The Justice Department should not require states to use medical staff members in detention and residential facilities to question juveniles about abusive sexual behavior the youths might have engaged in, and states should limit punishment of juveniles who have consensual sex in those facilities.
These are among the recommendations from seven major youth advocacy organizations in response to the proposed new Standards for the Prevention, Detection, Response and Monitoring of Sexual Abuse from the National Prison Rape Elimination Commission (NPREC).
The changes supported by the groups – the Campaign for Youth Justice, the Center for Children’s Law and Policy, Children’s Defense Fund, First Focus, Equity Project, Juvenile Law Center and the Youth Law Center – were presented to Attorney General Eric Holder today, the last day of the comment period.
Holder is due to publish a final rule by June, and funding was announced in April to establish a resource center that would help correctional agencies comply with the new standards. A state that chooses not to adopt the standards, or does not comply with them after adopting them, could lose up to 5 percent of any federal grant for its prisons.
The proposed standards issued by the NPREC – which was created under the Prison Rape Elimination Act of 2003 – require “at a minimum,” that medical staff should “attempt to ascertain information about prior sexual victimization or abusiveness, sexual orientation and gender identity.”
The groups said they generally support the new standards, in a letter sent to Holder, but expressed concern that the standards would require mental health and medical staff to ask juveniles about any sexually abusive behavior they have engaged in. That would violate the relationships between the professionals and the youths, the groups said, and the information could be gathered by other means.
“Asking a health care professional to question a youth about prior offending behavior disrupts the caretaking relationship that health care professionals are seeking to foster with youth,” the advocates wrote to Holder.
The youth advocates also asked the Justice Department to include language in the final standards that clarifies what constitutes consensual sex between two residents of a juvenile facility. While consensual acts may be a violation of facility rules, and warrant punishment, the advocates wrote, considering such acts as abuse exposes juveniles to undeserved criminal charges.
A 2008 report by the Bureau of Justice Statistics found that among substantiated cases in 2005 and 2006, youths who engaged in voluntary acts of sexual contact in facilities were twice as likely to be referred for prosecution or held in solitary confinement as youths who engaged in abusive sexual contact in facilities.
“Congress only intended PREA to address sexually abusive behavior and not consensual sexual contact between residents,” the advocates said. “Many residents of juvenile facilities are old enough to consent to sexual activity with other similarly-aged youth.”
The advocacy groups also asked the Justice Department to:
-Require states to keep all youth under the age of 18 out of adult facilities, which is already the practice of the Federal Bureau of Prisons. This change immediately would affect approximately 11,000 youth under 18 who are either in adult jail awaiting trial or serving time in an adult prisons.
-Require more guidance to facility staff on how individualized planning can be used to help protect gay youth, who frequently are segregated from the general population in juvenile facilities.
-Include a clear statement on the dangers of using isolation as a punishment or placement for youth involved in sexual abuse.
Other than the recommended changes, the youth advocacy groups said they “strongly support” the NPREC standards and believe that their implementation will “not only reduce sexual abuse, but will also help reduce other forms of physical abuse or gang violence that make detention and correctional settings dangerous to staff and residents.”