1. (a) Purpose. The Texas Youth Commission (TYC) has zero tolerance for any form of sexual abuse of youth under TYC jurisdiction. This rule establishes prohibited conduct and behaviors that are broader than those established by statute as violations of law. This rule sets forth standards for reporting and investigating alleged sexual abuse of TYC youth. This rule also addresses screening and housing placement procedures for youth who may be potential victims or perpetrators of sexual abuse.
2. (b) Applicability. This rule applies to TYC-operated and contract care residential facilities.

3. (c) Additional References.

   1. (1) For reporting obligations and investigation procedures, see §93.33 of this title (relating to Alleged Abuse, Neglect and Exploitation).
   2. (2) For procedures regarding appeals to the chief executive officer, see §93.53 of this title (relating to Appeal to Executive Director).
   3. (3) For procedures regarding youth orientation, see §91.15 of this title (relating to Youth Orientation).
   4. (4) For procedures regarding preservation of evidence, see §97.11 of this title (relating to Control of Unauthorized Items Seized).
   5. (5) For youth grievance procedures, see §93.31 of this title (relating to Youth Grievance System).
   6. (6) For restrictions on cross-gender searches, see §97.9 of this title (relating to Youth Search).
   7. (7) For referrals to criminal court, see §95.5 of this title (relating to Referral to Criminal Court).
   8. (8) For procedures regarding investigations of youth death, see §99.51 of this title (relating to Death of a Youth).
   9. (9) For procedures regarding administrative disciplinary sanctions for employees, volunteers, and contract personnel, see TYC's personnel policy manual.

4. (d) Definitions. Sexual Abuse--Includes sexually abusive contact, sexually abusive penetration, indecent exposure, voyeurism, and sexual harassment, as defined below.

   1. (1) Sexually Abusive Contact--touching without penetration of the genitalia, anus, groin, breast, inner thigh, or buttocks, either directly or through clothing, of another person.
   2. (2) Sexually Abusive Penetration--contact between the penis and vagina or the penis and anus; contact between the mouth and the penis, vagina, or anus; or penetration of the anal or genital opening of another person by hand, finger, or other object.
   3. (3) Indecent Exposure--the display by a staff member of his/her genitalia, buttocks, or breast in the presence of a youth.
   4. (4) Voyeurism--an invasion of a youth's privacy by a staff member unrelated to official duties, such as peering at a youth who is showering or undressing in his or her cell or requiring a youth to expose him or herself for reasons unrelated to official duties.
   5. (5) Sexual Harassment--repeated verbal statements, comments, or behaviors of a sexual nature to a youth by any individual including threats, extortion, bribery, demeaning references to gender, derogatory comments about body or clothing, or profane or obscene language, gestures, or written comments.

5. (e) General Provisions.

   1. (1) It is the policy of TYC to ensure that any form of sexual activity between youth or between youth and staff/volunteers/contract employees, regardless of consensual status, is strictly prohibited. Such conduct is subject to administrative disciplinary sanctions and may result in criminal prosecution.
   2. (2) Youth under TYC jurisdiction whose placement is in a TYC-operated residential facility or contracted residential program cannot give consent to engage in behavior defined as sexual abuse under this policy, regardless of the youth's age.
   3. (3) Retaliation against any youth or employee who reports or assists in the investigation of alleged sexual abuse is strictly prohibited and is grounds for disciplinary action up to and including termination of employment.
   4. (4) The facility administrator is the person responsible for the implementation and enforcement of this rule.

6. (f) Reporting of Sexual Abuse.

   1. (1) Any TYC employee, volunteer, or contractor who has cause to believe that a youth in any program or facility under TYC jurisdiction has been or may be subjected to an act or threat of sexual abuse or receives a report of sexual abuse or possible sexual abuse, whether verbally or in writing, must immediately notify the proper authorities in accordance with agency policy and state law.

   2. (2) Any youth or person advocating on behalf of a youth may report an act or threat of sexual abuse to:

      1. (A) the TYC Office of Inspector General 24-hour Incident Reporting Center (hotline);
      2. (B) any TYC staff member, volunteer, contract employee, or any other individual who can report the incident; or
      3. (C) any law enforcement agency.

7. (g) Actions of the Facility Administrator Regarding a Report of Alleged Sexual Abuse. The facility administrator, in consultation with the appropriate law enforcement agency, will take the following actions immediately upon receipt of the report:

   1. (1) notify the victim's parents or guardian of the report;

   2. (2) take immediate steps to protect the victim by ensuring that the alleged victim and alleged perpetrator are physically separated pending an investigation, which may include, but is not limited to:

      1. (A) dorm transfer or other placement within the facility; or
      2. (B) administrative transfer to another facility or program; and
   3. (3) preserve evidence that may be pertinent to an investigation of the matter.

8. (h) Standards of Care.

   1. (1) Screening.

      1. (A) Within 24 hours after each of the following events, each youth will be screened for potential vulnerability to be sexually abused or tendencies of acting out with sexually aggressive behavior or the likelihood of sexually abusing others:

         1. (i) admission to TYC; and
         2. (ii) transfer to another TYC-operated or contract care residential facility.
      2. (B) Youth identified as high risk for sexual victimization are monitored and counseled.
      3. (C) Youth identified as high risk with a history of sexually abusive behavior are monitored, counseled, and provided appropriate treatment.

   2. (2) Placement.

      1. (A) When a youth is identified as being at risk for sexual abuse at his/her current dorm or room assignment, the screening staff will request that the facility administrator move the youth to an alternate placement within the facility.
      2. (B) If an alternative placement cannot be arranged due to lack of available beds, the facility administrator will develop a written plan of action that provides a safe and secure environment for the victim and ensure the plan is implemented.
      3. (C) Upon facility transfer, the receiving staff will review any previous screening regarding sexually abusive behavior or sexual victimization and make a recommendation for placement and mental health services if needed.
      4. (D) In cases of youth-on-youth sexual abuse, the alleged perpetrator will be separated from the alleged victim pending the outcome of the investigation.

   3. (3) Medical Services.

      1. (A) When referred by the TYC Office of Inspector General or local law enforcement, a victim of sexually abusive penetration will be transported immediately to a hospital, clinic, emergency room, or infirmary which can provide for medical examination by a Sexual Assault Nurse Examiner (SANE) or equally qualified medical personnel.

      2. (B) A victim of any type of sexual abuse will:

         1. (i) receive a mental health assessment as soon as possible;
         2. (ii) receive a medical assessment as soon as possible;
         3. (iii) be provided protective housing as needed; and/or
         4. (iv) be provided emergency counseling to include independent certified rape crisis counseling, if desired by the victim.

   4. (4) Mental Health Services.

      1. (A) If a mental health provider (MHP), as defined in §91.87 of this title (relating to Suicide Alert Explanation of Terms), determines that a youth needs mental health services, the MHP must notify the appropriate staff of his/her recommendation.
      2. (B) Upon notification of the MHP's recommendation for continued mental health services, the appropriate staff will implement the recommendation(s) and document accordingly.
9. (i) Standards for Investigations. An investigation is conducted and documented in accordance with §93.33 of this title and/or TYC Office of Inspector General criminal investigation procedures whenever sexual abuse is alleged, is threatened, or occurs.

10. (j) Prevention Procedures.

    1. (1) Upon admission to TYC or when a youth's residential placement changes, the youth shall be provided with information regarding sexual abuse including prevention/intervention, self-protection, reporting, medical treatment, and mental health counseling. During orientation, the sexual abuse information shall be communicated, verbally and in writing, in a language clearly understood by the youth.

    2. (2) To prevent sexual abuse and provide a safe and secure environment, each TYC-operated or contracted residential facility will provide the highest level of supervision of youth to prevent sexual abuse through:

       1. (A) a staff to youth ratio as required under applicable statute or contract provisions;
       2. (B) surveillance equipment to aid staff in detecting inappropriate behavior; and
       3. (C) a structural facility design that allows visual supervision of youth in areas such as shower and restroom areas, dormitories, education buildings, recreational areas, etc.

11. (k) Annual Audit and Certification.

    1. (1) TYC's executive commissioner or designee will annually assess safety and compliance and develop action plans to achieve full compliance with PREA standards. The approved internal assessment will be posted for publication on the agency website and provided to appropriate legislative oversight committees.
    2. (2) TYC's executive commissioner will certify that the agency is in full compliance or has established an action plan to enable full compliance with the Prison Rape Elimination Act standards based on the results from annual audits conducted by an independent auditor.
12. (l) Annual Reporting. The agency will participate in the annual surveys and any other ad hoc investigations conducted by the Bureau of Justice Statistics or its contractors/designees.
13. (m) Record Keeping. All case records associated with claims of sexual abuse, including incident reports, investigative reports, youth information, case disposition, medical and counseling evaluation findings, and recommendation for post-release treatment and/or counseling will be retained in accordance with the agency's record retention schedule.
14. (n) Training Requirements. All staff will receive annual training regarding the prevention and identification of sexual abuse.

Source Note:The provisions of this §380.9337 adopted to be effective December 15, 2008, 33 TexReg 9710; transferred effective June 4, 2012, as published in the Texas Register June 22, 2012, 37 TexReg 4639.