Violence Against Women Reauthorization Act 2013 – New Requirements for Educational Institutions
Dennis Cariello & Patricia Edelson
August 7, 2013
Disclaimers The contents of these materials and the accompanying discussion do not constitute legal or regulatory advice. No party should act or refrain from acting on the basis of any statements made today without seeking individualized, professional counsel as appropriate.
These materials and the accompanying discussion are primarily focused on certain aspects of the Violence Against Women Reauthorization Act and the Clery Act and are not intended to be comprehensive of all requirements under those Acts that are applicable to all educational agencies and institutions.
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Overview
The Violence Against Women Reauthorization Act, Public Law 113-4 (“VAWA”) was signed into law March 7, 2013. Section 304 of the VAWA, known as the Campus Sexual Violence Elimination Act, changes existing requirements and imposes new obligations on institutions, particularly with respect to the following: Additional Clery Act crime reporting obligations Mandated student disciplinary procedures Mandated educational and training programs
Overview The effective date of these requirements is March 7, 2014. ED will likely issue guidance on the annual campus security report (perhaps by updating ED's Handbook for Campus Safety and Security Reporting) The statutory changes will require changes to the regulations in 34 CFR Part 668, Subpart D. Although the Department published a Notice in the Federal Register (78 Fed. Reg. 22467) on April 16, 2013 announcing that the Department may include VAWA issues in the agenda for the upcoming negotiated rulemaking committee, the Department did not include this topic in the upcoming round.
Reporting Requirements Under existing Clery Act requirements, institutions must report statistics for certain criminal offenses including sexual offenses and aggravated assault. The VAWA imposes additional reporting requirements for “dating violence,” “domestic violence,” and “stalking.” Dating Violence is defined as violence committed by a person who has been in a romantic or intimate relationship with the victim. The existence of a relationship is determined based on the relationship’s length, the type of relationship, and the frequency of interaction. 42 U.S.C. § 13925(a)(10).
Reporting Requirements, cont. Domestic Violence is defined as felony or misdemeanor crimes of violence committed by the victim’s current or former spouse or intimate partner, current or former cohabitant, or by any other person against a victim who is protected by the jurisdiction’s domestic violence laws. 42 U.S.C. § 13925(a)(8). Stalking is defined as a course of conduct directed at a victim that would cause a reasonable person to fear for his or her safety or the safety of others, or to suffer substantial emotional distress. 42 U.S.C. § 13925(a)(30).
Reporting Requirements, cont. Additionally, “national origin” and “gender identity” are added to the hate crime categories that must be reported under the Clery Act (joining race, gender, religion, sexual orientation, ethnicity, or disability). 20 U.S.C. § 1092(f)(1)(F)(ii). Also, the VAWA mandates that when a school provides “Timely Warnings” of crimes that are considered a threat to students and employees, they must withhold the names of victims as confidential.
Reporting Requirements, cont. The first Report that must include the new required information is the report issued by October 1, 2014. “Until [ ] regulations are issued, we expect institutions to make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date. The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014. We understand, however, that institutions may not have complete statistics for the year when the statistics must be issued and reported to the Department.”
Some Open Issues on Reporting The October 2014 Annual Security Report includes statistics from all of calendar year 2013. Institutions were not collecting statistics for the first few months of the year (and we don’t have definitions yet in regulations). What the exact guidance on defining dating violence, domestic violence and stalking will include. Does stalking cover “cyber-stalking?” What geography should we use for stalking?
Mandated Student Discipline Requirements
With respect to disciplinary proceedings for domestic violence, dating violence, sexual or stalking cases, institutions must adopt procedures that: Provide prompt, fair and impartial investigation and resolution, by officials who receive annual training on how to conduct investigations and proceedings in a way that promotes accountability and protects the safety of victims Entitle the accuser and accused the same opportunities to have others present and to be accompanied at any proceeding by an advisor of their choice
Mandated Student Discipline Requirements, Cont. Identify the standard of evidence used in any disciplinary proceeding and possible sanctions Notify the accuser and accused simultaneously, in writing, of the outcome of the proceeding, procedures for appeal, any change to the result before it becomes final, and when the result of the procedure becomes final Address how the confidentiality of victim information will be protected
Note, VAWA does not prescribe the evidentiary standard, however, OCR’s April 4, 2011 Guidance Letter, at page 11, directs a standard of “preponderance of the evidence.”
Mandated Student Discipline Requirements, Cont.
In addition to existing Clery Act requirements, institutions are required to provide information concerning: a victim’s option to notify and seek assistance from law enforcement and campus authorities or to decline to do so, a victim’s rights and the institution’s responsibilities regarding restraining and protective orders.
Mandated Training and Educational Programs
Institutions are required to provide education programs to all incoming students and employees to promote prevention and awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking. Such programs must include: A statement that the institution prohibits domestic violence, dating violence, sexual assault, and stalking The applicable jurisdiction’s definition of domestic violence, dating violence, sexual assault, and stalking The applicable jurisdiction’s definition of consent (in reference to sexual activity)
Mandated Training and Educational Programs, Cont.
Such programs must include (cont.) “Safe and positive” options for bystander intervention to prevent or intervene when there is a risk to another person of domestic violence, dating violence, sexual assault, or stalking Information on how to reduce risk and recognize warning signs of abusive behavior and how to avoid a potential attack
Institutions must also provide “ongoing prevention and awareness campaigns for students and faculty” that includes the material provided to incoming students and employees
Policy Requirements Codifies parts of OCR’s April 4, 2011 DCL, such as that the policy statements of the security report shall include: Possible sanctions and protective measures following a final determination regarding rape, acquaintance rape, domestic violence, dating violence, sexual assault, or stalking; Procedures victims should follow if a sex, offense, DV, dating violence, SA, or stalking has occurred, including the following information provided in writing:
The importance of preserving evidence for proof (for prosecution or in obtaining a protective order); To whom the offense should be reported; Options regarding reporting, including law enforcement and campus authorities options to: Notify victim of the option to notify on-campus and local police; assist the victim if they choose in notifying law enforcement; and give the victim the right to decline to notify such authorities.
Policy Requirements Codifies parts of OCR’s April 4, 2011 DCL . . .(cont.): Rights of victims and institutional responsibilities on orders of protection, no contact orders, restraining orders, or similar lawful orders issued by criminal, civil, or tribal courts.
Procedures for institutional disciplinary action in cases of domestic violence, dating violence, sexual assault, or stalking: Proceedings will provide a prompt, fair, and impartial investigation and resolution; and be conducted by officials who receive annual training on issues related to DV, dating violence, SA, and stalking, and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.
The accuser and accused are entitled to the same opportunities to have a support person/advisor of their choice at any proceeding or related meeting.
Policy Requirements Codifies parts of OCR’s April 4, 2011 DCL . . .(cont.): The accuser and accused must be simultaneously informed in writing of: the outcome of any institutional disciplinary proceeding that arises from an allegation of domestic violence, dating violence, sexual assault, or stalking. The institution’s procedures for appealing the results of the proceeding. Any change to the results that occurs prior to the time that such results become final. When such results become final.
Information about how confidentiality of victims will be protected
Written notification of students and employees about services available for victims both on-campus and in the community.
Policy Requirements Codifies parts of OCR’s April 4, 2011 DCL . . .(cont.): Written notification to victims about options for, and available assistance in, changing academic, living, transportation, and working situations, if requested by victim and if reasonable available, regardless of whether victim chooses to report the crime to campus police or local law enforcement. A student or employee who reports to an institution of higher education that s/he has been a victim of domestic violence, dating violence, sexual assault, or stalking, whether it occurred on or off-campus, shall be provided with a written explanation of his or her rights and options.
No Retaliation There shall be no retaliation against anyone who exercises rights under the Clery Act and Title IX
Other Open Issues The law requires “ongoing prevention and awareness campaigns for students and faculty.” What is a “campaign?” While a “campaign” is more involved than “notice”, it’s not clear what it requires.
Questions?
Dennis Cariello
Patricia Edelson
212-335-4816
212-776-3737
[email protected]
[email protected]
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