_________________________________________
________________________________
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This memorandum was prepared by the Washington, DC law
firm Hogan Lovells US
LLP
.
New Requirements Imposed by the Violence Against Women
Reauthorization Act
The Violence Against
Women Reauthorization Act (“VAWA”
), which President Obama signed into law
on March
7, imposes new obligations on colleges and universities under i
ts
Campus Sexual Violence Act
(“SaVE Act”
) provision, Section 3
04
. Those obligations
—
which to some extent refine
and clarify, and to
some extent change, existing legal requirements and government a
gency enforcement statements
—
likely
will require revision of institutional policy and practice. Counsel should be consulted on this complex,
sensitive area of institutional
law compliance.
Under VAWA, colleges and universities are required to:
•
R
eport domestic violence, dating violence, and stalking, beyond crime categories the Clery Act
already mandates;
•
A
dopt certain student discipline procedures, such as for notifying
purported victims of their
rights; and
•
A
dopt certain institutional policies to address and prevent campus sexual violence, such as to
train in particular respects pertinent institutional personnel.
The interplay of
VAWA and other pronouncements
—
notably the April 4, 2011
Dear Colleague Letter
under Title IX issued by the Office for Civil Rights of the Department of Education (“ED”)
(“OCR
Guidance Letter”
)
and p
re
vailing institutional policy
—
warrants legal risk management judgment by
institutional
counsel and compliance officers, and implicates a range of management steps. Here we
identify some key points.
I. New Reporting Requirements
VAWA’
s SaVE Act provision
imposes new reporting requirements:
A. The Clery Act requires annual reporting of statistics for various criminal offenses, including
forcible and non
-
forcible sex offenses and aggravated assault.
VAWA’
s SaVE Act provision adds
domestic violence, dating
violence, and stalking to the categories that, if the incident was reported
to a campus security authority or local police agency, must be reported under Clery. Parsed for
clarity, these offenses are defined:
1.
“Domestic violence”
includes asserted violent m
isdemeanor and felony offenses
committed by the victim's current or former spouse, current or former cohabitant,
person similarly situated under domestic or family violence law, or anyone else
protected under domestic or family violence law.
Page
|
2
2.
“Dating viole
nce”
means violence by a person who has been in a romantic or
intimate relationship with the victim. Whether there was such relationship will be
gauged by its length, type, and frequency of interaction.
3.
“Stalking”
means a course of conduct directed at a s
pecific person that would
cause a reasonable person to fear for her, his, or others' safety, or to suffer
substantial emotional distress.
B. The provision adds “national origin” and “gender identity”
to the hate crime categories,
involving intentional sele
ction of a victim based on actual or perceived characteristics
that must
be reported under the Clery Act.
C. The provision requires, with
respect to the “timely reports”
the Clery Act mandates for crimes
considered a threat to other students and employe
es, that victims' names be withheld.
D.
The Campus SaVE Act takes effect with respect to the Annual Security Report that must be
issued by each institution no later than October 1, 2014. Final regulations to implement statutory
changes to VAWA will not be
effective until after ED completes the rulemaking process. Until
regulations are issued, ED expects institutions to “to make a good faith effort to comply” with the
requirements. For more information, see ED’s
electronic announcement
May 29, 2013
,
on
this
issue.
II.
New Student Discipline Requirements
A. Current requirements in the Clery Act are that institutions
inform students of procedures
victims should follow, such as preservation of evidence and to whom offenses should be reported.
VAWA adds that institutional policy must also include information on:
1.
Victims' option to, or not to, notify and seek assistance f
rom law enforcement
and campus authorities.
2.
Victims' rights and institutional responsibilities regarding judicial no
-
contact,
restraining, and protective orders.
B. VAWA prescribes standards for investigation and conduct of student discipline proceedings
in
domestic violence, dating violence, sexual assault, and stalking cases.
1.
Insti
tutional policy must include a “
statement of
the standard of evidence”
used. Unlike
some earlier drafts of the legislation, VAWA does not prescribe the evidentiary standard.
T
he OCR Guidance Letter, at page 11, directs a standard of
“
p
reponderance of the
evidence.”
That l
etter, although not positive law, authoritatively represents OCR
enforcement policy. Whether OCR's position would withstand judicial review is an open
question
.
2.
Institutional officials who conduct the proceeding must be trained on how to investigate
and con
duct hearings in a manner that “protects the safety of victims” and “promotes
accountability.”
3.
Inst
itutional policy must identify “
s
anctions or protective
measures”
the institution may
impose following a final determination of rape, acquaintance rape, domestic violence,
dating violence, sexual assault or stalking.
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|
3
4.
“
[T]he accuser and the accused are entitled to the same opportunities to have others
present d
uring an institutional disciplinary proceeding, including the opportunity to be
accompanied to any related meeting or proceeding by
an advisor of their choice....”
5.
Accuse
r and accused must be notified “simultaneously” and “in writing”
of: the outcome
of
the proceeding; appeal procedures; any change to the result before it becomes final;
and when the result becomes final. The OCR Guidance Letter, at page 13,
merely
“recommends”
that the parties be provided t
he determination “concurrently.”
6.
Institutional p
olicy must address how victims' confidentiality will be protected, including
record
-
keeping that excludes personally
-
identifiable information on victims. OCR's
Guidance Letter, at page 5, encourages institutions to be cognizant of victims'
confidentiality,
but does not mandate that institutional policy address it.
III. New Requirements to Educate Students and Employees on Sexual Violence
Under VAWA, new students and
new employees must be offered “
primary pr
evention and awareness
programs”
that promote awareness of rape, acquaintance rape, domestic violence, dating violence, sexual
assault, and stalking. The OCR Gu
idance Letter, at pages 15
-
16, “recommends”
that institutions
implement preventive education programs; VAWA is more prescriptive
in its requirements.
The training programs must include:
A.
A statement that the institution prohibits those offenses.
B.
The definition of those offenses in the applicable jurisdiction.
C.
The definition of consent, with reference to sexual offenses, in the app
licable jurisdiction.
D.
“Safe and positive” options for bystander intervention an individual may take to “prevent
harm or intervene” in risky situations.
E.
Recognition of signs of abusive behavior and how to avoid potential attacks.
F.
Ongoing prevention and awar
eness campaigns for students and faculty on all of the above.
Conclusion
VAWA’s ramifications include that institutions will need to review and modify policies and procedures
for handling asserted sexual offenses, and train carefully personnel responsible
in this area. This memo
primarily addresses VAWA. Requirements under the OCR Guidance Letter, the Clery Act, Title IX, Title
VII, State employment laws, local human rights ordinances, or the sundry apposite regulations and
agency pronouncements are also re
levant and should be reviewed. College and university counsel expert
on those and on faculty, student, and staff rights under institutional handbooks, manuals, and other
policies should be consulted. In light of acute sensitivities on campus in this sphere
, and by parents of
students involved in these situations, and the common prospect of related civil and criminal litigation as
well as often extensive publicity, university leadership should give close reading and attention to VAWA
and its requirements.
U
pdated April 1, 2014
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