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An Overview of the Department of Education’s New Rules Implementing the Clery Act

Last week the Federal Department of Education released amendments to the rules implementing the Clery Act (20 U.S.C. § 1092(f)) – a law that requires colleges and universities to record and publish information about crime on and near their campuses.  The new amendments require schools to collect and publish statistics regarding incidents of dating violence, domestic violence, sexual assault, and stalking as well as information about their procedures for handling these incidents in the schools’ annual reports.  Some key changes made by this new rule include:

A New Definition of Rape: The definition of rape will be revised in the Clery Act, which previously used an 80-year-old definition used by the FBI.  From 1927 to 2011 the FBI’s Uniform Crime Reporting Program – and by incorporation the Clery Act – defined rape as: “the carnal knowledge of a female, forcibly and against her will.”  In 2011 the FBI updated its definition to reflect that both men and women can be raped, that physical force is not a required element of rape, and that rape may be accomplished by penetration with objects as well as sex organs.  The definition that the FBI now uses, and that colleges and universities will now be required to use is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

New Categories of Bias for Hate Crimes: Under the Clery Act, schools are required to report hate crimes that occur on their campuses or school-owned property.  Before the VAWA reauthorization, the categories of bias that could form the basis of a hate crime were: race, religion, ethnicity, gender, sexual orientation, and disability.   The amendments add the category of “gender identity,” and separate out “national origin” from “ethnicity” to make more clear what types of bias are covered by the law.

Requirement for Schools to Institute Prevention Programs: The rule requires schools to report on their prevention programs aimed at addressing sexual assault, stalking, domestic violence and dating violence.  Those programs must include, among other requirements a statement that the institution prohibits those crimes; definitions of those crimes; the jurisdiction’s definition of consent; and information about possible options for bystander intervention.

Policy Statements on Sexual Assault, Domestic Violence, Stalking, and Dating Violence: Schools are now required to include in their annual reports policy statements about these crimes.  The policy statements must include a description of prevention programs the school offers, the procedures to be used when a report of one of these crimes is made to the school, and procedures for disciplinary action against students accused of one of these crimes.

Disclosure of Protective Measures Available to Students: The Act now requires schools to inform students who complain of sexual assault, stalking, domestic violence, or dating violence of the accommodations and protective measures available to them through the school.  The new amendments require schools to give the victim accommodations related to his or her academic, living, transportation, and working situations if those accommodations are “reasonably available.”  The rule does not define what “reasonably available” means; it states only that it “must be determined on a case-by-case basis.”

More Clarity Surrounding Disciplinary Proceedings: The revisions require that each school publish a statement of policy that describes the school’s disciplinary procedures for allegations of sexual assault, dating violence, stalking, or domestic violence.  These policies must include, among other elements: timelines for disciplinary proceedings, a statement of how the school determines what proceeding to use, describes the standard of evidence to be used, lists the possible sanctions for allegations of these offenses, lists the protective measures available to students making allegations of these offenses, and a statement that the procedures will be prompt, fair, and impartial.

Proposed Affirmative Consent Definition Not Included: The comments to the rule note that the Department presented draft language to define “consent” as “the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter.”  This definition was not included in the final rule; the Department decided that a definition of consent is not needed in the Clery Act because the Act requires schools to report statistics of all crimes that are reported, not only those that are proven to have occurred.

Withholding “Unfounded” Reports: The rules clarify that institutions can omit reports of crime from their statistics only when those reports are determined to be “unfounded.” Only sworn or commissioned law enforcement personnel can make a determination that a report was unfounded, and only after a full investigation.  Reports are only unfounded if the allegations did not meet the elements of the offense or if the incident was improperly classified as a crime. If someone is charged with a crime, but is then exonerated in a criminal proceeding, that report is not considered unfounded and must be included in the statistics.

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