On June 20, the Department of Education published a notice of proposed rulemaking (NPRM) implementing changes made to the Clery Act as part of last year's reauthorization of the Violence Against Women Act (VAWA). In April, negotiators reached consensus on draft language for the rules. These changes will expand crime reporting as it relates to dating violence, domestic violence, sexual assault, and stalking; strengthen university policies; and offer a clear protection of rights to both the accuser and accused.
NACUBO previously reported on changes to the regulation at the conclusion of the VAWA negotiated rulemaking meetings. While the NPRM conforms to the agreements reached during the meetings, the preamble explains key changes to the regulations that will impact how institutions address domestic violence, dating violence, sexual assault, and stalking.
The proposed rules are structured, as has long been the case for ED's campus security regulations under the Clery Act, to enumerate statements of policy and institutional procedures that must be included in each institution's annual security report. The NPRM augments these requirements with extensive new definitions of key terms including dating and domestic violence, sexual assault, stalking, and programs to prevent these crimes. A new term, Clery Geography, is coined to refer to the long-standing delineation of the various areas that must be included in campus crime reporting. In addition, new sections would be added to explain and expand on requirements for prevention programs and procedures for disciplinary action. The proposed rules include:
- Annual Security Reports. Institutions will be required to update annual security reports to include information such as current policies regarding agreements with law enforcement agencies for investigations and to encourage accurate and prompt reporting of crimes including when the victim is unable to do so. The institution will also need to detail how it will protect confidentiality of victims and others, including when complying with publicly available record keeping requirements and relative to any accommodations or protective measures provided the victim. A statement that the institution will provide victims of sexual assaults with a written explanation of their rights and options would also have to be included.
- Crime Statistics. Gender identity and national origin have been added to hate crime reporting. Hate crimes will now include the victim's actual or perceived race, religion, gender, gender identity, sexual orientation, ethnicity, national origin, and disability. Specific rules would be provided on reporting stalking incidents that may be recurring.
- Prevention and Awareness Programs. A new paragraph augments the requirement to describe the institution's primary and ongoing prevention and awareness programs for sexual assaults, which would need to include a number of definitions, descriptions of "safe and positive" options for bystander intervention, and information on risk reduction.
- Disciplinary Procedures. Institutions will be required to implement and disclose procedures for disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking. These requirements include describing the range of protective measures that institutions may offer, providing fair, prompt, and impartial disciplinary proceedings, and listing all possible sanctions an institution will impose following the results of an institutional disciplinary proceeding.
Institutions should note that the statutory changes took effect on March 7. Therefore, the first annual security report that must include the newly required information will be the one published on October 1, and should include statistics from the 2011, 2012, and 2013 calendar years.
ED has provided a very short comment period. The deadline is July 21. In particular, ED seeks comments related to additional ways to identify where one incident of stalking has ended and another one has begun, how to count stalking that involves multiple years, and reporting incidents of stalking by location. In addition, ED also requests comments specifically related to whether the proposed approach of counting some or all of the primary Clery Act crimes should be modified to capture information about the relationship between a perpetrator and a victim. Final regulations are expected to be published by November 1 and will generally take effect by July 2015.