VAWA Rulemaking Sessions Come to a Close – A Sneak-Peek at What May Be In Store for Colleges and Universities

by Saul Ewing Arnstein & Lehr LLP
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On March 31, 2014, negotiators concluded the last of three rulemaking sessions focused on tackling issues raised by the recent reauthorization of the Violence Against Women Act (“VAWA”).  The three-session process culminated in a draft regulation which would modify the Clery Act regulations, 34 C.F. R. § 668.46.  The next step in the process is publication in the Federal Register, followed by an opportunity for public comment.

The negotiators grappled with a number of complex issues outlined in five issue papers (which may be viewed at http://tinyurl.com/pmcdr5a).  Among other things, the negotiators identified and attempted to resolve a number of inconsistencies and areas of potential confusion created by the new statutory language.  This article discusses some key areas which the negotiators identified as particularly challenging, and how those challenges may or may not be resolved under the proposed rules.

• Issue: The definition of “domestic violence” under VAWA, and integrated into the Clery Act, references and incorporates the domestic and family violence laws of the local jurisdiction, which creates challenges in providing comparable data for all institutions.

• Resolution: The proposed regulatory language does not resolve the potential for inconsistency among institutions when reporting incidents of domestic violence.  The determination of whether an incident of domestic violence occurred would depend on “the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.”  [Draft 34 C.F.R. § 668.46(a) (emphasis added)].  Similarly, the definition of “domestic violence” for Clery Act reporting purposes will require institutions to familiarize themselves with the domestic violence laws of all jurisdictions in which they have Clery Geography for purposes of determining whether an incident is Clery-reportable.  Although the proposed provision is somewhat clarifying, it does not appear that the regulations will mitigate the potential burden on institutions.

• Issue: What is the “applicable jurisdiction” for purposes of implementing the requirement that institutions provide education programs which include the definitions of domestic violence, dating violence, sexual assault, stalking, and consent in the “applicable jurisdiction”?

• Resolution: This issue remains open as the proposed regulations do not define “applicable jurisdiction” as used in this context.

• Issue: The definition of “dating violence” under VAWA relies on the existence of a social relationship of a romantic or intimate nature, which raises the question of whether an institution must investigate whether the alleged offender and victim were in such a relationship.

• Resolution: The proposed rule resolves this issue by defining “dating violence” as “[v]iolence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.  (1) The existence of such a relationship shall be determined by the victim with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.”  [Draft 34 C.F.R. § 668.46(a) (emphasis added)].  It does not appear that the accused would have an opportunity to weigh-in regarding the nature of the relationship, at least for purposes of Clery Act disclosures.

• Issue:  The VAWA definition of “stalking” is broad and appears to substantially overlap with the offense of intimidation (a hate crime category).

• Resolution: The proposed definition of “stalking” requires “a course of conduct” which would cause a reasonable person in the victim’s circumstances to fear for the safety of himself or others, or to suffer substantial emotional distress.  [Draft 34 C.F.R. § 668.46(a)].  A course of conduct would be defined as “two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property.”  [Draft 34 C.F.R. § 668.46(a)].  “Intimidation,” in contrast, is Clery-reportable as a hate crime and means “[t]o unlawfully place another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack.”  The differentiating factors are that stalking need not be motivated by bias, requires more than one event, and is not limited to the threat of physical harm.

Note that there is still some overlap.  For example, if a victim is threatened with bodily injury motivated by bias (perhaps gender) and reports that incident, it would be categorized as intimidation.  If a second, similar event occurs, then that course of conduct could be categorized as stalking.  This means that the first incident could be counted as part of two separate incidents.  The proposed regulation does not address this type of situation, and institutions will have to wrestle with this issue when preparing their crime statistics.

• Issue:  Under VAWA, the terms “sex offense” and “sexual assault” appear to be synonymous – how should these terms be harmonized?

• Resolution: “Sexual assault” would be defined to include all of the Clery-reportable sex offenses, i.e., rape, sodomy, sexual assault with an object, fondling, incest and statutory rape, as defined in Appendix A of the regulation.

• Issue:  Should the regulations specify parameters for how an institution must provide a “prompt, fair and impartial investigation and resolution” of alleged sex offenses?

• Resolution: The proposed regulation addresses this issue and provides that a “prompt, fair, and impartial proceeding” is one that is:

            “(A) Completed within a reasonable timeframe designated by an institution’s policy and without undue delay;

            (B)  Conducted in a manner that

                        (1) Is consistent with the institution’s policies and transparent to the accuser and accused;

                        (2)  Includes timely notice to the accuser and accused of all meetings relevant to the proceeding; and

                        (3) Provides timely access to both the accuser and the accused to any information that will be used during the proceeding; and

            (C) Conducted by officials who do not have a real or perceived conflict of interest or bias for or against the accuser or the accused.”

[Draft 34 C.F.R. § 668.46(k)].  The proposed rule further sets some parameters for what must be included in a disciplinary process related to a complaint of dating violence, domestic violence, sexual assault or stalking.  These parameters include, among other things, that the proceedings will be conducted by trained officials; will provide both parties the opportunity to have others present; will not limit the choice of advisor (meaning that a lawyer could be a permitted advisor); and will require simultaneous notification of the result and appeal process (if there is one) to both parties.  [Draft 34 C.F.R. § 668.46(k)].  In particular, the addition of lawyers to the disciplinary process is a landmark change with the potential to dramatically impact institutions and, particularly, offices of student conduct overseeing these types of hearings.

• Issue:  What “result” must be reported following an investigation?

• Resolution: Under the proposed regulation, institutions would have to provide notice of the outcome and reason for the outcome.  The regulation specifies that this disclosure will not be deemed violative of FERPA.  [Draft 34 C.F.R. § 668.46(k)(3)(i)(C)(iv)].

The draft rule may be viewed in full at http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa3-regscleandraft.pdf

*    *    *

The draft rule contains many additional and meaningful proposed changes to Clery Act reporting requirements than are covered here, and it merits close study in the coming months.  Even this brief overview reveals that the negotiators recognized many of the complexities associated with implementing the new statutory framework and attempted to resolve some of them.  The Department of Education expects the 2014 Annual Security Reports to comply with the statutory amendments.  The proposed rule, even if not finalized by that time, may provide some helpful perspective as institutions work to comply with the new statutory requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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