Last week, the Department of Education held its final negotiated rulemaking session on amendments made to the Clery Act as part of last year's reauthorization of the Violence Against Women Act (VAWA). After three sessions held over the course of three months, negotiators reached consensus on proposed regulations on April 1. The committee discussed how colleges and universities respond to crimes involving domestic violence, dating violence, sexual assault, and stalking.
VAWA requires institutions to develop statements of policy, collect in-depth hate crime statistics, provide educational awareness programs, and establish sanctions and protective measures for incidents involving domestic violence, dating violence, sexual assault, and stalking. Institutions must also provide guidance to students, faculty, and staff on their rights and responsibilities if they become involved in this type of crime.
Despite a number of contentious discussions during negotiations, the committee agreed on final language related to these provisions, expressing hope that colleges and universities will now have a clear and concise understanding of their responsibilities. Because the negotiators reached agreement, ED is bound to include the consensus language in a formal notice of proposed rulemaking that will likely be published by early summer.
The statutory changes took effect on March 7—one year after VAWA was signed into law-and ED has asked institutions to make a "good faith effort" to comply with statutory requirements. The first annual security report that must include the newly required information will be the one published by October 1, 2014; it should include statistics from the 2011, 2012, and 2013 calendar years.
Among the new provisions, VAWA requires colleges and universities must comply with the following requirements:
- Currently, one of the categories of crime collected each year is sexual assaults, with separate reporting for forcible and nonforcible (incest and statutory rape) sex offenses. This category would be reconfigured to report rape, fondling, incest, and statutory rape separately.
- For hate crime reporting, gender identities would be added to the categories of prejudice. Also, the existing category for ethnicity/national origin would be split into two distinct categories. During rulemaking, negotiators agreed that hate crimes will include the victim's actual or perceived race, religion, gender, gender identity, sexual orientation, ethnicity, national origin, and disability. Domestic violence, dating violence, sexual assault, and stalking incidents would be added to the hate crimes that must be reported. The draft regulations provide definitions for each of these terms.
Annual Security Reports
Annual security reports must describe procedures the institution will follow when incidents of domestic violence, dating violence, sexual assault, or stalking are reported. At a minimum, annual security reports must contain:
- A statement of policy regarding the institution's programs to prevent dating violence, domestic violence, sexual assault, and stalking, plus the procedures the institution will follow when a crime is reported. In addition, the statement must include information on measures the institution will use to protect the confidentiality of victims and other necessary parties as well as complete publicly available record-keeping, for the purposes of the Clery Act, without the inclusion of identifying information about the victim.
- Information on preserving evidence and measures the institution will take to maintain the victim's confidentiality and provide accommodations. Negotiators agreed that annual security reports must also provide information on preserving evidence for purposes of proving a criminal offense occurred and measures to maintain the confidentiality and accommodations provided to the victim.
Statement of Policy and Awareness Programs
These programs should be used to raise awareness of incidents and prevent additional ones. Each campus should administer programs to all incoming students and new employees and maintain ongoing prevention and awareness campaigns for students, faculty, and staff.
- Sanctions and protective measures. Institutions must establish possible sanctions, as well as protective measures, to be imposed following an incident of dating violence, domestic violence, sexual assault, or stalking. During negotiations, the committee agreed that schools must describe the range of protective measures that may be offered following an allegation of dating violence, domestic violence, sexual assault, or stalking.
- Written documentation. Schools must provide students, faculty, and staff with written documentation related to the procedures victims should follow if a violent crime occurs. These include rights of victims, as well as institutional responsibility regarding orders of protection; no contact orders and restraining orders; procedures for institutional disciplinary action; and university plans to protect the confidentiality of victims.
In addition, negotiators broadened the language regarding the timeframe for an appeal. The committee agreed that schools will be required to complete institutional appeals within reasonably prompt timeframes and include a process that allows for extensions for good cause, with written notice provided to the accuser and the accused regarding the delay.
Next Steps and Resources
In the coming months, ED will publish a notice of proposed rulemaking in the Federal Register for public comment. The final rule, if published by November 1, will generally take effect in July 2015.
The following resources provide more information on VAWA and the negotiated rulemaking sessions: