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Violence Against Women Act Negotiated Rulemaking Committee 

Issue Paper #1

Issue: Definitions and Key Terms

Statutory Cites: §485(f) of the HEA, as amended by §304 of the Violence Against Women 

Reauthorization Act of 2013

Regulatory Cites: 34 CFR §668.41, §668.46, and Appendix A to Subpart D of Part 668

Summary Question(s): What definitions should we establish for the new terms in the statute? 

Summary of Issue:

Section 304 of the Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub. Law 

113-4) amended §485(f) of the Higher Education Act of 1965 (HEA), as amended, otherwise 

known as the Clery Act. VAWA added several new terms to the Clery Act that are not currently 

defined in regulation.

New Crime Categories

Beginning with the Annual Security Report that must be distributed and made available to 

students, employees, prospective students, and prospective employees by October 1, 2014, each 

institution must include statistics on the number of incidents of domestic violence, dating 

violence, and stalking that were reported to campus security authorities or local police agencies. 

Institutions must also report these statistics to the U. S. Department of Education (Department) 

each fall. Section 485(f)(6)(A) specifies that, for the purposes of the Clery Act, these terms have 

the same meaning as in section 40002(a) of the Violence Against Women Act of 1994.

1. Section 40002(a) defines “domestic violence” as a “felony or misdemeanor crime of 

violence committed—

- by a current or former spouse of the victim,

- by a person with whom the victim shares a child in common, 

- by a person who is cohabitating with or has cohabitated with the victim as a 

spouse, 

- by a person similarly situated to a spouse of the victim under the domestic or 

family violence laws of the jurisdiction receiving grant monies [under VAWA], or 

- by any other person against an adult or youth victim who is protected from that 

person’s acts under the domestic or family violence laws of the jurisdiction.”
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There are some challenges in applying this definition in the higher education context. The 

definition relies in part on the laws of local jurisdictions, which will present challenges in 

trying to provide comparable data for institutions. The reliance on the laws of local 

jurisdictions will also create issues for institutions with campuses in different 

jurisdictions. Additionally, institutions often provide a variety of housing arrangements

for students, for example, housing for married couples, housing for unmarried couples, 

housing for families, housing for friends, etc. Does the existing definition make it clear as 

to which incidents involving roommates should be included in an institution’s statistics? 

2. Section 40002(a) defines “dating violence” to mean “violence committed by a person—

- who is or has been in a social relationship of a romantic or intimate nature with 

the victim; and

- where the existence of such a relationship shall be determined based on a 

consideration of the following factors:

o the length of the relationship;

o the type of relationship; and

o the frequency of interaction between the persons involved in the 

relationship.”

Does the definition make it clear as to which incidents should be included in an 

institution’s statistics? Do institutions have an affirmative duty to investigate whether an 

alleged offender and the victim were in a relationship that met this definition? 

3. Section 40002(a) defines “stalking” to mean “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.”

This definition presents several challenges. First, is the distinction between “stalking” 

and “intimidation” sufficiently clear? Institutions currently must include incidents of 

intimidation that are determined to be hate crimes in their Annual Security Report and in 

the statistics that they report to the Department. “Intimidation” is defined as “to 

unlawfully place another person in reasonable fear of bodily harm through the use of 

threatening words and/or other conduct, but without displaying a weapon or subjecting 

the victim to actual physical attack.” This definition appears to be similar to the definition 

of stalking. How can the two categories best be distinguished?

Second, how can this definition most effectively be implemented in the context of the 

Clery Act and in an electronic environment? The Clery Act requires institutions to report 
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crimes in three different geographic categories: an institution’s campus, its noncampus 

buildings or property, and its public property (see 34 CFR 668.46(a)). These areas are 

sometimes referred to as an institution’s “Clery geography.” Stalking, however, may 

occur in a digital environment (cyberstalking), where either or both parties involved may 

not be located physically within the institution’s Clery geography. This poses challenges 

in determining whether an incident must be reported and, if reported, within which Clery 

geography category. Page 58 of the Department’s Handbook for Campus Safety and 

Security Reporting instructs institutions to report instances of cyber-intimidation where a 

victim is threatened via computer while on the institution’s Clery geography. In 

implementing the provisions related to stalking, should the Department continue to apply 

this guidance, which may not include all instances of cyberstalking or cyber-intimidation, 

or should we take a different approach? 

Third, institutions must include reported Clery Act crimes in their statistics, regardless of 

how they learned that the crime took place. The definition of stalking refers to whether a 

“reasonable person” would fear for his or her safety or suffer substantial emotional 

distress. This definition would seem to include situations in which the victim does not 

believe that he or she is the victim of stalking and the victim is not the person who 

reported the stalking. Should the definition of “stalking” be modified to make it clear that 

it includes cases where an individual does not characterize the behavior as stalking?

Sex Offenses and Sexual Assault

Under the Clery Act, institutions have had to disclose the number of “sex offenses, forcible and 

nonforcible” in their Annual Security Reports and report those statistics to the Department. Since 

first implementing the Clery Act, the Department has used the definition of “sex offenses” from

the FBI’s National Incident-Based Reporting System (NIBRS) edition of the Uniform Crime 

Reporting (UCR) Handbook as the basis for these crime statistics. In the last few years, the FBI 

has made several changes to its definitions of sex offenses to remove references to “forcible” sex 

offenses and to bring them more in line with the NIBRS definitions. VAWA did not reflect these

changes to the FBI’s crime reporting system. Instead, for purposes of the Clery Act, the list of 

criminal offenses to be reported and disclosed continues to refer to “sex offenses – forcible and 

nonforcible.” At the same time, VAWA added section 485(f)(6)(A)(v) specifying that the term 

“sexual assault” means “an offense classified as a forcible or nonforcible sex offense under the 

uniform crime reporting system of the Federal Bureau of Investigation (FBI).” 

Additionally, under the Clery Act, institutions have long had to include a policy statement in 

their Annual Security Reports regarding their programs to prevent sex offenses on campuses, 

their procedures once a sex offense has occurred, information about their institutional 

disciplinary proceedings in cases of a sex offense, and other relevant information. While it did 

not change the reference to the term “sex offenses” for the purposes of crime statistics, VAWA’s 
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amendments to the Clery Act replaced references to terms like “sex offenses,” “campus sexual 

assault,” and “criminal sexual assault” in the requirements for an institution’s policy statement 

with references to “domestic violence, dating violence, sexual assault, and stalking.”

This raises several questions. How should we harmonize the changes to the Clery Act with the 

changes that FBI has made to its definitions? Should we continue to use the NIBRS definitions? 

Additionally, how should we harmonize the use of two terms – “sex offenses” and “sexual 

assault,” which appear to have essentially the same meaning?

Policies to Prevent Domestic Violence, Dating Violence, Sexual Assault, and Stalking

Prior to the enactment of VAWA, section 485(f)(8)(B) of the HEA required institutions to 

describe their education programs to promote the awareness of rape, acquaintance rape, and 

other sex offenses as part of their policy statement about programs to prevent sex offenses, but it 

did not detail specifically what those programs had to include. VAWA amended the Clery Act 

to make this section much more prescriptive. Specifically, the Clery Act now requires 

institutions to include in their education programs “primary prevention and awareness programs” 

for all incoming students and new employees,” as well as “ongoing prevention and awareness 

campaigns” for students and faculty. Both of these efforts must provide the same information 

(outlined in the statute) to the participants. 

These requirements raise several questions. First, given the similarities in the requirements, how 

should we give meaning to the different names for these two efforts? Second, what do terms used 

in the statute like “ongoing,” “campaign,” “awareness programming,” “primary prevention,” and

“bystander intervention” mean? How often must ongoing activities take place? What is a 

campaign? Second, how do we reconcile differences in the audiences that must be included? 

Specifically, the “primary prevention and awareness programs” must be provided to incoming

students and new employees, while the “ongoing prevention and awareness campaigns” are 

required to include [all] students and faculty. Should institutions be required to engage nonfaculty employees in their ongoing prevention and awareness campaigns? Finally, to what extent 

are institutions expected to track participation in these efforts?