The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
In May 2012, the Department of Justice issued the Prison Rape Elimination Act of 2003 (PREA) Standards. The standards highlight and attempt to address young people who identify as lesbian, gay, bisexual, transgender, intersex, or gender nonconforming in the juvenile justice system.
The Bureau of Justice Statistics, in compliance with PREA’s requirements, issued a special report on sexual victimization in juvenile facilities in January 2010. Key findings include:
- 12% of youth in state juvenile facilities and large non-state facilities reported experiencing one or more incidents of sexual victimization in the past 12 months.1
- Youth with a sexual orientation other than heterosexual reported significantly higher rate of sexual victimization by another youth (12.5%) compared to heterosexual youth (1.3%).2
- Among youth victimized by another youth, 20% said they had been physically injured; 5% reported they had sought medical attention for their injuries.3
- Among youth victimized by staff, 5% reported a physical injury; fewer than 1% had sought medical attention.4
A 2012 report on sexual victimization in juvenile facilities is expected soon. Acknowledging the prevalence of sexual violence in correction facilities, the 2012 PREA standards provide significant instruction for juvenile corrections facilities on preventing, addressing, and reporting this violence. These standards apply equally to adult and juvenile correction facilities.
Searches and Pat Downs
The 2012 PREA standards prohibit juvenile correction facilities from searching or physically examining a young person who identifies as transgender or intersex for the sole purpose of determining the young person’s genital status.5 The standard describes acceptable ways to discover a young person’s genital status, including conversations with the young person, reviewing medical records, and--only if necessary--as part of a broader medical examination conducted by a medical practitioner in private.6
The new standards require training for security staff on pat-down searches of residents who identify as transgender and intersex. The standards explicitly require the searches to be conducted in a professional and respectful manner and in the least intrusive manner possible.7 This signals to correction facilities the importance of privacy and respect for all young people who are residents focusing specifically on residents who identify as transgender and intersex.
Sexual Abuse Vulnerability Assessments
PREA 2012 standards now require the correction facility, within 72 hours of a resident’s arrival and throughout the resident’s confinement, to objectively assess whether a resident may be at risk of sexual abuse.8 Previously, the standards required the facilities to gain information about a resident’s sexual orientation and gender identity.9
The updated standards recognize the nuances of gender identity and require facilities to note when a resident exhibits gender nonconforming appearance or manner and requires the facility to assess whether this makes the resident more vulnerable to sexual abuse.10 Showing sensitivity to privacy, the standards require facilities to control sharing any sensitive information gleaned from the assessment and ensure it is not used to exploit the resident.11
Accommodations
Historically, decisions about sleeping accommodations in correction facilities have been made on a case-by-case basis with the goal of keeping the residents safe. The new standards specifically prohibit lesbian, gay, bisexual, transgender, or intersex residents from being placed in particular housing based solely on their identification.12
Residents’ safety must be reassessed twice each year and must seriously consider the resident’s views on his or her safety.13 Facilities are prohibited from classifying lesbian, gay, bisexual, or transgender residents as perpetrators of sexual abuse based solely on their sexual orientation or gender identity. Facilities also must provide young people who identify as transgender and intersex opportunities to shower separately from other residents.14
The PREA 2012 standards not only restrict facilities from isolating residents as a last resort, but also explicitly prohibit facilities from denying exercise and education programming and require daily medical and mental health visits.15
Sexual Abuse Incident Reviews
When a sexual abuse incident occurs, the facility must conduct a review within 30 days of the incident investigation. The review team must consider whether the incident was motivated by, among other things, a resident’s sexual orientation or gender identity or a resident’s perceived identity.16 Based on the review, the team must report recommendations for improvement to:
- physical aspects of the facility;
- staffing levels; and
- monitoring technology to supplement staff.17
Advocacy Tips
The new PREA Standards signal an awareness of the unique vulnerability of young people who identify as lesbian, gay, bisexual, transgender, intersex, and gender nonconforming. Advocates should take advantage of these new standards to protect their clients.
- Become familiar with the new standards and ensure that clients who identify as lesbian, gay, bisexual, transgender, gender nonconforming, or intersex are placed appropriately and treated with dignity and respect.
- Ensure that clients know their rights and how to report any violations.
- If a sexual abuse incident occurs, ensure that an investigation, including inquiry into the perpetrator’s motive is completed timely and a report is issued.
- If the client continues to be concerned about his or her safety, bring these issue to the attention of the judge so an alternative placement can be made.
For additional resources, see the National PREA Resource Center http://www.prearesourcecenter.org/.
Andrea Khoury is a staff attorney at the ABA Center on Children and the Law focusing on youth empowerment in the court system and advocacy for LGBTQ youth, among other issues.
Endnotes
1. Beck, Allen J. Bureau of Justice Statistics Special Report: Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-9. January 2010. http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf
2. Ibid.
3. Ibid.
4. Ibid.
5. PREA Standard 115.315(e) (2012).
6. Ibid.
7. PREA Standard 115.315(f) (2012).
8. PREA Standard 115.341(a-b) (2012).
9. PREA Standard AP-1 (2009).
10. PREA Standard 115.341 (b) (2) (2012).
11. PREA Standard 115.341(e). (2012).
12. PREA Standard 115.342(c) (2012).
13. PREA Standard 115.342(e) (2012).
14. PREA Standard 115.342(g) (2012).
15. PREA Standard 115. 342(b) (2012).
16. PREA Standard 115.386(a), (b), (d)(12) (2012).
17. PREA Standard 115.386(d)(3),(4),(5), and (6).