Inside Higher Ed. June 20, 2014.
In a continuing effort to curb campus sexual assaults, the Department of Education officially proposed a new rule Thursday that requires colleges and universities to compile statistics for incidents of dating violence, domestic violence and stalking.
The rule, which would implement changes to the Clery Act under the Violence Against Women Reauthorization Act of 2013, is an attempt at providing a clearer picture of the environment in which sexual assaults of students take place, the department said. The Obama administration is currently investigating more than 60 institutions for their handling of sexual assault cases.
“The Department has the responsibility to ensure that our higher education institutions are creating safe environments for students and are appropriately reporting crimes that occur on or near their campuses,” Arne Duncan, the U.S. secretary of education, said in a statement. “These new rules strengthen schools’ capacity to provide safer college campuses for students and to keep everyone better informed about campus security policies and procedures.”
A 15-member negotiated rule making panel consisting of sexual assault survivors, victims’ advocates, law enforcement representatives, and college officials reached a consensus in April about what the changes should be. The rule, published Friday in the Federal Register, largely reflects that earlier draft.
The changes add gender identity and national origin to the definition of hate crimes under the Clery Act, the federal law that requires institutions to disclose information about campus crimes; strengthens protections for victim confidentially while helping survivors access support services and legal options; and requires that disciplinary proceedings – including appeals – are prompt. It also adopts the FBI’s more nuanced definition of rape.
S. Daniel Carter, a campus safety advocate who served on the rulemaking committee, said the updated definition may be the most significant change to the rule. Some states have far more limited definitions of rape than the federal description.
“That change is very notable in that it’s a more inclusive definition,” Carter said. “The Clery Act from 20 years ago already had a more modernized definition than the traditional Uniform Crime Report’s, and this is now even more inclusive as it’s irrespective of gender.”
Another change receiving praise from student safety advocates is the requirement that universities allow both the accuser and the accused to be accompanied by an adviser of their choice during disciplinary proceedings. While universities can still limit how an adviser participates in the process, the new rule represents a marked shift in the statute. Originally, institutions controlled which types of advisers students could have.
This change was contested during the rule making process by some members of the panel, including Dana Scaduto, general counsel for Dickinson College, as it would allow lawyers to be present during much of the proceedings. Scaduto referred to the alteration in April as a “sea change.”
Laura Dunn, executive director of SurvJustice and a sexual assault survivor who served on the rulemaking panel, said the change provides more concrete rights to survivors while still being fair to those accused of sexual assault.
“Schools would limit who could be brought in, but in reality there would often be an attorney in the wings helping the accused,” Dunn said. “It was a distinctly unfair business. So advisers are important. A lot of victims are retraumatized by the process. They’re cursed at, or demeaned, or humiliated with details regarding their sex life or mental health discussed openly. Just having an adviser there can help that.”
Dunn said the changes also clarify how sexual assaults – and now other crimes like stalking – are reported. Some students had the perception, she said, that if a sexual assault was reported by a survivor’s friend, for example, an institution would be required to investigate the assault without the survivor’s consent.
The new regulations specify that Clery Act reporting does not require an investigation.
“A friend might be concerned and tell an RA, and suddenly the RA is in the survivor’s room questioning her about the assault,” Dunn said. “And that’s not what the survivor wanted. She may have just been seeking a friend. The proposed rules clarify that. We don’t want victims scared into silence because they’re not in control of their choices.”
The changes will be open for public comment until July 21, with the final regulations due to be published by November 1, so they can take effect by July 1, 2015.