainee reporting

The agency provides multiple ways for detainees to report easily, privately, and securely sexual abuse, retaliation by other detainees or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse. 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 agency provide multiple ways for detainees to report easily, privately, and securely sexual abuse, retaliation by other detainees or staff for reporting sexual abuse, and staff neglect or violation of responsibilities that may have contributed to an incident of sexual abuse? (Please attach documentation explaining the specific reporting mechanisms the agency has in place.)
(b) Does staff accept reports made verbally, in writing, anonymously, and by third parties?
(c) 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 agency should accept reports of sexual abuse in person, via telephone, via email, or through other written correspondence. 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.

The agency should take seriously all reports of sexual abuse, regardless of the form or format in which they were conveyed. Although the agency may choose to provide different mechanisms for reporting, staff should be prepared to accept and respond to all types of reports and manners of reporting. For example, a detainee who scrawls a note and passes it to an officer should be treated the same way as a detainee who files a formal complaint.

(RE2)

Exhaustion of administrative remedies

Under agency policy, a detainee 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 detainee, made by a third party, or forwarded from an outside official or office) or (2) when 90 days has 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. A detainee 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 a detainee 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 detainee, made by a third party, or forwarded from an outside official or office) or
• When 90 days has passed since the report was made, whichever occurs sooner
(b) Does agency policy reflect that a detainee 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), agencies are able to raise a detainee’s “failure to exhaust administrative remedies” as an affirmative defense against a detainee’s legal claims brought in Federal court. The purpose of this requirement in the PLRA is to ensure that agencies have an opportunity to respond to a detainee’s complaint before that detainee files a lawsuit. Many people held in lockups are not considered “prisoners” under PLRA; in such cases, PLRA does not apply to any lawsuits they file, and this standard is not necessary to protect them. Likewise, it would be unusual for a lockup to have a grievance procedure similar to those developed by correctional agencies, and therefore it is unlikely that detainees who file a suit based on abuse in a lockup will see those suits dismissed for failure to “exhaust administrative remedies.” However, some detainees in lockups qualify as “prisoners” under PLRA, and in the event that abuse takes place at a lockup, it is equally important that those prisoners are not barred from court as a result of unreasonable administrative policies.

Agencies are free to determine the procedures by which a detainee “exhausts administrative remedies” by policy. In practice, many correctional agencies have adopted policies that require a detainee 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 in order to satisfactorily exhaust the agency’s administrative remedies. Policies that require detainees 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, detainees 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, since grievance procedures are generally not designed as the sole or primary method for reporting incidents of sexual abuse by detainees 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 detainees 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 a detainee 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 detainees 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 detainee 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 a detainee 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 a detainee who reports a risk of imminent harm, the agency shall deem the detainee’s administrative remedies exhausted 48 hours after such a report is made to any agency employee. A court can determine whether the detainee’s request merits an injunction, but the detainee 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)

Third-party reporting

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

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

Discussion

Information about how to report sexual abuse on behalf of a detainee 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 agency chooses to distribute the information, the information itself should convey:
(1) the contact information for the law enforcement 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 agency will inform the individual who reported the abuse of the outcome of the investigation. The agency should periodically review and update, if necessary, the information distributed regarding third-party reporting.

(OR)

Official Response Following a Detainee Report (OR)

(OR1)

Staff and agency 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 detainees 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 and investigation decisions. If the victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, the agency 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 detainees 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 and investigation decisions?
(c) If the victim is under the age of 18 or considered a vulnerable adult under a State or local vulnerable persons statute, does the agency 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 agency 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 agency 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).

(OR2)

Reporting to other confinement facilities

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

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

Discussion

Detainees 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, a detainee 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 agency or lockup 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 facility or lockup 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 detainees and staff.

(OR3)

Staff first responder duties

Upon learning that a detainee was sexually abused within a time period that still allows for the collection of physical evidence, the first law enforcement 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-law enforcement staff member, he or she is required to instruct the victim not to take any actions that could destroy physical evidence and then notify law enforcement staff.

Assessment Checklist	YES	NO
(a) Has the agency notified law enforcement 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 agency notified non-law enforcement 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 law enforcement staff?

Discussion

In addition to reporting the abuse according to agency policy, the first law enforcement staff member who learns of a detainee 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 limit for collecting physical evidence is 96 hours. To carry out their duties effectively, law enforcement 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-law enforcement 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 law enforcement 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 agency leadership. The agency’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 agency leadership?
(b) Does the agency’s coordinated response ensure that victims receive all necessary immediate and ongoing medical, mental health, and support services?
(c) Does the agency’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 law enforcement agencies already use some version of a SART, the Commission recognizes that not all agencies are equipped to organize a specialized team. 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 the agency uses a designated response team, 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 agency 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 detainee victim during the forensic medical exam; (5) interviewing victims and witnesses; (6) collecting evidence; and (7) providing for any special needs a victim might have.

(OR5)

Agency protection against retaliation

The agency protects all detainees and staff who report sexual abuse or cooperate with sexual abuse investigations from retaliation by other detainees or staff. The agency employs multiple protection measures, including housing changes or transfers for detainee victims or abusers, removal of alleged staff or detainee abusers from contact with victims, and emotional support services for staff members who fear retaliation for reporting sexual abuse or cooperating with investigations. The agency monitors the conduct and/or treatment of staff who have reported sexual abuse or cooperated with investigations. When retaliation is determined to be taking place, the agency takes immediate steps to protect the detainee or staff member.

Assessment Checklist	YES	NO
(a) Does the agency employ the following measures to protect detainees and staff from retaliation for reporting sexual abuse?
• Housing changes or transfers for detainee victims or abusers
• Removal of alleged staff or detainee abusers from contact with victims
• Employee assistance services or other resources for staff who may need psychological or emotional support
(b) Does the agency monitor the conduct and/or treatment of staff who have reported sexual abuse or cooperated with investigations?
(c) When retaliation has been confirmed, does the agency immediately take steps to protect the detainee or staff member?

Discussion

Fear of retaliation, such as being targeted for future arrest or prosecution, placed in harsh or hostile conditions, being attacked by other detainees, or, in the case of staff reporting, being penalized or ostracized by superiors or coworkers, prevents many detainees and staff from reporting sexual abuse and impedes the ability of the agency to protect the safety and security of its lockups. Retaliation can take many forms. Detainees may be charged instead of released or targeted for future arrest. 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’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.

(IN)

Investigations (IN)

(IN1)

Duty to investigate

The agency investigates all allegations of sexual abuse, including third-party and anonymous
reports, and notifies victims and 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 lockup.

Assessment Checklist	YES	NO
(a) Does the agency investigate all allegations of sexual abuse from all sources, including third-party and anonymous reports?
(b) Does the agency 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 lockup?

Discussion

One of the challenges agencies face when investigating allegations of sexual abuse is detainee 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 detainees 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 detainee 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 detainees. Continuing investigations after the alleged perpetrator has left the lockup helps ensure that an abuser does not escape accountability and will not remain undetected in another lockup 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 lockup that does not appear to have any connection to sexual abuse. Agencies should be attuned to the fact that sexual abuse may be the motivating factor behind seemingly unrelated assaults, suicides, and homicides within their lockups. 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-3). When outside agencies investigate sexual abuse, the agency has a duty to keep abreast of the investigation and cooperate with outside investigators (RP-2). Investigations include the following elements:

• Investigations are initiated and completed within the timeframes established by the highest- ranking agency 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 or misconduct 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 detainee 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-3)?
(b) When outside agencies investigate sexual abuse, does the agency keep abreast of the investigation and cooperate with outside investigators (RP-2)?
(c) Are investigations of allegations of sexual abuse initiated and completed within prompt timeframes established by the agency?
(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 agency 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 detainee 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 before memories have faded. Prompt investigations also give credence to an agency’s zero-tolerance commitment to end sexual abuse. Prompt investigations improve agency 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 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 agency 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-3).

In cases of alleged staff-on-detainee 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 agency 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-detainee relationships are alleged, investigators should search for potentially corroborating evidence, such as telephone records, gifts, letters, and similar items. All investigations should include a review of prior complaints of sexual abuse as well as disciplinary findings in those cases—including from other facilities or jurisdictions, wherever possible—as such information may suggest repeated patterns of behavior that bear on the credibility of the suspected abuser. When the subject of the investigation is an employee, the agency should maintain investigative records for the duration of his or her employment with the agency, unless otherwise directed by State law.

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 a detainee or member of the staff. The Commission especially cautions against automatically believing staff and disbelieving detainees 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 administrative 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. When there are numerous unfounded allegations in an agency or lockup, 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 appropriate 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 appropriate 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 detainees 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-detainee 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 detainees 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)

Referrals for prosecution for detainee-on-detainee sexual abuse

When there is probable cause to believe that a detainee sexually abused another detainee, the agency refers the matter to the appropriate prosecuting authority.

Assessment Checklist	YES	NO
(a) When there is probable cause to believe that a detainee sexually abused another detainee, does the agency refer the matter to the appropriate prosecuting authority?

Discussion

Holding detainees accountable for sexually abusing other detainees is essential to deter abuse and to demonstrate to detainees and staff that the agency takes seriously its zero-tolerance policy. At the same time, the Commission strongly urges agencies to refrain from subjecting detainees to prosecution solely because they participated in apparently consensual sex or romantic relationships with staff. Subjecting such detainees to prosecution will discourage them from reporting abuse. On the other hand, the Commission recognizes that detainees may engage in relationships with staff to obtain contraband or break other facility rules without being punished. The Commission believes detainees 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)

Access to emergency medical and mental health services

Victims of sexual abuse have timely, unimpeded access to emergency medical services following an incident of sexual abuse, regardless of whether they name an abuser. Treatment services must be provided free of charge to the victim. The agency is responsible for ensuring their safe and timely transportation to community medical providers and for referring victims to appropriate community mental health services.

Assessment Checklist	YES	NO
(a) Does the agency ensure that victims of sexual abuse have timely, unimpeded access to quality medical services following an incident of sexual abuse, regardless of whether they name an abuser?
(b) Are treatment services provided free of charge to the victim?
(c) Does the agency ensure that all victims of sexual abuse have safe and timely transportation to community medical providers?
(d) Does the agency refer victims to appropriate community mental health services?

Discussion

Given the short period of time that most detainees will spend in a lockup, the responsibilities of the law enforcement agency following an incident of sexual abuse will likely be limited to ensuring that victims receive emergency medical treatment and intervention, including forensic medical exams when appropriate (RP-1). However, the law enforcement agency should be prepared to refer victims to community mental health services and explain
how to access those services. Referrals to community mental health services may range from giving victims the phone numbers for rape crisis centers or hotlines to helping them make an appointment with a community service agency that provides services to crime victims. For victims who will be released into the custody of a jail, the law enforcement agency should take steps to ensure that information related to the detainee’s victimization travels with him or her so that the receiving facility can make informed decisions about that person’s care and treatment.