Implementation of Prison Rape Elimination Act
Proposed Rules: Closed to Comments
Statement of Basis and Purpose of Proposed Rules
Under § 626(e) of the New York City Charter, the Board of Correction (“Board”) is authorized to establish minimum standards “for the care, custody, correction, treatment, supervision, and discipline of all persons held or confined under the jurisdiction of” the New York City Department of Correction (“Department”). Pursuant to this authority, the Board proposes to create a new chapter of its rules containing Minimum Standards that are designed to detect, prevent and respond to sexual abuse and sexual harassment of persons incarcerated in jails and other facilities operated by the Department.
In April 2015, the New York City Public Advocate Letitia James petitioned the Board to adopt rules consistent with national standards that the Department of Justice (“DOJ”) had promulgated pursuant to the Prison Rape Elimination Act of 2003 (“PREA”), 42 U.S.C. 15601, et seq., in response to the epidemic of sexual violence in the nation’s prisons and jails. The Board accepted the petition at its June 9, 2015 meeting, and after several months of fact-finding by the Board’s ad hoc PREA Committee, developed proposed rules which incorporate in whole or in part many elements of the national standards (“PREA Standards”).
In recognition of the unique characteristics of individual correctional agencies, facilities and inmate populations nationwide, the PREA Standards afford discretion and flexibility to agencies in combating sexual violence. Consistent with this approach, the proposed rules require action that is specifically tailored to detecting, preventing and responding to sexual abuse and sexual harassment in the New York City jails, including specific provisions proposed by the Public Advocate and other stakeholders. Additionally, the proposed rules do not incorporate certain sections of the PREA Standards which we concluded were not applicable to the Department or, in several instances noted below, not appropriate to apply to the Department.
The proposed rules also contain provisions that will enable the Board to assess the Department’s compliance with them. These provisions require, for example, that the Department provide the Board with written directives or policies effectuating certain elements of the rules, periodic progress reports — particularly with respect to provisions that require an extended period of time to implement — and semiannual reporting of aggregate data that will allow the Board to track sexual abuse/sexual harassment allegations and outcomes.
The proposed rules are embodied in a new chapter of the Board’s Minimum Standards, which is divided into subchapters that correspond to the subject matter categories in which the PREA Standards are grouped. Additionally, each rule that is modeled on a PREA Standard is denoted by the name of the PREA Standard section heading on which it is based.
 The standards are codified in 28 C.F.R. Part 115 and are available here: http://www.prearesourcecenter.org/sites/default/files/content/prisonsandjailsfinalstandards.pdf.