Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

May 3, 2010

SENT VIA MAIL AND
ELECTRONICALLY

Robert Hinchman, Senior Counsel
Office of Legal Policy
U.S. Department of Justice
950 Pennsylvania Avenue, NW., Room 4252
Washington, DC 20530
RE: Public Comment Concerning Docket No. OAG-131
Dear Mr. Hinchman:
The Human Rights Defense Center submits the following comments regarding the proposed
Prison Rape Elimination Act (PREA) standards to be promulgated by the Attorney General’s
office, under Docket No. OAG-131. The Human Rights Defense Center (HRDC) is a not-forprofit organization that works to protect the rights of people who are incarcerated. We publish
Prison Legal News (PLN), a monthly publication that reports on criminal justice-related issues,
and have extensively covered topics related to sexual abuse of prisoners. PLN’s editor, Paul
Wright, served on the advisory board of Stop Prisoner Rape (now Just Detention Int’l).
Although HRDC supports national, enforceable standards for the prevention of rape and sexual
abuse of prisoners – including the adoption of the proposed standards developed by the National
Prison Rape Elimination Commission – we believe the proposed standards do not go far enough.
Our comments reference specific proposed PREA standards for adult prisons and jails, but apply
equally to similar standards for other types of correctional facilities and/or prisoner populations,
where applicable (e.g., juvenile facilities and immigration detention centers).
1. Glossary - Definitions
A. Agency is defined as a “unit of a governing or corporate authority with direct responsibility
for the operation of any facility that confines inmates or detainees.” However, “agency head”
is defined as “the chief authority of a Federal, State, or local correctional or law enforcement
system,” which notably does not include the chief of a corporate entity or authority that operates
correctional facilities. The definition of “agency head” should include the corporate officers of
companies that operate correctional facilities, just as the term “facility head” in the proposed
standards encompasses corporate officials who manage private prisons.

P.O. Box 2420, West Brattleboro, VT 05303
Phone: 802-257-1342
Email: pwright@prisonlegalnews.org

Robert Hinchman, Senior Counsel
May 3, 2010
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B. The definition of “sexual abuse” does not include kissing (mouth to mouth contact). Prison
employees who kiss prisoners, which may involve coercion or force, are engaging in blatantly
inappropriate conduct; further, kissing may be used as a “grooming” technique that leads to
further sexual abuse. Therefore, the standards should include kissing under the definition of
staff-prisoner sexual abuse and/or staff-prisoner sexual harassment.
2. Cross-gender Supervision of Prisoners (PP-4)
Proposed standard PP-4 prohibits cross-gender supervision in non-emergent situations where
prisoners disrobe or perform bodily functions. To further reduce the possibility of sexual abuse
or harassment resulting from cross-gender supervision, we suggest that the standards require
agencies to adopt policies whereby same-gender supervision is the rule in all non-emergency
situations rather than only those that involve disrobing and bodily functions. In the alternative,
agencies should be required to prioritize staffing positions to facilitate same-gender supervision.
Following systemic sexual abuse of female prisoners in Michigan’s prison system, for example,
the U.S. Sixth Circuit Court of Appeals upheld a Department of Correction policy that required
same-gender staff positions in female housing units. See: Everson v. Michigan DOC, 391 F.3d
737 (6th Cir. 2004), petition for rehearing en banc denied, cert. denied.
3. Hiring and Promotion Reviews (PP-6)
Proposed standard PP-6 states that agencies may not hire or promote employees who have
engaged in sexual abuse in an institutional setting or who have engaged in sexual activity in the
community facilitated by force, the threat of force or coercion. However, it is unclear whether
currently-employed staff who meet this criteria must be terminated or whether they are “grandfathered in” under the standards. To meet the zero-tolerance goal of eliminating sexual abuse,
all currently-employed prison staff who have engaged in sexual abuse in an institutional setting,
or who have engaged in sexual activity in the community facilitated by force, the threat of force
or coercion, should be terminated after the PREA standards become effective; i.e., this standard
should specify that there is no “grandfather” provision for currently-employed staff members.
Agencies should not have to wait until such employees are reviewed for promotions – which
may take years – but should terminate them once the PREA standards become effective.
4. Provisions Related to the Prison Litigation Reform Act (RE-2)
Proposed standard RE-2 addresses the exhaustion requirements under the Prison Litigation
Reform Act (PLRA) for prisoners who are raped or sexually assaulted. However, this standard
does not make it clear whether prisoners still must use an existing institutional grievance system
for exhaustion purposes or if the PREA standards overrule grievance procedures (including any
time limits to file institutional grievances). This standard should explicitly state to what extent

Robert Hinchman, Senior Counsel
May 3, 2010
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institutional grievance procedures are overruled vis-à-vis reports of sexual abuse, for PLRA
exhaustion purposes. The standard should also specify that so long as a report of sexual abuse is
made in compliance with PREA standards, an agency shall not raise an affirmative defense of
non-exhaustion in any civil litigation filed by or on behalf of the victimized prisoner.
Further, the standards should specify that the PLRA’s requirement that prisoners must allege a
“physical injury” before bringing suit for mental or emotional damages (42 U.S.C. § 1997e(e))
does not apply to acts of sexually abusive conduct, or that prisoners who have been subjected to
sexually abusive conduct have satisfied the physical injury requirement under the PLRA. In one
case a court has held that sodomy did not meet the PLRA’s “physical injury” requirement. See:
Hancock v. Payne, 2006 WL 21751 at *1, 3 (S.D. Miss., Jan. 4, 2006) (holding that plaintiffs’
allegations of abuse, including that a staff member “sexually battered them by sodomy,” were
barred by § 1997e(e)). The PLRA’s physical injury requirement should not apply to prisoners
who are raped or sexually abused, and the standards should reflect this by requiring prison and
jail agencies to waive that defense in any civil litigation involving victimized prisoners.
5. Mandatory Reporting of Staff Sexual Abuse to Law Enforcement (DI-1)
Proposed standard DI-1 states, “All terminations for violations of agency sexual abuse policies
are to be reported to law enforcement agencies and any relevant licensing bodies.” This standard
apparently does not apply to staff members who resign before they are terminated for violating
sexual abuse policies. That is, the way the proposed standard is written, only terminations – not
resignations – of sexually abusive employees result in referrals to law enforcement agencies and
applicable licensing bodies. It would be a much stronger deterrent if staff knew that substantiated
cases of sexual abuse would not only result in presumptive termination, but also would result in
the mandatory notification of law enforcement authorities and relevant licensing bodies whether
employees voluntarily resign or are terminated.
6. Aggregate Collected Data – When Required (DC-2)
Proposed standards DC-2, DC-3 and DC-4, concerning data collection, specify that incidentbased sexual abuse data must be aggregated, and aggregate collected sexual abuse data must be
made publicly available, “at least annually.” However, this means that the public can expect to
review an agency’s progress in reducing sexual abuse only once a year, when the annual report
is released. Additionally, agencies may not be able to identify ongoing trends of sexual abuse
involving specific facilities or employees if collected data is only required to be aggregated “at
least annually.” It would provide greater transparency and allow agencies to identify trends in
sexual abuse if collected data is aggregated – and such data is made available to the public – at
least monthly. As most computer programs that are used to collect data are capable of creating
reports with ease, monthly reports of aggregate collected data would not be burdensome. Thus,
DC-2 should specify that collected sexual abuse data must be aggregated and made available to
the public on at least a monthly basis rather than at least annually.

Robert Hinchman, Senior Counsel
May 3, 2010
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7. Timing of Compliance Audits (AU-1)
Proposed standard AU-1 requires compliance audits “at least every three years.” The goal of zero
tolerance for sexual abuse in correctional facilities is too important to allow lapses of three years
between such audits. Thus, this standard should mandate compliance audits each year, or at most
every two years rather than three.

Additional General Comments
1. Compliance With and Enforceability of PREA Standards
HRDC has significant concerns regarding the enforceability of the PREA standards. When we
raised this issue during a National Prison Rape Elimination Commission conference call, we
were informed that compliance with the standards would be achieved through the following
three methods, which we address separately below:
A. States that fail to adopt and comply with the PREA standards would forfeit funds received
under certain federal grant programs.
PREA states, “For each fiscal year, any amount that a State would otherwise receive for prison
purposes for that fiscal year under a grant program covered by this subsection shall be reduced
by 5 percent, unless the chief executive of the State submits to the Attorney General” a statement that they have adopted and are in compliance with the PREA standards.
We are unaware of an example where federal funds have been withheld from a state corrections
agency due to its failure to comply with federal statutory mandates. Such financial penalties are
meaningless without a strict and consistent enforcement mechanism.
B. Prison agencies that fail to comply with the standards will be included in an annual report
issued by the Attorney General’s office, which will serve as a means of embarrassment and an
incentive for compliance with the standards.
PREA states, “Not later than September 30 of each year, the Attorney General shall publish a
report listing each grantee that is not in compliance with the national standards....” Presumably,
inclusion in such reports will prove embarrassing and agencies will endeavor to comply with the
standards so as to avoid this “shaming” disincentive. However, states previously have engaged
in systemic sexual abuse of female prisoners (Michigan); segregating HIV-positive prisoners in
separate-and-unequal housing (Alabama); providing grossly deficient medical care resulting in
dozens of unnecessary deaths each year (California); depriving prisoners of food as punishment
(South Carolina), etc. Given the documented abuses that have been inflicted upon prisoners, it is
highly unlikely that including agencies that fail to comply with the PREA standards on a list, for

Robert Hinchman, Senior Counsel
May 3, 2010
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the purpose of shaming them into compliance, would be successful. Some prison officials have
already demonstrated that they engage in shameless conduct; others, through their reluctance to
embrace necessary reforms, have shown they have no shame. Therefore, we do not believe this
is an effective means of ensuring compliance.
C. The PREA standards will become standards of care which can be used in civil litigation;
agencies that do not adopt or comply with the standards therefore risk liability, which serves
as an incentive for compliance.
The problem with this incentive approach is that compliance with the PREA standards is not
statutorily mandated or legally enforceable. Like the standards of the American Correctional
Association (ACA), PREA standards do not create enforceable rights and do not determine the
legality of an act or failure to act. See, for example: Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367 (1992) (“It is absurd to suggest that the federal courts should subvert their judgment
as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards”);
see also Gates v. Cook, 376 F.3d 323, 337 (5th Cir. 2004) (ACA standards “may be a relevant
consideration,” but compliance “is not per se evidence of constitutionality”).
Based on the foregoing, HRDC believes that absent the force of law to ensure compliance with
and enforcement of the PREA standards, the incentives for voluntary compliance are inadequate.
Further, the standards are unclear in regard to the auditing process whereby an agency’s PREA
reports are subject to review and verification by an independent official or organization to ensure
they are based upon reliable data. For example, while PREA requires the “chief executive” of a
state to submit a statement that the state is in compliance with PREA standards, who verifies that
such statements are in fact accurate? It is unclear which state, federal or non-government agency
will assume this oversight responsibility through the auditing process specified in AU-1.
Notably, the standards do not provide for a private cause of action for enforcement purposes,
which in our view is a significant failing. This will likely require a remedy by Congress, and we
encourage the U.S. Department of Justice to lobby Congress to strengthen PREA by including a
private cause of action for victimized prisoners when agencies fail to follow the standards.

2. Cost Considerations for Implementing the Standards
The Attorney General’s office has noted that PREA specifies that national standards must not
“impose substantial additional costs compared to the costs presently expended by federal, state
and local prison authorities.” Requiring prison and jail authorities to do anything they do not
currently do, as most of the standards mandate, will result in additional costs. However, it must
be noted that by reducing or eliminating sexual abuse in correctional facilities through enforcement of the standards, the costs associated with such abuse will be reduced. This includes staff
time in investigating incidents involving sexual abuse; the cost of criminal prosecutions of staff

Robert Hinchman, Senior Counsel
May 3, 2010
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or prisoners who engage in sexual abuse (and the cost of any terms of incarceration following
convictions for same); the cost of medical and/or mental health treatment for victims of sexual
abuse; the cost of settlements or damage awards in lawsuits or claims filed by victims of sexual
abuse, etc. Thus, when evaluating the cost of implementing and enforcing PREA standards, the
reduction in costs that accompanies a decrease in sexual abuse must be factored in.
3. Conflict of Interest Involving the Attorney General
HRDC also wants to note that the Attorney General’s office has an inherent conflict of interest
in regard to promulgating the PREA standards and with any monitoring of those standards. The
Attorney General is responsible for defending the Bureau of Prisons and federal prison staff in
civil suits filed by prisoners who have been sexually abused by federal prison employees. Thus,
there is an inherent conflict of interest in terms of the Attorney General promulgating standards
that may have an effect on civil cases in which the Attorney General’s office represents federal
prison officials accused of sexually abusing prisoners.

Thank you for your consideration of our comments regarding the PREA standards under Docket
No. OAG-131, and please contact us should you require any additional information.

Sincerely,

Paul Wright
Executive Director, HRDC

Alex Friedmann
Associate Editor, PLN