Prison Rape Elimination Act (PREA) & Victim Advocacy

What is PREA? The first federal law passed to address sexual violence in detention facilities (2003) PREA standards tell detention facilities what they must do to comply (2012) Requires prevention and response to sexual violence Talking Points: The Prison Rape Elimination Act of 2003 is the first federal law passed to address sexual violence in detention facilities. PREA states that sexual assault in detention can constitute a violation of the eighth amendment of the U.S. Constitution and requires that facilities adopt a zero-tolerance approach to this form of abuse. Standards that tell detention facilities what they must do to be in compliance with the law were published in 2012. There are hundreds of standards requiring facilities to act to prevent and respond to sexual violence against incarcerated and detained people.  

Which Facilities? Most detention facilities are required to comply This includes: prison, jails, lockups, community confinement facilities, juvenile detention facilities, and immigration detention facilities Talking Points: Each type of facility must comply with many standards related to prevention and response to sexual abuse in detention Trainer Tips: Look up the standards for the facility type you are presenting to prior to your presentation. You can access most of the standards on the PREA Resource Center’s website. All of these standards were created by the Department of Justice in 2012: Prison & Jail Standards: https://www.prearesourcecenter.org/training-technical-assistance/prea-101/prisons-and-jail-standards Lockup Standards: https://www.prearesourcecenter.org/training-technical-assistance/prea-101/lockup-standards Community Confinement Standards: https://www.prearesourcecenter.org/training-technical-assistance/prea-101/community-confinement-standards Juvenile Facility Standards: https://www.prearesourcecenter.org/training-technical-assistance/prea-101/juvenile-facility-standards Immigration Detention Facility Standards were created by the Department of Homeland Security in 2014: http://nicic.gov/library/027964 Unaccompanied immigrant and refugee minors are in the custody of the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). The ORR has not finalized its PREA rules but facilities are required to comply with the Interim Final Rule: https://www.federalregister.gov/documents/2014/12/24/2014-29984/standards-to-prevent-detect-and-respond-to-sexual-abuse-and-sexual-harassment-involving#sectno-reference-411.65

What Does PREA Say About Access to Victim Advocacy? Requires confidential access to external support services Timely access to crisis intervention Right to have advocate at forensic exam Right to have advocate at investigatory interviews Talking Points: These requirements are in the standards for all facility types. PREA requires correctional facilities to provide access to outside confidential support services, or advocacy, and to enable reasonable communication between incarcerated people and advocates in as confidential a manner as possible.

What is Victim Advocacy? Help for survivors of sexual assault Knowledge of survivors’ rights Providing information and resources In Washington State, advocates must meet training requirements Talking Points: Community based advocacy for survivors of sexual assault has many dimensions, but is rooted in assisting survivors in healing after a sexual assault. Knowing what rights survivors have. Being familiar with resources that can help survivors. Advocates are professionals who must meet certain training requirements and other criteria to work with sexual assault survivors.

What is an Advocate’s Role? Listen, believe, provide support Safety planning Provide information and options Refer to other resources Keep information shared confidential Serve as liaison between survivor and system Inform survivor of their rights Talking Points: In general, an advocate’s role is to: Listen to a survivor’s story and provide support. Support a survivor’s safety and empowerment. Keep the survivor’s identity and information confidential. An advocate’s conversations with a survivor are privileged. A community sexual assault program’s records are confidential. An advocate will not reveal a survivor’s identity or information unless required by law or a court order, or requested by a survivor with a signed release of information. Serve as a liaison between the survivor and the correctional facility or other systems that are involved. Inform survivors of their rights as a victim of crime. Some rights include: The right to be treated with dignity and respect. The right to have a support person present at the forensic medical examination. The right to have an advocate present at any law enforcement interviews and hearings. The right to submit a victim impact statement or report to the court. Listen to a survivor’s needs and provide information and options so the survivor can make an informed choice. An advocate might work with a survivor to prioritize needs and help the survivor determine next steps. An advocate might serve as a sounding board for a survivor to discuss their options. Inform survivors of other resources and services that are available to them.

What is Outside an Advocate’s Role? Being a survivor’s friend Providing legal advice Making decisions for a survivor Telling a survivor whether to report or not Investigating a crime Providing therapy or other mental health treatment services Trainer Tip: share what resources you can refer survivors to for services that your agency does not provide. If you are providing this presentation to incarcerated people, make sure to connect with the facility ahead of time so that you can share what services are available in the facility.

Confidentiality Under PREA, facilities must provide confidential access Everyone else in a facility must report sexual assault In Washington State, advocates also have privileged communication with all survivors This does not change when the survivor is incarcerated Talking Points: Confidential access may include: a hotline number that is not recorded by the facility, in person visits in a private room where staff may be able to see but not hear the conversation. Mail is not a confidential means of communication unless the facility agrees to treat advocate mail the same as legal mail. Almost everyone who enters a correctional facility – staff, contractors, volunteers – is required to report back to the facility if they see or hear about a sexual assault that occurred in the facility. However, community based sexual assault advocates who work for an outside agency are not required to report back, and should not do so, unless the survivor requests this, or an exception to confidentiality applies (e.g. mandated reporting of child abuse or abuse of a vulnerable adult), because they would be violating their confidentiality obligations. Community based sexual assault advocates in Washington State have privileged communication with all survivors. Advocates are also required by state and federal law, their funding, and their program policies to protect survivors’ confidential information and these requirements do not change when the survivor is incarcerated. It may take longer to build trust with survivors who are incarcerated, and being clear about the fact that advocates do not work for the facility and will protect the survivor’s confidential information is key to building that foundation for trust.

Reporting is Different from Advocacy PREA also says that corrections facilities must provide several options for reporting sexual assault Some of those options are calling or writing to someone outside the facility This is different than advocacy, because those people are required to report back and advocates are not Talking Points: Correctional facilities are required to provide inmates with many different options for reporting sexual assault that occurs in their facility. One of these options must be reporting to an entity that is outside of the correctional facility and is not affiliated with it. For example, a Department of Corrections (DOC) may have a reciprocal agreement with a DOC in another state, or a county jail may partner with an unaffiliated city jail to fulfill this requirement. This entity receives reports of sexual assault, including anonymous reports, and then is required to provide information about the assault back to the facility where it occurred for investigation purposes.  This requirement is in a different PREA standard than the outside confidential support services standard and it is not the intention of PREA for the same agency to serve in both roles. Serving as the external reporting entity would not be an appropriate role for a community based sexual assault advocacy program. It should be clear to all survivors when calling the community based sexual assault program that the program will not release their confidential information unless required by law or court order. Advocates can provide information to survivors about the reporting process and support them during that process if they choose to report.

Access to Advocacy Trainer Tip: Use this slide to share how an incarcerated person can access services from your agency. If presenting to corrections staff, and an agreement has not been made for how incarcerated survivors can access these services, trainers should be prepared to suggest options for confidential access based on their knowledge of the facility. It will be helpful to have toured the facility before presenting so these suggestions can be more specific.

This project was supported by subgrant No This project was supported by subgrant No. F15-31103-089 awarded by the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the state or the U.S. Department of Justice, Office on Violence Against Women. Grant funds are administered by the Office of Crime Victims Advocacy, Community Services and Housing Division, Washington State Department of Commerce.