Prison Rape Elimination Act (PREA)

The Prison Rape Elimination Act of 2003 is the first United States Federal law passed dealing with the sexual assault of prisoners. The bill was signed into law on September 4, 2003 by President George W. Bush. For the victim advocates, attorneys, and survivors who had been striving for more than two decades to shed light on the issue of sexual abuse behind bars, the passage of PREA was a milestone. For the first time in U.S. history, Congress affirmed unanimously the duty of correctional agencies to protect incarcerated individuals from sexual abuse and established a zero tolerance standard for sexual abuse in America’s correctional facilities. PREA covers all adult, as well as juvenile detention facilities. The Act supports the elimination, reduction and prevention of sexual assault and rape within detention facilities; mandates national data collection efforts; provides funding for the program development and research; creates a national commission to develop standards and accountability measures; applies to all federal, state and local detainment facilities which include, adult and juvenile detention facilities, facilities, police lock ups and community confinements. The act also created the National Prison Rape Elimination Commission and charged it with developing draft standards for the elimination of prison rape. Those standards were published in June 2009, and were turned over to the Department of Justice for review and passage as a final rule. That final rule became effective August 20, 2012. 

The San Bernardino County Probation Department has a zero-tolerance policy regarding sexual abuse and sexual harassment involving youth with other youth, youth with staff, visitors, contractors, volunteers and interns as defined by the Department of Justice PREA Juvenile Standards, California State law, and the San Bernardino County Probation Department policies.

  • The department will fully investigate and immediately address all allegations of sexual abuse and sexual harassment to include criminal and administrative sanctions as appropriate.
  • Probation staff are to immediately verbally report any instance of suspected or observed sexual abuse or sexual harassment to a supervisor or administrator and document the matter in writing within 24 hours.
  • Probation staff, volunteers/contractors are required to immediately intervene and report to a Probation Department employee when they suspect or observe sexual abuse or sexual harassment.
  • No probation staff member, individual subject to probation supervision, youth, volunteer, or collaborative partner will be subject to retaliation for acting in good faith to intervene in, report or document any incident of sexual abuse or sexual harassment.
Departmental Response to Sexual Abuse or Sexual Harassment
  • Employees have a duty to immediately report all rumors and allegations of sexual abuse and sexual harassment.
  • Local Sexual Assault Response Teams (S.A.R.T.) will ensure alleged victims of sexual abuse receive immediate medical attention.
  • The local S.A.R.T. will also ensure alleged victims of sexual abuse receive a mental health evaluation.
  • All allegations of sexual abuse will be for investigated.
Employee Awareness and Education
  • All employees receive training about the federal law, state law, and departmental policy governing sexual abuse and sexual harassment.
  • All employees receive annual training concerning their duty to report rumors or allegations of sexual abuse or sexual harassment, to whom they should report, how they should report, and when they should report such incidents.
  • All employees receive training about how to detect an unreported incident of sexual abuse and sexual harassment.
  • Vendors, contractors, volunteers and visitors authorized to enter the Department’s facilities receive information and training regarding their responsibility to report and detect sexual abuse and sexual harassment
Youth Awareness and Education
  • All youth upon intake, including those youth who are transferred from another facility, receive notice that sexual contact is strictly prohibited and punishable by disciplinary action or criminal prosecution.
  • All youth receive ongoing training on what to do if they have become a victim of sexual abuse, including the various reporting methods.
  • All youth have access to toll free phone numbers to report incidents of sexual abuse or sexual misconduct without fear of retaliation.

All PREA allegations are reviewed and assigned for investigation. Local law enforcement conducts all criminal investigations. Administrative investigation (non-criminal) of sexual abuse and harassment are conducted by PREA Investigators who have received specialized training for juveniles in confinement.

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What Is Sexual Abuse?
  • Sexual abuse includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence, or is unable to consent or refuse:
  • Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;
  • Contact between the mouth and the penis, vulva, or anus;
  • Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and
  • Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.
  • Contact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  • Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  • Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;
  • Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities described in paragraphs (1)-(5) of this section;
  • Any display by a staff member, contractor, or volunteer of their uncovered genitalia, buttocks, or breast in the presence of any youth
What is Sexual Harassment?
  • Repeated and unwelcome sexual advances
  • Requests for sexual favors
  • Verbal comments, gestures or actions of a derogatory or offensive sexual nature by one youth directed toward another
  • Repeated verbal comments or gestures of a sexual nature to a youth, by a staff member, contractor or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures
What is Voyeurism?
  • An invasion of privacy of a detained youth by staff for reasons unrelated to official duties, such as peering at an youth who is using the toilet in their room to perform bodily functions
  • Requiring an youth to expose their buttocks, genitals, or breast
  • Taking images of all or part of an youth’s naked body or of a youth performing bodily functions.

Several court cases lead to PREA’s passage. These cases directly influenced the shaping of PREA’s policy. The case often cited as most influential in leading to the passage of PREA is the 1994 case of Farmer v. Brennan. Dee Farmer, a male-to-female transsexual, was incarcerated with the general male population in a US Penitentiary in Indiana. While there, she was repeatedly raped, beaten by other inmates, and acquired HIV as a result. In the court filing, she claimed that the prison administration should have known that she was particularly vulnerable to sexual violence because she was transsexual. The US Supreme Court ruled in her favor. The US Supreme Court agreed that it was the responsibility of prison officials to prevent prisoners from harming each other, to the point where prison officials who were “deliberately indifferent” were ruled liable under the Eighth Amendment (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.) However, the court did not make prison officials liable for all violence between inmates.

The case of Women Prisoners of DC Department of Corrections v. District of Columbia, 1994, was filed by a group of women prisoners in the District of Columbia. The inmates claimed that their constitutional rights had been violated by sexual abuse from prison staff. The women inmates claimed the male staff had used physical force and threats of physical force to make them engage in sexual activity. They also claimed that the male prison staff invaded their privacy by entering their living areas without announcing their presence, sexually harassed them, raped them, and created a hostile, sexualized environment. The women claimed this hostile sexualized environment worsened the negative effects of the abuse that most of these women had suffered in their personal lives before they got to jail. The court found in favor of the women inmates on grounds that their 8th Amendment Rights had been violated. This was the first case where the US Supreme Court addressed prisoner rape.

The case of Neal v Michigan and Anderson v Michigan, (both 1997), two class action suits filed against the Michigan Department of Corrections. The cases involved over 500 women inmates and former inmates claiming repeated rape and other sexual abuse by prison staff while incarcerated in two Michigan correctional facilities. These suits were not filed against the guards at the facilities, but against the Michigan Department of Corrections and its administrative personnel. As one of the attorneys representing the women put it, “Although you may not have known that Guard A was assaulting Prisoner A, you had enough notice of a sexually pervasive prison environment that appropriate action should have been taken.” The case was filed in 1997, but was not settled until 2008. The settlement amount was $100 million for the women. The settlement was paid by the State of Michigan and its taxpayers.

In 2001, Human Rights Watch released a paper, No Escape: Male Rape in U.S. Prisons. The release of that paper encouraged action and discussion on a national level. The paper surveyed 34 states’ prison systems and documented in gruesome detail accounts of prisoner rape and sexual abuse. The study was then featured on the front page of The New York Times, and later other publications. PREA (Prison Rape Elimination Act) was backed by a number of groups, including Just Detention International, the Southern Baptist Ethics & Religious Liberty Commission, Amnesty International USA, Focus on the Family, Human Rights Watch, NAACP, National Association of Evangelicals, Salvation Army and many other groups. PREA was co-sponsored by a bipartisan group of Democrats and Republicans in Congress and was passed by unanimous consent in the House and Senate, and signed into law by George W. Bush in 2003. PREA was passed as a result of the attention from these cases and the paper, “No Escape: Male Rape in U.S. Prisons”