The USDE released final regulations on Monday, October 20, 2014 implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), which amended the Clery Act. The Clery Act currently requires colleges and universities to keep and disclose information about crime on and near their campuses. It also requires the inclusion of certain policies, procedures and programs pertaining to these incidents in their annual security reports. VAWA significantly expands the information colleges must include in their annual crime reports to statistics for incidents of sexual assault, domestic violence, dating violence, and stalking.
A school’s annual security report must also include policy statements describing the school’s programs to prevent incidents of sexual misconduct and describe the procedures that the school will follow once an incident has been reported.
The final regulations will—
• Require institutions to maintain statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that meet the definitions of those terms;
• Clarify the very limited circumstances in which an institution may remove reports of crimes that have been ‘‘unfounded’’ and require institutions to report to the Department and disclose in the annual security report the number of ‘‘unfounded’’ crime reports;
• Revise the definition of ‘‘rape’’ to reflect the Federal Bureau of Investigation’s (FBI) updated definition in the UCR Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System;
• Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into separate categories;
• Require institutions to provide to incoming students and new employees and describe in their annual security reports primary prevention and awareness programs. These programs must include: a statement that the institution prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking, as those terms are defined in these final regulations; the definitions of these terms in the applicable jurisdiction; the definition of ‘‘consent,’’ in reference to sexual activity, in the applicable jurisdiction; a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution’s policies and procedures after a sex offense occurs;
• Require institutions to provide, and describe in their annual security reports, ongoing prevention and awareness campaigns for students and employees. These campaigns must include the same information as the institution’s primary prevention and awareness program;
• Define the terms ‘‘awareness programs,’’ ‘‘bystander intervention,’’ ‘‘ongoing prevention and awareness campaigns,’’ ‘‘primary prevention programs,’’ and ‘‘risk reduction;’’
• Require institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision- making process for each type of disciplinary proceeding; how to file a disciplinary complaint; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking;
• Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding in which: (1) Officials are appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt timeframe; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely and equal access to information that will be used during informal and formal disciplinary meetings and hearings;
• Define the terms ‘‘proceeding’’ and ‘‘result’’; and
• Specify that compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C.1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).
The new rules will take effect July 1, 2015; however, schools have already been required to make a good faith effort to comply with these rules.