FR part
II
Publication Date: June 20, 2014
Posted Date: June 20, 2014
Subject: Proposed Rule - Violence Against Women Act
FR Part: II
FR Type: Notice of Proposed Rulemaking (NPRM)
[Federal Register Volume 79, Number 119 (Friday, June 20, 2014)] [Proposed Rules] [Pages 35417-35460] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 2014-14384] [[Page 35417]] Vol. 79 Friday, No. 119 June 20, 2014 Part II Department of Education --------------------------------------------------------------------------------------------- 34 CFR Part 668 Violence Against Women Act; Proposed Rule Federal Register / Vol. 79 , No. 119 / Friday, June 20, 2014 / Proposed Rules [[Page 35418]] ----------------------------------------------------------------------------------------- DEPARTMENT OF EDUCATION 34 CFR Part 668 RIN 1840-AD16 [Docket ID ED-2013-OPE-0124] Violence Against Women Act AGENCY: Office of Postsecondary Education, Department of Education. ACTION: Notice of proposed rulemaking. -------------------------------------------------------------------------------------------- SUMMARY: The Secretary proposes to amend the Student Assistance General Provisions regulations issued under the Higher Education Act of 1965, as amended (HEA), to implement the changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA). These proposed regulations would update, clarify, and improve the current regulations. DATES: We must receive your comments on or before July 21, 2014. ADDRESSES: Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments. If you are submitting comments electronically, we strongly encourage you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), we strongly encourage you to convert the PDF to print-to-PDF format or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions.Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under ``Are you new to the site?'' Postal Mail, Commercial Delivery, or Hand Delivery: The Department strongly encourages commenters to submit their comments electronically. However, if you mail or deliver your comments about the proposed regulations, address them to Jean-Didier Gaina, U.S. Department of Education, 1990 K Street NW., Room 8055, Washington, DC 20006-8502. Privacy Note: The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available. FOR FURTHER INFORMATION CONTACT: Jessica Finkel, U.S. Department of Education, 1990 K Street NW., Room 8031, Washington, DC 20006-8502. Telephone (202) 502-7647 or by email at: Jessica.Finkel@ed.gov. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1- 800-877-8339. SUPPLEMENTARY INFORMATION: Executive Summary Purpose of This Regulatory Action On March 7th, 2013, President Obama signed the Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub. Law 113-4), which, among other provisions, amended section 485(f) of the HEA, otherwise known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The Clery Act requires institutions of higher education to comply with certain campus safety- and security- related requirements as a condition of their participation in the title IV, HEA programs. Notably, VAWA amended the Clery Act to require institutions to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking and to include certain policies, procedures, and programs pertaining to these incidents in their annual security reports. We propose to amend Sec. 668.46 of title 34 of the Code of Federal Regulations (CFR) in order to implement these statutory changes. Additionally, we propose to update this section by incorporating provisions added to the Clery Act by the Higher Education Opportunity Act of 2008, deleting outdated deadlines and cross-references, and making other changes to improve the readability and clarity of the regulations. Summary of the Major Provisions of This Regulatory Action The proposed regulations would-- Require institutions to maintain statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that meet the proposed definitions of those terms. Revise the definition of ``rape'' to reflect the Federal Bureau of Investigation's (FBI) recently updated definition in the UCR Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System. Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into independent categories. Require institutions to provide and describe in their annual security reports primary prevention and awareness programs to incoming students and new employees. These programs must include: A statement that the institution prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking; the definition of these terms in the applicable jurisdiction; the definition of consent, in reference to sexual activity, in the applicable jurisdiction; a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution's policies and procedures after a sex offense occurs; Require institutions to provide and describe in their annual security reports ongoing prevention and awareness campaigns for students and employees. These campaigns must include the same information as in the institution's primary prevention and awareness program; Define the terms ``awareness programs,'' ``bystander intervention,'' ``ongoing prevention and awareness campaigns,'' ``primary prevention programs,'' and ``risk reduction.'' Require institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking; Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking; Require institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking; Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding in which (1) officials are appropriately trained and do not have a [[Page 35419]] conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt timeframe; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely access to information that will be used after the fact-finding investigation but during informal and formal disciplinary meetings and hearings. Define the terms ``proceeding'' and ``result.'' Specify that compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA). Please refer to the Summary of Proposed Changes section of this preamble for more details on the major provisions contained in this notice of proposed rulemaking (NPRM). Costs and Benefits: A benefit of these proposed regulations is that they would strengthen the rights of victims of dating violence, domestic violence, sexual assault, and stalking on college campuses. Institutions would be required to collect and disclose statistics of crimes reported to campus security authorities and local police agencies that involve incidents of dating violence, domestic violence, sexual assault, and stalking. This would improve crime reporting. In addition, students, prospective students, families, and employees and potential employees of the institutions, would be better informed about each campus's safety and procedures. Institutions would incur costs under the proposed regulations in two main categories: Paperwork costs of complying with the regulations, and other compliance costs that institutions may incur as they attempt to improve security on campus. Under the proposed regulations, institutions would incur costs involved in updating the annual security reports; changing crime statistics reporting to capture additional crimes, categories of crimes, differentiation of hate crimes, and expansion of categories of bias reported; and the development of statements of policy about prevention programs and institutional disciplinary actions. Institutions would also incur additional costs in attempting to comply with the new regulations. Costs to improve safety on campus would include annual training of officials on issues related to dating violence, domestic violence, sexual assault, and stalking as well as training on how to conduct disciplinary proceeding investigations and hearings. The proposed regulations are not estimated to have a significant net budget impact in the title IV, HEA student aid programs over loan cohorts from 2014 to 2024. Invitation to Comment: We invite you to submit comments regarding the proposed regulations. In particular, we request comment on additional ways to identify where one incident of stalking has ended and another has begun, on how to count stalking that crosses calendar years, and on how to report incidents of stalking by location, as discussed under ``Recording Stalking.'' We also request comment about whether the proposed approach to counting some or all of the primary Clery Act crimes should be modified to capture information about the relationship between a perpetrator and a victim, as discussed under ``Crimes that must be Reported and Disclosed.'' To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses, and provide relevant information and data whenever possible, even when there is no specific solicitation of data and other supporting materials in the request for comment. We also urge you to arrange your comments in the same order as the proposed regulations. Please do not submit comments outside the scope of the specific proposals in this notice of proposed rulemaking, as we are not required to respond to comments that are outside of the scope of the proposed rule. See ADDRESSES for instructions on how to submit comments. We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from the proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities. During and after the comment period, you may inspect all public comments about the proposed regulations by accessing Regulations.gov. You may also inspect the comments in person in room 8055, 1990 K Street NW., Washington, DC, between 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. If you want to schedule time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT. Background On March 7th, 2013, President Obama signed VAWA (Pub. L. 113-4). VAWA included amendments to section 485(f) of the HEA, the Clery Act. The Clery Act requires institutions of higher education to comply with certain campus safety- and security-related requirements as a condition of their participation in the Federal student financial aid programs authorized by title IV of the HEA. Notably, VAWA amended the Clery Act to require institutions to compile statistics of the number of incidents of dating violence, domestic violence, and stalking reported to campus security authorities or local police agencies, in addition to the crimes currently identified. Institutions also must include certain policies, procedures, and programs pertaining to these incidents in their annual security reports. We propose to amend 34 CFR Sec. 668.46 to implement these statutory changes. Additionally, we propose to update this section by incorporating certain provisions added to the Clery Act by the Higher Education Opportunity Act of 2008, deleting outdated deadlines and cross-references, and making other changes to improve the readability and clarity of the regulations. Public Participation On April 16, 2013, we published a notice in the Federal Register (78 FR 2247), which we corrected on April 30, 2013 (78 FR 25235), announcing topics for consideration for action by a negotiated rulemaking committee. The topics for consideration were: Cash management of funds provided under the title IV Federal Student Aid programs; State authorization for programs offered through distance [[Page 35420]] education or correspondence education; State authorization for foreign locations of institutions located in a State; clock to credit hour conversion; gainful employment; changes to the campus safety and security reporting requirements in the Clery Act made by VAWA, and the definition of ``adverse credit'' for borrowers in the Federal Direct PLUS Loan Program. In that notice, we announced three public hearings at which interested parties could comment on the topics suggested by the Department and could suggest additional topics for consideration for action by a negotiated rulemaking committee. On May 13, 2013, we announced in the Federal Register (78 FR 27880) the addition of a fourth hearing. The hearings were held on May 21, 2013, in Washington, DC; May 23, 2013, in Minneapolis, Minnesota; May 30, 2013, in San Francisco, California; and June 4, 2013, in Atlanta, Georgia. We also invited parties unable to attend a public hearing to submit written comments on the topics and to submit other topics for consideration. Transcripts from the public hearings are available at http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/index.html. Written comments submitted in response to the April 16, 2013, notice may be viewed through the Federal eRulemaking Portal at www.regulations.gov, within docket ID ED-2012-OPE-0008. You can link to the ED-2012-OPE-0008 docket as a related docket inside the ED-2013-OPE- 0124 docket associated with this notice of proposed rulemaking. Alternatively, individuals can enter docket ID ED-2012-OPE-0008 in the search box to locate the appropriate docket. Instructions for finding comments are also available on the site under ``How to Use Regulations.gov'' in the Help section. Negotiated Rulemaking Section 492 of the HEA, 20 U.S.C. 1098a, requires the Secretary to obtain public involvement in the development of proposed regulations affecting programs authorized by title IV of the HEA. After obtaining advice and recommendations from the public, including individuals and representatives of groups involved in the title IV, HEA programs, the Secretary must subject the proposed regulations to a negotiated rulemaking process. If negotiators reach consensus on the proposed regulations, the Department agrees to publish without alteration a defined group of regulations on which the negotiators reached consensus unless the Secretary reopens the process or provides a written explanation to the participants stating why the Secretary has decided to depart from the agreement reached during negotiations. Further information on the negotiated rulemaking process can be found at: http://www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html. On September 19, 2013, the Department published a notice in the Federal Register (78 FR 57571) announcing our intention to establish a negotiated rulemaking committee to prepare proposed regulations to address the changes to the Clery Act made by VAWA. The notice set forth a schedule for the committee meetings and requested nominations for individual negotiators to serve on the negotiating committee. The Department sought negotiators to represent students; legal assistance organizations that represent students; consumer advocacy organizations; State higher education executive officers; State Attorneys General and other appropriate State officials; institutions of higher education eligible to receive Federal assistance under title III, parts A, B, and F and title V of the HEA, which include Historically Black Colleges and Universities, Hispanic-Serving Institutions, American Indian Tribally Controlled Colleges and Universities, Alaska Native and Native Hawaiian-Serving Institutions, Predominantly Black Institutions, and other institutions with a substantial enrollment of needy students as defined in title III of the HEA; two-year public institutions of higher education; four-year public institutions of higher education; private, non-profit institutions of higher education; private, for-profit institutions of higher education; institutional campus public safety officials; institutional student affairs/disciplinary divisions; institutional centers for women, lesbian, gay, bisexual, and transgendered individuals; institutional attorneys; Indian tribal governments; and campus safety advocates. The Department considered the nominations submitted by the public and chose negotiators who would represent various interested constituencies and the negotiated rulemaking committee met to develop proposed regulations on January 13-14, 2014, February 24-25, 2014, and March 31-April 1, 2014. At its first meeting, the committee reached agreement on its protocols, which generally set out the committee membership, and the standards by which the committee would operate. These protocols provided, among other things, that the non-Federal negotiators would represent the organizations listed after their names in the protocols. The committee included the following members: Laura Dunn, SurvJustice, and John Kelly (alternate), Know Your IX, representing students. Fatima Goss Graves, National Women's Law Center, and Bridget Harwood (alternate), Network for Victim Recovery of DC, representing legal assistance organizations that represent students. Nancy Chi Cantalupo, Victim Rights Law Center, and Denice Labertew (alternate), Los Angeles Valley College and Los Angeles Mission College, representing consumer advocacy organizations. S. Daniel Carter, VTV Family Outreach Foundation's 32 National Campus Safety Initiative, and Alison Kiss (alternate), Clery Center for Security on Campus, Inc., representing campus safety advocates. Connie Best, Medical University of South Carolina, and Jessica Ladd- Webert (alternate), University of Colorado-Boulder, representing mental health services providers. Michael Heidingsfield, University of Texas System Police, and Paul Denton (alternate), Ohio State University Police Division, representing institutional campus safety officials. Cat Riley, University of Texas Medical Branch Galveston, and Caroline Fultz-Carver (alternate), University of South Florida System, representing institutional student affairs/disciplinary divisions. Lisa Erwin, University of Minnesota Duluth, and Dennis Gregory (alternate), Old Dominion University, representing institutional centers for women, lesbian, gay, bisexual, and transgendered individuals. Dana Scaduto, Dickinson College, and Jerry Blakemore (alternate), Northern Illinois University, representing institutional attorneys. Anthony Walker, Norfolk State University, and Julie Poorman (alternate), East Carolina University, representing minority-serving intuitions and other title III institutions. Rick Amweg, University System of Ohio, and Gary Lyle (alternate), Anne Arundel Community College, representing two-year public institutions. Jill Dunlap, UC Santa Barbara, and Holly Rider-Milkovich (alternate), University of Michigan, representing four-year public institutions. Stephanie Atella, Loyola University Chicago, and Michael Webster (alternate), McDaniel College, representing private, non-profit institutions. Deana Echols, Ultimate Medical Academy, and Christine Gordon (alternate), Graham Webb Academy, representing private, for-profit institutions. Gail McLarnon, U.S. Department of Education, representing the Department. The protocols also provided that the committee would operate by consensus. The protocols also specified that consensus means that there must be no dissent by any members. Under the [[Page 35421]] protocols, if the committee reached a final consensus on all issues, the Department would use the consensus-based language in its proposed regulations or, in the alternative, the Department would reopen the negotiated rulemaking process or provide a written explanation to the committee members regarding why it has decided to depart from that language. During the committee meetings, the committee reviewed and discussed the Department's drafts of regulatory language and the committee members' alternative language and suggestions. At the final meeting on April 1, 2014, the committee reached consensus on the Department's proposed regulations. For more information on the negotiated rulemaking sessions, please visit http://www2.ed.gov/policy/highered/reg/hearulemaking/2012/vawa.html. Summary of Proposed Changes The proposed regulations would-- Add and define the terms ``Clery Geography,'' ``dating violence,'' ``domestic violence,'' ``Federal Bureau of Investigation's (FBI) Uniform Crime Reporting (UCR) program (FBI's UCR program),'' ``hate crime,'' ``Hierarchy Rule,'' ``programs to prevent dating violence, domestic violence, sexual assault, and stalking,'' ``sexual assault,'' and ``stalking.'' Require institutions to address in their annual security reports their current policies concerning campus law enforcement, including the jurisdiction of security personnel, as well as any agreements, such as written memoranda of understanding between the institution and those police agencies, for the investigation of alleged criminal offenses. Require institutions to address in their annual security reports their policies to encourage accurate and prompt reporting of all crimes to the campus police and the appropriate police agencies when the victim of a crime elects to or is unable to make such a report. Require institutions to provide written information to victims about the procedures that one should follow if a crime of dating violence, domestic violence, sexual assault, or stalking has occurred, including written information about: [cir] The importance of preserving evidence that may assist in proving that the alleged criminal offense occurred or may be helpful in obtaining a protection order; [cir] How and to whom the alleged offense should be reported; [cir] The victim's options about the involvement of law enforcement and campus authorities, including the options to notify proper law enforcement authorities, be assisted by campus authorities in notifying law enforcement authorities, and decline to notify authorities; and [cir] The victim's rights and the institution's responsibilities with respect to orders of protection or similar orders issued by a court or by the institution. Require institutions to address in their annual security reports how the institution will complete publicly available recordkeeping requirements, including Clery Act reporting and disclosures, without the inclusion of identifying information about the victim; Require institutions to address in their annual security reports how the institution will maintain as confidential any accommodations or protective measures provided to the victim, to the extent that maintaining such confidentiality would not impair the ability of the institution to provide the accommodations or protective measures. Require institutions to specify in their annual security reports that they will provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, and other services available for victims both within the institution and in the community. Require institutions to specify in their annual security reports that they will provide written notification to victims about options for, and available assistance in, changing academic, living, transportation, and working situations and clarify that the institution must make these accommodations if the victim requests them and if they are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement. Require institutions to specify in their annual security reports that, when a student or employee reports to the institution that the student or employee has been a victim of dating violence, domestic violence, sexual assault, or stalking, whether the offense occurred on or off campus, the institution will provide the student or employee a written explanation of the student's or employee's rights and options. Require institutions to maintain statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that meet the proposed definitions of those terms. Revise the definition of ``rape'' to reflect the FBI's recently updated definition in the UCR Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System. Revise and update the definitions of ``sex offenses,'' ``fondling,'' ``incest,'' and ``statutory rape'' in Appendix A to subpart D of part 668 to reflect the FBI's updated definitions. Emphasize that institutions must, for the purposes of Clery Act reporting, include in their crime statistics all crimes reported to a campus security authority. Clarify that an institution may not withhold, or subsequently remove, a reported crime from its crime statistics based on a decision by a court, coroner, jury, prosecutor, or other similar noncampus official. Specify that Clery Act reporting does not require initiating an investigation or disclosing identifying information about the victim. Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into independent categories. Specify how institutions should record reports of stalking, including how to record reports in which the stalking included activities in more than one calendar year or in more than one location within the institution's Clery Act-reportable areas, and how to determine when to report a new crime of stalking involving the same victim and perpetrator. Create an exception to the requirements of the Hierarchy Rule in the UCR Reporting Handbook for situations in which an individual is a victim of a sex offense and a murder during the same incident so that the incident will be included in both categories. Clarify that an institution must withhold as confidential the names and other identifying information of victims when providing timely warnings. Implement the requirements pertaining to an institution's educational programs to promote the awareness of dating violence, domestic violence, sexual assault, and stalking by: [cir] Requiring institutions to describe in their annual security reports the institution's primary prevention and awareness programs for incoming students and new employees, which must include: A statement that the institution prohibits the crimes of dating [[Page 35422]] violence, domestic violence, sexual assault, and stalking; the definition of these terms in the applicable jurisdiction; the definition of consent, in reference to sexual activity, in the applicable jurisdiction; a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution's policies and procedures after a sex offense occurs; [cir] Requiring institutions to provide and describe in their annual security reports ongoing prevention and awareness campaigns for students and employees, which must include the same information as in the institution's primary prevention and awareness program; and [cir] Defining the terms ``awareness programs,'' ``bystander intervention,'' ``ongoing prevention and awareness campaigns,'' ``primary prevention programs,'' and ``risk reduction.'' Implement requirements pertaining to an institution's procedures for campus disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking by: [cir] Requiring institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking; [cir] Requiring institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking; [cir] Requiring institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking; [cir] Requiring institutions to provide for prompt, fair, and impartial disciplinary proceedings in which: (1) Officials are appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt timeframe; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely access to information that will be used after the fact-finding investigation but during informal and formal disciplinary meetings and hearings; [cir] Defining the terms ``proceeding'' and ``result;'' and [cir] Specifying that compliance with these provisions does not constitute a violation of FERPA. Prohibit retaliation by an institution or an officer, employee, or agent of an institution against any individual for exercising their rights or responsibilities under any provision under the Clery Act. Significant Proposed Regulations Very generally, section 304 of VAWA amended section 485(f) of the HEA, otherwise known as the Clery Act, to: Expand reporting of crime statistics to capture a more accurate picture of dating violence, domestic violence, sexual assault, and stalking on our nation's campuses; strengthen institutional policies related to these crimes; provide greater support and accommodations for victims; and protect the rights of both parties (accuser and accused) during institutional disciplinary proceedings. During the negotiated rulemaking process that resulted in these proposed regulations, the committee was guided by several key principles. First, 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).\1\ 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. --------------------------------------------------------------------------- \1\ Title IX prohibits discrimination on the basis of sex in federally funded education programs or activities. --------------------------------------------------------------------------- Second, the committee set out to develop inclusive, effective, and fair regulations that protect the rights of all students. The negotiators worked hard to craft regulatory language that takes into account the unique needs of diverse communities and individuals, paying careful attention to words that might be viewed as insensitive or unwelcoming. And third, the committee recognized that, while there is important and urgent work being done in the sexual violence prevention field, the Clery Act and VAWA do not require institutions to use specific materials for prevention policies and procedures. The committee believed strongly that institutions should use practices that have been shown through research and assessment to be effective. The Department expects that best practices information will be released a separate document following issuance of final regulations. We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect. Definitions Definition of Clery Geography Statute: Section 485(f)(1)(F) of the HEA requires an institution to report to the Department and disclose in its annual security report statistics regarding certain crimes reported to campus security authorities or local police agencies that occur on campus, in or on noncampus buildings or property, and on public property during the most recent calendar year and during the two preceding calendar years for which data are available. Additionally, section 485(f)(4)(A) of the HEA requires institutions that maintain a campus police or security department of any kind to make, keep, and maintain a daily crime log that records all crimes reported to that police or security department. Current Regulations: Section 668.46(a) contains definitions of the terms ``campus'' ``noncampus building or property'' and ``public property.'' ``Campus'' is defined as (1) any building or property owned or controlled by an institution within the same reasonably contiguous geographic area and used by the institution in direct support of, or in a manner related to, the institution's educational purposes, including residence halls; and (2) any building or property that is within or reasonably contiguous to the area identified in clause (1) that is owned or controlled by another person, is frequently used by students, and supports institutional purposes (such as a food or other retail vendor). ``Noncampus building or property'' is defined as (1) any building or property owned or controlled by a student organization that is officially recognized by the institution; or (2) any building or property owned or controlled by an institution that is used in direct support of, or in relation to, the institution's educational purposes, is frequently used by students, and is not [[Page 35423]] within the same reasonably contiguous geographic area of the institution. ``Public property'' is defined as all public property, including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to and accessible from the campus. Section 668.46(f) requires institutions that have a campus police or security department to maintain a daily crime log that records any crime reported to that department that occurred on campus, on a noncampus building or property, on public property (as those terms are defined in Sec. 668.46(a)), or within the patrol jurisdiction of the campus police or security department. Proposed Regulations: We propose to add and define the term ``Clery Geography'' to Sec. 668.46(a). For the purposes of the annual crime statistics, ``Clery Geography'' would be defined as including the areas that meet the definitions of ``campus,'' ``noncampus building or property,'' or ``public property.'' For the purposes of maintaining a daily crime log as required under Sec. 668.46(f), Clery Geography would be defined to also include areas within the patrol jurisdiction of the campus police or security department. We also propose to replace both the reference in Sec. 668.46(c)(1) to ``campus, in or on noncampus buildings or property, and on public property'' and the reference in Sec. 668.46(f)(1) to ``campus, on a noncampus building or property, on public property, or within the patrol jurisdiction of the campus police or the campus security department'' with the term ``Clery Geography.'' Reasons: The proposed use and definition of the term ``Clery Geography'' would provide a concise way of referring collectively to the physical locations for which an institution is responsible for collecting reports of crimes for inclusion in its annual crime statistics and, if applicable, its daily crime log. The Department has used the term ``Clery Geography'' in The Handbook for Campus Safety and Security Reporting (the Handbook), which provides guidance on complying the Clery Act, and in training materials to refer to an institution's ``campus,'' ``noncampus building or property,'' or ``public property'' for many years, and the term is commonly used by institutional officials and other individuals familiar with the Clery Act. We stress that this proposed definition of ``Clery Geography'' would not alter the existing, long-standing definitions of ``campus,'' ``noncampus building or property,'' or ``public property.'' Instead, we are adding this term to improve the readability and understandability of the regulations. Definition of Consent Statute: None. Current Regulations: None. Proposed Regulations: None. Reasons: During the negotiated rulemaking sessions, the committee debated whether to propose a definition of the word ``consent'' in these regulations. During the first session, several negotiators strongly urged the Department to develop a definition of ``consent'' for the purposes of the Clery Act. They asserted that establishing a definition of consent would help set a national standard for what it means to consent to sexual activity. Several negotiators also argued that a definition of consent would provide clarity for institutions, students, and employees with regard to when a reported sex offense would need to be included in the institution's Clery Act statistics. Other negotiators, however, objected to the proposed addition of a definition of consent. They argued that a definition would create ambiguity and confusion for institutional officials, students, employees, and the public, particularly in jurisdictions which either do not define consent or have a definition that differed from the one that would be in the regulations. Some negotiators, particularly those representing law enforcement and institutional attorneys, believed that it would be difficult and create a burden for law enforcement officials to classify crimes based on two different standards, and that campus public safety officials would be expected to make decisions about consent based on situations outside their areas of expertise and without a bright-line standard. One of the negotiators argued that it would not be reasonable to add a definition of consent for Clery Act reporting purposes when VAWA specifically added a reference to the definition of consent in the applicable jurisdiction for the purposes of prevention and training. Along these lines, some negotiators noted that some institutions use their own definition of ``consent'' for purposes of their institutional disciplinary procedures. These officials asserted that adding a definition of consent to these regulations could cause confusion by creating situations where an institution might have three separate definitions of consent relating to sexual activity for different purposes. After considering these arguments, the Department decided to include a definition of consent in the Department's initial draft regulations presented to the negotiators. Drawing on materials from other Federal agencies, State statutes, and institutions, we drafted language to define ``consent'' as the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter. Under this definition, an individual who was asleep, or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, or who was under duress, threat, coercion, or force, would not have been able to give consent. Further, one would not be able to infer consent under circumstances in which consent was not clear, including but not limited to the absence of ``no'' or ``stop,'' or the existence of a prior or current relationship or sexual activity. Several of the negotiators endorsed this draft language as a starting point and some made suggestions to strengthen it. On the other hand, some negotiators vigorously objected to including the definition, reiterating concerns about the potential for confusion caused by multiple definitions. After further consideration, the Department decided to remove the definition of consent from the draft regulations. At the third session of the negotiations, we explained that, while we believed that our draft language is a valid starting point for other efforts related to the prevention of campus sexual assaults, we were not convinced that it would be helpful to institutions for purposes of complying with the Clery Act. Specifically, we noted that for purposes of Clery Act reporting, all sex offenses that are reported to a campus security authority must be recorded in an institution's Clery Act statistics and, if reported to the campus police, must be included in the crime log, regardless of the issue of consent. Thus, while the definitions of the sex offenses in Appendix A to subpart D of part 668 include lack of consent as an element of the offense, for purposes of Clery Act reporting, no determination as to whether that element has been met is required. Some of the negotiators disagreed, arguing that the references to a lack of consent in various parts of the proposed regulations, such as the definitions of the sex offenses in Appendix A to subpart D of part 668, demands an affirmative definition of consent in order to permit determinations of when consent is absent. In the end, however, the negotiators agreed not to include a definition of consent in these regulations, but they requested that the Department include further clarification and guidance around the issue of consent in future documents and [[Page 35424]] publications. We intend to provide this guidance, and also note that other Federal, State, and local agencies have materials in this area that may be instructive. Definition of Dating Violence Statute: Section 304 of VAWA added a requirement to the Clery Act that institutions include statistics on dating violence in their crime statistics reported to the Department and in the annual security report. In addition, VAWA amended sections 485(f)(6)(A) and 485(f)(7) of the HEA to specify that the term ``dating violence'' has the meaning given in Sec. 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)). The Violence Against Women Act of 1994 defines the term ``dating violence'' to mean violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; where the existence of such a relationship is determined based on a consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Current Regulations: None. Proposed Regulations: We propose to add a definition of the term ``dating violence'' in Sec. 668.46(a). Dating violence would be defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship would be determined based on the reporting party's statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, dating violence would include, but would not be limited to, sexual or physical abuse or the threat of such abuse. Additionally, the proposed definition would specify that dating violence does not include acts that meet the definition of ``domestic violence.'' Finally, the proposed definition would clarify that, for the purposes of complying with the requirements of the Clery Act, including for statistical purposes, any incident that meets this definition of dating violence would be considered a crime. Reasons: The changes made to the Clery Act by VAWA include requirements relating to programs, policies, procedures, and statistics related to incidents of dating violence, domestic violence, sexual assault, and stalking. Accordingly, we propose to add definitions of these terms to the regulations. While the term ``dating violence'' is defined in the Violence Against Women Act of 1994, the Department received numerous requests at the public hearings, during the public comment period and from some of the negotiators, to further define some of the words used in the statutory definition of the term. In particular, we were asked to clarify how institutions should determine whether individuals were in a dating relationship when the violence occurred, specify what types of behavior would be considered violence, clarify the interaction between dating violence and domestic violence, and explain how to address incidents of dating violence in jurisdictions where dating violence is not a crime. The negotiators had a substantial discussion on how to determine whether individuals were in a dating relationship when the violence occurred. In particular, the negotiators suggested three possible approaches to determining whether a dating relationship exists: (1) Accepting the determination of campus safety officials, (2) using a ``reasonable person'' standard, or (3) basing the determination on the victim's perspective. Under the first approach, campus law enforcement or a campus security department would make the determination of whether a dating relationship existed after considering the factors outlined in the statutory definition of dating violence, specifically, the length and type of the relationship, and the frequency of interaction. Several of the negotiators supported this approach because they believed that it would give these officials the authority to make a professional judgment about the nature of the relationship, for purposes of crime reporting. Other negotiators disagreed with this approach, however, arguing that generational differences in terminology and culture (e.g., ``going steady,'' ``seeing each other,'' ``hooking up,'' or ``hanging out'') could create situations in which an incident of dating violence would be incorrectly omitted from the crime statistics and the crime log. They noted that, in some cases, the reporting party and the institutional official receiving the report may have different concepts about what constitutes dating. Under the second approach, an institution would make the determination of whether a dating relationship existed based on whether or not a ``reasonable person'' would consider the individuals to be dating. Some of the negotiators advocated this approach, arguing that it would reflect a standard that is frequently used in other areas of the law. Several other negotiators strongly disagreed, however, arguing that a reasonable person standard has traditionally reflected a perspective that may not adequately meet the needs of diverse populations of students. Under the third approach, an institution would make the determination based on whether or not victim considered themselves himself or herself to be in dating relationships. Several of the negotiators supported this approach, arguing that it would be clear and simple. They argued that leaving it to the victim to define the relationship would avoid problems caused by differences in terminology between the victim and campus officials or in the perception of the relationship between the victim and the perpetrator. Other negotiators believed that this was a reasonable approach, but they raised concerns that leaving the determination solely to the victim would not be supportable under the statute, which requires consideration of several factors, namely, the length of the relationship, the type of relationship, and the frequency of interaction. In the end, the negotiators agreed to a compromise definition that allows both the reporting party and law enforcement to be involved in determining whether a reported crime constitutes an incident of dating violence. Under the proposed definition, an institution would determine whether the individuals were in a dating relationship by considering the reporting party's statement, as well as the other factors included in the statutory definition--the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. We believe that this proposed definition appropriately allows institutions to give considerable weight to the view of the victim or, if someone other than the victim reports the incident, to the view of the reporting party, but also allows campus law enforcement or a campus security department flexibility to consider the statutory factors specifically listed in VAWA in deciding whether an incident meets the definition of dating violence. Next, with regards to the types of behavior that would be considered violence for purposes of this definition, some of the negotiators strongly believed that the definition of ``dating violence'' should include not only physical and sexual violence but also emotional or psychological abuse. These [[Page 35425]] negotiators noted that emotional or psychological abuse are commonly included in the definitions of ``dating violence'' or similar terms used by other Federal agencies such as the Department of Justice and the Centers for Disease Control and Prevention, States, and by practitioners in the field of sexual violence prevention. The negotiators also stressed that emotional or psychological abuse can have a severe impact on a victim, limiting the victim's ability to access school in a healthy way, and that emotional or psychological abuse often escalates to physical or sexual violence. Other negotiators believed that the definition of ``dating violence'' should be limited to physical and sexual abuse. They argued that, from a practical standpoint, it would be difficult for campus law enforcement and other institutional officials to determine whether a report of emotional or psychological abuse meets the standard of ``violence,'' and accordingly whether or not to include it in the institution's Clery Act statistics. Some of the negotiators also argued that including emotional and psychological abuse in the definition of dating violence would exceed the limits established by statutory language. In this proposed definition, we have specified that, for the purposes of including incidents of dating violence in an institution's Clery Act statistics, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. While the Department strongly supports the inclusion of emotional or psychological abuse in definitions of dating violence used for research, prevention, victim services, or intervention purposes, we are not proposing to explicitly include these forms of abuse in this definition for purposes of Clery Act reporting for several reasons. First, the Department recognizes that some instances of emotional and verbal abuse may not rise to the level of ``violence'' which is a part of the statutory definition of dating violence under VAWA. Second, we acknowledge the implementation challenges that including these forms of abuse in the regulatory definition would present for campus security authorities, including law enforcement for purposes of Clery Act reporting. In particular, the Department recognizes the difficulties that campus security authorities may encounter when attempting to identify incidents of reported emotional or psychological abuse, as these forms of abuse may not be visibly apparent, but instead may require the input of mental health professionals and counselors. We believe that the proposed definition reflects the statutory requirements and strikes a balance between creating a clear, enforceable regulation and allowing institutions to include instances of emotional or psychological abuse where the abuse constitutes a threat of physical or sexual abuse. Further, some negotiators requested clarification on how institutions should record incidents that meet the definitions of both ``dating violence'' and ``domestic violence'' for Clery Act statistical purposes. Specifically, the negotiators noted that, because certain acts of violence by an intimate partner of the victim meet both the definitions of ``dating violence'' and ``domestic violence'', a particular incident could be double-counted where the act is committed by an ``intimate partner'' and is an act of violence that also constitutes a felony or misdemeanor crime, thus meeting both definitions. To address concerns about the overlap of the definitions of ``dating violence'' and ``domestic violence'' and to avoid double- counting, we have proposed to include the language clarifying that for purposes of Clery Act reporting, ``dating violence does not include acts covered under the definition of domestic violence.'' Finally, the negotiators requested clarification about how to treat incidents of dating violence in jurisdictions where dating violence is not a crime. During the committee's discussions on this point several negotiators noted the discrepancy between the statutory definitions of ``dating violence,'' which refers to ``violence'' and does not require that a crime be committed, and the definition of ``domestic violence,'' which is defined as ``a felony or misdemeanor crime of violence.'' In these proposed regulations we would provide that any incident that meets the definition of ``dating violence'' is a ``crime'' for the purposes of the Clery Act. We have included this provision to make it clear that all such incidents would have to be recorded in an institution's statistics, regardless of whether or not dating violence is a crime in the institution's jurisdiction. We also believe this provision improves the readability of the regulations. Definition of Domestic Violence Statute: Section 304 of VAWA added a requirement to the Clery Act that institutions include statistics on domestic violence in their crime statistics reported to the Department and included in the annual security report. In addition, VAWA amended sections 485(f)(6)(A) and 485(f)(7) of the HEA to specify that the term ``domestic violence'' has the meaning given in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)). The Violence Against Women Act of 1994 defines the term ``domestic violence'' to mean a felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner 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 the jurisdiction receiving grant monies under VAWA, 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. Current Regulations: None. NOTE: REMAINING CONTENT AND CHART IS OMITTED -- SEE PDF FILE FOR CHART