On October 20, 2014, the Department of Education published final regulations to implement the Violence Against Women Act (VAWA), which amends the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The regulations apply to all colleges and universities that participate in federal student financial aid programs and are effective July 1, 2015.
Annual Security Reports
The final regulations change the requirements for annual security reports and require covered institutions to implement policies, procedures, and programs that must be disclosed in their annual security reports. For example, institutions must report on the following types of programs:
(i) Awareness programs;
(ii) Bystander intervention;
(iii) Ongoing prevention and awareness campaigns;
(iv) Primary prevention programs;
(v) Risk reduction.
Notably absent from the regulations is a definition of consent. After receiving extensive comments, the Department determined that a definition of consent was not necessary for administration and enforcement of the Clery Act, stating that “for purposes of Clery Act reporting, all sex offenses that are reported to a campus security authority must be recorded in an institution’s Clery Act statistics and, if reported to the campus police or the campus security department, must be included in the crime log, regardless of the issue of consent.” Violence Against Women Act, 79 Fed. Reg. 62751, 62756, 62779 (Oct. 20, 2014) (amending 34 C.F.R. § 668.46).
Universities continue to struggle to define consent for purposes of policies, procedures, and training. In the commentary that accompanies the regulations, the Department advised:
During the second negotiation session, we presented draft language that would have defined “consent” to mean “the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter.” Under this definition, an individual who was asleep, or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, or who was under duress, threat, coercion, or force, would not be able to consent. Further, one would not be able to infer consent under circumstances in which consent was not clear, including but not limited to the absence of “no” or “stop,” or the existence of a prior or current relationship or sexual activity. We continue to believe that this draft language is a valid starting point for other efforts to define consent or for developing education and prevention programming, and we will provide additional guidance where possible to institutions regarding consent. . . . If an institution needs to develop a definition of “consent” for purposes of its proceedings it can develop a definition that is appropriate to its administrative proceedings based on the definition we discussed at negotiated rulemaking sessions and definitions from experts in the field. Id. at 62755.
Standard of Proof
The Department of Education also declined to require a particular standard of evidence that should be used in disciplinary proceedings, although the negotiated rulemaking included discussion regarding the preponderance of the evidence standard that the Department requires under Title IX. The Department advised:
We disagree that final § 668.46(k)(1)(ii) should require that to comply with the Clery Act, institutions use the preponderance of evidence standard or any other specific standard when conducting a disciplinary proceeding. Unlike title IX, the Clery Act only requires that an institution describe the standard of evidence it will use in a disciplinary proceeding. A recipient can comply with both title IX and the Clery Act by using a preponderance of evidence standard in disciplinary proceedings regarding title IX complaints and by disclosing this standard in the annual security report required by the Clery Act. Id. at 62772.
Regulatory Requirements: A Snapshot
- 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 when an institution may remove reports of crimes that have been “unfounded” and require institutions to report and disclose 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;
- 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 primary prevention and awareness programs;
- Require institutions to provide ongoing prevention and awareness campaigns for students and employees;
- 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;
- Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings;
- Require institutions to describe the range of protective measures that the institution may offer;
- Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding that meets certain proscribed requirements;
- Specify that compliance with these provisions does not constitute a violation of section the Family Educational Rights and Privacy Act of 1974 (FERPA).
Interplay with Title IX
The VAWA regulations overlap in many ways with Title IX regulations and guidance from the Department’s Office for Civil Rights. With respect to commenters’ requests for clarity regarding compliance with both laws and reduction of regulatory burden, the Department advised as follows:
We note that the White House Task Force to Protect Students from Sexual Assault, which was established on January 22, 2014, has released and continues to develop guidance and model policies for institutions to use in working to comply with the Clery Act and title IX. Those resources are available to institutions at the Web site www.notalone.gov under the ‘‘Schools’’ tab. The Department intends to build on these resources and provide additional tools and guidance where possible for institutions, including by updating The Handbook for Campus Safety and Security Reporting (http://www2.ed.gov/admins/ lead/safety/handbook.pdf). Id. at 62753.
We are available to answer questions and assist universities with their policies, procedures, and prevention programs.
This Bulletin is not intended as legal advice. Readers should seek professional legal counseling before acting on the information it contains.