Violence Against Women Act Negotiated Rulemaking Committee 

Issue Paper #5

Issue: Technical Changes

Statutory Cites: §485(f) of the HEA, as amended by §488 of the HEOA and §304 of the 

Violence Against Women Reauthorization Act

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

Summary Question(s): What technical changes are necessary to update the Clery Act 

regulations and reporting system?

Summary of Issues:

There are several technical changes that need to be made to the Department’s Clery Act 

regulations. These changes will incorporate self-implementing statutory provisions, correct 

outdated references, and reflect changes in related statutes and rules.

Memorandum of Understanding

Prior to the passage of the Higher Education Opportunity Act of 2008 (HEOA), institutions were 

required to include in their Annual Security Report a statement of current policies concerning 

campus law enforcement, including the “enforcement authority of security personnel, including 

their working relationship with State and local police agencies.” This requirement is reflected in 

34 CFR §668.46(b)(4)(i). The HEOA amended §485(f)(1)(C) of the HEA to explicitly require 

institutions to include in this policy statement information about any agreements, such as written 

memoranda of understanding, that they hold with State and local law enforcement agencies with 

respect to the investigation of alleged criminal offenses. The regulations at 34 CFR 

§668.46(b)(4) need to be revised to reflect this change.

Anti-Retaliation Clause

The HEOA added §485(f)(17) to the Clery Act specifying that “nothing in this subsection shall 

be construed to permit an institution, or an officer, employee, or agent of an institution, 

participating in any program [under Title IV of the HEA] to retaliate, intimidate, threaten, 

coerce, or otherwise discriminate against any individual with respect to the implementation of 

any provision in this subsection.” The regulations need to be revised to reflect this important 

principle.
Bias Categories for Hate Crimes

Prior to the enactment of VAWA, the Clery Act regulations and reporting system required the

collection of hate crime statistics by actual or perceived race, gender, religion, sexual orientation,

ethnicity/national origin, and disability. Various statutory changes and administrative efforts in 

the last few years affect these categories. Specifically--

- VAWA added “gender identity” and “national origin” to the list of possible categories of 

bias for the purpose of hate crime statistics.

- The President signed the National Defense Authorization Act for Fiscal Year 2010 on 

October 28th, 2009. Division E of this act, otherwise known as the Matthew Shepard and 

James Byrd, Jr. Hate Crimes Prevention Act, amended section 280003(a) of the Violent 

Crime Control and Law Enforcement Act of 1994, as amended, to add “gender identity” 

to the list of possible categories of bias.

- The FBI has modified its hate crime data collection categories within the Uniform Crime 

Reporting System to include actual or perceived race, religion, disability, sexual 

orientation, ethnicity, gender, and gender identity.

We need to reflect these changes in the Clery Act regulations and reporting system.

Sex Offenses

For the purposes of the Clery Act, the Department has historically drawn on the sex offenses 

definitions in the FBI’s National Incident-Based Reporting System Edition of the Uniform Crime 

Reporting Program. The FBI recently revised these sex offenses definitions. Accordingly, we 

need to update Appendix A to Subpart D of Part 668 to reflect these changes. 

The table below summarizes the relevant changes:

Term Definition

Sex Offenses Any sexual act directed against another person, 

without the consent of the victim, including 

instances where the victim is incapable of 

giving consent.

Rape The penetration, no matter how slight, of the 

vagina or anus with any body part or object, or 

oral penetration by a sex organ of another 

person, without the consent of the victim.

Sodomy Oral or anal sexual intercourse with another 

person, without the consent of the victim, 
including instances where the victim is 

incapable of giving consent because of his/her 

age or because of his/her temporary or 

permanent mental or physical incapacity.

Sexual Assault with an Object The use of an object or instrument to 

unlawfully penetrate, however slightly, the 

genital or anal opening of the body of another 

person, without the consent of the victim, 

including instances where the victim in 

incapable of giving consent because of his/her 

age or because of his/her temporary or 

permanent mental or physical incapacity.

Fondling The touching of the private body parts of 

another person for the purpose of sexual 

gratification, without the consent of the victim, 

including instances where the victim is 

incapable of giving consent because of his/her 

age or because of his/her temporary or 

permanent mental incapacity.

Sex Offender Registry Reference

The current reference in 34 CFR §668.46(b)(12) to section 170101(j) of the Violent Crime 

Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(j)), concerning registered sex 

offenders, is out of date. We need to update this reference to refer to 42 USC 16921.