[108th Congress Public Law 79]
[From the U.S. Government Printing Office]
[DOCID: f:publ079.108]
[[Page 971]]
PRISON RAPE ELIMINATION ACT OF 2003
[[Page 117 STAT. 972]]
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. <<NOTE: Sept. 4, 2003 - [S. 1435]>>
Be it enacted by the Senate and House of Representatives of
the <<NOTE: Prison Rape Elimination Act of 2003.>> United States of
America in Congress assembled,
SECTION 1. <<NOTE: 45 USC 15601 note.>> 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. <<NOTE: 42 USC 15601.>> 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 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 2000, 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 B and
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
homeless 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 sexual 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 prisoners' 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
Section 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 significant 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, investigation, and prosecution; prison construction,
[[Page 117 STAT. 974]]
maintenance, and operation; race relations; poverty;
unemployment 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
HIV, AIDS, tuberculosis, hepatitis B and 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 victims, 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,
tuberculosis, hepatitis B and C, and other diseases,
contributing to increased health and medical
expenditures throughout the Nation;
(C) the rate of post-traumatic stress disorder,
depression, suicide, and the exacerbation of existing
mental illnesses 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. <<NOTE: 42 USC 15602.>> 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
detection, prevention, reduction, and punishment of prison rape;
(4) increase the available data and information on the
incidence of prison rape, consequently improving the management
and administration of correctional facilities;
(5) standardize the definitions used for collecting data on
the incidence of prison rape;
[[Page 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 prosecution; prison construction,
maintenance, and operation; race relations; poverty;
unemployment; and homelessness; and
(9) reduce the costs that prison rape imposes on interstate
commerce.
SEC. 4. <<NOTE: 42 USC 15603.>> NATIONAL PRISON RAPE STATISTICS, DATA,
AND RESEARCH.
(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
comprehensive 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 characteristics 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
subsection (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 Statistics
shall solicit views from representatives of the following: State
departments of correction; county and municipal jails; juvenile
correctional facilities; former inmates; victim 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
of 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 conducting 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 117 STAT. 976]]
year shall not preclude its selection for sampling in any
subsequent year.
(5) Surveys.--In <<NOTE: Confidentiality.>> carrying out the
review and analysis under paragraph (1), the Bureau shall, 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 shall 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.--
(1) Establishment.--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 shall 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 shall 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 shall be to collect 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 shall 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 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 written 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) <<NOTE: Deadline.>> In general.--Not later than June 30
of each year, 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
representative 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
established 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
differences may include the mission, security level, size, and
jurisdiction under which the prison operates. For each such
adjustment made, the Attorney General shall identify 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 similar 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 entity the
Attorney General deems appropriate.
[[Page 117 STAT. 978]]
(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. <<NOTE: 42 USC 15604.>> PRISON RAPE PREVENTION AND PROSECUTION.
(a) Information and Assistance.--
(1) <<NOTE: Establishment.>> 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) <<NOTE: Deadline.>> 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. <<NOTE: 42 USC 15605.>> 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 117 STAT. 979]]
(B) developing and utilizing analyses of prison
populations 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
(including 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
appropriate 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
not 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 accompanied
by such information as the Attorney 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
(ii) will consider adopting all national
prison rape standards that are promulgated under
this Act after such date;
(B) specify with particularity the preventative,
prosecutorial, 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)--
(i) review the extent of the budgetary
circumstances affecting the State generally and
describe how those circumstances relate to the
State's prisons;
[[Page 117 STAT. 980]]
(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) <<NOTE: Deadline.>> 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. <<NOTE: 42 USC 15606.>> 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) <<NOTE: President.>> 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 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 matters 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 of the 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) <<NOTE: Deadline.>> Time for initial appointments.--The
appointment of the members shall be made not later than 60 days
after the date of enactment of this Act.
(6) <<NOTE: Deadline.>> Vacancies.--A vacancy in the
Commission shall be 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) <<NOTE: Deadline. President.>> Chairperson.--Not later
than 15 days after appointments of all the members are made, the
President shall appoint a chairperson for the Commission from
among its members.
(2) Meetings.--The Commission shall meet at the call of the
chairperson. <<NOTE: Deadline.>> The initial meeting of the
Commission shall 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 Commission
shall constitute a quorum to conduct business, but the
Commission may establish a lesser quorum for conducting hearings
scheduled 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
comprehensive 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 117 STAT. 982]]
(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
HIV;
(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
conducting 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) <<NOTE: Deadline.>> Distribution.--Not later
than 2 years after the date of the initial meeting of
the Commission, the Commission shall submit a report on
the study carried out under this subsection to--
(i) 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 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
evidence for use in an investigation of the
circumstances 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;
(I) the timely and comprehensive investigation of
staff sexual misconduct involving rape or other sexual
assault on inmates;
(J) ensuring the confidentiality of prison rape
complaints 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 complaints 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
(iii) the resolution of prison rape complaints
by prison officials and Federal, State, and local
investigation and prosecution authorities; and
[[Page 117 STAT. 984]]
(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
recommended standard that would impose substantial additional
costs compared to the costs presently expended by Federal,
State, and local prison authorities.
(f) 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 deliberations of the Commission. The Commission
shall consult with accreditation organizations responsible for the
accreditation of Federal, 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
developing standards related to prison rape.
(g) Hearings.--
(1) In general.--The Commission shall hold public 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 head 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 rates 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 General shall
provide reasonable and appropriate office space, supplies, and
administrative assistance.
(j) Contracts for Research.--
(1) National institute of justice.--With a \2/3\ affirmative
vote, the Commission may select nongovernmental researchers and
experts to assist the Commission in carrying out its duties
[[Page 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 \2/3\ 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. <<NOTE: Deadlines. 42 USC 15607.>> 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
[[Page 117 STAT. 986]]
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) <<NOTE: Deadline.>> 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) <<NOTE: Procedures.>> 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 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. <<NOTE: 42 USC 15608.>> REQUIREMENT THAT ACCREDITATION
ORGANIZATIONS 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) <<NOTE: Deadlines.>> Requirements.--To be eligible to receive
Federal grants, 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. <<NOTE: 42 USC 15609.>> DEFINITIONS.
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
incarcerated 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 criminal
charges; or
(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
placement.
[[Page 117 STAT. 988]]
(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 jail or 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 of the 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 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:
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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.
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