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Subject: Proposed Rule - Violence Against Women Act

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

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34 CFR Part 668

Violence Against Women Act; Proposed Rule

Federal Register / Vol. 79 , No. 119 / Friday, June 20, 2014 / 
Proposed Rules

[[Page 35418]]

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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.

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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.

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Last Modified: 06/19/2014