us act to eliminate prison rape 2003

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Page 1
117 STAT. 972
PUBLIC LAW 108-79-SEPT. 4, 2003
Sept. 4, 2003
[So
1435]
Prison Rape
Elimination Act
of 2003.
45
use
15601 note.
42
use
15601.
Public Law 108-79
108th Congress
An Act
To provide for the analysis of the incidence and effects of prison rape in Federal, State, and
local institutions and to provide information, resources,· recommendations, and funding to
protect individuals from prison rape.
Be it enacted
by
the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION l.SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.-This Act may be cited as the "Prison Rape
Elimination Act of 2003".
(b) TABLE OF CONTENTS.-The table of contents of this Act is
as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. National prison rape statistics, data, and research. Sec. 5.
Prison rape prevention and prosecution.
Sec. 6. Grants to protect inmates and safeguard communities. Sec.
7. National Prison Rape Reduction Commission.
Sec. 8. Adoption and effect of national standards.
Sec. 9. Requirement that accreditation organizations adopt accreditation standards. Sec. 10.
Definitions.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) 2,100,146 persons were incarcerated in the United States
at the end of 2001: 1,324,465 in Federal and State prisons and
631,240 in county and local jails. In 1999, there were more than
10,000,000 separate admissions to and discharges from prisons
and jails.
(2) Insufficient research has been conducted and insufficient
data reported on the extent of prison rape. However, experts have
conservatively estimated that at least 13 percent of the inmates in
the United States have been sexually assaulted in prison. Many
inmates have suffered repeated assaults. Under this estimate,
nearly 200,000 inmates now incarcerated have been or will be the
victims of prison rape. The total number of inmates who have
been sexually assaulted in the past 20 years likely exceeds
1,000,000.
(3) Inmates with mental illness are at increased risk of sexual
victimization. America's jails and prisons house more mentally ill
individuals than all of the Nation's psychiatric hospitals combined.
As many as 16 percent of inmates in State prisons and jails, and 7
percent of Federal inmates, suffer from mental illness.
( 4) Young first-time offenders are at increased risk of sexual
victimization. Juveniles are 5 times more likely to be sexually
Page 2
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT.
973
assaulted in adult rather than juvenile facilities -often within the first 48 hours of
incarceration.
(5) Most prison staff are not adequately trained or prepared to prevent,
report, or treat inmate sexual assaults.
(6) Prison rape often goes unreported, and inmate victims often receive
inadequate treatment for the severe physical and psychological effects of sexual
assault -if they receive treatment at all.
(7) HIV and AIDS are major public health problems within America's
correctional facilities. In 2 000, 25,088 inmates in Federal and State prisons were
known to be infected with HIV/AIDS. In 2000, HIV/AIDS accounted for more
than 6 percent of all deaths in Federal and State prisons. Infection rates for other
sexually transmitted diseases, tuberculosis , and hepatitis Band C are also far
greater for prisoners than for the American population as a whole. Prison rape
undermines the public health by contributing to the spread of these diseases, and
often giving a potential death sentence to its victims.
(8) Prison rape endangers the public safety by making brutalized inmates
more likely to commit crimes when they are released -as 600,000 inmates are
each year. '
(9) The frequently interracial character of prison sexual assaults
significantly exacerbates interracial' tensions, both within prison and, upon
release of perpetrators and victims from prison, in the community at large.
(10) Prison rape increases the level of homicides and other violence against
inmates and staff, and the risk of insurrections and riots.
(11) Victims of prison rape suffer severe physical and psychological effects
that hinder their ability to integrate into the community and maintain stable
employment upon their release from prison. They are thus more likely to
become home less and/or require government assistance.
(12) Members of the public and government officials are largely unaware of
the epidemic character of prison rape and
the day-to-day horror experienced by victimized inmates.
'
(13) The high incidence of sexua l assault within prisons involves actual and
potential violations of the United States Constitution. In Farmer v. Brennan, 511
U.S. 825 (1994), the Supreme Court ruled that deliberate indifference to the
substantial risk of sexual assault violates prisoner s' rights under the Cruel and
Unusual Punishments Clause of the Eighth Amendment. The Eighth
Amendment rights of State and local prisoners are protected through the Due
Process Clause of the Fourteenth Amendment. Pursuant to the power of
Congress under Sec tion Five of the Fourteenth Amendment, Congress may take
action to enforce those rights in States where officials have demonstrated such
indifference. States that do not take basic steps to abate prison rape by adopting
standards that do not generate sign ificant additional expenditures demonstrate
such indifference. Therefore, such States are not entitled to the same level of
Federal benefits as other States.
(14) The high incidence of prison rape undermines the effectiveness and
efficiency of United States Government expenditures through grant programs
such as those dealing with health care; mental health care; disease prevention;
crime prevention, investigat ion, and prosecution; prison construction,
Page 3
117 STAT.
974
PUBLIC LAW 108-79-SEPT. 4, 2003
42
use
15602.
maintenance, and operation; race relations; poverty; unemploy -
ment and homelessness. The effectiveness and efficiency of these
federally funded grant programs are compromised by the failure of
State officials to adopt policies and procedures that reduce the
incidence of prison rape in that the high incidence of prison rape: -
(A) increases the costs incurred by Federal, State, and
local jurisdictions to administer their prison systems;
(B) increases the levels of violence, directed at inmates
and at staff, within prisons;
(C) increases health care expenditures, both inside and
outside of prison systems, and reduces the effectiveness of
disease prevention programs by substantially increasing the
incidence and spread of HN, AIDS, tuberculosis, hepa titis
Band C, and other diseases;
(D) increases mental health care expenditures, both
inside and outside of prison systems, by substantially
increasing the rate of post -traumatic stress disorder,
depression, suicide, and the exacerbation of existing mental
illnesses among current and former inmates;
(E) increases the risks of recidivism, civil strife, and
violent crime by individuals who have been brutalized by
prison rape; and
(F) increases the level of interracial tensions and strife
within prisons and, upon release of perpetrators and vic tims,
in the community at large.
(15) The high incidence of prison rape has a significant effect
on interstate. commerce because it increases substantially
-
(A) the costs incurred by Federal, State, and local
jurisdictions to administer their prison systems;
(B) the incidence and spread of HIV, AIDS, tuber culosis,
hepatitis Band C, and other diseas es, contributing to
increased health and medical expenditures throughout the
Nation;
(C) the rate of post-traumatic stress disorder, depres sion,
suicide, and the exacerbation of existing mental ill nesses
among current and former inmates, contributing to increased
health and medical expenditures throughout the Nation; and
(D) the risk of recidivism, civil strife, and violent crime
by individuals who have been brutalized by prison rape.
SEC. 3. PURPOSES.
The purposes of this Act are to -
(1) establish a zero -tolerance standard for the incidence of
prison rape in prisons in the United States;
(2) make the prevention of prison rape a top priority in each
prison system;
(3) develop and implement national standards for the detec tion,
prevention, reduction, and punishment of prison rape; (4) increase
the available data and information on the incidence of prison
rape, consequently improving the manage ment and administration
of correctional facilities;
(5) standardize the definitions used for collec ting data on the
incidence of prison rape;
Page 4
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 975
(6) increase the accountability of prison officials who fail to
detect, prevent, reduce, and punish prison rape;
(7) protect the Eighth Amendment rights of Federal, State, and
local prisoners;
(8) increase the efficiency and effectiveness of Federal
expenditures through grant programs such as those dealing with
health care; mental health care; disease prevention; crime prevention,
investigation, and pros ecution; prison construction, maintenance, and
operation; race relations; poverty; unemploy ment; and homelessness;
and .
(9) reduce the costs that prison rape imposes on interstate
commerce.
SEC. 4. NATIONAL PRISON RAPE STATISTICS, DAT A,
AND
RESEARCH. 42 USC 15603.
(a)
ANNuAL COMPREHENSIVE STATISTICAL REVIEW.-
(1) IN GENERAL.-The Bureau of Justice Statistics of the
Department of Justice (in this section referred to as the "Bureau")
shall carry out, for each calendar year, a comprehen sive statistical
review and analysis of the incidence and effects of prison rape. The
statistical review and analysis shall include, but not be limited to the
identification of the common character -
istics of -
.
(A)
both victims and perpetrators of prison rape; and (B) prisons
and prison systems with a high incidence of prison rape ...
(2) CONSIDERATIONS . .,.-In carrying out paragraph (1), the
Bureau shall consider -·
.
(A)
how rape should be defined for the purposes of the
statistical review and analysis; .
(B) how the Bureau should collect information about
staff-on-inmate sexual assault;
.
(C) how the Bureau should collect information beyond
inmate self -reports of prison rape;
.
(D) how the Bureau should adjust the data in order to
account for differences among prisons as required by subsection
(c)(3);
(E) the categorization of prisons as required by sub section
(c)(4); and
(F) whether a preliminary study of prison rape should be
conducted to inform the methodology of the comprehensive
statistical review.
(3) SOLICITATION OF VIEWS.-The Bureau of Justice Statis -
tics shall solicit views from representatives of the following:
State departments of correction; county and municipal jails; juvenile
correctional facilities; former inmates; vict im advocates; researchers;
and other experts in the area of sexual assault.
(4) SAMPLING TECHNIQUES.-The review and analysis under
paragraph (1) shall be based on a random sample, or other
scientifically appropriate sample, of not less than 10 percent o f all
Federal, State, and county prisons, and a representative sample of
municipal prisons. The selection shall include at least one prison
from each State. The selection of facilities for sampling shall be
made at the latest practicable date prior to cond ucting the surveys
and shall not be disclosed to any facility or prison system official
prior to the time period studied in the survey. Selection of a facility
for sampling during any
Page 5
117 STAT.
976
Confidentiality.
PUBLIC LAW 108-79-SEPT. 4, 2003
year shaH not preclude its selection for sampling in any subsequent
year.
(5) SURVEYS.-In carrying out the review and analysis under
paragraph (1), the Bureau shaH, in addition to such other methods as
the Bureau considers appropriate, use surveys and other statistical
studies of current and former inmates from a sample of Federal,
State, county, and municipal prisons. The Bureau shaH ensure the
confidentiality of each survey participant.
(6) PARTICIPATION IN SURVEY.-Federal, State, or local
officials or facility administrators that receive a request from the
Bureau under subsection (a)(4) or (5) will be required to participate
in the national survey and provide access to any inmates under their
legal custody.
(b) REVIEW PANEL ON PRISON RAPE.-
0)
ESTABLlSHMENT._To assist the Bureau in carrying out
the review and analysis under subsection (a), there is established,
within the Department of Justice, the Review Panel on Prison Rape
(in this section referred to as the "Panel").
(2) MEMBERSHIP._
(A)
COMPOSITION.-The Panel shall be composed of 3
members, each of whom shaH be appointed by the Attorney
General, in consultation with the Secretary of Health and
Human Services.
(B) QUALIFICATIONS.-Members of the Panel shall be
selected from among individuals with knowledge or expertise
in matters to be studied by the Panel.
(3) PUBLIC HEARINGS.-
(A)
IN GENERAL.--:-The duty of the Panel shaH be to carry
out, for each calendar year, public hearings concerning the
operation of the three prisons with the highest incidence of
prison rape and the two prisons with the lowest incidence of
prison rape in each category of facilities identified under
subsection (c)(4). The Panel shall hold a separate hearing
regarding the three Federal or State prisons with the highest
incidence of prison rape. The purpose of these hearings shaH be
to coHect evidence to aid in the identification of common
characteristics of both victims and perpetrators of prison rape,
and the identification of common characteristics of prisons and
prison systems with a high incidence of prison rape, and the
identification of common characteristics of prisons and prison
systems that appear to have been successful in deterring prison
rape.
(B) TESTIMONY AT HEARINGS.-
(i) PuBLIC OFFICIALS.-In carrying out the hearings
required under subparagraph
(A),
the Panel shaH request
the public testimony of Federal, State, and local officials
(and organizations that represent such officials), including
the warden or director of each prison, who bears
responsibility for the prevention, detection, and
punishment of prison rape at each entity, and the head of
the prison system encompassing such prison.
(ii) VICTIMS.-The Panel may request the testimony
of prison rape victims, organizations representing
Page 6
PUBLIC LAW lOB-79-SEPT. 4,2003
117 STAT. 977
such victims, and other appropriate individuals and
organizations.
(C) SUBPOENAS.-
(i) ISSUANCE.-The Panel may issue subpoenas for the
attendance of witnesses and the production of writ ten or other
matter.
(ii)
ENFORCEMENT.-In the case of contumacy or refusal
to obey a subpoena, the Attorney General may in a Federal
court of appropriate jurisdiction obtain an appropriate order to
enforce the subpoena.
(c) REPORTS.-
(1) IN GENERAL.-Not later than June 30 of each year, Deadline. the
Attorney General shall submit a report on the activities
of the Bureau and the Review Panel, with respect to prison
rape, for the preceding calendar year to-
(A)
Congress; and
(B) the Secretary of Health and Human Services.
(2). CONTENTS.-The report required under paragraph (1) shall
include-
(A)
with respect to the effects of prison rape, statistical,
sociological, and psychological data;
(B) with respect to the incidence of prison rape -
(i) statistical data aggregated at the Federal, State, prison
system, and prison levels;
(ii) a listing of those institutions in the representa tive
sample, separated into each category identified under
subsection (c)(4) and ranked according to the incidence of
prison rape in each institution; and
(iii) an identification of those institutions in the
representative sample that appear to have been successful in
deterring prison rape; and
(C) a listing of any prisons in the representative sample that
did not cooperate with the survey conducted pursuant to section 4.
(3) DATA ADJUSTMENTS.-In preparing the information specified in
paragraph (2), the Attorney General shall use estab lished statistical
methods to adjust the data as necessary to . account for differences
among institutions in the representative
sample, which are not related to the detection, prevention, reduction
and punishment of prison rape, or which are outside the control of the
State, prison, or prison system, in order to provide an accurate
comparison among prisons. Such dif ferences may include the mission,
security level, size, and juris diction under which the prison operates.
For each such adjust ment made, the Attorney General shall identif y
and explain such adjustment in the report.
(4) CATEGORIZATION OF PRISONS.-The report shall divide
the prisons surveyed into three categories. One category shall be
composed of all Federal and State prisons. The other two categories
shall be defined by the Attorney General in order to compare simil ar
institutions.
(d) CONTRACTS AND GRANTS.-In carrying out its duties under
this section, the Attorney General may -
(1) provide grants for research through the National Institute of
Justice; and
(2) contract with or provide grants to any other entitythe Attorney
General deems appropriate.
Page 7
117 STAT.
978
PUBLIC LAW 108-79-SEPT. 4, 2003
42
use
15604.
Establishment.
Deadline.
42
use
15605.
(e) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated $15,000,000 for each of fiscal years 2004
through 2010 to carry out this section.
SEC.
5.
PRISON RAPE PREVENTION AND
PROSECUTION. (a) INFORMATION AND
ASSISTANCE.-
(1) NATIONAL CLEARINGHOUSE.-There is established
within the National Institute of Corrections a national clearinghouse
for the provision of information and assistance to Federal, State, and
local authorities responsible for the prevention, investigation, and
punishment of instances of prison rape.
(2) TRAINING AND EDUCATION.-The National Institute of
Corrections shall conduct periodic training and education programs
for Federal, State, and local authorities responsible for the prevention,
investigation, and punishment of instances of prison rape.
(b) REPORTS.-
(1) IN GENERAL.-Not later than September 30 of each year, the
National Institute of Corrections shall submit a report to Congress and
the Secretary of Health and Human Services. This report shall be
available to the Director of the Bureau of Justice Statistics.
(2) CONTENTS.-The report required under paragraph (1) shall
summarize the activities of the Department of Justice regarding prison
rape abatement for the preceding calendar year ..
(c) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated $5,000,000 for each of fiscal years 2004
through 2010 to carry out this section ..
SEC. 6. GRANTS TO PROTECT INMATES AND SAFEGUARD
COMMUNITIES.
(a) GRANTS AUTHORIZED.-From amounts made available for
grants under this section, the Attorney General shall make grants to States
to assist those States in ensuring that budgetary circumstances (such as
reduced State and local spending on prisons) do not compromise efforts to
protect inmates (particularly from prison rape) and to safeguard the
communities to which inmates return. The purpose of grants under this
section shall be to provide funds for personnel, training, technical
assistance, data collection, and equipment to prevent and prosecute
prisoner rape.
(b) USE OF GRANT AMOUNTS.-Amounts received by a grantee
under this section may be used by the grantee, directly or through
subgrants, only for one or more of the following activities:
(1) PROTECTING INMATES.-Protecting inmates by-
(A) undertaking efforts to more effectively prevent prison
rape;
(B) investigating incidents of prison rape; or
(C) prosecuting incidents of prison rape.
(2) SAFEGUARDING COMMUNITIES.-Safeguarding
communities by-
(A) making available, to officials of State and local
governments who are considering reductions to prison budgets,
training and technical assistance in successful methods for
moderating the growth of prison populations without
compromising public safety, including successful methods used
by other jurisdictions;
Page 8
PUBLIC LAW 108-79-SEPT. 4,2003
117 STAT. 979
(B) developing and utilizing analyses of prison popu lations and risk
assessment instruments that will improve State and local governments'
understanding of risks to the community regarding release of inmates in the
prison population;
(C) preparing maps demonstrating the concentration, on a community -
by-community basis, of inmates who have been released, to facilitate the
efficient and effective -
(i) deployment of law enforcement resources (includin g probation
and parole resources); and
(ii) delivery of services (such as job training and substance abuse treatment)
to those released inmates;
(D)
promoting collaborative efforts, among
officials of State and local governments and leaders of appropriat e
communities, to understand and address the effects on a community of the
presence of a disproportionate number of released inmates in that
community; or
(E) developing policies and programs that reduce spending on prisons
by effectively reducing rates of parole and probation revocation without
compromising public safety.
(c) GRANT REQUIREMENTS.-
(1) PERIOD.-A grant under this .section shall be made for a period of not
more than 2 years.
(2) MAXIMUM.- The amount of a grant under this section may no t exceed
$1,000,000.
(3) MATCHING.-The Federal share of a grant under this section may not
exceed 50 percent of the total costs of the project described in the application
submitted under subsection (d) for the fiscal year for which the grant was made
under this section.
(d) APPLICATIONS.-
(1) IN GENERAL.-To request a grant under this section, the chief executive
of a State shall submit an application to the Attorney General at such time, in
such manner, and accom panied by such information as the Att orney General
may require.
(2) CONTENTS.-Each application required by paragraph
(1) shall-
.
(A)
include the certification of the chief executive that
the State receiving such grant -
..
(i) has adopted all national prison rape standards that, as of the date
on which the application was submitted, have been promulgated under
this Act; and
(ij) will consider adopting all national prison rape standards that are
promulgated under this Act after such date; .. (B) specify with
particularity the preventative, prosecu -
torial, or administrative activities to be undertaken by the State with the
amounts received under the grant; and (C) in the case of an application for a
grant for one or more activities specified in paragraph (2) of subsection
(b)-
(1)
review the extent of the budgetary cir cumstances affecting the
State generally and describe how those circumstances relate to the
State's prisons;
Page 9
117 STAT. 980
PUBLIC LAW 108-79-SEPT. 4, 2003
Deadline.
42
use
15606.
President.
(ii) describe the rate of growth of the State's prison
population over the preceding 10 years and explain why
the State may have difficulty sustaining that rate of
growth; and
(iii) explain the extent to which officials (including
law enforcement officials) of State and local governments
and victims of crime will be consulted regarding decisions
whether, or how, to moderate the growth of the State's
prison population.
(e) REPORTS BY GRANTEE.-
(1) IN GENERAL.-The Attorney General shall require each
grantee to submit, not later than 90 days after the end of the period
for which the grant was made under this section, a report on the
activities carried out under the grant. The report shall identify and
describe those activities and shall contain an evaluation of the
effect of those activities on-
(A) the number of incidents of prison rape, and the
grantee's response to such incidents; and
(B)
the safety of the prisons, and the safety of the
communities in which released inmates are present.
(2) DISSEMINATION.-The Attorney General shall ensure that
each report submitted under paragraph (1) is made available under
the national clearinghouse established under section
5.
(f) STATE DEFINED.-In this section, the term "State" includes the
District of Columbia, the Commonwealth of Puerto Rico, and any other
territory or possession of the United States.
(g) AUTHORIZATION OF APPROPRIATIONS.-
(1) IN GENERAL.-There are authorized to be appropriated for
grants under this section $40,000,000 for each of fiscal years 2004
through 2010.
(2) LIMITATION.-Of amounts made available for grants
under this section, not less than 50 percent shall be available only
for activities specified in paragraph (1) of subsection (b).
SEC.
7.
NATIONAL PRISON RAPE REDUCTION COMMISSION.
(a) ESTABLISHMENT.-There is established a commission to be
known as the National Prison Rape Reduction Commission (in this
section referred to as the "Commission").
(b) MEMBERS.-
(1) IN GENERAL.-The Commission shall be composed of 9
members, of whom-
(A) 3 shall be appointed by the President;
(B)
2 shall be appointed by the Speaker of the House of
Representatives, unless the Speaker is of the same party as the
President, in which case 1 shall be appointed by the Speaker of
the House of Representatives and 1 shall be appointed by the
minority leader of the House of Representatives;
(C) 1 shall be appointed by the minority leader of the
House of Representatives (in addition to any appointment
made under subparagraph
(B));
(D) 2 shall be appointed by the majority leader of the
Senate, unless the majority leader is of the same party as the
President, in which case 1 shall be appointed by the majority
leader of the Senate and 1 shall be appointed by the minority
leader of the Senate; and
Page 10
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 981
(E) 1 member appointed by the minority leader of the Senate
(in addition to any appointment made under subparagraph (D».
(2) PERSONS ELIGIBLE.-Each member of the Commission shall
be an individual who has knowledge or expertise in mat ters to be
studied by the Commission.
(3) CONSULTATION REQUIRED.-The President, the Speaker
and minority leader of the House of Representatives, and the majority
leader and minority leader of the Senate shall consult with one another
prior to the appointment ofthe members of the Commission to achieve,
to the maximum extent possible, fair and equitable representation of
various points of view' with respect to the matters to be studied by the
Commission.
(4) TERM.-Each member shall be appointed for the life of the
Commission.
(5) TIME FOR INITIAL APPOINTMENTs.
-The appointment of Deadline.
the members shall be made not later than 60 days after the
date of enactment of this Act.
(6) VACANCIES.-A vacancy in the Commission shall be Deadline. filled in
the manner in which the original appointment was
made, and shall be made not later than 60 days after the
date on which the vacancy occurred.
(c) OPERATION.-
(1) CHAIRPERSON.-Not later than 15 days after appoint- Deadline. ments
of all the members are made , the Prsident shall appoint President. a chairperson
for the Commission from among its members.
(2) MEETINGS.-The Commission shall meet at the call
of the chairperson. The initial meeting of the Cl;>mmission shall Deadline. take
place not later than 30 days after the initial appointment
of the members is completed.
(3) QUORUM.-A majority of the members of the Commis sion
shall constitute a quorum to conduct business, but the Commission may
establish a lesser quorum for conducting hearings schedule d by the
Commission.
(4) RULES.-The Commission may establish by majority vote any
other rules for the conduct of Commission business, if such rules are
not inconsistent with this Act or other applicable law.
(d) COMPREHENSIVE STUDY OF THE IMPACTS OF PRISON RAPE.-
(1) IN GENERAL.-The Commission shall carry out a com -
prehensive legal and factual study of the penalogical, physical, mental,
medical, social, and economic impacts of prison rape in the United
States on-
(A) Federal, State, and local governments; and
(B)
communities and social institutions generally, including
individuals, families, and businesses within such communities and
social institutions.
(2) MATTERS INCLUDED.-The study under paragraph (1) shall
include-
(A)
a review of existing Federal, State, and local government
policies and practices with respect to the prevention, detection, and
punishment of prison rape;
(B)
an assessment of the relationship between prison rape and
prison conditions, and of existing monitoring, regulatory, and
enforcement practices that are intended to address any such
relationship;
Page 11
117 STAT.
982
Deadline.
PUBLIC LAW 108-79-SEPT. 4,2003
(C) an assessment of pathological or social causes of
prison rape;
(D) an assessment of the extent to which the incidence of
prison rape contributes to the spread of sexually transmitted
diseases and to the transmission of HI V;
(E)
an assessment of the characteristics of inmates most
likely to commit prison rape and the effectiveness of various
types of treatment or programs to reduce such likelihood;
(F) an assessment of the characteristics of inmates most
likely to be victims of prison rape and the effectiveness of
various types of treatment or programs to reduce such
likelihood;
(G) an assessment of the impacts of prison rape on
individuals, families, social institutions and the economy
generally, including an assessment of the extent to which the
incidence of prison rape contributes to recidivism and to
increased incidence of sexual assault;
(H) an examination of the feasibility and cost of con-
ducting surveillance, undercover activities, or both, to reduce
the incidence of prison rape;
(I) an assessment of the safety and security of prison
facilities and the relationship of prison facility construction
and design to the incidence of prison rape;
(J)
an assessment of the feasibility and cost of any
particular proposals for prison reform;
(K)
an identification of the need for additional scientific
and social science research on the prevalence of prison rape in
Federal, State, and'local prisons;
(L) an assessment of the general relationship between
prison rape and prison violence;
(M) an assessment of the relationship between prison
rape and levels of training, supervision, and discipline of
prison staff; and
(N) an assessment of existing Federal and State systems
for reporting incidents of prison rape, including an assessment
of whether existing systems provide an adequate assurance of
confidentiality, impartiality and the absence of reprisal.
(3) REPORT.-
(A) DISTRIBUTION.-Not later than 2 years after the
date of the initial meeting of the Commission, the Commis-
sion shall submit a report on the study carried out under this
subsection to-
,0)
the President;
(ii) the Congress;
(iii) the Attorney General;
(iv) the Secretary of Health and Human Services; (v)
the Director of the Federal Bureau of Prisons; (vi)
the chief executive of each State; and
(vii) the head of the department of corrections of
each State.
(B) CONTENTs.-The report under subparagraph (A)
shall include-
(i) the findings and conclusions of the Commission; (ii)
recommended national standards for reducing prison
rape;
Page 12
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 983
(iii) recommended protocols for preserving evidence
and treating victims of prison rape; and
(iv) a summary of the materials relied on by the
Commission in the preparation of the report.
(e) RECOMMENDATIONS.-
(1) IN GENERAL.-In conjunction with the report submitted
under subsection (d)(3), the Commission shall provide the
Attorney General and the Secretary of Health and Human
Services with recommended national standards for enhancing the
detection, prevention, reduction, and punishment of prison rape.
(2) MATTERS INCLUDED.-The information provided
under paragraph (1) shall include recommended national
standards relating to --
(A) the classification and assignment of prisoners, using
proven standardized instruments and protocols, in a manner
that limits the occurrence of prison rape;
(B) the investigation and resolution of rape complaints
by responsible prison authorities, local and State police, and
Federal and State prosecution authorities;
(C) the preservation of physical and testimonial evi -
dence for use in an investigation of the ci rcumstances
relating to the rape;
(D)
acute-term trauma care for rape victims, including
standards relating to --
(i) the manner and extent of physical examination
and treatment to be provided to any rape victim; and
(ii) the manner. and extent· of any psychological
examination, psychiatric care, medication, and mental
health counseling to be provided to any rape victim;
(E)
referrals for long-term continuity of care for rape
victims;
(F) educational and medical testing measures for
reducing the incidence of HIV transmission due to prison
rape;
(G) post-rape prophylactic medical measures for reducing the
incidence of transmission of sexual diseases; (H) the training
of correctional staff sufficient to ensure that they understand
and appreciate the significance of prison rape and the
necessity of its·eradication;
(1) the timely and comprehensive investigation of staff
sexual misconduct involving rape or other sexual assault on
inmates;
(J)
ensuring the confidentiality of prison rape com plaints
and protecting inmates who make complaints of prison rape;
(K) creating a system for reporting incidents of prison
rape that will ensure the confidentiality of prison rape
complaints, protect inmates who make prison rape com -
plaints from retaliation, and assure the impartial resolution of
prison rape complaints;
(L)
data collection and reporting of.
(i) prison rape;
(ii) prison staff sexual misconduct; and
(ill) the resolution of prison rape complaints by
prison officials and Federal, State, and lo cal investiga -
tion and prosecution authorities; and
.-......./.
Page 13
117 STAT.
984
PUBLIC LAW 108-79-SEPT. 4, 2003
(M) such other matters as may reasonably be related to the detection,
prevention, reduction, and punishment
of prison rape.
(3) LIMITATION.-The Commission shall not propose a rec -
ommended standard that would impose substantial additional costs compared to the
costs presently expended by Federal, State, and local prison authorities.
(D
CONSULTATION WITH ACCREDITATION ORGANIZATIONs.-In
developing recommended national standards for enhancing the detection, prevention,
reduction, and punishment of prison rape, the Commission shall consider any standards
that have already been developed, or are being developed simultaneously to
the delib-
erations of the Commission. The Commission shall consult with accreditation
organizations responsible for the accreditation of Fed eral, State, local or private prisons,
that have developed or are currently developing standards related to prison rape. The
Commission will also consult with national associations representing the corrections
profession that have developed or are currently devel oping standards related to prison
rape.
(g) HEARINGS.-
(1) IN GENERAL.-The Commission shall hold publi c
hearings. The Commission may hold such hearings, sit and act at such times and
places, take such testimony, and receive such evidence as the Commission considers
advisable to carry
out its duties under this section.
(2) WITNESS EXPENSEs.-Witnesses requested to appear
before the Commission shall be paid the same fees as are paid to witnesses under
section 1821 of title 28, United States Code. The per diem and mileage allowances for
witnesses shall be paid from funds appropriated to the Commission.
(h) INFORMATION FROM FEDERAL OR STATE AGENCIEs.-The Commission
may secure directly from any Federal department or agency such information as the
Commission considers necessary to carry out its duties under this section. The
Commission may request the hea d of any State or local department or agency to furnish
such information to the Commission.
(i) PERSONNEL MATTERS.-
(1) TRAVEL EXPENSEs.-The members of the Commission
shall be allowed travel expenses, including per diem in lieu of subsistence, at rat
es
authorized for employees of agencies under subchapter I of chapter 57 of title 5,
United States Code, while away from their homes or regular places of business in the
performance of service for the Commission.
(2) DETAIL OF FEDERAL EMPLOYEES.
-With the affirmative vote of
2/3
of
the Commission, any Federal· Government employee, with the approval of the head
of the appropriate Federal agency, may be detailed to the Commission without
reimbursement, and such detail shall be without interruption or loss of civil service
status, benefits, or privileges.
(3) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICEs.-
Upon the request of the Commission, the Attorney Gen eral shall provide reasonable
and appropriate office space, sup plies, and administrative assist ance.
(j)
CONTRACTS FOR RESEARCH. -
(1) NATIONAL INSTITUTE OF JUSTICE.
-With a
o/s
affirmative
vote, the Commission may select nongovernmental researchers and experts to assist
the Commission in carrying out its duties
Page 14
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT. 985
under this Act. The National Institute of Justice shall contract with
the researchers and experts selected by the Commission to provide
funding in exchange for their services.
(2) OTHER ORGANIZATIONS.-Nothing in this subsection
shall be construed to limit the ability of the Commission to enter
into contracts with other entities or organizations for research
necessary to carry out the duties of the Commission under this
section.
(k) SUBPOENAS.-
(1) ISSUANCE.-The Commission may issue subpoenas for
the attendance of witnesses and the production of written or other
matter.
(2) ENFORCEMENT.-In the case of contumacy or refusal to
obey a subpoena, the Attorney General may in a Federal court of
appropriate jurisdiction obtain an appropriate order to enforce the
subpoena.
(3)
CONFIDENTIALITY
OF
DOCUMENTARY
EVIDENCE.-Documents provided to the Commission pursuant to
a subpoena issued under this subsection shall not be released
publicly without the affirmative vote of% of the Commission.
(l) AUTHORIZATION OF APPROPRIATIONS.-There are
authorized to be appropriated such sums as may be necessary to carry
out this section ..
(m) TERMINATION.The Commission shall terminate on the date
that is 60 days after the date on which the Commission
submits the reports required by this section.'
.
(n)
EXEMPTIoN.-The Commission shall be exempt from the
Federal Advisory Committee Act.
SEC. 8. ADOPTION AND EFFECT OF NATIONAL
STANDARDS. (a) PuBLICATION OF PROPOSED
STANDARDS.-
(1) FINAL RULE.-Not later than 1 year after receiving the
report specified in section 7(d)(3), the Attorney General shall
publish a final rule adopting national standards for the detection,
prevention, reduction, and punishment of prison rape.
(2) INDEPENDENT JUDGMENT.-The standards· referred to
in paragraph (1) shall be based upon the independent judgment of
the Attorney General, after giving due consideration to the
recommended national standards provided by the Commission
under section 7(e), and being informed by such data, opinions, and
proposals that the Attorney General determines to be appropriate to
consider.
(3) LIMITATION.-The Attorney General shall not establish a
national standard under this section that would impose substantial
additional costs compared to the costs presently expended by
Federal, State, and local prison authorities. The Attorney General
may, however, provide a list of improvements for consideration by
correctional facilities.
(4) TRANSMISSION TO STATES.-Within 90 days of
publishing the final rule under paragraph (1), the Attorney General
shall transmit the national standards adopted under such paragraph
to the chief executive of each State, the head of the department of
corrections of each State, and to the appropriate authorities in those
units of local government who oversee operations in one or more
prisons.
(b) APPLICABILITY TO FEDERAL BUREAU OF PRISONs.-
The national standards referred to in subsection (a) shall apply to the
Deadlines.
42
USC
15607.
Page 15
117 STAT. 986
PUBLIC LAW 108-79-SEPT. 4, 2003
Deadline.
Procedures.
Federal Bureau of Prisons immediately upon adoption of the final rule
under subsection (a)(4).
(c) ELIGIBILITY FOR FEDERAL
FUNDS.(1) COVERED
PROGRAMS.-
(A) IN GENERAL.-For purposes of this subsection, a
grant program is covered by this subsection if, and only if-
(i) the program is carried out by or under the authority
of the Attorney General; and
(ii) the program may provide amounts to States for
prison purposes.
(B) LIsT.-For each fiscal year, the Attorney General shall
prepare a list identifying each program that meets the criteria of
subparagraph (A) and provide that list to each State.
(2) ADOPTION OF NATIONAL STANDARDs.-For each
fiscal year, any amount that a State would otherwise receive for
prison purposes for that fiscal year under a grant program covered
by this subsection shall be reduced by 5 percent, unless the chief
executive of the State submits to the Attorney General-
(A) a certification that the State has adopted, and is in full
compliance with, the national standards described in section
8(a); or
(B) an assurance that not less than 5 percent of such
amount shall. be used only for the purpose of enabling the State
to adopt, and achieve full compliance with, those national
standards, so as to ensure that a certification under
subparagraph (A) may be submitted in future years. (3)
REPORT ON NONCOMPLIANCE.-Not later than September
30 of each year, the Attorney General shall publish a report listing
each grantee that is not in compliance with the national standards
adopted pursuant to section 8(a).
(4) COOPERATION WITH SURVEY.-For each fiscal year,
any amount that a State receives for that fiscal year under a grant
program covered by this subsection shall not be used for prison
purposes (and shall be returned to the grant program if no other
authorized use is available), unless the chief executive of the State
submits to the Attorney General a certification that neither the State,
nor any political subdivision or unit of local government within the
State, is listed in a report issued by the Attorney General pursuant to
section 4(c)(2)(C).
(5) REDISTRIBUTION OF AMOUNTS.-Amounts under a
grant program not granted by reason of a reduction under paragraph
(2), or returned by reason of the prohibition in paragraph (4), shall
be granted to one or more entities not subject to such reduction or
such prohibition, subject to the other laws governing that program.
(6) IMPLEMENTATION.-The Attorney General shall establish
procedures to implement this subsection, including procedures for
effectively applying this subsection to discretionary grant programs.
(7) EFFECTIVE DATE.-
(A)
REQUIREMENT
OF
ADOPTION
OF
STANDARDS.-The first grants to which paragraph (2) applies
are grants for the second fiscal year beginning after the date on
which the national standards under section 8(a) are finalized.
Page 16
PUBLIC LAW 108-79-SEPT. 4, 2003
117 STAT.
987
(B)
REQUIREMENT FOR COOPERATION.-The first
grants to which paragraph (4) applies are grants for the fiscal
year beginning after the date of the enactment of this Act.
SEC.
9.
REQUIREMENT THAT ACCREDITATION ORGANIZATIONS
42
use
15608.
ADOPT ACCREDITATION STANDARDS.
(a) ELIGIBILITY FOR FEDERAL GRANTS.-Notwithstanding any
other provision of law, an organization responsible for the accreditation
of Federal, State, local, or private prisons, jails, or other penal facilities
may not receive any new Federal grants during any period in which such
organization fails to meet any of the requirements of subsection (b).
(b) REQUIREMENTS.-To be eligible to receive Federal grant,
Deadlines.
an
accreditation organization referred to in subsection (a) must
meet the following requirements:
(1) At all times after 90 days after the date of enactment of this
Act, the organization shall have in effect, for each facility that it is
responsible for accrediting, accreditation standards for' the
detection, prevention, reduction, and punishment of prison rape ..
(2) At all times. after 1 year after the date of the adoption of the
final rule under section 8(a)(4), the organization shall, in addition to
any other such standards that it may promulgate relevant to the
detection, prevention, reduction, and punishment of prison rape,
adopt accreditation standards consistent with the national standards
adopted pursuant to such final rule.
SEC.
10.
DEFINITIONS.
42
USC
15609.
In this Act, the following definitions shall apply:
(1) CARNAL KNOWLEDGE.-The term "carnal knowledge"
means contact between the penis and the vulva or the penis and the
anus, including penetration of any sort, however slight .
.
(2) INMATE.-The term "inmate" means any person incar-
cerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or
diversionary program.
(3) JAIL.-The term "jail" means a confinement facility of a Federal,
State, or local law enforcement agency to hold-
(A) persons pending adjudication of crimiJ:!.al charges;
(B)
persons committed to confinement after adjudication of criminal
charges for sentences of 1 year or less. (4) HIV.-The term "HIV"
means the human immunodeficiency virus.
(5) ORAL SODoMY.-The term "oral sodomy" means contact
between the mouth and the penis, the mouth and the· vulva, or the
mouth and the anus.
(6) POLICE LOCKUP.-The term "police lockup" means a
temporary holding facility of a Federal, State, or local law
enforcement agency to hold-
(A) inmates pending bail or transport to jail;
(B)
inebriates until ready for release; or
(C) juveniles pending parental custody or shelter place-
ment.
or
j
Page 17
117 STAT. 988
PUBPULIC LAW 108-79-SEPT. 4, 2003
(7) PRISON.-The term "prison" means any confinement
facilitY., of a Federal, State, or local government, whether
administered by such government or by a private organization on
behalf of such government, and includes-
(A)
any local jailor police lockup; and
(B)
any juvenile facility used for the custody or care of
juvenile inmates.
(8) PRISON RAPE.-The term "prison rape" includes the rape
of an inmate in the actual or constructive control of prison
officials.
(9) RAPE.-The term "rape" means-
(A)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person, forcibly or
against that person's will;
(B)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person not forcibly or
against the person's will, where the victim is incapable of
giving consent because of his or her youth or his or her
temporary or permanent mental or physical incapacity;
or
(C)
the carnal knowledge, oral sodomy, sexual assault
with an object, or sexual fondling of a person achieved
through the exploitation of the fear or threat of physical
violence or bodily injury.
(10) SEXUAL ASSAULT WITH AN OBJEcT.-The term
"sexual assault with an object" means the use of any hand, finger,
object, or other instrument to penetrate, however slightly, the
genital or anal opening ofthe body of another person.
(11)
SEXUAL FONDLING.-The term "sexual fondling"
means the touching of the private body parts of another person
(including the genitalia, anus, groin, breast, inner thigh, or
buttocks) for the purpose of sexual gratification.
(12) EXCLUSIONs:-The terms and conditions described in
paragraphs (9) and (10) shall not apply to--
.
(A)
custodial or medical personnel gathering physical
evidence, or engaged in other legitimate medical treatment, in
the course of investigating prison rape;
(B)
the use of a health care provider's hands or fingers or the use of
medical devices in the course of appropriate medical treatment
unrelated to prison rape; or
Page 18
PUBLIC LAW 108-79-SEPT. 4, 2003 117 STAT. 989
(C) the use of a health care provider's hands or fingers and the use of
instruments to perform body cavity searches in order to maintain security and
safety within the prison or detention facility, provided that the search is
conducted in a manner consistent with constitutional requirements.
Approved September 4, 2003.
LEGISLATIVE HISTORY-S. 1435:
CONGRESSIONAL RECORD, Vol. 149 (2003):
July 21, considered and passed Senate. July 25, considered and
passed House.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 39 (2003):
Sept. 4, Presidential statement.
o
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