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Statement of Need: Rape is violent, destructive, and a crime—no less so when the victim is incarcerated. Tolerance of sexual abuse of prisoners in the government's custody is incompatible with American values. Congress affirmed the duty to protect incarcerated individuals from sexual abuse by enacting the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. section 15601 et seq.

Summary of the Legal Basis: PREA requires the Attorney General to promulgate regulations that adopt national standards for the detection, prevention, and punishment of prison rape. PREA established the Commission to carry out a comprehensive legal and factual study of a penological, physical, mental, medical, social, and economic impacts of prison rape in the United States, and to recommend to the Attorney General national standard for the detection, prevention, reduction and punishment of prison rape. The Commission released its recommended national standards in a report dated June 23, 2009. Pursuant to PREA the final rule adopting national standards "shall be based upon the independent judgment of the Attorney General, after giving due consideration to the recommended national standards provided by the Commission...and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider." 42 U.S.C. section 24607(a)(2). PREA expressly mandates that the Department shall not establish a national standard "that would impose substantial additional costs compared to the costs presently expended by the Federal, State, and local prison authorities." 42 U.S.C. section 24607(a)(3).

Alternatives: Given the specific direction of Congress, the Department is obligated to issue a rule that promulgates regulations establishing national standards to combat prison rape. As discussed in the rule and in the Regulatory Impact Analysis (RIA) the Department has received input from numerous stakeholders concerning the development of these regulations and, as part of the development process, considered a wide range of proposals in developing the content of such standards.

Anticipated Costs and Benefits: In directing the Attorney General to promulgate national standards for enhancing the prevention, detection, reduction, and punishment of prison rape. Congress understood that such standards were likely to require federal, state, and local agencies (as well as private entities) that operate inmate confinement facilities to incur costs in implementing and complying with those standards. Given the statue's aspiration to "eliminate" prison rape in the United states, Congress recognized that costs would need to be expended. Indeed, the statute's findings (42 U.S.C. section 15601) suggest an assessment by Congress that the benefits to society of eliminating prison rape are likely to outweigh any anticipated costs of achieving that goal. The Department's full discussion of the anticipated costs and benefits of this rule is included in the rule's Initial Regulatory Impact Assessment.

Risks: These regulations are intended to carry out the intent of Congress to eliminate prison rape. The risks from the failure to promulgate these regulations are primarily that inmates in Federal, State, and local facilities would be at higher risk of sexual assault than they would be if these regulations are promulgated.