Although the title of the Act refers to victims of domestic violence as women, the operative text is gender-neutral and provides coverage for male victims as well.
The Violence Against Women Act (VAWA), originally passed by Congress in 1994 and reauthorized in 2013, is powerful bipartisan legislation written in response to domestic and sexual violence. President Obama signed the bill into law on March 7, 2013.
VAWA 2013 adds additional protections for students and employees by requiring the university to implement a recording process for incidences of dating violence, as well as a report of findings. In addition, the university is required to create plans to prevent this violence and educate victims on their rights and resources.
Understanding that Lesbian, Gay, Transgender, and Bisexual survivors of sexual violence experience the same rates of violence as straight individuals, they may also face gender-based discrimination when seeking help and protection. In compliance with VAWA 2013, the university prohibits such discrimination and ensures that all victims of sexual violence have access to the same services and protection to overcome trauma and find safety.
Under VAWA, the university is required to:
- Report domestic violence, dating violence, and stalking, beyond crime categories the Clery Act already mandates;
- Adopt certain discipline procedures, such as notifying purported victims of their rights; and
- Adopt certain university policies to address and prevent campus sexual violence, such as to train in particular respects pertinent university personnel.
I. New Reporting Requirements
VAWA’s SaVE Act provision imposes new reporting requirements:
A. The Clery Act requires annual reporting of statistics for various criminal offenses, including forcible and non-forcible sex offenses and aggravated assault. VAWA’s SaVE Act provision adds domestic violence, dating violence, and stalking to the categories that, if the incident was reported to a campus security authority or local police agency, must be reported under Clery. These offenses are:
1. “Domestic violence” includes asserted violent misdemeanor and felony offenses committed by the victim's current or former spouse, current or former cohabitant, person similarly situated under domestic or family violence law, or anyone else protected under domestic or family violence law.
2. “Dating violence” means violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such a relationship will be gauged by its length, type, and frequency of interaction.
3. “Stalking” means a course of conduct directed at a specific person that would cause a reasonable person to fear for her, his, or others' safety, or to suffer substantial emotional distress.
B. The provision adds “national origin” and “gender identity” to the hate crime categories, involving intentional selection of a victim based on actual or perceived characteristics that must be reported under the Clery Act.
C. The provision requires, with respect to the “timely reports” the Clery Act mandates for crimes considered a threat to other students and employees, that victims' names be withheld.
II. New Discipline Requirements
A. Current requirements in the Clery Act require the university to inform students and employees of procedures victims should follow, such as preservation of evidence and to whom offenses should be reported. VAWA adds that institutional policy must also include information on:
1. Victims' option to, or not to, notify and seek assistance from law enforcement and campus authorities.
2. Victims' rights and university responsibilities regarding judicial no-contact, restraining, and protective orders.
B. VAWA prescribes standards for investigations and discipline proceedings in domestic violence, dating violence, sexual assault, and stalking cases.
1. University policy includes a “statement of the standard of evidence” to be used: Preponderance of the Evidence. Unlike some earlier drafts of the legislation, VAWA does not prescribe the evidentiary standard; however, the U.S. Department of Education’s Office for Civil Rights Guidance Letter directs a standard of “preponderance of the evidence.”
2. University officials who conduct the proceeding are trained on how to investigate and conduct hearings in a manner that “protects the safety of victims” and “promotes accountability.”
3. University policy identifies “sanctions or protective measures” the institution may impose following a final determination of rape, acquaintance rape, domestic violence, dating violence, sexual assault or stalking.
4. “[T]he accuser and the accused are entitled to the same opportunities to have others present during an university disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice....”
5. Accuser and accused will be notified “simultaneously” and “in writing” of: the outcome of the proceeding; appeal procedures; any change to the result before it becomes final; and when the result becomes final. The OCR Guidance Letter merely “recommends” that the parties be provided the determination “concurrently.”
6. University policy addresses how victims' confidentiality will be protected, including record keeping that excludes personally identifiable information on victims. OCR's Guidance Letter encourages institutions to be cognizant of victims' confidentiality, but does not mandate that university policy address it.
III. New Requirements to Educate Students and Employees on Sexual Violence
Under VAWA, new students and new employees must be offered “primary prevention and awareness programs” that promote awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking. The OCR Guidance Letter “recommends” that institutions implement preventive education programs; VAWA is more prescriptive in its requirements.
The training programs will include:
A. A statement that the university prohibits those offenses.
B. The definition of those offenses in the applicable jurisdiction.
C. The definition of consent, with reference to sexual offenses, in the applicable jurisdiction.
D. “Safe and positive” options for bystander intervention an individual may take to “prevent harm or intervene” in risky situations.
E. Recognition of signs of abusive behavior and how to avoid potential attacks.
F. Ongoing prevention and awareness campaigns for students and employees on all of the above.