2013 Updates to Clery Act Requirements: Violence Against Women Reauthorization Act (VAWA) of 2013
On March 7th, 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub. Law 113-4). Among other provisions, this law amended section 485(f) of the Higher Education Act of 1965, as amended (HEA), otherwise known as the Clery Act (20 U.S.C. 1092(f)). These statutory changes require institutions to compile statistics for certain crimes that are reported to campus security authorities or local police agencies including incidents of sexual assault, domestic violence, dating violence, and stalking. Additionally, institutions will be required to include certain policies, procedures, and programs pertaining to these crimes in their Annual Security Reports.
Under section 304(b) of VAWA, the changes made by the new law “take effect with respect to the annual security report prepared by an institution of higher education one calendar year after the date of enactment” of VAWA. Thus, the first Annual Security Report that must include the new required information is the report that must be issued by each institution by October 1, 2014. This report would include crime statistics from calendar years 2011, 2012, and 2013. These crime statistics would also be reported to the Department through the web-based data collection in October 2014.
Final regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process. Until those regulations are issued, Lincoln University will make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date. Lincoln University will include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.
For more information:
- Track Rulemaking for VAWA Regulations here Docket ID# ED-2012-OPE-0008
- Department of Education statement on "Implementation of Changes Made to the Clery Act by the Violence Against Women Reauthorization Act of 2013" (May 29, 2013)
- Department of Education Website on Negotiated Rulemaking on the VAWA 2013 Amendments to Clery
Webinars on VAWA:
- Implementing the Campus SaVE Act Webinar March 21, 2013
- Understanding Campus SaVE: Strategies for Partnership and Prevention Webinar April 15, 2013
The following guidance below was prepared by Andrea Stagg and Joe Storch and can be found on the State University of New Your Website
The final rule was drafted on Friday June 20, 2014 and went out until July 21, 2014 for public comment.
The rule will be final in November 2014 and will become effective July 1, 2015
- What We Know
What we know:
- Section 304 of VAWA includes some changes to the Clery Act and Title IX that will require changes by colleges to maintain compliance.
- The legislation codifies some aspects of the Dear Colleague Letter (DCL), merging them with traditional Clery provisions, but does not codify all aspects of the DCL.
- The Amendments take effect to the Annual Security Report prepared by an institution 1 calendar year after the enactment of the Act.
- The Amendments add “national origin” and “gender identity” to the list of hate crime categories for Clery Act reporting and add three additional crimes: domestic violence, dating violence, and stalking.
- The legislation will require additional education, notice, and campaign work by institutions to notify students and employees about certain dangers as well as their rights.
- What We Don't Know
What we don’t know:
- Whether and how the Department of Education will implement guidance. In the recent past, ED has utilized the Negotiated Rulemaking process to implement regulations on changes to the Higher Education Act. We also don’t know whether the regulatory process will delay implementation of some or all aspects of the legislation.
- Where the guidance will come from. The legislation instructs the Department of Education to seek guidance from the Attorney General and the Department of Health and Human Services on some aspects of the legislation. This may extend the amount of time it takes to ascertain guidance and leave institutions unsure of exactly how to comply with the new provisions.
- While the legislation says this will take effect for the ASR issued one calendar year after the legislation passes, the October 2014 ASR includes statistics from all of calendar year 2013, which is the year in which the legislation was passed. However, institutions were not collecting statistics for the first few months of the year. Further, if past practice is a guide, the Department of Education will implement rulemaking, which will include necessary definitions and guidance, that may push out full implementation to later ASRs. In the past, the Department of Education has not audited for errors prior to issuing regulations. We do not know if that practice will continue in this case.
- What the exact guidance on defining dating violence, domestic violence and stalking will include. The definitions as written in the legislation are somewhat vague and open to interpretation. We don’t know, for instance, whether the Amendments cover reports of cyber-stalking. Nor do we know how to determine geographic location for certain aspects of stalking and other crimes that are not limited to a specific place. We hope that the Department of Education will, through Regulations and guidance, clarify those definitions somewhat to ensure accurate and uniform reporting across the country. We will continue to track and advise on these definitions.
- What the educational notice and programs will require. The legislation adds a new term “campaign” to the Clery Act/Title IX lexicon where it requires “ongoing prevention and awareness campaigns for students and faculty.” Legislative interpretation stands to reason that a “campaign” is more involved than the traditional “notice” required, but it will require Department of Education guidance to know exactly what will be required in such a campaign.
- Analysis of Legislative Changes: I. Annual Security Report crime reporting changes
I. Annual Security Report crime reporting changes:
· No changes to the reportable Part I crimes.
· For Hate Crimes, categories of prejudice (based on actual or perceived race, gender, religion, sexual orientation, ethnicity, or disability) now also includes national origin and gender identity.
- Analysis of Legislative Changes: II. Timely Warning Change:
II. Timely Warning Change:
The legislation makes a change to Timely Warnings in that they must withhold the names of victims as confidential. (this should not be a new change to our campuses as we have long anonymized the names of victims of crimes in Timely Warnings recalling that the purpose of a Timely Warning is to alert the community of a crime or crimes that have occurred and offer the community advice and guidance on protecting itself).
- Analysis of Legislative Changes: III. Annual Security Report crime definition changes:
III. Annual Security Report crime definition changes:
New Definitions: dating violence, domestic violence, and stalking as defined in other areas of the law (copied below):
· Dating violence
The term “dating violence” means violence committed by a person—
(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(B) where the existence of such a relationship shall be determined based on a consideration of the following factors:
(i) The length of the relationship.
(ii) The type of relationship.
(iii) The frequency of interaction between the persons involved in the relationship.
· Domestic violence
The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
(A) fear for his or her safety or the safety of others; or
(B) suffer substantial emotional distress
· Sexual assault
Offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation
- Analysis of Legislative Changes: IV. Changes to Policy Statements of the ASR:
IV. Changes to Policy Statements of the ASR:
· The legislation adds domestic violence, dating violence, and stalking to “sexual assault programs” that will be included in the policy statement developed and distributed as part of the report.
· Institutions must have a statement about the procedures to be used not only with “sex offenses” (old language), but incidents of “domestic violence, dating violence, sexual assault, or stalking” have been reported.
· The ASR must include “a statement of the standard of evidence that will be used” during any conduct proceeding. Note that it does not require a particular standard, only that the institution must be transparent about the standard you are using. The DCL advises using preponderance of the evidence, so clearly state that in the institution’s policy.
· Policy Statements on Education Programs:
o The legislations adds domestic violence, dating violence, sexual assault, and stalking to “rape, acquaintance rape” for education/awareness programs addressed in the policy.
There is a new subsection under that: Education programs shall include “primary prevention and awareness programs for all incoming students and new employees,” which shall include:
§ a statement that the institution prohibits domestic violence, dating violence, sexual assault, and stalking;
§ the definition of domestic violence, dating violence, sexual assault, and stalking in the applicable jurisdiction;
§ the definition of consent, in reference to sexual activity, in the applicable jurisdiction;
§ safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of domestic violence, dating violence, sexual assault, or stalking against a person other than such individual;
§ information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks; and
o ongoing prevention and awareness campaigns for students and faculty on all of the above
· Addressing new sections that codify the Department of Education’s Dear Colleague Letter, the policy statements of the ASR shall also include:
o possible sanctions and protective measures following a final determination regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault, or stalking;
o Procedures victims should follow if a sex offense, domestic violence, dating violence, sexual assault, or stalking has occurred, including the following information provided in writing:
§ The importance of preserving evidence for proof of criminal domestic violence, dating violence, sexual assault, or stalking, or in obtaining a protection order;
§ To whom the offense should be reported;
§ Options regarding reporting, including law enforcement and campus authorities options to:
§ Notify victim of the option to notify on-campus and local police;
§ assist the victim if they choose in notifying law enforcement; and
§ give the victim the right to decline to notify such authorities.
§ Rights of victims and institutional responsibilities on orders of protection, no contact orders, restraining orders, or similar lawful orders issued by criminal, civil, or tribal courts.
· Procedures for institutional disciplinary action in cases of domestic violence, dating violence, sexual assault, or stalking, which shall include a clear statement that:
o Proceedings will provide a prompt, fair, and impartial investigation and resolution; and be conducted by officials who receive annual training on issues related to domestic violence, dating violence, sexual assualt, and stalking, and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.
o The accuser and accused are entitled to the same opportunities to have a support person/advisor of their choice at any proceeding or related meeting.
o The accuser and accused must be simultaneously informed in writing of:
§ the outcome of any institutional disciplinary proceeding that arises from an allegation of domestic violence, dating violence, sexual assault, or stalking.
§ The institution’s procedures for appealing the results of the proceeding.
§ Any change to the results that occurs prior to the time that such results become final.
§ When such results become final.
· Information about how confidentiality of victims will be protected, including how publicly-available recordkeeping will be accomplished without including identifying information about the victim, to the extent possibly by law
· Written notification of students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims both on-campus and in the community.
· Written notification to victims about options for, and available assistance in, changing academic, living, transportation, and working situations, if requested by victim and if reasonable available, regardless of whether victim chooses to report the crime to campus police or local law enforcement.
· Further, a student or employee who reports to an institution of higher education that s/he has been a victim of domestic violence, dating violence, sexual assault, or stalking, whether it occurred on or off-campus, shall be provided with a written explanation of his or her rights and options, as described above.
- Analysis of Legislative Changes:V. Retaliation:
There shall be no retaliation against anyone who exercises rights under the Clery Act and Title IX (such retaliation is already prohibited).
- Update: Answers to Some of "What We Don't Know" Questions