On October 20, the Department of Education published final rules implementing changes made to the Clery Act as part of the reauthorization of the Violence Against Women Act in March 2013. The final rules address sexual violence on college campuses as it relates to domestic violence, dating violence, sexual assault, and stalking, requiring changes to the crime statistics reported by campuses, inclusion of specific policies in annual security reports, and training efforts to prevent sexual assaults on campus.
Earlier this year, negotiators reached consensus on draft rules after three months of negotiated rulemaking meetings. ED then issued the notice of proposed rulemaking (NPRM) on June 20, providing a 30-day period for public comment. Despite the short window, more than 2,000 comments were submitted. Although the final rules closely resemble the NPRM, ED did make some changes based on comments received during the public comment period.
Notable changes in the final rules included the following:
- Services for victims. In addition to providing victims with written notification about existing counseling, health, mental health, victim advocacy, and legal assistance, institutions must also provide victims with information about student financial aid. Such information might include, for instance, how to apply for a leave of absence.
- Accommodations and protective measures. Institutions must notify victims of dating violence, domestic violence, sexual assault, and stalking about how to request changes to academic, living, transportation, and working situations and how to request protective measures.
- Crimes recording. In rare situations, an institution may withhold or remove a reported crime from its crime statistics when law enforcement personnel have fully investigated the reported crime and have made a formal determination that the crime report is false or baseless, and therefore "unfounded." As a control measure, institutions will be required to report the number of "unfounded" crimes that were removed from their crime statistics for each year.
- Stalking. Stalking that crosses calendar years must be recorded in each year in which the stalking is reported to campus security or local police. This modifies the proposed language that would have required institutions to record a report of stalking as a new crime when the behavior continues after an official intervention. ED agreed with commenters that the institution is not necessarily aware that interventions have occurred.
- FBI's UCR Rule and the Hierarchy Rule. ED strengthened its explanation of how the definitions in the FBI's Uniformed Crime Reporting Program apply to these regulations, updated its references to FBI resources, and clarified that the exception to the Hierarchy Rule applies only in cases where a sex offense and a murder occur during the same incident.
The discussion provided in the preamble to the final rules offers valuable insight and clarifications to the guidance. For instance, although §668.46(j), Programs to Prevent Dating Violence, Domestic Violence, Sexual Assault, and Stalking, remains unchanged from the NPRM, commenters brought up salient points regarding the targeted populations. They were concerned that institutions would face an undue burden in trying to provide prevention training to students who were only enrolled in online courses, continuing education programs, or in a nonresidential community college and suggested that prevention training should be focused on students who are regularly on campus. Commenters also asked ED to clarify whether an institution must require and document that every member of its community attended prevention programs and training.
ED did not agree with commenters and said, "we believe that every enrolled student should be offered prevention training because anyone can be a victim of dating violence, domestic violence, sexual assault, or stalking, not just students who are regularly on campus." Moreover, since institutions are required to distribute annual security reports to all "enrolled" students, ED will apply the same standard for prevention training. ED reiterated that neither the statute or nor the regulations require that all incoming students, new employees, current students, or faculty members take or attend the training. The only obligation of institutions is to offer training to all specified parties; however, ED does encourage institutions to mandate such training to increase effectiveness.
Although the final rules will not go into effect until July 1, 2015, an earlier "Dear Colleague Letter" (GEN-14-13) required institutions to make a "good-faith effort" to comply with statutory VAWA provisions, which took effect in March 2014, one year after enactment. These provisions included updating annual security reports to include revised policy statements, thorough information about options for victims, and updating crime statistics to include new crime categories: domestic violence, dating violence, and stalking.
While the final rules are meant to help combat incidents of domestic violence, dating violence, sexual assault, and stalking on college campuses, the Obama administration has also launched other initiatives to help increase awareness and prevention.