(U.S.) JAILS AND PRISONS

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This section concerns minors who are incarcerated under federal law, whether they are accused or convicted of crimes, unauthorized immigration, or for other reasons.

For a list of federal prison facilities, see: https://www.bop.gov/locations/list.jsp (the acronyms are spelled out in the “All Prison Types” menu).

Federal prisons contain few juveniles. Affected minors are typically held in local jails and prisons and enter the federal system at age 18. Most minors in federal sites are native Americans, with visitation by tribal members. [https://www.bop.gov/inmates/custody_and_care/juveniles.jsp]

Non-federal jails and prisons (whether public or private) that incarcerate minors for the federal government are contracted to do so. Such federally contracted facilities are alluded to for mandatory reporting under federal child abuse laws.  [https://www.ice.gov/facility-inspections; 34 U.S.C. § 20341(a)(1),(d)]  Federally contracted jails and prisons must follow the same standards as federal prisons, for inmate protection from abuse.  [34 U.S.C. § 303; PREA standard § 115.12]

Child abuse is ALWAYS illegal in the U.S. regardless of a victim’s or perpetrator’s immigration status. [https://www.uscis.gov/archive/archive-news/information-legal-rights-available-immigrant-victims-domestic-violence-united-states-and-facts-about-immigrating-a-marriage-based-visa-fact-sheet] 

Abuse rules for incarcerated minors are partly those for abuse on federal lands and partly bundled with maritime (sea) laws, even if the incarceration is neither at sea nor for maritime offenses.

COMMENTS FOR JURISDICTION under 18 U.S.C. § 13:

·        For any federal site within state or territory boundaries, the rules and penalties of that state or territory are adopted to the extent they punish acts or omissions that Congress did not. 

WHO:        INMATES MAY report; and OTHERS acting on behalf of a victim inmate MAY report allegations. [https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp] 

Victims of child abuse are NOT required to self-report the abuse.  [34 U.S.C. § 20341(i)]

These are “covered professionals” (MUST report): (1) Physicians, dentists, medical residents or interns, hospital personnel and administrators, nurses, health care practitioners, chiropractors, osteopaths, pharmacists, optometrists, podiatrists, emergency medical technicians, ambulance drivers, undertakers, coroners, medical examiners, alcohol or drug treatment personnel, & persons performing a healing role or practicing the healing arts. (2) Psychologists, psychiatrists, & mental health professionals. (3) Social workers, licensed or unlicensed marriage, family, & individual counselors. (4) Teachers, teacher's aides or assistants, school counselors & guidance personnel, school officials, & school administrators. (5) Child care workers & administrators. (6) Law enforcement personnel, probation officers, criminal prosecutors, & juvenile rehabilitation or detention facility employees. (7) Foster parents. (8) Commercial film & photo processors. These include all child and youth program personnel [employees]. These also include military members who have those roles for the military and its dependents.  [34 U.S.C. § 20341(b)]

These are “covered individuals” (MUST report): an adult who is authorized, by a national governing body, a member of a national governing body, or an amateur sports organization that participates in interstate or international amateur athletic competition, to interact with a minor or amateur athlete at an amateur sports organization facility or at any event sanctioned by a national governing body, a member of a national governing body, or such an amateur sports organization. These include U.S. Olympic and U.S. Paralympic organizations as well.  These also include military members who have any of these roles for the military and its dependents.  [34 U.S.C. §§ 20341(b),(c)(9)]  Amateur sports with national governing bodies are listed at:

 https://en.wikipedia.org/wiki/Category:Sports_governing_bodies_in_the_United_States ;

also see https://uscenterforsafesport.org/wp-content/uploads/2019/09/NGBlist.92619.pdf

·       NOTE FOR COVERED PROFESSIONALS: The mandate is limited to observations made while practicing their professions or professional activities on federal sites.

·       NOTE: FOR COVERED INDIVIDUALS: The mandate is not limited to observations made in particular circumstances or places.

·       STANDARD:  This rule does not define “child”, but in another abuse statute (42 U.S.C. § 5101 Note) it means under age 18.

o   For covered professionals (as to federal sites): (a) while engaged in his/her professional capacity or activity (b) on Federal land or in a federally operated or contracted facility, (c) learns of facts that give reason to suspect that (d) a child suffered an incident of child abuse (or neglect).  [34 U.S.C. § 23041(a)(1)] 

o   For covered individuals: (a) learns of facts that give reason to suspect that (b) a child suffered an incident of child abuse (or neglect). [34 U.S.C. § 20341(a)(2)]

(a)   As the statute is written, the abuse may be but isn’t limited to sexual abuse.

(b)   As the statute is written, amateur athletic organization adults are identified as mandatory reporters BUT their reporting mandates are NOT limited to amateur athletes. Their reporting may be mandatory for suspected abuse of ANY minor

o   For other reporters (by analogy to covered reporters): learn of facts that give reason to suspect that a child suffered an incident of child abuse (or neglect).

·       PRIVILEGE:  Privilege is not addressed in the statutes reviewed. But, 34 U.S.C. § 20341 grants no reporting exception for medical, mental health, or counseling workers.

WHEN:      For covered professionals and covered individuals:  AS SOON AS POSSIBLE (within 24 hours).  [34 U.S.C. §§ 20341(a);(c)(12)] 

WHERE & HOW: 

Mandatory (“covered”) reporters:  A standard form with instructions is disseminated among reporter groups; use is encouraged (versus mandated by statute), but must not replace immediate oral reports by phone or otherwise, if circumstances dictate.  [34 U.S.C. § 20341(f)]  See the lines below for details on third-party reporting of abuse.

FOR FEDERAL FACILITIES (meaning, facilities not contracted out)

Inmates are encouraged to immediately report alleged sexual abuse to the following; recipients are also mandatory reporters of child abuse in any form:  [34 U.S.C. §§ 303; 20341; https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp]

(1)      A staff member they trust.

(2)      The Office of Inspector General (OIG); U.S. Dept. of Justice, Office of the Inspector General, 950 Pennsylvania Ave., NW, Washington, D.C. 20530-0001; phone (202) 514-3435; fax (202) 616-9881.

(3)      Via the Administrative Remedy (grievance procedure) process. These vary somewhat by site, and the details are in the institution’s law library. [https://cic.dc.gov/sites/default/files/dc/sites/cic/page_content/attachments/BOP%20Administrative%20Remedies%2011.15.17%20REVISED.pdf]

(a)     Usually, it begins by giving completed form BP-8 to staff for informal resolution (counselors have info). Inmates may file formal complaints any time after an incident, but must meet deadlines thereafter.

(b)     If there is no resolution, filing form BP-9 with the warden within 20 days after the incident if feasible (resolution is within 20 or 40 days).

(c)      To appeal, file Regional Administrative Remedy Appeal form BP-10 with the regional director within 20 days after the warden’s response or within 20 days after his/her deadline if there is no response.

(d)     To appeal further, file form BP-11 with the General Counsel in Central Office within 30 days after the Regional Director’s response (resolution is within 40 or 60 days).

(e)     Each filing must include usually 3 copies of the prior forms, starting with BP-9, and the responses to each, and of any exhibits.

Third-party allegations on behalf of an inmate are reported to any of the following; recipients are also mandatory reporters of child abuse in any form: [34 U.S.C. §§ 303; 20341; [https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp]

(1)      The local institution’s PREA compliance manager.  (PREA stands for the federal Prison Rape Elimination Act, 34 U.S.C. § 303).

(2)      For inmate abuse of other inmates: write to: Federal Bureau of Prisons, National PREA Coordinator, Reentry Services Division, 400 First St. NW, Room 4027, Washington, DC 20534.

(3)      For staff abuse of inmates: write to: Federal Bureau of Prisons, Office of Internal Affairs, 320 First St. NW, Room 600, Washington, DC 20534.

(4)      Concerns for inmates: Online at https://www.bop.gov/inmates/concerns.jsp

FOR NON-FEDERAL FACILITIES (meaning, contracted)  [PREA standard § 115.12]

For inmates: every facility must provide multiple internal ways to privately report: (a) sexual abuse; (b) sexual harassment; (c) retaliation by other inmates or staff for such reports; and (d) staff neglect or violation of responsibilities that may have contributed.  [34 U.S.C. § 303; PREA standard § 115.51]

·        Inmates must be advised of policies at intake, and comprehensively educated on the reporting process within 30 days in an accessible format, even if they are disabled, illiterate, or not native English speakers.  [PREA standard § 115.33]

Third-parties may report to staff on behalf of an inmate.  [PREA standard § 115.51]

Staff must accept reports made verbally, in writing, anonymously, and from third parties, and must promptly document any verbal reports. Agencies must provide a method for staff to privately report sexual abuse and sexual harassment of inmates. Staff are also mandatory reporters of child abuse in any form. Each installation has a PREA coordinator.  [34 U.S.C. § 20341; PREA standard §§ 115.51; 115.11] 

OTHER ASPECTS

·       REPORT DETAILS: in Federal facilities: (a) minor inmate’s name and ID; (b) dates, times, and locations where each incident took place; (c) names of inmates, staff, or others involved; (d) identifying info of those involved; and (e) any other detail that might be helpful.  [https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp] 

·       REPORTER PROTECTION;  (1) The federal statutes reviewed do not require a report-maker to identify him/herself. (2) Reports are confidential.  [PREA standard § 115.51; https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp]  (3) All reporters in good faith are immune from civil or criminal liability, and good faith is presumed; legal fees may be granted if there is a lawsuit over the report; but there is no immunity for reports in bad faith.  [34 U.S.C. § 20341(g)]

WHY:        A covered professional or covered individual who fails to report immediately (under standards) commits a class A misdemeanor punishable by < $100,000 fine &/or imprisonment for < 1 year.  [18 U.S.C. § 2258]  But see relevant state or territory pages, to the extent that they punish acts or omissions that Congress did not, under 18 U.S.C. § 13.

WHAT:      Federal law defines child abuse as physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child.  [34 U.S.C. § 20341(c)(1)]

·        Exception:  Reasonable, moderate, non-cruel DISCIPLINE by a parent or legal guardian to his or her child is exempt.  [34 U.S.C. § 20341(c)(8)]  However, normally no jail or prison official qualifies as the parent or legal guardian of his/her inmate.

(A)     PREA abuse prevention: (1) youthful inmates must not be housed within sight, sound, or physical contact of any adult inmate, in a shared common space, shower, or quarters. And, (2) outside of housing, staff must directly supervise any youthful inmates within sight, sound, or contact with adult inmates.  [PREA standard § 115.14]

(B)     PREA neglect prevention: Compliance should NOT rely on: (1) isolation; (2) denial of exercise except in exigent circumstances; or (3) denial of special education if required. Youthful inmates should have (4) other programs and work opportunities to the extent possible.  [PREA standard § 115.14]

Preliminary Screening Criteria: (a) substantial risk of (b) imminent (c) sexual abuse.  [PREA standard § 115.62]

Reportable: (1) anyone for physical abuse or mental abuse; (2) inmates and prison staff (or contractors) for sexual abuse, sexual harassment, and retaliation for reports; (2) prison staff (or contractors) for negligent treatment, or where violation of responsibilities contributed to sexual abuse or harassment.  [34 U.S.C. §§ 20341(c)(2),(3); 34 U.S.C. § 303; PREA standard § 115.51]  But see pages for the relevant state or territory in case they cover situations that the federal rules do not.

The definitions below are for federal facilities. If something is not covered below but is by the relevant state or territory under 18 U.S.C. § 13, both rule sets apply. If it is not a federal facility or special maritime jurisdiction, only the state or territory rule applies.

Physical Injury may include (a) lacerations, (b) fractured bones, (c) burns, (d) internal injuries, (e) severe bruising, or (f) serious bodily harm.  [34 U.S.C. § 20341(c)(2)] 

Mental Injury means harm to a child's psychological or intellectual functioning.  [34 U.S.C. § 20341(c)(3)] 

(A)     Mental injury may be exhibited by: (1) severe anxiety; (2) depression; (3) withdrawal; (4) outward aggressive behavior; or (5) a combination of those behaviors.

(B)     Mental injury may be demonstrated by a change in: (1) behavior; (2) emotional response; or (3) cognition.

Negligent Treatment is (1) failure to provide, for reasons other than poverty, (2) adequate food, clothing, shelter, or medical care (3) so as to seriously endanger the child’s physical health.  [34 U.S.C. § 20341(c)(7)]

Sexual Abuse includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, (a) sexually explicit conduct or the (b) rape, (c) molestation, (d) prostitution, or (e) other form of sexual exploitation of children, or (f) incest with children.  [34 U.S.C. § 20341(c)(4)]

(A)     Sexually explicit conduct means actual or simulated –  [34 U.S.C. § 20341(c)(5)]

(1)     Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal sexual contact, whether between persons of the same or of opposite sex;

(a)      Sexual contact is intentional touching, directly or on clothing, of genitalia, anus, groin, breast, inner thigh, or buttocks of anyone with intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person;

(2)     Other sexual acts: (a) bestiality; (b) masturbation; (c) lascivious exhibition of a person or animal’s genitals or pubic area; (d) sadistic or masochistic abuse; etc.

(3)     Sexual exploitation concerns child porn or prostitution.  [34 U.S.C. § 20341(c)(6)]

(B)     Federal prison-specific abuse:

(1)     Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal sexual contact, whether between persons of the same or of opposite sex;

(2)     Knowing, actual or attempted sexual acts, with a child age <12, or with child age 12-16 if the perpetrator is >4 years older [18 U.S.C. §§ 2241(c); 2243(a); 2244(c); (aggravated abuse)]

(3)     Engaging in a sexual act where: (a) it was compelled by a threat to kill, seriously injure, or kidnap any person, or (b) the other person either cannot understand the nature of the conduct or is physically incapable of declining it or communicating unwillingness.  [18 U.S.C. § 2242; (abuse)]

(4)     Knowing guard-with-prisoner sexual acts.  [18 U.S.C. § 2243(b) (abuse of ward)]

(5)     Knowing sexual contact without the other person’s consent.  [18 U.S.C. § 2244(c)]

(C)     Federal Bureau of Prisons, on Prison Rape Elimination Act: (1) sexually abusive behavior or (2) pressure to engage in unwanted sexual behavior from another inmate or staff member.  [https://www.bop.gov/inmates/custody_and_care/sexual_abuse_prevention.jsp]

(D)     Rules on the age of consent of the state or territory where the prison is located are relevant, to the extent that they punish acts or omissions that Congress did not.

(E)     Incest: federal law cites incest but does not define kin that it includes.  [cf. 18 U.S.C. § 3509(a)(8)]  Under the gap-filling provisions of 18 U.S.C. § 13, check the relevant section of this Digest for the state or territory where the facility is located.