| (iv) any staff neglect or violation of responsibilities
that may have contributed to such an incident or retaliation.
(B) The requirement to report applies to incidents
occurring in any residential facility, whether or not it is operated
by TJJD.
(C) The requirement to report includes staff members
whose personal communications may otherwise be privileged, such as
an attorney, member of the clergy, medical practitioner, social worker,
or mental health practitioner. Upon the initiation of services, these
staff members must inform the youth of the staff member's duty to
report abuse and the limits of confidentiality.
(D) In addition to the reporting requirement in subparagraph
(A) of this paragraph, TJJD staff must comply with mandatory child
abuse reporting laws in Texas Family Code Chapter 261 and with applicable
professional licensure requirements.
(E) Any TJJD staff who receives a report of alleged
sexual abuse is prohibited from revealing any information to anyone
other than to the extent necessary, as specified in §380.9333
of this title, to make treatment, investigation, and other security
and management decisions.
(F) Upon receiving an allegation of sexual abuse, the
facility administrator or his/her designee must promptly report the
allegation to the alleged victim's parents or legal guardians, unless
the facility has official documentation showing the parents or legal
guardians should not be notified. If the alleged victim is under the
conservatorship of DFPS, the report is made to DFPS.
(G) OIG assigns all reports of alleged sexual abuse
and sexual harassment, including third-party and anonymous reports,
to the appropriate investigator.
(2) Agency Protection Duties. Upon receipt of a report
that alleges a youth is subject to a substantial risk or imminent
sexual abuse, TJJD takes immediate action to protect the youth.
(3) Reporting to Other Confinement Facilities.
(A) Any staff member must immediately notify the OIG
if he/she receives an allegation that a youth was sexually abused
while confined at a juvenile facility not operated by TJJD and not
operated under contract with TJJD.
(B) The OIG must notify the head of the facility or
the appropriate office of the agency where the abuse is alleged to
have occurred and the appropriate investigative agency as soon as
possible, but within 72 hours after receiving the allegation.
(4) Staff First Responder Duties. Upon learning of
an allegation that a youth was sexually abused, the first staff member
to respond to the report must:
(A) separate the alleged victim and alleged abuser;
(B) preserve and protect any crime scene until appropriate
steps can be taken to collect any evidence; and
(C) if the alleged abuse occurs within a time period
that still allows for the collection of physical evidence:
(i) request that the alleged victim not take any actions
that could destroy physical evidence, including as appropriate, washing,
brushing teeth, changing clothes, urinating, defecating, smoking,
drinking, or eating; and
(ii) ensure that the alleged abuser does not take any
actions that could destroy physical evidence.
(5) Coordinated Response. TJJD maintains a written
plan to coordinate the actions taken among staff first responders,
medical and mental health practitioners, investigators, and facility
leadership in response to an incident of sexual abuse.
(6) Preservation of Ability to Protect Youth from Contact
with Abusers. TJJD will not enter into any agreement that limits its
ability to remove alleged staff sexual abusers from contact with youth
pending the outcome of an investigation or a determination of whether
and to what extent discipline is warranted.
(7) Agency Protection against Retaliation. Retaliation
by a youth or staff member against a youth or staff member who reports
sexual abuse or sexual harassment or who cooperates with an investigation
is strictly prohibited. To help prevent retaliation, TJJD:
(A) designates certain staff members to monitor the
person who reported the allegation and the alleged victim to determine
whether retaliation is occurring;
(B) uses multiple measures to protect youth and staff
from retaliation, such as housing transfers, removal of the alleged
abuser from contact with the alleged victim, and emotional support
services for youth or staff who fear retaliation;
(C) for at least 90 days (except when the allegation
is determined to be unfounded):
(i) monitors the reporter and the alleged victim for
signs of retaliation including items such as disciplinary reports,
housing or program changes, staff reassignments, and negative performance
reviews; and
(ii) conducts periodic status checks on the alleged
victim;
(D) acts promptly to remedy any retaliation; and
(E) takes appropriate measures to protect any other
individual who cooperates with the investigation who expresses a fear
of retaliation.
(8) Post-Allegation Protective Custody. TJJD does not
use segregated housing to protect a youth who is alleged to have suffered
sexual abuse.
(k) Investigations.
(1) Criminal and Administrative Agency Investigations.
(A) TJJD conducts prompt, thorough, and objective investigations
for all allegations of sexual abuse and sexual harassment, including
third-party and anonymous reports.
(B) For investigations of alleged sexual abuse, TJJD
uses investigators who have received special training in sexual abuse
investigations involving juvenile victims.
(C) TJJD investigators must:
(i) gather and preserve direct and circumstantial evidence,
including any available physical and DNA evidence and any available
electronic monitoring data;
(ii) interview alleged victims, suspected perpetrators,
and witnesses; and
(iii) review prior complaints and reports of sexual
abuse involving the suspected perpetrator.
(D) TJJD will not terminate an investigation solely
because the source of the allegation recants the allegation.
(E) When the quality of evidence appears to support
criminal prosecution, TJJD may conduct compelled interviews only after
consulting with prosecutors as to whether compelled interviews may
be an obstacle for subsequent criminal prosecution.
(F) TJJD investigators must assess the credibility
of an alleged victim, suspect, or witness on an individual basis and
must not determine credibility by the person's status as a youth or
staff.
(G) TJJD does not require youth who allege sexual abuse
to submit to a polygraph examination or other truth-telling device
as a condition for proceeding with the investigation.
(H) In addition to meeting requirements set forth in §380.9333
of this title, administrative investigations of sexual abuse must:
(i) include an effort to determine whether staff actions
or failures to act contributed to the abuse; and
(ii) be documented in a written report that includes
a description of the physical and testimonial evidence, the reasoning
behind credibility assessments, and investigative facts and findings.
(I) Criminal investigations conducted by the OIG must
be documented in a written report that includes:
(i) a thorough description of physical, testimonial,
and documentary evidence; and
(ii) copies of all documentary evidence, when feasible.
(J) Substantiated allegations of conduct that appear
to be criminal are referred for prosecution.
(K) TJJD maintains all criminal and administrative
investigation reports for as long as the alleged abuser is incarcerated
by TJJD or employed by TJJD, plus at least five years.
(L) TJJD does not terminate investigations solely on
the basis that the alleged abuser or victim is no longer in the custody
of TJJD or employed by TJJD.
(M) If an outside agency conducts an investigation
into an allegation of sexual abuse, TJJD staff must cooperate with
the outside investigators. TJJD management will attempt to remain
informed about the progress of the investigation.
(2) Evidentiary Standard for Administrative Investigations.
In administrative investigations into allegations of sexual abuse
or sexual harassment, the investigator's findings must be based on
a preponderance of the evidence.
(3) Reporting to Youth. The notification requirements
in this paragraph apply until the youth is discharged from TJJD. TJJD
documents all notifications and attempted notifications.
Cont'd... |
