Sexual Assault and Harassment
NCPLS takes sexual assault cases very seriously. If someone you know has been assaulted while in jail or prison, please encourage them to write to us as soon as they are able. We encourage anyone who has been assaulted to seek medical care to treat any injuries and document the assault. The standards for the Prison Rape Elimination Act, known as PREA, went into effect in 2013. Under the PREA standards, everyone has the right to be free from sexual harassment and abuse while in jail or prison, whether that abuse comes from staff or from other people in the facility; the right to have thier report of sexual harassment or abuse investigated by facility officials; and the right to be free from retaliation for reporting incidents of sexual harassment or abuse. Everyone also has the right to medical services following a report of an alleged act of sexual abuse at no cost or co-payment; the right to a referral for mental health services; and the right to access victim advocates for emotional support services from a local, state or national rape crisis organization in as confidential a manner as possible.
In order to follow the rules in the Prison Rape Elimination Act (PREA), prison facilities have uniform procedures and policies for handling sexual assault incidents. While jail facilities are also subject to PREA standards, the procedures and policies they use are different for each facility. There are several different ways for a person to report an assault that happened in a prison, including by talking to a staff member the person trusts, writing or calling the DAC PREA office, or filing a grievance. A longer list of ways that someone can file a PREA report is in the “PREA Standards and Advice About Reporting Sexual Harassment and Abuse” document, linked below. For assaults that take place in jail facilities, we recommend that individuals immediately report the incident to the Sheriff, the Jail Administrator, or to a staff member whom they trust and ask that a criminal investigation be opened into the abuse. A person can also write a grievance requesting that thier sexual harassment or abuse be investigated.
The PREA law also makes some rules about how grievances and reports of sexual harassment or assault need to be handled, which are different for how reports of other bad acts in prison are handled. For example, while prison rules usually say that only a person who has been harmed can file a grievance or make a report, PREA says that the prison has to accept reports of sexual assault or harassment from anyone. This means that a family member of the assault survivor, an attorney, or someone else can report sexual abuse. However, we strongly urge people to only make reports like that if they have permission from the person who experienced the assault or harassment. Another important difference is that, while people in prison usually have only 90 days to file a grievance about bad things that happen to them, PREA says that there is no deadline to file a report of sexual harassment or assault.
As of early 2026, we understand that the federal government is in the process of changing the guidance that the PREA Resource Center gives jails and prisons about how to handle PREA complaints. We are watching these changes closely, and will update our information as we learn more.
The PREA law does not allow people to sue under it directly (it does not include a “private right of action”), but, if someone was sexually assaulted by prison staff, it is possible to file a federal constitutional claim, based in the Eighth Amendment, about it. For a person to win an Eighth Amendment claim against a staff member who assaulted them (whether physically or sexually), they have to show that 1) they suffered a sufficiently serious injury, and 2) the staff member acted with a sufficiently guilty state of mind. Both parts of that standard depend a great deal on the facts of each case, but there are some general rules that are helpful to know. First, it is not enough for someone to say that they thought the touch or force was sexual in nature; they need to show that the touch was something that people in general would think was sexual, and that the staff member meant it to be sexual. For this reason, an unwanted touching of a private area of somone’s body, on its own, is usually not enough to prove a sexual assault claim, unless the person doing the touching also made sexual comments, or did or other things that showed that what they were doing was sexual in nature. Second, claims based on verbal threats or isolated incidents of inappropriate harassment, but which do not involve physical sexual contact, also do not often succeed.
Because this constitutional standard is so high, and because it only applies when the sexual assault was done by a staff member, some people choose to file a claim that facility officials failed to protect them from harm, which can include sexual assault. Depending on whether the failure was intentional (something the staff meant to do), or negligent (something that happened by mistake, or because the staff was not doing their jobs correctly), this kind of claim could be filed either in state or in federal court. For more information about on these types of claims, please see our guidance on Failure to Protect from Assault.
Because of the limits of our resources,our office is not able to represent every person who writes to us regarding failure to protect claims. However, we read every letter that we get, and, when we cannot offer to represent someone, we write back and send forms, manuals or other information if we have it, to help people in prison file a lawsuit on their own.
Helpful Links and Resources:
PREA Standards and Advice About Reporting Sexual Harassment and Abuse.pdf Download PDF • 135KB
Just Detention International (International organization combatting sexual assault in prisons and jails)
