A key section of the comprehensive federal legislation passed last year to prevent and address violence against women on campuses nationally takes effect this month.
It is critical for educational institutions to understand what it will take to comply with Section 304 of the Violence Against Women Reauthorization Act(VAWA) – despite the fact that regulatory guidance is still forthcoming.
Is your institution up to date on the new campus security laws? Last year, President Obama signed into law the Violence Against Women Reauthorization Act (VAWA), comprehensive federal legislation designed to prevent and address violence against women on campuses nationally. Section 304 of the VAWA, commonly referred to as the Campus SaVE Act, takes effect this month, March 2014, even though the U.S. Department of Education (DOE) has yet to issue regulations implementing the new law.
This alert outlines what colleges and universities should be doing now to comply with these new federal requirements in the absence of regulatory guidance.
Collect Statistics on New Crime Categories
Colleges and universities are required to collect and publish statistics about certain categories of crimes occurring on or near their campuses. These statistics must be published each October in the institution’s Annual Security Report. The VAWA adds to the categories of crimes which institutions must report in their Annual Security Report. Under the category of hate crimes, the new law includes incidents involving gender identity, national origin and sexual orientation. The VAWA also creates three new categories of sexual harassment and assault: dating violence, domestic violence and stalking.
Dating violence is defined as "violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, and (iii) the frequency of interaction between the persons involved in the relationship."
Domestic violence includes a "felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction."
Stalking means "engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress."
How to apply these new categories in specific situations is unclear. The VAWA does not explain, for example, how institutions should distinguish between overlapping definitions or how much investigation is required to determine the circumstances of each incident. In guidance issued in May 2013, the DOE stated that colleges and universities should use their "best efforts" to include statistics for these new crime categories in their Annual Security Reports for October 2014. Accordingly, institutions should be working with their campus police forces and those responsible for publishing the Annual Security Report to begin recording statistics for incidents falling under these new crime categories.
Revise Policy Statements on Sexual Assault
The VAWA requires colleges and universities to revise their policy statements against sexual harassment and assault to include specific references to dating violence, domestic violence and stalking as defined by the statute. Policies also need to clearly describe how the institution will respond to reports of dating violence, domestic violence and stalking.
Develop and Implement Education Programs
One of the main features of the VAWA is the requirement that colleges and universities develop and implement awareness and prevention programs addressing dating violence, domestic violence, stalking and other forms of sexual harassment and assault. These programs should be mandatory for all incoming students and new employees.
The programs must include, among other things, express prohibitions on the various forms of sexual harassment and assault; the legal definitions of dating violence; domestic violence and stalking according to the laws of the institution’s home state; the applicable state law definition of consent; safe and positive options for bystander intervention; identification of warning signs and risk reduction methods; written notice to victims regarding preservation of evidence and their reporting options; written notice to students regarding their options for notifying law enforcement with or without support from the institution; interim safety measures such as protective orders or new housing quarters; and ongoing prevention and awareness training for students and employees.
Update Disciplinary Procedures
Pursuant to the VAWA, colleges and universities must update their disciplinary procedures to address the new reportable crime classifications. Disciplinary procedures must promise and provide prompt, fair and impartial investigation and resolution of reports involving sexual harassment and assault, including the new classifications. The proceedings must be conducted by officials who have had at least annual training in these areas. Both parties must be given the opportunity to have others present with them during the proceedings, and both must be given written notice of the outcome of the proceedings. The standard of evidence must be published. While the VAWA does not mandate a particular evidentiary standard, the DOE's Office of Civil Rights considers a preponderance of the evidence to be the proper standard.
This article only outlines the more salient requirements of the VAWA that take effect this month. This new law contains many more legal obligations and involves planning for ongoing implementation. To ensure compliance, colleges and universities should involve all interested stakeholders – including campus security, student affairs, Title IX coordinators, human resources, health services and experienced legal counsel.