On Oct. 20, 2014, the Department of Education issued new regulations implementing changes to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA). The regulations are massive, set out in 227 pages of the Federal Register, and they take effect on July 1, 2015. All colleges and universities receiving federal funds are affected. The following are a few of the highlights from the regulations:
- New programs and increased transparency. The new regulations require that institutions develop and describe programs aimed at eliminating dating violence, domestic violence, sexual assault and stalking. Institutions must offer the programs to students and employees and must describe these programs in the annual security report required by the Clery Act. Schools must also disclose all aspects of their investigatory and disciplinary procedures including reporting methods, sanctions, protective measures and interaction of campus and local law enforcement.
- Advisors in disciplinary hearings. Both the accuser and the victim may choose to be accompanied by an advisor in any disciplinary proceeding or related meeting. Institutions may not limit the choice or presence of an advisor but may restrict advisor participation in proceedings if the restrictions apply equally to both parties. The advisor may be a friend, school administrator, family member, attorney or other advocate.
- Defining and reporting stalking. Institutions must now report incidents of stalking in their annual security reports. The regulations define “stalking” as “two or more acts” in which the stalker “follows, monitors, observes, surveils, threatens, or communicates to or about a person” that would cause a “reasonable person” to fear for their safety or suffer substantial emotional distress. Notably absent from the definition is the requirement that the stalker have the specific intent to stalk the victim.
- Dating violence and domestic violence defined and added to reportable incidents. Reports of sexual assault and violence must now be further broken down in the annual security report if they also qualify as dating or domestic violence. Whether an incident is “dating violence” largely depends on the nature of the relationship between the victim and the accused. To determine if an incident of “domestic violence” has occurred, schools will look to family violence laws in their jurisdictions.
- Reporting “unfounded” complaints. Institutions may withhold and later remove an “unfounded” report from its crime statistics in the rare event that a sworn or commissioned law enforcement officer makes a formal determination that the crime is false or baseless. An incident may be labeled “unfounded” only after a full investigation, but not, for example, when the victim refuses to cooperate with prosecution. Institutions must report yearly the number of sexual assaults that law enforcement has determined to be “unfounded.”
- Gender identity and national origin added to hate crimes biases. The regulations add actual or perceived gender identity and national origin to the list of categories a hate crime may be based on. That list now includes: race, gender, gender identity, religion, sexual orientation, national origin and disability.
For more information about these regulations or related issues, such as the handling of sexual misconduct allegations or Title IX or Clery Act compliance, please contact a member of the McGuireWoods Title IX team.
The Title IX Team is part of the firm’s education team, which helps higher education institutions, K-12 schools, school boards, foundations, and endowments address virtually every type of issue they face.