college students

The SaVE Component of the Clery Act

Christine L. Peterson, CPP, ISP Civil Rights, Clery Act, Compliance, SaVE Act, Security Master Planning, Training, VAWA


college students

Are You Ready for October 1, 2014?

According to the CDC, on average, 1 in 5 women (18.3%) and 1 in 71 men (1.4%) reported experiencing rape at some time in their lives. In a study of undergraduate women, 19% said that they experienced an attempted or completed sexual assault since entering college (Source: www.cdc.gov/violenceprevention/pdf/sv-datasheet-a.pdf). The victimization of college students is not new, and this article will not address whether the problem is getting better or worse. The issue is that dating violence, domestic violence, sexual assault (including rape but not limited to rape), and stalking are crimes. Beginning October 1, 2014, colleges and universities are required to meet new requirements of the Jeanne Clery Act. The Campus Sexual Violence Elimination Act (SaVE) component of the Clery Act will require institutions of higher learning to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking. In addition there are policies, procedures, training, and other programs that pertain to these incidents that must be included in an annual security report (ASR).

In this article we will provide the requirements of the Clery Act, the SaVE component, and Title IX requirements as they currently exist and hopefully provide college compliance personnel with information that they can utilize to meet the current requirements. The purpose of this article is to address administrators who are the key to an institution’s ability to meet the requirements of the Clery Act and its SaVE component.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act, 20 U.S.C.§ 1092(f)(2011)) is a federal statute requiring colleges and universities participating in federal financial aid programs to maintain and disclose campus crime statistics and security information. It is a requirement of the entire institution, not a requirement limited to the security department. This is an important distinction and one that too many college and university administrators fail to recognize and embrace. Until administrators recognize this distinction and put in place top-down responsibility and accountability for Clery Act compliance, institutions will be at risk.

A single event could lead to a full scale investigation by the U.S. Department of Education (ED), applicable civil fines of up to $35,000 per violation, and potential loss of federal student financial aid programs. This is in addition to the potential damage to the reputation and brand of the school, potential lawsuits by victims and others, and a drop in applications. Yet we find that many colleges and universities are still confused by the requirements, especially as they relate to Clery geography and the identification and training of Campus Security Authorities (CSAs). Most institutions are making at least a basic attempt to meet the requirements but do not have the resources or training to understand or implement a program at anything greater than a cursory level. With the additional requirements under SaVE, this is only expected to get worse before it gets better. In addition victims, legislators, and the President have made sexual violence on campuses a priority by sharing their experiences, creating task forces, and designing legislation. This will put more pressure on institutions to address the issues on a campus-by-campus basis and may lead to substantially greater penalties.

On March 7, 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 Higher Education Act (HEA), otherwise known as the Clery Act. The Clery Act requires institutions of higher education to comply with certain campus safety-related and security-related requirements. 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. It is intended to increase transparency about sexual violence on campuses, guarantee victims enhanced rights, provide for standards in institutional conduct proceedings, and provide the campus community a broader awareness and prevention educational programs (Source: www.federalregister.gov/articles/2014/06/20/2014-14384/violence-against-women-act).

The law is not in its final form as of the creation of this article. However, institutions are required to implement and have in place the required policy disclosures and programs related to SaVE no later than October 1, 2014. The collection of campus crime statistics as they relate to SaVE is currently in effect beginning with the 2014-2015 reporting period. Failure to collect and report statistics for domestic violence, dating violence, and stalking (as defined by VAWA) can result in civil penalties of up to $35,000 per violation for substantial misrepresentations of the number, location, or nature of crimes required to be reported, or for violation of any other safety or security-related provision of the HEA. In addition, violations can lead to the limitation or suspension of federal student aid eligibility or the loss of eligibility to participate in federal student aid programs.

A summary of the current proposed regulations as they are published in the Federal Register on June 27, 2014, is as follows:

  • 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 recently updated definition in the UCR Summary Reporting System, which encompasses the several categories of sexual assault 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 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 the 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).

The proposed regulations would (Source: www.federalregister.gov/articles/2014/06/20/2014-14384/violence-against-women-act):

  • 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 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 the preservation of evidence, how and who to report offenses to, victim’s options for support by local law enforcement and campus authorities and victim’s rights and the institution’s responsibilities regarding order of protection or similar orders issued by a court or institution.
  • Require institutions to address in their annual security reports how the institution will complete publicly available record keeping 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 several categories of sexual assault 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 non-campus 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 requiring specific information about awareness campaigns, programs, policies and procedures, and definitions be included in the annual security report that they publish annually.
  • Implement requirements pertaining to an institution’s procedures for campus disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking.
  • 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.

Legislation is written as a response to a problem that is not being addressed appropriately. Assigning roles and responsibilities for compliance is the first step, but an effective program will require a comprehensive and coordinated effort that includes people, processes and technology – as does any security program. Training and gap analysis will be an on-going requirement to the development of a compliant program and a safer campus for all students and employees.

On the surface the new requirements under SaVE look onerous, but just as in the case of the earlier version of the Clery Act, there are specific components that support each other and begin with the policy statements. The 2013 amendment is expected to raise the level of response and prevention of sexual violence in institutions of higher learning by raising awareness, increasing transparency, and providing for accountability. The framework of the new requirements provide for victim’s rights, conduct proceedings, and education programs and have the support of bipartisan legislation and victims who are currently working to increase the current penalties for non-compliance.

In today’s environment the consensus is that the threat of lost funding and imposition of $35,000 fines per violation are not driving compliance. Legislators now explore the possibility of imposing new penalties including fines of up to $150,000 per violation or up to 1% of the institution’s operating budget.

Is your institution ready for October 1, 2014? Can it afford not to be?


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