Robert Hinchman, Senior Counsel
950 Pennsylvania Avenue NW., Room 4252
Washington, DC 20530
RE: Docket No. OAG-131; AG Order No. 3244-2011
National Standards to Prevent, Detect, and Respond to Prison Rape
Dear Attorney General Holder,
On behalf of the Rappahannock Council Against Sexual Assault (RCASA), this letter is submitted to express support for many of the Department’s proposed national standards, but also to make recommendations for strengthening or revising other standards. RCASA’s mission is to provide education, prevention and intervention in our community. Our community also consists of detention centers and corrections facilities. RCASA advocates on behalf of the women, children and men who have needlessly suffered the serious trauma of sexual abuse, and envisions a world free from sexual violence.
As an organization committed to ending sexual violence, we are eager to partner with corrections agencies to assist victimized inmates. It should be noted, however, that many sexual assault crisis centers, like us, receive the majority of their funding from the Victims of Crime Act (VOCA). Currently, organizations are prohibited from using their VOCA funds to provide services to incarcerated victims of sexual abuse. Therefore, we urge the Department to lift this funding restriction to allow VOCA-funded sexual assault organizations to provide services and support to inmates without risking their VOCA funding.
Based on our expertise in service provision and victim advocacy, we offer the following feedback on the proposed standards for your consideration.
§ 115.5 Definitions.
We are disappointed that immigration detention, military facilities, tribal facilities, and nonresidential probation and parole are excluded from the Department’s standards. Victims of sexual violence, regardless of where they are housed, deserve the same access to safe reporting options, medical and mental health treatment, and protection from retaliation. The Department’s decision to remove specific confinement settings from the standards exempts certain officials from being held accountable for sexual abuse, while sending the message that some victims do not deserve proper services.
§ 115.14 Limits to cross-gender viewing and searches.
We are very concerned that the Department removed the National Prison Rape Elimination Commission’s restriction on cross-gender pat searches in adult prisons and jails and viewing of inmates in states of undress as part of routine cell checks in all facilities, despite findings in each of the Bureau of Justice Statistics inmate surveys that a significant percentage of sexual abuse in all types of corrections facilities is perpetrated by staff members of the opposite sex.
In addition to preventing abuse generally, limiting officers from viewing inmates of the opposite sex who are unclothed and from touching opposite sex inmates’ bodies during a search can also reduce re-victimization and related trauma. A significant number of inmates have suffered sexual abuse in the past, and the extreme loss of privacy that comes with cross-gender searches and viewing prevents them from retaining a sense of bodily integrity that is vital to healing. In addition to becoming targets for abuse, inmates who are re-victimized have trouble adjusting to prison life, often resulting in medical and mental health concerns, disciplinary problems and grievances while they are incarcerated, as well as greater challenges to effective reentry upon release. As such, we strongly encourage the Department to reinstate the Commission’s restrictions on cross-gender pat searches and viewing.
§ 115.21 Evidence protocol and forensic medical exams.
This standard relies upon the proven practice of uniform evidence collection, which improves administrative and criminal investigations by maximizing the potential for obtaining usable physical evidence. The Office on Violence Against Women’s 2004 publication “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” is the definitive source for how to conduct a proper medical forensic examination on adults and post-pubescent youth. Aspects of this protocol may not be appropriate for younger residents in juvenile facilities, however. We urge the Department to establish an appropriate protocol for children, and to modify the requirement for juvenile facilities to ensure that pre-pubescent children receive an appropriate pediatric examination.
We commend the Department for ensuring that forensic medical exams include a victim advocate. Forensic examinations are critical to the investigation, but can be emotionally difficult and physically invasive to the victim. Inmates who receive support throughout the process are better able to understand their options and effectively participate throughout the process. Though the Department makes an effort to ensure that sexual abuse victims have access to a support person who can accompany them through the forensic medical exam and the investigation process, we are concerned with how the standard allows a “qualified staff member” to serve as a victim advocate.
Staff members, even those assigned for this special duty, may feel a conflict between their security duties and this support role – and inmates likely will not understand the extent to which their conversations with staff advocates are confidential. Staff members who perform this function would also need to be carefully screened, provided with sufficient training, and be able to dedicate the time and attention needed throughout the investigations process. Because of these concerns, a “qualified staff member” should be allowed to serve as a victim advocate only in cases where there is no community-based agency in the area able to provide such services. And, when “qualified staff members” are used, they must be carefully screened and properly trained.
In addition to providing a support person to accompany a victim of sexual abuse through the forensic exam and investigations process, it is imperative for agencies to ensure that inmate victims receive a proper medical forensic exam. We are deeply concerned that facility-based medical staff simply will not have the comprehensive training necessary to conduct medical forensic exams. We recommend that the Department require agencies to make every reasonable effort to provide inmate victims access to a Sexual Assault Nurse Examiner (SANE) or Sexual Assault Forensic Examiner (SAFE). This is best accomplished by transporting inmate victims to medical facilities with specially trained staff, though in some communities, mobile SANE units will visit a facility and in other localities, SANEs or SAFEs will travel to a facility to provide exams. We recommend that the Department require agencies that transport inmates off-site for medical treatment to develop a protocol that includes which medical facilities can provide medical forensic exams.
§ 115.22 Agreements with outside public entities and community service providers.
Collaborating with outside experts is a low- or no-cost way for facilities to dramatically enhance their relevant expertise and provide victim-centered care. Agreements between corrections agencies/facilities and community-based advocacy organizations should clarify which support services the outside organization can provide and specify the limits to confidentiality.
The Department asks if agencies should be required to attempt to enter into memoranda of understanding that provide specific assistance for limited English proficiency (LEP) inmates. We believe the standards absolutely must include this requirement, as LEP inmates face significant language-related obstacles in navigating facilities’ grievance and reporting systems. LEP inmates need unfettered access to safe reporting options and deserve full access to information about the investigation, the medical exam, and the services available to them.
§ 115.23 Polices to ensure investigation of allegations.
To strengthen this standard, we recommend that the Department add a requirement prohibiting polygraph testing for victims of sexual assault. Polygraph testing often yields inaccurate results and is inadmissible in court. Equally important, polygraph testing can be traumatizing to a victim, which can cripple the effectiveness of an investigation by damaging the rapport that is needed between an investigator and a victim to achieve successful results. Further, under the 2005 reauthorization of the Violence Against Women Act (VAWA), the federal government prohibits the use of the polygraph testing for victims of sexual violence in states receiving VAWA STOP grants. We believe the Department’s standard should mirror this prohibition.
§ 115.31 Employee training.
§ 115.32 Volunteer and contractor training.
Policies aimed at eliminating sexual abuse in detention become meaningful only if corrections staff, contractors, and volunteers are appropriately trained to take action to prevent and address incidents of sexual violence. As such, we strongly support these standards. We specifically applaud the Department’s decision to require training on avoiding inappropriate relationships with inmates and how to communicate effectively and professionally with inmates, including lesbian, gay, bisexual, transgender, and intersex inmates.
§ 115.34 Specialized training: investigations.
§ 115.35 Specialized training: medical and mental health care.
We are pleased that the Department maintained specialized training requirements for investigations and medical and mental health care. Proper training is essential to ensure that these professionals are able to fulfill their specific duties pertaining to properly collecting, preserving, and documenting evidence; assessing inmates for signs of sexual abuse; and ensuring that victims receive appropriate treatment and follow-up care. As is required for investigative staff, all medical and mental health personnel should be required to receive training in the topic areas mandated for staff, regardless of whether they are employed directly by the agency or through a contracted medical or mental health provider.
We appreciate that the Department recognizes the need for agency medical staff to have specialized training, but suggest that the Department clarify what constitutes “appropriate training to conduct [medical forensic] exams.” Sexual Assault Forensic Examiners in the community are required to receive a minimum of forty hours of training, plus additional hours of clinical supervision until they are deemed competent to conduct forensic exams alone. We strongly recommend that corrections medical staff performing these exams meet or exceed the training recommendations found in the U.S. Department of Justice’s National Training Standards for Sexual Assault Medical Forensic Examiners (Office on Violence Against Women), and that agencies use trainers that meet or exceed the requirements and qualifications detailed in the National Training Standards for Sexual Assault Medical Forensic Exams.
§ 115.51 Inmate reporting.
§115.53 Inmate access to outside confidential support services.
We are troubled by the Department’s removal of the requirement that inmates have access to an external, confidential reporting option. It is important for agencies to provide inmates with a reporting option that allows for confidentiality, as this may be the only way for a victimized inmate to feel safe reporting sexual abuse.
We are also concerned that this standard only allows for confidential communication between inmates and community-based victim advocates “consistent with agency security needs,” rather than to the extent allowable by law. Confidential counseling provides victims with a safe and trusted way to discuss a sexual assault, deal with their fears, discuss their options for reporting, develop appropriate coping skills, and understand that the abuse was not their fault. While some officials understand the complex needs of sexual abuse victims and will help facilitate reasonably confidential communication, many officials will wrongly insist that any confidentiality is incompatible with facility security.
Confidential support services can actually enhance facility security by potentially improving a victim’s ability to participate in an investigation. Access to confidential support increases the likelihood that a victim will receive quality care and gain trust in the system, which may make victims more likely to encourage other inmates to come forward and report sexual abuse.
§115.64 Coordinated response.
The presence of a coordinated team that responds immediately and professionally following a sexual assault has proven to be an important mechanism – both in the community and in confinement settings – for encouraging reports and securing the victim’s cooperation with an investigation and potential prosecution. We are particularly pleased to see that the Department highlighted Sexual Assault Response Teams (SARTs) as a model that should be used in confinement settings, and that the Department encourages agencies to work with existing community SARTs or to develop an internal coordinated response. However, this standard could be significantly strengthened by requiring agencies to develop an institutional plan for a coordinated response using community-based SARTs as a model. With a clear plan in place, the benefits of this coordinated response model will not be realized.
§115.82 Access to emergency medical and mental health services.
We commend the Department for providing a strong standard that will ensure access to free, emergency medical and mental health services following a sexual abuse incident. We especially applaud the Department’s decision to require timely provision of information about and access to all pregnancy-related services that are lawful in the community, as well as prophylactic treatment for sexually transmitted infections.
Additional Suggested Standard (juveniles held in adult facilities).
We appreciate the Department’s general recognition that youth are different from adults, and therefore need special protections. Because of adolescents’ stage of development and cognitive and social immaturity, youth have characteristics that make them particularly vulnerable to abuse. In fact, the National Prison Rape Elimination Commission found that youth in adult facilities are at the highest risk of sexual assault of all inmates. Adult facilities housing children and adolescents face a dangerous dilemma with respect to choosing between housing youth in the general adult population where they are at substantial risk of sexual abuse, or housing youth in segregated settings which cause or exacerbate mental health problems. Neither option is safe and appropriate for youth, nor a good practice for corrections agencies ill-equipped to address the unique needs of minors. We believe the Department should prohibit the placement of youth in adult jails and prisons as a way to reduce the sexual abuse of youth.
The Department has provided many strong standards, especially in the areas of employee training, providing pregnancy-related services to incarcerated victims, and requiring a coordinated response to reports of sexual abuse. However, the Department has significantly watered down other standards, such as by allowing corrections staff to serve as victim advocates, permitting cross-gender pat searches and viewing of inmates in states of undress; allowing communication with outside providers to be monitored; and eliminating immigration detention, military facilities, tribal facilities, and nonresidential probation and parole from the scope of the standards. Sexual violence in U.S. detention facilities has reached crisis proportions and strong standards are desperately needed to protect inmates from the devastation of sexual abuse. We strongly urge you to strengthen the noted standards to ensure that inmates who are sexually victimized while in custody receive appropriate and victim-centered care, and that facilities are focused on prevention.
Thank you for your consideration.
 For ease of reading, this letter cites solely to the provisions in the adult prisons and jails standards. Except where noted, our recommendations apply equally to the analogous provision in the standards for lockups, community confinement, and juvenile facilities.
 Violence Against Women and Department of Justice Reauthorization Act of 2005, Public Law 109-162, Sec. 2013. Polygraph Testing Prohibition.