| (a) Purpose. The purpose of this rule is to establish
the Texas Juvenile Justice Department's (TJJD's) zero-tolerance policy
for any form of sexual abuse, sexual harassment, or sexual activity
involving youth in the agency's care. This rule also addresses TJJD's
obligations under federal Prison Rape Elimination Act (PREA) standards
for preventing, detecting, and responding to sexual abuse and sexual
harassment.
(b) Applicability. Unless stated otherwise, this rule
applies to all residential facilities operated by TJJD or under contract
with TJJD.
(c) Definitions.
(1) Exigent Circumstances--any set of temporary and
unforeseen circumstances that require immediate action to combat a
threat to the security or institutional order of a facility.
(2) Residential Facilities--high restriction facilities
and medium restriction facilities as defined in §380.8527 of
this title.
(3) Sexual Abuse--includes sexual abuse of a youth
by another youth or sexual abuse of a youth by a staff member, contractor,
or volunteer.
(4) Sexual Abuse of a Youth by Another Youth--includes
any of the following acts, if the victim does not consent, is coerced
into such act by overt or implied threats of violence, or is unable
to consent or refuse:
(A) contact between the penis and the vulva or the
penis and the anus, including penetration, however slight;
(B) contact between the mouth and the penis, vulva,
or anus;
(C) penetration of the anal or genital opening of another
person, however slight, by a hand, finger, object, or other instrument;
and
(D) any other intentional touching, either directly
or through the clothing, of the genitalia, anus, groin, breast, inner
thigh, or the buttocks of another person, excluding contact incidental
to a physical altercation.
(5) Sexual Abuse of a Youth by a Staff Member, Contractor,
or Volunteer--includes any of the following acts, with or without
consent of the youth:
(A) contact between the penis and the vulva or the
penis and the anus, including penetration, however slight;
(B) contact between the mouth and the penis, vulva,
or anus;
(C) contact between the mouth and any body part where
the staff member, contractor, or volunteer has the intent to abuse,
arouse, or gratify sexual desire;
(D) penetration of the anal or genital opening, however
slight, by a hand, finger, object, or other instrument, that is unrelated
to official duties or where the staff member, contractor, or volunteer
has the intent to abuse, arouse, or gratify sexual desire;
(E) any other intentional contact, either directly
or through the clothing, of or with the genitalia, anus, groin, breast,
inner thigh, or the buttocks, that is unrelated to official duties
or where the staff member, contractor, or volunteer has the intent
to abuse, arouse, or gratify sexual desire;
(F) any attempt, threat, or request by a staff member,
contractor, or volunteer to engage in the activities described in
subparagraphs (A) - (E) of this paragraph;
(G) any display by a staff member, contractor, or volunteer
of his or her uncovered genitalia, buttocks, or breast in the presence
of a youth; and
(H) voyeurism by a staff member, contractor, or volunteer.
(6) Sexual Activity--includes any form of sexual misconduct,
as defined in §380.9503 of this title, that does not meet the
definition of sexual abuse.
(7) Sexual Harassment--includes:
(A) repeated and unwelcome sexual advances, requests
for sexual favors, or verbal comments, gestures, or actions of a derogatory
or offensive sexual nature by one youth directed toward another; and
(B) repeated verbal comments or gestures of a sexual
nature to a youth by a staff member, contractor, or volunteer, including
demeaning references to gender, sexually suggestive or derogatory
comments about body or clothing, or obscene language or gestures.
(8) Voyeurism--an invasion of a youth's privacy by
a staff member, contractor, or volunteer for reasons unrelated to
official duties, such as:
(A) peering at a youth who is using a toilet in his
or her cell to perform bodily functions;
(B) requiring a youth to expose his or her buttocks,
genitals, or breasts; or
(C) taking images of all or part of a youth's naked
body or of a youth performing bodily functions.
(d) General Provisions.
(1) It is the policy of TJJD to ensure that any form
of conduct that meets the definition of sexual abuse, sexual activity,
or sexual harassment, regardless of consensual status, is strictly
prohibited. Such conduct, if confirmed, will result in administrative
disciplinary action and may result in criminal prosecution.
(2) It is the policy of TJJD to comply with all applicable
PREA-related standards adopted by the U.S. Department of Justice.
(e) Prevention Planning.
(1) PREA Coordinator and PREA Compliance Managers.
(A) TJJD designates an upper-level staff member as
the agency-wide PREA coordinator. This staff member's duties must
be structured to allow sufficient time and authority to develop, implement,
and oversee agency efforts to comply with PREA standards in all TJJD-operated
residential facilities.
(B) TJJD designates a PREA compliance manager at each
TJJD-operated residential facility. This staff member's duties must
be structured to allow sufficient time and authority to coordinate
the facility's efforts to comply with PREA standards.
(2) Contracting with Other Entities for Confinement
of Youth. In all new or renewed contracts for residential placement
of TJJD youth, TJJD includes a clause requiring the contractor to
adopt and comply with applicable PREA standards.
(3) Youth Supervision and Monitoring.
(A) Staffing Plans.
(i) Each TJJD-operated residential facility develops
and implements a written staffing plan to provide adequate levels
of staffing and video monitoring to protect youth against sexual abuse.
(ii) Deviations from the staffing plan are permitted
only during limited and discrete exigent circumstances. The facility
documents each deviation and the reason for the deviation.
(iii) At least once each year, the division director
over residential services, in consultation with the TJJD PREA coordinator,
reviews and documents whether any adjustments are needed to each TJJD-operated
facility's:
(I) staffing plan;
(II) prevailing staffing patterns;
(III) deployment of video monitoring systems and other
monitoring technologies; and
(IV) resources available to ensure adherence to the
staffing plan.
(B) Staff Ratios. Each TJJD-operated high restriction
facility maintains staff ratios in accordance with §380.9955
of this title.
(C) Unannounced Rounds.
(i) At each TJJD-operated high restriction facility,
a staff member with management responsibilities conducts and documents
unannounced rounds to identify and deter sexual abuse and sexual harassment.
The unannounced rounds must be conducted at least twice per month
on each shift.
(ii) At each TJJD-operated medium restriction facility,
a staff member with management responsibilities conducts and documents
unannounced rounds to identify and deter sexual abuse and sexual harassment.
The unannounced rounds must be conducted at least once per month on
each shift.
(iii) Staff members are prohibited from notifying other
staff members that unannounced rounds are occurring, unless such notification
is related to the legitimate operational functions of the facility.
(4) Limits to Cross-Gender Viewing and Searches.
(A) TJJD maintains restrictions and limitations on
cross-gender searches in accordance with §380.9709 of this title.
(B) TJJD does not search or physically examine a transgender
or intersex youth for the sole purpose of determining the youth's
genital status. The status may be determined during conversations
with the youth, by reviewing medical records, or as part of a broader
medical examination conducted in private by a medical practitioner.
(C) In TJJD-operated residential facilities, staffing
patterns and physical barriers are implemented to enable youth to
shower, perform bodily functions, and change clothing without non-medical
staff of the opposite gender viewing their breasts, buttocks, or genitalia,
except in exigent circumstances or when such viewing is incidental
to routine room checks.
(D) In TJJD-operated residential facilities, staff
who are not the same gender as the youth must announce their presence
when entering:
Cont'd... |
