CALEA Update Magazine | Issue 100
What the Prison Rape Elimination Act Means for Law Enforcement and CALEA
We can all agree: patrol officers should not seek nor have sex with an individual they stop for a traffic violation, and arrestees held for any amount of time in a police lock-up should be not be preyed upon sexually by other arrestees. And we can agree that employees should not sexually harass arrestees, and safeguard those in their custody. That’s what the Prison Rape Elimination Act (PREA) means to law enforcement – preventing sexual assault and harassment of arrestees by employees and preventing sexual assault of arrestees by other arrestees.[i] [ii]
Prison Rape Elimination Act of 2003
Law enforcement executives may be, perhaps, excused for not looking twice at a law entitled the Prison Rape Elimination Act. Passed unanimously by both houses of Congress in 2003, PREA addresses the sexual abuse of individuals in custody, regardless of whose custody. [iii] PREA specifically identifies police lock-ups and temporary holding cells as covered by the law. PREA establishes a National Prison Rape Elimination Commission (NPREC) to gather information and data defining the problem, to hold hearings around the country, and, importantly, to develop standards.
The Standards (Draft)
What should have the attention of law enforcement executives are the forty-two standards drafted[iv] and released by NPREC in June 2008, and now being finalized.[v] NPREC’s next task is to transmit a report and proposed standards to the U. S. Attorney General, now scheduled for June 2009. Attorney General Holder then has one year to review the proposals and issue final standards. Agencies that then fail to comply, or chose not to comply with these standards could lose up to 5% of their federal funding.
The draft standards received substantial and vocal response from the field, not only directed toward the standards’ language, but also concerning the wide-reach of the proposals, and, critically, the costs of implementation. While the PREA statute states that “The Commission shall not propose a recommended standard that would impose substantial additional costs compared to the costs presently expended by federal, state, and local prison authorities,” the proposals did not meet this mandate in the view of most corrections professionals. Some state corrections systems have estimated the cost of compliance with the proposed standards at $1 billion each.[vi]
Since it is not known what the Commission’s final recommended standards will be; or what Mr. Holder will approve, paying attention to the Commission and their activities is a good idea. But, what, if anything should CALEA be considering about PREA-related issues?
Misconduct and Arrestees
One reaction of law enforcement executives to the notion of needing to develop policies and/or standards relating to sexual misconduct by employees is that such misconduct is not widespread and those who do get involved are just a “few bad apples.” It seems incredible that employees should have to be told “don’t have sex with arrestees.” But with the core values and beliefs of the newest members of the workforce much different from those who lead and supervise them specific direction may be well be needed.
Lawsuits alleging sexual misconduct involving officers come from across the country, and agencies have lost millions in this litigation, not to mention the potential loss of trust by the community they serve. Examples of misconduct have included:
- $8.3 million in personal liability for several large-city police officers when a female arrestee was forced to have sex with them in a city patrol vehicle.
- A former sheriff pled guilty in federal court to sexually assaulting a woman, telling her sex was the only way to avoid going to jail for drug possession.
- Officer found guilty of state ethics charges for offering to dismiss or not give tickets in exchange for sex, and sentenced to three years jail time on each count.
- Officers solicited sexual favors from detainees in return for their freedom.
- A former police lieutenant has been accused of forcing a transvestite prostitute to perform a sex act inside his patrol car.
- A woman arrestee was handcuffed and separated from those with whom she was arrested; and one of the three arresting officers told her that if she had sex with him she could avoid criminal charges. The same officer was also accused of the same behavior previously.
- A state trooper admitted that he sexually assaulted six women, costing the state $6 million awarded to his victims.[vii]
An Internet search will provide too many examples of sexual misconduct by law enforcement and may benefit from a proactive approach.
Reduction of Potential Harm to Arrestees
Clarifying the responsibility of law enforcement to protect arrestees held in custody from being harmed by other arrestees, particularly from sexual assault/misconduct, may present challenges. These may be:
- employing a sufficient number of trained staff to supervise arrestees;
- gathering information from arrestees to be able to identify them as potential victims or potential sexual perpetrator of other arrestees;
- the actual condition of the physical plant, current capacity for video surveillance, and lines of sight;
- informing arrestees about their right to be free from sexual abuse/misconduct by employees and other arrestees;
- providing arrestees and their families with information about how and where to report allegations; and
- conducting timely and credible investigation of allegations.
Having another unfunded mandate in these economic times may result in more frustration for law enforcement executives. But being proactive is a wise action. A review of litigation and media reports challenges some currently held beliefs that law enforcement officers have the “common sense” not to get involved in sexual misconduct or that lock-ups are safe places for arrestees. The reality is that individuals impaired by drugs or alcohol and facing arrest can and do offer all kinds of inducements to officers – and the question is do officers always decline these invitations? Even individuals not impaired by a legal or illegal substance try to cajole officers to “look the other way.” How well an agency’s training prepares officers for these situations, and how supervisors are taught to spot the “red flags” are critical assessments for an organization to make. Lock-ups and holding areas are often not the safest environment for arrestees, especially considering the mental health and physical condition of many arrestees, the impact of alcohol and drugs on these arrestees, and the presence of individuals who have violent criminal histories, literally sitting beside a person with a first time, non-violent charge who is waiting for bail to be posted or a family member to arrive.
Does CALEA Need to Act?
Since we all agree that law enforcement officers having sex, or sexually abusing, or sexually harassing arrestees, violates most agencies’ ethics and policies; are more standards needed? Or should training and supervision be sufficient to overcome any officer’s inclination to violate this basic trust? PREA mandates looking beyond the arrest situation to lock-ups or short term holding facilities in which arrestees are not screened nor segregated by the potential dangerousness they pose to other arrestees. How about a holding area’s physical lay-out or condition which may not provide the ability of employees to regularly supervise arrestees?
It is clear that holding areas/cells/room and lock-ups managed by a law enforcement agency are included with the scope of PREA. As such, CALEA may wish to consider standards that address agency policies and procedures governing:
- Establishment of a zero-tolerance for sexual abuse of arrestees/inmates.
- Specific policies and procedures defining and prohibiting employee/arrestee sexual misconduct and arrestee/arrestee sexual misconduct [as defined by PREA] and mandatory reporting of all allegations by employees.
- How arrestees are identified/screened during an initial assessment process to assure their safety from harm, or doing harm to others.
- An adequate number of trained staff assigned to holding facilities/lock-ups including guidelines for cross-gender supervision in emergency and non-emergency situations.
- Collection and analysis of data to track incidents of sexual abuse.
- Provision of services to arrestees who allege they are victims of sexual abuse while in agency custody.
- Training of employees, volunteers, contractors, visitors, and other individuals who have contact with arrestees to include the agency’s policies and procedures relating to sexual assault identification, prevention and how to report allegations of sexual misconduct. [viii]
- Advising incoming arrestees about the agency’s zero-tolerance policy.
These represent the basic concepts needed to protect employees and arrestees from sexual abuse and exploitation regardless if PREA was enacted. They are good management practices. CALEA’s deliberations regarding potential standards will be occurring at the same time as the proposed standards are in the Attorney General’s hands for review. Having the final standards available may provide additional ideas for PREA-related CALEA standards, but the above recommendations are the basics.
Law enforcement organizations take extraordinarily measures each day to protect the public, arrestees and their own employees from harm. These actions help maintain the public’s trust in policing. Reviewing the mandates of PREA and looking objectively at agency operations is another way to protect and serve. Other accrediting bodies have, or will be developing standards relating to PREA mandates. CALEA may wish to join that effort, and work to further professionalize member departments.
[i] To read the law and the Prison Rape Elimination Commission, go to: www.nprec.us/docs/Prison_Rape_Elimination_Act_of_2003.pdf.
[ii] For more information on the impact of PREA on law enforcement, go to: McCampbell, Michael S., “Prison Rape Elimination Act: Impact on Police Chiefs of the Prison Rape Elimination Act,” Subject to Debate, Police Executive Research Forum, September 2005, Vol. 19, No. 9, page 5, www.policeforum.org/upload/V19-N09%20P%5B1%5D_715866088_12302005143917.pdf and Jordan, Andrew, Marcia Morgan and Michael McCampbell, “The Prison Rape Elimination Act: What Police Chiefs Need to Know”, Police Chief Magazine, International Association of Chiefs of Police, vol. 73, no. 4, April 2006, policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=864&issue_id=42006.
[iii] Definitions of behaviors covered by the law include:
Nonconsensual sexual acts: Contact of any person without his or her consent, or of a person who is unable to consent or refuse; and contact between the penis and the vagina or the penis and the anus including penetration, however slight; or contact between the mouth and the penis, vagina, or anus; or penetration of the anal or genital opening of another person by a hand, finger, or other object.
Abusive sexual contacts: contact of any person without his or her consent, or of a person who is unable to consent or refuse; and intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person. Excluding incidents in which the intent of the sexual contact is to harm or debilitate rather than sexually exploit.
Staff sexual misconduct: Any behavior or act of a sexual nature directed toward an inmate by an employee, volunteer, official visitor, or agency representative. Romantic relationships between staff and inmates are included. Consensual or nonconsensual sexual acts include: intentional touching of the genitalia, anus, groin, breast, inner thigh, or buttocks with the intent to abuse, arouse, or gratify sexual desire; or completed, attempted, threatened, or requested sexual acts; or occurrences of indecent exposure, invasion of privacy, or staff voyeurism for sexual gratification.
Staff sexual harassment: repeated verbal statements or comments of a sexual nature to an inmate by an employee, volunteer, official visitor, or agency representative, including: demeaning references to gender or derogatory comments about body or clothing; or profane or obscene language or gestures.
[vi] Letter to Commission Chair, The Honorable Reggie B. Walton from the Association of State Correctional Administrators (ASCA) dated December 3, 2008.
Change footnote format[viii] For specific law enforcement/PREA training materials, go to www.cipp.org/sexual/index2.html. No-cost training for law enforcement on PREA is available from the Center for Innovative Public Policies, Inc., funded by the U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance. For more information, contact CIPP at: email@example.com.
About the Author: Susan W. McCampbell is President of the not-for-profit Center for Innovative Public Policies, founded in 1999. Prior to that date McCampbell held positions as Chief Deputy/Acting Sheriff/and Director of Corrections for the Broward County (Florida) Sheriff’s Office; Assistant Sheriff, City of Alexandria, Virginia; and Program Director for Police Executive Research Forum. While at PERF McCampbell was involved with the development of the initial CALEA accreditation process and drafting of standards. She holds a BA from the American University, Washington, D.C. and a MCRP from The Catholic University of America. She may be reached at: firstname.lastname@example.org.