Earlier this month, the United States Department of Education (DOE) published the final regulations for the Violence Against Women Act (VAWA) amendments to the Clery Act. As we previously reported, the VAWA regulations are the latest in a series of federal guidance documents and requirements directed at the issue of sexual assault in higher education. The final regulations are similar to the proposed regulations that DOE issued in June of this year, although several provisions have been revised or added to provide clarifying details.
Some of the key provisions in VAWA and its regulations require institutions to:
- Maintain statistics about dating violence, domestic violence, sexual assault and stalking;
- Use the FBI’s recently revised and expanded definition of the term “rape” (which is one type of sexual assault, along with fondling, incest, and statutory rape);
- Revise hate crime categories to include gender identity and to separate hate crimes based on ethnicity and national origin into separate categories;
- Provide a “prompt, fair, and impartial” disciplinary proceeding that complies with several specific procedural requirements, including, notably, giving both accusers and accused persons the right to have an “advisor of their choice” present at all related meetings and other proceedings;
- Include in their annual security reports detailed information about disciplinary proceedings and protective measures, as well as a list of all possible sanctions that may be imposed in cases of dating violence, domestic violence, sexual assault, or stalking; and
- Provide prevention and awareness programs to incoming students and new employees, and on an ongoing basis.
The regulations also impose certain specific requirements in addition to those outlined in the VAWA statute itself. For example, VAWA’s requirement that a complainant and respondent be notified of the “result” of proceedings is expanded to include any sanctions imposed by the institution, as well as the rationale for the result and the sanctions. Among other things, the regulations also prohibit institutions from disclosing the names of or other identifying details about victims when issuing timely warnings, define what types of prevention and awareness programs institutions are required to provide, clarify that an institution may limit the participation, but not the identity, of an accuser or accused’s chosen advisor, and permit the removal of reports of crimes that have been “unfounded” in very limited circumstances.
As a reminder, the VAWA statute is already in effect, and the DOE has stated that it expected institutions to “exercise their best efforts” to comply with VAWA by this year’s October 1, 2014 annual security report deadline. With their effective date approaching on July, 1, 2015, the final regulations provide a further incentive and reminder for institutions to (1) review their policies and procedures, and (2) to update them as needed to comply with VAWA and, relatedly, the DOE’s recent Title IX guidance.