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


Summary of the Conference Call with
CAMPUS SAFETY ADVOCATES
December 17, 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 17, 2013, call with victims' advocates. The summaries of the call with campus public safety officials and the call with institutional administrators are available.

General

The campus safety advocates 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 Title IX, and the possible content guidelines for the new education and training requirements. The participants urged the Department to provide timely, clear information as to how institutions should comply with the new requirements, while also urging that any changes to the regulations take a victim-centered approach that also ensures due process for the accused and gives clear guidelines to institutions.

Reporting

As in the calls with campus safety officials and institutional administrators, the participants voiced concerns over the changes to the reporting requirements of the Clery Act. These questions focused on issues regarding technology, Clery geography, and evidence collection requirements. Specific issues included:

  • Stalking is a pattern of conduct, meaning that a single incident is not sufficient. How will this be handled for counting purposes? How will Clery geography affect counting? It may be beneficial to look at state models regarding jurisdictional issues.
  • How would institutions count incidents of stalking behavior if the behavior occurred on campus, but the result occurred off campus? What happens if the reverse is true?
  • If multiple reportable offenses occur during the same crime, how are institutions expected to count them?

Partnerships with Off-Campus Entities

Participants also discussed the possibility of institutions pursuing partnerships with off-campus entities such as local law enforcement, community support organizations, or rape crisis centers to ensure that the institution utilizes best practices in addressing sex offenses. Along these lines, they made several suggestions:

  • The Department should provide guidance to institutional administrators on building relationships and connections, including MOUs, with local rape crisis centers and community-based organizations, particularly because these groups have years of expertise and experience in crime prevention and victim support. There is a need to improve communication between campus security and local police to ensure that both parties will be aware of safety-related problems on and off campus.
  • Including language in the regulations that involves these local groups in the institution’s compliance efforts would be beneficial for institutions and for victims, especially with regards to prevention/education programs.

Definitions

Participants pointed out that several definitions changed in the process of drafting and passing the changes to the Clery Act included in VAWA. They suggested that the Department should use definitions from the stand-alone bill as a starting point in the negotiation process. Participants also called for adding clarity to the definitions for the administrators implementing changes. Specific questions and concerns included:

  • What would be the definitions of primary prevention and risk reduction?
  • Will the definitions contained within Campus SaVE play any role in the new regulations? The definitions in the stand-alone Campus SaVE Act (that was not enacted) reflect a consensus of advocates in many respects and should not be ignored.
  • What would constitute a coordinated community response?
  • What would be the definition of “final results of a disciplinary proceeding”? Should we use the definition under FERPA?
  • Should the definition of a crime of violence contained in FERPA be used?
  • A participant argued that stalking and cyberstalking should not be defined as distinct crimes. Offenders rarely stalk strictly via digital means without any personal encounters. At this time, only a handful of states have separate cyberstalking statutes. Instead, regulations should define stalking as a variety of behaviors that can include digital offenses or in-person violations.

Sexual Assault Prevention Training

Participants also stressed the importance of establishing guidelines for sexual assault prevention training during the negotiated rulemaking session. They focused on the possible content of future trainings. In particular, participants noted that they believed:

  • It is essential to avoid victim-blaming.
  • Training should include information about what primary prevention and bystander intervention look like in terms of stalking.
  • Students should receive training even if they are living off-campus, as they are still affected by what happens on-campus.
  • The approach and framework of any training used is very important, especially when considering that 1/4 of female and 1/6 of male students will already be victims when they arrive on campus. These students are at the most risk for being re-victimized.
  • Any training should be progressive when it comes to risk reduction education. Traditional risk reduction focuses on women and giving them self-defense tools, but delivering that training places a burden on those who are being harmed to try to control the behavior of others.
  • Training should teach students about their rights to be free from stalking, to receive police protection, to report incidents, etc.
  • Training should discuss behaviors, especially involving alcohol, but training also should inform male students about what is and what is not acceptable and what constitutes criminal behavior.
  • Training should focus on all different kinds of victims, including male victims.
  • Training should give students tools to intervene as bystanders. It should especially address how and when to intervene. The “social norms” approach is one-well known method of bystander intervention training, and it may be useful here.
  • There is also a need to train campus security authorities about the changes under Clery and how to report violations.
  • Training should address hazing around fraternities and sororities, particularly given the sharp rise in number and severity of incidents involving hazing around fraternities and sororities.
  • Trainings should not omit components of healing. Frameworks for prevention guidelines need to ensure that there is content around how to support survivors in terms of healing.

Title IX

Finally, call participants expressed concerns about how the changes made through the regulatory process will affect Title IX, and vice versa. The participants believed that the Clery Act regulations should support existing Office of Civil Rights’ guidance to the extent possible. Specific concerns included:

  • Could any future regulations possibly supersede Title IX? Either way, this will have to be clearly addressed in the regulations. Participants also expressed the importance of a strong Title IX.
  • Participants expressed concern about the preponderance of the evidence standard since it is regularly challenged.
  • It may be helpful to remind institutions that it is critical to take the sexual violence concerns of the LGBT community seriously. This doesn’t always happen because of stereotypes regarding the gendered nature of sexual violence.

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Last Modified: 01/13/2014