On June 20, 2014, new proposed regulations targeting sexual assault, domestic violence, dating violence and stalking were published in the Federal Register. The draft regulations implement changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA). As explained in our prior FR Alert, VAWA (also known as the “Campus SaVE Act”) requires institutions of higher education to implement a number of new requirements to maintain compliance with the Clery Act.
The proposed regulations will be open for public comment through July 21, 2014, with final regulations anticipated by November 1. Some of the most noteworthy provisions in the proposed regulations would require institutions to:
Maintain statistics about dating violence, domestic violence, sexual assault and stalking, as those offenses are defined in the proposed regulations;
Use the FBI’s recently revised and expanded definition of the term “rape” (which is one type of sexual assault, along with fondling, incest, and statutory rape);
Revise hate crime categories to include gender identity and to separate hate crimes based on ethnicity and national origin into separate categories;
Provide and describe in their Clery Act annual security reports primary prevention and awareness programs provided to incoming students and new employees, as well as ongoing prevention and awareness campaigns;
Include in their annual security reports detailed information about disciplinary proceedings and protective measures, as well as a list of all possible sanctions that may be imposed in cases of dating violence, domestic violence, sexual assault, or stalking; and
Provide a “prompt, fair, and impartial” disciplinary proceeding that complies with several specific procedural requirements.
The proposed Campus SaVE Act regulations are the latest in a series of federal guidance documents and requirements directed at the issue of campus sexual assault in recent months. As we previously reported, President Obama announced the creation of a White House Task Force on Protecting Students from Sexual Assault in January, and in April, the Obama Administration also issued substantial new Title IX guidance on the topic of student-on-student sexual assault. In addition, as a reminder, the Department of Education has stated that institutions should “exercise their best efforts” to include statistics for the Clery Act new crime categories included in the Campus SaVE Act statute in their October 2014 annual security reports.
The preamble to the proposed VAWA regulations also make it clear that the obligations that institutions of higher education have under VAWA are completely separate and distinct from their Title IX compliance obligations:
...VAWA amended the Clery Act, but it did not affect in any way Title IX of the Education Amendments of 1972 (Title IX), its implementing regulations, or associated guidance issued by the Department’s Office for Civil Rights (OCR). While the Clery Act and Title IX overlap in some areas relating to requirements for an institution’s response to reported incidents of sexual violence, the two statutes and their implementing regulations and interpretations are separate and distinct. Nothing in these proposed regulations alters or changes an institution’s obligations or duties under Title IX as interpreted by OCR.
The proposed SaVE Act regulations provide further incentive for institutions to review their policies and procedures in advance of the October 1, 2014 annual security report deadline and to ensure that their policies and procedures are consistent with the recent Title IX guidance.