What is PREA?
The Prison Rape Elimination Act of 2003 (“PREA”), P.L. 108-79, is a set of standards developed to prevent and respond to sexual assault in prisons. PREA standards cover sexual assaults between incarcerated individuals and staff-on-prisoner abuse, including harassment and other sexually abusive behavior. The PREA law text is linked above but can also be found in the Code of Federal Regulations (CFR) – 28 CFR, Part 115. PREA standards, which became effective in 2012, apply to all prisons, jails, lockups, and detention facilities in the U.S., including the civilly committed portion of the Massachusetts Treatment Center (MTC).
In response to PREA, the DOC adopted the “Sexually Abusive Behavior Prevention and Intervention Policy,” 103 DOC 519, which should be available to you in any Massachusetts state prison. This policy is only applicable in state prisons. County jails should each have their own policies in place to prevent and respond to sexual assault.
This page provides you with citations from both 103 DOC 519 and the CFR. You can use these citations in the communications that you have with the DOC. Please be aware that there are no individual legal claims you can bring for violation of the PREA Standards.
What constitutes sexual assault?
There are detailed definitions in 28 CFR 115.6 and 103 DOC 519.01. Sexual abuse includes any contact between one’s genitals and another’s mouth, hand, genitals, or object. It can also include some types of intentional touching by another person, such as touching of the genitalia, anus, groin, breast, inner thigh, or buttocks. Incarcerated individuals are considered unable to consent to any sexual activity by correctional staff, contractors, or volunteers — this is because these people have power over incarcerated individuals by the nature of their jobs.
The DOC defines sexual harassment and assault as the following:
Prisoner/Prisoner Sexual Abuse
Sexual abuse of an incarcerated person, detainee, or resident by another incarcerated person, detainee, or resident includes various acts. Sexual abuse is defined as instances where the victim does not consent, is coerced into acts by overt or implied threats of violence, or is unable to consent or refuse. Contact of any person without their consent, or of a person who is unable to consent or refuse and intentional touching, either directly or through the clothing, of genitalia, anus, groin, breast, inner thigh, or the buttocks of any person, excluding contact incidental to a physical altercation, is also considered sexual abuse. Incidents of sexual abuse include:
- Contact between the penis and the vulva or the penis and the anus, including penetration, however slight
- Contact between the mouth and the penis, vulva, or anus
- Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instruments
- Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation
Prisoner/Prisoner Sexual Harassment
Sexual harassment includes:
- Repeated and unwelcome sexual advances
- Requests for sexual favors
- Verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one incarcerated person, detainee, or resident directed toward another
- Written or verbal communication, gestures, such as simulated acts of a sexual nature
Staff/Prisoner Sexual Abuse
Sexual abuse of an incarcerated person, detainee, or resident by a staff member, contractor, or volunteer include all of the following, with or without consent of the incarcerated person, detainee, or resident:
- Contact between the penis and the vulva or the penis and the anus, including penetration, however slight
- Contact between the mouth and the penis, vulva, or anus
- Contact between the mouth and any body part where the staff member has the intent to abuse, arouse, or gratify sexual desire
- Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instruments, that is unrelated to official duties or where the staff member has the intent to abuse, arouse, or gratify sexual desire
- Any other intentional contact, either directly or through the clothing, of, or with, the genitalia, anus, groin, breast, inner thigh, or the buttocks, which contact is unrelated to official duties or where the staff member has the intent to abuse, arouse, or gratify sexual desire
- Any attempt, threat, or request, by a staff member to engage in any of the above activities
- Any display by a staff member of his or her uncovered genitalia, buttocks, or breast in the presence of a incarcerated person
- Voyeurism by a staff member, which is defined as an invasion of the privacy of a person by a staff member for reasons unrelated to official duties (e.g., peering at a person who is using a toilet in their cell to perform bodily functions, requiring a person to expose their buttocks, genitals, or breasts, or taking images of all or part of a person’s naked body or of a person performing bodily functions)
Staff/Prisoner Sexual Harassment
Sexual harassment of an incarcerated person, detainee, or resident by a staff member, contractor, or volunteer includes all of the following, with or without consent of the incarcerated person, detainee, or resident:
- Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions, of a derogatory or offensive sexual nature, by prison staff directed toward an incarcerated person
- Repeated verbal comments or gestures of a sexual nature to an incarcerated person by a staff member, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures
PREA regulations also cover some aspects of searches. Gender Non-conforming individuals must have an unclothed search conducted by officers of the gender with which the person has identified as the search preference as per “103 DOC 402 Inmate Identification Policy” except in exigent circumstances. Except for gender non-conforming individuals, cross-gender unclothed searches or cross-gender visual body cavity searches shall not be conducted except in “exigent circumstances” or when performed by medical practitioners. Should such a situation arise, permission from the Superintendent must be obtained before the search. The search must be documented in writing through a confidential incident report. “Exigent circumstances” are defined as circumstances, including institutional emergencies as outlined in the Department’s regulations or policies, or emergencies in general, under which the doing of an act, or the not doing of an act, would create an unacceptable risk to the safety of any person or property.
Preventive responsibilities of the DOC
The DOC must take all reasonable steps to prevent sexual assault.
Upon entering the Massachusetts prison system, the DOC should provide you with written and verbal orientation materials in English and/or Spanish on sexual abuse prevention and intervention. Those who do not speak English or Spanish, or who have a disability should receive special assistance, including translation services, to ensure that the policies are understood 103 DOC 519.04 (C)(1); 28 CFR 115.116 Another incarcerated person should not serve as your translator unless you want them to, or it is an emergency. 28 CFR 115.116.
All individuals entering the prison system or transferring to a new prison should be screened within 24 hours for a history /risk of sexual abuse, victimization, or offense. If a person has been identified as having been a victim or offender of sexual abuse or is at risk of being a victim or offender of sexual abuse, the Superintendent should carefully assess the immediate needs and housing assignment of the person, and the person should be referred to a mental health clinician for assessment, monitoring, and counseling. 103 DOC 519.04 (B)(1)
If you are worried about a potential assault
You can ask for help if you think you are going to be attacked, and the facility should take steps to protect you. 28 CFR 115.62. The legal standard for failing to protect is “deliberate indifference,” which means that the correctional staff knows there is a specific risk to a person’s safety and they fail in their duty to prevent future assaults.
Reporting a Sexual Assault
You have several different options for reporting a sexual assault:
- You can report it to ANY staff member, either verbally or in writing. 28 CFR 115.51(c)
- You can call the PREA Hotline: (508)422-3486. This number does not require a PIN, and all those in DOC custody should have unimpeded access. The number should also be listed in all DOC orientation manuals. 103 DOC 519.03(B). These calls will go to the Duty Station at DOC Headquarters and are for reporting purposes, not counseling.
- You can file a grievance. The facility cannot impose a time limit on when a person may submit a grievance that contains an allegation of sexual abuse. 28 CFR 115.52(b)(1). You cannot be required to submit the grievance to any staff member who is the subject of the complaint. 28 CFR 115.52(c)(1).
- You can report via the inner perimeter security (IPS) hotline. 103 DOC 519.03(B).
- You can make a report directly to your facility’s PREA Manager (whose name and contact information should be posted in various locations throughout your facility and listed in your orientation packet.) 103 DOC 519.03(B).
Note: You can make a report anonymously if you wish, and you can make a report on behalf of another incarcerated person. For someone not in prison to report a sexual assault that took place within the DOC, call (508) 422-3481.
There are some advantages to reporting PREA incidents using the grievance system. It creates a written record of the complaint, and it ensures a written response to your allegation. If you do file a grievance, make one copy to keep for yourself and one to send to the PREA Manager at your facility. If you cannot make copies of your grievance, you can ask for blank grievance forms and copy the grievance by hand (word for word). Send one of these handwritten copies to the PREA Manager, and keep the other.
Whatever method you choose to use for reporting, here are some tips:
- Describe what happened accurately
- Use clear and simple language
- Include date/time/location of incident
- Include witnesses (staff or other incarcerated individuals)
- Include any injuries you suffered
- Mention how this incident affected you (left you anxious, afraid, etc.)
- Note if there were any cameras available that might have recorded the incident
- Do not use any disrespectful, vulgar, or threatening language
The potential disadvantage to reporting a sexual assault is that if your report is deemed “unfounded” by the institution, and the DOC determines that you knowingly made false allegations, they could take disciplinary action against you. More information on retaliation is available in section 519.03 (page 9) of 103 CMR 519.
How should the DOC respond to my report?
Staff members are required to take all allegations of sexual abuse seriously, report these allegations to the shift commander (who in turn must report to the Superintendent), and follow all PREA procedures.
While an investigation is taking place, you should be separated from your attacker. 28 CFR 115.64(a); 103 DOC 519.06(A)(1). Responding staff should take you to be cleared by medical and mental health staff (detailed below), and an appropriate housing assignment should be made for you by the Superintendent. 103 DOC 519.06 (B)(8).
After a reported incident, the superintendent is required to review and assess all reports of allegations to ensure that the appropriate course of action has been followed. The superintendent shall notify the PREA Coordinator and ensure that a case file is promptly opened in the PREA Database. 103 DOC 519.07. All reports of sexual activity should be considered PREA until a full investigation indicates otherwise. 103 DOC 519.06(C)(1).
What medical/mental health care should I get?
After sexual abuse has taken place, the person you reported the abuse to should request that you be taken to the health services unit for medical and mental health care. The medical staff should examine you for injuries and refer you to Mental Health Services. 28 CFR 115.82(a); 103 DOC 519.06(B) You should get information about emergency contraception and sexually transmitted infections. 28 CFR 115.82(c). If you are a person who may have become pregnant from the assault, you may get a pregnancy test and access to pregnancy-related medical services. 28 CFR 115.83(d),(e).
You can get health care even if you do not name your attacker. 28 CFR 115.82(d) You can also request long-term counseling according to DOC 650 (Mental Health Services). If the Superintendent and medical staff think it is necessary, they should refer you to an outside hospital with a rape crisis unit. 103 DOC 519.0 6(B)(3). You should request to go to a hospital if you think you need to go. 28 CFR 115.21(c). If you are referred to a hospital, you will see a Sexual Assault Nurse Examiner (SANE) and get preventative treatment for HIV, sexually transmitted diseases, and pregnancy. 103 DOC 519.0 6(B)(4). You do not have to go to the hospital or see the medical staff unless you want to. You also have the right to refuse medical treatment at the prison. If you refuse treatment, you may be asked to sign a “Refusal of Treatment” form. 103 DOC 519.06(B)(7).
If you go to the hospital, you will receive advocacy services as part of the SANE examination. If you wish to continue to receive advocacy services upon your return from the hospital, a qualified agency staff member from the Department’s Victim Services Unit, a contracted advocate, or a community-based advocate should be coordinated by the Director of the Victim Services Unit. 103 DOC 519.06(B)(9). Most likely, you will be referred to the Boston Area Rape Crisis Center.
Whether or not you go to a hospital, you have the right to talk with an outside counselor. Those incarcerated in Massachusetts can speak with an outside counselor at the Boston Area Rape Crisis Center (BARCC). This person can provide emotional support and help you understand why trauma symptoms may result from what happened to you. They cannot open an independent investigation.
The BARCC hotline is open 9 a.m.-9 p.m. every day. From a DOC phone, dial *7732# to reach BARCC. Those held in Suffolk County should call (844) 774-7732. Those held in Norfolk County should call *44. These calls are not supposed to be monitored by the DOC or county, but be aware that the time you’re calling and the PIN you are using will be recorded. The facility should allow you as much confidentiality as possible to contact BARCC. 28 CFR 115.53(a). For longer-term support and to answer questions over time, you can also write to them at BARCC, 99 Bishop Allen Drive, Cambridge, MA 02139.
When deciding whether or not to seek or accept mental health services following an incident of sexual assault, keep in mind that the incident may cause unexpected emotional responses. Rape Crisis counselors and mental health practitioners can help you deal with feelings of anger, fear, helplessness, anxiety, and shame, all of which are very common following a sexual assault. If you find yourself withdrawing, experiencing depression, lashing out, having nightmares, having suicidal thoughts, or acting out in uncharacteristic ways, these things might be related to the incident. Accessing Rape Crisis or mental health services may help.
What will happen during an investigation and afterwards?
The DOC is required to initiate an investigation for all allegations of sexual abuse, assault, or sexual harassment. During the investigation, prison staff may collect evidence and interview anyone who might have seen the incident. The Superintendent may also request that the State Police investigate the incident. 103 DOC 519.06(C)(6). An investigative report should be issued within 30 days of your reporting the incident unless the PREA Manager at your facility extends this time limit. After the investigation, you should get information about the outcome and whether the allegations were substantiated, unsubstantiated, or unfounded. 28 CFR 115.73(a). If the allegations are substantiated, this means investigators determined that the allegation occurred. If the allegations are unfounded, this means the investigators determined the allegation did not occur. If the allegations are unsubstantiated, this means there was not enough evidence to make a final determination as to whether or not the allegation occurred.
The facility will keep records of your incident, possibly for many years. They will use the information to research and track their own policies and procedures and their compliance with the PREA standards. This information should remain private within the institution and should not be used against you in any way.
Can the facility take action against me for reporting?
Retaliation for reporting an incident, helping someone report an incident, or helping an investigation is not allowed. 103 DOC 519.07(C). During the investigation, you should be monitored for at least 90 days to see if there is any retaliation or attempted retaliation against you for reporting. This obligation to monitor terminates if the investigation determines that your allegation is unfounded. 103.DOC 519.07(C).
You might be sent to a different institution, which is not considered retaliation because it is supposedly for your protection. 28 CFR 115.67(b). Information about the incident could be transferred to Classification. 103 DOC 519.06(E).
Unfortunately, you might be put in segregation after reporting an assault, again supposedly for your protection. You should only be placed in segregation involuntarily if it is determined there are no available alternatives. If you are put in segregation, you should stay there only until the DOC arranges for you to be separated from your attacker. You should not be kept in segregation for longer than 30 days under normal circumstances. You should still have access to programs, privileges, education, and work opportunities to the extent possible. If the facility restricts such access, they must document it and document the reasons and duration of the restrictions. 28 CFR 115.43
When making a PREA complaint, it is extremely important to understand that you can be subject to discipline if the facility determines you have filed the report in bad faith, meaning that you could not have believed it to be true. 103 DOC 519.11. Unfortunately, the vast majority of PREA allegations made against prison staff are determined to be unfounded, meaning that the DOC concludes that the incident did not occur. We have no information on how often the DOC takes action against individuals whose allegations are determined to be unfounded (the DOC is not required to report this), but you should be aware of the possibility.
How does PREA apply to LGBTQI individuals?
PREA standards make clear that every individual must be screened to assess their risk for sexual victimization or abuse and that this screening shall consider whether the person is or is perceived to be gay, lesbian, bisexual, transgender, intersex, or gender nonconforming (individuals are not required, however, to disclose this information). The screening information should be used to inform housing, work, education, and program assignments with the goal of keeping individuals at higher risk of assault from being victimized. However, safety determinations must be made on an individualized basis. 28 CFR 115.41 and 28 CFR 115.42.
Specifically, the following protections exist:
- In making housing and programming assignments, the DOC should consider on a case-by-case basis whether a placement would ensure the person’s health and safety and whether the placement would present management or security problems. 28 CFR 115.42(c).
- Transgender and intersex individuals must be given the opportunity to shower separately from other people.28 CFR 115.42(f). 103 DOC 652.09(E).
- No search can be conducted for the sole purpose of determining an individual’s genital status. 28 CFR 115.15(e).
- All searches of transgender and intersex persons must be conducted professionally and with respect, and in the least intrusive manner possible, consistent with security needs. 28 CFR 115.15(f).
- A transgender or intersex person’s own views concerning his or her own safety should be given serious consideration. 28 CFR 115.42(e).
What should I do if the DOC is not following the rules?
- File a grievance
- If you think you might want to bring a court case regarding how the DOC handled the incident, you must follow grievance procedures to “exhaust administrative remedies.” 28 CFR 115.52.
- When you write your grievance, you should use the citation (103 DOC 519.__ or 28 CFR 115.__) and be as specific as you can be.
- If your attacker is a staff member, you do not have to give your grievance to him or her, and the facility should make sure that your grievance is not referred to your attacker to be resolved. 28 CFR 115.52I.
- If your grievance is denied, you do not get results from it, or you do not get a response, be sure to appeal it.
- Keep copies of everything you submit, even if you have to hand-write them.
- Write to the Superintendent
- Ask to talk to the PREA Manager or write to them. Agencies are required to appoint someone to be the PREA Manager under 28 CFR 115.11. You should be able to find the PREA Manager where you are incarcerated by reading your facility’s orientation handbook.
- Talk to a PREA auditor. Each facility is audited every three years for compliance with PREA standards. Before a PREA auditor’s visit, their name and contact information is posted throughout the prison. The auditor seeks input from incarcerated individuals regarding their experience with PREA policies and speaks to those who have contacted them in advance. Before speaking with an auditor, you should inquire about the confidentiality of the information you share; this information is not confidential in some circumstances.
There is some complication in pursuing legal action against an institution for not complying with the PREA standards. The Department of Justice has said that because of the dramatic costs of implementing these new standards, PREA does not require the federal government to enforce compliance with these standards. Therefore, you will need to bring your own case if you think the institution has failed to follow the standards. PLS cannot represent you in this type of case, but we can give you information about lawyer referral services or give you basic information about getting started filing your own pro se court case.
Just Detention International
Every day, JDI receives letters from survivors behind bars telling their stories and asking for help. JDI responds with a Survivor Packet filled with information to help the survivor begin the healing process and connect with local service providers. Each packet includes an introductory letter, a list of local resources, fact sheets, publications about recovery from sexual abuse, and a letter of hope from another survivor.
Included in the Survivor Packet is Hope for Healing, written by JDI to address the unique experiences of prison rape survivors. This self-help manual details the emotional concerns common to sexual assault survivors provides information about Rape Trauma Syndrome and spells out the rights of prison sexual assault survivors.
Write to JDI at 3325 Wilshire Boulevard, Suite 340, Los Angeles, CA 90010 or 1900 L St. NW, Suite 601, Washington, DC 20036.
If you have additional questions or concerns that you would like assistance with, please call us during our intake hours on Monday (or Tuesday if Monday is a holiday):
1:00pm – 4:00pm
or write us a letter to:
50 Federal Street
Boston, MA 02110
For more information about how to reach us, please visit the contact us page
PRISONERS’ LEGAL SERVICES
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