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PREA UPDATE PRISON RAPE ELIMINATION ACT

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  1. PREA UPDATEPRISON RAPE ELIMINATION ACT 2013 SELF PACED VERSION OKLAHOMA DEPARTMENT OF CORRECTIONS Rev. 8-2013

  2. Prison Rape Elimination Act References • Oklahoma Department of Corrections OP-030601 • Oklahoma Coalition Against Domestic Violence and Sexual Assault • U.S. Department of Justice • National Institute of Corrections • Lorry Schoenly, PhD, RN, CCHP • American Probation and Parole Association, The International Community Corrections Association and Pretrial Justice Institute • National Institute of Corrections/Washington College of Law Project on Addressing Prison Rape, American University Washington College of Law • Prepared by Christi Hendrex, Ed Kearns & Valerie Hale June 5, 2013 • Reviewed by Bryan D. Bell, August 8, 2013 • 1.0 hours training credit • CY 2013 Self Paced Version

  3. OBJECTIVES • UNDERSTAND THAT IT IS A ZERO-TOLERANCE POLICY FOR SEXUAL ABUSE AND SEXUAL HARASSMENT. • OFFENDERS’ RIGHTS TO BE FREE FROM SEXUAL ABUSE AND SEXUAL HARASSMENT. • THE RIGHT OF OFFENDERS AND EMPLOYEES TO BE FREE FROM RETALIATION FOR REPORTING SEXUAL ABUSE AND SEXUAL HARASSMENT • HOW TO FULFILL RESPONSIBILITIES UNDER AGENCY SEXUAL ABUSE AND SEXUAL HARASSMENT PREVENTION, DETECTION, REPORTING AND RESPONSE TO POLICIES AND PROCEDURES • THE DYNAMICS OF SEXUAL ABUSE AND SEXUAL HARASSMENT IN CONFINEMENT. • THE COMMON REACTIONS OF SEXUAL ABUSE AND SEXUAL HARASSMENT VICTIMS. • HOW TO DETECT AND RESPOND TO SIGNS OF THREATENED AND ACTUAL SEXUAL ABUSE. • HOW TO AVOID INAPPROPRIATE RELATIONSHIPS WITH OFFENDERS. • HOW TO COMMUNICATE EFFECTIVELY AND PROFESSIONALLY WITH OFFENDERS INCLUDING LESBIAN, GAY BISEXUAL, TRANSGENDER, INTERSEX OR GENDER NON-CONFORMING OFFENDERS. • HOW TO COMPLY WITH RELEVANT LAWS RELATED TO MANDATORY REPORTING OF SEXUAL ABUSE TO OUTSIDE AUTHORITIES.

  4. U.S. SUPREME COURT “Sexual abuse is not part of the penalty that criminal offenders pay for their offenses against society.” Farmer v. Brennan, 511 U.S. 825 (1994).

  5. ZERO-TOLERANCE POLICY • The Oklahoma Department of Corrections maintains a zero tolerance for offender-on-offender sexual assault, staff sexual misconduct and sexual harassment toward offenders. Every allegation of sexual assault, misconduct and harassment is thoroughly investigated. • Prohibited conduct applies to all employees, volunteers and contract staff of DOC. Sexual conduct between staff and offenders is prohibited and subject to administrative disciplinary sanctions and referred for prosecution. Oklahoma Department of Corrections Prison Rape Elimination Act OP-030601

  6. PROHIBITED CONDUCT • RAPE • Rape is defined as sexual intercourse, oral sodomy and sexual assault with an object or sexual fondling of a person. In addition, rape is defined as, forced or against that person’s will or sexual intercourse or the exploitation or fear or threat of physical violence or bodily injury. • Rape and related sex crimes are also defined by Oklahoma statute and includes, but is not limited to, the elements defined in each crime (21 O.S. § 1111, 1111.1, 886, 888, & 1123).

  7. PROHIBITED CONDUCT • SEXUAL ABUSE OR ASSAULT • Sexual abuse includes, but is not limited to, sexual intercourse, oral or anal sodomy and sexual acts with instruments. • Effective November 1, 2000, sodomy committed by state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state is defined by law a felony. • Consensual sexual intercourse with an offender is by its nature an assault and defined by law as rape in the second degree, a felony.

  8. PROHIBITED CONDUCT • SEXUAL CONTACT/INTIMACY • The intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thighs or buttocks of any offender, when such touching is unrelated to the necessary performance of job duties and conversation or correspondence that demonstrates or suggests a romantic or intimate relationship. • Sexual battery committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, county, municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state is defined by law as a felony effective November 1, 2000.

  9. PROHIBITED CONDUCT • SEXUAL HARASSING ACTIVITIES • Sexually offensive comments, gestures or any physical conduct which is of a sexual nature or sexually suggestive. • Influencing, promising or threatening an offender’s safety, custody or security level (including recommendations for court actions), privacy, housing, privileges, work detail or program status in exchange for sexual favors. • Creating an intimidating, hostile or offensive environment for an offender or others by engaging in or permitting sexually offensive behavior or language that is directed at or observable by offenders or others.

  10. PROHIBITED CONDUCT INVASION OF PRIVACY • The act of observing, attempting to observe or interfering in an offender’s personal, intimate routines unrelated to the necessary performance of required job duties.

  11. SEXUAL ASSAULT • OFFENDER-ON-OFFENDER • Non-Consensual Sexual Acts • Contact of any offender without his or her consent or of an offender who is unable to consent or refuse: and one or more of the following: contact between the penis and the vagina or the penis and the anus including penetration, however slight: contact between the mouth and the penis, vagina or anus: or penetration of the anal or genital opening of another person by a hand, finger or other object. • Abusive Sexual Contacts • Contact of a sexual nature of any offender without his or her consent or of an offender who is unable to consent or refuse: and intentional touching, either directly or through clothing of the genitalia, anus, groin, breast, inner thigh or buttocks. This does not include contact in which the intent was to debilitate the offender.

  12. SEXUAL ASSAULT • STAFF-ON-OFFENDER • Staff Sexual Misconduct • Any behavior or act of a sexual nature toward an offender by an employee, consensual or nonconsensual, and one or more of the following: intentional touching of the genitalia, anus, groin, breast, inner thigh or buttocks with the intent to abuse, arouse or gratify sexual desire: or completed, attempted, threatened, or requested sexual acts: or occurrences of indecent exposure, invasion of privacy, or staff voyeurism for sexual gratification. • Staff Sexual Harassment • Repeated verbal statements or comments of a sexual nature to an offender by an employee, including one or more of the following: demeaning references to gender or derogatory comment about body or clothing: or repeated profane or obscene language or gestures.

  13. RETALIATION OP-030601 defines retaliation as: An act of vengeance, covert or overt action or threat of action taken against an offender in response to the offender’s complaint of sexual misconduct or cooperation in the reporting or investigation of sexual misconduct, regardless of the merits or the disposition of the complaint. Examples of acts of retaliation are unnecessary discipline, intimidation, unnecessary changes in work or program assignment, unjustified transfers or placements and unjustified denials of privileges or services. Attachment A OP-030601 Sexual Misconduct and Harassment Guide The Department strictly prohibits any staff member from interfering with an investigation including intimidation or retaliation against any offender or staff witnesses.

  14. PREA Data Collection Activities, 2012U. S. Department of Justice • An estimated 9.6% of former state prisoners reported one or more incidents of sexual victimization during the most recent period of incarceration in a jail, prison and post-release community-treatment facility. • Among all former state prisoners, 1.8% reported experiencing one or more incidents while in a local jail, 7.5% while in a state prison, and 0.1% while in a post-release community-treatment facility. • About 5.4% of former state prisoners reported an incident involving another offender and 5.3% reported an incident involving facility staff. • An estimated 1.2% of former prisoners reported that they unwillingly had sex or sexual contact with facility staff and 4.6% reported that they “willingly” had sex or sexual contact with staff. • More than three-quarters of all reported staff sexual misconduct involved a male offender with female staff. • Among former state prisoners, the rate of offender-on-offender sexual victimization was at least three times higher for females (13.7%) than males (4.2%). • Among heterosexual males, an estimated 3.5% reported being sexually victimized by another offender. In comparison, among males who were bisexual, 34% reported being sexually victimized by another offender. Among males who were homosexual or gay, 39% reported being victimized by another offender.

  15. PREA Data Collection Activities, 2012U. S. Department of Justice • Rates of sexual victimization did not vary based on commonly cited characteristics of facilities, including size or age of facility, crowding, offender-to-staff ratios or gender composition of staff. • Among male former offenders, offender-on-offender and staff-on-offender victimizations rates were higher in facilities under a court order or consent decree, in facilities reporting a major disturbance in the 12 months prior to the most recent facility census, in facilities with medium or greater security levels and in facilities with a primary function of housing general population than rates in facilities without these characteristics. • Among female former offenders, rates of offender-on-offender victimization were lower in community corrections centers, in facilities that permitted 50% or more of their offenders to leave unaccompanied during the day, in minimum or low security facilities and in privately operated facilities that in facilities without these characteristics. • Following their release from prison, 72% of victims of offender-on-offender sexual victimization indicated they felt shame or humiliation and 56% said they felt guilt. 79% of unwilling victims of staff sexual misconduct said they felt shame or humiliation and 72% said they felt guilty.

  16. Far-Reaching Consequences of Prison Sexual Abuse • Victims may find it difficult to re-integrate into society, relate to their families and rebuild their lives. • Possibly contract sexually transmitted diseases • After release, victims may seek medical and psychological treatment, possibly at the expense of tax payers. • Facilities with high rates of abuse do not function efficiently because the victims trying to escape the abuse are disruptive whether the abuse is reported or not.

  17. INDICATORS OF SEXUAL VIOLENCE KEY POINTS • Sexual assault can have many physical, behavioral and emotional consequences and manifestations for victims. Many victims will never seek or receive services to help them heal from the trauma of the assault. • Unless excessive physical force is used, most victims will not have visible physical injuries from the sexual assault. Coercion, intimidation and the threat of force all can be contributing factors to why excessive force is not used in many assaults. The absence of physical evidence in no way correlates with the level of fear that victims may have experienced during the assault. • The most common physical signs of a sexual assault include bruising and trauma to the genital area. Some physical signs may be obvious, such as bleeding and might require medical attention. Other physical indicators, such as pregnancy or a sexually transmitted infection, may be detected days or even weeks after the assault.

  18. INDICATORS OF SEXUAL VIOLENCE KEY POINTS cont. • Sexual victimization can result in short-term or long-term behavioral changes and coping responses. These include self-harming behaviors (drug use, a suicide attempt, etc.): changes in social interactions and behaviors (withdrawal, etc.): and changes in individual behaviors (sleep disturbances, shifts in eating patterns, bed-wetting, etc.). Neither the presence nor absence of any of these behaviors confirms that sexual assaults did-or did not-occur. If you see an offender with indicators of sexual violence, immediately begin the steps to report it.

  19. VICTIM REACTIONS TO SEXUAL ASSAULT • Fear Responses • Losing Control • Flashbacks • Concentrating • Guilty Feelings • Feeling “DIRTY” • Depression • Disrupted Relationships

  20. THE PHYSICAL REACTION People react to any kind of fearful situation on three different levels: physical, mental, and behavioral. Our physical reactions are automatic; when faced with danger—or anything we interpret as dangerous—our bodies automatically respond. For instance, our hearts begin to beat faster and harder, our blood pressure increases, we breathe faster and harder, and our muscles get more tense. These kinds of physical reactions are the result of a flow of adrenalin, and is referred to as a “fight” or “flight” response. When we perceive that we are being threatened, our bodies automatically get ready to either fight the threatening object or to run away from the threat.

  21. THE MENTAL REACTION Sometimes it is not a physical reminder, but rather a thought or emotion, that triggers or stimulates fear. It is not unusual, for example, for an assault victim to wonder if the assailant will come back and harm him or her again, or if someone else is lurking in the shadows waiting to victimize her. It is not unusual for the victim to fear being alone. Sometimes certain people, places, things, or circumstances will trigger these thoughts; at other times, the thoughts just enter the minds of the victims without any clear stimuli. For example, many victims report that pictures of the assault flash through their minds, even though they do not want, and try not, to think about it. These kinds of experiences—of having frightening thoughts invade their minds—seem to be virtually uncontrollable at times and can make it difficult to concentrate. Or, many people have nightmares or “night terrors”(in which they wake up crying but can’t recall what they were dreaming about) related to the assault. They feel that, even while asleep, they are not safe from frightening thoughts: these kinds of intrusive thoughts, images and dreams may lead a victim to think she/he is going crazy since they do not seem to be able to control their minds. It is very important to know that these reactions are not abnormal! Very stressful, traumatic events can often lead to these kinds of reactions.

  22. THE BEHAVIORAL REACTION A third way that trauma victims respond to the fear and anxiety associated with the traumatic event is on a behavioral level, where they try to control or avoid the fear response itself. In other words, they try to avoid the intense discomfort associated with the physical and mental aspects of fear and anxiety. They will go to great lengths to avoid people, places, things or situations which remind them of the assault.

  23. Providing Support & Protection to the Victim The first step in responding to a sexual assault is to provide support and protection to the victim and to prevent any further harm or injury. The victim may be in shock and may have suffered injuries during the assault. Assess the situation, remain calm when communicating with the victim, and take immediate steps to ensure his or her safety. It is also important to be familiar with and follow agency policy and procedure to ensure an effective response and investigation. The following steps should be taken to provide support and protection to the victim following a sexual assault: • Assess the situation to ensure that it is safe to intervene. • Separate the victim and the alleged perpetrator to prevent further harm or injury. • Observe and document any physical injuries the victim may have suffered, and ensure that the victim receives emergency medical attention, if needed. • Use supportive, non-judgmental language when communicating with the victim. • Inform the victim of your role, including getting only basic information for the investigator, providing immediate protection for the victim, and ensuring that the victim receives medical and mental health assistance.

  24. LGBTILESBIAN-GAY-BISEXUAL-TRANSGENDER-INTERSEX • Surveys conducted by the Bureau of Justice Statistics indicate that non-heterosexual adult offenders report higher rates of sexual victimization while in custody. • Similarly, a 2009 research report cited findings that transgender offenders experienced sexual victimization at a rate thirteen times higher than a random sampling of offenders in the same facility. • Such evidence indicates that LGBTI offenders are at increased risk for sexual victimization while in custody, and agencies that ignore this may be placing themselves at risk for litigation.

  25. LGBTILESBIAN-GAY-BISEXUAL-TRANSGENDER-INTERSEX • Changes in federal and state legislation, court decisions, settlement agreements and the proposed standards under the Prison Rape Elimination Act (PREA) are all factors for consideration in the management of LGBTI offenders in correctional settings. • For example, the proposed PREA standards contain requirements for agencies to conduct staff training on effective and respectful communication with LGBTI offenders and to enhance sexual abuse prevention measures that specifically address this population.

  26. HOW TO TALK TO LGBTI INDIVIDUALS • Understand Gay and Lesbian People. Learn that gay men and lesbians are no different from any other group of people. • Be open minded, as you would be with any other person. • Do not assume that a person is sexually attracted to you. • Be respectful. • Be aware that it took a lot of courage for someone to tell you that he or she is lesbian, gay, bisexual or transgender and that it is a gift of honesty and trust. • Realize that friendship with a person who is lesbian, gay, bisexual or transgender is not different.

  27. HOW TO TALK TO LGBTI INDIVIDUALS WARNINGS • Just as it would be inappropriate for a person to impose his or her view upon you, be careful that the expression of your view, whether religious or not, does not make a person feel that they are evil or untouchable. If you truly want to understand people, you will need to approach them with an open mind. • Don’t overstep any boundaries. • Don’t use the term “gay” in reference to something you don’t like or disagree with. • Examine your motive for wanting to talk to a LGBTI person. • Hostility will most often be met with hostility. Simply try to open a dialogue rather than lecturing based on your past knowledge or experience. Opening yourself to a person and truly making yourself willing to hear him or her can go a long way towards real understanding between both of you. Using derogatory slang is – at the very least – thoughtlessly using language that shows to other people that you don’t respect the LGBTI community.

  28. Ethics Ethics are the knowledge and guidelines used to make decisions based on a set of morals and values within a particular group. Correctional staff face many challenges that make day-to-day decisions difficult. Making ethical decisions are sometimes even harder. In order to make an ethical decision it helps to: • define the dilemma you are having • gather data and information about the dilemma • list the “pros and cons” if you make a decision either way • ask yourself if your choices would be considered legal • ask yourself if your choices feel consistent with your own values and moral compass • ask yourself if your choices are consistent with your agency’s mission • list the consequences for yourself, offenders, other staff, supervisors, administrators and the public

  29. INAPPROPRIATE STAFF / OFFENDER RELATIONSHIPS • Red Flags Addressing staff sexual misconduct is important both individually and within an agency. While you may not be in danger of committing such an offense, one of your co-workers may be. Therefore it is very important to pay close attention to your colleagues’ behavior as well as your own. • deviating from agency policy for the benefit of a particular offender • changes in the appearance of an offender or staff member • overlooking infractions of a particular offender • spending a lot of time with a particular offender

  30. INAPPROPRIATE STAFF / OFFENDER RELATIONSHIPS Red Flags • trying to manipulate duty assignments in favor of a particular offender • taking up an offender’s cause or grievance • doing favors for an offender • getting into conflicts with co-workers over an offender • withdrawing from co-workers • consistently volunteering for a particular assignment or shift • consistent overtime • coming to work early • staying at work late • flirting with an offender • feeling the effects of major life changes (such as the end of a relationship) • less rigid body language or standing unusually close to an offender • doing favors for an offender’s family • bringing things into the facility for the offender

  31. INAPPROPRIATE STAFF / OFFENDER RELATIONSHIPS Becoming involved with an offender is dangerous. Dangerous to you, your co-workers and the security of the facility. Most Employees do not start their career with the expectations of becoming involved in a relationship with an offender. It happens by not paying attention to the warning signs or (red flags). Some offenders are very manipulative and we are in their presence when we walk through that gate. How can we keep from this happening?

  32. INAPPROPRIATE STAFF / OFFENDER RELATIONSHIPS • Keep your personal life separate from your professional life. • Don’t be doing little favors. • Don’t look for opportunities for contact. • No Correspondence with an Offender. • No Driving off the cliff.

  33. INAPPROPRIATE STAFF / OFFENDER RELATIONSHIPS • Staff sexual misconduct with offenders affects correctional staff by: • Jeopardizing staff safety. • Threatening agency and facility safety and security. • Creating the risk of legal action — both criminal and civil. • Creating health risks. • Harming family relationships. • Creating negative public views of corrections. • Diminishing trust and morale of staff and offenders. • Weakening respect for, and the authority of, correctional staff among offenders.

  34. Consequences of Staff Sexual Misconduct withOffenders Potential legal consequences for staff members may include: • civil liability • criminal prosecution • incarceration • fines • sex offender registration • community notification

  35. Consequences of Staff Sexual Misconduct withOffenders Potential non-legal sanctions for staff members may include: • administrative discipline • loss of employment • loss of professional license/certification • difficulty in obtaining another job • losing the trust of your family, friends, peers and the public • contracting HIV, hepatitis or other sexually transmitted diseases (STDs) • public shame and humiliation • threat to personal safety if incarcerated

  36. Consequences of Sexual Misconduct withOffenders Consequences for offenders may include: • sanctions • victimization • mental health problems • spreading and contracting disease (especially STDs, HIV, Hepatitis) • pregnancy • re-traumatization • family and marital problems

  37. Consequences of Sexual Misconduct withOffenders Potential consequences for agency operations include: • an imbalance of power in favor of offenders (offenders feeling they have a “secret” and can influence or control a staff member) • breaches in safety and security • erratic behavior from offenders thereby placing staff in danger • loss of community, legislative and fiscal support • loss of agency integrity and credibility • difficulty in future recruitment of qualified employees • unfavorable media attention • undermining agency authority • diminished respect for the agency and profession of corrections

  38. Consequences of Sexual Misconduct withOffenders Consequences for staff members’ families may include: • shame • loss of income due to job termination • loss of status with peers and in the community • burden of paying monetary damages • fear of retaliation • loss of family member due to incarceration

  39. Consequences of Sexual Misconduct withOffenders Consequences for the public may include: • fear for personal and community safety • mistrust of the correctional system • loss of confidence in the professionalism of correctional operations • possible cost of treating infectious diseases • cost of paying civil damages to offenders • cost of prosecution • cost of incarcerating the staff member • cost of training replacement staff

  40. Responsibilities of DOC • All offenders receive a mental health screening and/or appraisal during the initial reception and assessment process within 24 hours at a receiving facility in accordance with OP-140114 entitled “Screening New Arrivals.” • This screening and/or appraisal will seek to identify potential vulnerabilities or tendencies related to sexually aggressive behavior. • These screenings and/or appraisals are conducted by a trained mental health professional.

  41. Responsibilities of DOC • All offenders received by the Oklahoma Department of Corrections are to receive an Orientation which includes sexual misconduct and retaliation information. • The Orientation should include information which includes the process offenders use to report any incidents.

  42. Responsibilities of DOC • Any offender may report acts of sexual assault to any employee, contract employee or volunteer using available methods of communication, including but not limited to: verbal reports, “Request to Staff” and/or sick call entitled “Request for Medical Services”

  43. Responsibilities of DOC • The supervisor, through his/her chain of command, ensures the alleged victim and alleged suspect are physically separated. • The alleged victim is immediately taken to medical services for evaluation and treatment. • After treatment the victim will be taken to Mental Health for an evaluation. • With the alleged victim’s and the investigator’s consent, the case manager and/or the victim support person may sit in on the facility or internal affairs interviews. • The identity of victims should remain confidential.

  44. Responsibilities of DOC • Treat all reported incidents of prohibited conduct seriously and refer to Internal Affairs for investigation in accordance with OP-040117. • Ensure that all substantiated allegations of prohibited conduct and all allegations that are substantiated as false are referred appropriately for disciplinary action. • All employees are to receive instruction related to the prevention, detection, response, reporting and investigation of offender on offender sexual assault.

  45. Interference with Official Process ANY FAILURE BY AN EMPLOYEE TO REPORT AN INCIDENT OF SEXUAL MISCONDUCT OR FAILURE TO COOPERATE WITH AN INVESTIGATION OR INQUIRY WILL RESULT IN DISCIPLINARY ACTION. All allegations will be investigated by the Facility or Internal Affairs. The findings after the investigation will determine whether the information will be forwarded to the local District Attorney’s Office who will then determine if prosecution is warranted.

  46. Employee Responsibilities: Response to a Report of a Sexual Assault • Don't Let the Offender Accidentally Destroy Evidence If an offender reports that he/she has been sexually assaulted, advise the offender not to clean themselves, brush their teeth, wash their clothes or do anything else that could destroy evidence of the assault. • Time Is Important The sooner the assault is reported, the better the chance that evidence can be obtained to help prove the assault. • Involve Medical As Soon As Possible When a sexual assault is reported, have the offender checked by medical services ASAP.

  47. Confidentiality All cases associated with claims of sexual abuse, including incident reports, investigative reports, offender information, case disposition, medical and counseling evaluation findings and recommendations for post release treatment and or counseling are confidential and retained by DOC. All investigative files are considered confidential information. Copies of the investigative file, applicable section of the offender field file and pertinent medical information is forwarded to the administrator of Internal Affairs. For more detailed information see: Oklahoma Department of Corrections Policy OP-030601

  48. TEST YOURSELF • TRUE OR FALSE • In Farmer v. Brennan, 511 U.S. 825 (1994), the U.S. Supreme Court ruled that sexual abuse is not part of the penalty that criminal offenders pay for their offenses against society. • ANSWER • TRUE

  49. TEST YOURSELF • TRUE OR FALSE • Allegations of Sexual Harassment is not something that is necessary for an employee to report under the new PREA Guidelines • ANSWER • FALSE

  50. TEST YOURSELF • TRUE OR FALSE • One way that trauma victims respond to the fear and anxiety associated with the traumatic event is on a behavioral level, where they try to control or avoid the fear response itself. • ANSWER • TRUE