Amended in Senate April 23, 2013

Amended in Senate April 1, 2013

Senate Bill No. 716

Introduced by Senator Lara

February 22, 2013

An act to add begin delete Section 2636.5 end delete begin insert Sections 2644, 2646, and 2647 end insert to begin insert , and to repeal and add Sections 2635, 2636, 2637, 2638, 2639, and 2643 of, end insert the Penal Code, relating to inmates.

LEGISLATIVE COUNSEL’S DIGEST

SB 716, as amended, Lara. Inmates: civil rights.

Existing law requires the Department of Corrections and Rehabilitation to institute certain practices to prevent sexual violence and promote inmate and ward safety in the Department of Corrections and Rehabilitation.

This bill would require begin delete the department and the sheriff of a county jail to create a safe environment free from sexual abuse for inmates or arrestees, including those inmates or arrestees with a United States Immigration and Customs Enforcement hold, by doing certain things, including, among other things, establishing a zero-tolerance policy and creating specific policies and procedures prohibiting employee sexual misconduct toward inmates or arrestees, prohibiting sexual misconduct between either arrestees or inmates, or both, and requiring mandatory reporting by employees of all allegations of sexual misconduct. The department and the sheriff would also be required to establish a process for how inmates or arrestees are screened during an initial intake assessment to ensure their safety from harm or harassment, or to keep them from harming others, including training of employees in identifying whether the inmate or arrestee requires a separate detention area for his or her own safety, privacy during screening, or some other accommodation as a result of being a member of the lesbian, gay, bisexual, transgender, and queer communities. end delete begin insert the department, all local corrections agencies and departments statewide, and all private corrections companies 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, by adopting policies and procedures equivalent to or stronger than specified federal regulations. The bill would require the entities to audit, on a 3-year cycle, all facilities operated by the agency, department, or company, as specified. The bill would require the Attorney General to provide means for members of the public to raise concrete and specific concerns about the sufficiency of the published policies or procedures and would require the Attorney General to certify auditors and recommend or require the agency, department, or company to audit specified facilities when there is sufficient reason to believe that a pattern and practice of sexual abuse is occurring in the facility. end insert

Because this bill would require a higher level of service from county begin delete jails end delete begin insert and local correctional facilities end insert , it would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 2635 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2635.  

The Department of Corrections and Rehabilitation shall
review informational handbooks regarding sexual abuse in
detention published by outside organizations. Upon approving the
content thereof, handbooks provided by one or more outside
organizations shall be made available to inmates and wards.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 2635 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2635. end insert   

The Department of Corrections and Rehabilitation, each
local corrections agency, and each private corrections company
shall 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, by
adopting policies and procedures equivalent to or stronger than
those in the relevant sections of the United States Department of
Justice’s National Standards to Prevent, Detect, and Respond to
Prison Rape.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 2636 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2636.  

For the purposes of this section, all references to
classification of wards shall take effect upon the adoption of a
classification system for wards developed by the Department of
Corrections and Rehabilitation in compliance with Farrell v. Allen,
Alameda County Superior Court Case No. RG 03079344.

The following practices shall be instituted to prevent sexual
violence and promote inmate and ward safety in the Department
of Corrections and Rehabilitation:

(a) The Department of Corrections and Rehabilitation inmate
classification and housing assignment procedures shall take into
account risk factors that can lead to inmates and wards becoming
the target of sexual victimization or of being sexually aggressive
toward others. Relevant considerations include:

(1) Age of the inmate or ward.

(2) Whether the offender is a violent or nonviolent offender.

(3) Whether the inmate or ward has served a prior term of
commitment.

(4) Whether the inmate or ward has a history of mental illness.

(b) The Department of Corrections and Rehabilitation shall
ensure that staff members intervene when an inmate or ward
appears to be the target of sexual harassment or intimidation.

end delete

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 2636 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2636. end insert   

The Department of Rehabilitation and each jail facility
shall adopt and implement policies and procedures at least as
strong as those detailed in Sections 115.5 to 115.86, inclusive, of
Title 28 of the Code of Federal Regulations for all facilities that
house adult inmates, including pretrial inmates and federal
detainees. Adoption of these policies or procedures shall take place
no later than July 1, 2014. Full implementation of the policies or
procedures shall be completed no later than January 1, 2016.

end insert

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 2637 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2637.  

The Department of Corrections and Rehabilitation 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 department regulations.

(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.

(f) Retaliation against an inmate or ward for making an
allegation of sexual abuse shall be strictly prohibited.

end delete

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 2637 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2637. end insert   

Each state or local lockup shall adopt and implement
policies or procedures at least as strong as those detailed in
Sections 115.5, 115.6, and 115.111 to 115.186, inclusive, of Title
28 of the Code of Federal Regulations. Adoption of these policies
or procedures shall take place no later than July 1, 2014. Full
implementation of the policies or procedures shall be completed
no later than January 1, 2016.

end insert

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 2638 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2638.  

Thoughtful, confidential standards of physical and mental
health care shall be implemented to reduce the impact of sexual
abuse on inmates and wards in the Department of Corrections and
Rehabilitation that include all of the following:

(a) Victims shall receive appropriate acute-trauma care for rape
victims, including, but not limited to, treatment of injuries,
HIV/AIDS prophylactic measures, and, later, testing for sexually
transmittable diseases.

(b) Health practitioners who conduct or encounter an inmate or
ward suffering from problems that might indicate sexual abuse,
such as trauma, sexually transmissible diseases, pregnancy, or
chronic pain symptoms, shall ask whether the patient has
experienced sexual abuse.

(c) Practitioners should strive to ask frank, straightforward
questions about sexual incidents without shaming inmates or
displaying embarrassment about the subject matter.

(d) Confidential mental health counseling intended to help the
victim to cope with the aftermath of abuse shall be offered to those
who report sexual abuse. Victims shall be monitored for suicidal
impulses, posttraumatic stress disorder, depression, and other
mental health consequences.

(e) Any adult inmate in mental health counseling for any reason
shall be entitled to speak confidentially about sexual abuse.

end delete

begin insert

begin insert SEC. 8. end insert   

end insert

begin insert Section 2638 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2638. end insert   

State, county, and local juvenile justice agencies shall
adopt and implement policies or procedures at least as strong as
those detailed in Sections 115.5, 115.6, and 115.311 to 115.386,
inclusive, of Title 28 of the Code of Federal Regulations. Adoption
of these policies or procedures shall take place no later than July
1, 2014. Full implementation of the policies or procedures shall
be completed no later than January 1, 2016.

end insert

begin insert

begin insert SEC. 9. end insert   

end insert

begin insert Section 2639 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2639.  

The Department of Corrections and Rehabilitation shall
ensure that the following procedures are performed in the
investigation and prosecution of sexual abuse incidents:

(a) The provision of safe housing options, medical care, and the
like shall not be contingent upon the victim’s willingness to press
charges.

(b) Investigations into allegations of sexual abuse shall include,
when deemed appropriate by the investigating agency, the use of
forensic rape kits, questioning of suspects and witnesses, and
gathering of other relevant evidence.

(c) Physical and testimonial evidence shall be carefully
preserved for use in any future proceedings.

(d) Staff attitudes that inmates and wards cannot provide reliable
information shall be discouraged.

(e) If an investigation confirms that any employee has sexually
abused an inmate or ward, that employee shall be terminated.
Administrators shall report criminal sexual abuse by staff to law
enforcement authorities.

(f) Consensual sodomy and oral copulation among inmates is
prohibited by subdivision (e) of Section 286 and subdivision (e)
of Section 288a, respectively. Without repealing those provisions,
the increased scrutiny provided by this article shall apply only to
nonconsensual sexual contact among inmates and custodial sexual
misconduct.

end delete

begin insert

begin insert SEC. 10. end insert   

end insert

begin insert Section 2639 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2639. end insert   

Private corrections companies shall adopt and implement
the relevant policies or procedures from Section 2636, 2637, or
2638. Adoption of these policies or procedures shall take place
no later than July 1, 2014. Full implementation of the policies or
procedures shall be completed no later than January 1, 2016.

end insert

begin insert

begin insert SEC. 11. end insert   

end insert

begin insert Section 2643 of the end insert begin insert Penal Code end insert begin insert is repealed. end insert

begin delete

2643.  

The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity shall not
affect other provisions or applications that can be given effect
without the invalid provision or application.

end delete

begin insert

begin insert SEC. 12. end insert   

end insert

begin insert Section 2643 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2643. end insert   

(a) On or before January 1, 2015, the agency,
department, or company shall certify in writing to the Attorney
General that it has adopted policies or procedures as mandated
by Section 2636, 2637, 2638, or 2639.

(b) On or before July 1, 2014, every agency, department, or
company shall make the mandated policies and procedures
available to the public via its Internet Web site or other accessible
means.

(c) The Attorney General shall provide a means for an interested
member of the public to raise concrete and specific concerns about
the sufficiency of the published policies or procedures of any
agency, department, or company. Upon receipt of these concerns
from a member of the public, the Attorney General shall have 90
days to review the relevant policies or procedures. If the Attorney
General finds deficiencies in the published policies or procedures
of any agency, department, or company, the Attorney General
shall suggest appropriate modifications to the agency, department,
or company.

end insert

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 2644 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2644. end insert   

(a) Audits of facilities governed by this article shall be
conducted on a three-year cycle. Beginning January 1, 2016, each
agency, department, or company shall ensure that each facility
operated by the agency, department, or company is audited at least
once every three years. Any agency, department, or company with
three or more facilities shall ensure that at least one-third of its
facilities are audited each year of an audit cycle.

(b) An audit conducted in compliance with Sections 115.400 to
115.405, inclusive, of Title 28 of the Code of Federal Regulations
shall suffice for the purposes of this section.

(c) The Attorney General shall identify procedures, based on
the principles found in Sections 115.400 to 115.405, inclusive, of
Title 28 of the Code of Federal Regulations, that define all of the
following:

(1) The scope of an audit.

(2) Auditor qualifications.

(3) Audit contents and findings.

(4) Audit corrective action plan.

(5) Audit appeals.

(d) The Attorney General shall also certify auditors and
maintain a list of California-certified auditors. At its discretion,
the Attorney General may rely on an auditor’s certification by the
United States Department of Justice as evidence that the auditor
is qualified to perform audits under this section.

(e) 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. The auditor will forward the report to the
Attorney General, which shall maintain a database of facilities
that have passed audits and those that have failed them.

(f) An agency, department, or company shall make all audit
reports public through its Internet Web site or by other publicly
available means.

(g) Acting on its own or in response to concrete and specific
concerns from an individual, the Attorney General may recommend
or require an agency, department, or company to undergo an
expedited audit for one or more of its facilities. The Attorney
General may only require an expedited audit when it has sufficient
reason to believe that a pattern and practice of sexual abuse is
occurring within a facility. An agency, department, or company
shall be provided with a reasonable opportunity to respond to
evidence before an expedited audit can be required. The Attorney
General shall identify a public means by which the office can
receive an individual’s report of concrete and specific concerns
about a facility.

end insert

begin insert

begin insert SEC. 14. end insert   

end insert

begin insert Section 2646 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2646. end insert   

For purposes of this article, the following definitions
shall apply:

(a) “Jail” means any confinement facility of a federal, state, or
local law enforcement agency whose primary use is to hold persons
pending adjudication of criminal charges, persons committed to
confinement after adjudication of criminal charges for sentences
of one year or less, or persons adjudicated guilty who are awaiting
transfer to a correctional facility.

(b) “Juvenile justice agency” means a state, county, or local
government agency with facilities primarily used for the
confinement of juveniles pursuant to the juvenile justice system or
criminal justice system.

(c) “Lockup” means a state, county, and local law enforcement
agency facility for the temporary confinement of individuals who
have recently been arrested, detained, or are being transferred to
or from a court, jail, prison, or other agency.

(d) “Private corrections company” means a for-profit or
nonprofit company operating in the State of California that
confines individuals on behalf of a federal, state, county, or local
government or that manages a facility that confines individuals
on behalf of a federal, state, county, or local government.

end insert

begin insert

begin insert SEC. 15. end insert   

end insert

begin insert Section 2647 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 2647. end insert   

(a) The agency, department, or company shall collect
accurate, uniform data for every allegation of sexual abuse using
a standardized instrument and set of definitions.

(b) The agency, department, or company shall aggregate the
incident-based sexual abuse data at least annually.

(c) The agency, department, or company shall annually review
data collected and aggregated pursuant to this section in order to
assess and improve the effectiveness of its sexual abuse prevention,
detection, and response policies, practices, and training.

(d) The agency, department, or company shall ensure that data
collected pursuant to subdivision (a) are securely retained.

(e) The agency, department, or company shall make all
aggregated sexual abuse data readily available to the public, at
least annually, through its Internet Web site or other publicly
accessible means.

(f) Before making aggregated sexual abuse data publicly
available, the agency, department, or company shall remove all
personal identifiers.

(g) The agency, department, or company shall maintain sexual
abuse data collected pursuant to subdivision (a) for at least 10
years after the date of its initial collection unless federal, state, or
local law requires otherwise.

end insert

begin delete

SECTION 1.  

Section 2636.5 is added to the Penal Code, to
read:

2636.5.  

The Department of Corrections and Rehabilitation and
the sheriff of a county jail shall create a safe environment free
from sexual abuse for inmates or arrestees, including those inmates
or arrestees with a United States Immigration and Customs
Enforcement hold, by doing all of the following:

(a) Establishing a zero-tolerance policy for sexual abuse.

(b) Creating specific policies and procedures prohibiting
employee sexual misconduct toward inmates or arrestees,
prohibiting sexual misconduct between either arrestees or inmates,
or both, and requiring mandatory reporting by employees of all
allegations of sexual misconduct.

(c) Establishing a process for how inmates or arrestees are
screened during an initial intake assessment to ensure their safety
from harm or harassment, or to keep them from harming others.
The process established pursuant to this subdivision shall include
training of employees in identifying whether the inmate or arrestee
requires a separate detention area for his or her own safety, privacy
during screening, or some other accommodation, as a result of
being a member of the lesbian, gay, bisexual, transgender, and
queer communities.

(d) Training employees, volunteers, contractors, visitors, and
other individuals who have contact with inmates or arrestees
regarding the department or the county sheriff’s policies and
procedures relating to sexual assault identification and prevention,
and how to report allegations of sexual misconduct.

(e) Advising all inmates or arrestees regarding the zero-tolerance
policy during an initial intake process.

(f) For the purposes of this section, “sexual misconduct” means
all incidents of willing or unwilling sexual contact, and all incidents
of sexual activity, including, but not limited to, sexual intercourse,
sodomy, oral copulation, and other forms of sexual contact.

end delete

begin delete SEC. 2. end delete
begin insert SEC. 16. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.