Legal Update on Campus Sexual Violence:
Clery, VAWA, Title IX and Beyond
Tuesday, April 28, 2015
Speakers
Moderator
Jennifer S. Divine, Partner
Miller Nash Graham & Dunn
Seattle, WA
jennifer.divine@millernash.com
2
Speakers
Megan Farrell, Of Counsel
Hirschfeld Kraemer
San Francisco, CA
mfarrell@hkemploymentlaw.com
Kathryn M. Nash, Principal
Gray Plant Mooty
Minneapolis, MN
kathryn.nash@gpmlaw.com
3
Speakers
Jeffrey J. Nolan, Shareholder and Director
Dinse, Knapp & McAndrew
Burlington, VT
jnolan@dinse.com
4
Violence against Women Act (1994)
• Designed to improve criminal justice
response to violence against women by, for
example:
– Strengthening federal penalties for repeat sex
offenders
– Creating a federal “rape shield law,” intended to
prevent offenders from using victims’ past sexual
conduct against them
– Strengthening victims’ ability to obtain/enforce
protection orders
5
Violence against Women
Reauthorization Act of 2013
• Amends Higher Education Act/Clery Act “to
improve education and prevention related to
campus sexual violence, domestic violence,
dating violence, and stalking”
• VAWA comes to campus/Title IX meets Clery
• Effective March 2014/October 2014 ASR
• New regulations effective July 1, 2015
• See 20 U.S.C. § 1092(f)
6
Overview of July 1, 2015 VAWA
Changes to Clery
Megan Farrell
Hirschfeld Kraemer
7
Part 1 – Outline
• Expanded definition of hate crimes
• Required statements and revised definitions
• Internal processes and procedures
• Review of interim actions
• Required prevention programs
8
Expanded Definition of Hate Crimes
• Hate crimes include:
– Domestic violence
– Dating violence
– Stalking
• Crimes based on additional categories of
protected characteristics
– Gender identity
– National origin
9
Statements and Definitions
“The institution of higher education prohibits the
offenses of domestic violence, dating violence,
sexual assault, and stalking.”
• Non-retaliation statement
• Revised definitions of:
–
–
–
–
–
Domestic violence
Dating violence
Sexual assault
Stalking
Consent
10
Internal Processes and Practice
• Fair, prompt, and impartial process and
resolution
• Statement on standard of evidence
– Ex.: Preponderance of the evidence
• Equal opportunities of parties to:
– Have advisors and invite advisor participation
– Notification of results
– Appeal rights
11
Internal Processes and Practice
• Hearing officers receive training on specific
crimes and how to conduct hearing that protects
safety of victims and promotes accountability
• Notification of how the institution will protect
confidentiality
• Written notice of available resources including
counseling, health, mental health, victim
advocacy, legal assistance, and other services
available for victims, both on campus and in the
community
12
Process Considerations for Complaints
• Provide information about preserving
evidence for the criminal domestic violence,
dating violence, sexual assault, or stalking, or
in obtaining a protection order
• Identify who take reports of alleged
misconduct
• Describe options regarding reports to law
enforcement and campus authorities
13
Potential Interim Actions
• Written notification to victims about options for
and available assistance in changing:
–
–
–
–
Academic
Living
Transportation
Working situations
 Regardless of whether the victim chooses to report
the crime to campus police or local law enforcement
14
Potential Interim Actions
• Notification of student or employee
rights/options must be given to anyone who
reports being a victim of domestic violence,
dating violence, sexual assault, or stalking
– Regardless of whether the offense occurred on
campus
• Timely warnings must withhold name of
victim
15
Prevention Programs
• Primary prevention and awareness programs
for incoming students and new employees,
including:
– ​Prohibition of dating violence, domestic
violence, sexual assault, or stalking
– Definition of these crimes and of consent
according to the applicable jurisdiction
– Descriptions of safe and positive options for
bystander intervention
– Information on risk reduction
16
Dating Violence, Domestic Violence,
Stalking
Jeffrey J. Nolan
Dinse, Knapp & McAndrew
17
New Policy Requirements
• ASR must include statements that:
– Such proceedings will be conducted by
officials who receive annual training on issues
related to domestic violence, dating violence,
sexual assault, and stalking and how to
conduct an investigation and hearing process
that “protects the safety of victims and
promotes accountability.”
18
VAWA/Clery Definitions
• For Clery Act crime statistics reporting
purposes, “domestic violence” means crime
of violence committed by spouse, cohabitant,
parent of victim’s child, or similarly situated
person
– As relationships/protections are defined under
state domestic or family violence laws
• However: also include state law definition in
campus educational programs, and include
state law definition in policy statements
19
VAWA/Clery Definitions
• For Clery Act crime statistics reporting purposes,
“dating violence” means violence committed by a
person:
– Who is or has been in a social relationship of a
romantic or intimate nature with the victim
– Where the existence of such relationship is
determined based on consideration of:
 Length and type of relationship and
 Frequency of interaction between persons involved
• Again, also include state law definition in campus
20
educational programs and policy statements
VAWA/Clery Definitions/Educational
Requirements
• For Clery Act crime statistics reporting
purposes, “stalking” means engaging in a
course of conduct directed at a specific person
that would cause a reasonable person to:
– Fear for his or her safety or the safety of others; or
– Suffer substantial emotional distress
• Again, also include state law definition in
campus educational programs and policy
statements
21
Domestic Violence Statistics
• Most domestic violence incidents are never
reported
• Women ages 20 to 24 are at greatest risk of
becoming victims of domestic violence
• One in 4 women will experience domestic
violence during her lifetime
• Every year, 1 in 3 women who is a victim of
homicide is murdered by her current or former
partner
– Safe Haven 2012
22
Domestic Violence Statistics
• 2010 CDC National Intimate Partner and
Sexual Violence Survey (NIPSV) of 16,507
adults (9,086 women, 7,421 men) found:
– Among those who experienced rape, physical
violence, or stalking by an intimate partner,
47.1% of female victims and 38.6% of male
victims were between ages 18 and 24 when
they first experienced violence by an intimate
partner
23
Dating Violence Statistics
• Girls and young women between ages 16 and
24 experience highest rate of intimate partner
violence (almost triple the national average)
• 33% of teens disclosed violent relationship
• One-half of youth who have been victims of both
dating violence and rape attempt suicide,
compared to 12.5% of non-abused girls and
5.4% of non-abused boys
– love is respect.org
24
Dating Violence Statistics
• College Dating Violence and Abuse Poll, 2011
– 43% of dating college women report experiencing
some violent and abusive dating behaviors including
physical, sexual, tech, verbal, or controlling abuse
– Over 1 in 5 college women (22%) report actual
physical abuse, sexual abuse, or threats of physical
violence
– 52% of college women report knowing a friend who
has experienced violent and abusive dating behaviors
including physical, sexual, tech, verbal, or controlling
abuse
25
Stalking Statistics
• Persons ages 18-24 years experience the highest
rate of stalking
• Three in 4 stalking victims are stalked by
someone they know
• 66% of female and 41% of male stalking victims
are stalked by a current or former intimate partner
• One in 4 victims report being stalked through the
use of some form of technology
– Stalking Resource Center
26
Stalking and Intimate Partner Homicide
• 76% of female homicide victims had been
stalked by their partner
• 67% had been physically abused by their
partner
• 54% of female homicide victims reported
stalking to police before they were killed by
their stalkers
– Stalking Resource Center
27
Obstacles to Seeking Help
• College Dating Violence and Abuse Poll, 2011
– 58% of college students say they don’t know
what to do to help someone who is a victim of
dating abuse
– 38% of college students say they don’t know
how to get help for themselves on campus if
they were a victim of dating abuse
– More than one-half of all college students
(57%) say it is difficult to identify dating abuse
28
What Is Threat Assessment?
A systematic process that is designed to:
1
• Identify persons of concern
2
• Gather information/investigate
3
• Assess information and situation
4
• Manage the situation
29
Current Best Practices
• Multi-disciplinary team
• Authority to engage in threat assessment
• Standard threat assessment processes and
procedures
• Resources and activities that support threat
assessment operations
30
Why Involve Campus Threat Assessment?
• Situations involving domestic violence, dating
violence, or stalking may pose an ongoing
threat to:
–
–
–
–
Victims
Witnesses
Campus officials
Campus community generally
• Involvement is consistent with best practices
31
Role of Campus Threat Assessment in
VAWA Amendment Situations
• Role of campus threat assessment is to work
alongside Title IX/VAWA Amendments-related
functions to:
–
–
–
–
Identify potential concerns
Gather information from multiple sources
Assess whether a threat is posed
Implement plans to reduce threat
• Work directly with victims on safety planning
32
Ways to Foster Interaction with
Campus Threat Assessment
• Include Title IX Coordinator as part of Campus
Threat Assessment Team
• Include Title IX Coordinator, local law enforcement,
and others in threat assessment training
• Hold regular information-sharing meetings (weekly,
bi-monthly) with campus threat assessment team
members to discuss areas of mutual concern
• Goal is to prevent “silo-ed” information
33
Specialized Training for Campus Threat
Assessment Teams
• With increase in reporting, threat assessment teams
will be called upon to assist administrators in
assessing and managing risk connected with dating
violence, domestic violence, and stalking cases
• Threat assessment teams should seek training on
investigative, assessment, and management issues
unique to dating violence, domestic violence, and
stalking
• Institution should track such training as part of Clery
reporting
34
Training on Investigating
Domestic/Dating Violence/Stalking
• Must utilize trauma-informed approach
• Must understand victim responses to trauma
• Must understand that some counter-intuitive
responses to victimization are actually typical
• Must understand ambivalence often inherent
in context of abusive personal relationships
• Must also base each case on evidence
presented
35
Training on Investigating
Domestic/Dating Violence/Stalking
• Ask complainant what evidence she/he might
have
–
–
–
–
–
Emails, text messages, photographs
Facebook
Medical
Witnesses
Ask about all prior concerns
 Victims’ accounts sometimes change – work as
if the victim is unable to contribute
36
Using Campus Threat Assessment to
Address Obstacles to Reporting
• Campus threat assessment teams can help
encourage students and employees to report
concerns about domestic violence, dating
violence, or stalking
• General awareness messages about reporting
threatening behavior can also address
domestic/dating violence and stalking
• Cross-referral mechanisms help ensure reports
get to the right team/entity
37
VAWA Education and Outreach
Requirements
Kathryn M. Nash
Gray Plant Mooty
38
Training for Students and Employees
• ASR must include a description of the
primary prevention and awareness programs
and the ongoing campaigns that include:
– Statement that the institution prohibits VAWA
crimes and sexual assault
– Definition of VAWA crimes and sexual assault
in the jurisdiction
– Definition of consent in the jurisdiction
39
Training for Students and Employees
• Cont’d
– Safe and positive options for bystander
intervention where there is a risk of VAWA
crimes and sexual assault
– Information on risk reduction to recognize
warning signs of abusive behavior and how to
avoid potential attacks
– Procedures to be followed after a report of a
VAWA crime or sexual assault (see below)
40
Training for Students and Employees
• Newly defined terms under the final rule:
– Programs to prevent dating violence, domestic
violence, sexual assault, and stalking
 Include both primary prevention and awareness
programs and ongoing prevention and awareness
campaigns
–
–
–
–
–
Primary prevention programs
Awareness programs
Bystander intervention
Risk Reduction
Ongoing prevention and awareness campaigns
41
Training for Individuals with
Heightened Responsibilities
• Institutional officials conducting proceedings
(including adjudicators and individuals
deciding appeals) must be trained on:
– Institution’s policy and procedures
– Applicable law
– Issues related to sexual assault, domestic
violence, dating violence, and stalking
(annually)*
*VAWA requirement
42
Training for Individuals with
Heightened Responsibilities
• Cont’d:
– How to conduct an investigation and hearing
that protects the safety of complainants and
promotes accountability (annually)*
– Types of conduct that would constitute sexual
violence (including same-sex sexual violence)
– Standard of review (preponderance of the
evidence)
*VAWA requirement
43
Training for Individuals with
Heightened Responsibilities
• Cont’d:
– Consent and the role of alcohol or drugs can
play in the ability to consent
– Importance of accountability for individuals
found to have committed sexual violence
– Need for remedial actions for the perpetrator,
complainant, and school community
– How to determine credibility
44
Training for Individuals with
Heightened Responsibilities
• Cont’d:
– How to evaluate evidence and weigh it in an
impartial manner
– Confidentiality
– Effects of trauma, including neurobiological
change
– Cultural awareness training regarding how
sexual violence may impact students differently
depending on their cultural backgrounds
45
Outreach to Victims
• Victims must receive written notice of:
– Possible sanctions and protective measures
– Procedures they should follow after a sexual
assault or VAWA crime
– Disciplinary procedures
– Confidentiality
– Existing resources for counseling, etc.
– Available interim measures
46
Please contact our speakers for more
information
Jennifer S. Divine
Miller Nash Graham & Dunn
Seattle, WA
jennifer.divine@millernash.com
Kathryn M. Nash
Gray Plant Mooty
Minneapolis, MN
kathryn.nash@gpmlaw.com
Megan Farrell
Hirschfeld Kraemer
San Francisco, CA
mfarrell@hkemploymentlaw.com
Jeffrey J. Nolan
Dinse, Knapp & McAndrew
Burlington, VT
jnolan@dinse.com
47
Jeff Nolan acknowledges and thanks Marisa
Randazzo, Ph.D. and Dorian Van Horn of
Sigma Threat Management Associates
(www.SigmaTMA.com) for their contributions to
the DV, DV, Stalking and TAM portions of this
presentation.
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Join us for our next Higher Education
Council Webinar, which will focus on
“residential hall partnerships.”
Date will be early June.
More information to come.
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