The history and significance of the Prison Rape Elimination Act
By: JaNan Thomas
RMS General Counsel
The Prison Rape Elimination Act (PREA), codified at 34 U.S.C. § 30301, et seq., was signed into law by President George W. Bush in 2003 with the stated goal of eradicating prisoner rape in correctional facilities in this country. National PREA standards establish requirements for prevention, investigation, and reporting of sexual assaults in correctional facilities, as well as direct the availability of resources for victims. Each state is required to certify compliance with PREA standards every three years or risk the loss of federal funding. Arkansas has begun the process required to certify compliance through an independent audit of each unit of the Arkansas Department of Corrections. Independent audits for PREA compliance in county jails that house “309” inmates are also required for purposes of certification by the state. Failure to perform or pass a PREA audit will result in the withdrawal of 309 inmates from the county. The independent audits required may represent a significant cost to Arkansas counties in 2025 and beyond. Therefore, as counties budget and plan for the coming years, it is helpful to understand the history and significance of the act and the reason for the audits.
The roots of PREA can be traced back to reports and studies during the 1990s that highlighted alarming statistics of the incidence of sexual violence in correctional facilities. The Bureau of Justice Statistics reported that more than 200,000 individuals experience sexual violence in prisons and jails annually. In 2001, the National Prison Rape Elimination Commission was established in response. The commission investigated the prevalence of sexual assault in detention facilities and made recommendations for its elimination. Comprised of experts in criminal justice, mental health, and civil rights, the commission conducted research and heard testimony from survivors, correctional staff, and advocates.
In 2003, these efforts culminated in the passage of the Prison Rape Elimination Act. The law had several key objectives: to provide for the federal government to collect data on prison rape, to create a zero-tolerance policy towards sexual assault in detention facilities, and to establish standards for prevention, detection, and response to incidents of sexual violence. The act mandates the establishment of a comprehensive framework to prevent, detect, and respond to incidents of sexual assault in prisons and jails. The guidelines call for the adoption of appropriate policies, resources, and screening tools, as well as for implementation of additional hiring and training practices for those employed in the facility or persons who may interact with inmates in the facility. An audit would be a comprehensive review of these policies and practices within each facility, as well as an investigation into the statistics related to sexual violence and investigation in the facility.
The guidelines established by PREA represent comprehensive action against sexual violence in correctional facilities. At the core of PREA is the recognition that all individuals deserve to be treated with dignity and respect and that sexual violence in prisons poses a risk to victims and to the overall security of detention facilities. In addition, PREA promotes accountability by requiring the collection of data and the establishment of national standards. PREA encourages transparency regarding the prevalence of sexual violence and the measures taken to combat it. By providing a safer environment and access to support services, PREA helps victims and contributes to reducing recidivism and promoting rehabilitation. Finally, PREA guidelines ensure that victims have access to medical and mental health services and confidential reporting mechanisms. Empowering survivors to come forward and seek help is essential for recovery and for fostering a culture of zero tolerance towards sexual violence.
The scope of PREA extends to various levels of the correctional system in the United States, impacting both public and private facilities. All federal prisons and detention centers are obligated to comply with PREA. Each of the 50 states must adopt PREA guidelines for their prison systems. To be considered PREA compliant, states are expected to require compliance by any facility (including county jails) that holds state inmates. Private prisons that contract with federal or state governments to house inmates are also required to comply with PREA. Although the primary focus of PREA is on adult correctional facilities, guidelines also apply to juvenile detention centers, community correctional programs, and local law enforcement agencies responsible for housing individuals pre-trial or during short-term detentions.
Failing to adopt PREA guidelines can have repercussions that can critically impact facilities and staff. The most significant consequence is a loss of funding. The law mandates that states that fail to implement PREA standards face a reduction in federal prison funding. This financial penalty alone serves as a strong incentive for compliance. In addition, facilities that do not have adequate policies or procedures in place to prevent and respond to sexual assault may face lawsuits that can lead to substantial settlements and damages. Finally, facilities that do not adopt PREA guidelines risk creating environments where sexual violence can thrive. When inmates feel unsafe, it can lead to increased violence and a breakdown of trust between inmates and staff.
As you consider the reasons for and implications of PREA compliance (and the required auditing), we hope to be a resource for you. Please do not hesitate to reach out to us.
