THE PRISON RAPE ELIMINATION ACT. OF 2003, 115 THE PRISON RAPE ELIMINATION ACT OF 2003, 115.35 AN OVERVIEW OF NMCD EFFORTS TO COMPLY WITH THE PREA STANDARDS, LESSONS LEARNED THUS FAR, AND AUDITING EFFORTS THUS FAR. NATIONAL PRISON RAPE ELIMINATION ACT OF 2003

PERFORMANCE OBJECTIVES 1 Participants will correctly identify: The PREA standards that apply to prisons and jails; Trends related to PREA, including: a. Prevalence of sexual assaults in New Mexico prisons. b. Staff/inmate sexual encounters; c. Efforts showing promise; The status of the PREA audit process

2 COURSE CONTENTS Session 1. Overview of PREA standards, state law, and NMCD policy. Session 2. Trends related to PREA Session 3. The status of the audit process

SESSION 1. OVERVIEW OF PREA 3 A. Purpose of the Act. 1. Establish a zero-tolerance for incidents of prison rape. 2. Make prevention of rape a priority in each system. 3. Develop standards. 4. Increase pool of data. 5. Standardize definitions. 6. Increase accountability of prison officials. 7. Protect the Eighth Amendment rights of prisoners. 8. Increase efficiency and effectiveness in reducing incidents of rape. 9. Reduce the cost that prison rape imposes on interstate commerce.

SESSION 1. OVERVIEW OF PREA 4 B. Standards and Applicability 1. PREA applies to every jail and prison in the United States. 2. PREA has 43 standards. 3. The standards are divided into 10 subsections: a. Prevention Planning. b. Response Planning. c. Training and Education. d. Screening for Risk of Sexual Victimization and Abusiveness. e. Reporting. f. Official Response following an Inmate Report. g. Investigations. h. Discipline. i. Medical and Mental Care. j. Data Collection and Review.

SESSION 1. OVERVIEW OF PREA 5 C. Liability for Sexual Abuse. 1. States who do not comply with PREA forfeit 5% of the federal funds they receive. 2. Farmer v. Brennen says that deliberate indifference to substantial risk of sexual assault violates the inmate’s right to protection under the cruel and unusual punishment clause of the Eighth Amendment. 3. A state’s failure to take basic steps to abate prison rape by adopting standards that do not generate significant expenditures demonstrate such indifference.

SESSION 1. OVERVIEW OF PREA 6 Assessment Checklist §115.53 (a) The facility shall provide inmates with access to outside victim advocates for emotional support services related to sexual abuse by giving inmates mailing addresses and telephone numbers, including toll-free hotline numbers where available, of local, state, or national victim advocacy or rape crisis organizations, for persons detained solely for civil immigration purposes, immigrant service agencies. The facility shall enable reasonable communication between inmates and these organizations and agencies, in as confidential a manner as possible. (b) The facility shall inform inmates, prior to giving them access, of the extent to which communication will be monitored and the extent to which reports of abuse will be forwarded to authorities in accordance with mandatory reporting laws. (c) The agency shall maintain or attempt to enter into memoranda of understanding or other agreements with community service providers that are able to provide inmates with confidential emotional support services related to sexual abuse. The agency shall maintain copies of such agreements or documentation showing attempts to enter into such agreements.

OVERVIEW OF STATE LAW AND NMCD POLICY 7 SESSION 1. OVERVIEW OF STATE LAW AND NMCD POLICY 7 A. Statute 30-9-11 NMSA 1978 states that it is a 2nd degree felony for a correctional employee to have a sexual encounter with an inmate. B. If an employee is caught having a sexual encounter with an inmate, he/she cannot claim the defense of consent. C. Policy CD-150100 is the Department’s policy on Offender Protection from Abuse and Sexual Assault. D. It establishes a zero tolerance policy for sexual assault.

OVERVIEW OF STATE LAW AND NMCD POLICY 8 SESSION 1. OVERVIEW OF STATE LAW AND NMCD POLICY 8 E. Sexual Abuse is: “Subjecting another person to any sexual act or contact by force, persuasion, or enticement; subjecting another person who is incapable of giving consent by reason of their custodial status, physical or mental state to sexual contact, rape, molestation, prostitution or other form of sexual exploitation”

OVERVIEW OF STATE LAW AND NMCD POLICY 9 SESSION 1. OVERVIEW OF STATE LAW AND NMCD POLICY 9 F. Sexual Contact is: “Intentionally touching or physical contact in a sexual manner, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, buttocks with or without the consent of the person; or any touching or inappropriate viewing with the intent to arouse, humiliate, harass, degrade, or gratify the sexual desire of any person.”

OVERVIEW OF STATE LAW AND NMCD POLICY 10 SESSION 1. OVERVIEW OF STATE LAW AND NMCD POLICY 10 G. Sexual Harassment is: “Sexual advances, sexually offensive language, comments or gestures, influencing, promising or threatening any inmate’s or staff’s safety, custody status, privacy, housing privileges or program status in exchange for personal gain or favor of a sexual nature; creating or encouraging an atmosphere of intimidation, hostility, or offensiveness as perceived by any individual who observes the sexually offensive behavior or language.”

OVERVIEW OF STATE LAW AND NMCD POLICY 11 SESSION 1. OVERVIEW OF STATE LAW AND NMCD POLICY 11 H. Retaliation. Any employee, inmate, or other person who in good faith reports abuse or sexual assault will not be subject to retaliation. I. False Reporting. Policy CD-150600 requires that inmates who submit false reports will be subject to disciplinary action. J. PREA requires that inmates will not face disciplinary sanctions for instances of staff-on-inmate sexual abuse. K. Policy CD-090100 under charge A22 makes it a disciplinary offense for inmates to engage in sexual conduct with each other.

SESSION 2. TRENDS RELATED TO PREA 12 NMCD Efforts to comply with PREA A. Establishment of a PREA Coordinator. Integration of PREA training at the Academy for all new cadets. Specialized training for investigators. Specialized training for medical and behavioral health staff. Training DVD for inmates. Development of automated screening tool. Establishment of reporting mechanism. Integrating PREA requirements into policy. I. Annual report on PREA compliance.

http://corrections.state.nm.us/oig/oig.html

SESSION 2. TRENDS RELATED TO PREA 14 Bureau of Justice Statistics findings: 1. Prevalence of sexual assault in New Mexico prisons. 2. Staff/inmate sexual incidents. Use of reporting hotlines. Collaboration with other agencies: 1. New Mexico Department of Pubic Safety; 2. Federal Bureau of Investigation, and; 3. New Mexico Board of Medicine.

STATUS OF THE AUDIT PROCESS 15 SESSION 3. STATUS OF THE AUDIT PROCESS 15 Three-year audit cycle. 1. One third of the facilities that an agency operates must be audited each year. 2. Audit cycle started on August 20, 2013. 3. Must be audited by a DOJ certified auditor. 4. The auditor can not have received any compensation from the agency within the past three years. 5. Cost estimates for an audit range between $3K to $12K. 6. For findings of non-compliance, the facility has a 180-day period for corrective action. As of 1/1/2014, nine facilities completed an audited. 1. Eight facilities are operated by the Bureau of Prisons. 2. One facility was a county jail. 3. Attributable to recent release of standards and audit tool, and small number of certified auditors. 4. None of these facilities received a finding of compliance. 1. Otero County Prison Facility was audited in February and was certified compliant. 2. Guadalupe County Correctional Facility was audited this week. 3. Northeastern New Mexico Detention Facility is being audited today. 4. Penitentiary of New Mexico is being audited in July.

CONCLUSION NATIONAL PRISON RAPE ELIMINATION ACT OF 2003