Dept. of Ed Releases Finalized Rules for College Compliance with the Violence Against Women Act

The U.S. Department of Education released on Friday the regulations implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), which amended the Clery Act. The Clery Act now requires colleges and universities to compile statistics on dating violence, domestic violence, sexual assault and stalking. It also requires the inclusion of certain policies, procedures and programs pertaining to these incidents in their annual security reports.

The new rules will take effect July 1, 2015, however, schools have already been required to make a good faith effort to comply with these rules prior to Friday’s release.

According to the Federal Register, the final regulations will:

• Require institutions to maintain statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that meet the definitions of those terms;
• Clarify the very limited circumstances in which an institution may remove reports of crimes that have been “unfounded” and require institutions to report to the Department and disclose in the annual security report the number of “unfounded” crime reports;
• Revise the definition of “rape” to reflect the Federal Bureau of Investigation’s (FBI) updated definition in the UCR Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System;
• Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into separate categories;
• Require institutions to provide to incoming students and new employees and describe in their annual security reports primary prevention and awareness programs. These programs must include: a statement that the institution prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking, as those terms are defined in these final regulations; the definitions of these terms in the applicable jurisdiction; the definition of “consent,” in reference to sexual activity, in the applicable jurisdiction; a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution’s policies and procedures after a sex offense occurs;

RELATED: Stalking Cases Could Pose Challenges for College Compliance with Violence Against Women Act

• Require institutions to provide, and describe in their annual security reports, ongoing prevention and awareness campaigns for students and employees. These campaigns must include the same information as the institution’s primary prevention and awareness program;
• Define the terms “awareness programs,” “bystander intervention,” “ongoing prevention and awareness campaigns,” “primary prevention programs,” and “risk reduction;”
• Require institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; how to file a disciplinary complaint; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding in which: (1) officials are appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt timeframe; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely and equal access to information that will be used during informal and formal disciplinary meetings and hearings;
• Define the terms “proceeding” and “result;” and
• Specify that compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).

Some of the changes to the originally proposed rules include:

• The regulations now make it explicit that institutions must also provide information in the annual security report on how to file a disciplinary complaint.
• “Student financial aid” was added to the list of services about which institutions must alert victims.
• An institution must notify victims of dating violence, domestic violence, sexual assault, and stalking of how to request changes to academic, living, transportation, and working situations and how to request protective measures.
• Institutions must report statistics for referrals (in addition to arrests) for disciplinary action for liquor law violations, drug law violations, and illegal weapons possession.
• In rare cases, an institution may remove reports of crimes that have been “unfounded” and to specify the requirements for unfounding. The regulations have the new §668.46(c)(2)(iii)(A) requiring an institution to report to the Department, and to disclose in its annual security report, the number of crime reports listed in §668.46(c)(1) that were “unfounded” and subsequently withheld from its crime statistics pursuant to §668.46(c)(2)(iii) during each of the three most recent calendar years. We have also reserved §668.46(c)(2)(iii)(B). Lastly, the regulations have also clarified throughout §668.46(c) that an institution must include all reports of Clery Act crimes that occurred on or within the institution’s Clery geography.
• Stalking that crosses calendar years must be recorded in each and every year in which the stalking is reported to a campus security authority or local police. Proposed §668.46(c)(6)(iii) was also removed, which would have required institutions to record a report of stalking as a new and distinct crime when the stalking behavior continues after an official intervention.
• Paragraph §668.46(c)(9) has been revised to clarify how the definitions in the FBI’s UCR Program apply to these regulations, updated references to the FBI’s UCR Program materials, revised the exception to the Hierarchy Rule to clarify that it applies in cases where a sex offense and a murder occur during the same incident, and that under the Hierarchy Rule an institution must always include arson in its statistics.
• An institution’s policy statement must address disciplinary procedures for cases of alleged dating violence, domestic violence, sexual assault, and stalking, as defined in §668.46(a).
• The definition of “proceeding” has been revised by adding that a “proceeding” does not include communications and meetings between officials and victims concerning accommodations or
  protective measures to be provided to a victim.

About 2,200 parties commented on the proposed regulations.

Read the regulations.

Photo: Kmccoy, Wikipedia Commons

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