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--- version:introduced version+++ version:(document, no version)@@ -1,1776 +1,151 @@-HOUSE BILL HB0292+Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance+committees of the Legislature. LFC does not assume respon sibility for the accuracy of these reports if they+are used for other purposes.-57th legislature - STATE OF NEW MEXICO - second session, 2026+F I S C A L I M P A C T R E P O R T-INTRODUCED BY+BILL NUMBER: CS/House Bill 292/HJCS+SHORT TITLE: NM Prison Rape Elimination Act+SPONSOR: House Judiciary Committee+LAST+UPDATE:-Dayan Hochman-Vigil and Elizabeth "Liz" Stefanics+ORIGINAL+DATE:-and Nicole Chavez+2/15/2026-AN ACT+ANALYST: Sanchez-RELATING TO CORRECTIONAL INSTITUTIONS; ENACTING THE NEW MEXICO-PRISON RAPE ELIMINATION ACT; PROVIDING REQUIREMENTS; PROVIDING-EXCEPTIONS.+ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT*+(dollars in thousands)+Agency/Program FY26 FY27 FY28 3 Year+Total Cost+Recurring or+Nonrecurring+Fund+Affected+State and Local+Detention+Facilities+See "Fiscal+Implications"+See "Fiscal+Implications+See "Fiscal+Implications+See "Fiscal+Implications Recurring General Fund+Parentheses ( ) indicate expenditure decreases.+*Amounts reflect most recent analysis of this legislation.-BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:+Sources of Information- SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be-cited as the "New Mexico Prison Rape Elimination Act".+LFC Files- SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the-New Mexico Prison Rape Elimination Act:+Agency or Agencies Providing Analysis+Administrative Office of the Courts+Law Offices of the Public Defender+Corrections Department+Department of Public Safety- A. "agency" means the unit of a state, local,-corporate or nonprofit authority with direct responsibility for-the operation of a facility that confines inmates, detainees or-residents, including the implementation of policy as set by the-governing, corporate or nonprofit authority;+Agency or Agencies That Were Asked for Analysis but did not Respond+Office of the Attorney General+Administrative Office of the District Attorneys+Municipal League+New Mexico Counties- B. "agency head" means the principal official of an-agency;+SUMMARY- C. "community confinement facility" means a-community treatment center, a halfway house, a restitution-center, a mental health facility, an alcohol or drug-rehabilitation center or other community correctional facility,-including residential reentry centers, other than a juvenile-facility, in which individuals reside as part of a term of-imprisonment or as a condition of pretrial release or-post-release supervision while participating in gainful-employment, employment search efforts, community service,-vocational training, treatment, educational programs or similar-facility-approved programs during nonresidential hours;+Synopsis of HJC Substitute for House Bill 292- D. "contractor" means a person that provides-services on a recurring basis pursuant to a contractual-agreement with an agency;+The House Judiciary Committee substitute for House Bill 292 (HB292/HJCS) adds a new section+to the Corrections Department Act, Chapter 9, Article 3 NMSA 1978, requiring the Corrections+Department (NMCD) to adopt and implement a zero- tolerance policy for sexual abuse and+violence in all incarceration facilities.- E. "detainee" means a person detained in a lockup,-regardless of adjudication status;+The bill mandates that the department promulgate rules by October 21, 2026, to prevent the+occurrence of sexual abuse or violence in those facilities. The required rules must address best+practices, reporting requirements for incidents of sexual abuse or violence, data collection on+CS/House Bill 292/HJCS – Page 2- F. "direct staff supervision" means that security-staff are in the same room with, and within reasonable hearing-distance of, a resident or an inmate;+such incidents, and the provision of services for victims. The rules must also include best+practices to prevent incidents against lesbian, gay, bisexual, transgender, and queer inmates,+provide counseling and health care resources for inmates or guards who have experienced sexual+violence or abuse, and establish staff training both to minimize sexual violence and to receive+reports of sexual violence.- G. "employee" means a person who works directly for-an agency or a facility;+The bill directs NMCD to formally adopt a zero- tolerance policy and to develop and implement+administrative rules governing prevention, reporting, data collection, victim services, and staff+training related to sexual abuse and violence in incarceration facilities.- H. "exigent circumstances" means any set of-temporary and unforeseen circumstances that requires immediate-action in order to combat a threat to the security or-institutional order of a facility;+This bill does not include an effective date and, as a result, would take effect 90 days after the+Legislature adjourns, which is May 20, 2026.- I. "facility" means an individual prison, jail,-lockup, community confinement facility, detention facility,-juvenile facility, place, institution, building or part of a-building, set of buildings, structure or area, whether or not-enclosing a building or set of buildings, that is used by an-agency for the confinement of individuals;+FISCAL IMPLICATIONS- J. "facility head" means the principal official of-a facility;+Agency analyses indicate potential recurring costs associated with rule promulgation, policy+development, training, and implementation of administrative requirements for state facilities+operated by NMCD. The Administrative Office of the Courts reports minimal direct+administrative costs associated with updating and distributing statutory changes, but notes that+any additional fiscal impact on the judiciary would be proportional to enforcement activity and to+the review of final agency actions, including disciplinary sanctions and terminations. New+statutory requirements and related hearings may increase case filings and appeals, potentially+affecting district court caseloads and resource needs.- K. "gender nonconforming" means a person whose-appearance or manner does not conform to traditional societal-gender expectations;+NMCD indicates no immediate new programmatic costs in FY26 but anticipates recurring fiscal+implications beginning in FY27. Although the department currently operates under federal+Prison Rape Elimination Act (PREA) standards, the requirement to promulgate state rules by+October 21, 2026, and to formalize a zero- tolerance policy in statute may require additional+administrative effort, staff training, and potential updates to existing policies and procedures.+Codifying these requirements into state statute may increase litigation exposure and associated+legal defense costs. Compliance determinations could be subject to judicial review, and+deviations from statutory timelines or rule requirements could result in additional civil litigation,+injunctive relief, or related expenses.- L. "inmate" means a person incarcerated or detained-in a prison or jail;+The Department of Public Safety reports no direct fiscal impact on its operating budget but+anticipates increased administrative workload in its role as the state’s administering agency for+PREA-related grant funding, including coordination, technical assistance, and oversight of+subrecipients. HB292/HJCS directs the NMCD to promulgate rules for facilities, and any fiscal+impact on local facilities would depend on the scope of the rules adopted and the extent to which+local facilities are subject to them. Because the bill does not contain a direct appropriation, any+additional compliance costs would be absorbed within existing resources unless otherwise+funded.- M. "intersex" means a person whose sexual or-reproductive anatomy or chromosomal pattern does not fit-typical definitions of male or female;+While state -level operational impacts may be limited in the near term for agencies already+operating under federal PREA standards, the bill could create recurring administrative and+training costs associated with rulemaking and implementation. It may also increase litigation -+related expenditures. The total fiscal impact is indeterminate and may vary based on the content+of rules adopted and the extent of existing compliance.+CS/House Bill 292/HJCS – Page 3- N. "jail" means a confinement facility of a state-or local law enforcement agency whose primary use is to hold-persons pending adjudication of criminal charges, persons-committed to confinement after adjudication of criminal charges-for sentences of one year or less or persons adjudicated guilty-who are awaiting transfer to a correctional facility;+SIGNIFICANT ISSUES- O. "juvenile" means a person under the age of-eighteen, unless under adult court supervision and confined or-detained in a prison or jail;+Much of HB292/HJCS parallels existing federal standards set forth in 28 C.F.R. Part 115. Rather+than establishing a comprehensive statutory framework, the bill requires NMCD to adopt a zero -+tolerance policy and promulgate rules, which may still raise dual- compliance concerns if state+rules differ from federal PREA standards. Where definitions, timelines, or procedural+requirements diverge, agencies subject to both frameworks could face interpretive questions+about which standard applies when they are inconsistent. This may require additional guidance+or rulemaking to harmonize state and federal expectations.- P. "juvenile facility" means a facility primarily-used for the confinement of juveniles pursuant to the juvenile-justice system or criminal justice system;+HB292/HJCS directs the NMCD to promulgate rules by October 21, 2026, but does not specify+enforcement mechanisms, penalty provisions, or an explicit private right of action. Absent an+identified oversight or enforcement mechanism, questions may arise about how compliance will+be monitored, how disputes will be resolved, and what remedies are available for+noncompliance. Because implementation details are left to administrative rulemaking, the scope+and impact of the requirements will depend on the content of the rules adopted.- Q. "law enforcement staff" means employees-responsible for the supervision and control of detainees in-lockups;+HB292/HJCS does not amend or cross -reference specific provisions of the Restricted Housing+Act or criminal statutes in Chapter 30, Article 9 NMSA 1978, nor does it address collective+bargaining agreements. However, rules adopted under the new section may overlap with existing+statutory and contractual frameworks governing correctional operations, employee discipline,+and inmate rights. Any inconsistencies between newly adopted rules and existing law may+require clarification through additional rulemaking or judicial interpretation.- R. "lockup" means a facility that contains holding-cells, cell blocks or other secure enclosures that are:+Finally, HB292/HJCS requires rules to address reporting requirements, victim services, data+collection, and staff training, but does not prescribe detailed operational standards in statute. As a+result, implementation may vary depending on how the department structures reporting avenues,+training programs, and compliance monitoring within its administrative authority.- (1) under the control of a law enforcement,-court or custodial officer; and-- (2) primarily used for the temporary-confinement of individuals who have recently been arrested or-detained or are being transferred to or from a court, jail,-prison or other agency;-- S. "medical practitioner" means a health-professional who, by virtue of education, credentials and-experience, is permitted by law to evaluate and care for-patients within the scope of the medical practitioner's-professional practice;-- T. "mental health practitioner" means a mental-health professional who, by virtue of education, credentials-and experience, is permitted by law to evaluate and care for-patients within the scope of the mental health practitioner's-professional practice;-- U. "pat-down search" means a running of the hands-over the clothed body of an inmate, a detainee or a resident by-an employee to determine whether the individual possesses-contraband;-- V. "prison" means an institution under federal or-state jurisdiction whose primary use is for the confinement of-individuals convicted of a serious crime, usually for a term in-excess of one year in length, or a felony;-- W. "qualified medical practitioner" means a medical-practitioner who has successfully completed specialized-training for treating victims of sexual abuse;-- X. "qualified mental health practitioner" means a-mental health practitioner who has successfully completed-specialized training for treating victims of sexual abuse;-- Y. "resident" means a person confined or detained-in a juvenile facility or in a community confinement facility;-- Z. "restricted housing", whether instituted-pursuant to disciplinary, administrative, inmate classification-or other action, means confinement of an inmate locked in a-cell or similar living quarters in a correctional facility for-twenty-two or more hours each day without daily, meaningful and-sustained human interaction;-- AA. "security staff" means employees primarily-responsible for the supervision and control of inmates,-detainees or residents in housing units, recreational areas,-dining areas and other program areas of a facility;-- BB. "strip search" means a search that requires a-person to remove or arrange some or all clothing so as to-permit a visual inspection of the person's breasts, buttocks or-genitalia;-- CC. "substantiated" means that an allegation was-investigated and determined to have occurred;-- DD. "transgender" means a person whose gender-identity is different from the person's assigned sex at birth;-- EE. "unfounded" means that an allegation has been-investigated and determined by definitive evidence not to have-occurred. An allegation where the evidence is sufficient to-conclude that the conduct at issue occurred or may have-occurred but the conduct did not amount to a violation of the-New Mexico Prison Rape Elimination Act is excluded from the-definition of "unfounded";-- FF. "unsubstantiated" means an allegation has been-investigated, and the investigation produced insufficient-evidence to make a final determination as to whether or not the-event occurred;-- GG. "volunteer" means an individual who donates-time and effort on a recurring basis to enhance the activities-and programs of an agency;-- HH. "youthful inmate" means a person under the age-of eighteen who is under adult court supervision and-incarcerated or detained in a prison or jail; and-- II. "youthful detainee" means a person under the-age of eighteen who is under adult court supervision and-detained in a lockup.-- SECTION 3. [NEW MATERIAL] SEXUAL ABUSE AND SEXUAL-HARASSMENT--NEW MEXICO PRISON RAPE ELIMINATION ACT-COORDINATOR.---- A. An agency shall have a written policy mandating-zero tolerance toward all forms of sexual abuse and sexual-harassment and outlining the agency's approach to preventing,-detecting and responding to sexual abuse and sexual harassment.-- B. An agency shall employ or designate an-upper-level, agency-wide New Mexico Prison Rape Elimination Act-coordinator with sufficient time and authority to develop,-implement and oversee the agency's efforts to comply with the-provisions of the New Mexico Prison Rape Elimination Act in the-agency's facilities.-- C. If an agency operates more than one facility,-each facility shall designate a New Mexico Prison Rape-Elimination Act compliance manager with sufficient time and-authority to coordinate the facility's efforts to comply with-the provisions of the New Mexico Prison Rape Elimination Act.--D. "Sexual abuse" includes:-- (1) sexual abuse of an inmate, a detainee or a-resident by another inmate, detainee or resident; and-- (2) sexual abuse of an inmate, a detainee or a-resident by an employee, a contractor or a volunteer.-- E. Sexual abuse of an inmate, a detainee or a-resident by another inmate, detainee or resident includes 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:-- (1) contact between the penis and the vulva or-the penis and the anus, including penetration, however slight;-- (2) contact between the mouth and the penis,-vulva or anus;-- (3) penetration of the anal or genital opening-of another person, however slight, by a hand, a finger, an-object or other instrument;-- (4) any other intentional touching, either-directly or through clothing, of the genitalia, anus, groin,-breast, inner thigh or buttocks of another person, excluding-contact incidental to a physical altercation; and-- (5) as otherwise provided in Sections 30-9-1-through 30-9-21 NMSA 1978.-- F. Sexual abuse of an inmate, a detainee or a-resident by an employee, a contractor or a volunteer includes-the following acts, with or without consent of the inmate,-detainee or resident:-- (1) contact between the penis and the vulva or-the penis and the anus, including penetration, however slight;-- (2) contact between the mouth and the penis,-vulva or anus;-- (3) contact between the mouth and any body-part where the employee, contractor or volunteer has the intent-to abuse, arouse or gratify sexual desire;-- (4) penetration of the anal or genital-opening, however slight, by a hand, a finger, an object or-other instrument, that is unrelated to official duties or where-the employee, contractor or volunteer has the intent to abuse,-arouse or gratify sexual desire;-- (5) any other intentional contact, either-directly or through clothing, of or with the genitalia, anus,-groin, breast, inner thigh or buttocks that is unrelated to-official duties or where the employee, contractor or volunteer-has the intent to abuse, arouse or gratify sexual desire;-- (6) an attempt, a threat or a request by an-employee, a contractor or a volunteer to engage in the-activities described in this subsection;-- (7) a display by an employee, a contractor or-a volunteer of the employee's, contractor's or volunteer's-uncovered genitalia, buttocks or breast in the presence of an-inmate, a detainee or a resident;-- (8) voyeurism by an employee, a contractor or-a volunteer. "Voyeurism by an employee, a contractor or a-volunteer" means an invasion of privacy of an inmate, a-detainee or a resident by staff for reasons unrelated to-official duties, such as peering at an inmate who is using a-toilet in the inmate's cell to perform bodily functions;-requiring an inmate to expose the inmate's buttocks, genitals-or breasts; or taking images of all or part of an inmate's-naked body or of an inmate performing bodily functions; and-- (9) as otherwise provided in Sections 30-9-1-through 30-9-21 NMSA 1978.-- G. "Sexual harassment" includes:-- (1) repeated and unwelcome sexual advances,-requests for sexual favors or verbal comments, gestures or-actions of a derogatory or an offensive sexual nature by one-inmate, detainee or resident directed toward another; and-- (2) repeated verbal comments or gestures of a-sexual nature to an inmate, a detainee or a resident by an-employee, a contractor or a volunteer, including demeaning-references to gender, sexually suggestive or derogatory-comments about body or clothing or obscene language or-gestures.-- SECTION 4. [NEW MATERIAL] CONTRACTS FOR CONFINEMENT OF-INMATES.---- A. An agency that contracts for the confinement of-the agency's inmates with an agency or other entity shall-include in a new contract or contract renewal the entity's-obligation to comply with the provisions of the New Mexico-Prison Rape Elimination Act.-- B. A new contract or contract renewal shall provide-for agency contract monitoring to ensure that the contractor is-complying with the provisions of the New Mexico Prison Rape-Elimination Act.-- SECTION 5. [NEW MATERIAL] SUPERVISION AND MONITORING OF-FACILITIES.---- A. An agency shall ensure that each facility the-agency operates shall develop, document and make the facility's-best efforts to comply with a staffing plan that provides for-adequate levels of staffing and, where applicable, video-monitoring to protect inmates against sexual abuse. In-calculating adequate staffing levels and determining the need-for video monitoring, a facility shall take into consideration:-- (1) generally accepted detention and-correctional practices;-- (2) any judicial findings of inadequacy;-- (3) any findings of inadequacy from-investigative agencies;-- (4) any findings of inadequacy from internal-or external oversight bodies;-- (5) all components of the facility's physical-plant, including blind spots or areas where staff or inmates-may be isolated;-- (6) the composition of the inmate population;-- (7) the number and placement of supervisory-employees;-- (8) institution programs occurring on a-particular shift;-- (9) applicable state or local laws,-regulations or standards;-- (10) the prevalence of substantiated and-unsubstantiated incidents of sexual abuse; and-- (11) any other relevant factors.-- B. In instances where the staffing plan is not-complied with, the facility shall document and justify all-deviations from the plan.-- C. Whenever necessary, but at least once each year,-for each facility that an agency operates, in consultation with-the agency's New Mexico Prison Rape Elimination Act-coordinator, the agency shall assess, determine and document-whether adjustments are needed to:-- (1) the staffing plan established pursuant to-Subsection A of this section;-- (2) the facility's deployment of video-monitoring systems and other monitoring technologies; and-- (3) the resources that the facility has-available to commit to ensure adherence to the staffing plan.-- D. An agency operating a facility shall implement a-policy and practice of having intermediate-level or higher-level supervisors conduct and document unannounced rounds to-identify and deter staff sexual abuse and sexual harassment.-The policy and practice shall be implemented for night shifts-and day shifts. An agency shall have a policy to prohibit-staff from alerting other employees that the supervisory rounds-are occurring, unless the announcement is related to the-legitimate operational functions of the facility.-- SECTION 6. [NEW MATERIAL] YOUTHFUL INMATES.---- A. A youthful inmate shall not be placed in a-housing unit in which the youthful inmate will have sight,-sound or physical contact with an adult inmate through use of a-shared dayroom or other common space, shower area or sleeping-quarters.-- B. In areas outside of housing units, a facility-shall:-- (1) maintain sight and sound separation-between youthful inmates and adult inmates; or-- (2) provide direct staff supervision when-youthful inmates and adult inmates have sight, sound or-physical contact.-- C. Pursuant to the Restricted Housing Act, a-youthful inmate shall not be placed in restricted housing for-any reason. A youthful inmate shall have access to programs-and work opportunities to the extent possible.-- SECTION 7. [NEW MATERIAL] CROSS-GENDER VIEWING AND-SEARCHES.---- A. A facility shall not conduct cross-gender strip-searches or cross-gender visual body cavity searches, including-a search of the anal or genital opening, except in exigent-circumstances or when performed by a medical practitioner.-- B. For a facility whose rated capacity does not-exceed fifty inmates, the facility shall not permit cross-gender pat-down searches of female inmates, absent exigent-circumstances. Facilities shall not restrict female inmates'-access to regularly available programming or other out-of-cell-opportunities in order to comply with this section.-- C. A facility shall document all cross-gender strip-searches, cross-gender visual body cavity searches and cross-gender pat-down searches of female inmates.-- D. A facility shall implement policies and-procedures that enable inmates to shower, perform bodily-functions and change clothing without nonmedical staff of the-opposite gender viewing the inmates' breasts, buttocks or-genitalia, except in exigent circumstances or when such viewing-is incidental to routine cell checks. Policies and procedures-shall require an employee of the opposite gender to announce-the employee's presence when entering an inmate housing unit.-- E. A facility shall not search or physically-examine a transgender or an intersex inmate for the sole-purpose of determining the inmate's genital status. If the-inmate's genital status is unknown, it may be determined during-conversations with the inmate, by reviewing medical records or,-if necessary, by learning that information as part of a broader-medical examination conducted in private by a medical-practitioner.-- F. An agency shall train security staff in how to-conduct cross-gender pat-down searches and searches of-transgender and intersex inmates in a professional and-respectful manner and in the least intrusive manner possible,-consistent with security needs.-- SECTION 8. [NEW MATERIAL] INMATES WITH DISABILITIES AND-INMATES WHO ARE LIMITED IN ENGLISH PROFICIENCY.---- A. An agency shall take appropriate steps to ensure-that inmates with disabilities, including inmates who are deaf-or hard of hearing, who are blind or have low vision or who-have intellectual, psychiatric or speech disabilities, have an-equal opportunity to participate in or benefit from all aspects-of the agency's efforts to prevent, detect and respond to-sexual abuse and sexual harassment. Steps shall include, when-necessary to ensure effective communication with inmates who-are deaf or hard of hearing, providing access to interpreters-who can interpret effectively, accurately and impartially, both-receptively and expressively, using any necessary specialized-vocabulary. An agency shall ensure that written materials are-provided in formats or through methods that ensure effective-communication with inmates with disabilities, including inmates-who have intellectual disabilities or limited reading skills or-who are blind or have low vision. An agency is not required to-take actions that the agency can demonstrate would result in a-fundamental alteration in the nature of a service, a program or-an activity or in undue financial and administrative burdens as-those terms are used in regulations promulgated under Title II-of the federal Americans with Disabilities Act of 1990.-- B. An agency shall take reasonable steps to ensure-meaningful access to all aspects of the agency's efforts to-prevent, detect and respond to sexual abuse and sexual-harassment to inmates who are limited in English proficiency,-including steps to provide interpreters who can interpret-effectively, accurately and impartially, both receptively and-expressively, using any necessary specialized vocabulary.-- C. An agency shall not rely on inmate interpreters,-inmate readers or other types of inmate assistants except in-limited circumstances where an extended delay in obtaining an-effective interpreter could compromise an inmate's safety, the-performance of first-response duties or the investigation of an-inmate's allegations.-- SECTION 9. [NEW MATERIAL] HIRING AND PROMOTION-DECISIONS.---- A. An agency shall not hire or promote a person who-may have contact with inmates, and shall not enlist the-services of a contractor who may have contact with inmates, who-has:-- (1) engaged in sexual abuse in a prison, jail,-lockup, community confinement facility, juvenile facility or-other institution;-- (2) been convicted of engaging or attempting-to engage in sexual activity in the community facilitated by-force, overt or implied threats of force or coercion or if the-victim did not consent or was unable to consent or refuse; or-- (3) been civilly or administratively-adjudicated to have engaged in an activity described in-Paragraph (2) of this subsection.-- B. An agency shall consider any incidents of sexual-harassment in determining whether to hire or promote a person-or to enlist the services of a contractor who may have contact-with inmates.-- C. Before hiring a new employee who may have-contact with inmates, an agency shall:-- (1) perform a criminal background records-check; and-- (2) make the agency's best efforts to contact-all prior institutional employers for information on-substantiated allegations of sexual abuse or any resignation-during a pending investigation of an allegation of sexual-abuse.-- D. An agency shall perform a criminal background-records check before enlisting the services of a contractor who-may have contact with inmates.-- E. An agency shall conduct criminal background-records checks at least every five years of current employees-and contractors who may have contact with inmates or have in-place a system for otherwise capturing such information for-current employees.-- F. An agency shall ask all applicants and employees-who may have contact with inmates directly about previous-misconduct described in Subsection A of this section in written-applications or interviews for hiring or promotions and in-interviews or written self-evaluations conducted as part of-reviews of current employees. An agency shall impose upon-employees a continuing affirmative duty to disclose any such-misconduct.-- G. Material omissions regarding sexual misconduct-or the provision of materially false information shall be-grounds for termination.-- H. An agency shall provide information on-substantiated allegations of sexual abuse or sexual harassment-involving a former employee upon receiving a request from an-employer for whom the employee has applied to work.-- SECTION 10. [NEW MATERIAL] UPGRADES TO FACILITIES AND-TECHNOLOGY.---- A. When designing or acquiring a new facility, or-in planning a substantial expansion or modification of an-existing facility, an agency shall consider the effect of the-design, acquisition, expansion or modification upon the-agency's ability to protect inmates from sexual abuse.-- B. When installing or updating a video monitoring-system, an electronic surveillance system or other monitoring-technology, an agency shall consider how the technology may-enhance the agency's ability to protect inmates from sexual-abuse.-- SECTION 11. [NEW MATERIAL] EVIDENCE PROTOCOL--FORENSIC-MEDICAL EXAMINATIONS.---- A. An agency shall follow a uniform evidence-protocol that maximizes the potential for obtaining usable-physical evidence for administrative proceedings and criminal-prosecutions when investigating allegations of sexual abuse.-- B. An evidence protocol pursuant to Subsection A of-this section shall be developmentally appropriate for youth-where applicable and shall be adapted from or otherwise based-on the most recent edition of the publication of the office on-violence against women of the United States department of-justice, "A National Protocol for Sexual Assault Medical-Forensic Examinations, Adults/Adolescents", or similarly-comprehensive and authoritative protocols developed after 2024.-- C. An agency shall offer a victim of sexual abuse-access to forensic medical examinations, whether on site or at-an outside facility, without financial cost, where-evidentiarily or medically appropriate. The examinations shall-be performed by a sexual assault forensic examiner or a sexual-assault nurse examiner where possible. If a sexual assault-forensic examiner or a sexual assault nurse examiner cannot be-made available, the examination may be performed by another-qualified medical practitioner. The agency shall document the-agency's efforts to provide a sexual assault forensic examiner-or a sexual assault nurse examiner.-- D. An agency shall attempt to make available to a-victim of sexual abuse a victim advocate from a rape crisis-center. If a rape crisis center is not available to provide-victim advocate services, the agency shall make available to-provide the services a qualified community-based staff member-or a qualified agency staff member. An agency shall document-efforts to secure services from rape crisis centers. An agency-may use a rape crisis center that is part of a governmental-unit as long as the center is not part of the criminal justice-system, including a law enforcement agency, and offers a-comparable level of confidentiality to a nongovernmental entity-that provides similar victim services.-- E. If requested by a victim of sexual abuse, the-victim's victim advocate or a qualified agency staff member or-qualified community-based staff member shall accompany and-support the victim through the forensic medical examination-process and investigatory interviews and shall provide-emotional support, crisis intervention, information and-referrals.-- F. To the extent an agency is not responsible for-investigating allegations of sexual abuse, the agency shall-request that an investigating agency follow the requirements of-Subsections A through E of this section.-- G. The requirements of Subsections A through F of-this section shall apply to any state, county or local entity-outside of the agency that is responsible for investigating-allegations of sexual abuse in prisons or jails.-- H. As used in this section:-- (1) "rape crisis center" means an entity that-provides intervention and related assistance, such as the-services specified in 42 U.S.C. 14043g(b)(2)(C), to victims of-sexual assault of all ages; and-- (2) "qualified agency staff member" and-"qualified community-based staff member" means an individual-who has been screened for appropriateness to serve in that role-and has received education concerning sexual assault and-forensic examination issues in general.-- SECTION 12. [NEW MATERIAL] REFERRALS OF ALLEGATIONS FOR-INVESTIGATION.---- A. An agency shall ensure that an administrative or-a criminal investigation is completed for all allegations of-sexual abuse and sexual harassment.-- B. The agency shall have in place a policy to-ensure that allegations of sexual abuse or sexual harassment-are referred for investigation to an agency with the legal-authority to conduct criminal investigations, unless the-allegation does not involve potentially criminal behavior. The-agency shall publish such policy on its website or, if the-agency does not have a website, make the policy available-through other means. The agency shall document all referrals.-- C. A state, local or county entity responsible for-conducting administrative or criminal investigations of sexual-abuse or sexual harassment in prisons or jails shall have in-place a policy governing the conduct of those investigations.-- SECTION 13. [NEW MATERIAL] EMPLOYEE TRAINING--VOLUNTEER-TRAINING.---- A. An agency shall train an employee who may have-contact with inmates on:-- (1) the agency's zero-tolerance policy for-sexual abuse and sexual harassment;-- (2) how to fulfill the employee's-responsibilities under the agency's sexual abuse and sexual-harassment prevention, detection, reporting and response-policies and procedures;-- (3) the right of inmates to be free from-sexual abuse and sexual harassment;-- (4) the right of inmates and employees to be-free from retaliation for reporting sexual abuse and sexual-harassment;-- (5) the dynamics of sexual abuse and sexual-harassment in confinement;-- (6) the common reactions of victims of sexual-abuse and sexual harassment;-- (7) how to detect and respond to signs of-threatened and actual sexual abuse;-- (8) how to avoid inappropriate relationships-with inmates;-- (9) how to communicate effectively and-professionally with inmates, including lesbian, gay, bisexual,-transgender, intersex or gender nonconforming inmates; and-- (10) how to comply with relevant laws related-to mandatory reporting of sexual abuse to outside authorities.-- B. Employee training pursuant to this section shall-be tailored to the gender of the inmates at the employee's-facility. An employee shall receive additional training if the-employee is reassigned from a facility of one gender to a-facility of the opposite gender.-- C. An agency shall provide each employee with-refresher training every two years to ensure that all employees-know the agency's current sexual abuse and sexual harassment-policies and procedures. In years in which an employee does-not receive refresher training, the agency shall provide-refresher information on the agency's current sexual abuse and-sexual harassment policies.-- D. An agency shall document, through employee-signature or electronic verification, that an employee-understands the training that the employee has received.-- E. An agency shall ensure that all volunteers and-contractors who have contact with inmates have been trained on-the volunteers' and contractors' responsibilities under the-agency's sexual abuse and sexual harassment prevention,-detection and response policies and procedures.-- F. The type of training provided to volunteers and-contractors shall correspond with the services the volunteers-and contractors provide and level of contact the volunteers and-contractors have with inmates. All volunteers and contractors-who have contact with inmates shall be notified of the agency's-zero-tolerance policy regarding sexual abuse and sexual-harassment and informed how to report such incidents.-- G. An agency shall maintain documentation-confirming that volunteers and contractors understand the-training that the volunteers and contractors have received-pursuant to this section.-- SECTION 14. [NEW MATERIAL] INMATE EDUCATION.---- A. During an agency's inmate intake process,-inmates shall receive information explaining the agency's-zero-tolerance policy regarding sexual abuse and sexual-harassment and how to report incidents or suspicions of sexual-abuse or sexual harassment.-- B. Within thirty days of intake of an inmate, an-agency shall provide comprehensive education to the inmate-either in person or through video regarding the inmate's rights-to be free from sexual abuse and sexual harassment and to be-free from retaliation for reporting incidents of sexual abuse-and sexual harassment and regarding the agency's policies and-procedures for responding to incidents of sexual abuse and-sexual harassment.-- C. Current inmates who have not received education-pursuant to this section shall be educated within one year of-the effective date of the New Mexico Prison Rape Elimination-Act, and an inmate shall receive education upon transfer to a-different facility to the extent that the policies and-procedures of the inmate's new facility differ from those of-the previous facility.-- D. An agency shall provide inmate education in-formats accessible to all inmates, including those who are-limited in English proficiency, deaf or hard of hearing, blind-or have low vision or otherwise disabled, as well as to inmates-who have limited reading skills.-- E. An agency shall maintain documentation of inmate-participation in education sessions pursuant to this section.-- F. In addition to providing education pursuant to-this section, an agency shall ensure that key information is-continuously and readily available or visible to inmates-through posters, inmate handbooks or other written formats.-- SECTION 15. [NEW MATERIAL] SPECIALIZED TRAINING FOR-INVESTIGATIONS.---- A. In addition to the general training provided to-all employees pursuant to Section 13 of the New Mexico Prison-Rape Elimination Act, an agency shall ensure that, to the-extent the agency conducts sexual abuse investigations, the-agency's investigators receive training in conducting the-investigations in confinement settings.-- B. Specialized training pursuant to Subsection A of-this section shall include techniques for interviewing victims-of sexual abuse, proper use of Miranda and Garrity warnings,-sexual abuse evidence collection in confinement settings and-the criteria and evidence required to substantiate a case for-administrative action or prosecution referral.-- C. An agency shall maintain documentation that the-agency's investigators have completed the specialized training-in conducting sexual abuse investigations required pursuant to-this section.-- D. A state, local or county entity that-investigates sexual abuse in confinement settings shall provide-specialized training as provided in Subsection B of this-section to the agency's agents and investigators who conduct-sexual abuse investigations.-- SECTION 16. [NEW MATERIAL] MEDICAL AND MENTAL HEALTH-SPECIALIZED TRAINING.---- A. An agency shall ensure that all full- and part-time medical practitioners and mental health practitioners who-work regularly in the agency's facilities have been trained in:-- (1) how to detect and assess signs of sexual-abuse and sexual harassment;-- (2) how to preserve physical evidence of-sexual abuse;-- (3) how to respond effectively and-professionally to victims of sexual abuse and sexual-harassment; and-- (4) how and to whom to report allegations or-suspicions of sexual abuse and sexual harassment.-- B. If a medical practitioner employed by an agency-conducts forensic examinations, the medical practitioner shall-receive the appropriate training to conduct the examinations.-- C. An agency shall maintain documentation that-medical practitioners and mental health practitioners employed-by the agency have received the training described in-Subsection A of this section either from the agency or-elsewhere.-- D. Medical practitioners and mental health care-practitioners shall receive the training mandated for employees-and volunteers under Section 13 of the New Mexico Prison Rape-Elimination Act, depending upon the practitioner's status at-the agency.-- SECTION 17. [NEW MATERIAL] INMATE SCREENING FOR RISK OF-VICTIMIZATION AND ABUSIVENESS.---- A. Inmates shall be assessed during an intake-screening and upon transfer to another facility for the-inmates' risk of being sexually abused by other inmates or-sexually abusive toward other inmates. The screening shall-take place within seventy-two hours of arrival at the facility-and shall be conducted using an objective screening instrument.-- B. An intake screening shall consider the following-criteria to assess an inmate for risk of sexual victimization:-- (1) whether the inmate has a mental, physical-or developmental disability;-- (2) the age of the inmate;-- (3) the physical build of the inmate;-- (4) whether the inmate has previously been-incarcerated;-- (5) whether the inmate's criminal history is-exclusively nonviolent;-- (6) whether the inmate has prior convictions-for sex offenses against an adult or a child;-- (7) whether the inmate is or is perceived to-be gay, lesbian, bisexual, transgender, intersex or gender-nonconforming;-- (8) whether the inmate has previously-experienced sexual victimization;-- (9) the inmate's own perception of-vulnerability; and-- (10) whether the inmate is detained solely for-civil immigration purposes.-- C. An initial screening shall consider prior acts-of sexual abuse, prior convictions for violent offenses and-history of prior institutional violence or sexual abuse, as-known to the agency conducting the screening, in assessing-inmates for risk of being sexually abusive.-- D. Within thirty days from an inmate's arrival at a-facility, the facility shall reassess the inmate's risk of-victimization or abusiveness based upon any additional relevant-information received by the facility since the inmate's intake-screening.-- E. An inmate's risk level shall be reassessed when-warranted due to a referral, a request, an incident of sexual-abuse or receipt of additional information that bears on the-inmate's risk of sexual victimization or abusiveness.-- F. An inmate shall not be disciplined for refusing-to answer, or for not disclosing complete information in-response to, questions asked pursuant to Subsection B of this-section.-- G. An agency shall implement appropriate controls-on the dissemination within a facility operated by the agency-of responses to questions asked pursuant to Subsection B of-this section in order to ensure that sensitive information is-not exploited to the inmate's detriment by employees or other-inmates.-- H. If a screening pursuant to this section-indicates that a:-- (1) prison inmate has experienced prior sexual-victimization, whether it occurred in an institutional setting-or in the community, staff shall ensure that the inmate is-offered a follow-up meeting with a medical practitioner or-mental health practitioner within fourteen days of the intake-screening;-- (2) prison inmate has previously perpetrated-sexual abuse, whether it occurred in an institutional setting-or in the community, staff shall ensure that the inmate is-offered a follow-up meeting with a mental health practitioner-within fourteen days of the intake screening; or-- (3) jail inmate has experienced prior--sexual victimization, whether it occurred in an institutional-setting or in the community, staff shall ensure that the inmate-is offered a follow-up meeting with a medical practitioner or-mental health practitioner within fourteen days of the intake-screening.-- I. Information related to sexual victimization or-abusiveness that occurred in an institutional setting shall be-strictly limited to medical practitioners, mental health-practitioners and other staff, as necessary, to inform-treatment plans and security and management decisions,-including housing, bed, work, education and program-assignments, or as otherwise required by federal, state or-local law.-- J. Medical practitioners and mental health-practitioners shall obtain informed consent from inmates before-reporting information about prior sexual victimization that did-not occur in an institutional setting, unless the inmate is-under the age of eighteen.-- SECTION 18. [NEW MATERIAL] USE OF SCREENING-INFORMATION.---- A. An agency shall use information from the risk-screening required by Section 17 of the New Mexico Prison Rape-Elimination Act to inform housing, bed, work, education and-program assignments with the goal of keeping separate those-inmates at high risk of being sexually victimized from those at-high risk of being sexually abusive. The agency shall make-individualized determinations about how to ensure the safety of-each inmate.-- B. In deciding whether to assign a transgender or-an intersex inmate to a facility for male or female inmates,-and in making other housing and programming assignments, an-agency shall consider on a case-by-case basis whether a-placement would ensure the inmate's health and safety and-whether the placement would present management or security-problems. A transgender or an intersex inmate's own views with-respect to the inmate's own safety shall be given serious-consideration.-- C. Placement and programming assignments for each-transgender or intersex inmate shall be reassessed at least-twice each year to review any threats to safety experienced by-the inmate.-- D. Transgender and intersex inmates shall be given-the opportunity to shower separately from other inmates.-- E. An agency shall not place lesbian, gay,-bisexual, transgender or intersex inmates in dedicated-facilities, units or wings solely on the basis of lesbian, gay,-bisexual, transgender or intersex identification or status,-unless the placement is in a dedicated facility, unit or wing-established in connection with a consent decree, legal-settlement or legal judgment for the purpose of protecting the-inmates.-- F. Nothing in the New Mexico Prison Rape-Elimination Act shall be construed to limit, narrow or modify-the Restricted Housing Act.-- SECTION 19. [NEW MATERIAL] PROTECTIVE CUSTODY.---- A. An inmate who is at high risk for sexual-victimization shall not be placed in restricted housing unless-an assessment of all available alternatives has been made and a-determination has been made that there is no available-alternative means of separation from likely abusers. If a-facility cannot conduct such an assessment immediately, the-facility may hold the inmate in involuntary segregated housing-for up to twenty-four hours while completing the assessment.-- B. An inmate placed in restricted housing pursuant-to this section shall have access to programs, privileges,-education and work opportunities to the extent possible. If a-facility restricts access to programs, privileges, education or-work opportunities pursuant to this section, the facility shall-document:-- (1) the opportunities that have been limited;-- (2) the duration of the limitation; and-- (3) the reasons for the limitation.-- C. A facility shall assign inmates to restricted-housing pursuant to this section only until an alternative-means of separation from likely abusers can be arranged, and-the assignment shall not ordinarily exceed a period of thirty-days.-- D. If a restricted housing assignment is made-pursuant to Subsection A of this section, the facility making-the assignment shall clearly document:-- (1) the basis for the facility's concern for-the inmate's safety; and-- (2) the reason why no alternative means of-separation can be arranged.-- E. Every thirty days, a facility shall afford each-inmate housed pursuant to this section a review to determine-whether there is a continuing need for separation from the-general population.-- F. Nothing in the New Mexico Prison Rape-Elimination Act shall be construed to limit, narrow or modify-the Restricted Housing Act.-- SECTION 20. [NEW MATERIAL] INMATE REPORTING.---- A. An agency shall provide multiple internal ways-for inmates to privately report sexual abuse and sexual-harassment, retaliation by other inmates or staff for reporting-sexual abuse and sexual harassment and staff neglect or-violation of responsibilities that may have contributed to such-incidents.-- B. An agency shall provide at least one way for-inmates to report abuse or harassment to a public or private-entity or office that is not part of the agency and that is-able to receive and immediately forward inmate reports of-sexual abuse and sexual harassment to agency officials,-allowing the inmate to remain anonymous upon request. Inmates-detained solely for civil immigration purposes shall be-provided information on how to contact relevant consular-officials and relevant officials at the United States-department of homeland security.-- C. Employees shall accept reports made verbally, in-writing, anonymously and from third parties and shall promptly-document any verbal reports.-- D. An agency shall provide a method for staff to-privately report sexual abuse and sexual harassment of inmates.-- SECTION 21. [NEW MATERIAL] EXHAUSTION OF ADMINISTRATIVE-REMEDIES.---- A. An agency shall not impose a time limit on when-an inmate may submit a grievance regarding an allegation of-sexual abuse. An agency may apply otherwise-applicable time-limits to any portion of a grievance that does not allege an-incident of sexual abuse.-- B. An agency shall not require an inmate to use an-informal grievance process, or to otherwise attempt to resolve-with staff, an alleged incident of sexual abuse.-- C. An agency shall ensure that:-- (1) an inmate who alleges sexual abuse may-submit a complaint without submitting it to an employee who is-the subject of the complaint; and-- (2) the complaint is not referred to an-employee who is the subject of the complaint.-- D. An agency shall issue a final agency decision on-the merits of any portion of a grievance alleging sexual abuse-within ninety days of the initial filing of the grievance.-Computation of the ninety-day time period shall not include-time consumed by inmates in preparing any administrative-appeal. The agency may claim an extension of time to respond,-of up to seventy days, if the normal time period for response-is insufficient to make an appropriate decision. The agency-shall notify the inmate in writing of any such extension and-provide a date by which a decision will be made.-- E. At all levels of the administrative process, if-an inmate does not receive a response within the time allotted-for reply, including any properly noticed extension, the inmate-may consider the absence of a response to be a denial at that-level.-- F. Third parties, including fellow inmates, staff-members, family members, attorneys and outside advocates, shall-be permitted to assist inmates in filing requests for-administrative remedies relating to allegations of sexual abuse-and shall also be permitted to file such requests on behalf of-inmates. If a third party files such a request on behalf of an-inmate, the facility may require as a condition of processing-the request that the alleged victim agree to have the request-filed on the alleged victim's behalf and may also require the-alleged victim to personally pursue any subsequent steps in the-administrative remedy process. If the inmate declines to have-the request processed on the inmate's behalf, the agency shall-document the inmate's decision.-- G. An agency shall establish procedures for the-filing of an emergency grievance alleging that an inmate is-subject to a substantial risk of imminent sexual abuse. After-receiving an emergency grievance alleging that an inmate is-subject to a substantial risk of imminent sexual abuse, the-agency shall immediately forward the grievance, or any portion-thereof that alleges the substantial risk of imminent sexual-abuse, to a level of review at which immediate corrective-action may be taken, shall provide an initial response within-forty-eight hours and shall issue a final agency decision-within five calendar days. The initial response and final-agency decision shall document the agency's determination-whether the inmate is in substantial risk of imminent sexual-abuse and the action taken in response to the emergency-grievance.-- H. An agency may discipline an inmate for filing a-grievance related to alleged sexual abuse only where the-investigation finds that the allegation is unfounded and the-agency demonstrates, by evidence other than an anonymous-source, that the inmate purposefully lied about facts-underlying the grievance and filed the grievance in bad faith.-The agency shall not discipline an inmate for filing a-grievance under the New Mexico Prison Rape Elimination Act-about conduct that the inmate reasonably believed to be a-violation of the New Mexico Prison Rape Elimination Act but-that was determined not to violate the New Mexico Prison Rape-Elimination Act.-- I. Nothing in this section shall restrict an-agency's ability to defend against an inmate lawsuit on the-ground that the applicable statute of limitations has expired.-- SECTION 22. [NEW MATERIAL] INMATE ACCESS TO OUTSIDE-SUPPORT SERVICES.---- A. A facility shall provide inmates with access to-outside victim advocates for emotional support services related-to sexual abuse by giving inmates mailing addresses and-telephone numbers, including toll-free hotline numbers where-available, of local, state or national victim advocacy or rape-crisis organizations and, for persons detained solely for civil-immigration purposes, immigrant services agencies. The-facility shall enable reasonable communication between inmates-and these organizations and agencies in as confidential of a-manner as possible.-- B. A facility shall inform inmates, prior to giving-the inmates access, of the extent to which communications-pursuant to Subsection A of this section will be monitored and-the extent to which reports of abuse will be forwarded to-authorities in accordance with mandatory reporting laws.-- C. An agency shall maintain or attempt to enter-into memoranda of understanding or other agreements with-community service providers that are able to provide inmates-with confidential emotional support services related to sexual-abuse. The agency shall maintain copies of the agreements or-documentation showing attempts to enter into the agreements.-- D. An agency shall establish a method to receive-third-party reports of sexual abuse and sexual harassment and-shall distribute publicly information on how to report sexual-abuse and sexual harassment on behalf of an inmate.-- SECTION 23. [NEW MATERIAL] EMPLOYEE AND AGENCY REPORTING-DUTIES.---- A. An agency shall require the agency's employees-to report immediately and according to agency policy any-knowledge, suspicion or information regarding an incident of-sexual abuse or sexual harassment that occurred in a facility,-whether or not it is part of the agency, retaliation against-inmates or staff who reported such an incident and any staff-neglect or violation of responsibilities that may have-contributed to an incident or retaliation.-- B. Employees shall not reveal information related-to a sexual abuse report to anyone other than to the extent-necessary, as specified in agency policy, to make treatment,-investigation and other security and management decisions.-- C. Unless otherwise precluded by law, a medical-practitioner and a mental health practitioner shall be required-to report sexual abuse pursuant to Subsection A of this section-and to inform inmates of the practitioner's duty to report, and-the limitations of confidentiality, at the initiation of-services.-- D. If an alleged victim of sexual abuse or sexual-harassment is under the age of eighteen or considered a-vulnerable adult, the agency shall report the allegation to the-designated agency under applicable mandatory reporting laws.-- E. A facility shall report all allegations of-sexual abuse and sexual harassment, including third-party and-anonymous reports, to the facility's designated investigators.-- F. When an agency learns that an inmate is subject-to a substantial risk of imminent sexual abuse, the agency-shall take immediate action to protect the inmate.-- SECTION 24. [NEW MATERIAL] REPORTING TO OTHER CONFINEMENT-FACILITIES.---- A. Upon receiving an allegation that an inmate was-sexually abused while confined at another facility, the head of-the facility that received the allegation shall notify the head-of the facility or appropriate office of the agency where the-alleged abuse occurred. The notification shall be provided as-soon as possible, but no later than seventy-two hours after-receiving the allegation.-- B. An agency or facility shall document that the-agency or facility has provided a notification pursuant to-Subsection A of this section.-- C. A facility head or an agency office that-receives a notification pursuant to Subsection A of this-section shall ensure that the allegation is investigated in-accordance with the provisions of the New Mexico Prison Rape-Elimination Act.-- SECTION 25. [NEW MATERIAL] EMPLOYEE FIRST RESPONDER-DUTIES.---- A. Upon learning of an allegation that an inmate-was sexually abused, the first security employee to respond to-the report shall:-- (1) separate the alleged victim and abuser;-- (2) preserve and protect any crime scene until-appropriate steps can be taken to collect evidence;-- (3) if the abuse occurred within a time period-that still allows for the collection of physical evidence,-request that the alleged victim not take any actions that could-destroy physical evidence, including, as appropriate, washing,-brushing teeth, changing clothes, urinating, defecating,-smoking, drinking or eating; and-- (4) if the abuse occurred within a time period-that still allows for the collection of physical evidence,-ensure that the alleged abuser does not take any actions that-could destroy physical evidence, including, as appropriate,-washing, brushing teeth, changing clothes, urinating,-defecating, smoking, drinking or eating.-- B. If the first staff responder to an allegation-that an inmate has been sexually abused is not a security-employee, the responder shall be required to request that the-alleged victim not take any actions that could destroy physical-evidence and then notify security staff.-- C. A facility shall develop a written institutional-plan to coordinate actions taken in response to an alleged-incident of sexual abuse among staff first responders, medical-practitioners, mental health practitioners, investigators and-facility leadership.-- SECTION 26. [NEW MATERIAL] COLLECTIVE BARGAINING-AGREEMENTS--PRESERVATION OF ABILITY TO PROTECT INMATES FROM-CONTACT WITH ABUSERS AND RETALIATION.---- A. An agency or a governmental entity responsible-for collective bargaining on the agency's or governmental-entity's behalf shall not enter into or renew any collective-bargaining agreement or other agreement that limits the-agency's or governmental entity's ability to remove alleged-staff sexual abusers from contact with inmates pending the-outcome of an investigation or of a determination of whether-and to what extent discipline is warranted.-- B. Nothing in this section shall restrict the-entering into or renewal of an agreement that governs:-- (1) the conduct of the disciplinary process,-as long as the agreement is not inconsistent with the-provisions of the New Mexico Prison Rape Elimination Act; or-- (2) whether a no-contact assignment that is-imposed pending the outcome of an investigation shall be-expunged from or retained in an employee's personnel file-following a determination that the allegation of sexual abuse-is not substantiated.-- C. An agency shall establish a policy to protect-all inmates and staff who report sexual abuse or sexual-harassment or cooperate with sexual abuse or sexual harassment-investigations from retaliation by other inmates or staff and-shall designate which employees or departments are charged with-monitoring retaliation.-- D. An agency shall employ multiple protection-measures, such as housing changes or transfers for inmate-victims or abusers, removal of alleged staff or inmate abusers-from contact with victims and emotional support services for-inmates or staff who fear retaliation for reporting sexual-abuse or sexual harassment or for cooperating with sexual abuse-or sexual harassment investigations.-- E. For at least ninety days following a report of-sexual abuse, an agency shall monitor the conduct and treatment-of inmates or staff who reported the sexual abuse and of-inmates who were reported to have suffered sexual abuse to see-if there are changes that may suggest possible retaliation by-inmates or staff and shall act promptly to remedy any such-retaliation. Items the agency should monitor include inmate-disciplinary reports, housing or program changes or negative-performance reviews or reassignments of staff. The agency-shall continue such monitoring beyond ninety days if the-initial monitoring indicates a continuing need. In the case of-inmates, the monitoring shall also include periodic status-checks.-- F. If any other individual who cooperates with a-sexual abuse or sexual harassment investigation expresses fear-of retaliation, an agency shall take appropriate measures to-protect that individual against retaliation.-- G. An agency's obligation to monitor shall-terminate if the agency determines that the allegation is-unfounded.-- SECTION 27. [NEW MATERIAL] CRIMINAL AND ADMINISTRATIVE-AGENCY INVESTIGATIONS.---- A. If an agency conducts its own investigations-into allegations of sexual abuse and sexual harassment, the-agency shall do so promptly, thoroughly and objectively for all-allegations, including third-party and anonymous reports.-- B. If sexual abuse is alleged, an agency shall use-investigators who have received special training in sexual-abuse investigations.-- C. Investigators shall gather and preserve direct-and circumstantial evidence, including any available physical-and deoxyribonucleic acid evidence and any available electronic-monitoring data; interview alleged victims, suspected-perpetrators and witnesses; and review prior complaints and-reports of sexual abuse involving the suspected perpetrator.-- D. If the quality of evidence appears to support-criminal prosecution, an agency shall conduct compelled-interviews only after consulting with prosecutors as to whether-compelled interviews may be an obstacle for subsequent criminal-prosecution.-- E. The credibility of an alleged victim, a suspect-or a witness shall be assessed on an individual basis and shall-not be determined by the person's status as inmate or staff.-An agency shall not require an inmate who alleges sexual abuse-to submit to a polygraph examination or other truth-telling-device as a condition for proceeding with the investigation of-the allegation.-- F. An administrative investigation shall include an-effort to determine whether staff actions or failures to act-contributed to the abuse and shall be documented in written-reports that include a description of the physical and-testimonial evidence, the reasoning behind credibility-assessments and investigative facts and findings.-- G. A criminal investigation shall be documented in-a written report that contains a thorough description of-physical, testimonial and documentary evidence and attaches-copies of all documentary evidence where feasible.-- H. Substantiated allegations of conduct by staff or-contractors that appears to be criminal shall be referred for-prosecution. Substantiated allegations of conduct by or-exclusively between inmates that appears to be criminal shall-be referred for prosecution, except that a victim of the-criminal conduct shall be allowed to request that the matter-not be referred for prosecution. This section shall not be-construed to limit an agency's own investigation requirements-as to an allegation.-- I. An agency shall retain all written reports-pursuant to this section for as long as the alleged abuser is-incarcerated or employed by the agency, plus five years.-- J. The departure of an alleged abuser or victim-from the employment or control of a facility or an agency shall-not provide a basis for terminating an investigation.-- K. A state, local or county entity that conducts-such investigations shall do so pursuant to the requirements of-this section.-- L. A facility shall cooperate with outside-investigators.-- M. An agency shall impose no standard higher than a-preponderance of the evidence in determining whether-allegations of sexual abuse or sexual harassment are-substantiated.-- SECTION 28. [NEW MATERIAL] REPORTING TO INMATES.---- A. Following an investigation into an inmate's-allegation that the inmate suffered sexual abuse in an agency's-facility, the agency shall inform the inmate as to whether the-allegation has been determined to be substantiated,-unsubstantiated or unfounded.-- B. If an agency did not conduct an investigation,-the agency shall request the relevant information from the-investigative authority responsible for conducting the-investigation in order to inform the inmate.-- C. Following an inmate's allegation that an-employee has committed sexual abuse against the inmate, an-agency shall subsequently inform the inmate, unless the agency-has determined that the allegation is unfounded, whenever:-- (1) the employee is no longer posted within-the inmate's unit;-- (2) the employee is no longer employed at the-inmate's facility;-- (3) the agency learns that the employee has-been indicted on a charge related to sexual abuse within the-facility; or-- (4) the agency learns that the employee has-been convicted on a charge related to sexual abuse within the-facility.-- D. Following an inmate's allegation that the inmate-has been sexually abused by another inmate, an agency shall-subsequently inform the alleged victim whenever:-- (1) the agency learns that the alleged abuser-has been indicted on a charge related to sexual abuse within-the facility; or-- (2) the agency learns that the alleged abuser-has been convicted on a charge related to sexual abuse within-the facility.-- E. All notifications or attempted notifications-pursuant to this section shall be documented.-- F. An agency's obligation to report pursuant to-this section shall terminate if the inmate is released from the-agency's custody.-- SECTION 29. [NEW MATERIAL] EMPLOYEE DISCIPLINE AND-CORRECTIVE ACTIONS FOR CONTRACTORS AND VOLUNTEERS.---- A. An employee of an agency shall be subject to-disciplinary sanctions up to and including termination for-violating the agency's sexual abuse or sexual harassment-policies.-- B. Termination shall be the presumptive-disciplinary sanction for an employee who has engaged in sexual-abuse.-- C. Disciplinary sanctions for violations of agency-policies relating to sexual abuse or sexual harassment, other-than actually engaging in sexual abuse, shall be commensurate-with the nature and circumstances of the acts committed, the-employee's disciplinary history and the sanctions imposed for-comparable offenses by other employees with similar histories.-- D. Terminations for violations of an agency's-sexual abuse or sexual harassment policies, or resignations by-employees who would have been terminated if not for their-resignation, shall be reported to law enforcement agencies,-unless the activity was clearly not criminal, and to any-relevant licensing bodies.-- E. A contractor or volunteer who engages in sexual-abuse shall be prohibited from contact with inmates and shall-be reported to law enforcement agencies, unless the activity-was clearly not criminal, and to relevant licensing bodies.-- F. A facility shall take appropriate remedial-measures, and shall consider whether to prohibit further-contact with inmates, in the case of any other violation of an-agency's sexual abuse or sexual harassment policies by a-contractor or volunteer.-- SECTION 30. [NEW MATERIAL] DISCIPLINARY SANCTIONS FOR-INMATES.---- A. An inmate shall be subject to disciplinary-sanctions pursuant to a formal disciplinary process following-an administrative finding that the inmate engaged in inmate-on-inmate sexual abuse or following a criminal finding of guilt-for inmate-on-inmate sexual abuse.-- B. Sanctions pursuant to Subsection A of this-section shall be commensurate with the nature and circumstances-of the abuse committed, the inmate's disciplinary history and-the sanctions imposed for comparable offenses by other inmates-with similar histories.-- C. The disciplinary process shall consider whether-an inmate's mental disabilities or mental illness contributed-to the inmate's behavior when determining what type of-sanction, if any, should be imposed.-- D. If a facility offers therapy, counseling or-other interventions designed to address and correct underlying-reasons or motivations for sexual abuse, the facility shall-consider whether to require an offending inmate to participate-in the interventions as a condition of access to programming or-other benefits.-- E. An agency may discipline an inmate for sexual-contact with an employee only upon a finding that the employee-did not consent to such contact.-- F. For the purpose of disciplinary action, a report-of sexual abuse made in good faith based upon a reasonable-belief that the alleged conduct:-- (1) occurred shall not constitute falsely-reporting an incident or lying, even if an investigation does-not establish evidence sufficient to substantiate the-allegation; or-- (2) violated the New Mexico Prison Rape-Elimination Act shall not constitute falsely reporting an-incident or lying, even if an investigation determines that the-conduct did not constitute a violation.-- G. An agency may, in the agency's discretion,-prohibit all sexual activity between inmates and may discipline-inmates for such activity. An agency shall not deem such-activity to constitute sexual abuse if the agency determines-that the activity is not coerced.-- SECTION 31. [NEW MATERIAL] ACCESS TO EMERGENCY MEDICAL-AND MENTAL HEALTH SERVICES--ONGOING SERVICES.---- A. An inmate victim of sexual abuse shall receive-timely, unimpeded access to emergency medical treatment and-crisis intervention services, the nature and scope of which are-determined by medical practitioners and mental health-practitioners according to the practitioners' professional-judgment.-- B. If no qualified medical practitioners or-qualified mental health practitioners are on duty at the time a-report of recent abuse is made, security staff first responders-shall take preliminary steps to protect the victim and shall-immediately notify the appropriate medical practitioners and-mental health practitioners.-- C. An inmate victim of sexual abuse while-incarcerated shall be offered timely information about and-timely access to emergency contraception and sexually-transmitted infection prophylaxis in accordance with-professionally accepted standards of care, where medically-appropriate.-- D. Treatment services pursuant to this section-shall be provided to a victim of sexual abuse without financial-cost and regardless of whether the victim names the victim's-abuser or cooperates with any investigation arising out of the-incident.-- E. A facility shall offer medical and mental health-evaluation and, as appropriate, treatment to all inmates who-have been victimized by sexual abuse in a prison, jail, lockup-or juvenile facility.-- F. The evaluation and treatment of a victim of-sexual abuse pursuant to this section shall include, as-appropriate, follow-up services, treatment plans and, when-necessary, referrals for continued care following the victim's-transfer to, or placement in, release from custody.-- G. A facility shall provide a victim of sexual-abuse pursuant to this section with medical and mental health-services consistent with the community level of care.-- H. Inmate victims of sexually abusive vaginal-penetration while incarcerated shall be offered pregnancy-tests.-- I. If pregnancy results from the conduct described-in Subsection H of this section, the victim of the conduct-shall receive timely and comprehensive information about and-timely access to all pregnancy-related medical services that-are lawful in the state, including the option to terminate the-pregnancy.-- J. Inmate victims of sexual abuse while-incarcerated shall be offered tests for sexually transmitted-infections as medically appropriate.-- K. Treatment services pursuant to this section-shall be provided to a victim without financial cost and-regardless of whether the victim names the abuser or cooperates-with any investigation arising out of the incident.-- L. A prison shall attempt to conduct a mental-health evaluation of a known inmate-on-inmate abuser within-sixty days of learning of the abuser's abuse history and offer-treatment when deemed appropriate by mental health-practitioners.-- SECTION 32. [NEW MATERIAL] SEXUAL ABUSE INCIDENT-REVIEWS.---- A. A facility shall conduct a sexual abuse incident-review at the conclusion of every sexual abuse investigation,-including where the allegation has not been substantiated,-unless the allegation has been determined to be unfounded. The-review shall occur within thirty days of the conclusion of the-investigation.-- B. A review team shall include upper-level-management officials, with input from line supervisors,-investigators and medical practitioners or mental health-practitioners.-- C. A review team shall:-- (1) consider whether the allegation or-investigation under review indicates a need to change policy or-practice to better prevent, detect or respond to sexual abuse;-- (2) consider whether the incident or-allegation was motivated by race, ethnicity, gender identity,-lesbian, gay, bisexual, transgender or intersex identification,-status or perceived status or gang affiliation or was motivated-or otherwise caused by other group dynamics at the facility;-- (3) examine the area in the facility where the-incident allegedly occurred to assess whether physical barriers-in the area may enable abuse;-- (4) assess the adequacy of staffing levels in-the area during different shifts;-- (5) assess whether monitoring technology-should be deployed or augmented to supplement supervision by-employees; and-- (6) prepare a report of the review team's-findings and any recommendations for improvement and submit the-report to the facility head and the facility's New Mexico-Prison Rape Elimination Act compliance manager.-- D. A facility shall implement the review team's-recommendations for improvement or shall document the-facility's reasons for not doing so.-- SECTION 33. [NEW MATERIAL] DATA COLLECTION.---- A. An agency shall collect accurate, uniform data-for every allegation of sexual abuse at facilities under the-agency's direct control using a standardized instrument and set-of definitions.-- B. An agency shall aggregate the incident-based-sexual abuse data collected pursuant to this section at least-annually.-- C. The incident-based data collected pursuant to-this section shall include the data necessary to answer all-questions from the most recent version of the survey of sexual-violence conducted by the United States department of justice-or a similarly comprehensive and authoritative survey.-- D. An agency shall maintain, review and collect-data pursuant to this section as needed from all available-incident-based documents, including reports, investigation-files and sexual abuse incident reviews.-- E. An agency shall obtain incident-based and-aggregated data pursuant to this section from every private-facility with which it contracts for the confinement of its-inmates.-- SECTION 34. [NEW MATERIAL] DATA REVIEW FOR CORRECTIVE-ACTION.---- A. An agency shall review data collected and-aggregated pursuant to Section 33 of the New Mexico Prison Rape-Elimination Act in order to assess and improve the-effectiveness of the agency's sexual abuse prevention,-detection and response policies, practices and training,-including by:-- (1) identifying problem areas;-- (2) taking corrective action on an ongoing-basis; and-- (3) preparing an annual report of the agency's-findings and corrective actions for each facility as well as-the agency as a whole.-- B. Reports pursuant to this section shall include a-comparison of the current year's data and corrective actions-with data and corrective actions from prior years and shall-provide an assessment of the agency's progress in addressing-sexual abuse.-- C. An agency's report shall be approved by the-agency head and made readily available to the public on the-agency's website, or if the agency does not have a website, by-other means.-- D. An agency may redact specific material from the-agency's reports when publication would present a clear and-specific threat to the safety and security of a facility but-shall indicate the nature of the material redacted.-- E. An agency shall ensure that data collected-pursuant to this section are securely retained.-- F. An agency shall make all aggregated sexual abuse-data, from facilities under the agency's direct control and-private facilities with which the agency contracts, readily-available to the public at least annually through the agency's-website or, if the agency does not have a website, through-other means.-- G. Prior to making aggregated sexual abuse data-publicly available, an agency shall remove all personal-identifiers.-- H. An agency shall maintain sexual abuse data-collected pursuant to Section 33 of the New Mexico Prison Rape-Elimination Act for at least ten years after the date of the-initial collection unless federal, state or local law requires-otherwise.--- 57 -+SS/cf/sgs
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