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May 12, 2015 Practice Points

Student Conduct and Sexual Assault: How VAWA Is Changing the Landscape

VAWA and Campus SaVE provisions are substantial amendments to the Clery Act.

By Andrea Rubin – May 12, 2015

One of the hottest topics on the minds of student-conduct experts these days is the Violence Against Women Reauthorization Act (VAWA). In March 2014, President Obama signed VAWA; included in the act are the Campus SaVE (or Sexual Violence Elimination) provisions. VAWA amends the Clery Act by creating several new obligations and clarifying the regulations already in place. The new regulations, effective July 2015, will be enforced under the Clery Act.

VAWA requires extended standards of investigations. In early 2014, the Department of Education issued a “Dear Colleague Letter” stating that, “as part of a good-faith effort to comply with the statute, institutions are expected to revise their policy statements to include those procedures and to identify the standard of evidence that the institution will use.” Schools will now have trained investigators in their conduct hearings with emphasis on protecting the safety of victims while promoting accountability. Conduct policies must identify the sanctions or protective measures that may be imposed if there is a finding of rape, domestic violence, sexual assault, dating violence, or stalking.

The new regulations mandate that accuser and accused are entitled to have an advisor of their choice present during a hearing. This change carries the most impact, as it now allows students to have an attorney. Prior to this, the school could limit advisors to staff or faculty members. The right to an attorney allows students and their families peace of mind that someone outside the school’s reach is looking out for their best interest not only for the duration of the school hearing, but for the long-term implications of its outcome. Furthermore, accuser and accused must now be notified simultaneously and in writing of the outcome of any proceeding, appeal procedure, changes to the outcome before it becomes final, and when it becomes final.

New reporting under the Clery Act includes crimes of domestic violence, dating violence, and stalking. In addition, hate-crime reporting will now include the national origin and gender identity of the victim. Inclusion of gender identity in the reporting procedures of hate crimes is a giant step in the recognition of rights of transgender students who are severely underrepresented to date. All victims’ names will be withheld if the crime is considered to be a threat. This forces schools to reevaluate how they will protect the confidentiality of victims and their alleged perpetrators when filing annual reports. Additionally, if a sexual crime results in or includes murder, both crimes will be counted in a school’s annual statistics.

Primary prevention and awareness programs covering rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking will be mandated by VAWA. The training must include staff and faculty as well as students. Schools are required to make a statement prohibiting these offenses and providing legal definitions of each one. These ongoing prevention and awareness campaigns will include interactive workshops with in-depth discussions and question-and-answer sessions. Students and faculty will learn recognition of signs of abuse and how to prevent it, along with options for bystander intervention. Teaching safe options for intervening in a potential sexual crime could be the key to stopping the sex-crime epidemic we are seeing lately. Often, after an offense is reported, people come forward saying that they witnessed warning signs, but were hesitant to intervene. VAWA seeks to educate people who witness these signs, to step in and stop a crime from occurring.

Along with several changes to education and prevention programs, schools will now be required to provide mental-health services, victim advocacy, and legal assistance to their students, including assistance in obtaining protective orders. Victims will have the right to change class schedules, living arrangements, transportation, and work situations regardless of whether the report is made formal or kept restricted. The new act requires that these services be provided for crimes alleged on and off campus. This is essential to victims’ safety, privacy, and general well-being. It is estimated that anywhere from 60 to 90 percent of sexual crimes are not formally reported. There are various reasons victims may have for not making an unrestricted report; from the offender being a close acquaintance to embarrassment about the circumstances. But whatever the reasons, VAWA mandates that students get the help they need with or without the added formal investigation.

VAWA and Campus SaVE provisions are substantial amendments to the Clery Act. They codify concerns presented by the Department of Education, add needed obligations, and clarify gray areas of the original regulations. The act focuses on clearly delineating school procedure from education and prevention to investigation to reporting and adds a degree of power to victims and accused students. Accuser and accused can now seek legal representation outside the school’s resources, and that is a huge, needed change. I foresee that these new regulations will have a huge impact in the way schools handle student conduct and expect to see positive changes on the horizon.

Keywords: litigation, civil rights, VAWA, right to counsel, student rights, LGBT

— Andrea Rubin, Delaney & Robb, New Orleans, LA

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