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If You Have Been Sexually Assaulted in Jail

What is PREA?

The Prison Rape Elimination Act of 2003 (“PREA”), P.L. 108-79, is a set of standards developed
to prevent and respond to sexual assault in prisons. PREA standards cover sexual assaults
between prisoners as well as staff-on-prisoner abuse, and can be found in the Code of Federal
Regulations (CFR) - 28 CFR, Part 115. PREA standards, which became effective in 2012, apply
to all prisons, jails, lockups, and detention facilities in the U.S., including the civilly committed
portion of the Massachusetts Treatment Center (MTC).

In response to PREA, each county facility in Massachusetts has adopted its own PREA policy,
which in most cases is available on the county sheriff’s website. A copy of your facility’s policy
is available from PLS.

This document provides you with citations from the CFR. You can use these citations in the
communications that you have with the facility, but it’s even better if you can also cite the PREA
policy covering your facility. Please be aware that there are no individual legal claims you can
bring for violation of the PREA Standards.

What constitutes Sexual Assault?

There are detailed definitions in 28 CFR 115.6 and in each facility’s PREA policy. These
definitions cover both prisoner to prisoner abuse and staff to prisoner abuse. Prisoners are
considered unable to consent to any sexual activity by correctional staff, contractors or
volunteers. This is because these people are assumed to have power over prisoners by the nature
of their jobs.

28 CFR 115.6 provides the following definitions:

Sexual abuse of an inmate, detainee, or resident by another inmate, detainee, or

resident 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:
(1) Contact between the penis and the vulva or the penis and the anus, including penetration,
however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) Penetration of the anal or genital opening of another person, however slight, by a hand,
finger, object, or other instrument; and
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(4) 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.

Sexual abuse of an inmate, detainee, or resident by a staff member, contractor, or

volunteer includes any of the following acts, with or without consent of the inmate, detainee, or
resident:
(1) Contact between the penis and the vulva or the penis and the anus, including penetration,
however slight;
(2) Contact between the mouth and the penis, vulva, or anus;
(3) 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;
(4) 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;
(5) 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;
(6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the
activities described in paragraphs (1) through (5) of this definition;
(7) Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia,
buttocks, or breast in the presence of an inmate, detainee, or resident, and
(8) Voyeurism by a staff member, contractor, or volunteer.
Sexual harassment includes -
(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments,
gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee,
or resident directed toward another; and
(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee,
or resident 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.
Voyeurism by a staff member, contractor, or volunteer means an invasion of privacy of
an inmate, detainee, or resident by staff for reasons unrelated to official duties, such as peering at
an inmate who is using a toilet in his or her cell to perform bodily functions; requiring
an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of
an inmate's naked body or of an inmate performing bodily functions.
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PREA regulations also cover some aspects of searches and cross-gender viewing. For example,
you should not be strip-searched by a staff member of the opposite gender unless it is an
emergency, and you should be able to shower, perform bodily functions and change clothing
without nonmedical staff of the opposite gender viewing your breasts, buttocks or genitalia. 28
CFR 115.15

Preventive responsibilities of County Facilities

The County Facility must take all reasonable steps to prevent sexual assault. Upon entering the
facility you should be provided with written and verbal orientation materials in English and/or
Spanish on sexual abuse prevention and intervention. Prisoners who do not speak English or
Spanish or who have a disability should receive special assistance, including translation services,
to ensure that the policies are understood. Another prisoner should not serve as your translator,
unless you want them to, or it is an emergency. 28 CFR 115.116

All prisoners entering a county facility or transferring to a new facility should be screened within
72 hours for a history /risk of sexual abuse, victimization or offense. 28 CFR 115.41The facility
should use information from the risk screening to inform housing, bed, work, education, and
program assignments with the goal of keeping separate those inmates at high risk of being
sexually victimized from those at high risk of being sexually abusive. The facility should also
make individualized determinations about how to ensure the safety of each inmate. 28 CFR
115.42

If you are worried about a potential assault

You can ask for help if you think you are going to be attacked, and the facility should take steps
to protect you. 28 CFR 115.62 The legal standard for failing to protect is “deliberate
indifference,” which means that the correctional staff know there is a specific risk to prisoner
safety and they fail in their duty to prevent future assaults.
Reporting a Sexual Assault

Your facility must provide multiple internal ways for you to privately report sexual abuse or
sexual harassment. 28 CFR 115.61(a) This information should be included in your orientation
materials and posted throughout the facility.
The methods of reporting may vary somewhat from facility to facility Most facilities have a
hotline number which is included in the orientation materials. Incidents can also be reported
directly to any staff person - verbally, in writing, anonymously, and from third parties. Staff is
required to promptly document any verbal reports. 28 CFR 115.61(c)

You can also file a grievance. The facility cannot impose a time limit on when a prisoner may
submit a grievance that contains an allegation of sexual abuse. 28 CFR 115.52(b)(1) You cannot
be required to submit the grievance to any staff member who is the subject of the complaint. 28
CFR 115.52(c)(1)
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The facility is also required to provide prisoners with at least one way for reports of abuse or
harassment to be made to a public or private entity or office that is not part of the facility, and
that is able to immediately forward the reports to agency officials, allowing the prisoner to
remain anonymous upon request. Again, this information should be available in the facility’s
orientations materials. Prisoners detained solely for civil immigration purposes shall be provided
information on how to contact relevant consular officials and relevant officials at the Department
of Homeland Security. 28 CFR 115.51(b)

There are some advantages to reporting PREA incidents using the grievance system. It creates a
written record of the complaint, and it ensures a written response to your allegation. If you do
file a grievance, make one copy to keep for yourself and one to send to the PREA Manager at
your facility. The PREA Manager’s name and contact information should be listed in orientation
materials. If you are not allowed to make copies of your grievance, you can ask for blank
grievance forms and copy the grievance by hand (word for word). Send one of these handwritten
copies to the PREA Manager, and keep the other.

Whatever method you choose to use for reporting, here are some tips:

 Describe what happened accurately

 Use clear and simple language
 Include date/time/location of incident
 Include witnesses (staff or prisoners)
 Include any injuries you suffered
 Mention how this incident affected you (left you anxious, afraid, etc.)
 Note if there were any cameras available that might have recorded the incident
 Do not use any disrespectful, vulgar or threatening language
Adapted from: disabilityrightswa.org

The potential disadvantage to reporting a sexual assault is that if your report is determined to be
“unfounded” (meaning that the incident did not occur) and the facility determines that you
knowingly made false allegations, they could take disciplinary action against you. More
information on retaliation is provided below.

How should the facility respond to my report?

Staff members are required to take all allegations of sexual abuse and sexual harassment
seriously, and to report any knowledge, suspicion or information regarding such incidents to
their designated supervisors or officials. 28 CFR 115.61(a)(b) The facility must then report all of
these allegations to the facility’s designated investigators. 28 CFR 115.61(e) All allegations of
sexual abuse and sexual harassment must be investigated. 28 CFR 115.22(a)

During the investigation, staff should collect evidence and interview the victim, the alleged
perpetrator(s), and any witnesses. They are also required to review prior complaints and reports
of sexual abuse involving the suspected perpetrator. 28 CFR 115.71(c)
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While an investigation is taking place, the facility must take action to protect you. 28 CFR
115.62 You should be separated from your attacker. 28 CFR 115.64(a) The facility may also
make housing changes or transfers, remove alleged staff or prisoners from contact with you, and
provide emotional support services if you fear retaliation for reporting abuse or for cooperating
with an investigation. 28 CFR 115.67 (b)

What medical/mental health care should I get?

After sexual abuse has taken place, you should receive timely, unimpeded access to emergency
medical treatment and crisis intervention services, the nature and scope of which are determined
by the medical and mental health practitioners at the facility. 28 CFR 115.82 (a) You should get
information about emergency contraception and sexually transmitted infections. 28 CFR
115.82(c) If you are a woman who may have become pregnant from the assault, you should get a
pregnancy test and access to pregnancy-related medical services. 28 CFR 115.83(d)(e)

You can get health care even if you do not name your attacker. 28 CFR 115.82(d) You may also
ask for ongoing mental health care to help you to deal with the assault. 28 CFR 15.83(a)
If the facility deems it appropriate, you will be offered a forensic medical examination, either on-
site or at and outside facility. This examination will be performed by Sexual Assault Forensic
Examiners (SAFEs) or Sexual Assault Nurse Examiners (SANEs) If you are examined on-site
and no SAFEs or SANEs are available, the facility may utilize medical staff who have received
training in sexual assault and forensic examinations. 28 CFR 115,21(c)(d)(h)

Whether or not you go to a hospital, you have the right to talk with an outside counselor.

The facility must attempt to make available a victim advocate from a rape crisis center and, if
unavailable, must provide you with a qualified staff member to serve as an advocate. 28 CFR
115.21(d) Specific information regarding who to contact should be available in your orientation
materials. A victim advocate can accompany and support you through the medical examination
and investigatory interviews, and can provide you with emotional support, crisis intervention,
information and referrals. 28 CFR 115.21(e) This person cannot open an independent
investigation.

When deciding whether or not to seek or accept mental health services following an incident of
sexual assault, keep in mind that the incident may cause unexpected emotional responses. Rape
Crisis counselors and mental health practitioners can help you to deal with feelings of anger,
fear, helplessness, anxiety and shame, all of which are very common following a sexual assault.
If you find yourself withdrawing, experiencing depression, lashing out, having nightmares,
having suicidal thoughts or acting out in uncharacteristic ways, these things might be related to
the incident. Accessing Rape Crisis or mental health services may help.

What happens at the conclusion of an investigation?

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After the investigation, you should get information about the outcome, and whether the
allegations were substantiated, unsubstantiated, or unfounded. 28 CFR 115.73(a) If the
allegations are substantiated, this means investigators determined that the allegation occurred. If
the allegations are unfounded, this means the investigators determined the allegation did not
occur. If the allegations are unsubstantiated, this means there was not sufficient evidence to make
a final determination as to whether or not the allegation occurred.

The facility will keep records of your incident, possibly for many years. They will use the
information for research and tracking of their own policies and procedures, and their compliance
with the PREA standards. This information should remain private within the institution, and
should not be used against you in any way.

Can the facility take action against me for reporting?

Retaliation for reporting sexual abuse or sexual harassment, or for cooperating with an
investigation is not allowed, 28 CFR 115.67(a) and the facility must take actions to protect you.
28 CFR 115.67(b) During the investigation, you should be monitored for at least 90 days to see if
there is any retaliation or attempted retaliation against you for reporting. 28 CFR 115.67(c) This
obligation to monitor terminates if the investigation determines that your allegation is
unfounded. 28 CFR 115.67(f)

You might be sent to a different institution, and this is not considered retaliation because it is
supposedly for your protection. 28 CFR 115.67(b)

Unfortunately, you might be put in segregation after reporting an assault, again supposedly for
your protection. You should only be put in segregation involuntarily if it is determined there are
no available alternatives. If you are put in segregation, you should stay there only until the
facility arranges for you to be separated from your attacker. You should not be kept in
segregation for longer than 30 days under normal circumstances. You should still have access to
programs, privileges, education and work opportunities to the extent possible, and if the facility
restricts such access, they must document it as well as document the reasons and duration of the
restrictions. 28 CFR 115.43

When making a PREA complaint, it is extremely important to understand that you can be subject
to discipline if the facility determines you have filed the report in bad faith (meaning that you
could not have believed it to be true.) 28 CFR 115.78 (f); 28 CFR 115.52(g) Unfortunately, the
vast majority of PREA allegations made against prison staff are determined to be unfounded,
which means that the facility concludes that the incident did not take place. We have no
information on how often facilities take action against prisoners whose allegations are
determined to be unfounded (the facilities are not required to report this), but you should be
aware of the possibility.

How does PREA apply to LGBTI prisoners?

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PREA standards make clear that all prisoners must be screened to assess their risk for sexual
victimization or abuse, and that this screening shall consider whether the prisoner is or is
perceived to be gay, lesbian, bisexual, transgender, intersex or gender nonconforming. (Prisoners
are not required, however, to disclose this information.) The screening information should be
used to inform housing, work, education and program assignments with the goal of keeping
prisoners at high risk from being victimized. However, safety determinations must be made on
an individualized basis. 28 CFR 115.41 and 28 CFR 115.42

Specifically, the following protections exist:

 In making housing and programming assignments, the facility should consider on a case
by case basis whether a placement would ensure the prisoner’s health and safety, and
whether the placement would present management or security problems. 28 CFR
115.42(c)
 Transgender and intersex prisoners must be given the opportunity to shower separately
from other prisoners.28 CFR 115.42(f)
 No search can be conducted for the sole purpose of determining an individual’s genital
status. 28 CFR 115.15(e)
 All searches of transgender and intersex persons must be conducted professionally and
with respect, and in the least obtrusive manner possible, consistent with security needs.
28 CFR 115.15(f)
 A transgender or intersex prisoner’s own views with respect to his or her own safety
should be given serious consideration. 28 CFR 115.42(e)

What should I do if the facility is not following the rules?

 File a grievance.
o If you think you might want to bring a court case regarding how the facility
handled the incident, you must follow grievance procedures in order to “exhaust
administrative remedies.” 28 CFR 115.52
o When you write your grievance, you should use the citation (from both your
facility’s PREA Policy and 28 CFR 115.__). Be as specific as you can be.
o If your attacker is a staff member, you do not have to give your grievance to him
or her, and the facility should make sure that your grievance is not referred to
your attacker to be resolved. 28 CFR 115.52(c)(1)
o If your grievance is denied or you do not get results from it, be sure to appeal it.
o Keep copies of everything you submit, even if you have to hand-write them.
 Write to the Superintendent.
 Ask to talk to the PREA Manager, or write to him/her. Agencies are required to appoint
someone to be the PREA Manager under 28 CFR 115.11. You should be able to find the
PREA Manager where you are incarcerated by reading your facility’s orientation
handbook.
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 Talk to a PREA auditor. Each facility is audited every three years for compliance with
PREA standards. Prior to a PREA auditor’s visit, his/her name and contact information
will be posted throughout the prison. The auditor seeks input from prisoners regarding
their experience with PREA policies, and speaks to prisoners who have contacted him/her
in advance. Before speaking with an auditor, you should inquire about the confidentiality
of the information you share. In some circumstances this information is not confidential.

There is some complication when it comes to pursuing legal action against an institution for not
complying with the PREA standards. The Department of Justice has said that because of the
dramatic costs of implementing these new standards, PREA does not require the federal
government to enforce compliance of the use of these standards. Therefore, you will need to
bring your own case if you think the institution has failed to follow the standards. PLS cannot
represent you in this type of case, but we can give you information about lawyer referral services
or give you basic information about how to get started filing your own pro se court case.

Are there any other resources?

Just Detention International

Every day, JDI receives letters from survivors behind bars telling their stories and asking for
help. JDI responds with a Survivor Packet filled with information to help the survivor begin the
healing process and connect with local service providers. Each packet includes an introductory
letter, a list of local resources, fact sheets, publications about recovery from sexual abuse, and a
letter of hope from another survivor.

Included in the Survivor Packet is Hope for Healing, written by JDI to address the unique
experiences of prison rape survivors. This self-help manual details the emotional concerns
common to sexual assault survivors, provides information about Rape Trauma Syndrome, and
spells out the rights of prison rape survivors.

Write to JDI at: 3325 Wilshire Boulevard, Suite 340, Los Angeles, CA 90010 or 1900 L St. NW,
Suite 601, Washington, DC 20036.