Violence Against Women Reauthorization Act of 2013: The New Version Specifications

In modern technology parlance, the Violence Against Women Reauthorization Act (VAWA) of 2013 (Pub. Law 113-4) would be called VAWA.2013.  This edition of VAWA is the fourth “version” of the law which was originally signed into existence on September 13, 1994.  Subsequent reauthorizations occurred on October 28, 2000 and January 5, 2006.  This latest version, VAWA.2013, was signed into law on March 7, 2013.

The New Version Specifications

Yes, one year ago, VAWA was reauthorized.  The newest version of this important legislation brought with it various new reporting requirements for postsecondary institutions that participate in the Title IV Federal Student Aid programs.  These new requirements were accomplished by VAWA’s amending the Clery Act portion of the Higher Education Act (HEA) of 1965, as amended.

Data Components

The specifics of the law that affect reporting requirements include stipulations that institutions compile statistics for certain crimes that are reported to campus security authorities or local police agencies.  The newly added crimes for which institutions must now gather data include incidents of sexual assault, domestic violence, dating violence, and stalking.  Further, schools will have to include in their Annual Security Report (ASR) their policy about providing programs to prevent these newly added crimes.  Likewise, in the ASR schools will have to disclose the procedures the school follows once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported, including a statement of the standard of evidence (e.g., a “preponderance of evidence” or “evidence beyond a shadow of a doubt”, etc.) that is used in determining such incidents occurred.

Policy Elements

Before merging its policy into the report, a school must ensure it has developed (and implemented) such standards and practices in its educational prevention program(s) that promote awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking.  The law has prescribed that the educational programs provided on these subjects must include primary prevention and awareness programs for all incoming students and new employees.  The content of the programs and policies must assert the school’s prohibition of the offenses listed above, as well as give a definition of what the terms describing these offenses mean in the school’s local jurisdiction, as well as the definition of “consent” as it pertains to instances of sexual activity in the local jurisdiction.  Further, the program must offer a description of safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or to intervene when there is a risk of one of the offenses listed occurring against someone other than the bystander.  Moreover, information must be provided in the programs that would list options for reducing the risk of such offenses occurring, for example, warning signs of abusive behavior and how to avoid potential attacks.  In addition to the programs for new students and employees, the school must have ongoing prevention and awareness campaigns for current students and employees.

Toward Being User-Compliant

There are a number of additional points of information that must be included in the institution’s educational programs related to its policy on VAWA.  These include the following:

• Possible sanctions or protective measures the school may impose once a final determination in an institutional disciplinary proceeding has been made that one of the offenses has occurred.
• Procedures must be provided in writing to victims about the steps they should take after an offense to preserve evidence and to whom incidents should be reported, as well as the victim’s option to:
  • report the incident to local law enforcement authorities;
  • be assisted by campus authorities in notifying law enforcement authorities, if the victim so chooses; and
  • the option to decline to notify authorities.
• A written explanation of the rights of the victims and the institution’s responsibilities regarding, where applicable, restraining orders, orders for protection, no contact orders, etc.
• A description in writing of the institution’s procedures for institutional disciplinary proceedings in cases of alleged offenses.  The procedures must:
  • Provide for a prompt, fair, and impartial investigation and resolution.
  • Be conducted by officials who receive annual training on issues related to the listed offenses and how to conduct an investigation and hearing process that protects the safety of the victims and promotes accountability.
  • Provide for both the accuser and the accused being entitled to have the same opportunities to have others present during proceedings, including an advisor of their choice.
  • Ensure that the accuser and the accused are informed simultaneously in writing of the outcome of institutional disciplinary proceedings, the opportunity for appeal and notification of the outcome of any appeal before the results become final, and when the results of the proceedings will become final.
• Information about how the institution will protect the confidentiality of victims, including how publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law.
• Notification must be made in writing to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims both, on-campus and in the community.
• The institution must provide written notification to victims about options for, and available assistance in, changing academic, living, transportation, and working situations, if so requested by the victim and if such accommodations are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement.
• For any student or employee who reports to the school that they have been a victim of one of the above listed offenses, whether the offense occurred on or off campus, shall be provided with a written explanation of the student’s or employee’s rights and options.
• Specify that no officer, employee, or agent of the school shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision of VAWA.

Version Compatibility

Indeed, there is a fair amount of additional detailed requirements encompassed in this new version of VAWA.  However, it is noted that some of the specifications for VAWA.2013 are compatible with data and programs already in operation at schools (or, should be).  For example, the prior Clery Act requirements have required the reporting of crimes and related statistics, including forcible and non-forcible sex-offenses and aggravated assault.  But, VAWA.2013 expands that to include more categories as specified above:  domestic violence, dating violence, sexual assault, and stalking. The earlier version of the Clery Act already required institutions to inform students of procedures that victims should follow to preserve evidence.  But, VAWA.2013 does add to that, as described earlier, the requirement to include information about the victims’ rights to, or not to, notify and seek assistance from local law enforcement or campus authorities.  Schools have previously been reporting criminal offenses by hate crime categories.  Now, VAWA.2013 expands the hate crime categories to include national origin and gender identity.  As a result of the prior requirements of Clery and the addition of the new VAWA.2013, it will serve institutions well to conduct a careful review of the areas where there may already be some requirements of VAWA.2013 being met through prior Clery Act requirements.

Timeline for Implementation 

As noted earlier, the reauthorization of VAWA occurred on March 7, 2013.  The law stipulates that it becomes effective one year later.  So, March 7, 2014 is the effective date of this law.  Therefore, absent regulations that interpret or further explain the law, as schools prepare their Annual Security Report for October 1, 2014, they must make a “good faith effort” to comply with the various components of the legislation outlined above.  While it is true that the this legislation is in the process of Negotiated Rulemaking (Neg Reg) through the first of April, 2014, the results of these negotiations will not be finalized and available until after the reporting deadline for 2014.  The current goal is to have the final regulations pertaining to this law out by November 1, 2014, which would make them effective July 1, 2015.  The new regulations would be the guidance on how schools would complete their ASR for October 1, 2015.

Implementation Tips

In light of the effective date of VAWA.2013, it behooves schools to begin preparations for their compliance for October 1, 2014.  Accordingly, following are some steps to consider as you implement this new version with a good faith effort.

1. Define and assign who the applicable campus security and crime reporting individuals are for your institution’s campus(es).  (You may desire to include your legal counsel.)
2. Ensure that you and your Campus Security Authority, along with any other appropriate individuals at your institution have read the applicable section of VAWA.2013.  It is available at https://www.gpo.gov/fdsys/pkg/BILLS-113s47enr/pdf/BILLS-113s47enr.pdf.  The applicable section, Title III, Section 304, begins on page 36.
3. Read the  May 29, 2013 Electronic Announcement on IFAP.  Stay attuned to Neg Reg discussions and developments between now and the first of April.
4. Determine your current state of affairs as it relates to your compliance with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) in effect prior to March 7, 2014. (Review the Handbook for Campus Safety and Security Reporting, accessible from a link in Dear Colleague Letter GEN-12-21).  Modify and enhance as necessary to ensure compliance with long-standing requirements.  Consider implications of the new VAWA.2013 on things such as staff and student handbooks, orientation presentations, policies and procedures manuals, forms, etc., that may be impacted by these new requirements.
5. Watch for any pertinent Notice of Proposed Rulemaking on VAWA that comes out this summer as it will give indication of what the final regulations will look like.  Also, watch for further ED guidance and the final regulations to be published by November 1, 2014.
6. Do not wait until September 2014 to begin addressing the impact on your institution’s policies, procedures, information dissemination, data collection efforts, or training.  (Remember, institutional disciplinary proceedings have to be conducted by officials of the institution who receive annual training on issues related to the listed offenses and how to conduct an investigation and hearing process that protects the safety of the victims and promotes accountability.)
7. Establish or refresh your communication with local law enforcement agencies to ensure they are aware of the new VAWA.2013 requirements for which you will need additional statistics for your ASR this year.
8. Determine what your institution will define as your “good faith effort” in complying with the new VAWA.2013 version in your ASR this October since regulations will not yet be out.

Much success to you in your conversion to the latest version, VAWA.2013

 

(EA 05292013; VAWA 2013)