[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1435 Enrolled Bill (ENR)]
S.1435
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
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,

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(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:

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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
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,
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.

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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;
(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.

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(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 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.--
(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 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) 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.
(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.

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(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.

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(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;
(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;
(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).

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(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
(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 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 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 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. 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;
(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) 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;
(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
(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 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.

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(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 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.
(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.

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ACCREDITATION STANDARDS.
(a) Eligibility for Federal Grants.--Notwithstanding any other
provision of law, an organization responsible for the accreditation of
Federal, State, local, or private prisons, jails, or other penal
facilities may not receive any new Federal grants during any period in
which such organization fails to meet any of the requirements of
subsection (b).
(b) Requirements.--To be eligible to receive Federal 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.

7687798cc994b254f0338e784dfc726bd1ee67b05c453dbdfd56ba75db47c4ca

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.
(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
(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.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

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Prison Rape Elimination Act of 2003 — S. 1435

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