Campus sexual assault: new federal rules announced to help make colleges safer

The US Department of Education has taken another step to push college campuses to reduce sexual assaults and other crimes such as dating violence and stalking. It announced rules Thursday to implement the 2013 Campus SaVE Act, which updates the Jeanne Clery Act – a law to promote safer campuses.

Some of the key changes bring the Clery Act into alignment with the Federal Bureau of Investigation’s definition of rape, add categories of crimes that need to be reported annually, strengthen protections for victims, and put more onus on campuses to conduct awareness training and prevention campaigns.

“It shows that student voices are being taken seriously,” says Tracey Vitchers[CQ], communications coordinator for SAFER (Students Active For Ending Rape), based in New York. “Schools aren’t going to change unless they are pressured to.”

Student pressure has been mounting on a number of campuses to improve responses to sexual assault, as complaints rise of leniency for perpetrators or disciplinary hearings that further traumatize rape survivors. In response to such pressure, Dartmouth College in Hanover, N.H., has a new sexual assault policy that takes effect Thursday. It provides for mandatory expulsions in some cases of sexual assault and requires that an independent investigator look into complaints.

The Clery Act is one of two federal laws that spell out how colleges that receive federal funding have to respond to reports of sexual assault. Passed in 1990, it is named after a Lehigh University student who was raped and murdered by a fellow student. The full name of the law is the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

The other key law is Title IX, which bans sex discrimination and requires action on sexual violence and harassment because they interfere with victims’ access to equal education. The Education Department has taken a number of steps in recent years to strengthen those aspects of Title IX.

The group that negotiated the new Clery Act rules included survivors of campus assaults as well as representatives of law enforcement, colleges, and advocacy groups. The rules are open for public comment until July 21 and should be finalized by Nov. 1.

The strengthening of confidentiality provisions is particularly important, because it will encourage more survivors of assault to come forward, advocates say. “A lot of schools already do have confidentiality protections, but a lot of survivors don’t feel they are very strong,” Ms. Vitchers says. For instance, if a high-profile athlete on campus has been accused of assault, students often hear about it through the grapevine and the university does not hold anyone to account for leaking information out of confidential disciplinary hearings, she says.

The new rules require for the first time that colleges and universities report annual statistics on incidents of dating violence, domestic violence, and stalking, in addition to sexual assault.

They also change the definition of “rape” to match the FBI’s, so it now will include sodomy and sexual assault with an object.

“People will be using more consistent definitions and collecting data so that we can compare and contrast,” says Lisa Maatz, vice president of government relations at the American Association of University Women in Washington.

The rules also expand the Clery Act’s definition of hate crimes to include crimes based on bias against someone’s gender identity or national origin.

And they require more training of security officials, administrators, and students to be aware of the various categories of violence and to better support students who come forward. A number of schools are starting to develop policies that require all student-group leaders to receive sexual assault prevention training, Vitchers says.

The rules clarify that any disciplinary process needs to be fair to both the complainant and the accused, says Joe Cohn, legislative and policy director for FIRE (Foundation for Individual Rights in Education) in Philadelphia. But the language could use some tweaks to be more balanced, he says.

For instance, the statute as passed by Congress says both have a right to an adviser during the disciplinary process. But “the regulation incorrectly says schools may limit their role,” Mr. Cohn says, while the statute neither prohibits nor specifically allows such limitation. This is an important point, he says, because North Carolina state law allows lawyers to represent students in such proceedings, and other states are considering similar laws.

It’s also important, Cohn says, that the regulations did not put forward a definition of “consent” for sexual assault cases. Some negotiators had supported a requirement that sexual assault occurs if there is an absence of “affirmative consent,” but laws vary on that point. So those who were concerned about colleges having to use different definitions for enforcement and reporting of campus crimes prevailed.

In addition, Cohn criticizes the document that explains the regulations for consistently referring to “victims” rather than “complainants,” even in situations before a disciplinary group has made a decision. “That does not send the right message in terms of impartiality,” he says.