2013 Updates to Clery Act Requirements: Violence Against Women Reauthorization Act (VAWA) of 2013
On March 7th, 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub. Law 113-4). Among other provisions, this law amended section 485(f) of the Higher Education Act of 1965, as amended (HEA), otherwise known as the Clery Act (20 U.S.C. 1092(f)). These statutory changes require institutions to compile statistics for certain crimes that are reported to campus security authorities or local police agencies including incidents of sexual assault, domestic violence, dating violence, and stalking. Additionally, institutions will be required to include certain policies, procedures, and programs pertaining to these crimes in their Annual Security Reports.
Under section 304(b) of VAWA, the changes made by the new law "take effect with respect to the annual security report prepared by an institution of higher education one calendar year after the date of enactment" of VAWA. Thus, the first Annual Security Report that must include the new required information is the report that must be issued by each institution by October 1, 2014. This report would include crime statistics from calendar years 2011, 2012, and 2013. These crime statistics would also be reported to the Department through the web-based data collection in October 2014.
For more information on the rulemaking process:
- Track Rulemaking for VAWA Regulations here Docket ID# ED-2012-OPE-0008
- Department of Education statement on "Implementation of Changes Made to the Clery Act by the Violence Against Women Reauthorization Act of 2013" (May 29, 2013)
- Department of Education Website on Negotiated Rulemaking on the VAWA 2013 Amendments to Clery
Webinars on VAWA:
- Implementing the Campus SaVE Act Webinar March 21, 2013
- Understanding Campus SaVE: Strategies for Partnership and Prevention Webinar April 15, 2013
VAWA Updates the Clery Regulations
The final rule was drafted on Friday June 20, 2014 and went out until July 21, 2014 for public comment.
The public comment period was completed and the rule was adopted on October 31, 2014.
The effective date of the final rule was July 1, 2015
Taken from the PDF of Federal Register
Summary of the Major Provisions of This Regulatory Action: 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, ofthe 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).
Information from the Public Inspection document on the page
How to File a Disciplinary Complaint
- We have revised §668.46(k)(1)(i) to make it explicit that institutions must also provide information in the annual security report on how to file a disciplinary complaint.
- We have added "student financial aid" to the list of services about which institutions must alert victims. Accommodations and Protective Measures for Victims of Dating Violence, Domestic Violence, Sexual Assault, or Stalking (§668.46(b)(11)(v)).
Requesting Protective Measures
- We have revised §668.46(b)(11)(v) to specify that an institution must notify victims of dating violence, domestic violence, sexual assault, and stalking of how to request changes to academic, living, transportation, and working situations and how to request protective measures.
Liquor, Drugs, and Weapon Referrals
- We have revised §668.46(c)(1)(ii) to require institutions to report statistics for referrals (in addition to arrests) for disciplinary action for liquor law violations, drug law violations, and illegal weapons possession.
Unfounding of Crimes and What Crimes Must be Reported
- We have revised §668.46(c)(2)(iii) to clarify that, in rare cases, an institution may remove reports of crimes that have been "unfounded" and to specify the requirements for unfounding.
- We have added new §668.46(c)(2)(iii)(A) requiring an institution to report to the Department, and to disclose in its annual security report, the number of crime reports listed in §668.46(c)(1) that were "unfounded" and subsequently withheld from its crime statistics pursuant to §668.46(c)(2)(iii) during each of the three most recent calendar years.
- We have also reserved §668.46(c)(2)(iii)(B).
- We have also clarified throughout §668.46(c) that an institution must include all reports of Clery Act crimes that occurred on or within the institution's Clery geography.
- We have revised §668.46(c)(6)(i) to clarify that stalking that crosses calendar years must be recorded in each and every year in which the stalking is reported to a campus security authority or local police.
- We have also removed proposed §668.46(c)(6)(iii), which would have required institutions to record a report of stalking as a new and distinct crime when the stalking behavior continues after an official intervention.
Hierarchy Rule and Sex Offenses
- We have revised paragraph §668.46(c)(9) to clarify how the definitions in the FBI's UCR Program apply to these regulations, updated references to the FBI's UCR Program materials, revised the exception to the Hierarchy Rule to clarify that it applies in cases where a sex offense and a murder occur during the same incident, and that under the Hierarchy Rule an institution must always include arson in its statistics.
- We have revised the introductory language in §668.46(k) to specify that an institution's policy statement must address disciplinary procedures for cases of alleged dating violence, domestic violence, sexual assault, and stalking, as defined in §668.46(a).
- We have revised the definition of "proceeding" by adding that a "proceeding" does not include communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim.