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

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 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 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 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 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

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, 117 STAT. 974 PUBLIC LAW 108-79-SEPT. 4, 2003 42 use 15602.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

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 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 Band 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 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;

PUBLIC LAW 108-79-SEPT. 4, 2003 117 STAT. 975

(6) increase the accountability of prison officials who f ail 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. NATIONAL PRISON RAPE STATISTICS, DATA, 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 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 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 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 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 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 117 STAT.976 Confidentiality. PUBLIC LAW 108-79-SEPT. 4, 2003 year shall not preclude its selection for sampling in any subsequent year.

(5) SURVEYS. In 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.

c) 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 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

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 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. 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

sub-grants, 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; PUBLIC LAW 108-79-SEPT. 4,2003 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 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 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

(ij) 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)

(1) review the extent of the budgetary circumstances affecting the

State generally and describe how those circumstances relate to the

State's prisons;

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

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 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) 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 appointment Deadline.

of all the members are made , the President 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 Commission 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 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;

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 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) 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 (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;

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 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 r educing 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 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

(ill) the resolution of prison rape complaints by

prison officials and Federal, State, and lo cal investigation and prosecution authorities; and 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 recommended 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 deliberations of the Commission. The Commission shall consult with accreditation

organizations responsible f or 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, sup plies, and administrative assistance.

(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

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.

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.

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) 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 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;

(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.

or

j

117 STAT. 988

PUBLIC 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 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

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