Laws & Guidance HIGHER EDUCATION
Negotiated Rulemaking for Higher Education 2012-2014
Violence Against Women Act


Summary of the Conference Call with
CAMPUS PUBLIC SAFETY OFFICIALS
December 12, 2013

The U. S. Department of Education (the Department) is in the process of developing regulations to implement the changes that the Violence Against Women Reauthorization Act of 2013 (VAWA) made to the Clery Act. On September 19, the Department published a Notice in the Federal Register announcing our intention to form a negotiated rulemaking committee to develop proposed rules implementing the changes to the Clery Act and soliciting nominations for non-Federal negotiators. The negotiation sessions are scheduled to begin in mid-January.

In advance of negotiations, the Department held three conference calls with institutional administrators, campus public safety officials, and advocacy groups in order to learn more about their concerns. These calls were not part of the formal negotiated rulemaking sessions, but instead provided an informal opportunity for the Department to listen to stakeholders’ concerns and to learn more about the issues involved. Below is a summary of the December 12, 2013, call with campus public safety officials. The summaries of the call with institutional administrators and the call with campus safety advocates are available.

General

The campus public safety officials participating on this call raised a variety of concerns with respect to the implementation of the changes that VAWA made to the Clery Act, particularly around how new crimes would be reported, how new terms would be defined, how the changes would impact crime investigations and disciplinary proceedings, and how institutions would implement the new education and training requirements. The participants urged the Department to provide timely, clear information as to how they should comply with the new requirements, particularly given that institutions must begin to comply with the statute before a final regulation is in place.

Reporting Issues

Voicing similar concerns as the institutional administrators, several campus public safety officials requested clarity as to how institutions should report incidents of stalking. In particular, the participants asked how an institution should report an incident in the case of multiple offenses, such as when a perpetrator stalks a victim over time. Further, the participants questioned how they would be expected to report offenses that occur off the institution’s Clery geography, and they noted that this problem could be complicated by cases involving cyberstalking.

Investigations and Disciplinary Proceedings

Safety officials also had concerns about effects changes in VAWA could have on their investigations and on their campus disciplinary proceedings. In particular, they noted that there could be issues reconciling VAWA with state law since not all of the crimes listed in VAWA have a corresponding crime and definition in state law. The participants also emphasized the importance that the process remains victim-centered and that any new regulations don’t interfere with existing victim support. Other concerns centered on possible conflicts with local law enforcement, including the fear that the prompt investigation requirement for campus officials could inadvertently allow suspects to become aware of proceedings against them before criminal authorities can begin an investigation.

Other questions regarding investigations and disciplinary proceedings included:

  • Can the accused face the victim during the hearing?
  • What specifically are the rights surrounding no contact orders? If a student has a no contact order predating their attendance at an institution, would what campus safety officials be required to do? How would these responsibilities be affected if a student does not inform the institution of a preexisting no contact order?
  • Are there any limits the university can place on the presence of advocates for both the accuser and the accused? Would the institution be required to allow a party’s advocate to be present at all contacts with institution, even during interviews with the investigator?
  • What happens if there are options for reporting to local police or campus police? This could create an opportunity for crime victims to self-select which agencies to report to. This creates some operational concerns. However, this may not be an issue for all states.

Sexual Assault Training

Safety officials had a number of concerns surrounding the sexual assault training requirements. The questions included:

  • Whether and how institutions would have to control the attendance and completion of sexual assault training if students attend the institution for brief periods of time. Would part-time students also have to complete the training?
  • Would there be requirements regarding the delivery method and content of the training? If so, what would they be?
  • Who would be required to attend these trainings? Would the president of the university have to attend the trainings if he or she hears appeals?
  • What would be the requirements regarding the bystander programming component of the training?

Definitions

The campus security officials repeatedly emphasized the critical role clear definitions will play in this process. Questions involving definitions included:

  • In one part of the regulations VAWA definitions are used, but another section instructs officials to use the definition of the applicable jurisdiction. Which is the proper definition to use?
  • How much specificity will be given to definitions of terms like acquaintances, relationships, dating violence, domestic violence, stalking, etc.?
  • How are institutions expected to determine whether a victim is unable to report?
  • What is the definition of consent?

Committee Composition

One administrator expressed concern that the student conduct administrators were underrepresented on the negotiated rulemaking committee. In response, the Department noted that, while we believed that the negotiators at the table have the experience to speak to the concerns of student conduct administrators, members of the public may petition for a seat on the Committee at the start of the negotiations. The Department also indicated that there are multiple ways to participate in the process, including collaborating with negotiators at the table that share his constituency’s viewpoint, participating in informal workgroups in between sessions, voicing his concerns during time reserved for members of the public to comment each day of each session, and submitting public comments in response to the Notice of Proposed Rulemaking.

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Last Modified: 01/13/2014