The Violence Against Women Reauthorization Act of 2013 (“VAWA”) amended the Clery Act by imposing new obligations on institutions of higher education under VAWA’s Campus Sexual Violence Act (“Campus SaVE”) provision. The regulations take effect on July 1, 2015 and impose a variety of obligations on colleges and universities. Each institution should examine its existing policies, procedures, and practices and make the necessary changes to ensure compliance. The regulations are extensive, but the following are some of the key points with respect to policies, procedures and training.
The institution must have a policy that:
- Prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking and defines those terms in accordance with the relevant definition under state law;
- Explains the importance of preserving evidence that may assist in proving that the alleged criminal offense occurred or may be helpful in obtaining a protection order;
- Explains how and to whom the alleged offense should be reported;
- Provides the victim with options about the involvement of law enforcement and campus authorities;
- Explains the rights of victims and the institution’s responsibilities for orders of protection, “no-contact” orders, restraining orders, or similar lawful orders issued by a criminal, civil, or tribal court or by the institution;
- Provides information about how the institution will protect the confidentiality of victims and other necessary parties;
- Provides written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, student financial aid, and other services available for victims, both within the institution and in the community;
- Provides written notification to victims about available accommodations and protective measures; and
- Provides a description of safe and positive options for bystander intervention and risk reduction.
The institution must implement procedures that:
- Provide written notice of the procedures for a complaint of dating violence, domestic violence, sexual assault, or stalking. The notice must 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 and type of allegation;
- List all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceeding;
- Include a prompt, fair, and impartial process from the initial investigation to the final result that is conducted by officials who, at a minimum, receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking, including appropriate investigation and hearing processes;
- Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be an attorney;
- Require simultaneous notification, in writing, to both the accuser and the accused, of information relating to the result of any institutional disciplinary proceeding, including the rationale for the result and any sanctions, along with procedures for appeal; and
- Provide for timely notice of meetings to the accuser and accused and provide timely and equal access to information used during disciplinary meetings and hearings.
The institution must implement training and awareness campaigns that:
- Provide primary prevention programs targeted to incoming students and employees as well as ongoing prevention and awareness campaigns for other students and employees, including bystander intervention; and
- Provide training for those involved in receiving, investigating and adjudicating complaints: annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.
Institutions should understand that the amendments to the Clery Act do not alter compliance obligations under Title IX. Although there may be some overlap, compliance obligations are separate and distinct from those required under Title IX.
When revising policies and procedures, you should consider the individual characteristics and structure of the institution. Some schools have developed separate policies for students and employees, while others have established one policy with multiple procedures depending upon the identity of the complainant and respondent and the violation alleged.
The next Annual Security Reports, which are due on October 1, 2015, must reflect a good faith effort to comply with the new regulations, so institutions should be sure to update or refine policies as necessary to ensure compliance.
If you have any questions regarding these new regulations, please contact your Proskauer lawyer.