As we discussed in a previous post, the Violence Against Women Reauthorization Act of 2013 (VAWA) amended the Clery Act to require institutions, among other things, to gather and report statistics for incidents of domestic violence, dating violence, and stalking. Presently, the Department’s Clery Act Compliance Division is leading a negotiated rulemaking for the purpose of promulgating new regulations designed to carry out VAWA, and to enhance and clarify the existing law. The proposed regulations were released in mid-June. The final regulations likely will be published in September and become effective July 1, 2015.
Understanding that the new regulations remain “in progress,” the U.S. Department of Education has directed institutions to make a good-faith effort to gather and publish the new crime statistics in this year’s Annual Security Report, with the understanding that schools will be required to report the new statistics to the Department (through the web-based reporting system) in 2015. With this directive in mind, we’ve set out below five important points to keep in mind when crunching the numbers this fall:
- Report all reports
Remember that you are responsible for including in your statistics all incidents of domestic violence, dating violence, and stalking that are reported to campus security authorities or local law enforcement, including, for example, reports of crimes made in calls for service, complaints, or investigations. It does not matter if the crime was reported by the victim or a third-party. Nor does it matter if a prosecutor, court, jury, or other third-party ultimately determined that a crime did not occur.
- Know your definitions
Ensure that you are using the correct definitions of domestic violence, dating violence, and stalking. VAWA directs that the statistics be compiled in accordance with the definitions used in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)). Conveniently, the Department included these definitions in its recent Dear Colleague letter on the subject. Note: The Department’s proposed regulations slightly revise these definitions, so make sure to have the updated definitions on hand when you start crunching the numbers next year.
- What’s a ‘relationship’?
As detailed in VAWA, “dating violence” is committed by an individual who is in “a social relationship of a romantic or intimate nature with the victim.” The definition indicates that the determination of whether such a relationship exists should take into account (1) the length of the relationship, (2) the type of relationship, and (3) the frequency of interaction between the persons involved in the relationship. However, the definition does not indicate who, ultimately, should be making this determination. In the commentary accompanying the proposed regulations, the Department suggests that this determination should be made by the institution, based on the reporting party’s statement. Although this approach is not yet formalized in the law, we suggest that it would reasonable to adopt it for purposes of preparing this year’s report. Institutions will have to develop some mechanism for determining when a qualifying relationship exists, and this approach presently has the support of the Department, as well as the consensus of the negotiators who participated in the rulemaking process.
- Dating violence vs. domestic violence
The Department has proposed in the new regulations that any reported incident qualifying as both domestic violence and dating violence need only be reported once, as domestic violence. However, this approach only appears in the proposed regulations, and is not included in VAWA. As such, we recommend that for this year’s report, institutions include any such incidents in the statistics for both dating violence and domestic violence. Although this represents the conservative approach, it is in keeping with the letter of the law. Further, institutions should have an opportunity to revise their 2013 statistics prior to reporting them to the Department in fall 2015, which will be after the new regulations have taken effect.
- Drop the ‘Hierarchy Rule’
Pursuant to the ‘‘Hierarchy Rule,” when more than one criminal offense is committed during a single incident, institutions only include the most serious offense in the institution’s Clery Act statistics. However, in the regulations presently under review, the Department has proposed that in counting sex offenses, the Hierarchy Rule should not apply. Thus, if a victim is both robbed and sexually assaulted in a single incident, then an institution would include both the robbery and the sexual assault in its statistics. While it’s not yet the law, we suggest that institutions consider adopting this approach when preparing this year’s report. Doing so would be consistent with the views of the Department and the consensus of the negotiators, as well as with the general attitude on the Hill regarding what presently constitutes sound public policy.
Finally, please be sure to review the next piece we’ll be posting, which addresses the recording and reporting of stalking incidents. As the Department recognizes in the commentary accompanying the proposed regulations, stalking is unique among the Clery Act crimes because it occurs over a period of time and involves a pattern of conduct.
Aaron Lacey is a partner in Thompson Coburn’s Higher Education practice, and editorial director of REGucation. You can find Aaron on Twitter (@HigherEdCounsel) and LinkedIn, and reach him at (314) 552-6405 or email@example.com.