Catholic University
Legal Issues Abroad 2014
Agenda
• Risks
• Common Risks
• Negligence
• Intentional Harms and Crimes
• Risk Prevention
• Best Practices
• Laws to Know
• Foreign Nationals
• Insurance/Trips to Dangerous Areas
• University Policies
Common Risks
• Transportation
• Single greatest threat to travel or safety
overseas
• Conflict of laws and customs
• Ex: death penalty for drug convictions in
certain countries
• Drugs and Alcohol
• Alcohol is an ingrained part of culture
in certain countries
• Mental health/Psychological problems
• Inadequate Health or Safety Standards
• Foreign Hostility
Negligence
• One of the largest legal risks for Universities
abroad
• Negligence can occur when there is a failure to
use common sense, exercise good judgment, or
act as a reasonably prudent person
Negligence Standard
• No consistent standard has been applied
regarding what duties are owed by institutions
of higher education abroad
• BUT, recent court decisions have found that a
“duty of care” for the University arises where
the institution should reasonably foresee risk
of harm materializing out of its actions or
omissions
Examples of Potential Negligence
• Where the University could reasonably foresee a
risk of harm:
• Vendors/Independent Contractors
• Bus Companies
• Tour Guides
• Housing
• Poor Infrastructure
• In High Crime Areas
• Bringing Students to an Unsafe Situation
• Medical Clinic or Restaurant
• Area with Violence or AntiAmerican sentiments
What did you know?
What should you have known?
How much control did you
have?
Were best practices followed?
In loco parentis as possible
standard
Intentional Harms and Crimes
• Same harms and crimes that occur on campus
• For example: robbery, sexual harassment,
sexual assault, assault, arrests (liquor/drug law
violations), illegal weapons possessions
• New Crimes for Clery purposes: stalking,
domestic violence, dating violence and an
expansion of the definition of “hate crimes”
• See Clery Slide for reporting requirements
Risk Prevention
• Waivers!
• Insurance (See Insurance Slide)
• Check State Department for Advisories and
Register
• ASIRT (Association of Safe International Road
Travel) for Advice on Travel Routes and to give to
Students Traveling Alone
• Due Diligence
• For Vendors, Independent Contractors,
Housing, and Any Other University
Recommended Activities
Risk Prevention Cont.
• Training for Emergency Situations
• Emergency Response Plan and Practice
• Emergency Information given to Students
• Student Onsite Orientations
• Make sure students understand that any
independent travel or activities is at their own
risk/expense
• Know Best Practices
• Follow University Policies and Procedures
• Always Contact CUAbroad with Any
Questions
• Know the Students and Any Unique Issues
IES Abroad Best Practices
•
Standards for managing a crisis
•
Develop and maintain extensive crisis
management protocols
•
•
•
•
•
Trained, experienced and tested team
Local management plan in place for each site
Train all staff, faculty & students on plan
Monitor news and consular alerts for risks
Respond immediately when a crisis
occurs
IES Abroad Best Practices Cont.
•
Communicate swiftly, effectively and
accurately with parents, students, and DPS
•
Partner with global health and safety group.
Conduct post crisis review
•
•
•
Designate a trained spokesperson
Build redundancy into plan
Entire IES document online at:
http://counsel.cua.edu/security/
publications/index.cfm
Emergencies
• In the event of an emergency, after contacting (as
needed) local authorities, fire, or medical
personnel, contact the Department of Public
Safety at 202-319-5111
• If medical emergency, also contact Frontier
MedEx
Laws to Know
•
Title IX
• Prohibits Discrimination on Basis of Sex in
Educational Programs and Activities
• Discrimination on the Basis of Sex can Include
Sexual Harassment and Sexual Violence
Program Directors should
Report Complaints of Harassment to CUA EO Officer,
Lisa Wood, at 202-319-6594 or woodlm@cua.edu
Report Complaints of Assault to
DPS at 202-319-5111 or gregoryk@cua.edu
Laws to Know
•
•
Title IX
•
CUA has revised policies.
Please read the sex offenses policy and procedures
•
•
Note difference between confidentiality and privacy
•
Sex harassment v. sexual assault
There has been a flurry of sub-regulatory guidance in
this area.
On a college campus, a high percentage
of referrals under Title IX will involve alcohol
Laws to Know
•
Title IX – Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, or other
verbal or physical conduct of a sexual nature when either:
•
Submission to such conduct is made either explicitly or implicitly a term or
condition of employment, education, on-campus living environment, or participation
in a University activity or program; or
• Submission to or rejection of such conduct is used or threatened to be used as the
basis for decisions affecting employment, education, on-campus living environment, or
participation in a University activity or program; or
• Such conduct has the purpose or effect of unreasonably interfering with an
individual’s work or educational performance or creating an intimidating, hostile, or
offensive environment for employment, education, on-campus living, or participation
in a University activity or program.
Laws to Know
•
Title IX
Sexual Assault is sexual intercourse or sexual contact with another
person without consent. Sexual assault is a criminal offense.
See policy for definition under D.C. law. Choice of law issues can be
sorted out by DPS and OGC, but if what occurs meets definition under
DC code, treat as sexual assault under policy.
Laws to Know
•
Title IX
Responsibility of Program Directors:
A school is on notice of sexual discrimination, harassment or assault where:
A “Responsible Employee” knew, or in the exercise of reasonable care should have
known, about the sexual misconduct.
All program directors are responsible employees under policy for reporting
Response to report must be:
•
•
•
•
Prompt and equitable
Investigation and adjudication
Interim measures
Remedies and sanctions
Laws to Know
•
Title IX
Must understand difference between confidentiality v. privacy
We can protect the privacy of all individuals involved in a reported
sexual offense. Information related to a report of an offense, aside
from information disclosed to persons in legally-protected roles as
described below, will only be shared with individuals whose duties
require access to such information. No other persons will receive any
information related to the report or investigation absent a valid
subpoena or court order.
If a reported sexual offense discloses an immediate threat to the
campus community, the University shall issue a timely notice of the
incident in the interests of the health and safety of the campus
community.
Laws to Know
•
Title IX
Confidentiality
The reporter may speak with certain persons in legally-protected
roles. Legally-protected roles where confidential assistance may be
sought include:
1.
Professional mental health counselors (including but not limited
to those in the University Counseling Center;
2.
3.
Physicians and others licensed to practice medicine;
Clergy when the communication is made in their professional
capacity of giving religious or spiritual advice, and
4.
Appropriately licensed rape crisis/sexual assault
counselors
Laws to Know
•
Americans with Disabilities Act (ADA)
•
The ADA, under certain circumstances,
Prohibits Discrimination against Individuals
with Disabilities
•
Ideally, Students Identify the Need for
Accommodations through Disability Support
Services (DSS) Prior to Departure
•
If Disability is Brought up while Abroad, or if
there are any Questions,
Refer to DSS at either 202-319-5211
or cua-disabilityservices@cua.edu
•
Laws to Know
Clery Act (Campus Security Act)
•
•
Law that Mandates the Reporting and Disclosure
of Certain Crimes that Take Place at Specific
Locations (Including Overseas)
What Crimes Must be Reported?
•
•
•
•
•
•
•
Homicide
Sex Offenses
Robbery
Aggravated
Assault
Burglary
Arson
Motor Vehicle
Theft
Alcohol, Drugs,
•
•
and Weapons
Domestic
violence,
stalking, and
dating violence
Hate crimes
•
Laws to Know
Clery Act (Campus Security Act)
Reporting includes arrests for liquor law
violations, drug law violations, and
illegal weapons possession.
Clery also requires reporting referrals
for campus disciplinary action for liquor
law violation, drug law violations, and
illegal weapons possession.
Clery Cont.
• Where Must Crimes Occur to be Reported?
• When Abroad, All University Owned or Controlled
Property
•
Controlled Property: Means the University rents,
leases, or has some other written agreement.
• Crimes must be included as long as the property is
Used by the Program on a regular basis BUT only
for the time period in use by the program.
• If the specific program does not own, control, or
lease property abroad (the program is taught and
housed by a third party) then there are
no reporting requirements
Clery Cont.
• Program Directors are Campus Security
Authorities for Clery Purposes
• Security Authorities must report crimes that
occur abroad to Dept. of Public Safety
• Report to DPS: gregoryk@cua.edu
Laws to Know
•
Family Educational Rights and Privacy Act (FERPA)
•
•
Protects Student Education Records
•
Directory information (i.e. name, address, photo)
may be released w/o permission of the student
unless the student has placed a hold on release
•
College officials with a legitimate educational
interest in the record may have access to
the record
•
In a health or safety emergency, FERPA
does not prevent release of necessary data
Student must consent for CUA to release education
records to a third party, with certain exceptions
Dealing with Foreign Nationals
•
The U.S. government has a number of laws that
deal with relations with foreign nationals
•
If you have any questions or are unclear, please
contact the Office of General Counsel for
guidance (202) 319-5142
•
Payments to Foreign Nationals (See Non-Resident
Alien Payments and Honoraria Policies)
•
•
Gifts to Foreign National (FCPA - Contact OGC)
Sharing Information with Foreign
Nationals (Export Control – Contact OGC)
•
For more export control resources, see
http://counsel.cua.edu/fedlaw/EAA.cfm
University Insurance
•
The University has purchased comprehensive
insurance for individuals going abroad
•
•
In certain situations, there are exclusions to the
insurance coverage
•
•
Includes medical, accidental death, dismemberment,
security/evacuation, and other protections
For example, the security/evacuation provision of the
insurance does not apply if an individual chooses to
go to a country with certain State Dept.
warnings
Consult the Abroad Office or OGC with
any questions
Trips to Dangerous Areas
•
University sponsored trips to high risk areas, as
determined by the State Department, are generally
not approved
•
•
Exceptions are possible but require the approval by
the proper University representative
Students traveling independently are on their
own
•
While traveling independently, students are
responsible for any injury, loss, and
expenses
University Policies to Review
•
University Policies Apply Abroad
•
•
•
•
•
•
Reasonable Accommodations (ADA)
Contract Approval and Signatory Authority
Global Education
Student Records
Sexual Offenses and Sexual Harassment
Travel
Reminders
•
When in Doubt, Always Ask Questions and Report
it to the University
•
Solving Potential Issues is Much Easier than Fixing
Mistakes
•
Our office contact is 202-319-5142 or Feel Free
to Email OGC
•
Have a Great Trip!