BILL ANALYSIS Ó
SB 716
Page 1
Date of Hearing: August 13, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 716 (Lara) - As Amended: May 28, 2013
SUMMARY : Requires prisons, jails, juvenile halls, and other
custodial facilities, including private confinement companies,
to adopt federal policies and procedures related to sexual
assault in prison in order to create a safe environment free
from sexual abuse for inmates or arrestees, including those
inmates or arrestees subject to a United States Immigration and
Customs Enforcement hold. Specifically, this bill :
1)Repeals several sections in the Sexual Abuse in Detention
Elimination Act of 2005.
2)States that each facility shall adopt policies and procedures
implementing the United States Department of Justice's (US
DOJ) National Standards to Prevent, Detect, and Respond to
Prison Rape.
3)Exempts a private confinement company with a facility that
only houses detainees under contract with the United States
Department of Homeland Security from this requirement.
4)Requires the adoption of these policies or procedures to take
place no later than July 1, 2014, with full implementation of
the policies or procedures completed no later than July 1,
2015.
5)Provides that on or before July 1, 2015, the agency,
department, or company shall certify in writing to the Board
of State and Community Corrections (BSCC) that it has adopted
policies or procedures as required, and shall transmit its
policies and procedures electronically to BSCC.
6)Requires BSCC to:
a) Make the policies and procedures of each agency,
department, and company available to the public on an
SB 716
Page 2
Internet website, in a timely manner; and,
b) Provide a means for an interested member of the public
to raise substantial and specific concerns about the
material insufficiency of the published policies or
procedures of any agency, department, or company. Upon
receipt of these concerns from a member of the public, the
board shall have 90 days to review the relevant policies or
procedures. Any concerns by the public shall be raised
with BSCC before July 1, 2015.
7)Creates a procedure for BSCC to notify an agency, department,
or company in writing that its policies or procedures do not
meet the requirements of this bill and that it intends to
reject the certification.
a) An agency, department, or company receiving this
notification shall have 180 days from the receipt of the
written notice to adequately modify the policies and
procedures.
b) If, after the 180-day period, BSCC finds that the
policies and procedures are still inadequate, it shall
reject the certification.
8)Provides that audits of facilities shall be conducted on a
three-year cycle, and each agency, department, or company,
beginning July 1, 2015, shall ensure that each facility
operated by it is audited at least once every three years.
9)Mandates BSCC to publish audit procedures consistent with the
requirements under federal regulations.
10)Requires BSCC to certify auditors, including, but not limited
to, auditors who work directly with BSCC, and maintain a
publicly available list of California-certified auditors. At
its discretion, BSCC may rely on an auditor's certification by
US DOJ as evidence that the auditor is qualified to perform
audits.
11)Requires BSCC to produce a standard audit report format or
identify an existing audit report format prior to July 1,
2015. An auditor shall, within 60 days of an audit or the
completion of a corrective action plan, complete a written
audit report for each facility audited using the standard
SB 716
Page 3
report format. The auditor will forward the report to BSCC,
which shall make the reports available to the public on an
Internet website.
12)Provides that BSCC shall identify a public means by which
BSCC can receive an individual's report of substantial and
specific concerns about a facility.
13)Creates a procedure for expedited audits of facilities
suspected of a pattern and practice of sexual abuse, and
provides the agency, department or company with a reasonable
opportunity to respond before an expedited audit can be
required.
14)Establishes a system of data collection, review and retention
requiring all agencies, departments or companies to collect
accurate, uniform data for every allegation of sexual abuse.
15)Requires an agency or entity that contracts with a facility
that is not covered under the provisions of this bill to
modify its contract or agreement to incorporate the policies
or procedures implementing US DOJ's National Standards to
Prevent, Detect, and Respond to Prison Rape.
16)States that any new contract or agreement between an agency,
department or company with a facility, as defined, shall
incorporate the policies or procedures implementing US DOJ's
National Standards to Prevent, Detect, and Respond to Prison
Rape.
17)Establishes the following financial penalties for an entity
that fails to provide certification of compliance, fails to
have its facility or facilities audited in a timely manner, or
fails an audit after being given an opportunity to correct any
deficiencies:
a) Public entities will be subject to a reduction of
BSCC-administered grant renewals or awards, or
ineligibility for grants or rewards until compliance is
achieved.
b) Private entities will be assessed a $500 penalty on the
first day the certification or audit is due or a failed
audit is reported to BSCC, and an additional $1,000 penalty
every seven days thereafter until it provides a valid
SB 716
Page 4
certification or completes successful audits of any
facilities that are delinquent for or have failed an audit.
BSCC will assess and collect the penalty.
EXISTING LAW :
1)Mandates California Department of Corrections and
Rehabilitation (CDCR) to review informational handbooks
regarding sexual abuse in detention published by outside
organizations, and upon approving the content thereof,
handbooks provided by one or more outside organizations shall
be made available to inmates and wards. (Penal Code Section
2635.)
2)Requires CDCR to institute the following practices to prevent
sexual violence and promote inmate and ward safety:
a) Inmate classification and housing assignment procedures
shall take into account specified risk factors that can
lead to inmates and wards becoming the target of sexual
victimization or of being sexually aggressive toward
others; and,
b) Ensure that staff members intervene when an inmate or
ward appears to be the target of sexual harassment or
intimidation. (Penal Code Section 2636.)
3)States that CDCR shall ensure that its protocols for
responding to sexual abuse include all of the following:
a) The safety of an inmate or ward who alleges that he or
she has been the victim of sexual abuse shall be
immediately and discreetly ensured. Staff shall provide
the safest possible housing options to inmates and wards
who have experienced repeated abuse. Housing options may
include discreet institution transfers;
b) Inmates and wards who file complaints of sexual abuse
shall not be punished, either directly or indirectly, for
doing so. If a person is segregated for his or her own
protection, segregation must be nondisciplinary;
c) Any person who knowingly or willfully submits inaccurate
or untruthful information in regards to sexual abuse is
punishable pursuant to CDCR regulations;
SB 716
Page 5
d) Under no circumstances is it appropriate to suggest that
an inmate should fight to avoid sexual violence or to
suggest that the reported sexual abuse is not significant
enough to be addressed by staff;
e) Staff shall not discriminate in their response to
inmates and wards who are gay, bisexual, or transgender who
experience sexual aggression, or report that they have
experienced sexual abuse; and,
f) Retaliation against an inmate or ward for making an
allegation of sexual abuse shall be strictly prohibited.
(Penal Code Section 2637.)
4)Requires health practitioners to ask whether the patient has
experienced sexual abuse whenever such abuse may be indicated
by trauma, sexually transmitted diseases, pregnancy or chronic
pain. [Penal Code Section 2638(b).]
5)States that confidential mental health counseling intended to
help victims cope with the aftermath of abuse shall be offered
to those who report sexual abuse. [Penal Code Section
2638(d).]
6)Requires CDCR to ensure that certain procedures are performed
in the investigation and prosecution of sexual abuse
incidents. (Penal Code Section 2639.)
7)States that CDCR shall keep statistics on the sexual abuse of
inmates and wards. Sexual abuse incidents shall not be
classified as "other" nor simply included in a broader
category of general assaults. [Penal Code Section 2640(a).]
8)Specifies that statistics shall include whether the abuse was
perpetrated by a staff member or other inmate, the results of
the investigation and any resolution of the complaint by
department officials and prosecution authorities. The data
shall be made available to the Office of the Sexual Abuse in
Detention Elimination Ombudsperson. [Penal Code Section
2640(b).]
9)Creates the Office of the Sexual Abuse in Detention
Elimination Ombudsperson within the Office of the Inspector
General to ensure the impartial resolution of inmate and ward
SB 716
Page 6
sexual abuse complaints. [Penal Code Section 2641(a).]
10)States that the ombudsperson shall have the authority to
inspect all of CDCR's institutions and to interview all
inmates and wards. [Penal Code Section 2641(b).]
11)Requires CDCR to allow all inmates and wards to write
confidential letters regarding sexual abuse to the
ombudsperson. [Penal Code Section 2641(c).]
12)Provides that information about how to confidentially contact
the ombudsperson shall be clearly posted in all of CDCR's
institutions. [Penal Code Section 2641(d).]
13)Requires the Office of the Inspector General to investigate
reports of the mishandling of incidents of sexual abuse, while
maintaining the confidentiality of the victims of sexual
abuse, if requested by the victim. [Penal Code Section
2641(e).]
EXISTING FEDERAL LAW :
1)Establishes the Prison Rape Elimination Act of 2003 (PREA)
which addresses various issues related to the sexual abuse of
inmates in prison. The Act establishes a zero-tolerance
standard for prison rape, requiring all adult prisons and
jails, lockups, community confinement facilities, juvenile
facilities and immigrant detention centers to fully comply
with the regulations aimed at preventing, detecting and
responding to all forms of sexual abuse and sexual harassment.
[42 U.S.C. Section 15601 et. seq.]
2)Provides that a state whose governor does not certify full
compliance with PREA standards is subject to the loss of five
percent of any US DOJ grant funds that it would otherwise
receive for prison purposes, unless the governor submits an
assurance that such five percent will be used only for the
purpose of enabling the state to achieve and certify full
compliance with the standards in future years. [42 U.S.C.
Section 15607(c).]
3)Establishes the National Prison Rape Elimination Commission to
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, and to recommend
SB 716
Page 7
to the Attorney General national standards for enhancing the
detection, prevention, reduction, and punishment of prison
rape. [42 U.S.C. Section 15606(d)(1), (e)(1).]
4)Directs the Attorney General to publish a final rule adopting
national standards for the detection, prevention, reduction,
and punishment of prison rape based upon the independent
judgment of the Attorney General, after giving due
consideration to the recommended national standards provided
by the National Prison Rape Elimination Commission and being
informed by such data, opinions, and proposals that the
Attorney General determines to be appropriate to consider.
[42 U.S.C. Section 15607(a)(1)-(2).]
5)Requires facilities to develop a written institutional plan to
coordinate actions taken in response to an incident of sexual
abuse among staff first responders, medical and mental health
practitioners, investigators, and facility leadership. [28
CFR Section 115.365(a).]
6)Creates disciplinary sanctions up to and including termination
for staff violating agency sexual abuse or sexual harassment
policies. [28 CFR Section 115.376(a).]
7)Requires the agency to collect accurate, uniform data for
every allegation of sexual abuse at facilities under its
direct control using a standardized instrument and set of
definitions and to aggregate the incident-based sexual abuse
data at least annually. Upon request, the agency shall
provide all such data from the previous calendar year to the
Department of Justice no later than June 30. [28 CFR Section
115.387(a), (b) and (d).]
8)Requires the agency to conduct audits of each facility
operated by the agency, or by a private organization on behalf
of the agency at least once during each three-year period,
beginning on August 20, 2013. During each one-year period
starting on August 20, 2013, the agency shall ensure that at
least one-third of each facility type operated by the agency,
or by a private organization on behalf of the agency, is
audited. [28 CFR Section 115.401(a)-(b).]
FISCAL EFFECT : Unknown
COMMENTS :
SB 716
Page 8
1)Author's Statement : According to the author, "The Sexual
Abuse in Detention Elimination Act 2013 (SADEA 2013) will
update existing state law to require that confinement agencies
create a safe and humane environment, free from abuse for
inmates or arrestees, including those inmates or arrestees
with a United States Immigration and Customs Enforcement hold
in the state."
2)Background : According to a 2006 report conducted by UC
Irvine's Center for Evidence-Based Corrections, "Research on
sexual assault documents its wide-reaching impact on
corrections: sexual assault in prison contributes to the
spread of sexually transmitted diseases, leads to or
exacerbates mental health problems, and increases violence in
the form of defense or retaliation. Moreover, victims of
sexual assault often require an extensive and therefore costly
institutional response, including: medical examinations,
investigations, and psychological treatment often continuing
long after the incident occurs." [Sumner and Matsuda,
"Shining the Light in Dark Corners: An Overview of Prison
Rape Elimination Legislation and Introduction to Current
Research," (March 2006) UC Irvine Center for Evidence-Based
Corrections, Vol. 1, Issue 2, pg. 1.]
The report points to the Legislative Analyst's Office findings
that "California experiences almost twice the number of
officially reported inmate assaults as Texas and nearly triple
the assaults in the Federal system." (Id. at pg. 3.)
Specifically, the federal system received 1.7 officially
reported inmate assaults per 100 inmates, Texas received 2.5
and Florida received 4.0. California received the highest
proportion of reported inmate assaults at 4.4 per 100 inmates
(indicating 7,210 individual reports in California that year).
(Ibid.)
More recent statewide data from the CDCR identified a
decreasing number of substantiated claims of inmate on inmate
nonconsensual sexual acts each year from 2007 to 2011 (eight
in 2007, to two in 2011) and a relatively low rate of
substantiated claims of inmate on inmate abusive sexual
contact, with the exception of 2008, in which there were seven
substantiated claims. In terms of substantiated staff sexual
misconduct, there have been between one and three incidents
each year for the past five years, as well as between a dozen
SB 716
Page 9
and two dozen unsubstantiated claims for each year. 2012 has
not yet been reported. (CDCR Summary of Sexual Violence, as
reported to the Bureau of Justice Statistics, 2007-2012.)
3)Prison Rape Elimination Act of 2003 : PREA was signed by
President George W. Bush on September 4, 2003. The purpose of
PREA was 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. Among other things, PREA mandated national
standards to prevent sexual violence in prison; increased the
level of training required of prison staff; increased
screenings of inmates and guards; and made it easier to report
rape, requiring agencies to provide at least one way for
inmates to report abuse to an external entity and allowing
inmates to remain anonymous upon request. PREA also made data
more available to prison administrators, and established the
National Prison Rape Elimination Commission (NPREC) to
evaluate the extent of the problem and issue recommendations.
After years of research and evaluation, in 2009, the NRPEC
issued a report with draft standards with findings,
conclusions and recommendations. Draft standards implementing
PREA were officially released in February, 2011, and final
standards were released by US DOJ in May, 2012. There are
four sets of standards for different types of facilities: (a)
adult prisons and jails, (b) lockups, (c) community
confinement facilities, and (d) juvenile facilities. Each
set of standards is designed to address the problems specific
to that type of facility and the population inhabiting that
facility.
PREA standards became applicable to federal facilities
immediately and to state and local facilities on August 20,
2012. The three-year audit cycle is set to begin one year
later, on August 20, 2013. Governors of each state must
certify compliance or accept a 5% reduction in federal grant
funding for each year the state's agencies fail to comply. US
DOJ is scheduled to publish a list of noncompliant grant
recipients on September 30, 2013, and October 1, 2013 is
projected to be the first date on which federal grant funds
may be impacted (fiscal year 2014).
4)Sexual Abuse in Detention Elimination Act of 2005 : In 2005,
SB 716
Page 10
the California Legislature passed the Sexual Abuse in
Detention Elimination Act [AB 550 (Goldberg), Chapter 303,
Statutes of 2005] to prepare the state for the "dramatically
increased level of federal scrutiny" PREA was expected to
bring and to "raise awareness on the issue of prisoner rape
and to bring to light the fact that this is not a marginal
issue." [Sen. Com. on Public Safety, analysis on Assem. Bill
No. 550 (2005-2006 Reg. Sess. June 28, 2005, p. 8.] The Act
contained several important provisions, creating new duties
such as providing training for current and future corrections
staff regarding sexual abuse of inmates and wards and
providing all inmates and wards with a handbook describing
sexual conduct policies and reporting mechanisms. Additional
measures included taking into account risk factors that may
lead to victimization, assigning at least one female officer
per shift to any housing unit in which female detainees may be
observed unclothed, and establishing the role of Office of
Sexual Abuse in Detention Elimination Ombudsperson to ensure
the impartial resolution of inmate and ward sexual abuse
complaints.
This bill repeals most of the provisions in the Sexual Abuse in
Detention Elimination Act of 2005 but retains the provisions
on data collection, the ombudsperson and investigation by the
Office of the Inspector General. This bill establishes the
Sexual Abuse in Detention Elimination Act of 2013 which
requires all confinement facilities to adopt policies and
procedures implementing US DOJ's National Standards to
Prevent, Detect, and Respond to Prison Rape, developed
pursuant to PREA. This bill also contains similar
requirements to PREA such as a certification process, audits
every three years, and financial penalties for non-compliance.
This bill specifies that an audit conducted in compliance
with PREA regulations shall suffice for the purposes of this
bill, avoiding the need for multiple audits.
5)National Standards to Prevent, Detect and Respond to Prison
Rape : On May 17, 2013, US DOJ released a final rule to
prevent, detect and respond to sexual abuse in confinement
facilities, in accordance with PREA. (See USDOJ's Web site,
(as of July 24, 2013).] This rule
sets national standards for protecting inmates in confinement
facilities. The standards have three clear goals: to
prevent, detect and respond to sexual abuse. In addition to
SB 716
Page 11
the standards listed below, the final rule requires that each
facility be audited every three years to assess compliance.
a) Prevent: To prevent sexual abuse, the standards
require, among other things, that facilities:
i) Develop and maintain a zero-tolerance policy
regarding sexual abuse;
ii) Designate a PREA point person to coordinate
compliance efforts;
iii) Screen inmates for risk of being sexually abused
or sexually abusive, and use screening information to
inform housing, bed, work, education and program
assignments;
iv) Develop and document a staffing plan that provides
for adequate levels of staffing and, where applicable,
video monitoring;
v) Train employees on their responsibilities in
preventing, recognizing and responding to sexual abuse;
vi) Perform background checks on prospective employees
and not hire abusers;
vii) Prevent juveniles from being housed with adult
inmates or having unsupervised contact with adult
inmates in common spaces;
viii) Ban cross-gender pat-down searches of female
inmates in prisons and jails and of both male and
female residents of juvenile facilities;
ix) Incorporate unique vulnerabilities of lesbian,
gay, bisexual, transgender, intersex and gender
nonconforming inmates into training and screening
protocols;
x) Enable inmates to shower, perform bodily
functions and change clothing without improper viewing
by staff of the opposite gender;
SB 716
Page 12
xi) Restrict the use of solitary confinement as a
means of protecting vulnerable inmates; and,
xii) Enter into or renew contracts only with outside
entities that agree to comply with the standards.
b) Detect: To detect sexual abuse, the standards require,
among other things, that facilities:
i) Make inmates aware of facility policies and inform
them of how to report sexual abuse;
ii) Provide multiple channels for inmates to report
sexual abuse, including by contacting an outside entity,
and allow inmates to report abuse anonymously upon
request;
iii) Provide a method for staff and other third parties
to report abuse on behalf of an inmate;
iv) Develop policies to prevent and detect any
retaliation against those who report sexual abuse or
cooperate with investigations; and,
v) Ensure effective communication about facility
policies and how to report sexual abuse with inmates with
disabilities and inmates who are limited English
proficient.
c) Respond: To respond to sexual abuse, the standards
require, among other things, that facilities:
i) Provide timely and appropriate medical and mental
health care to victims of sexual abuse;
ii) Where available, provide access to victim advocates
from rape crisis centers for emotional support services
related to sexual abuse;
iii) Establish an evidence protocol to preserve evidence
following an incident and offer victims no-cost access to
forensic medical examinations;
iv) Investigate all allegations of sexual abuse promptly
and thoroughly, and deem allegations substantiated if
SB 716
Page 13
supported by a preponderance of the evidence;
v) Discipline staff and inmate assailants
appropriately, with termination as the presumptive
disciplinary sanction for staff who commit sexual abuse;
vi) Allow inmates a full and fair opportunity to file
grievances regarding sexual abuse so as to preserve their
ability to seek judicial redress after exhausting
administrative remedies; and,
vii) Maintain records of incidents of abuse and use those
records to inform future prevention planning.
6)Argument in Support : According to Legal Services for
Prisoners with Children , "Sexual violence is a rampant problem
across all correctional settings in California, causing
extreme psychological trauma and undue punishment beyond that
of a person's incarceration. The enactment of SB 716 would
begin the process of putting California in line with many of
the carefully considered federal guidelines that are in place
to protect prisoners from these sorts of attacks both by
guards and other prisoners. In doing so, this bill would
establish a number of important protections set forth in
Section 28 of the Code of Federal Regulations to keep people
from finding themselves facing further punitive measures -
including confinement in administrative segregation - for
their own protection.
"In addition, SB 716 would ensure regular audits of correctional
facilities regarding their policies every three years. It is
essential to hold agencies and departments fully accountable
for the sexual violence that occurs in their facilities, and
SB 716 sets in motion oversight procedures that California
correctional facilities are in desperate need of."
7)Argument in Opposition : The California State Sheriffs'
Association writes, "Additional regulations in excess of
federal standards are redundant, and all correctional
institutions currently implement standards for the detection,
prevention and punishment of rape in correctional facilities.
Mandating a system of data collection, review and retention,
and requiring all agencies, departments to collect accurate,
uniform data for every allegation of sexual abuse and maintain
collected data for at least 10 years after the date of initial
SB 716
Page 14
collection will create significant ongoing costs to entities,
which do not have the budget or manpower to execute those
burdensome requirements.
"Finally, we are concerned that this measure will divert focus
and resources away from the BSCC, stalling the implementation
of data collection for public safety realignment and providing
needed assistance in the construction of newer and safer
facilities pursuant to AB 900 and SB 1022.
8)Prior Legislation :
a) AB 382 (Ammiano), of the 2009-10 Legislative Session,
would have added the sexual orientation and gender identity
of the inmate or ward, as specified, to the list of risk
factors CDCR must consider when classifying inmates and
wards in order to prevent inmate and ward sexual violence
and to promote inmate and ward safety. AB 382 was vetoed.
b) AB 550 (Goldberg), Chapter 303, Statutes of 2005,
established the Sexual Abuse in Detention Elimination Act,
requiring the CDCR to adopt policies, practices, and
protocols to protect inmates from sexual abuse.
REGISTERED SUPPORT / OPPOSITION :
Support
Asian Law Alliance
Betty T. Yee, Member of the State Board of Equalization
California Attorneys for Criminal Justice
California Immigrant Policy Center
California Public Defenders Association
Legal Services for Prisoners with Children
Just Detention International
Mexican American Legal Defense and Educational Fund
Opposition
California State Sheriffs Association
Chief Probation Officers of California
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744
SB 716
Page 15