Final Regulations Announced: VAWA Amendments to Clery
On Monday, October 20, 2014, the United States Department of Education published the final regulations for the Violence Against Women Act amendments to the Clery Act. The regulations expand rights afforded to campus survivors of sexual assault, domestic violence, dating violence, and stalking.
Below are the critical elements of the regulations, which can be read in their entirety here.
- Law enforcement relationships and jurisdiction: Institutions must address the jurisdiction of security personnel within their policy statements in addition to any agreements that are in place for the investigation of alleged criminal offenses (such as written memoranda of understanding).
- Addition of sexual assault, domestic violence, dating violence, and stalking policy statements: Colleges and universities must include statements of policy regarding sexual assault, domestic violence, dating violence, and stalking, which incorporate a number of different specific elements:
o Programs to prevent dating violence, domestic violence, sexual assault, and stalking: Institutions must have programs focused on these areas that incorporate specific elements:
- Description of the primary prevention and awareness programs for incoming students and new employees, including:
· Prohibition of dating violence, domestic violence, sexual assault, or stalking
· Definition of these crimes and of consent according to the applicable jurisdiction,
· Descriptions of safe and positive options for bystander intervention
· Information on risk reduction
- Description of ongoing prevention and awareness programs for students and employees, including all of the elements listed above.
o Procedures institutions will follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported and written information provided to victims including:
- The preservation of evidence to assist to proving the alleged criminal offense or obtaining a protective order
- How and to whom an alleged offense is to be reported
- Options for the involvement of law enforcement and campus authorities
- The victim’s rights or institution’s responsibilities for orders of protection
- Services available to victims (counseling, health, mental health, victim advocacy, legal assistance, visa and immigration services, etc.)
- Options for, and available assistance in, changing academic, living, transportation, and working situations, regardless of whether the victim reports the crime to campus police or law enforcement
- Explanation of rights and options
o Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking: The statement of policy must include the following specific elements:
- Each type of disciplinary proceeding used by the institution, including the steps, anticipated timelines, and decision-making process for each, and how the institution determines which type of disciplinary hearing to use
- The standard of evidence that will be used during any disciplinary proceeding
- All possible sanctions that an institution may impose following the results of any disciplinary proceeding
- The range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking
- A statement that its disciplinary proceeding:
· Includes a prompt, fair, and impartial process from the initial investigation to the final result
· Is conducted by officials who receive annual training on the issues related to dating violence, domestic violence, sexual assault and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability
· Will afford the accuser and the accused the same opportunities to have others present, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice
- A statement that the accused and the accuser will receive simultaneous notification, in writing, of the result of any institutional disciplinary proceeding, the institution’s procedures for the accused and the victim to appeal the result, any changes to the result, and when the results become final
- Confidentiality: An institution’s ASR must address how it completes publicly available record keeping for the purposes of Clery Act reporting while not including identifying information about the victim and while maintaining confidentiality of any accommodations or protective measures given to the victim.
- Statistics: In addition to expanding the types of crimes reported under Clery to include domestic violence, dating violence, and stalking, institutions must also:
o Report to the department and disclose in its annual statistics the total number of crimes that were “unfounded” (determined by a sworn or commissioned law enforcement officer to be false or baseless)
o Include gender identity and national origin as two new categories of bias for a determination of a hate crime
o Use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology. Instead of the previous list of forcible and nonforcible sex offenses, institutions will record incidences of rape, fondling, statutory rape, and incest.
- Hierarchy: There is now another exception to the hierarchy rule. If both a sex offense and a murder are committed in the same incident, both crimes should be counted within the institution’s statistics.·
The Clery Center hosted a webinar on Monday, November 10, highlighting the changes and some action items for institutions. You can review the recording and access additional resources here.