The Violence Against Women Reauthorization Act Amendments to Clery and Campus Threat Assessment

1. The Violence Against Women Reauthorization Act Amendments to Clery and Campus Threat Assessment UVM Legal Issues in Higher Education October, 2014 Jeffrey J. Nolan, Esq. Dorian Van Horn www.dinse.comwww.SigmaTMA.com

2. Speaker Introductions • Jeffrey J. Nolan, Esq. • ChairHigher Education Practice GroupDinse, Knapp, & McAndrew PC • (802) 864-5751JNolan@Dinse.com

3. Speaker Introductions • Dorian Van Horn • Senior Consultant • Sigma Threat Management Associates • DVanHorn@SigmaTMA.com

4. Agenda • VAWA/Clery Act amendment requirements • Addressing domestic violence, dating violence, and stalking • Integrating campus threat assessment strategies into VAWA Amendments-related protocols

5. VAWA/Clery Act Amendment Requirements

6. 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

7. 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 • See 20 U.S.C. § 1092(f)

8. New Policy Requirements • Each IHE receiving federal funding under HEA must develop and distribute in its Annual Security Report (“ASR”) a statement of policy regarding: • The institution’s programs to prevent domestic violence, dating violence, sexual assault, or stalking; and • The procedures that the institution will follow once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported

9. New Policy Requirements • Several specific procedural protections/statements must be included in 2014 ASR • Some were derived or adapted from April 2011 DCL • Applicable to cases involving student AND employee complainants • Institutions are adapting student and HR policies to dovetail with ASR statements

10. New Policy Requirements • ASR must include statements that: • Covered disciplinary proceedings will provide a prompt, fair, and impartial investigation and resolution • 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”

11. New Policy Requirements • ASR must state that both parties are entitled to same opportunities to have others present during disciplinary proceedings • “Including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice” • This includes legal counsel • Any appeals must be equally available to both parties

12. Educational Requirements • Campus SaVE requires description of education programs to promote awareness of offenses of domestic violence, dating violence, sexual assault, and stalking • Requirement includes several specific mandates of what must be covered in: • “Primary prevention and awareness programs” for incoming students and new employees • “Ongoing prevention and awareness campaigns for students and faculty”

13. VAWA/Clery Definitions/Educational Requirements • 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: look to state law definition for campus educational program purposes

14. VAWA/Clery Definitions/Educational Requirements • 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, look to state law definition for campus educational program purposes

15. 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, look to state law definition for campus educational program purposes

16. State Criminal Law vs. Institutional Policy • Institutional policy definitions should control in institutional disciplinary proceedings • VAWA/Clery requires that burden of proof be specified in policy • OCR requires that burden in sexual assault cases be “preponderance of the evidence” • “More likely than not” • To find responsibility, finding must be made that there is a more than 50% likelihood that behavior in violation of policy occurred

17. VAWA/Clery Required Curricula • Education regarding “safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of” a covered offense against another person • Education regarding “information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks”

18. Title IX Enforcement Context • OCR: • Investigates individual complaints • Conducts agency-initiated compliance reviews • In theory, negative OCR findings can result in: • Loss of federal funding through Dept. of Education proceedings or referral to DOJ for litigation • Practically, “voluntary” remedial actions are negotiated, and become part of the evolving framework practitioners work within

19. Clery Act Enforcement Context • Enforced by U.S. Department of Education’s Federal Student Aid (FSA) Office • Department has ramped up enforcement activity significantly • In 2008, Eastern Michigan University paid a record fine of $350,000 • Other six-figure fines have been levied since • In 2012, the per-violation fine amount was increased from $27,500 to $35,000

20. Clery Act Enforcement Context • Department can base investigations on complaints from individuals, or • Can choose to conduct a “program review’ • Based upon violations noted in cursory checks • Media monitoring • Alleged under-reporting of sexual assaults is a matter of particular interest to the Department • Alleged victims and victims’ groups have recently paired Clery Act complaints with Title IX OCR complaints

21. Clery Act Enforcement Context • In October 2013, FSA fined Lincoln University $275,000 for various recordkeeping and policy statement violations • Included $27,500 fine for University’s failure to include statement about potential sanctions for sexual assault in its ASR • Program review documents can be found at http://studentaid.ed.gov/about/data-center/school/clery-act

22. Clery Act Civil Action Issues • No private right of action under Act • “Nothing in this subsection may be construed to— • (i) Create a cause of action against any institution of higher education or any employee of such an institution for any civil liability; or • (ii) Establish a standard of care.” • 20 U.S.C. § 1092(f)(14)(A).

23. Clery Act Civil Action Issues • “Notwithstanding any other provision of law, evidence regarding compliance or noncompliance with [the Act] shall not be admissible as evidence in any proceeding of any court, agency, board, or other entity, except with respect to an action to enforce [the Act].” • 20 U.S.C. § 1092(f)(14)(B).

24. Standard of Care Issues • April 2011 DCL/April 2014 OCR Q&A? • April 2014 White House Not Alone documents? • Negligence? • Custom? • Lees v. Carthage College, 714 F.3d 516 (7th Cir. 2013)

25. Addressing Domestic Violence, Dating Violence, and Stalking Situations

26. 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

27. 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, more than 1 in 5 female victims (22.4%) and more than 1 in 7 male victims (15%) experienced some form of intimate partner violence for first time between ages of 11 and 17 • 47.1% of female victims and 38.6% of male victims were between 18 and 24 when they first experienced violence by an intimate partner

28. Dating Violence Statistics • Girls and young women between 16 and 24 experience highest rate of intimate partner violence (almost triple the national average) • 33% of teens disclosed violent relationship • 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

29. 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 one in five 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

30. Stalking Statistics • Persons aged 18-24 years experience the highest rate of stalking • Three in 4 stalking victims are stalked by someone they know • 66% of female stalking victims and 41% of male 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 (such as e-mail or instant messaging) • Stalking Resource Center

31. 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

32. 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 half of all college students (57%) say it is difficult to identify dating abuse

33. Integrating Campus Threat Assessment and Management Into VAWA Amendments-Related Protocols

34. What Is Threat Assessment? A systematic process that is designed to:

35. 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

36. 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

37. Role of Campus Threat Assessment in VAWA Amendments 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

38. 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

39. 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

40. Training on Investigating Domestic/Dating Violence/Stalking • If there is suspected strangulation, contact medical professionals • Strangulation has only recently been identified as one of the most lethal forms of domestic violence. • Strangulation is, in fact, one of the best predictors for the subsequent homicide of victims of domestic violence.  • One study showed that “the odds of becoming an attempted homicide increased by about seven-fold for women who had been strangled by their partner” (Journal of Emergency Medicine, 2008).  • Victims may have no visible injuries whatsoever, yet because of underlying brain damage due to the lack of oxygen during the strangulation assault, they may have serious internal injuries or die days, even weeks, later (NFJC- Training Institute on Strangulation Prevention).

41. Training on Investigating Domestic/Dating Violence/Stalking • Must utilize trauma-informed approach • Must understand victim responses to trauma • Must understand that some counterintuitive 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

42. 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 sometimes change their story—work as if the victim is unable to contribute • Document everything—if you didn’t document, it didn’t happen

43. Managing Investigations • Work with local/campus law enforcement • Meet with them before you have an issue • Understand there will be different standards • Understand what everyone needs—law enforcement will likely want to conduct investigation prior to campus investigation • What can you provide to assist? • Taking interim measures on campus • If the situation gets more involved than you think you can deal with—call in professionals—never worry about asking for help

44. Using Campus Threat Assessment to Address Obstacles to Reporting • Students and/or employees may feel trapped by the social networks and/or closed environment • Students may feel isolated from their personal support networks and resources— • Away from home • International students could be particularly isolated • Due to combined residential/educational/social networks of a college campus, it may be easier for abusers to stalk/control their partner

45. 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.

46. Questions

47. Contact Information Dorian Van Horn Sigma Threat Management Associates DVanHorn@sigmatma.com www.sigmatma.com Jeffrey J. Nolan, Esq. Dinse, Knapp & McAndrew, P.C. Sigma Threat Management Associatesjnolan@dinse.comwww.dinse.com