On October 20, 2014, the U.S. Department of Education issued its final regulations implementing changes to the Clery Act called for by the Violence Against Women Reauthorization Act of 2013 (VAWA) [http://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf]. Effective July 1, 2015, these extensive regulations largely echo provisions of the proposed rule released in June 2014, with some additions. The regulations finalize changes to matters relating to crime reporting, educational programs, Annual Security Reports and victim notifications, and contain valuable information to move colleges and universities forward in continuing compliance with Title IX sexual misconduct prevention and VAWA requirements.
Like the proposed rule, the final regulations require institutions to collect statistics on dating violence, domestic violence, sexual assault and stalking. They clarify treatment of stalking that occurs across reporting years or continues after official intervention. Categories of reportable hate crimes now include those motivated by gender identity, and schools must report separately those hate crimes motivated by ethnicity and national origin.
The final regulations also revise how the definitions in the FBI’s Uniform Crime Reporting Program apply to recording and reporting Clery specified crimes. They revise the exceptions to the Hierarchy Rule to clarify that (1) in cases where a sex offense and a murder occur during the same incident, both the sex offense and the murder must be included in the statistics, and (2) arson must always be included in an institution’s crime statistics.
New in the final regulations are provisions about crime reports that schools investigate and determine to be “unfounded.” Schools may remove such reports from crime statistics (but not crime logs) in rare cases, and must specify the requirements for “unfounding.” Schools must also disclose the number of crime reports that they determine to be unfounded and, thus, withhold from reported crime statistics.
The final regulations continue with the new educational obligations described in the proposed rule. All institutions must now provide a”primary prevention and awareness program” to all incoming students and new employees. This program is to be based on research or assessed value for effectiveness and is intended to stop the offenses of dating violence, domestic violence, sexual assault and stalking before they occur. It is to include a statement that the institution prohibits these offenses and an explanation of how those crimes are defined in the institution’s jurisdiction, as well as the definition of consent in that jurisdiction as it applies to sexual activity. The program must also include a description of safe and positive options for bystander intervention, information on risk reduction, and the procedures the institution will use in disciplinary actions in cases in which one of these offenses is alleged. Institutions must also provide “ongoing prevention and awareness campaigns” for students and employees. This means initiatives that are sustained over time and focus on increasing understanding of topics relevant to and skills for addressing these offenses using a range of strategies with audiences throughout the institution.
Annual Security Reports
The final regulations continue the requirements of the proposed rule. Specifically, Annual Security Reports must now include a description of the institution’s educational programs and campaigns to promote the awareness of dating violence, domestic violence, sexual assault and stalking. It is to describe the procedures a victim should follow in reporting a crime including a statement that the victim will be advised in writing, about the importance of preserving evidence, how and to whom the alleged offense should be reported, and options about the involvement of law enforcement and campus authorities. The Report must also address how the institution will protect the confidentiality of victims.
The final regulations retain the requirement that institutions include in the Report a description of “each type” of disciplinary proceeding the institution uses to address allegations of dating violence, domestic violence, sexual assault and stalking (e.g., formal or informal, student procedures, employee procedures, if they are different). That description is to include an explanation of how to file a complaint, the steps of each proceeding, the anticipated timelines for each major step and how the institution decides which type of proceeding to use. The regulations prescribe various procedural standards that must be met and that are to be in the explanation contained in the Report, such as being “conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.” Adding to the proposed rule, the final regulations explicitly state that Reports must provide information on how to file disciplinary complaints.
The regulations also contain specific requirements that must be in the Report regarding the rights of both the complainant and the respondent during any disciplinary proceeding. Finally, the regulations continue the proposed rule’s requirement for the Report to “list all of the possible sanctions that the institution may impose” following a disciplinary proceeding and describe “the range of protective measures” that may be offered a victim (emphasis added).
The proposed rule included various informational matters that institutions must provide to victims in writing. These include an explanation of the procedures a victim should follow. It also includes written information about existing counseling, health, mental health, victim advocacy, legal assistance, and visa and immigration services available to a victim both on and off campus. The final rule adds to that list information on student financial aid.
The proposed rule provided that victims are to be advised in writing about options for and available assistance in changing academic, living, transportation and working situations. These final regulations add that the notification is to include an explanation of how to request those accommodations and how to request various protective measures.
Costs of compliance
The final regulations also address the costs institutions will likely incur in complying with the regulations. The Department believes there will be paperwork costs and other compliance costs, including the annual training of officials involved in crime reporting, investigations, and discipline.
What This Means to You
These requirements illustrate the Department’s emphasis on (a) providing crime statistic and prevention information, and (b) ensuring prompt and impartial investigation of sexual misconduct where both parties have equal access to information about the process and potential outcomes. The Department can assess a penalty of up to $37,500 for each violation of these and other provisions of the Clery Act. Therefore, it is essential that each institution review these final regulations and modify or add to their Clery compliance programs as necessary. Specifically, we encourage you to continue efforts to create Title IX/VAWA compliance programs including:
- Updated policies and procedures;
- Appropriate investigation processes conducted by investigators and hearing panel members trained annually on compliance best practices; and
- Training and prevention programs.