Vol. 79 Friday, 

No. 119 June 20, 2014 

Part II 

Department of Education 

34 CFR Part 668 

Violence Against Women Act; Proposed Rule 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
35418 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

DEPARTMENT OF EDUCATION 

34 CFR Part 668 

RIN 1840–AD16 

[Docket ID ED–2013–OPE–0124] 

Violence Against Women Act 

AGENCY: Office of Postsecondary 

Education, Department of Education. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Secretary proposes to 

amend the Student Assistance General 

Provisions regulations issued under the 

Higher Education Act of 1965, as 

amended (HEA), to implement the 

changes made to the Clery Act by the 

Violence Against Women 

Reauthorization Act of 2013 (VAWA). 

These proposed regulations would 

update, clarify, and improve the current 

regulations. 

DATES: We must receive your comments 

on or before July 21, 2014. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments submitted by fax or by email 

or those submitted after the comment 

period. To ensure that we do not receive 

duplicate copies, please submit your 

comments only once. In addition, please 

include the Docket ID at the top of your 

comments. 

If you are submitting comments 

electronically, we strongly encourage 

you to submit any comments or 

attachments in Microsoft Word format. 

If you must submit a comment in Adobe 

Portable Document Format (PDF), we 

strongly encourage you to convert the 

PDF to print-to-PDF format or to use 

some other commonly used searchable 

text format. Please do not submit the 

PDF in a scanned format. Using a printto-PDF format allows the Department to 

electronically search and copy certain 

portions of your submissions. 

• Federal eRulemaking Portal: Go to 

www.regulations.gov to submit your 

comments electronically. Information 

on using Regulations.gov, including 

instructions for accessing agency 

documents, submitting comments, and 

viewing the docket, is available on the 

site under ‘‘Are you new to the site?’’ 

• Postal Mail, Commercial Delivery, 

or Hand Delivery: The Department 

strongly encourages commenters to 

submit their comments electronically. 

However, if you mail or deliver your 

comments about the proposed 

regulations, address them to Jean-Didier 

Gaina, U.S. Department of Education, 

1990 K Street NW., Room 8055, 

Washington, DC 20006–8502. 

Privacy Note: The Department’s policy is 

to make all comments received from 

members of the public available for public 

viewing in their entirety on the Federal 

eRulemaking Portal at www.regulations.gov. 

Therefore, commenters should be careful to 

include in their comments only information 

that they wish to make publicly available. 

FOR FURTHER INFORMATION CONTACT: 

Jessica Finkel, U.S. Department of 

Education, 1990 K Street NW., Room 

8031, Washington, DC 20006–8502. 

Telephone (202) 502–7647 or by email 

at: Jessica.Finkel@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD) or a text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll free, at 1–800–877– 

8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Purpose of This Regulatory Action 

On March 7th, 2013, President Obama 

signed the Violence Against Women 

Reauthorization Act of 2013 (VAWA) 

(Pub. Law 113–4), which, among other 

provisions, amended section 485(f) of 

the HEA, otherwise known as the Jeanne 

Clery Disclosure of Campus Security 

Policy and Campus Crime Statistics Act 

(Clery Act). The Clery Act requires 

institutions of higher education to 

comply with certain campus safety- and 

security-related requirements as a 

condition of their participation in the 

title IV, HEA programs. Notably, VAWA 

amended the Clery Act to require 

institutions to compile statistics for 

incidents of dating violence, domestic 

violence, sexual assault, and stalking 

and to include certain policies, 

procedures, and programs pertaining to 

these incidents in their annual security 

reports. We propose to amend § 668.46 

of title 34 of the Code of Federal 

Regulations (CFR) in order to implement 

these statutory changes. Additionally, 

we propose to update this section by 

incorporating provisions added to the 

Clery Act by the Higher Education 

Opportunity Act of 2008, deleting 

outdated deadlines and cross-references, 

and making other changes to improve 

the readability and clarity of the 

regulations. 

Summary of the Major Provisions of 

This Regulatory Action 

The proposed regulations would— 

• Require institutions to maintain 

statistics about the number of incidents 

of dating violence, domestic violence, 

sexual assault, and stalking that meet 

the proposed definitions of those terms. 

• Revise the definition of ‘‘rape’’ to 

reflect the Federal Bureau of 

Investigation’s (FBI) recently updated 

definition in the UCR Summary 

Reporting System, which encompasses 

the categories of rape, sodomy, and 

sexual assault with an object that are 

used in the UCR National IncidentBased Reporting System. 

• Revise the categories of bias for the 

purposes of Clery Act hate crime 

reporting to add gender identity and to 

separate ethnicity and national origin 

into independent categories. 

• Require institutions to provide and 

describe in their annual security reports 

primary prevention and awareness 

programs to incoming students and new 

employees. These programs must 

include: A statement that the institution 

prohibits the crimes of dating violence, 

domestic violence, sexual assault, and 

stalking; the definition of these terms in 

the applicable jurisdiction; the 

definition of consent, in reference to 

sexual activity, in the applicable 

jurisdiction; a description of safe and 

positive options for bystander 

intervention; information on risk 

reduction; and information on the 

institution’s policies and procedures 

after a sex offense occurs; 

• Require institutions to provide and 

describe in their annual security reports 

ongoing prevention and awareness 

campaigns for students and employees. 

These campaigns must include the same 

information as in the institution’s 

primary prevention and awareness 

program; 

• Define the terms ‘‘awareness 

programs,’’ ‘‘bystander intervention,’’ 

‘‘ongoing prevention and awareness 

campaigns,’’ ‘‘primary prevention 

programs,’’ and ‘‘risk reduction.’’ 

• Require institutions to describe 

each type of disciplinary proceeding 

used by the institution; the steps, 

anticipated timelines, and decisionmaking process for each type of 

disciplinary proceeding; and how the 

institution determines which type of 

proceeding to use based on the 

circumstances of an allegation of dating 

violence, domestic violence, sexual 

assault, or stalking; 

• Require institutions to list all of the 

possible sanctions that the institution 

may impose following the results of any 

institutional disciplinary proceedings 

for an allegation of dating violence, 

domestic violence, sexual assault, or 

stalking; 

• Require institutions to describe the 

range of protective measures that the 

institution may offer following an 

allegation of dating violence, domestic 

violence, sexual assault, or stalking; 

• Require institutions to provide for a 

prompt, fair, and impartial disciplinary 

proceeding in which (1) officials are 

appropriately trained and do not have a 


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conflict of interest or bias for or against 

the accuser or the accused; (2) the 

accuser and the accused have equal 

opportunities to have others present, 

including an advisor of their choice; (3) 

the accuser and the accused receive 

simultaneous notification, in writing, of 

the result of the proceeding and any 

available appeal procedures; (4) the 

proceeding is completed in a reasonably 

prompt timeframe; (5) the accuser and 

accused are given timely notice of 

meetings at which one or the other or 

both may be present; and (6) the 

accuser, the accused, and appropriate 

officials are given timely access to 

information that will be used after the 

fact-finding investigation but during 

informal and formal disciplinary 

meetings and hearings. 

• Define the terms ‘‘proceeding’’ and 

‘‘result.’’ 

• Specify that compliance with these 

provisions does not constitute a 

violation of section 444 of the General 

Education Provisions Act (20 U.S.C. 

1232g), commonly known as the Family 

Educational Rights and Privacy Act of 

1974 (FERPA). 

Please refer to the Summary of 

Proposed Changes section of this 

preamble for more details on the major 

provisions contained in this notice of 

proposed rulemaking (NPRM). 

Costs and Benefits: A benefit of these 

proposed regulations is that they would 

strengthen the rights of victims of dating 

violence, domestic violence, sexual 

assault, and stalking on college 

campuses. Institutions would be 

required to collect and disclose statistics 

of crimes reported to campus security 

authorities and local police agencies 

that involve incidents of dating 

violence, domestic violence, sexual 

assault, and stalking. This would 

improve crime reporting. In addition, 

students, prospective students, families, 

and employees and potential employees 

of the institutions, would be better 

informed about each campus’s safety 

and procedures. 

Institutions would incur costs under 

the proposed regulations in two main 

categories: Paperwork costs of 

complying with the regulations, and 

other compliance costs that institutions 

may incur as they attempt to improve 

security on campus. Under the proposed 

regulations, institutions would incur 

costs involved in updating the annual 

security reports; changing crime 

statistics reporting to capture additional 

crimes, categories of crimes, 

differentiation of hate crimes, and 

expansion of categories of bias reported; 

and the development of statements of 

policy about prevention programs and 

institutional disciplinary actions. 

Institutions would also incur additional 

costs in attempting to comply with the 

new regulations. Costs to improve safety 

on campus would include annual 

training of officials on issues related to 

dating violence, domestic violence, 

sexual assault, and stalking as well as 

training on how to conduct disciplinary 

proceeding investigations and hearings. 

The proposed regulations are not 

estimated to have a significant net 

budget impact in the title IV, HEA 

student aid programs over loan cohorts 

from 2014 to 2024. 

Invitation to Comment: We invite you 

to submit comments regarding the 

proposed regulations. In particular, we 

request comment on additional ways to 

identify where one incident of stalking 

has ended and another has begun, on 

how to count stalking that crosses 

calendar years, and on how to report 

incidents of stalking by location, as 

discussed under ‘‘Recording Stalking.’’ 

We also request comment about whether 

the proposed approach to counting 

some or all of the primary Clery Act 

crimes should be modified to capture 

information about the relationship 

between a perpetrator and a victim, as 

discussed under ‘‘Crimes that must be 

Reported and Disclosed.’’ 

To ensure that your comments have 

maximum effect in developing the final 

regulations, we urge you to identify 

clearly the specific section or sections of 

the proposed regulations that each of 

your comments addresses, and provide 

relevant information and data whenever 

possible, even when there is no specific 

solicitation of data and other supporting 

materials in the request for comment. 

We also urge you to arrange your 

comments in the same order as the 

proposed regulations. Please do not 

submit comments outside the scope of 

the specific proposals in this notice of 

proposed rulemaking, as we are not 

required to respond to comments that 

are outside of the scope of the proposed 

rule. See ADDRESSES for instructions on 

how to submit comments. 

We invite you to assist us in 

complying with the specific 

requirements of Executive Orders 12866 

and 13563 and their overall requirement 

of reducing regulatory burden that 

might result from the proposed 

regulations. Please let us know of any 

further ways we could reduce potential 

costs or increase potential benefits 

while preserving the effective and 

efficient administration of the 

Department’s programs and activities. 

During and after the comment period, 

you may inspect all public comments 

about the proposed regulations by 

accessing Regulations.gov. You may also 

inspect the comments in person in room 

8055, 1990 K Street NW., Washington, 

DC, between 8:30 a.m. and 4:00 p.m., 

Washington, DC time, Monday through 

Friday of each week except Federal 

holidays. If you want to schedule time 

to inspect comments, please contact the 

person listed under FOR FURTHER

INFORMATION CONTACT. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record: On request, we will 

provide an appropriate accommodation 

or auxiliary aid to an individual with a 

disability who needs assistance to 

review the comments or other 

documents in the public rulemaking 

record for the proposed regulations. If 

you want to schedule an appointment 

for this type of accommodation or 

auxiliary aid, please contact the person 

listed under FOR FURTHER INFORMATION

CONTACT. 

Background 

On March 7th, 2013, President Obama 

signed VAWA (Pub. L. 113–4). VAWA 

included amendments to section 485(f) 

of the HEA, the Clery Act. The Clery Act 

requires institutions of higher education 

to comply with certain campus safetyand security-related requirements as a 

condition of their participation in the 

Federal student financial aid programs 

authorized by title IV of the HEA. 

Notably, VAWA amended the Clery Act 

to require institutions to compile 

statistics of the number of incidents of 

dating violence, domestic violence, and 

stalking reported to campus security 

authorities or local police agencies, in 

addition to the crimes currently 

identified. Institutions also must 

include certain policies, procedures, 

and programs pertaining to these 

incidents in their annual security 

reports. We propose to amend 34 CFR 

§ 668.46 to implement these statutory 

changes. Additionally, we propose to 

update this section by incorporating 

certain provisions added to the Clery 

Act by the Higher Education 

Opportunity Act of 2008, deleting 

outdated deadlines and cross-references, 

and making other changes to improve 

the readability and clarity of the 

regulations. 

Public Participation 

On April 16, 2013, we published a 

notice in the Federal Register (78 FR 

2247), which we corrected on April 30, 

2013 (78 FR 25235), announcing topics 

for consideration for action by a 

negotiated rulemaking committee. The 

topics for consideration were: Cash 

management of funds provided under 

the title IV Federal Student Aid 

programs; State authorization for 

programs offered through distance 


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education or correspondence education; 

State authorization for foreign locations 

of institutions located in a State; clock 

to credit hour conversion; gainful 

employment; changes to the campus 

safety and security reporting 

requirements in the Clery Act made by 

VAWA, and the definition of ‘‘adverse 

credit’’ for borrowers in the Federal 

Direct PLUS Loan Program. In that 

notice, we announced three public 

hearings at which interested parties 

could comment on the topics suggested 

by the Department and could suggest 

additional topics for consideration for 

action by a negotiated rulemaking 

committee. 

On May 13, 2013, we announced in 

the Federal Register (78 FR 27880) the 

addition of a fourth hearing. The 

hearings were held on May 21, 2013, in 

Washington, DC; May 23, 2013, in 

Minneapolis, Minnesota; May 30, 2013, 

in San Francisco, California; and June 4, 

2013, in Atlanta, Georgia. We also 

invited parties unable to attend a public 

hearing to submit written comments on 

the topics and to submit other topics for 

consideration. Transcripts from the 

public hearings are available at http://

www2.ed.gov/policy/highered/reg/

hearulemaking/2012/index.html. 

Written comments submitted in 

response to the April 16, 2013, notice 

may be viewed through the Federal 

eRulemaking Portal at 

www.regulations.gov, within docket ID 

ED–2012–OPE–0008. You can link to 

the ED–2012–OPE–0008 docket as a 

related docket inside the ED–2013– 

OPE–0124 docket associated with this 

notice of proposed rulemaking. 

Alternatively, individuals can enter 

docket ID ED–2012–OPE–0008 in the 

search box to locate the appropriate 

docket. Instructions for finding 

comments are also available on the site 

under ‘‘How to Use Regulations.gov’’ in 

the Help section. 

Negotiated Rulemaking 

Section 492 of the HEA, 20 U.S.C. 

1098a, requires the Secretary to obtain 

public involvement in the development 

of proposed regulations affecting 

programs authorized by title IV of the 

HEA. After obtaining advice and 

recommendations from the public, 

including individuals and 

representatives of groups involved in 

the title IV, HEA programs, the 

Secretary must subject the proposed 

regulations to a negotiated rulemaking 

process. If negotiators reach consensus 

on the proposed regulations, the 

Department agrees to publish without 

alteration a defined group of regulations 

on which the negotiators reached 

consensus unless the Secretary reopens 

the process or provides a written 

explanation to the participants stating 

why the Secretary has decided to depart 

from the agreement reached during 

negotiations. Further information on the 

negotiated rulemaking process can be 

found at: http://www2.ed.gov/policy/

highered/reg/hearulemaking/hea08/negreg-faq.html. 

On September 19, 2013, the 

Department published a notice in the 

Federal Register (78 FR 57571) 

announcing our intention to establish a 

negotiated rulemaking committee to 

prepare proposed regulations to address 

the changes to the Clery Act made by 

VAWA. The notice set forth a schedule 

for the committee meetings and 

requested nominations for individual 

negotiators to serve on the negotiating 

committee. 

The Department sought negotiators to 

represent students; legal assistance 

organizations that represent students; 

consumer advocacy organizations; State 

higher education executive officers; 

State Attorneys General and other 

appropriate State officials; institutions 

of higher education eligible to receive 

Federal assistance under title III, parts 

A, B, and F and title V of the HEA, 

which include Historically Black 

Colleges and Universities, HispanicServing Institutions, American Indian 

Tribally Controlled Colleges and 

Universities, Alaska Native and Native 

Hawaiian-Serving Institutions, 

Predominantly Black Institutions, and 

other institutions with a substantial 

enrollment of needy students as defined 

in title III of the HEA; two-year public 

institutions of higher education; fouryear public institutions of higher 

education; private, non-profit 

institutions of higher education; private, 

for-profit institutions of higher 

education; institutional campus public 

safety officials; institutional student 

affairs/disciplinary divisions; 

institutional centers for women, lesbian, 

gay, bisexual, and transgendered 

individuals; institutional attorneys; 

Indian tribal governments; and campus 

safety advocates. The Department 

considered the nominations submitted 

by the public and chose negotiators who 

would represent various interested 

constituencies and the negotiated 

rulemaking committee met to develop 

proposed regulations on January 13–14, 

2014, February 24–25, 2014, and March 

31–April 1, 2014. At its first meeting, 

the committee reached agreement on its 

protocols, which generally set out the 

committee membership, and the 

standards by which the committee 

would operate. These protocols 

provided, among other things, that the 

non-Federal negotiators would represent 

the organizations listed after their 

names in the protocols. The committee 

included the following members: 

Laura Dunn, SurvJustice, and John Kelly 

(alternate), Know Your IX, representing 

students. 

Fatima Goss Graves, National Women’s Law 

Center, and Bridget Harwood (alternate), 

Network for Victim Recovery of DC, 

representing legal assistance organizations 

that represent students. 

Nancy Chi Cantalupo, Victim Rights Law 

Center, and Denice Labertew (alternate), 

Los Angeles Valley College and Los 

Angeles Mission College, representing 

consumer advocacy organizations. 

S. Daniel Carter, VTV Family Outreach 

Foundation’s 32 National Campus Safety 

Initiative, and Alison Kiss (alternate), Clery 

Center for Security on Campus, Inc., 

representing campus safety advocates. 

Connie Best, Medical University of South 

Carolina, and Jessica Ladd-Webert 

(alternate), University of Colorado-Boulder, 

representing mental health services 

providers. 

Michael Heidingsfield, University of Texas 

System Police, and Paul Denton (alternate), 

Ohio State University Police Division, 

representing institutional campus safety 

officials. 

Cat Riley, University of Texas Medical 

Branch Galveston, and Caroline FultzCarver (alternate), University of South 

Florida System, representing institutional 

student affairs/disciplinary divisions. 

Lisa Erwin, University of Minnesota Duluth, 

and Dennis Gregory (alternate), Old 

Dominion University, representing 

institutional centers for women, lesbian, 

gay, bisexual, and transgendered 

individuals. 

Dana Scaduto, Dickinson College, and Jerry 

Blakemore (alternate), Northern Illinois 

University, representing institutional 

attorneys. 

Anthony Walker, Norfolk State University, 

and Julie Poorman (alternate), East 

Carolina University, representing minorityserving intuitions and other title III 

institutions. 

Rick Amweg, University System of Ohio, and 

Gary Lyle (alternate), Anne Arundel 

Community College, representing two-year 

public institutions. 

Jill Dunlap, UC Santa Barbara, and Holly 

Rider-Milkovich (alternate), University of 

Michigan, representing four-year public 

institutions. 

Stephanie Atella, Loyola University Chicago, 

and Michael Webster (alternate), McDaniel 

College, representing private, non-profit 

institutions. 

Deana Echols, Ultimate Medical Academy, 

and Christine Gordon (alternate), Graham 

Webb Academy, representing private, forprofit institutions. 

Gail McLarnon, U.S. Department of 

Education, representing the Department. 

The protocols also provided that the 

committee would operate by consensus. 

The protocols also specified that 

consensus means that there must be no 

dissent by any members. Under the 


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protocols, if the committee reached a 

final consensus on all issues, the 

Department would use the consensusbased language in its proposed 

regulations or, in the alternative, the 

Department would reopen the 

negotiated rulemaking process or 

provide a written explanation to the 

committee members regarding why it 

has decided to depart from that 

language. 

During the committee meetings, the 

committee reviewed and discussed the 

Department’s drafts of regulatory 

language and the committee members’ 

alternative language and suggestions. At 

the final meeting on April 1, 2014, the 

committee reached consensus on the 

Department’s proposed regulations. For 

more information on the negotiated 

rulemaking sessions, please visit http:// 

www2.ed.gov/policy/highered/reg/ 

hearulemaking/2012/vawa.html. 

Summary of Proposed Changes 

The proposed regulations would— 

• Add and define the terms ‘‘Clery 

Geography,’’ ‘‘dating violence,’’ 

‘‘domestic violence,’’ ‘‘Federal Bureau 

of Investigation’s (FBI) Uniform Crime 

Reporting (UCR) program (FBI’s UCR 

program),’’ ‘‘hate crime,’’ ‘‘Hierarchy 

Rule,’’ ‘‘programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking,’’ ‘‘sexual assault,’’ 

and ‘‘stalking.’’ 

• Require institutions to address in 

their annual security reports their 

current policies concerning campus law 

enforcement, including the jurisdiction 

of security personnel, as well as any 

agreements, such as written memoranda 

of understanding between the 

institution and those police agencies, for 

the investigation of alleged criminal 

offenses. 

• Require institutions to address in 

their annual security reports their 

policies to encourage accurate and 

prompt reporting of all crimes to the 

campus police and the appropriate 

police agencies when the victim of a 

crime elects to or is unable to make such 

a report. 

• Require institutions to provide 

written information to victims about the 

procedures that one should follow if a 

crime of dating violence, domestic 

violence, sexual assault, or stalking has 

occurred, including written information 

about: 

Æ The importance of preserving 

evidence that may assist in proving that 

the alleged criminal offense occurred or 

may be helpful in obtaining a protection 

order; 

Æ How and to whom the alleged 

offense should be reported; 

Æ The victim’s options about the 

involvement of law enforcement and 

campus authorities, including the 

options to notify proper law 

enforcement authorities, be assisted by 

campus authorities in notifying law 

enforcement authorities, and decline to 

notify authorities; and 

Æ The victim’s rights and the 

institution’s responsibilities with 

respect to orders of protection or similar 

orders issued by a court or by the 

institution. 

• Require institutions to address in 

their annual security reports how the 

institution will complete publicly 

available recordkeeping requirements, 

including Clery Act reporting and 

disclosures, without the inclusion of 

identifying information about the 

victim; 

• Require institutions to address in 

their annual security reports how the 

institution will maintain as confidential 

any accommodations or protective 

measures provided to the victim, to the 

extent that maintaining such 

confidentiality would not impair the 

ability of the institution to provide the 

accommodations or protective 

measures. 

• Require institutions to specify in 

their annual security reports that they 

will provide written notification to 

students and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, visa 

and immigration assistance, and other 

services available for victims both 

within the institution and in the 

community. 

• Require institutions to specify in 

their annual security reports that they 

will provide written notification to 

victims about options for, and available 

assistance in, changing academic, living, 

transportation, and working situations 

and clarify that the institution must 

make these accommodations if the 

victim requests them and if they are 

reasonably available, regardless of 

whether the victim chooses to report the 

crime to campus police or local law 

enforcement. 

• Require institutions to specify in 

their annual security reports that, when 

a student or employee reports to the 

institution that the student or employee 

has been a victim of dating violence, 

domestic violence, sexual assault, or 

stalking, whether the offense occurred 

on or off campus, the institution will 

provide the student or employee a 

written explanation of the student’s or 

employee’s rights and options. 

• Require institutions to maintain 

statistics about the number of incidents 

of dating violence, domestic violence, 

sexual assault, and stalking that meet 

the proposed definitions of those terms. 

• Revise the definition of ‘‘rape’’ to 

reflect the FBI’s recently updated 

definition in the UCR Summary 

Reporting System, which encompasses 

the categories of rape, sodomy, and 

sexual assault with an object that are 

used in the UCR National IncidentBased Reporting System. 

• Revise and update the definitions of 

‘‘sex offenses,’’ ‘‘fondling,’’ ‘‘incest,’’ 

and ‘‘statutory rape’’ in Appendix A to 

subpart D of part 668 to reflect the FBI’s 

updated definitions. 

• Emphasize that institutions must, 

for the purposes of Clery Act reporting, 

include in their crime statistics all 

crimes reported to a campus security 

authority. 

• Clarify that an institution may not 

withhold, or subsequently remove, a 

reported crime from its crime statistics 

based on a decision by a court, coroner, 

jury, prosecutor, or other similar 

noncampus official. 

• Specify that Clery Act reporting 

does not require initiating an 

investigation or disclosing identifying 

information about the victim. 

• Revise the categories of bias for the 

purposes of Clery Act hate crime 

reporting to add gender identity and to 

separate ethnicity and national origin 

into independent categories. 

• Specify how institutions should 

record reports of stalking, including 

how to record reports in which the 

stalking included activities in more than 

one calendar year or in more than one 

location within the institution’s Clery 

Act-reportable areas, and how to 

determine when to report a new crime 

of stalking involving the same victim 

and perpetrator. 

• Create an exception to the 

requirements of the Hierarchy Rule in 

the UCR Reporting Handbook for 

situations in which an individual is a 

victim of a sex offense and a murder 

during the same incident so that the 

incident will be included in both 

categories. 

• Clarify that an institution must 

withhold as confidential the names and 

other identifying information of victims 

when providing timely warnings. 

• Implement the requirements 

pertaining to an institution’s 

educational programs to promote the 

awareness of dating violence, domestic 

violence, sexual assault, and stalking by: 

Æ Requiring institutions to describe in 

their annual security reports the 

institution’s primary prevention and 

awareness programs for incoming 

students and new employees, which 

must include: A statement that the 

institution prohibits the crimes of dating 


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35422 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

1Title IX prohibits discrimination on the basis of 

sex in federally funded education programs or 

activities. 

violence, domestic violence, sexual 

assault, and stalking; the definition of 

these terms in the applicable 

jurisdiction; the definition of consent, in 

reference to sexual activity, in the 

applicable jurisdiction; a description of 

safe and positive options for bystander 

intervention; information on risk 

reduction; and information on the 

institution’s policies and procedures 

after a sex offense occurs; 

Æ Requiring institutions to provide 

and describe in their annual security 

reports ongoing prevention and 

awareness campaigns for students and 

employees, which must include the 

same information as in the institution’s 

primary prevention and awareness 

program; and 

Æ Defining the terms ‘‘awareness 

programs,’’ ‘‘bystander intervention,’’ 

‘‘ongoing prevention and awareness 

campaigns,’’ ‘‘primary prevention 

programs,’’ and ‘‘risk reduction.’’ 

• Implement requirements pertaining 

to an institution’s procedures for 

campus disciplinary action in cases of 

alleged dating violence, domestic 

violence, sexual assault, or stalking by: 

Æ Requiring institutions to describe 

each type of disciplinary proceeding 

used by the institution; the steps, 

anticipated timelines, and decisionmaking process for each type of 

disciplinary proceeding; and how the 

institution determines which type of 

proceeding to use based on the 

circumstances of an allegation of dating 

violence, domestic violence, sexual 

assault, or stalking; 

Æ Requiring institutions to list all of 

the possible sanctions that the 

institution may impose following the 

results of any institutional disciplinary 

proceedings for an allegation of dating 

violence, domestic violence, sexual 

assault, or stalking; 

Æ Requiring institutions to describe 

the range of protective measures that the 

institution may offer following an 

allegation of dating violence, domestic 

violence, sexual assault, or stalking; 

Æ Requiring institutions to provide 

for prompt, fair, and impartial 

disciplinary proceedings in which: (1) 

Officials are appropriately trained and 

do not have a conflict of interest or bias 

for or against the accuser or the accused; 

(2) the accuser and the accused have 

equal opportunities to have others 

present, including an advisor of their 

choice; (3) the accuser and the accused 

receive simultaneous notification, in 

writing, of the result of the proceeding 

and any available appeal procedures; (4) 

the proceeding is completed in a 

reasonably prompt timeframe; (5) the 

accuser and accused are given timely 

notice of meetings at which one or the 

other or both may be present; and (6) the 

accuser, the accused, and appropriate 

officials are given timely access to 

information that will be used after the 

fact-finding investigation but during 

informal and formal disciplinary 

meetings and hearings; 

Æ Defining the terms ‘‘proceeding’’ 

and ‘‘result;’’ and 

Æ Specifying that compliance with 

these provisions does not constitute a 

violation of FERPA. 

• Prohibit retaliation by an institution 

or an officer, employee, or agent of an 

institution against any individual for 

exercising their rights or responsibilities 

under any provision under the Clery 

Act. 

Significant Proposed Regulations 

Very generally, section 304 of VAWA 

amended section 485(f) of the HEA, 

otherwise known as the Clery Act, to: 

Expand reporting of crime statistics to 

capture a more accurate picture of 

dating violence, domestic violence, 

sexual assault, and stalking on our 

nation’s campuses; strengthen 

institutional policies related to these 

crimes; provide greater support and 

accommodations for victims; and 

protect the rights of both parties 

(accuser and accused) during 

institutional disciplinary proceedings. 

During the negotiated rulemaking 

process that resulted in these proposed 

regulations, the committee was guided 

by several key principles. 

First, VAWA amended the Clery Act, 

but it did not affect in any way title IX 

of the Education Amendments of 1972 

(title IX), its implementing regulations, 

or associated guidance issued by the 

Department’s Office for Civil Rights 

(OCR).1 While the Clery Act and title IX 

overlap in some areas relating to 

requirements for an institution’s 

response to reported incidents of sexual 

violence, the two statutes and their 

implementing regulations and 

interpretations are separate and distinct. 

Nothing in these proposed regulations 

alters or changes an institution’s 

obligations or duties under title IX as 

interpreted by OCR. 

Second, the committee set out to 

develop inclusive, effective, and fair 

regulations that protect the rights of all 

students. The negotiators worked hard 

to craft regulatory language that takes 

into account the unique needs of diverse 

communities and individuals, paying 

careful attention to words that might be 

viewed as insensitive or unwelcoming. 

And third, the committee recognized 

that, while there is important and urgent 

work being done in the sexual violence 

prevention field, the Clery Act and 

VAWA do not require institutions to use 

specific materials for prevention 

policies and procedures. The committee 

believed strongly that institutions 

should use practices that have been 

shown through research and assessment 

to be effective. The Department expects 

that best practices information will be 

released a separate document following 

issuance of final regulations. 

We discuss substantive issues under 

the sections of the proposed regulations 

to which they pertain. Generally, we do 

not address proposed regulatory 

provisions that are technical or 

otherwise minor in effect. 

Definitions 

Definition of Clery Geography 

Statute: Section 485(f)(1)(F) of the 

HEA requires an institution to report to 

the Department and disclose in its 

annual security report statistics 

regarding certain crimes reported to 

campus security authorities or local 

police agencies that occur on campus, in 

or on noncampus buildings or property, 

and on public property during the most 

recent calendar year and during the two 

preceding calendar years for which data 

are available. Additionally, section 

485(f)(4)(A) of the HEA requires 

institutions that maintain a campus 

police or security department of any 

kind to make, keep, and maintain a 

daily crime log that records all crimes 

reported to that police or security 

department. 

Current Regulations: Section 

668.46(a) contains definitions of the 

terms ‘‘campus’’ ‘‘noncampus building 

or property’’ and ‘‘public property.’’ 

‘‘Campus’’ is defined as (1) any building 

or property owned or controlled by an 

institution within the same reasonably 

contiguous geographic area and used by 

the institution in direct support of, or in 

a manner related to, the institution’s 

educational purposes, including 

residence halls; and (2) any building or 

property that is within or reasonably 

contiguous to the area identified in 

clause (1) that is owned or controlled by 

another person, is frequently used by 

students, and supports institutional 

purposes (such as a food or other retail 

vendor). ‘‘Noncampus building or 

property’’ is defined as (1) any building 

or property owned or controlled by a 

student organization that is officially 

recognized by the institution; or (2) any 

building or property owned or 

controlled by an institution that is used 

in direct support of, or in relation to, the 

institution’s educational purposes, is 

frequently used by students, and is not 


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within the same reasonably contiguous 

geographic area of the institution. 

‘‘Public property’’ is defined as all 

public property, including 

thoroughfares, streets, sidewalks, and 

parking facilities, that is within the 

campus, or immediately adjacent to and 

accessible from the campus. 

Section 668.46(f) requires institutions 

that have a campus police or security 

department to maintain a daily crime 

log that records any crime reported to 

that department that occurred on 

campus, on a noncampus building or 

property, on public property (as those 

terms are defined in § 668.46(a)), or 

within the patrol jurisdiction of the 

campus police or security department. 

Proposed Regulations: We propose to 

add and define the term ‘‘Clery 

Geography’’ to § 668.46(a). For the 

purposes of the annual crime statistics, 

‘‘Clery Geography’’ would be defined as 

including the areas that meet the 

definitions of ‘‘campus,’’ ‘‘noncampus 

building or property,’’ or ‘‘public 

property.’’ For the purposes of 

maintaining a daily crime log as 

required under § 668.46(f), Clery 

Geography would be defined to also 

include areas within the patrol 

jurisdiction of the campus police or 

security department. We also propose to 

replace both the reference in 

§ 668.46(c)(1) to ‘‘campus, in or on 

noncampus buildings or property, and 

on public property’’ and the reference in 

§ 668.46(f)(1) to ‘‘campus, on a 

noncampus building or property, on 

public property, or within the patrol 

jurisdiction of the campus police or the 

campus security department’’ with the 

term ‘‘Clery Geography.’’ 

Reasons: The proposed use and 

definition of the term ‘‘Clery 

Geography’’ would provide a concise 

way of referring collectively to the 

physical locations for which an 

institution is responsible for collecting 

reports of crimes for inclusion in its 

annual crime statistics and, if 

applicable, its daily crime log. The 

Department has used the term ‘‘Clery 

Geography’’ in The Handbook for 

Campus Safety and Security Reporting 

(the Handbook), which provides 

guidance on complying the Clery Act, 

and in training materials to refer to an 

institution’s ‘‘campus,’’ ‘‘noncampus 

building or property,’’ or ‘‘public 

property’’ for many years, and the term 

is commonly used by institutional 

officials and other individuals familiar 

with the Clery Act. We stress that this 

proposed definition of ‘‘Clery 

Geography’’ would not alter the 

existing, long-standing definitions of 

‘‘campus,’’ ‘‘noncampus building or 

property,’’ or ‘‘public property.’’ 

Instead, we are adding this term to 

improve the readability and 

understandability of the regulations. 

Definition of Consent 

Statute: None. 

Current Regulations: None. 

Proposed Regulations: None. 

Reasons: During the negotiated 

rulemaking sessions, the committee 

debated whether to propose a definition 

of the word ‘‘consent’’ in these 

regulations. During the first session, 

several negotiators strongly urged the 

Department to develop a definition of 

‘‘consent’’ for the purposes of the Clery 

Act. They asserted that establishing a 

definition of consent would help set a 

national standard for what it means to 

consent to sexual activity. Several 

negotiators also argued that a definition 

of consent would provide clarity for 

institutions, students, and employees 

with regard to when a reported sex 

offense would need to be included in 

the institution’s Clery Act statistics. 

Other negotiators, however, objected 

to the proposed addition of a definition 

of consent. They argued that a definition 

would create ambiguity and confusion 

for institutional officials, students, 

employees, and the public, particularly 

in jurisdictions which either do not 

define consent or have a definition that 

differed from the one that would be in 

the regulations. Some negotiators, 

particularly those representing law 

enforcement and institutional attorneys, 

believed that it would be difficult and 

create a burden for law enforcement 

officials to classify crimes based on two 

different standards, and that campus 

public safety officials would be 

expected to make decisions about 

consent based on situations outside 

their areas of expertise and without a 

bright-line standard. One of the 

negotiators argued that it would not be 

reasonable to add a definition of consent 

for Clery Act reporting purposes when 

VAWA specifically added a reference to 

the definition of consent in the 

applicable jurisdiction for the purposes 

of prevention and training. Along these 

lines, some negotiators noted that some 

institutions use their own definition of 

‘‘consent’’ for purposes of their 

institutional disciplinary procedures. 

These officials asserted that adding a 

definition of consent to these 

regulations could cause confusion by 

creating situations where an institution 

might have three separate definitions of 

consent relating to sexual activity for 

different purposes. 

After considering these arguments, 

the Department decided to include a 

definition of consent in the 

Department’s initial draft regulations 

presented to the negotiators. Drawing on 

materials from other Federal agencies, 

State statutes, and institutions, we 

drafted language to define ‘‘consent’’ as 

the affirmative, unambiguous, and 

voluntary agreement to engage in a 

specific sexual activity during a sexual 

encounter. Under this definition, an 

individual who was asleep, or mentally 

or physically incapacitated, either 

through the effect of drugs or alcohol or 

for any other reason, or who was under 

duress, threat, coercion, or force, would 

not have been able to give consent. 

Further, one would not be able to infer 

consent under circumstances in which 

consent was not clear, including but not 

limited to the absence of ‘‘no’’ or ‘‘stop,’’ 

or the existence of a prior or current 

relationship or sexual activity. Several 

of the negotiators endorsed this draft 

language as a starting point and some 

made suggestions to strengthen it. On 

the other hand, some negotiators 

vigorously objected to including the 

definition, reiterating concerns about 

the potential for confusion caused by 

multiple definitions. 

After further consideration, the 

Department decided to remove the 

definition of consent from the draft 

regulations. At the third session of the 

negotiations, we explained that, while 

we believed that our draft language is a 

valid starting point for other efforts 

related to the prevention of campus 

sexual assaults, we were not convinced 

that it would be helpful to institutions 

for purposes of complying with the 

Clery Act. Specifically, we noted that 

for purposes of Clery Act reporting, all 

sex offenses that are reported to a 

campus security authority must be 

recorded in an institution’s Clery Act 

statistics and, if reported to the campus 

police, must be included in the crime 

log, regardless of the issue of consent. 

Thus, while the definitions of the sex 

offenses in Appendix A to subpart D of 

part 668 include lack of consent as an 

element of the offense, for purposes of 

Clery Act reporting, no determination as 

to whether that element has been met is 

required. 

Some of the negotiators disagreed, 

arguing that the references to a lack of 

consent in various parts of the proposed 

regulations, such as the definitions of 

the sex offenses in Appendix A to 

subpart D of part 668, demands an 

affirmative definition of consent in 

order to permit determinations of when 

consent is absent. In the end, however, 

the negotiators agreed not to include a 

definition of consent in these 

regulations, but they requested that the 

Department include further clarification 

and guidance around the issue of 

consent in future documents and 


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35424 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

publications. We intend to provide this 

guidance, and also note that other 

Federal, State, and local agencies have 

materials in this area that may be 

instructive. 

Definition of Dating Violence 

Statute: Section 304 of VAWA added 

a requirement to the Clery Act that 

institutions include statistics on dating 

violence in their crime statistics 

reported to the Department and in the 

annual security report. In addition, 

VAWA amended sections 485(f)(6)(A) 

and 485(f)(7) of the HEA to specify that 

the term ‘‘dating violence’’ has the 

meaning given in § 40002(a) of the 

Violence Against Women Act of 1994 

(42 U.S.C. 13925(a)). The Violence 

Against Women Act of 1994 defines the 

term ‘‘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; where the existence of such a 

relationship is determined based on a 

consideration of the length of the 

relationship, the type of relationship, 

and the frequency of interaction 

between the persons involved in the 

relationship. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add a definition of the term ‘‘dating 

violence’’ in § 668.46(a). Dating violence 

would be defined as violence committed 

by a person who is or has been in a 

social relationship of a romantic or 

intimate nature with the victim. The 

existence of such a relationship would 

be determined based on the reporting 

party’s statement and with 

consideration of the length of the 

relationship, the type of relationship, 

and the frequency of interaction 

between the persons involved in the 

relationship. For the purposes of this 

definition, dating violence would 

include, but would not be limited to, 

sexual or physical abuse or the threat of 

such abuse. Additionally, the proposed 

definition would specify that dating 

violence does not include acts that meet 

the definition of ‘‘domestic violence.’’ 

Finally, the proposed definition would 

clarify that, for the purposes of 

complying with the requirements of the 

Clery Act, including for statistical 

purposes, any incident that meets this 

definition of dating violence would be 

considered a crime. 

Reasons: The changes made to the 

Clery Act by VAWA include 

requirements relating to programs, 

policies, procedures, and statistics 

related to incidents of dating violence, 

domestic violence, sexual assault, and 

stalking. Accordingly, we propose to 

add definitions of these terms to the 

regulations. 

While the term ‘‘dating violence’’ is 

defined in the Violence Against Women 

Act of 1994, the Department received 

numerous requests at the public 

hearings, during the public comment 

period and from some of the negotiators, 

to further define some of the words used 

in the statutory definition of the term. 

In particular, we were asked to clarify 

how institutions should determine 

whether individuals were in a dating 

relationship when the violence 

occurred, specify what types of behavior 

would be considered violence, clarify 

the interaction between dating violence 

and domestic violence, and explain how 

to address incidents of dating violence 

in jurisdictions where dating violence is 

not a crime. 

The negotiators had a substantial 

discussion on how to determine 

whether individuals were in a dating 

relationship when the violence 

occurred. In particular, the negotiators 

suggested three possible approaches to 

determining whether a dating 

relationship exists: (1) Accepting the 

determination of campus safety officials, 

(2) using a ‘‘reasonable person’’ 

standard, or (3) basing the 

determination on the victim’s 

perspective. 

Under the first approach, campus law 

enforcement or a campus security 

department would make the 

determination of whether a dating 

relationship existed after considering 

the factors outlined in the statutory 

definition of dating violence, 

specifically, the length and type of the 

relationship, and the frequency of 

interaction. Several of the negotiators 

supported this approach because they 

believed that it would give these 

officials the authority to make a 

professional judgment about the nature 

of the relationship, for purposes of 

crime reporting. Other negotiators 

disagreed with this approach, however, 

arguing that generational differences in 

terminology and culture (e.g., ‘‘going 

steady,’’ ‘‘seeing each other,’’ ‘‘hooking 

up,’’ or ‘‘hanging out’’) could create 

situations in which an incident of 

dating violence would be incorrectly 

omitted from the crime statistics and the 

crime log. They noted that, in some 

cases, the reporting party and the 

institutional official receiving the report 

may have different concepts about what 

constitutes dating. 

Under the second approach, an 

institution would make the 

determination of whether a dating 

relationship existed based on whether 

or not a ‘‘reasonable person’’ would 

consider the individuals to be dating. 

Some of the negotiators advocated this 

approach, arguing that it would reflect 

a standard that is frequently used in 

other areas of the law. Several other 

negotiators strongly disagreed, however, 

arguing that a reasonable person 

standard has traditionally reflected a 

perspective that may not adequately 

meet the needs of diverse populations of 

students. 

Under the third approach, an 

institution would make the 

determination based on whether or not 

victim considered themselves himself or 

herself to be in dating relationships. 

Several of the negotiators supported this 

approach, arguing that it would be clear 

and simple. They argued that leaving it 

to the victim to define the relationship 

would avoid problems caused by 

differences in terminology between the 

victim and campus officials or in the 

perception of the relationship between 

the victim and the perpetrator. Other 

negotiators believed that this was a 

reasonable approach, but they raised 

concerns that leaving the determination 

solely to the victim would not be 

supportable under the statute, which 

requires consideration of several factors, 

namely, the length of the relationship, 

the type of relationship, and the 

frequency of interaction. 

In the end, the negotiators agreed to 

a compromise definition that allows 

both the reporting party and law 

enforcement to be involved in 

determining whether a reported crime 

constitutes an incident of dating 

violence. Under the proposed 

definition, an institution would 

determine whether the individuals were 

in a dating relationship by considering 

the reporting party’s statement, as well 

as the other factors included in the 

statutory definition—the length of the 

relationship, the type of relationship, 

and the frequency of interaction 

between the persons involved in the 

relationship. We believe that this 

proposed definition appropriately 

allows institutions to give considerable 

weight to the view of the victim or, if 

someone other than the victim reports 

the incident, to the view of the reporting 

party, but also allows campus law 

enforcement or a campus security 

department flexibility to consider the 

statutory factors specifically listed in 

VAWA in deciding whether an incident 

meets the definition of dating violence. 

Next, with regards to the types of 

behavior that would be considered 

violence for purposes of this definition, 

some of the negotiators strongly 

believed that the definition of ‘‘dating 

violence’’ should include not only 

physical and sexual violence but also 

emotional or psychological abuse. These 


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negotiators noted that emotional or 

psychological abuse are commonly 

included in the definitions of ‘‘dating 

violence’’ or similar terms used by other 

Federal agencies such as the Department 

of Justice and the Centers for Disease 

Control and Prevention, States, and by 

practitioners in the field of sexual 

violence prevention. The negotiators 

also stressed that emotional or 

psychological abuse can have a severe 

impact on a victim, limiting the victim’s 

ability to access school in a healthy 

way, and that emotional or 

psychological abuse often escalates to 

physical or sexual violence. 

Other negotiators believed that the 

definition of ‘‘dating violence’’ should 

be limited to physical and sexual abuse. 

They argued that, from a practical 

standpoint, it would be difficult for 

campus law enforcement and other 

institutional officials to determine 

whether a report of emotional or 

psychological abuse meets the standard 

of ‘‘violence,’’ and accordingly whether 

or not to include it in the institution’s 

Clery Act statistics. Some of the 

negotiators also argued that including 

emotional and psychological abuse in 

the definition of dating violence would 

exceed the limits established by 

statutory language. 

In this proposed definition, we have 

specified that, for the purposes of 

including incidents of dating violence 

in an institution’s Clery Act statistics, 

dating violence includes, but is not 

limited to, sexual or physical abuse or 

the threat of such abuse. While the 

Department strongly supports the 

inclusion of emotional or psychological 

abuse in definitions of dating violence 

used for research, prevention, victim 

services, or intervention purposes, we 

are not proposing to explicitly include 

these forms of abuse in this definition 

for purposes of Clery Act reporting for 

several reasons. First, the Department 

recognizes that some instances of 

emotional and verbal abuse may not rise 

to the level of ‘‘violence’’ which is a part 

of the statutory definition of dating 

violence under VAWA. Second, we 

acknowledge the implementation 

challenges that including these forms of 

abuse in the regulatory definition would 

present for campus security authorities, 

including law enforcement for purposes 

of Clery Act reporting. In particular, the 

Department recognizes the difficulties 

that campus security authorities may 

encounter when attempting to identify 

incidents of reported emotional or 

psychological abuse, as these forms of 

abuse may not be visibly apparent, but 

instead may require the input of mental 

health professionals and counselors. We 

believe that the proposed definition 

reflects the statutory requirements and 

strikes a balance between creating a 

clear, enforceable regulation and 

allowing institutions to include 

instances of emotional or psychological 

abuse where the abuse constitutes a 

threat of physical or sexual abuse. 

Further, some negotiators requested 

clarification on how institutions should 

record incidents that meet the 

definitions of both ‘‘dating violence’’ 

and ‘‘domestic violence’’ for Clery Act 

statistical purposes. Specifically, the 

negotiators noted that, because certain 

acts of violence by an intimate partner 

of the victim meet both the definitions 

of ‘‘dating violence’’ and ‘‘domestic 

violence’’, a particular incident could be 

double-counted where the act is 

committed by an ‘‘intimate partner’’ and 

is an act of violence that also constitutes 

a felony or misdemeanor crime, thus 

meeting both definitions. To address 

concerns about the overlap of the 

definitions of ‘‘dating violence’’ and 

‘‘domestic violence’’ and to avoid 

double-counting, we have proposed to 

include the language clarifying that for 

purposes of Clery Act reporting, ‘‘dating 

violence does not include acts covered 

under the definition of domestic 

violence.’’ 

Finally, the negotiators requested 

clarification about how to treat 

incidents of dating violence in 

jurisdictions where dating violence is 

not a crime. During the committee’s 

discussions on this point several 

negotiators noted the discrepancy 

between the statutory definitions of 

‘‘dating violence,’’ which refers to 

‘‘violence’’ and does not require that a 

crime be committed, and the definition 

of ‘‘domestic violence,’’ which is 

defined as ‘‘a felony or misdemeanor 

crime of violence.’’ 

In these proposed regulations we 

would provide that any incident that 

meets the definition of ‘‘dating 

violence’’ is a ‘‘crime’’ for the purposes 

of the Clery Act. We have included this 

provision to make it clear that all such 

incidents would have to be recorded in 

an institution’s statistics, regardless of 

whether or not dating violence is a 

crime in the institution’s jurisdiction. 

We also believe this provision improves 

the readability of the regulations. 

Definition of Domestic Violence 

Statute: Section 304 of VAWA added 

a requirement to the Clery Act that 

institutions include statistics on 

domestic violence in their crime 

statistics reported to the Department 

and included in the annual security 

report. In addition, VAWA amended 

sections 485(f)(6)(A) and 485(f)(7) of the 

HEA to specify that the term ‘‘domestic 

violence’’ has the meaning given in 

section 40002(a) of the Violence Against 

Women Act of 1994 (42 U.S.C. 

13925(a)). The Violence Against Women 

Act of 1994 defines the term ‘‘domestic 

violence’’ to mean a felony or 

misdemeanor crime of violence 

committed by a current or former 

spouse or intimate partner 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. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add a definition of the term ‘‘domestic 

violence’’ in § 668.46(a). ‘‘Domestic 

violence’’ would be defined as it is in 

section 40002(a) of the Violence Against 

Women Act of 1994 (42 U.S.C. 

13925(a)). Additionally, the proposed 

definition would clarify that, for the 

purposes of complying with the 

requirements of the Clery Act, including 

for statistical purposes, any incident 

that meets this definition of ‘‘domestic 

violence’’ would be considered a crime. 

Reasons: As discussed, in contrast to 

dating violence, an incident is 

considered to be domestic violence 

under the statutory definition only if it 

is a felony or misdemeanor crime of 

violence in the jurisdiction. 

Additionally, as with dating violence, 

under these proposed regulations any 

incident that meets the definition of 

domestic violence would be considered 

to be a ‘‘crime’’ for the purposes of the 

Clery Act. We have included this 

provision to make it clear that all such 

incidents would have to be recorded in 

an institution’s statistics and to improve 

the readability of the regulations. 

Definition of the Federal Bureau of 

Investigation’s (FBI) Uniform Crime 

Reporting (UCR) program (FBI’s UCR 

program) 

Statute: Section 485(f)(7) of the HEA 

specifies that institutions must compile 

their crime statistics in accordance with 

the definitions used in the uniform 

crime reporting system of the 

Department of Justice, FBI, and the 

modifications in those definitions as 

implemented pursuant to the Hate 

Crime Statistics Act (28 U.S.C. 534 

note). 

Current Regulations: The regulations 

in § 668.46(a) do not currently define 


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the term ‘‘FBI’s UCR program.’’ 

However, the current § 668.46(c)(7) 

specifies that institutions must compile 

crime statistics using the definitions of 

the crimes provided in Appendix A to 

subpart D of part 668 and guidance in 

the FBI’s UCR Handbook (Summary 

Reporting System) or the UCR Reporting 

Handbook: National Incident-Based 

Reporting System (NIBRS), and, for the 

purposes of compiling hate crime 

statistics, the FBI’s UCR Hate Crime 

Data Collection Guidelines and Training 

Guide for Hate Crime Data Collection. 

Proposed Regulations: We propose to 

add a definition of the term ‘‘Federal 

Bureau of Investigation’s (FBI) Uniform 

Crime Reporting (UCR) Program’’ (FBI’s 

UCR program) to § 668.46(a). This 

proposed definition would define the 

FBI’s UCR program as a nationwide, 

cooperative statistical effort in which 

city, university and college, county, 

State, Tribal, and Federal law 

enforcement agencies voluntarily report 

data on crimes brought to their 

attention. The proposed addition would 

also clarify that the FBI’s UCR program 

serves as the basis for the definitions of 

crimes in Appendix A to subpart D of 

part 668 and the requirements for 

classifying crimes in subpart D. 

Reasons: The current regulations and, 

to an even greater extent, the proposed 

regulations, refer to the FBI’s UCR 

program in several places, and we 

believe that adding a definition of the 

term ‘‘FBI’s UCR program’’ at the 

beginning of the section will improve 

the clarity of the regulations. 

Definition of Hate Crime 

Statute: Prior to the enactment of 

VAWA, section 485(f)(1)(F)(ii) of the 

HEA required institutions to compile 

statistics about the number of cases of 

murder; manslaughter; sex offenses; 

robbery; aggravated assault; burglary; 

motor vehicle theft; arson; larceny-theft; 

simple assault; intimidation; 

destruction, damage, or vandalism of 

property; or other crimes involving 

bodily injury reported to campus 

security authorities or local police 

agencies in which the victim was 

intentionally selected because of the 

victim’s actual or perceived race, 

gender, religion, sexual orientation, 

ethnicity, or disability. Under the HEA, 

institutions must record these statistics 

according to the category of prejudice. 

Section 304 of VAWA amended 

section 485(f)(1)(F)(ii) of the HEA to add 

national origin and gender identity as 

categories of prejudice that may be 

identified as the basis for a hate crime. 

Current Regulations: Section 

668.46(a) does not currently include a 

definition of ‘‘hate crime.’’ However, the 

current regulations in § 668.46(c)(3) 

specify that institutions must include in 

their statistics the number of cases of 

criminal homicide; sex offenses; 

robbery; aggravated assault; burglary; 

motor vehicle theft; arson; larceny-theft; 

simple assault; intimidation; damage, 

destruction, or vandalism of property; 

and any other crimes involving bodily 

injury that are reported to campus 

security authorities or local police 

agencies that manifest evidence that the 

victim was intentionally selected 

because of the victim’s actual or 

perceived race, gender, religion, sexual 

orientation, ethnicity, or disability. 

Section 668.46(c)(7) directs institutions 

to use the definitions in the FBI’s UCR 

Hate Crime Data Collection Guidelines 

and Training Guide for Hate Crime Data 

Collection in compiling the Hate Crime 

statistics. 

Proposed Regulations: We propose to 

add a definition of ‘‘hate crime’’ to 

§ 668.46(a). The proposed regulations 

would define ‘‘hate crime’’ to mean a 

crime reported to local police agencies 

or to a campus security authority that 

manifests evidence that the victim was 

intentionally selected because of the 

perpetrator’s bias against the victim. For 

the purposes of the Clery Act, the 

categories of bias that may serve as the 

basis for a determination that a crime is 

a hate crime would include the victim’s 

actual or perceived race, religion, 

gender, gender identity, sexual 

orientation, ethnicity, national origin, 

and disability. 

Reasons: As discussed under 

‘‘Recording Crimes Reported to a 

Campus Security Authority,’’ we are 

proposing to re-structure paragraph (c) 

to make the regulations easier to 

understand. Those changes would result 

in references to hate crimes in multiple 

places in this section, and we believe 

that adding a definition of ‘‘hate crime’’ 

in § 668.46(a), using the existing 

description of hate crimes in 

§ 668.46(c)(3), will help clarify the 

regulations by explicitly defining this 

term, as well as making the definition 

easy to find. 

Definition of Hierarchy Rule 

Statute: None. 

Current Regulations: The current 

regulations in § 668.46(c)(7) specify that 

institutions must compile the crime 

statistics for certain crimes using the 

definitions of crimes in Appendix A to 

subpart D of part 668 and the guidelines 

in the UCR Reporting Handbook. The 

UCR Reporting Handbook requires that, 

when recording crimes when more than 

one offense was committed during a 

single incident, the Hierarchy Rule 

applies. Under the Hierarchy Rule, only 

the most serious offense is recorded. For 

example, under the Hierarchy Rule, if a 

perpetrator commits both an aggravated 

assault and a robbery during a single 

incident, only the robbery would be 

recorded because it is considered to be 

the more serious offense. 

Proposed Regulations: We propose to 

add a definition of ‘‘Hierarchy Rule’’ to 

§ 668.46(a). The proposed regulations 

would define ‘‘Hierarchy Rule’’ as the 

requirement in the FBI’s UCR program 

that, for purposes of reporting crimes in 

that system, when more than one 

criminal offense is committed during a 

single incident, only the most serious 

offense is to be included in the 

institution’s Clery Act statistics. 

Reasons: The Department has long 

required institutions to apply the FBI’s 

UCR program’s Hierarchy Rule when 

calculating their annual Clery Act 

statistics. The current regulations reflect 

this policy by referring to the guidelines 

in the UCR Reporting Handbook. As 

discussed more fully under ‘‘Using the 

FBI’s UCR Program and the Hierarchy 

Rule,’’ we are proposing to create an 

exception to the Hierarchy Rule in 

proposed § 668.46(c)(9) that would 

apply only in cases where a sexual 

assault and a murder occur in the same 

incident. We believe that adding this 

definition in § 668.46(a) will improve 

the clarity of the regulations, 

particularly given the proposed 

exception to the Hierarchy Rule. 

Definition of Programs To Prevent 

Dating Violence, Domestic Violence, 

Sexual Assault, and Stalking 

Statute: Prior to enactment of VAWA, 

section 485(f)(8)(A) of the HEA required 

an institution to include in its annual 

security report a statement of policy 

including, among other things, 

information about the institution’s 

campus sexual assault programs aimed 

at preventing sex offenses. This 

statement had to address the 

institution’s education programs to 

promote the awareness of rape, 

acquaintance rape, and other sex 

offenses. Section 304 of VAWA 

amended section 485(f)(8)(A) of the 

HEA to require that this statement of 

policy describe, among other things, the 

institution’s programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking. VAWA also 

expanded the information that the 

institution must include in its statement 

of policy to include descriptions of the 

institution’s primary prevention and 

awareness programs for all incoming 

students and new employees and its 

ongoing prevention and awareness 

campaigns for students and faculty. 

Both primary prevention and awareness 


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programs and ongoing prevention and 

awareness campaigns must include: (1) 

A statement that the institution 

prohibits dating violence, domestic 

violence, sexual assault, and stalking; 

(2) the definitions of dating violence, 

domestic violence, sexual assault, and 

stalking in the applicable jurisdiction; 

(3) the definition of consent, in 

reference to sexual activity, in the 

applicable jurisdiction; (4) 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 dating 

violence, domestic violence, sexual 

assault, or stalking against a person 

other than the individual; (5) 

information on risk reduction to 

recognize warning signs of abusive 

behavior and how to avoid potential 

attacks; and (6) information about the 

procedures that victims should follow, 

and that the institution will follow, after 

an incident of dating violence, domestic 

violence, sexual assault, or stalking has 

occurred. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add a definition of ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking’’ in 

§ 668.46(a). This term would be defined 

as ‘‘comprehensive, intentional, and 

integrated programming, initiatives, 

strategies, and campaigns intended to 

end dating violence, domestic violence, 

sexual assault, and stalking that are 

culturally relevant, inclusive of diverse 

communities and identities, sustainable, 

responsive to community needs, and 

informed by research or assessed for 

value, effectiveness, or outcome.’’ These 

programs must also ‘‘consider 

environmental risk and protective 

factors as they occur on the individual, 

relationship, institutional, community, 

and societal levels.’’ Programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking 

would also ‘‘include both primary 

prevention and awareness programs 

directed at incoming students and new 

employees and ongoing prevention and 

awareness campaigns directed at 

students and employees.’’ 

Reasons: During the negotiated 

rulemaking sessions, the committee 

formed a subcommittee focused on 

issues related to the new prevention and 

training requirements that VAWA added 

to the HEA. This subcommittee met 

several times to discuss possible 

definitions of the terms relevant to these 

requirements, as discussed under 

‘‘Programs to Prevent Dating Violence, 

Domestic Violence, Sexual Assault, and 

Stalking (§ 668.46(j)).’’ As a result of its 

work, the subcommittee recommended 

that the full committee consider adding 

a definition of the term ‘‘programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking’’ 

in paragraph (a) of § 668.46 to serve as 

an umbrella term for the primary 

prevention and awareness programs and 

the ongoing prevention and awareness 

campaigns that institutions must now 

provide. 

The committee members discussed 

the definition of this term, focusing in 

particular on how to ensure that these 

programs will reflect the best current 

thinking on the issues of sexual violence 

prevention. Several negotiators argued 

that many institutions use programs and 

practices that have been shown to be 

ineffective and that reinforce and 

perpetuate outdated myths about gender 

roles and behaviors, among other things. 

These negotiators believed that the 

regulations should require institutions 

to design programs using approaches 

and strategies that research has proven 

effective in preventing dating violence, 

domestic violence, sexual assault, and 

stalking. Most of the negotiators agreed 

that institutions should not implement 

programs that have been proven 

ineffective or harmful, but some urged 

that the term ‘‘research’’ should be given 

a broad interpretation to include 

research conducted according to 

scientific standards as well as 

assessments for efficacy carried out by 

institutions and other organizations. 

After consideration of these arguments, 

the committee agreed to propose that 

these prevention programs must be 

informed by research or assessed for 

value, effectiveness, or outcome. 

Similarly, the negotiators stressed the 

need to move away from programs that 

inappropriately place the burden on 

individuals to protect themselves, 

instead of focusing on ways to reduce 

the risk of perpetration. With this in 

mind, the negotiators agreed to specify 

that programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking must address 

environmental factors that increase the 

risk of violence on numerous levels (i.e., 

risk factors) and factors that decrease 

the risk of violence or mitigate the 

effects of a risk factor (i.e., protective 

factors). 

The negotiators also discussed the 

need to emphasize that institutions 

should develop their prevention 

programs thoughtfully and deliberately, 

taking into account the particular 

circumstances of their communities. 

Generally, the negotiators agreed that it 

is critical that institutions tailor their 

programs for their students and 

employees and their needs. 

Please see ‘‘Programs to Prevent 

Dating Violence, Domestic Violence, 

Sexual Assault, and Stalking 

(§ 668.46(j))’’ for additional discussion 

of programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking. 

Definition of Sexual Assault 

Statute: Section 304 of VAWA 

amended section 485(f) of the HEA to 

require an institution to include in its 

annual security report certain policies, 

procedures, and programs pertaining to 

incidents of dating violence, domestic 

violence, sexual assault, and stalking. 

VAWA also added a provision to section 

485(f)(6)(A) defining ‘‘sexual assault’’ as 

an offense classified as a forcible or 

nonforcible sex offense under the FBI’s 

UCR program. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add a definition of the term ‘‘sexual 

assault’’ in § 668.46(a). This term would 

be defined as ‘‘an offense that meets the 

definition of rape, fondling, incest, or 

statutory rape as used in the FBI’s UCR 

program and included in Appendix A’’ 

to subpart D of part 668. 

Reasons: Section 485(f)(6)(A)(v) of the 

HEA defines sexual assault to mean ‘‘an 

offense classified as a forcible or 

nonforcible sex offense under the 

uniform crime reporting system of the 

Federal Bureau of Investigation.’’ Our 

proposed regulations reflect this 

definition. However, for the reasons 

discussed under ‘‘Crimes That Must Be 

Reported and Disclosed,’’ we have 

removed references to ‘‘forcible’’ and 

‘‘nonforcible’’ sex offenses. We have 

also proposed to identify the sex 

offenses that ‘‘sexual assault’’ would 

include to make this definition clear. 

Definition of Stalking 

Statute: Section 304 of VAWA 

amended sections 485(f)(6)(A) and 

485(f)(7) of the HEA to specify that the 

term ‘‘stalking’’ has the meaning given 

the term in section 40002(a) of the 

Violence Against Women Act of 1994 

(42 U.S.C. 13925(a)). The Violence 

Against Women Act of 1994 defines the 

term ‘‘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.’’ 

Current Regulations: None. 

Proposed Regulations: We propose to 

add a definition of the term ‘‘stalking’’ 

in § 668.46(a). This definition would 

mirror the definition in section 40002(a) 

of the Violence Against Women Act of 

1994 while also defining some of the 

terms within that definition. ‘‘Course of 


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2www.victimsofcrime.org/docs/src/modelstalking-code.pdf?sfvrsn=0. 

conduct’’ would be defined to mean two 

or more acts, including, but not limited 

to, acts in which the stalker directly, 

indirectly, or through third parties, by 

any action, method, device, or means, 

follows, monitors, observes, surveils, 

threatens, or communicates to or about 

a person, or interferes with a person’s 

property. ‘‘Substantial emotional 

distress’’ would mean significant mental 

suffering or anguish that may, but does 

not necessarily, require medical or other 

professional treatment or counseling. 

‘‘Reasonable person’’ would mean a 

reasonable person under similar 

circumstances and with similar 

identities to the victim. Finally, the 

proposed regulations would clarify that, 

for the purpose of complying with the 

requirements of the Clery Act, including 

for statistics purposes, any incident that 

meets this definition of stalking would 

be considered a crime. 

Reasons: The proposed definition of 

stalking is based largely on the work of 

a subcommittee that was created to 

focus on issues related to the definition 

of stalking and counting incidents of 

stalking. This subcommittee, which 

included experts from the Stalking 

Resource Center, suggested that the 

Department add clarifying language to 

the VAWA definition of stalking based 

on the recommendations in the ‘‘Model 

Stalking Code’’ issued by the National 

Center for Victims of Crime.2 In 

particular, the subcommittee focused on 

defining several terms within VAWA’s 

definition of stalking, which had 

substantial overlap with the definition 

in the Model Stalking Code. 

First, the subcommittee suggested that 

the Department adopt the definition of 

‘‘course of conduct’’ from the Model 

Stalking Code which is ‘‘two or more 

acts, including, but not limited to, acts 

in which the stalker directly, indirectly, 

or through third parties, by any action, 

method, device, or means, follows, 

monitors, observes, surveils, threatens, 

or communicates to or about, a person, 

or interferes with a person’s property.’’ 

The full committee accepted this 

suggestion because this comprehensive 

description appropriately covers the 

wide range of behaviors that a 

perpetrator might exhibit when stalking 

a victim. In particular, the committee 

agreed that this definition would 

appropriately include means of stalking 

that are particularly troubling on college 

campuses, such as cyberstalking and the 

public distribution (e.g., online) of 

materials of a personal or intimate 

nature about a victim to humiliate, 

degrade, or expose the victim. While the 

committee initially discussed 

developing a special rule to address 

cyberstalking, the negotiators 

representing law enforcement and 

members of the subcommittee from the 

Stalking Resource Center strongly 

recommended against doing so, noting 

that cyberstalking is simply one form of 

stalking and is typically treated under 

the law the same way as any other 

stalking course of conduct, and that 

stalking someone through electronic 

means is frequently intertwined with 

other forms of stalking. 

Second, the subcommittee suggested 

adding clarifying language to explain 

the phrase ‘‘substantial emotional 

distress.’’ In particular, the 

subcommittee suggested defining 

‘‘emotional distress’’ similarly to the 

Model Stalking Code, which defines the 

term to mean ‘‘significant mental 

suffering or distress that may, but does 

not necessarily, require medical or other 

professional treatment or counseling.’’ 

Because the Model Stalking Code uses 

the term ‘‘significant’’ in defining 

‘‘emotional distress’’ the Committee was 

satisfied with adopting that language to 

define ‘‘substantial emotional distress’’ 

in the proposed regulations. 

Third, the subcommittee discussed 

the phrase ‘‘would cause a reasonable 

person to fear for his or her safety or the 

safety of others.’’ In particular, the 

subcommittee noted that the definition 

of stalking does not require a victim to 

actually suffer substantial emotional 

distress, but instead only that the course 

of conduct would cause a reasonable 

person to suffer distress. Further, the 

subcommittee suggested that the 

Department adopt the Model Stalking 

Code’s definition of a ‘‘reasonable 

person’’ to mean ‘‘a reasonable person 

in the victim’s circumstances.’’ The 

Department did not initially incorporate 

this definition of ‘‘reasonable person’’ in 

the draft regulations presented to the 

negotiators during the second session 

because the term ‘‘reasonable person’’ is 

generally understood and we were not 

convinced that further elaboration was 

needed. Some of the negotiators agreed 

that the ‘‘reasonable person’’ standard is 

a concept used in law and in a number 

of situations over hundreds of years and 

that trying to nuance it to fit a particular 

set of circumstances would weaken the 

generality and adaptability of the 

standard. Other negotiators, however, 

argued that a reasonable person, for 

Clery Act purposes, should be defined 

in a way that would speak to the 

identities and experiences of all 

members of the campus community. 

Ultimately, the committee agreed to 

define the term ‘‘reasonable person’’ 

within the definition of stalking to mean 

a reasonable person under similar 

circumstances and with similar 

identities to the victim. The negotiators 

felt that this definition would produce 

the best outcomes in terms of ensuring 

that the perspective from which an 

institution evaluates a report of stalking 

reflects the experience of the victim. 

Finally, as with dating violence and 

domestic violence, the proposed 

regulations provide that any incident 

that meets the definition of stalking 

would be considered a ‘‘crime’’ for the 

purposes of the Clery Act. We have 

included this provision to make it clear 

that all such incidents would have to be 

recorded in an institution’s statistics 

and to improve the readability of the 

regulations. 

Annual Security Report 

Memorandum of Understanding 

Statute: Prior to the passage of the 

Higher Education Opportunity Act of 

2008 (HEOA), institutions were required 

to include in their annual security 

reports a statement of current policies 

concerning campus law enforcement. 

Among other things, this statement had 

to include information about the 

‘‘enforcement authority of security 

personnel, including their working 

relationship with State and local police 

agencies.’’ Section 488(e)(1)(B) of the 

HEOA amended section 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 have with 

State and local law enforcement 

agencies with respect to the 

investigation of alleged criminal 

offenses. 

Current Regulations: Section 

668.46(b)(4)(i) currently requires an 

institution to include in its annual 

security report a statement of current 

policies concerning campus law 

enforcement that addresses the 

enforcement authority of security 

personnel, including their relationship 

with State and local police agencies and 

whether those security personnel have 

the authority to arrest individuals. 

Proposed Regulations: We propose to 

revise § 668.46(b)(4)(i) to reflect the 

changes made by the HEOA and to 

further clarify the existing requirements. 

Specifically, we propose to require 

institutions to address in the statement 

of current policies concerning campus 

law enforcement the jurisdiction of 

security personnel, as well as any 

agreements, such as written memoranda 

of understanding between the 

institution and State and local police 


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agencies, for the investigation of alleged 

criminal offenses. 

Reasons: The Department had 

previously not reflected the statutory 

provision regarding agreements between 

campus security agencies and State and 

local police in the regulations. Over the 

last several years, however, the 

Department has received requests to 

incorporate this provision into the 

regulations to make the regulations 

more complete. As a result, we are 

proposing to add this provision to the 

regulations. 

Additionally, we are proposing to add 

the words ‘‘and jurisdiction’’ in 

§ 668.46(b)(4)(i) to make it explicit that 

institutions must include information 

about jurisdiction when addressing the 

enforcement authority of campus law 

enforcement. We believe that this will 

provide the campus community with a 

better understanding of the physical 

locations in which campus law 

enforcement will patrol or otherwise 

carry out its duties. 

Elects To or Is Unable To Report 

Statute: Prior to the enactment of 

VAWA, section 485(f)(1)(C)(iii) of the 

HEA required institutions to include in 

their annual security reports a statement 

of current policies concerning campus 

law enforcement that addresses, among 

other things, policies that encourage 

accurate and prompt reporting of all 

crimes to the campus police and the 

appropriate law enforcement agencies. 

Section 304 of VAWA amended this 

provision to clarify that this policy 

statement must address accurate and 

prompt reporting of all crimes to the 

campus police and the appropriate law 

enforcement agencies when the victim 

of the crime elects or is unable to make 

such a report. 

Current Regulations: Current 

§ 668.46(b)(4)(ii) requires institutions to 

include in their annual security reports 

a statement of current policies 

concerning campus law enforcement 

that, among other things, encourages 

accurate and prompt reporting of all 

crimes to the campus police and the 

appropriate police agencies. 

Proposed Regulations: In proposed 

§ 668.46(b)(4)(iii), which modifies 

current § 668.46(b)(4)(ii), we require 

institutions to address in their statement 

of policy concerning campus law 

enforcement their policies to encourage 

accurate and prompt reporting of all 

crimes to the campus police and the 

appropriate police agencies, when the 

victim of a crime elects to or is unable 

to make such a report. 

Reasons: During the negotiated 

rulemaking sessions, one negotiator 

raised concerns that institutions have 

historically misinterpreted the provision 

in current § 668.46(b)(4)(ii) to mean that 

they must encourage students and 

employees to report crimes to law 

enforcement, even when the victim does 

not wish to initiate a criminal report. 

The negotiator was particularly troubled 

that a third party would report a crime 

to a responsible employee at the 

institution (for purposes of title IX) 

against the victim’s wishes, triggering a 

title IX investigation or police 

investigation that could compromise the 

victim’s confidentiality. The negotiator 

asserted that this misinterpretation has 

exacerbated the problem of 

underreporting of sex offenses on 

college campuses. 

Additionally, some of the negotiators 

suggested going a step further by 

defining ‘‘unable to report’’ to mean that 

a victim is physically unable to make a 

report, such as when the victim is in a 

coma. They felt that this would address 

the situation in which a member of the 

campus community would report a 

crime against the victim’s wishes after 

deciding that the victim was 

psychologically unable to make a report 

out of fear or coercion. Other 

negotiators, while agreeing that it is 

important to empower victims to make 

these decisions for themselves, opposed 

adding ‘‘physically’’ as a qualifier 

because they believed that it would be 

interpreted to exclude situations where 

a victim is mentally incapacitated and 

unable to make a report. 

Ultimately, in considering these 

concerns, the negotiated rulemaking 

committee agreed to incorporate the 

statutory language into the regulations, 

with the slight modification of adding 

the word ‘‘to’’ in the phrase ‘‘elects to 

or is unable to report,’’ for clarity, to 

emphasize that, for the purposes of 

reporting crimes to the campus police 

and the appropriate police agencies, 

institutions must encourage accurate 

and prompt reporting of all crimes when 

the victim of the crime elects to report 

the crime or when the victim is unable 

to make a report. 

We believe that it is important for 

institutions to encourage members of 

the campus community to report crimes 

to campus security authorities to ensure 

that all crimes are included in the 

institution’s Clery Act statistics. Our 

longstanding policy is that institutions 

must record reports of the Clery Act 

crimes in their statistics, regardless of 

whether the report comes from the 

victim or a third party. On the other 

hand, we understand that, particularly 

at institutions with sworn police 

officers, the same individuals or 

departments may be responsible for 

compiling the institution’s Clery Act 

statistics and for initiating title IX 

investigations or pursuing criminal 

charges. To address these concerns, in 

the Handbook we will encourage 

institutions to emphasize and make 

clear to students and employees what 

opportunities exist for making 

confidential reports of crimes for 

inclusion in the institution’s Clery Act 

statistics, for filing a title IX complaint 

at the institution, and for obtaining 

counseling or treatment without 

initiating a title IX investigation or 

criminal investigation. 

Programs and Procedures Regarding 

Dating Violence, Domestic Violence, 

Sexual Assault, and Stalking—Policy 

Statement 

Statute: Prior to the enactment of 

VAWA, section 485(f)(8)(A) of the HEA 

required institutions to include in their 

annual security reports a statement of 

policy regarding their programs to 

prevent sexual assaults on campus and 

the procedures that they will follow 

once a sex offense has occurred. Section 

304 of VAWA revised and expanded the 

types of information that institutions 

must include in this policy statement. 

The following chart summarizes the 

changes that VAWA made to this 

required policy statement in the HEA: 

Pre-VAWA Post-VAWA 

Each institution of higher education participating 

in any program under this title, other than a 

foreign institution of higher education, shall 

develop and distribute as part of the annual 

security report a statement of policy regarding— 

Each institution of higher education participating in any program under this title and title IV of 

the Economic Opportunity Act of 1965, other than a foreign institution of higher education, 

shall develop and distribute as part of the report described in paragraph (1) a statement of 

policy regarding— 

(i) The institution’s campus sexual assault programs, which shall be aimed at the prevention 

of sex offenses; and 

(i) The institution’s programs to prevent dating violence, domestic violence, sexual assault, 

and stalking; and 


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Pre-VAWA Post-VAWA 

(ii) Procedures followed once a sex offense has 

occurred.

(ii) The procedures that the institution will follow once an incident of dating violence, domestic 

violence, sexual assault, or stalking has been reported, including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from the 

report. 

The policy statement shall address the following 

areas: 

The policy statement shall address the following areas: 

(i) Education programs to promote the awareness of rape, acquaintance rape, and other 

sex offenses.

(i) Education programs to promote the awareness of rape, acquaintance rape, dating violence, 

domestic violence, sexual assault, and stalking, which shall include— 

(I) Primary prevention and awareness programs for all incoming students and new employees, which shall include— 

(aa) A statement that the institution of higher education prohibits the offenses of dating violence, domestic violence, sexual assault, and stalking; 

(bb) The definition of dating violence, domestic violence, sexual assault, and stalking in the 

applicable jurisdiction; 

(cc) The definition of consent, in reference to sexual activity, in the applicable jurisdiction; 

(dd) 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 dating violence, domestic violence, 

sexual assault, or stalking against a person other than such individual; 

(ee) Information on risk reduction to recognize warning signs of abusive behavior and how 

to avoid potential attacks; and 

(ff) The information in clauses (ii) through (vii). 

(II) Ongoing prevention and awareness campaigns for students and faculty that provide the 

information provided in the primary prevention and awareness programs. 

(ii) Possible sanctions to be imposed following 

the final determination of an on-campus disciplinary procedure regarding rape, acquaintance rape, or other sex offenses, forcible or 

non-forcible.

(ii) Possible sanctions or protective measures that the institution may impose following a final 

determination of an institutional disciplinary procedure regarding rape, acquaintance rape, 

dating violence, domestic violence, sexual assault, or stalking. 

(iii) Procedures students should follow if a sex 

offense occurs, including who should be contacted, the importance of preserving evidence 

as may be necessary to the proof of criminal 

sexual assault, and to whom the alleged offense should be reported.

(iii) Procedures victims should follow if a sex offense, dating violence, domestic violence, sexual assault, or stalking has occurred, including information in writing about— 

(I) The importance of preserving evidence as may be necessary to the proof of criminal dating violence, domestic violence, sexual assault, or stalking, or in obtaining a protection order. 

(II) To whom the alleged offense should be reported. 

(iv) Informing students of their options to notify 

proper law enforcement authorities, including 

on-campus and local police, and the option to 

be assisted by campus authorities in notifying 

such authorities, if the student so chooses.

(III) Options regarding law enforcement, including notification of the victim’s option to— 

(aa) Notify proper law enforcement authorities, including on-campus and local police. 

(bb) Be assisted by campus authorities in notifying law enforcement authorities if the victim 

so chooses. 

(cc) Decline to notify such authorities. 

(IV) Where applicable, the rights of victims and the institution’s responsibilities regarding orders of protection, no-contact orders, restraining orders, or similar lawful orders issued by a 

criminal, civil, or tribal court. 

(iv) Procedures for on-campus disciplinary action in cases of alleged sexual assault, which 

shall include a clear statement that— 

(iv) Procedures for institutional disciplinary action in cases of alleged dating violence, domestic 

violence, sexual assault, or stalking, which shall include a clear statement that— 

(I) Such proceedings shall— 

(aa) Provide a prompt, fair, and impartial investigation and resolution; and 

(bb) Be conducted by officials who receive annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking and how to conduct an investigation 

and hearing process that protects the safety of victims and promotes accountability. 

(A) The accuser and the accused are entitled to 

the same opportunities to have others present 

during a campus disciplinary proceeding; and 

(II) The accuser and the accused are entitled to the same opportunities to have others 

present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice; and 

(B) Both the accuser and the accused shall be 

informed of the outcome of any campus disciplinary proceeding brought alleging a sexual 

assault.

(III) Both the accuser and the accused shall be simultaneously informed, in writing, of— 

(aa) The outcome of any institutional disciplinary proceeding that arises from an allegation 

of dating violence, domestic violence, sexual assault, or stalking; 

(bb) The institution’s procedures for the accused and the victim to appeal the results of the institutional disciplinary proceeding; 

(cc) Any change to the results that occurs prior to the time that the results become final; 

and 

(dd) When such results become final. 

(v) (See the 8th row in this table above) ............ (v) Information about how the institution will protect the confidentiality of victims, including how 

publicly available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law. 

(iv) Notification of students of existing counseling, mental health, or student services for 

victims of sexual assault, both on campus 

and in the community.

(vi) Written notification of students and employees about existing counseling, health, mental 

health, victim advocacy, legal assistance, and other services available for victims both oncampus and in the community. 


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Pre-VAWA Post-VAWA 

(vii) Notification of students of options for, and 

available assistance in, changing academic 

and living situations after an alleged sexual 

assault incident, if so requested by the victim 

and if such changes are reasonably available.

(vii) Written notification of victims about options for, and available assistance in, changing academic, living, transportation, and working situations, if so requested by the victim and if such 

accommodations are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement. 

Current Regulations: The current 

regulations in § 668.46(b)(11) largely 

mirror the statutory provisions as they 

existed prior to the enactment of VAWA 

by requiring institutions to include in 

their annual security reports a statement 

of policy regarding the institution’s 

sexual assault programs to prevent sex 

offenses, and procedures to follow when 

a sex offense occurs. The regulations 

also outline the items that the statement 

of policy must address, including: (1) A 

description of educational programs to 

promote the awareness of rape, 

acquaintance rape, and other forcible 

and nonforcible sex offenses; (2) 

procedures students should follow if a 

sex offense occurs, including 

procedures concerning who should be 

contacted, the importance of preserving 

evidence for the proof of a criminal 

offense, and to whom the alleged 

offense should be reported; (3) 

information on a student’s option to 

notify appropriate law enforcement 

authorities, including on-campus and 

local police, and a statement that 

institutional personnel will assist the 

student in notifying these authorities, if 

the student requests the assistance of 

these personnel; (4) notification to 

students of existing on- and off-campus 

counseling, mental health, or other 

student services for victims of sex 

offenses; (5) notification to students that 

the institution will change a victim’s 

academic and living situations after an 

alleged sex offense and of the options 

for those changes, if those changes are 

requested by the victim and are 

reasonably available; (6) procedures for 

campus disciplinary action in cases of 

an alleged sex offense, including a clear 

statement that the accuser and the 

accused are entitled to the same 

opportunities to have others present 

during a disciplinary proceeding and 

that both the accuser and the accused 

must be informed of any institutional 

disciplinary proceeding brought alleging 

a sex offense; and (7) sanctions the 

institution may impose following a final 

determination of any institutional 

disciplinary proceeding regarding rape, 

acquaintance rape, or other forcible or 

nonforcible sex offense. Additionally, 

the current regulations specify that 

informing both the accuser and the 

accused of the outcome of a disciplinary 

proceeding does not constitute a 

violation of FERPA and state that the 

outcome of a disciplinary proceeding 

means only the institution’s final 

determination with respect to the 

alleged sex offense and any sanction 

that is imposed against the accused. 

Proposed Regulations: We are 

proposing to revise and re-structure 

§ 668.46(b)(11) to reflect the changes 

made to the HEA by VAWA. First, we 

would revise the regulations to require 

institutions to include in their annual 

security reports a statement of policy 

regarding the institution’s programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking 

and the procedures that the institution 

will follow when one of these crimes is 

reported. We would similarly replace 

references to ‘‘sex offenses,’’ ‘‘campus 

sexual assault,’’ and ‘‘criminal sexual 

assault,’’ with references to ‘‘dating 

violence, domestic violence, sexual 

assault, and stalking,’’ where applicable, 

in § 668.46(b)(11)(i) through (vii). 

Second, in proposed § 668.46(b)(11)(i), 

we propose to replace the current 

provisions in § 668.46(b)(11)(i) with a 

cross-reference to proposed new 

paragraph (j), which would address the 

requirements pertaining to an 

institution’s educational programs to 

promote the awareness of dating 

violence, domestic violence, sexual 

assault, and stalking. Third, we propose 

to replace the current provisions in 

§ 668.46(b)(11)(vi) and (vii) with a crossreference to proposed new paragraph 

(k), which would address an 

institution’s procedures for campus 

disciplinary action in cases of alleged 

dating violence, domestic violence, 

sexual assault, or stalking and the 

possible resulting sanctions. Fourth, we 

would revise the remaining provisions 

in paragraphs (b)(11)(ii), (iii), (iv), and 

(v) to reflect the new statutory language. 

Finally, we would add new paragraph 

(b)(11)(vii) to require institutions to 

state in their annual security reports 

that, when a student or employee 

reports to the institution that the 

individual was a victim of dating 

violence, domestic violence, sexual 

assault, or stalking, whether the offense 

occurred on or off campus, the 

institution will provide that victim with 

a written explanation of the student’s or 

employee’s rights and options, as 

described in proposed paragraphs 

(b)(11)(ii) through (vi). 

Please see the discussions under 

‘‘Preserving Evidence, Reporting 

Offenses to Law Enforcement and 

Campus Authorities, and Protection 

Orders,’’ ‘‘Confidentiality of Victims,’’ 

‘‘Notification of Assistance and 

Services,’’ ‘‘Notification of 

Accommodations,’’ ‘‘Written Statement 

of Rights and Options,’’ ‘‘Programs to 

Prevent Dating Violence, Domestic 

Violence, Sexual Assault, and Stalking,’’ 

and ‘‘Institutional Disciplinary 

Proceedings in Cases of Alleged Dating 

Violence, Domestic Violence, Sexual 

Assault, or Stalking’’ for detailed 

descriptions of the changes and 

additions we are proposing in 

paragraphs (b)(11)(ii), (iii), (iv), (v), and 

(vii) and in paragraphs (j) and (k) of 

§ 668.46. 

Reasons: Generally, we are proposing 

to revise the current provisions in 

§ 668.46(b)(11) to reflect the VAWA 

amendments. 

We are also proposing to replace 

current paragraph (b)(11)(i) with a crossreference to proposed new paragraph (j), 

and current paragraphs (b)(11)(vi) and 

(vii) with a cross-reference to proposed 

new paragraph (k), to streamline 

paragraph (b)(11) and help institutions 

and the public better understand and 

follow these regulations. This is the 

same approach we took when 

implementing changes that the HEOA 

made to the Clery Act in 2008 of using 

cross-references to direct readers to later 

paragraphs for information pertaining to 

policy statements on missing student 

notification and emergency response 

and evacuation procedures. 

Preserving Evidence, Reporting Offenses 

to Law Enforcement and Campus 

Authorities, and Protection Orders 

Statute: Prior to the enactment of 

VAWA, section 485(f)(8)(B)(iii) of the 

HEA required institutions to address in 

their annual security reports the 

procedures students should follow if a 

sex offense occurs, including who 

should be contacted, the importance of 

preserving evidence as may be 

necessary to the proof of criminal sexual 

assault, and to whom the alleged offense 

should be reported. Further, section 

485(f)(8)(B)(v) of the HEA required 

institutions to inform students of their 


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options to notify proper law 

enforcement authorities, including oncampus and local police, and the option 

to be assisted by campus authorities in 

notifying law enforcement authorities, if 

the student chose to do so. VAWA 

amended section 485(f)(8)(B) of the HEA 

to require institutions to provide this 

information to ‘‘victims’’—not just to 

‘‘students’’—in writing; to require that 

this information be provided after an 

incident of dating violence, domestic 

violence, sexual assault, or stalking— 

not just after a ‘‘sex offense’’—occurs; to 

add information about the importance of 

preserving evidence that may be 

necessary to prove criminal dating 

violence, domestic violence, sexual 

assault, or stalking or to obtain a 

protection order; and to add that 

institutions must notify victims of their 

right to decline to notify law 

enforcement authorities of such 

incidents. 

Current Regulations: Section 

668.46(b)(11)(ii) of the current 

regulations specifies that an institution’s 

statement of policy pertaining to 

campus sexual assaults must include 

information about procedures students 

should follow if a sex offense occurs, 

including procedures concerning who 

should be contacted, the importance of 

preserving evidence for the proof of a 

criminal offense, and to whom the 

alleged offense should be reported. 

Section 668.46(b)(11)(iii) requires 

institutions to further include in this 

statement of policy information on a 

student’s option to notify appropriate 

law enforcement authorities, including 

on-campus and local police, and a 

statement that institutional personnel 

will assist the student in notifying these 

authorities, if the student requests that 

assistance. 

Proposed Regulations: We propose to 

revise § 668.46(b)(11)(ii) to require 

institutions to provide written 

information to victims about the 

procedures that one should follow if a 

crime of dating violence, domestic 

violence, sexual assault, or stalking has 

occurred. In complying with this 

proposed provision, institutions would 

have to keep in mind that dating 

violence, domestic violence, and 

stalking would include, for Clery Act 

purposes, any incident that meets the 

definitions of those terms in proposed 

§ 668.46(a). Accordingly, institutions 

would be required to provide certain 

procedural information to victims after 

one of these incidents occurs, regardless 

of whether the incident would be 

considered a crime for other, non-Clery 

Act purposes. 

In proposed § 668.46(b)(11)(ii)(A), 

which modifies current 

§ 668.46(b)(11)(ii), we would specify 

that institutions must include as part of 

these procedures information about the 

importance of preserving evidence that 

may assist in proving that the alleged 

criminal offense occurred or may be 

helpful in obtaining a protection order. 

In proposed § 668.46(b)(11)(ii)(B), 

which modifies current 

§ 668.46(b)(11)(ii), we would clarify 

that, in disclosing to victims to whom 

they should report an alleged offense, 

institutions must specify how a victim 

should make that report. 

In proposed § 668.46(b)(11)(ii)(C), 

which modifies current 

§ 668.46(b)(11)(ii), we would add that 

institutions must inform victims not 

only of their options to notify proper 

law enforcement authorities, including 

on-campus and local police, and to be 

assisted by campus authorities in doing 

so, but also of their option to decline to 

notify such authorities. 

Finally, we would add 

§ 668.46(b)(11)(ii)(D) to provide that 

institutions must inform victims of their 

rights and, where applicable, the 

institution’s responsibilities for orders 

of protection, no-contact orders, 

restraining orders, or similar lawful 

orders issued by a criminal, civil, or 

tribal court or by the institution. 

Reasons: Generally, we are proposing 

the changes and additions in 

§ 668.46(b)(11)(ii) to implement the 

amendments to the HEA made by 

VAWA; however, we are proposing 

some additional clarifications based on 

the discussions at the negotiated 

rulemaking sessions. 

First, we are proposing in 

§ 668.46(b)(11)(ii)(B) to clarify that 

institutions must include information 

about how a victim should report an 

alleged offense of dating violence, 

domestic violence, sexual assault, or 

stalking. Many negotiators indicated 

that victims often are unaware of the 

processes they must follow to report one 

of these offenses. The negotiators agreed 

that, in addition to knowing who to 

notify, it would be helpful for victims to 

have information in an institution’s 

annual security report about any 

processes in place for notifying the 

appropriate officials. 

Second, we are proposing in 

§ 668.46(b)(11)(ii)(D) to specify that 

institutions must address in its 

statement of policy in the annual 

security report victims’ rights and the 

institution’s responsibilities for 

enforcing orders of protection, nocontact orders, restraining orders, or 

similar lawful orders issued by courts 

and by the institution. Some of the 

negotiators felt strongly that victims 

should be informed of the types of 

orders that an institution may impose to 

protect a victim after an allegation of 

dating violence, domestic violence, 

sexual assault, or stalking. During the 

discussions, a few of the negotiators 

asked the Department to clarify what an 

institution’s responsibility would be to 

enforce orders of protection or similar 

orders issued by a court. Institutions are 

responsible for understanding their legal 

responsibilities based on the 

circumstances of a particular order. The 

Department is not in a position to 

provide guidance to institutions on 

individual protection orders. 

Confidentiality of Victims 

Statute: Section 304 of VAWA 

amended section 485(f)(8)(B)(v) of the 

HEA to require institutions to address in 

their annual security reports how they 

will protect the confidentiality of 

victims, including how publicly 

available recordkeeping will be 

accomplished without the inclusion of 

identifying information about the 

victim, to the extent permissible by law. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add § 668.46(b)(11)(iii) to specify that 

institutions must address in their 

annual security reports how the 

institution will: (1) Complete publicly 

available recordkeeping, including for 

the purposes of Clery Act reporting and 

disclosure, without the inclusion of 

identifying information about the 

victim; and (2) maintain as confidential 

any accommodations or protective 

measures provided to the victim, to the 

extent that maintaining such 

confidentiality would not impair the 

ability of the institution to provide the 

accommodations or protective 

measures. ‘‘Identifying information 

about the victim’’ would have the same 

meaning as ‘‘personally identifying 

information’’ or ‘‘personal information’’ 

in section 40002(a)(20) of the Violence 

Against Women Act of 1994 (42 U.S.C. 

13925(a)(20)), which is defined to mean 

individually identifying information for 

or about an individual, including 

information likely to disclose the 

location of a victim of dating violence, 

domestic violence, sexual assault, or 

stalking, regardless of whether the 

information is encoded, encrypted, 

hashed, or otherwise protected, 

including: (1) A first and last name; (2) 

a home or other physical address; (3) 

contact information (including a postal, 

email, or Internet protocol address, or 

telephone or facsimile number); (4) a 

social security number, driver license 

number, passport number, or student 

identification number; and (5) any other 

information, including date of birth, 

racial or ethnic background, or religious 


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affiliation, that would serve to identify 

an individual. 

Reasons: During the negotiated 

rulemaking sessions, several negotiators 

expressed concerns that some 

institutions mistakenly believe that they 

may, or must, disclose identifying 

information about victims to comply 

with Federal and State open records 

requirements and that information about 

accommodations and protective 

measures available for victims need not 

be kept confidential. These negotiators 

stressed the importance of emphasizing 

in the regulations that institutions 

should preserve the confidentiality of 

victims to the maximum extent possible 

to avoid re-victimization and retribution 

and to protect a victim’s right to 

privacy. They also noted that several of 

the provisions that VAWA added to the 

HEA reflect this concern. As a result, 

the proposed regulations would build 

on the provisions in VAWA by requiring 

institutions to provide information 

about how they will protect the 

confidentiality of victims and other 

necessary parties and complete publicly 

available recordkeeping—including the 

Clery Act statistical and crime log 

requirements—without including 

information about the victim. 

Institutions should strive to protect a 

victim’s confidentiality to the maximum 

extent possible when providing 

accommodations or instituting 

protective measures for the victim. We 

believe that the proposed regulations 

would appropriately balance the need to 

protect a victim’s safety and privacy 

while also ensuring the safety of the 

campus community. These proposed 

regulations are also consistent with 

section 485(f)(10) of the HEA, which 

specifies that nothing in this section 

shall be construed to require the 

reporting or disclosure of privileged 

information. 

Notification of Assistance and Services 

Statute: Prior to the enactment of 

VAWA, section 485(f)(8)(B)(vi) of the 

HEA required institutions to address in 

their annual security reports notification 

of students of existing counseling, 

mental health, or student services for 

victims of sexual assault, both on 

campus and in the community. VAWA 

amended this provision to require 

institutions to include in their annual 

security reports written notification to 

students and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, and 

other services available for victims both 

on campus and in the community. 

Current Regulations: Section 

668.46(b)(11)(iv) requires institutions to 

include in their annual security reports 

a statement on notification to students 

of existing on- and off-campus 

counseling, mental health, or other 

student services for victims of sex 

offenses. 

Proposed Regulations: In proposed 

§ 668.46(b)(11)(iv), which modifies 

current § 668.46(b)(11)(iv), we would 

require institutions to specify in their 

annual security reports that they will 

provide written notification to students 

and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, visa 

and immigration assistance, and other 

services available for victims within the 

institution and in the community. 

Reasons: We propose these changes to 

implement the changes made by VAWA 

in this area. We are also proposing, 

however, to expand the list of services 

about which institutions must provide 

information to victims, if those services 

are available. Specifically, in addition to 

the types of accommodations that 

VAWA added, we propose that 

institutions must notify victims of any 

available assistance at the institution or 

in the community with visa or 

immigration issues. One of the 

negotiators recommended that we add 

this category because many institutions 

have international students, and these 

students—and their partners and 

children—if victims of dating violence, 

domestic violence, sexual assault, and 

stalking may face significant barriers in 

receiving needed services or support 

due to concerns regarding their visa and 

immigration status. Other committee 

members agreed that this would be 

valuable information for international 

students, but also noted that, as with the 

other types of services, institutions 

would be required to provide this 

information only if the services are 

available. Another negotiator suggested 

clarifying that institutions could 

provide information about other types of 

services that may be available, arguing 

that institutions might believe that the 

topics listed in the regulations are the 

only topics that they should address 

when providing information to students 

and employees. We agree with the 

negotiator and believe that the 

regulatory language in proposed 

§ 668.46(b)(11)(iv) makes it clear that, in 

addition to the categories listed, 

institutions may provide additional 

safety and security information to their 

students and employees. 

Notification of Accommodations 

Statute: Prior to the enactment of 

VAWA, section 485(f)(8)(B)(vii) of the 

HEA required institutions to address in 

their annual security reports notification 

of students of options for, and available 

assistance in, changing academic and 

living situations after an alleged sexual 

assault, if requested by the victim and 

if such changes are reasonably available. 

VAWA expanded and clarified this 

provision to require institutions to 

include in their annual security reports 

written notification to victims about 

options for, and available assistance in, 

changing academic, living, 

transportation, and working situations, 

if requested by the victim and if such 

accommodations are reasonably 

available, regardless of whether the 

victim chooses to report the crime to 

campus police or local law enforcement. 

Current Regulations: Section 

668.46(b)(11)(v) requires institutions to 

include in their annual security reports 

notification to students that the 

institution will change a victim’s 

academic and living situations after an 

alleged sex offense and of the options 

for those changes, if those changes are 

requested by the victim and are 

reasonably available. 

Proposed Regulations: In proposed 

§ 668.46(b)(11)(v), which modifies 

current § 668.46(b)(11)(v), we would 

require institutions to also specify in 

their annual security reports that they 

will provide written notification to 

victims about options for, and available 

assistance in, changing transportation 

and working situations, in addition to 

academic and living situations. The 

regulations would clarify that the 

institution must make these 

accommodations if the victim requests 

them and if they are reasonably 

available, regardless of whether the 

victim chooses to report the crime to 

campus police or local law enforcement. 

Reasons: We are proposing these 

changes to implement the changes made 

by VAWA. Some negotiators were 

concerned that some institutions believe 

that they are not required to provide 

accommodations if a victim chooses not 

to report the crime to local law 

enforcement. To address this concern, 

we are proposing to clarify in this 

provision that institutions must provide 

these accommodations if they are 

requested by the victim, regardless of 

whether the victim reports the crime to 

local law enforcement. 

Written Statement of Rights and Options 

Statute: VAWA added section 

485(f)(8)(C) to the HEA to require an 

institution to provide a student or 

employee who reports to the institution 

that the student or employee has been 

a victim of dating violence, domestic 

violence, sexual assault, or stalking with 

a written explanation of that person’s 

rights and options, as described in 

sections 485(f)(8)(B)(ii) through 


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(f)(8)(B)(vii) of the HEA. Institutions 

must provide this written explanation to 

these victims, regardless of whether the 

offense occurred on or off campus. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add § 668.46(b)(11)(vii) to require 

institutions to specify in their annual 

security reports that, when a student or 

employee reports to the institution that 

the student or employee has been a 

victim of dating violence, domestic 

violence, sexual assault, or stalking, 

whether the offense occurred on or off 

campus, the institution will provide the 

student or employee with a written 

explanation of the student’s or 

employee’s rights and options, as 

described in proposed § 668.46(b)(11)(ii) 

through (b)(11)(vi). 

Reasons: We are proposing these 

changes to implement VAWA. 

Annual Crime Statistics 

Crimes That Must Be Reported and 

Disclosed 

Statute: Prior to VAWA, section 

485(f)(1)(F) of the HEA required 

institutions to report to the Department 

and disclose in their annual security 

reports the most recent three years’ 

worth of statistics concerning the 

occurrence of certain crimes on campus, 

in or on noncampus buildings or 

property, and on public property that 

are reported to campus security 

authorities or local police agencies. 

VAWA expanded the list of crimes for 

which institutions must report and 

disclose statistics to include incidents of 

dating violence, domestic violence, and 

stalking that were reported to campus 

security authorities or local police 

agencies. The following chart 

summarizes the reportable crimes under 

the Clery Act prior to and subsequent to 

VAWA: 

Pre-VAWA Post-VAWA 

Primary crimes: Primary crimes: 

Murder Murder. 

Sex Offenses Sex Offenses. 

Robbery Robbery. 

Aggravated Assault Aggravated Assault. 

Burglary Burglary. 

Motor Vehicle Theft Motor Vehicle Theft. 

Manslaughter Manslaughter. 

Arson Arson. 

If determined to be a hate crime: If determined to be a hate crime: 

Larceny-Theft Larceny-Theft. 

Simple Assault Simple Assault. 

Intimidation Intimidation. 

Destruction, Damage, or Vandalism of Property Destruction, Damage, or Vandalism of Property. 

Any Other Crime Involving Bodily Injury Any Other Crime Involving Bodily Injury. 

Arrests and referrals for disciplinary action for: Arrests and referrals for disciplinary action for: 

Weapons Possession Weapons Possession. 

Liquor Law Violations Liquor Law Violations. 

Drug Law Violations Drug Law Violations. 

VAWA crimes: 

Dating Violence. 

Domestic Violence. 

Stalking. 

Current Regulations: The current 

regulations in § 668.46(c) require 

institutions to report to the Department 

statistics for the three most recent 

calendar years concerning the 

occurrence on campus, in or on 

noncampus buildings or property, and 

on public property of certain crimes. 

• § 668.46(c)(1) requires institutions 

to report the following incidents that are 

reported to local police agencies or to a 

campus security authority: criminal 

homicide (including murder and 

nonnegligent manslaughter and 

negligent manslaughter), sex offenses 

(including forcible and nonforcible sex 

offenses), robbery, aggravated assault, 

burglary, motor vehicle theft, arson, and 

arrests and referrals for disciplinary 

action for liquor law violations, drug 

law violations, and illegal weapons 

possession. 

• § 668.46(c)(3) requires institutions 

to report to the Department, by category 

of prejudice, any of the crimes reported 

to local police agencies or to a campus 

security authority under paragraph 

(c)(1), the crimes of larceny-theft, simple 

assault, intimidation, and destruction, 

damage, and vandalism of property, and 

any other crimes involving bodily 

injury, that manifest evidence that the 

victim was intentionally selected 

because of the victim’s actual or 

perceived race, gender, religion, sexual 

orientation, ethnicity, or disability. 

Under § 668.46(b)(1), institutions must 

also disclose these statistics in their 

annual security reports. 

In defining the crimes that must be 

included in the statistics on sex 

offenses, the Department has 

historically used the definitions of sex 

offenses in the National Incident-Based 

Reporting System (NIBRS) Edition of the 

FBI’s UCR program. Under that 

approach, the Department has collected 

statistics for crimes that meet the 

definitions in NIBRS for four types of 

forcible sex offenses—forcible rape, 

forcible sodomy, sexual assault with an 

object, and forcible fondling—and two 

nonforcible sex offenses—incest and 

statutory rape. 

Proposed Regulations: We propose to 

make several changes to § 668.46(c) 

regarding the crimes that must be 

included in the Clery Act statistics 

reported to the Department and 

included in the institution’s annual 

security report. First, we would require 

institutions to maintain statistics about 

the number of incidents of dating 

violence, domestic violence, and 

stalking that meet the definitions of 

those terms, as proposed in § 668.46(a). 

This change is reflected in proposed 

§ 668.46(c)(1)(iv). 

Second, we propose to require 

institutions to report and disclose 

instances of rape, fondling, incest, and 

statutory rape. Specifically, we would 

revise the definition of ‘‘rape’’ in 

Appendix A to reflect the FBI’s recently 

updated definition in the UCR Summary 

Reporting System (SRS), which 

incorporates the NIBRS categories of 

rape, sodomy, and sexual assault with 


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an object. Because instances of rape, 

sodomy, and sexual assault with an 

object would all be included under the 

definition of rape, we would no longer 

collect statistics for those crime 

categories separately. We would 

continue to use the definitions of ‘‘sex 

offenses,’’ ‘‘fondling,’’ ‘‘incest,’’ and 

‘‘statutory rape’’ from the NIBRS edition 

of the UCR; however, we would revise 

these definitions to reflect the FBI’s 

updated definitions. Additionally, we 

would eliminate the distinction between 

forcible and nonforcible sex offenses 

and refer simply to sex offenses. With 

these changes, the sex offenses and their 

definitions for the purposes of the Clery 

Act would be: 

• Sex Offenses (from NIBRS): Any 

sexual act directed against another 

person without the consent of the 

victim, including instances where the 

victim is incapable of giving consent. 

• Rape (from SRS): 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. 

• Fondling (from NIBRS): 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. 

• Incest (from NIBRS): Nonforcible 

sexual intercourse between persons who 

are related to each other within the 

degrees wherein marriage is prohibited 

by law. 

• Statutory Rape (from NIBRS): 

Nonforcible sexual intercourse with a 

person who is under the statutory age of 

consent. 

The following chart summarizes the 

proposed changes to the collection of 

statistics regarding sex offenses: 

Current approach Proposed approach 

Sex Offenses— 

Forcible: 

Sex Offenses: 

Forcible Rape Rape. 

Forcible Sodomy 

Sexual Assault 

with an Object 

Forcible Fondling Fondling. 

Sex Offenses— 

Nonforcible: 

Incest Incest. 

Statutory Rape Statutory Rape. 

Finally, we propose to restructure the 

paragraph by consolidating all of the 

reportable Clery Act crimes under 

§ 668.46(c)(1). Under this proposed 

structure, we would: group the primary 

crimes of criminal homicide (including 

murder and nonnegligent manslaughter 

and negligent manslaughter), sex 

offenses (rape, fondling, incest, and 

statutory rape), robbery, aggravated 

assault, burglary, motor vehicle theft, 

and arson under § 668.46(c)(1)(i); move 

arrests and disciplinary actions for 

liquor law violations, drug law 

violations, and illegal weapons 

possession to § 668.46(c)(1)(ii); move the 

reportable hate crimes to 

§ 668.46(c)(1)(iii); and add the crimes 

added by VAWA in § 668.46(c)(1)(iv). 

Reasons: We are proposing these 

changes to implement VAWA, to reflect 

updates to the FBI’s definitions of 

crimes in the UCR program and to 

improve the clarity of the regulations. 

The negotiators considered two primary 

approaches to collecting statistics on 

incidents of dating violence, domestic 

violence, and stalking that meet the 

proposed definitions discussed under 

the Definitions section. First, the 

negotiators discussed a proposal 

initially presented by the Department in 

which the new crimes would be 

counted as a subset of the primary 

crimes and hate crimes. For example, if 

an individual reported that her 

coworker was the victim of an 

aggravated assault and that this 

coworker’s husband was the perpetrator, 

and if the aggravated assault was a 

felony in that jurisdiction, the crime 

would be reported as an aggravated 

assault with an additional descriptor 

identifying it as a case of domestic 

violence. Under this approach, the data 

would provide more context and detail 

about each particular incident and an 

incident would not appear more than 

once in an institution’s statistics. 

Several of the negotiators supported this 

approach because it would reduce the 

perception that a particular campus had 

more crimes than had actually occurred. 

Some negotiators, however, argued that 

the information presented using this 

approach would be too complicated and 

that people would be less inclined to 

use the data, reducing its utility. Others 

argued that the statute did not 

contemplate connecting cases of dating 

violence, domestic violence, and 

stalking to the primary crimes and the 

hate crimes and that doing so would 

exceed the Department’s authority 

under the HEA. These negotiators 

proposed an alternate approach of 

requiring institutions to simply provide 

tallies of the number of incidents of 

each of dating violence, domestic 

violence, and stalking. They believed 

that this approach would be more in 

line with the statutory intent, less 

burdensome, and easier to understand, 

though they acknowledged that it would 

require institutions to count a single 

incident in more than one Clery Act 

crime category. Ultimately, the 

committee agreed to use the second 

approach as reflected in these proposed 

regulations. The negotiators noted, 

however, that institutions may opt to 

provide more detailed information as 

part of the annual security report about 

incidents of dating violence, domestic 

violence, and stalking on their 

campuses if they choose. Some 

institutions currently provide hate 

crime data in their annual security 

reports in a narrative or descriptive 

format instead of in a tabular format to 

provide more context for each crime. 

Similarly, we will permit institutions to 

present their statistical information for 

incidents of dating violence, domestic 

violence, and stalking in a narrative or 

descriptive format, as long as they 

include statistics for the three most 

recent calendar years, disclosed by 

geographic location and crime category. 

We remain concerned that the 

approach for reporting and disclosing 

the number of incidents of dating 

violence, domestic violence and stalking 

in these proposed regulations will not 

capture critical information about the 

relationship between the perpetrator 

and the victim. We believe it would be 

helpful for prevention and research 

purposes for the Clery Act statistics to 

reflect whether the victim was 

murdered by a spouse or other intimate 

partner. We invite comment on whether 

the approach in these proposed 

regulations should be modified to 

require institutions to identify the 

relationship between the perpetrator 

and the victim for some or all of the 

Clery Act crimes. 

We are also proposing these changes 

to reflect updates to the FBI’s UCR 

program definitions. The FBI has moved 

away from terminology characterizing 

sex offenses as ‘‘forcible’’ or 

‘‘nonforcible’’ to combat the suggestion 

that a sex offense has not occurred if 

physical force was not involved. 

Accordingly, we propose to remove the 

term ‘‘forcible’’ from the definitions in 

part 668. Additionally, under the 

proposed regulations, institutions 

would record any crime that meets the 

NIBRS definition of rape, sodomy, or 

sexual assault as a ‘‘rape’’ in their 

annual statistics. Historically, we have 

used the definitions in the NIBRS 

Edition of the UCR program because the 

definitions were more inclusive with 

respect to who could be a victim and 

what types of crimes would be 

considered than in the SRS. However, 

the FBI recently modernized the 

definition of ‘‘rape’’ in the SRS to 


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3There is one rare situation in which it is 

permissible for an institution to omit a Clery Act 

crime from its statistics. If, after fully investigating 

a reported crime, authorized law enforcement 

authorities make a formal determination that the 

crime is ‘‘unfounded’’ as described in the Handbook 

capture gender neutrality and the 

penetration of any bodily orifice, 

penetration by any object or body part, 

and offenses in which physical force is 

not involved. We believe, and the 

negotiators agreed, that using the new 

definition of rape would best capture 

the various types of behaviors and 

circumstances that are now understood 

to constitute rape, align the 

Department’s regulations with the 

approach taken by other Federal 

agencies, avoid overlap in the 

definitions that could cause doublecounting, and avoid using outdated 

terminology some may find offensive. 

We also note that the FBI does not 

consider ‘‘fondling’’ to meet the SRS 

definition of rape, so we are proposing 

that institutions must continue to report 

incidents of fondling separately. We 

would continue to use the NIBRS 

definition of ‘‘fondling,’’ as well as the 

NIBRS definitions of ‘‘statutory rape’’ 

and ‘‘incest,’’ but we would update the 

definitions of those terms to match the 

FBI’s revised definitions. 

Lastly, we are proposing to restructure 

paragraph (c) to improve the clarity of 

the regulations. First, we would add the 

term ‘‘primary crimes’’ in paragraph 

(c)(1) in order to provide a standard, 

simple way to refer to criminal 

homicide, sex offenses, robbery, 

aggravated assault, burglary, motor 

vehicle theft, and arson as a group. Law 

enforcement officials often refer to these 

as ‘‘part 1’’ crimes, while other 

individuals refer to these as ‘‘Clery 

crimes’’ or ‘‘main crimes.’’ We believe 

that providing a label for this group of 

crimes will make it easier for the 

Department to describe and explain 

these regulations to the public. Second, 

we would create a subparagraph 

specifically containing arrests and 

referrals for disciplinary action. We 

believe that this change will make it 

clearer to readers that this category is 

distinct from the primary crimes. We are 

also proposing to restructure the 

regulations to make it explicitly clear 

that arrests and referrals for disciplinary 

action are a distinct category of Clery 

Act crimes from the primary crimes. 

Third, we are proposing to create a 

subparagraph specifically containing the 

hate crimes that are reportable under the 

Clery Act, which would incorporate the 

primary crimes and the four additional 

crimes added by the HEOA. Lastly, we 

would create paragraph (c)(1)(iv) 

containing the crimes of dating 

violence, domestic violence, and 

stalking added by VAWA. We believe 

that the proposed structure clarifies that 

there are four categories of Clery Act 

crimes and makes it clear that the 

Hierarchy Rule only applies to the 

primary crimes. 

Recording Crimes Reported to a Campus 

Security Authority 

Statute: Section 485(f)(1)(F) of the 

HEA requires institutions to collect 

statistics concerning the occurrence on 

campus, in or on noncampus buildings 

or property, and on public property 

during the most recent calendar year, 

and during the two preceding calendar 

years for which data are available of 

certain criminal offenses and of dating 

violence, domestic violence, and 

stalking that are reported to campus 

security authorities or local police 

agencies. Additionally, section 

485(f)(12) of the HEA specifies that, for 

the purposes of reporting the statistics 

described in section 485(f)(1)(F) of the 

HEA, an institution must distinguish 

among whether the criminal offense 

occurred on campus, in or on a 

noncampus building or property, on 

public property, and in dormitories or 

other residential facilities for students 

on campus. 

Current Regulations: Section 

668.46(c)(1) of the regulations specifies 

that institutions must report statistics 

for the three most recent calendar years 

concerning the occurrence on campus, 

in or on noncampus buildings or 

property, and on public property of 

certain criminal offenses that are 

reported to local police agencies or 

campus security authorities. Section 

668.46(c)(2) requires institutions to 

record a crime statistic in its annual 

security report for the calendar year in 

which the crime was reported to a 

campus security authority. Section 

668.46(c)(4) requires institutions to 

provide a geographic breakdown of the 

statistics reported according to whether 

they occurred on campus, in 

dormitories or other residential facilities 

for students on campus, in or on a 

noncampus building or property, or on 

public property. 

Proposed Regulations: We propose to 

revise and reorganize § 668.46(c) to 

improve the clarity of these regulations 

and to incorporate changes made by 

VAWA. First, proposed § 668.46(c)(2), 

which modifies current § 668.46(c)(2), 

would clarify that institutions must 

include in their crime statistics all 

crimes reported to a campus security 

authority for purposes of Clery Act 

reporting. We would further clarify that 

an institution may not withhold, or 

subsequently remove, a reported crime 

from its crime statistics based on a 

decision by a court, coroner, jury, 

prosecutor, or other similar noncampus 

official. Additionally, we would specify 

that Clery Act reporting does not require 

initiating an investigation or disclosing 

identifying information about the 

victim, as that phrase is defined in 

section 40002(a) of the Violence Against 

Women Act of 1994 (42 U.S.C. 

13925(a)(20)). 

Second, proposed § 668.46(c)(3), 

which modifies current § 668.46(c)(2) 

(‘‘Recording crimes’’), would clarify that 

a reported crime is included in the 

statistics for the calendar year in which 

the crime was reported to local police 

agencies or to a campus security 

authority and would direct readers to 

proposed § 668.46(c)(6) for information 

about the regulations for recording 

stalking by calendar year. 

We would also direct readers to 

proposed § 668.46(c)(6) for information 

about recording stalking by location. 

Finally, we propose to revise, 

renumber, and expand current 

§ 668.46(c)(3) (‘‘Reported crimes if a 

hate crime’’). As noted earlier, we 

propose to add a definition of ‘‘hate 

crime’’ in § 668.46(a) and to remove the 

language describing a hate crime from 

§ 668.46(c)(3). We also propose to 

expand the categories of bias in 

§ 668.46(c)(4)(iii) and (vii) to include 

‘‘gender identity’’ and ‘‘national origin’’ 

to reflect the addition of these categories 

by VAWA. 

Reasons: We are proposing these 

changes to implement changes that 

VAWA made to the HEA, and to 

improve the overall clarity of these 

regulations. Over the last several years, 

the Department has stressed to 

institutions the importance of including 

all Clery Act crimes that are reported to 

campus security authorities in their 

statistics, regardless of whether an 

incident was reported by a victim or by 

a third party, and regardless of the 

results of any decision by a court, 

coroner, jury, prosecutor, or other 

similar noncampus official. Some 

negotiators reported that institutions 

have misunderstood the Clery Act 

reporting provisions to mean that they 

must begin to investigate a report of a 

crime or take other steps that may 

disclose identifying information about a 

victim before including the crime in 

their Clery Act statistics. While we have 

addressed these misperceptions in the 

Handbook and through other forms of 

guidance, we believe that adding a 

provision in the regulations to explicitly 

state that institutions must record all 

reported crimes will alleviate some of 

the confusion in the field.3


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for Campus Safety and Security Reporting, the 

institution may exclude the reported crime from its 

statistics. Consistent with other recordkeeping 

requirements that pertain to the title IV HEA 

programs, if an institution omits a Clery Act crime 

from its Clery Act statistics because the crime was 

officially determined to be ‘unfounded,’ the 

institution must maintain accurate documentation 

that demonstrates the basis for unfounding the 

crime. 

We are proposing to add crossreferences in paragraphs (c)(3)(ii) and 

(c)(5)(iii) to the regulations for recording 

stalking by calendar year and location to 

implement changes that VAWA made to 

the HEA. Please see the discussions 

under ‘‘Recording Stalking’’ for more 

information. 

Lastly, we are proposing to restructure 

paragraph (c) to make the regulations 

easier to understand. We believe that 

using subparagraph titles that more 

readily convey what each provision 

addresses and that minimizing 

confusing cross-references will help the 

public better understand and comply 

with these regulations. 

We are proposing to add ‘‘gender 

identity’’ and ‘‘national origin’’ to the 

list of categories of bias that apply for 

the purposes of hate crime reporting in 

paragraph (c)(4) in order to implement 

changes that VAWA made to the HEA. 

Recording Stalking 

Statute: As amended by VAWA, 

section 485(f)(1)(F)(iii) of the HEA 

requires institutions to report on, and 

disclose in their annual security reports, 

the number of incidents of dating 

violence, domestic violence, and 

stalking reported to campus security 

authorities or to local police agencies 

that occur on campus, in or on 

noncampus buildings or property, and 

on public property. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add § 668.46(c)(6) to clarify how 

institutions should record reports of 

stalking, which, under the proposed 

definition in § 668.46(a), involves a 

pattern of incidents. First, we would 

specify that, when recording reports of 

stalking that include activities in more 

than one calendar year, an institution 

must include stalking in the crime 

statistics only for the calendar year in 

which the course of conduct is first 

reported to a local police agency or to 

a campus security authority. If the 

course of conduct in a pattern continues 

into a subsequent year, the stalking 

would be recorded in the subsequent 

year as well. Second, we would clarify 

that an institution must record each 

report of stalking as occurring at only 

the first location within the institution’s 

Clery Geography in which either the 

perpetrator engaged in the stalking 

course of conduct or the victim first 

became aware of the stalking. Third, we 

would require that a report of stalking 

be counted as a new and distinct crime 

that is not associated with a previous 

report of stalking when the stalking 

behavior continues after an official 

intervention including, but not limited 

to, an institutional disciplinary action or 

the issuance of a no-contact order, 

restraining order, or any warning by the 

institution or a court. 

Additionally, as described under the 

Recording Crimes Reported to a Campus 

Security Authority section, we would 

add cross-references to this provision in 

proposed §§ 668.46(c)(3) and (c)(5) to 

direct readers to additional information 

pertaining to recording reports of 

stalking. 

Reasons: We are proposing these 

changes to implement the changes that 

VAWA made to the HEA and to address 

several challenges that arise when 

determining how to count incidents of 

stalking. As discussed under the 

Definitions section, we are proposing to 

define stalking as a pattern of behavior. 

This differs from the definitions of the 

other reportable crimes under the Clery 

Act, where each incident is counted as 

a unique crime for the purposes of the 

annual crime statistics. As a result, we 

need a regulation specifically to address 

how stalking should be considered in 

calculating crime statistics. 

For example, under both the current 

and the proposed regulations, an 

institution would typically record a 

statistic for a crime in the calendar year 

in which the crime occurred. With 

stalking, however, a pattern of behavior 

sometimes spans multiple weeks or 

months, and a pattern that begins in one 

calendar year may continue into another 

calendar year. Similarly, under both the 

current and proposed regulations, an 

institution would typically specify 

whether a crime occurred on campus 

(and, if so, whether it occurred in a 

dormitory or other student housing 

facility on campus), in or on a 

noncampus building or property, or on 

public property. With stalking, this rule 

does not always apply clearly. A 

perpetrator could engage in a single type 

of behavior or a variety of behaviors in 

multiple parts of the institution’s Clery 

Geography. Alternatively, the 

perpetrator could initiate stalking 

behavior in one part of the institution’s 

Clery Geography and the victim could 

become aware of that behavior while on 

another part of the institution’s Clery 

Geography. For instance, the perpetrator 

could send the victim a menacing text 

message while on campus, and the 

victim could receive that text message 

while walking on a public sidewalk 

across the street from the campus. 

Additionally, stalking poses challenges 

for identifying when one pattern has 

ended and another one has begun. For 

instance, a perpetrator might stalk a 

victim intensively over the course of 

two days, cease the behavior for a week, 

and then begin the stalking behavior 

again. 

The negotiators discussed these 

various challenges and how to best 

operationalize the new requirement in 

the HEA to collect statistics on stalking. 

First, some of the negotiators believed 

that stalking that includes activities in 

more than one calendar year should 

generally be included only in the 

statistics for the calendar year in which 

a local police agency or campus security 

authority first learns of the behaviors. 

While many negotiators agreed that this 

would be a reasonable approach, some 

believed that stalking that continues 

into subsequent calendar years should 

be included in the statistics for each 

year. These negotiators argued that this 

approach would be more appropriate 

because including stalking in only one 

year could artificially deflate the 

numbers of reported crimes. These 

negotiators said that while it would not 

be appropriate to include a separate 

report for each behavior within a course 

of conduct, at least including a statistic 

in each year in which the stalking 

occurs would provide a fuller picture of 

the stalking occurring on campus. 

Ultimately, the negotiating committee 

agreed to the approach reflected in these 

proposed regulations. Under the 

proposed regulations, stalking would be 

counted only in the first calendar year 

in which it is reported unless it 

continues into a new calendar year. For 

example, if a victim reports stalking to 

local police or a campus security 

authority in December 2014 and another 

report is made in February 2015, the 

institution would record the stalking in 

both calendar years 2014 and 2015. 

Although the committee reached 

consensus on this language, the 

Department is concerned that these 

proposed regulations are not clear and 

we request comment specifically on the 

issue of how to count stalking that 

crosses calendar years. 

Second, the negotiators discussed 

how to address issues related to the 

location of the stalking and how to 

determine when a pattern of behavior 

becomes reportable for Clery Act 

purposes. Some of the negotiators 

suggested that, for the purposes of 

counting reports of stalking, the 

Department should expand beyond the 

traditional physical locations that make 

up an institution’s reportable areas (i.e., 

on campus, noncampus buildings or 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
35438 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

property, and public property) to 

require institutions to count courses of 

conduct in which the perpetrator uses 

institutional computer networks, 

servers, or other services to stalk a 

victim. These negotiators believed that, 

given the unique nature of stalking, 

which frequently includes online means 

of targeting victims, these instances 

should be counted. Other negotiators 

disagreed, arguing that, under the HEA, 

only crimes that occur in the physical 

locations enumerated in the statute 

should be reported. Further, they 

believed that it would be difficult to 

define in the regulations a situation that 

does not touch the institution’s 

reportable locations. They 

acknowledged, however, that stalking 

would be included in the institution’s 

crime statistics as soon as one behavior 

in the course of conduct occurs in or on 

the institution’s campus, noncampus 

buildings or property, or public 

property. 

The negotiators also discussed how an 

institution should record stalking in 

terms of location for Clery reporting 

purposes. Generally, the negotiators felt 

that it was clear that if a stalking course 

of conduct appeared to have occurred in 

only one Clery Geography location (for 

example, the conduct occurred only on 

campus) then the crime would be 

included in the statistics for that area. 

However, some negotiators questioned 

how an institution should categorize a 

report of stalking that touches multiple 

reportable locations (for example, both 

on campus and public property). Along 

these lines, the negotiators considered 

how institutions should record the 

location of a report of stalking if both 

the perpetrator and the victim were in 

reportable, but different, locations. 

After discussing these issues, the 

negotiators reached consensus on the 

approach reflected in proposed 

§ 668.46(c)(6)(ii), which would require 

an institution to record each report of 

stalking as occurring in the first location 

in which either the perpetrator engaged 

in the stalking course of conduct, or the 

victim first became aware of the 

stalking. If a stalker uses institutional 

computer networks, servers, or other 

such electronic means to stalk a victim, 

the electronic stalking behavior would 

be reportable where the stalker makes 

use of these means while on Clery 

geography. In other words, the fact that 

a stalker uses institutional computer 

networks, servers, or other such 

electronic means to stalk a victim would 

not, automatically in and of itself, make 

the crime reportable under the Clery 

Act. We invite public comment on 

whether this approach of applying the 

existing Clery geography requirements 

to incidents of stalking using electronic 

means would adequately capture 

stalking that occurs at institutions. 

Third, the negotiators considered how 

to determine when one stalking course 

of conduct ends and another stalking 

course of conduct begins, particularly 

when the stalking involves the same 

victim and perpetrator. The committee 

discussed two main approaches— 

counting a report of stalking as a 

separate crime either after an official 

intervention or once a specified period 

of time has elapsed. The negotiators 

offered a variety of ways to define 

‘‘official intervention.’’ Some suggested 

defining official intervention to mean 

that someone at the institution with 

authority to take preventive action to 

stop the behavior notifies the 

perpetrator to cease the conduct, while 

others suggested that a victim’s request 

to the perpetrator to cease the conduct 

would be sufficient. Other negotiators 

believed that official intervention 

should include protection orders or 

restraining orders issued by a court. In 

considering these approaches, however, 

the negotiators and members of the 

public raised a variety of concerns, 

including that institutions might avoid 

intervening to avoid the risk of having 

to include another count of stalking in 

their statistics if the perpetrator reoffended after the intervention; that 

requiring a victim to contact their 

stalker to notify them to stop the 

behavior could cause a rapid escalation 

in violence; and that the means of 

intervention should be flexible to 

accommodate the ways in which a 

victim might prefer to handle a 

situation. 

As one approach to this issue, the 

negotiators discussed the possibility 

that an institution should record a new 

incident of stalking after a significant 

amount of time passes between stalking 

behaviors. Along these lines, some of 

the negotiators recommended specifying 

a bright-line period of time, such as two 

weeks or three months, after which an 

institution would record another 

instance of stalking in its statistics if the 

course of conduct continued. Other 

negotiators supported leaving a more 

flexible standard of ‘‘significant amount 

of time’’ or otherwise not specifying a 

standard period because they felt that 

some cases might be better evaluated on 

a case-by-case basis. Along these lines, 

some of the negotiators argued that any 

standard interval of time would be 

arbitrary and would not be able to 

accommodate all of the various patterns 

of stalking in a way that would produce 

an accurate report of the number of 

stalking crimes at a particular 

institution. 

Ultimately, the negotiators agreed to 

the approach reflected in these 

proposed regulations. Under these 

regulations, a stalking course of conduct 

would be recorded as a new crime for 

Clery Act statistical reports after an 

official intervention. ‘‘Official 

intervention’’ would be defined broadly 

to include formal and informal 

interventions and those initiated by 

institutional officials or a court. The 

proposed regulations do not include a 

specific time period as a way of marking 

the end of one incident of stalking and 

the start of another because any time 

frame would be arbitrary. The 

Department is particularly interested in 

feedback as to whether there are other 

ways to address this issue, and we 

invite comment on this. 

Lastly, the negotiators discussed how 

to count incidents of stalking when two 

campuses are involved; that is, when 

the victim is on one institution’s 

reportable locations and the perpetrator 

is on another institution’s reportable 

locations. Some negotiators expressed 

concern that, if both campuses reported 

the crime, the result would be a 

‘‘double-report’’ of the same incident. 

However, other negotiators noted that 

the main issue is not overreporting but 

underreporting and that it is important 

to reflect the crime in the statistics for 

each campus at which the stalking 

behavior or results occur. Under 

proposed § 668.46(c)(2), an institution 

would be required to include all 

reported crimes in its statistics. In 

applying this rule, if stalking were 

reported to a campus security authority 

at more than one campus, both 

institutions would have to include the 

stalking report in their Clery Act crime 

statistics. 

Using the FBI’s UCR Program and the 

Hierarchy Rule 

Statute: Section 485(f)(7) of the HEA 

specifies that the Clery Act statistics for 

murder; sex offenses; robbery; 

aggravated assault; burglary; motor 

vehicle theft; manslaughter; arson; 

arrests for liquor law violations, drugrelated violations, and weapons 

possession; larceny-theft; simple 

assault; intimidation and destruction; 

damage; or vandalism of property must 

be compiled in accordance with the 

definitions used in the FBI’s UCR 

program, and the modifications in those 

definitions as implemented pursuant to 

the Hate Crime Statistics Act. The 

statute does not address the use of other 

aspects of the FBI’s UCR program, such 

as the Hierarchy Rule. 

Current Regulations: Section 

668.46(c)(7) requires institutions to 

compile statistics for the crimes listed 


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Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 35439 

under current paragraphs 668.46(c)(1) 

and (c)(3) using the definitions of crimes 

provided in Appendix A to subpart D of 

part 668 and the FBI’s UCR Hate Crime 

Data Collection Guidelines and Training 

Guide for Hate Crime Data Collection. 

The regulations also specify that 

institutions must use either the UCR 

Reporting Handbook or the UCR 

Reporting Handbook: NIBRS Edition for 

guidance concerning the application of 

definitions and classification of crimes; 

however, the regulations require 

institutions to apply the UCR Reporting 

Handbook in determining how to report 

crimes committed in a multiple-offense 

situation. In a multiple-offense situation 

(when multiple crimes are committed in 

a single incident), the UCR Reporting 

Handbook would apply the Hierarchy 

Rule. Under the Hierarchy Rule, 

institutions would include in their 

statistics only the crime that ranks the 

highest in the Hierarchy. For example, 

if a victim is raped and then murdered 

during a single incident, the murder 

would be included in the institution’s 

Clery Act statistics, but the rape would 

not. 

Proposed Regulations: In proposed 

§ 668.46(c)(9), which modifies current 

§ 668.46(c)(7), we explicitly state that, in 

compiling and reporting Clery Act crime 

statistics, institutions must conform to 

the requirements of the Hierarchy Rule 

in the UCR Reporting Handbook. 

However, we also propose to create an 

exception to this requirement for 

situations in which a sex offense and a 

murder occur during the same incident. 

For example, if a victim is raped and 

murdered in a single incident, the 

institution would include both the rape 

and the murder in its statistics instead 

of including only the murder. 

Additionally, as discussed under the 

Definitions section, we propose to add 

a definition of ‘‘Hierarchy Rule’’ to 

§ 668.46(a). 

Reasons: We are proposing these 

changes to implement the changes that 

VAWA made to the HEA and to improve 

the clarity of the regulations. First, we 

believe that creating a narrow exception 

to the methodology used in the UCR 

Reporting Handbook in cases where an 

individual is the victim of both a sex 

offense and a murder reflects the goal of 

the changes that VAWA made to the 

HEA. In amending the Clery Act, 

Congress emphasized the importance of 

improving the reporting of sex offenses 

at institutions of higher education. To 

provide the most accurate picture 

possible of sexual assaults on college 

campuses, all sex offenses reported to 

campus security authorities must be 

included in the statistics. Without the 

proposed exception to the Hierarchy 

Rule, if both a sex offense and a murder 

occur in a single incident, the sex 

offense would not be reflected in the 

statistics. This result would be 

inconsistent with Congress’ goal. We 

note that it should be rare that this 

exception will apply, but we believe 

that it will contribute toward the goal of 

ensuring that all sexual assaults are 

included in the Clery Act statistics. 

Second, we believe that explicitly 

referring to the Hierarchy Rule in the 

regulations will improve the clarity of 

the regulations. Including this 

requirement in the regulations will help 

institutions understand how to compile 

their statistics. Further, we believe that 

defining the term ‘‘Hierarchy Rule’’ and 

specifying in the regulations how it 

applies will help members of the public 

to better understand the Clery Act 

requirements and statistics. 

Timely Warning—Withholding 

Identifying Information 

Statute: Section 485(f)(3) of the HEA 

requires institutions to make timely 

reports to the campus community on 

Clery Act crimes reported to campus 

security or local police agencies that 

pose a threat to other students and 

employees. These warnings must be 

provided in a manner that is timely and 

that aids in the prevention of similar 

crimes. VAWA amended section 

485(f)(3) of the HEA to specify that 

timely warnings must withhold the 

names of victims as confidential. 

Current Regulations: Section 

668.46(e)(1) requires institutions to 

notify the campus community when 

crimes in current paragraphs 

668.46(c)(1) and (3) are reported to 

campus security authorities or local 

police agencies, and the institution 

considers the crime to represent a threat 

to students and employees. The 

institution must provide the notice in a 

manner that is timely and that will aid 

in the prevention of similar crimes. 

Proposed Regulations: Proposed 

§ 668.46(e)(1), which modifies current 

§ 668.46(e)(1), would clarify that an 

institution must withhold as 

confidential the names and other 

‘‘personally identifying information or 

personal information’’ of victims (as 

defined in section 40002(a) of the 

Violence Against Women Act of 1994 

(42 U.S.C. 13925(a)(20))), when 

providing timely warnings. 

Reasons: We are proposing these 

changes to implement the change that 

VAWA made to the HEA in this area. 

During the negotiated rulemaking 

sessions, some of the negotiators raised 

concerns that withholding only the 

name of a victim might not sufficiently 

protect the victim’s confidentiality if 

others could still identify the victim 

based on other information included in 

the warning. Other negotiators, although 

generally supportive of this goal, noted 

that, in some cases, it could be difficult 

to provide enough information to allow 

other members of the campus 

community to take steps to protect 

themselves while withholding all 

information that could make it possible 

to identify the victim. 

We agree with the negotiators that it 

is critical to protect a victim’s 

confidentiality to the extent possible; 

however, the safety of the campus 

community must also be a priority. We 

believe that, in most cases, institutions 

will be able to provide a timely warning 

without including information that will 

identify the victim. 

We are proposing to adopt the 

definition of ‘‘personally identifying 

information or personal information’’ in 

section 40002(a)(20) of the Violence 

Against Women Act of 1994 (42 U.S.C. 

13925(a)(20)). That definition refers to 

identifying information for or about an 

individual including information likely 

to disclose the location of a victim of 

dating violence, domestic violence, 

sexual assault, or stalking, regardless of 

whether the information is encoded, 

encrypted, hashed, or otherwise 

protected, including: (1) A first and last 

name; (2) a home or other physical 

address; (3) contact information 

(including a postal, email or Internet 

protocol address, or telephone or 

facsimile number); (4) a social security 

number, driver license number, passport 

number, or student identification 

number; and (5) any other information, 

including date of birth, racial or ethnic 

background, or religious affiliation, that 

would serve to identify the individual. 

We acknowledge that, to provide an 

effective timely warning in some 

instances, an institution will have to 

provide information about the location 

of a crime or, in response to a hate 

crime, other information such as a 

victim’s racial or ethnic background or 

religious affiliation. In these cases, we 

stress that institutions should carefully 

consider the content of their timely 

warnings and protect the confidentiality 

of the victim to the extent possible 

while balancing the need to ensure the 

safety of the campus community. 

Programs To Prevent Dating Violence, 

Domestic Violence, Sexual Assault, and 

Stalking (§ 668.46(j)) 

Statute: Section 304(a)(5) of VAWA 

amended section 485(f)(8) of the HEA to 

require that each institution of higher 

education that participates in any title 

IV, HEA program, other than a foreign 

institution, include a statement of 


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policy in the institution’s annual 

security report regarding an institution’s 

programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking. In accordance with newly 

amended section 485(f)(8)(B) of the 

HEA, the statement of policy must 

specifically address education programs 

to promote the awareness of rape, 

acquaintance rape, dating violence, 

domestic violence, sexual assault, and 

stalking and must include primary 

prevention and awareness programs for 

all incoming students and new 

employees as well as ongoing 

prevention and awareness campaigns 

for students and faculty, respectively. 

Under new section 485(f)(8)(B)(i)(I) of 

the HEA, an institution’s primary 

prevention and awareness programs for 

all incoming students and new 

employees must include: 

• A statement that the institution of 

higher education prohibits the offenses 

of dating violence, domestic violence, 

sexual assault, and stalking; 

• The definition of dating violence, 

domestic violence, sexual assault, and 

stalking in the applicable jurisdiction; 

• The definition of consent, in 

reference to sexual activity, in the 

applicable jurisdiction; 

• 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 dating violence, domestic violence, 

sexual assault or stalking against a 

person other than that individual; 

• Information on risk reduction to 

recognize warning signs of abusive 

behavior and how to avoid potential 

attacks; and 

• The information in HEA sections 

485(f)(8)(B)(ii) through (vii) regarding: 

Possible sanctions or protective 

measures that an institution may impose 

following a final determination of an 

institutional disciplinary procedure; 

procedures victims should follow if a 

sex offense, dating violence, domestic 

violence, sexual assault, or stalking 

occurs (see the discussion under 

‘‘Annual Security Report’’ for full 

details on this subject); where 

applicable, the rights of victims and the 

institution’s responsibilities regarding 

orders of protection, no-contact orders, 

restraining orders, or similar lawful 

orders issued by a criminal, civil, or 

tribal court; procedures for institutional 

disciplinary action in cases of alleged 

dating violence, domestic violence, 

sexual assault or stalking (see the 

discussion under ‘‘Institutional 

Disciplinary Proceedings in Cases of 

Alleged Dating Violence, Domestic 

Violence, Sexual Assault, or Stalking’’ 

for full details on this subject); 

information about how the institution 

will protect the confidentiality of 

victims, including how publicly 

available recordkeeping will be 

accomplished without the inclusion of 

identifying information about the 

victim; written notification of students 

and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, and 

other services available for victims both 

on-campus and in the community; and 

written notification of victims about 

options for, and available assistance in, 

changing academic, living, 

transportation, and working situations, 

if requested by the victim and if such 

accommodations are reasonably 

available, regardless of whether the 

victim chooses to report the crime to 

campus policy or local law enforcement. 

Under new section 485(f)(8)(B)(i)(II) of 

the HEA, an institution’s ongoing 

prevention and awareness campaigns 

for students and faculty must include 

the same information covered by the 

institution’s primary prevention and 

awareness programs for all incoming 

students and new employees. 

Current Regulations: Under current 

§ 668.46(b)(11), an institution must 

prepare an annual security report that 

contains a statement of policy regarding 

the institution’s campus sexual assault 

programs to prevent sex offenses, and 

procedures to follow when a sex offense 

occurs. The statement must include a 

description of educational programs to 

promote the awareness of rape, 

acquaintance rape, and other forcible 

and nonforcible sex offenses. 

Proposed Regulations: Proposed 

§ 668.46(j) would implement the 

changes VAWA made to section 

485(f)(8) of the HEA with regard to 

programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking. Specifically, proposed 

§ 668.46(j) would require an institution 

to include a statement of policy in its 

annual security report that addresses the 

institution’s programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking. 

Proposed § 668.46(j)(1) would specify 

the items that must be included in the 

statement of policy, and proposed 

§ 668.46(j)(2) would define the terms 

used in the requirements for the 

statement of policy, discussed below 

under ‘‘Statement of Policy 

Requirements in Proposed 

§ 668.46(j)(1)’’ and ‘‘Definitions of 

Terms in Proposed § 668.46(j)(2),’’ 

respectively. Proposed § 668.46(j)(3) 

would specify that an institution’s 

programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking must include, at a minimum, 

the information described in paragraph 

(j)(1). 

Statement of Policy Requirements in 

Proposed § 668.46(j)(1) 

Under proposed § 668.46(j)(1)(i)(A) 

through (j)(1)(i)(F), the statement must 

include a description of the institution’s 

primary prevention and awareness 

programs for all incoming students and 

new employees, which in turn must 

include a statement that the institution 

prohibits the crimes of dating violence, 

domestic violence, sexual assault, and 

stalking; the definition of ‘‘dating 

violence,’’ ‘‘domestic violence,’’ ‘‘sexual 

assault,’’ and ‘‘stalking’’ in the 

applicable jurisdiction; the definition of 

‘‘consent,’’ in reference to sexual 

activity, in the applicable jurisdiction; a 

description of safe and positive options 

for bystander intervention; information 

on risk reduction; and the information 

described in § 668.46(b)(11) and (k)(2) of 

these proposed regulations. The 

information in proposed § 668.46(b)(11) 

consists of a statement of policy 

regarding the institution’s programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking 

and the procedures that the institution 

will follow when one of these crimes is 

reported. The information in proposed 

§ 668.46(k)(2) consists of a statement of 

policy that addresses procedures for 

institutional disciplinary action in cases 

of alleged dating violence, domestic 

violence, sexual assault or stalking. 

Under proposed § 668.46(j)(1)(ii), the 

statement of policy must also describe 

the institution’s ongoing prevention and 

awareness campaigns for students and 

employees, which must include the 

information described in paragraphs 

(j)(1)(i)(A) through (j)(1)(i)(F) of the 

proposed regulations. 

Definitions of Terms in Proposed 

§ 668.46(j)(2) 

Proposed § 668.46(j)(2) would define 

the terms ‘‘awareness programs’’, 

‘‘bystander intervention’’, ‘‘ongoing 

prevention and awareness campaigns’’, 

‘‘primary prevention programs’’, and 

‘‘risk reduction.’’ 

Under proposed § 668.46(j)(2)(i), the 

term ‘‘awareness programs’’ is defined 

to mean community-wide or audiencespecific programming, initiatives, and 

strategies that increase audience 

knowledge and share information and 

resources to prevent violence, promote 

safety, and reduce perpetration. 

Proposed § 668.46(j)(2)(ii) would 

define the term ‘‘bystander 

intervention’’ to mean safe and positive 

options that may be carried out by an 

individual or individuals to prevent 

harm or intervene when there is a risk 


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of dating violence, domestic violence, 

sexual assault, or stalking. Proposed 

§ 668.46(j)(2)(ii) would further define 

bystander intervention to include 

recognizing situations of potential harm, 

understanding institutional structures 

and cultural conditions that facilitate 

violence, overcoming barriers to 

intervening, identifying safe and 

effective intervention options, and 

taking action to intervene. 

Proposed § 668.46(j)(2)(iii) would 

define the term ‘‘ongoing prevention 

and awareness campaigns’’ to mean 

programming, initiatives, and strategies 

that are sustained over time and focus 

on increasing understanding of topics 

relevant to, and skills for addressing, 

dating violence, domestic violence, 

sexual assault, and stalking, using a 

range of strategies with audiences 

throughout the institution and including 

information described in paragraph 

proposed §§ 668.46(j)(1)(i)(A) through 

(j)(1)(i)(F). 

Proposed § 668.46(j)(2)(iv) would 

define the term ‘‘primary prevention 

programs’’ to mean programming, 

initiatives, and strategies informed by 

research or assessed for value, 

effectiveness, or outcome that are 

intended to stop dating violence, 

domestic violence, sexual assault, and 

stalking before they occur through the 

promotion of positive and healthy 

behaviors that foster healthy, mutually 

respectful relationships and sexuality, 

encourage safe bystander intervention, 

and seek to change behavior and social 

norms in healthy and safe directions. 

Under proposed § 668.46(j)(2)(v), the 

term ‘‘risk reduction’’ means options 

designed to decrease perpetration and 

bystander inaction and to increase 

empowerment for victims to promote 

safety and to help individuals and 

communities address conditions that 

facilitate violence. 

Reasons: The negotiators discussed 

these new provisions with a focus on 

who would need to receive this training 

and by what means, how several terms 

in the statute should be defined, and 

how to ensure that these programs 

reflect the best practices in the field of 

sexual violence prevention. At the end 

of the first session, the committee 

agreed to form a subcommittee to 

develop proposals regarding programs 

to prevent dating violence, domestic 

violence, sexual assault, and stalking. 

The subcommittee met several times to 

develop proposals for regulatory 

language on this issue. 

First, the negotiators discussed 

several practical questions with respect 

to the target audiences for these 

programs, whether these programs 

would be mandatory, and whether 

institutions could offer these programs 

through computer-based training 

modules. Noting that the statute 

requires institutions to provide primary 

prevention and awareness programs for 

incoming students and new employees, 

and ongoing prevention and awareness 

campaigns to students and faculty, the 

negotiators suggested clarifying who 

would be considered a ‘‘student’’ or an 

‘‘employee’’. Several negotiators also 

wondered if institutions were expected 

to provide prevention and awareness 

programs to distance education students 

and short-term, continuing education 

students. Some negotiators in particular 

were concerned that mandating this 

training for all students could pose a 

significant burden for institutions like 

community colleges, where many 

students take only non-credit courses 

and may be on campus only once for a 

single four-hour class. Along these lines, 

some negotiators were concerned that it 

would be very difficult to ensure that all 

students, including distance education 

students, have received training, 

particularly if the training had to be 

offered in person. From a victim’s 

perspective, one negotiator suggested 

that the programs should be available— 

but not mandatory—because the 

programs could be traumatizing for 

some victims. 

On the other hand, some negotiators 

believed strongly that every student, 

regardless of whether they are taking a 

class for credit, should be required to 

complete training, arguing that this type 

of training is critical because it focuses 

on violence that can destroy lives. They 

believed that these programs can be 

designed in a way that avoids retraumatization, and that it can support 

victims and non-victims by educating 

them about what is a crime and what 

rights and options exist. They further 

argued that anyone can be a victim of 

dating violence, domestic violence, 

sexual assault, or stalking, even if they 

are on campus briefly only one time, 

and that it would still be important for 

those individuals to know what rights 

and options they have and what 

procedures to follow with respect to 

these crimes, as outlined in the statute. 

In addressing these concerns, the 

Department decided to interpret the 

statute consistent with other Clery Act 

requirements by requiring institutions to 

offer these types of training to 

‘‘enrolled’’ students. Under §§ 668.41 

and 668.46, institutions must distribute 

the annual security report to all enrolled 

students. Applying that same approach 

here would make it clear that the same 

students who must receive the annual 

security report must also be offered the 

training. The Department’s regulations 

in 34 CFR § 668.2 define ‘‘enrolled’’ to 

mean a student who (1) has completed 

the registration requirements (except for 

the payment of tuition and fees) at the 

institution that he or she is attending; or 

(2) has been admitted into an 

educational program offered 

predominantly by correspondence and 

has submitted one lesson, completed by 

him or her after acceptance for 

enrollment and without the help of a 

representative of the institution. The 

negotiators agreed with this approach. 

In response to the discussion during 

the first negotiation session, the 

Department initially agreed to consider 

developing a definition of ‘‘employee’’ 

to clarify which individuals working for 

the institution would need to be offered 

training. However, we subsequently 

decided not to propose a definition of 

employee for several reasons. First, we 

note that institutions have had to 

distribute their annual security reports 

to their current employees under 

§§ 668.41 and 668.46 for many years, 

and we have not previously defined the 

term for those purposes. Therefore, 

institutions should know who they 

consider to be an employee for the 

purposes of the Clery Act, and we 

expect that these employees will now be 

offered the new training required by the 

HEA. Second, given the wide variety in 

arrangements and circumstances in 

place across institutions for providing 

services to students, other employees, 

and the public, we believe that 

institutions are best positioned to 

determine who is an ‘‘employee.’’ With 

regards to the requirement that 

institutions provide ongoing prevention 

and awareness campaigns to students 

and faculty, the negotiators generally 

agreed that the term ‘‘faculty’’ should be 

considered equivalent to ‘‘employee.’’ 

The proposed regulations in 

§ 668.46(j)(1)(ii) reflect this 

recommendation. 

The Department also noted that, while 

the statute requires institutions to 

describe the programs focused on 

prevention and awareness of rape, 

acquaintance rape, dating violence, 

domestic violence, sexual assault, and 

stalking in their annual security reports, 

it does not require that institutions 

require every student and employee to 

take the training. We note, however, that 

institutions may adopt policies 

requiring that all students and 

employees take this training, for 

example, before completing registration. 

With regard to the means of providing 

training, the negotiators ultimately 

agreed that programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking could be delivered 

electronically so the programs are able 


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to reach all of the intended audiences. 

They acknowledged that students 

enrolled in programs by distance 

education would be unlikely to be able 

to access these programs in person, and 

they noted that it could be similarly 

challenging to ensure that all employees 

receive this training in person as well. 

Second, the negotiators urged the 

Department to clarify several of the 

terms used in the statute, including 

‘‘primary prevention,’’ ‘‘bystander 

intervention,’’ and ‘‘risk reduction.’’ The 

subcommittee focused much of its work 

on defining these terms, drawing 

heavily on the work and definitions of 

the Centers for Disease Control and 

Prevention. Many of the negotiators 

supported the first set of suggestions 

that the subcommittee offered at the 

second negotiating session. They 

suggested that the regulations require 

institutions to adopt programs that 

reflect best practices and methods that 

have proven effective for the prevention 

of gender violence. Others, however, 

were concerned that the subcommittee’s 

proposals were more prescriptive than 

would be useful given the variety and 

size of institutions across the country. 

Some of the negotiators also believed 

that making the definitions simple and 

clear would help individuals and 

institutions better understand, and 

subsequently comply with, the 

regulations. 

The subcommittee continued to meet 

between the second and third sessions, 

and the draft that the Department 

provided to the committee at the start of 

the third session incorporated the 

subcommittee’s revisions. Generally, the 

revised proposal more closely tracked 

the statutory language and added a 

definition of ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking’’ to 

§ 668.46(a), as discussed under the 

Definitions section. The committee 

generally accepted the revised draft, 

though some changes were made to the 

language to address concerns raised by 

some of the negotiators. We note that, 

while the draft regulations generally 

restate the statutory language, 

institutions are free to go beyond these 

requirements, for example to include 

bystander intervention training on a 

variety of topics, such as alcohol and 

drug use, hazing, bullying, and other 

behaviors. We also note that institutions 

would not be required to provide 

bystander training separately on each 

crime of dating violence, domestic 

violence, sexual assault, and stalking 

and that they may provide training that 

focuses on all four crimes –- or more –- 

as part of a more comprehensive 

program. 

With regards to proposed 

§ 668.46(j)(3), we are adding this 

provision in order to make it clear that 

an institution’s ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking,’’ which 

under our proposed definition in 

§ 668.46(a) would include primary 

prevention and awareness programs and 

ongoing prevention and awareness 

campaigns, must include the 

information described in proposed 

paragraph (j)(1). 

Institutional Disciplinary Proceedings in 

Cases of Alleged Dating Violence, 

Domestic Violence Sexual Assault or 

Stalking (§ 668.46(k)) 

Statute: Section 304(a)(5) of VAWA 

amended section 485(f)(8) of the HEA to 

require that each institution of higher 

education that participates in any title 

IV, HEA program, other than a foreign 

institution, include a statement of 

policy in the institution’s annual 

security report addressing the 

procedures for institutional disciplinary 

action in cases of alleged dating 

violence, domestic violence, sexual 

assault, or stalking. The statement of 

policy must describe the standard of 

evidence that the institution will use 

during the proceeding as well as 

possible sanctions or protective 

measures that the institution may 

impose after a final determination is 

made. Section 304(a)(5) of VAWA 

amended section 485(f)(8)(iv) of the 

HEA to require an institution to include 

in its annual security report a clear 

statement that the institution’s 

disciplinary proceedings shall provide a 

prompt, fair, and impartial investigation 

and resolution that is conducted by 

officials who receive annual training on 

the issues related to dating violence, 

domestic violence, sexual assault, and 

stalking, and annual training on how to 

conduct an investigation and hearing 

process that protects the safety of 

victims and promotes accountability. 

Section 304(a)(5) further amended 

section 485(f)(8)(iv) of the HEA to 

require that the accuser and the accused 

be entitled to the same opportunities to 

have others present during an 

institutional disciplinary proceeding, 

including the opportunity to be 

accompanied to any related meeting or 

proceeding by an advisor of their choice 

and that both the accuser and the 

accused be simultaneously informed, in 

writing, of the outcome of any 

disciplinary proceeding; the 

institution’s procedures for both parties 

to appeal the results of the proceeding; 

of any change to the results that occurs 

prior to the results becoming final; and, 

when such results become final. 

Current Regulations: Under current 

§ 668.46(b)(11)(vi)(A), an institution 

must provide a clear statement in its 

annual security report that, in the 

institution’s campus disciplinary 

proceedings in cases of an alleged sex 

offense, the accuser and the accused are 

entitled to the same opportunities to 

have others present during a 

disciplinary proceeding. Current 

§ 668.46(b)(11)(vi)(B) requires that an 

institution’s annual security report 

clearly state that both the accused and 

the accuser must be informed of the 

outcome of any institutional 

disciplinary proceeding brought alleging 

a sex offense; that compliance with 

§ 668.46(b)(11)(vi)(B) does not constitute 

a violation of FERPA on the part of the 

institution; and, that, for purposes of 

this notification, the outcome of a 

disciplinary proceeding means only the 

institution’s final determination with 

respect to the alleged sex offense and 

any sanction that is imposed against the 

accused. Lastly, current 

§ 668.46(b)(11)(vii) requires an 

institution’s annual security report to 

clearly disclose the sanctions the 

institution may impose following a final 

determination of an institutional 

disciplinary proceeding regarding rape, 

acquaintance rape, or other forcible or 

nonforcible sex offenses. 

Proposed Regulations: The proposed 

regulations in § 668.46(k) would 

implement the statutory changes 

requiring an institution that participates 

in any title IV, HEA program, other than 

a foreign institution, to include a 

statement of policy in its annual 

security report addressing the 

procedures for institutional disciplinary 

action in cases of alleged dating 

violence, domestic violence, sexual 

assault or stalking. 

Proposed § 668.46(k)(1)(i) provides 

that the statement of policy must 

describe each type of disciplinary 

proceeding used by the institution, 

including the steps, anticipated 

timelines, and decision-making process 

for each, and how the institution 

determines which type of disciplinary 

hearing to use. Proposed 

§ 668.46(k)(1)(ii) provides that the 

statement of policy must describe the 

standard of evidence that will be used 

during any disciplinary proceeding 

involving alleged dating violence, 

domestic violence, sexual assault or 

stalking. Proposed § 668.46(k)(1)(iii) 

provides that the statement of policy 

must list all possible sanctions an 

institution may impose following the 

results of any disciplinary proceeding in 

cases of alleged dating violence, 

domestic violence, sexual assault or 

stalking. Proposed § 668.46(k)(1)(iv) 


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provides that the policy statement must 

describe the range of protective 

measures that the institution may offer 

following an allegation of dating 

violence, domestic violence, sexual 

assault or stalking. 

An institution’s statement of policy 

must provide that its disciplinary 

proceeding will include a prompt, fair, 

and impartial process from the initial 

investigation to the final result under 

proposed § 668.46(k)(2)(i). The policy 

statement must provide that the 

proceeding will be conducted by 

officials who receive annual training on 

the issues related to dating violence, 

domestic violence, sexual assault, and 

stalking and annual training on how to 

conduct an investigation and hearing 

process that protects the safety of 

victims and promotes accountability 

under proposed § 668.46(k)(2)(ii). Under 

proposed § 668.46(k)(2)(iii), an 

institution’s statement of policy must 

provide that its disciplinary proceeding 

will afford the accuser and the accused 

the same opportunities to have others 

present during an institutional 

disciplinary proceeding, including the 

opportunity to be accompanied to any 

related meeting or proceeding by an 

advisor of their choice. Under proposed 

§ 668.46(k)(2)(iv), an institution cannot 

limit the accuser’s or accused’s choice 

of an advisor or the advisor’s presence 

at a proceeding, but the institution may 

establish restrictions regarding the 

advisor’s participation in the 

proceedings as long as those restrictions 

are applied equally to both the accuser 

and the accused. Finally, under 

proposed § 668.46(k)(2)(v), an 

institution’s statement of policy must 

require simultaneous notification, in 

writing, to both the accuser and the 

accused of the result of the institutional 

disciplinary proceeding, the 

institution’s procedures for the accused 

and the victim to appeal the result, any 

change to the result, and when such 

results become final. 

Proposed § 668.46(k)(3) defines the 

terms ‘‘prompt, fair, and impartial 

proceeding,’’ ‘‘advisor,’’ ‘‘proceeding,’’ 

and ‘‘result.’’ Under proposed 

§ 668.46(k)(3)(i), a ‘‘prompt, fair, and 

impartial proceeding’’ includes a 

proceeding that is: (1) Completed within 

reasonably prompt timeframes 

designated by an institution’s policy, 

including a process that allows for the 

extension of timeframes for good cause 

with written notice to the accuser and 

the accused of the delay and the reason 

for the delay; (2) conducted in a manner 

that is consistent with the institution’s 

policies and transparent to the accuser 

and accused, includes timely notice of 

meetings at which the accuser or 

accused, or both, may be present, and 

provides timely access to the accuser, 

the accused, and appropriate officials to 

any information that will be used after 

the fact-finding investigation but during 

informal and formal disciplinary 

meetings and hearings; and (3) 

conducted by officials who do not have 

a conflict of interest or bias for or 

against the accuser or the accused. 

Under proposed § 668.46(k)(3)(ii), the 

term ‘‘advisor’’ is defined as any 

individual who provides the accuser or 

the accused support, guidance, or 

advice. 

Under proposed § 668.46(k)(3)(iii), the 

term ‘‘proceeding’’ means all activities 

related to a non-criminal resolution of 

an institutional disciplinary complaint, 

including, but not limited to, factfinding investigations, formal or 

informal meetings, and hearings. 

Finally, under proposed 

§ 668.46(k)(3)(iv), the term ‘‘result’’ 

means any initial, interim, and final 

decision by any official or entity 

authorized to resolve disciplinary 

matters within the institution. The 

definition provides that the ‘‘result’’ 

must include any sanctions imposed by 

the institution and, notwithstanding 

FERPA (20 U.S.C. 1232g), the rationale 

for the result and the sanctions. Having 

defined the term ‘‘result,’’ for 

consistency purposes the proposed 

regulations would also insert the word 

‘‘result’’ where appropriate to replace 

the existing statutory and regulatory 

references to the terms ‘‘outcomes,’’ 

‘‘resolution,’’ and ‘‘final 

determinations.’’. 

Reasons: Proposed § 668.46(k) would 

implement the statutory changes 

requiring each institution of higher 

education that participates in any title 

IV, HEA program, except foreign 

institutions, to include a statement of 

policy in the institution’s annual 

security report addressing the 

procedures for institutional disciplinary 

action in cases of alleged dating 

violence, domestic violence, sexual 

assault, or stalking. 

Definition of Terms in Proposed 

§ 668.46(k)(3) 

Proposed § 668.46(k)(3) defines the 

terms ‘‘prompt, fair, and impartial 

proceeding,’’ ‘‘advisor,’’ ‘‘proceeding,’’ 

and ‘‘result.’’ 

At the first session of negotiated 

rulemaking, several of the non-Federal 

negotiators asked that the Department 

define a ‘‘prompt, fair, and impartial’’ 

disciplinary proceeding in proposed 

§ 668.46(k). These negotiators requested 

that the Department consider including, 

as part of the definition, a provision that 

requires an institution’s disciplinary 

proceeding to mirror OCR’s title IX 

guidance, especially as that guidance 

relates to the use of the preponderance 

of the evidence standard in disciplinary 

proceedings used to resolve a title IX 

complaint. Other non-Federal 

negotiators suggested that VAWA was 

not intended to codify the required use 

of the preponderance of the evidence 

standard, but instead required only that 

an institution state the standard of 

evidence that will be used. 

In response to this request by nonFederal negotiators, the Department 

introduced proposed language defining 

the term ‘‘prompt, fair and impartial 

disciplinary proceeding’’ to mean a 

proceeding that is completed within the 

timeframe designated by an institution’s 

policy and without undue delay; 

conducted in a manner that is consistent 

with the institution’s policies and 

transparent to all parties; conducted by 

officials who do not have a real or 

perceived conflict of interest or bias for 

or against the accused or the accuser; 

and, at the request of non-Federal 

negotiators, at a minimum, comply with 

guidance issued by OCR. One nonFederal negotiator suggested that the 

Department eliminate the reference to a 

‘‘real or perceived’’ conflict of interest 

because the terms ‘‘real or perceived’’ 

are too subjective and would be difficult 

to operationalize at a small campus. 

Several non-Federal negotiators 

suggested using the standard of actual or 

potential conflict of interest instead. 

With regard to the requirement that a 

disciplinary hearing comply at a 

minimum with guidance issued by OCR, 

some non-Federal negotiators strongly 

supported the provision, while others 

were strongly opposed to including this 

provision. Those arguing against the 

inclusion of this provision stated that, 

in enacting VAWA, Congress did not 

require institutions to use the 

preponderance of the evidence standard 

under the Clery Act, but only required 

that an institution disclose what 

standard of evidence it would use at a 

disciplinary proceeding for conduct 

covered by the Clery Act. Still others 

were not comfortable with including in 

these proposed Clery Act regulations a 

reference to guidance issued by OCR 

under other laws and regulations. It was 

suggested that we cite the statutory 

language amending the Clery Act 

instead. One non-Federal negotiator 

voiced her view that title IX is largely 

interpreted judicially or by the 

Department, and that whether or not a 

provision requiring compliance with 

title IX in disciplinary hearings 

mandated under the HEA is included in 

the Clery Act regulations does not 

change title IX requirements. This view 


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is consistent with the Department’s 

explanation to the negotiators at the 

start of the rule-making that the Clery 

Act amendments and implementing 

regulations in no way affect or conflict 

with Title IX requirements, including 

those interpreted by OCR in its guidance 

documents. 

At the last session of negotiations, the 

Department presented amended draft 

language in § 668.46(k)(3)(i) defining a 

‘‘prompt, fair and impartial proceeding’’ 

to include a proceeding that is 

completed within a reasonable 

timeframe designated by the 

institution’s policy and without undue 

delay, and that is conducted in a 

manner that: (1) Is consistent with the 

institution’s policies and transparent to 

the accuser and accused; (2) includes 

timely notice to the accuser and accused 

of all meetings relevant to the 

proceeding; and (3) provides timely 

access to both the accuser and the 

accused to any information that will be 

used during the proceeding. These 

changes were met with general 

agreement from the non-Federal 

negotiators although several changes to 

the specific language were requested. 

The committee agreed to revise the 

regulations to permit an institution to 

exceed the timeframe in its policy for 

good cause with written notice to the 

accuser and the accused of the delay 

and the reason for the delay. This 

language was added in recognition that 

some delays are unavoidable. The 

proposed requirement for written notice 

of the delay and the reasons for the 

delay, however, is appropriate to ensure 

a fair proceeding. The Department also 

notes that, as it relates to 

§ 668.46(k)(3)(i)(B)(2), the phrase 

‘‘timely notice to the accuser and 

accused of all meetings relevant to the 

proceeding’’ is intended to ensure that 

the accuser and the accused have time 

to adequately prepare or to arrange to 

have an advisor present at all of these 

meetings, if they desire. 

At the third session, the negotiators 

continued to debate the Department’s 

draft language requiring an institution’s 

disciplinary proceedings to be 

conducted by officials who do not have 

a real or perceived conflict of interest or 

bias, for or against, the accuser or the 

accused. The committee decided to 

modify this language slightly by 

removing the words ‘‘real or perceived,’’ 

as reflected in proposed 

§ 668.46(k)(3)(i)(C); thus, the revised 

language addresses only those officials 

with an actual conflict of interest or 

bias. The concerns that a perceived 

conflict of interest may limit the 

officials who can conduct such hearings 

on small campuses or that some parties 

in a proceeding might abuse the rule by 

claiming that whoever is acting as the 

official is perceived to be biased 

convinced the committee to agree to this 

change. Although the prohibition is now 

limited to those officials who have a 

conflict of interest or bias, the 

Department expects that an institution 

will make every effort to ensure that 

officials conducting proceedings do not 

have a perceived conflict of interest or 

bias against either the accused or the 

accuser. 

The negotiators discussed defining 

who would be considered an ‘‘official’’ 

for the purposes of an institutional 

disciplinary proceeding to add clarity to 

the regulation. Some of the negotiators 

suggested specifying that students could 

be ‘‘officials’’ in this context, noting that 

at many institutions, students often 

serve as officials during a disciplinary 

proceeding. Other negotiators strongly 

disagreed with this practice, raising 

concerns that having students serve as 

officials during disciplinary proceedings 

calls into question the possibility of 

having a prompt, fair, and impartial 

process, and that it can result in revictimization of the accuser or 

secondary or vicarious traumatization 

for the student officials. These 

negotiators did not believe that a 

definition of ‘‘official’’ should include 

students. While the Department 

declined to add a definition of ‘‘official’’ 

to the proposed regulations, we stress 

that when an institution involves 

students in a disciplinary proceeding, 

the students are serving as officials of 

the institution during that proceeding 

and nothing about being a student 

changes that role. In that vein, we note 

that the requirements in proposed 

§ 668.46(k)(2)(ii) pertaining to training 

for officials and § 668.46(k)(3)(i)(C) 

pertaining to conflicts of interest in a 

disciplinary proceeding would apply to 

students as well as other individuals 

serving as officials during an 

institutional disciplinary proceeding. 

Lastly, after consideration of the 

discussion at the second session, the 

Department removed the reference to 

§ 668.46(k)(3)(i)(D) which would have 

required that, in order for an 

institution’s disciplinary proceeding to 

be considered prompt, fair, and 

impartial under the Clery Act, the 

proceeding must, at a minimum, comply 

with guidance issued by OCR. As the 

Department explained to the negotiators 

at the start of the rule-making, the Clery 

regulations address only an institution’s 

responsibilities under the Clery Act, and 

do not affect or conflict with the 

requirements under Title IX as 

interpreted by OCR in its guidance 

documents. In order to meet Clery Act 

requirements, as amended by VAWA, an 

institution must only state in its annual 

security report what standard of 

evidence it uses in its disciplinary 

proceedings regarding sexual assault, 

dating violence, domestic violence, and 

stalking. This Clery Act requirement 

does not conflict with the Title IX 

obligation to use the preponderance of 

the evidence standard in Title IX 

proceedings. A recipient can comply 

with Title IX and the Clery Act by using 

a preponderance of evidence standard 

in disciplinary proceedings regarding 

Title IX complaints and by disclosing 

this standard in the annual security 

report required by the Clery Act. 

Please see the section on Advisor of 

Choice below for a full discussion of the 

definition of ‘‘advisor.’’ 

Some non-Federal negotiators also 

indicated at the first session of 

negotiations that it would be helpful for 

the regulations to define the term 

‘‘proceeding’’ because institutions use a 

variety of approaches when conducting 

a disciplinary proceeding. In response 

to the discussion at the first session, the 

Department introduced draft regulations 

at the second session of negotiations 

defining the term ‘‘proceeding’’ to mean 

all activities related to the resolution of 

an institutional disciplinary complaint, 

including, but not limited to, factfinding investigations, formal or 

informal meetings, and hearings. The 

definition of ‘‘proceeding’’ was 

modified at the last session of 

negotiations to mean all activities 

related to a non-criminal resolution of 

an institutional disciplinary complaint, 

including, but not limited to, factfinding investigations, formal or 

informal meetings, and hearings to 

clarify that institutional disciplinary 

proceedings are not courts of law that 

resolve criminal matters. 

Lastly, at the first session of 

negotiated rulemaking the non-Federal 

negotiators requested that the 

Department develop proposed 

regulations in § 668.46(k) that would 

harmonize the terms ‘‘results,’’ 

‘‘outcomes,’’ ‘‘resolution,’’ and ‘‘final 

determinations,’’ with regard to an 

institution’s disciplinary proceeding 

because they found the interchangeable 

use of these terms confusing. In 

response to this request, the Department 

introduced draft language at the second 

session that defined the term ‘‘result.’’ 

As proposed in § 668.46(k)(3)(iv), 

‘‘result’’ was defined as an initial, 

interim, and final decision by any 

official or entity authorized to resolve 

disciplinary matters within the 

institution. The result must include any 

sanctions imposed by the institution. 


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The proposed definition of ‘‘result’’ 

was generally well-received, however, 

the negotiators debated whether to 

mandate the inclusion of the rationale 

for the result in the disclosure provided 

to the parties (and therefore in the 

definition) so that if an institution has 

an appeals process, the accused and the 

accuser will have a basis for the appeal. 

One non-Federal negotiator felt that 

including the rationale for the result in 

the proposed regulations would be 

contrary to the definition of ‘‘final 

results’’ in the Department’s FERPA 

regulations at 34 CFR 99.39. At the third 

and last session of negotiations, the 

Department introduced new draft 

language in § 668.46(k)(3)(iv) to amend 

the definition of ‘‘result’’ to require that, 

notwithstanding FERPA (20 U.S.C. 

1232g), the result must also include the 

reason for the result. The Department 

explained that the regulations under 

FERPA do not specifically address 

whether the permissible disclosure to 

the victim of the ‘‘final results’’ of a 

disciplinary proceeding with respect to 

a crime of violence or a non-forcible sex 

offense under 34 CFR 99.31(a)(13) and 

99.39 includes the reason for the result. 

However, the Department has decided 

that, in light of the increased disclosures 

and rights provided to the accuser under 

VAWA, including potentially the right 

to appeal if the institution’s procedures 

provide an appeal, it is vital that the 

accuser be informed of the reason for 

the result. A non-Federal negotiator, 

while agreeing that the reason for the 

result should be included in the 

definition of ‘‘result,’’ suggested that the 

definition should also include the 

rationale for the sanctions and the 

committee reached consensus on this 

additional language. 

General Institutional Disciplinary 

Proceedings in Proposed § 668.46(k)(1) 

As stated previously, section 304(a)(5) 

of VAWA amended section 485(f)(8) of 

the HEA to require that each institution 

of higher education that participates in 

any title IV, HEA program, other than a 

foreign institution, include a statement 

of policy in the institution’s annual 

security report addressing the 

procedures for institutional disciplinary 

action in cases of alleged dating 

violence, domestic violence, sexual 

assault, or stalking. As a result of the 

discussions at the first session of 

negotiations, the Department introduced 

draft language for § 668.46(k) that 

reflected all of the statutory changes 

outlined under the Statute heading. The 

draft language included new 

§ 668.46(k)(1)(i), which would require 

an institution to describe each type of 

disciplinary proceeding used by the 

institution; the steps, anticipated 

timelines, and decision-making process 

for each type of disciplinary proceeding; 

and how the institution determines 

which type of proceeding to use based 

on the circumstances of an allegation of 

dating violence, sexual assault, or 

stalking. This provision was included to 

provide greater transparency for 

students and the public around which 

types of disciplinary proceedings may 

be used, how the institution will 

determine which one is most 

appropriate to use, and what timelines 

and processes to expect for each one. 

At the last session of negotiated 

rulemaking, the committee reviewed 

revised draft language developed by the 

Department. A non-Federal negotiator 

suggested that the Department remove 

the words ‘‘in detail’’ from the 

description of each type of disciplinary 

proceeding used by an institution in 

§ 668.46(k)(1)(i). The same non-Federal 

negotiator suggested that the 

Department remove the words ‘‘reported 

incident of an alleged crime’’ and 

substitute the words ‘‘an allegation of 

dating violence, domestic violence, 

sexual assault, or stalking’’ in 

§ 668.46(k)(1)(i), (k)(1)(ii), and (k)(1)(iii) 

because institutions do not adjudicate 

crimes. After discussion, the committee 

agreed to these suggestions. 

The Department also included, in the 

draft language provided during the 

second negotiating session, a new 

§ 668.46(k)(1)(iii), which tracks newly 

amended section 485(f)(8)(B)(ii) of the 

HEA and requires that the institution 

describe the possible sanctions or 

protective measures that the institution 

may impose following the results of any 

institutional disciplinary procedure 

regarding these incidents. The 

negotiating committee’s discussion on 

this provision focused on whether the 

institution should provide the possible 

sanctions as opposed to a list of all 

sanctions that an institution may 

impose. Several non-Federal negotiators 

thought that providing an exhaustive 

list of sanctions would hamper an 

institution’s ability to strengthen 

sanctions or be innovative in imposing 

sanctions, while others felt that 

requiring an exhaustive list would 

require institutions to be more 

transparent about the types of sanctions 

they impose and permit students and 

employees to consider whether those 

sanctions are appropriate under the 

circumstances. 

At the last session, several nonFederal negotiators continued to argue 

against requiring an institution to list all 

sanctions because if only a small 

number of sanctions were imposed, 

disclosing such a list might trigger 

FERPA violations or a title IX 

complaint. Other non-Federal 

negotiators argued that if an institution 

is not required to list all possible 

sanctions, the institution may abuse its 

discretion and impose an 

inappropriately light sanction. One nonFederal negotiator pointed out that, 

since 2005, the Handbook has provided 

guidance suggesting that institutions list 

all sanctions imposed, meaning that 

listing all sanctions was not an entirely 

new approach. 

The committee debated whether to 

require an institution to describe the 

range of sanctions and protective 

measures rather than provide an 

exhaustive list to allow the institution to 

retain flexibility in providing a sanction 

or protective measure that may be 

unique to a certain situation. In 

response to the concerns that 

institutions should retain some 

flexibility, the Department noted that 

institutions have the authority to change 

their policies during the year, including 

after they publish their annual security 

report. In this case, if an institution 

changes its policies to include or 

remove sanctions during the year, the 

Department would expect the 

institution’s next annual security report 

to reflect the institution’s revised list of 

sanctions. Some of the non-Federal 

negotiators favored requiring an 

exhaustive list of sanctions, to ensure 

transparency, but a range of protective 

measures in order to preserve the 

confidentiality of a victim and also to 

preserve flexibility to provide ad hoc 

protective measures for victims. The 

committee ultimately agreed that 

sanctions for perpetrators and protective 

measures available to victims should be 

addressed in separate paragraphs at 

§§ 668.46(k)(1)(iii) and (k)(1)(iv) in this 

NPRM, which requires an institution to 

list all possible sanctions and a range of 

protective measures, respectively. 

Advisor of Choice 

As stated previously, section 304(a)(5) 

of VAWA amended section 485(f)(8)(iv) 

of the HEA to require that the accuser 

and the accused be entitled to the same 

opportunities to have others present 

during an institutional disciplinary 

proceeding, including the opportunity 

to be accompanied to any related 

meeting or proceeding by an advisor of 

their choice. At the first session of 

negotiated rulemaking, several nonFederal negotiators stated that the term 

‘‘advisor’’ should be defined and that 

the role of the advisor and the extent to 

which an advisor can participate in a 

disciplinary proceeding should be 

clearly delineated in the proposed 

regulations. Several non-Federal 


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negotiators argued that institutions 

should have discretion to limit who can 

accompany the parties involved in a 

disciplinary hearing and the extent to 

which such an advisor can participate. 

Other non-Federal negotiators stated 

that they believed that the statutory 

language entitles both the accuser and 

the accused to be accompanied to any 

meeting or proceeding by the advisor of 

their choice, and that proposed 

regulations should reflect that 

entitlement. 

At the second session of negotiations, 

the Department presented draft language 

for proposed § 668.46(k)(2)(iii) that 

would require an institution to provide 

the accuser and the accused with the 

same opportunities to have others 

present during any institutional 

disciplinary proceeding, including the 

opportunity to be accompanied to any 

related meeting or proceeding by the 

advisor of their choice. Based on the 

discussion of this topic in the first 

session, we also defined the term 

‘‘advisor’’ in § 668.46(k)(3)(ii) of the 

draft to mean an individual who 

provides the accused or accuser 

support, guidance, or advice. The draft 

regulations provided that an institution 

may not limit the choice of advisor for 

either party but that an institution could 

limit the extent to which an advisor may 

participate in the proceedings, such as 

restricting cross-examination of 

witnesses or prohibiting advisors from 

addressing the decision-maker, as long 

as the limits apply equally to both 

parties. Several non-Federal negotiators 

supported this approach and agreed 

with the Department’s view that the 

statutory language was intended to 

allow the accuser and the accused to 

have the advisor of their choice. Other 

non-Federal negotiators felt that 

allowing the accused or the accuser to 

bring an attorney to a disciplinary 

proceeding created an advantage for that 

party and would intimidate the party 

that chose not to bring an attorney or 

who could not afford to bring an 

attorney. Additionally, these nonFederal negotiators expressed concern 

that the presence of attorneys would 

change the tenor of institutional 

disciplinary proceedings. There was 

general agreement that an institution 

could place limits on the participation 

of an advisor; however, one non-Federal 

negotiator objected to the Department’s 

choice of the words ‘‘restricting crossexamination of witnesses’’ because of 

the concern that such language gave the 

impression, falsely, that disciplinary 

proceedings are criminal legal 

proceedings. 

The Department’s final draft 

regulation, presented at the third and 

last session, simplified the proposed 

definition of ‘‘advisor’’ in 

§ 668.46(k)(3)(ii) by defining the term to 

mean an individual who provides the 

accuser or accused support, guidance, or 

advice. The Department’s draft language 

moved substantive provisions from the 

prior definition of ‘‘advisor’’ into a new 

§ 668.46(k)(2)(iv) to provide that an 

institution may not limit the choice of 

advisor for either the accuser or the 

accused; however, the institution may 

establish restrictions regarding the 

extent to which the advisor may 

participate in the proceedings, as long 

as the restrictions apply equally to both 

parties. This change was intended to 

separate the definition of the term 

‘‘advisor’’ from the role the advisor 

plays in a disciplinary hearing. At the 

outset of the discussion of this issue, the 

Department made clear that its 

interpretation of the statutory language 

was that the accused and the accuser are 

entitled to an advisor of their choice, 

including an attorney. One non-Federal 

negotiator suggested that the 

Department add language to new 

§ 668.46(k)(2)(iv) to bar an institution 

from limiting the choice or presence of 

an advisor for either the accuser or the 

accused to make it clear that both 

parties in the proceeding are entitled to 

be accompanied by an advisor. Other 

non-Federal negotiators felt this was 

redundant given that § 668.46(k)(2)(iii) 

states that the accuser and the accused 

have the same opportunities to have 

others present during any institutional 

disciplinary proceeding, including the 

opportunity to be accompanied to any 

related meeting or proceeding by the 

advisor of their choice. The non-Federal 

negotiators expressed strong concerns 

on both sides of this issue. Several nonFederal negotiators characterized the 

restriction on an institution’s ability to 

limit the choice of an advisor as a 

significant change that would create a 

serious burden on institutions while 

others characterized the requirement as 

a long-overdue protection for victims of 

sexual violence. Ultimately, the 

negotiators agreed to the language in 

proposed § 668.46(k)(2)(iii), which 

would provide that the institution 

cannot limit the choice or presence of 

advisor for either the accuser or the 

accused in any meeting or institutional 

disciplinary proceeding. However, 

proposed § 668.46(k)(2)(iv) would allow 

institutions to establish restrictions 

regarding the extent to which the 

advisor may participate in the 

proceedings, as long as the restrictions 

apply equally to both parties. We note 

that the proposed definition of 

‘‘advisor’’ to mean someone who 

provides the accuser or accused 

support, guidance, or advice is not 

intended to include individuals acting 

as interpreters or translators. For 

example, a victim with limited English 

proficiency involved in a campus 

disciplinary proceeding who requires an 

interpreter to understand the 

proceedings would still be entitled to 

bring an advisor of their choice. 

Training for Disciplinary Proceeding 

Officials 

The non-Federal negotiators debated 

the merits of including regulatory 

standards for the training that officials 

who conduct disciplinary proceedings 

must receive during the first session of 

negotiations. There was strong 

agreement that such training is 

necessary but that the training content 

should be flexible to reflect the diversity 

of institutional environments, that it 

should incorporate existing evidencebased research or practice, and that it 

should emphasize the need for both 

impartiality and sensitivity in dealing 

with the accused and the accuser. 

Several non-Federal negotiators 

questioned whether standards for 

training should be included in the 

Handbook or other best practices 

document as opposed to the proposed 

regulations. The subcommittee formed 

to further explore the issue of 

prevention and awareness programs 

agreed to add the topic of training on 

disciplinary proceedings to its agenda 

and report back to the negotiated 

rulemaking committee on their findings 

in the second session. 

At the second negotiated rulemaking 

session, the subcommittee that was 

formed to address prevention and 

awareness programs as well as training 

on disciplinary hearings shared with the 

whole committee a list of training 

standards they had developed for 

officials who conduct disciplinary 

proceedings. Although the list was 

comprehensive and well-received, it 

was the general feeling of the negotiated 

rulemaking committee that such a list 

should be included in a best practices 

document or the Handbook rather than 

the proposed regulations because the 

level of detail went beyond the scope of 

the Department’s rulemaking authority. 

Notification of Disciplinary Proceeding 

Results 

As stated previously, section 304(a)(5) 

of VAWA amended section 485(f)(8)(iv) 

of the HEA to require that both the 

accuser and the accused be 

simultaneously informed, in writing, of 

the outcome of any disciplinary 

proceeding; the institution’s procedures 

for both parties to appeal the results of 


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the proceeding; of any change to the 

results that occurs prior to the results 

becoming final, and when such results 

become final. There was general 

agreement during the first session of 

negotiations that there should be 

flexibility in how institutions 

implement this requirement. The 

Department noted that it generally 

interprets the term ‘‘in writing’’ to mean 

either a hard copy document or an 

electronic document. Some non-Federal 

negotiators outlined a variety of 

approaches that they thought 

institutions could take when notifying 

the accuser and the accused of the 

outcome, including providing hard copy 

documents in back-to-back in-person 

meetings or at separate meetings 

scheduled at the same time but in a 

different location so that the parties are 

separated, sending letters by 

simultaneous email to the accuser and 

the accused, or mailing letters to both 

the accuser and the accused at the same 

time. The Department indicated its 

support for a flexible approach. During 

the first session of negotiations, the nonFederal negotiators also debated 

whether the statute required schools to 

have an appeals process or simply 

required the institution to disclose the 

existence of an appeals process, if the 

institution allowed appeals. 

The draft regulatory language that the 

Department presented at the second 

session included a provision reflecting 

statutory language that an institution 

must require simultaneous notification, 

in writing, to both the accuser and the 

accused, of the result of any 

institutional disciplinary proceeding 

that arises from an allegation of 

domestic violence, dating violence, 

sexual assault, or stalking and the 

institution’s procedures for the accused 

and the victim to appeal the result of the 

institutional disciplinary proceeding, if 

such procedures are available. The 

Department considered including a 

requirement that institutions provide for 

an appeal process but decided that such 

a requirement is not supported by the 

statute. One non-Federal negotiator 

expressed concern that the proposed 

regulations may be interpreted as 

requiring that a police incident report 

may have to be included in the final 

result of a disciplinary proceeding. The 

Department assured the negotiator that 

the regulations were not intended to 

require an incident report to be part of 

the final result. Another non-Federal 

negotiator was concerned that the 

language did not allow a victim to opt 

out of receiving the final results while 

several other negotiators felt that 

notifying victims of the outcome should 

always be required. 

In its draft regulations presented to 

the committee during the third session, 

the Department proposed a new 

provision in § 668.46(k)(2)(v)(A), which 

would exempt an institution from the 

requirement that it simultaneously 

notify, in writing, both the accuser and 

the accused of the result of a 

disciplinary proceeding if the accuser or 

the accused requested not to be 

informed of the result. This draft 

language was strongly criticized by 

several members of the committee 

because they believed that requiring 

notification was an important part of the 

process for victims, who sometimes 

have been left in the dark as to the result 

of a disciplinary proceeding. These 

committee members recognized that 

some victims might not want to actually 

view the results, but they suggested that 

there are ways in which an institution 

could send the victim the results, such 

as in a sealed envelope, which would 

allow the victim to make the decision of 

whether or not to view them. For these 

reasons, the Department agreed to 

remove the provision. 

Anti-Retaliation Clause 

Statute: Section 488(e)(3) of the 

HEOA added section 485(f)(17) to the 

HEA to specify that nothing in the Clery 

Act could be construed to permit an 

institution or an officer, employee, or 

agent of an institution, participating in 

any title IV program to retaliate, 

intimidate, threaten, coerce, or 

otherwise discriminate against any 

individual with respect to the 

implementation of any provision under 

the Clery Act. 

Current Regulations: None. 

Proposed Regulations: We propose to 

add § 668.46(m) to prohibit retaliation 

by specifying that ‘‘an institution or an 

officer, employee, or agent of an 

institution, may not retaliate, 

intimidate, threaten, coerce, or 

otherwise discriminate against any 

individual for exercising their rights or 

responsibilities under any provision in 

this section.’’ 

Reasons: The Department had not 

previously reflected the statutory 

provision regarding anti-retaliation in 

the regulations. Over the last several 

years, however, the Department has 

received requests to incorporate this 

provision into the regulations to make 

the regulations more complete. As a 

result, we are proposing to add this 

provision to the regulations, to reflect 

these statutory requirements. 

Executive Orders 12866 and 13563 

Regulatory Impact Analysis 

Introduction 

Institutions of higher education that 

participate in the Federal student 

financial aid programs authorized by 

title IV of the HEA are required to 

comply with the Clery Act. According to 

the most current IPEDS data, a total of 

7,508 institutions were participating in 

title IV programs in 2012. The 

Department reviews institutions for 

compliance with the Clery Act and has 

imposed fines for significant noncompliance. The Department expects 

that these proposed changes will be 

beneficial for students, prospective 

students, and employees, prospective 

employees, the public and the 

institutions themselves. 

Under Executive Order 12866, the 

Secretary must determine whether this 

regulatory action is ‘‘significant’’ and, 

therefore, subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may— 

(1) Have an annual effect on the 

economy of $100 million or more, or 

adversely affect a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities in a material way (also 

referred to as an ‘‘economically 

significant’’ rule); 

(2) Create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

stated in the Executive order. 

This proposed regulatory action is a 

significant regulatory action subject to 

review by OMB under section 3(f) of 

Executive Order 12866. 

We have also reviewed these 

regulations under Executive Order 

13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

upon a reasoned determination that 

their benefits justify their costs 

(recognizing that some benefits and 

costs are difficult to quantify); 


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35448 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are issuing these proposed 

regulations only on a reasoned 

determination that their benefits would 

justify their costs. In choosing among 

alternative regulatory approaches, we 

selected those approaches that 

maximize net benefits. Based on the 

analysis that follows, the Department 

believes that these proposed regulations 

are consistent with the principles in 

Executive Order 13563. 

In accordance with both Executive 

orders, the Department has assessed the 

potential costs and benefits, both 

quantitative and qualitative, of this 

regulatory action. The potential costs 

associated with this regulatory action 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the Department’s 

programs and activities. 

This Regulatory Impact Analysis is 

divided into five sections. The ‘‘Need 

for Regulatory Action’’ section discusses 

why these implementing regulations are 

necessary to define terms and improve 

upon the methods by which institutions 

count crimes within their Clery 

geography. 

The ‘‘Discussion of Costs and 

Benefits’’ section considers the cost and 

benefit implications of these regulations 

for students and institutions. There 

would be two primary benefits of the 

proposed regulations. First, we expect 

students and prospective students and 

employees and prospective employees 

to be better informed and better able to 

make choices in regards to higher 

education attendance and employment 

because the proposed regulations would 

improve the method by which crimes on 

campuses are counted and reported. 

Second, we would provide further 

clarity on students’ and employees’ 

rights and procedures by requiring 

institutions to design and disclose 

policies and institutional programs to 

prevent sexual assault. 

Under ‘‘Net Budget Impacts,’’ the 

Department presents its estimate that 

the final regulations would not have a 

significant net budget impact on the 

Federal government. 

In ‘‘Alternatives Considered,’’ we 

describe other approaches the 

Department considered for key 

provisions of the proposed regulations, 

including definitions of ‘‘outcomes,’’ 

‘‘initial and final determinations,’’ 

‘‘resolution,’’ ‘‘dating violence,’’ 

‘‘employees,’’ ‘‘consent,’’ and ‘‘sodomy 

and sexual assault with an object.’’ 

The ‘‘Initial Regulatory Flexibility 

Analysis’’ considers the effect of the 

proposed regulations on small entities. 

Finally, the ‘‘Clarity of the 

Regulations’’ provides guidance to 

commenters when reviewing the 

proposed regulations for ease of 

understanding. 

Need for Regulatory Action 

Executive Order 12866 emphasizes 

that ‘‘Federal agencies should 

promulgate only such regulations as are 

required by law, are necessary to 

interpret the law, or are made necessary 

by compelling public need, such as 

material failures of private markets to 

protect or improve the health and safety 

of the public, the environment, or the 

well-being of the American people.’’ In 

this case, there is indeed a compelling 

public need for regulation. The 

Department’s goal in regulating is to 

incorporate the provisions in VAWA 

into the Department’s Clery Act 

regulations. 

On March 7, 2013, President Obama 

signed VAWA into law. Among other 

provisions, this law amended the Clery 

Act. The statutory changes made by 

VAWA require institutions to compile 

statistics for certain crimes that are 

reported to campus security authorities 

or local police agencies including 

incidents of dating violence, domestic 

violence, sexual assault, and stalking. 

Additionally, institutions will be 

required to include certain policies, 

procedures, and programs pertaining to 

these crimes in their annual security 

reports. 

During the negotiated rulemaking 

process, non-Federal negotiators 

discussed issues relating to the new 

provisions in the Clery Act addressing 

dating violence, domestic violence, 

sexual assault and stalking including: 

• Methods of compiling statistics of 

incidents that occur within Clery 

geography and are reported to campus 

security authorities. 

• Definitions of terms. 

• Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking. 

• Procedures that will be followed 

once an incident of these crimes has 

been reported, including a statement of 

the standard of evidence that will be 

used during any institutional 

disciplinary proceeding arising from the 

report. 

• Educational programs to promote 

the awareness of dating violence, 

domestic violence, sexual assault, and 

stalking, which shall include primary 

prevention and awareness programs for 

incoming students and new employees, 

as well as ongoing prevention and 

awareness programs for students and 

faculty. 

• The right of the accuser and the 

accused to have an advisor of their 

choice present during an institutional 

disciplinary proceeding. 

• Simultaneous notification to both 

the accuser and the accused of the 

outcome of the institutional disciplinary 

proceeding. 

• Informing victims of options for 

victim assistance in changing academic, 

living, transportation, and working 

situations, if requested by the victim 

and such accommodations are 

reasonably available, regardless of 

whether the victim chooses to report the 

crime to campus police or local law 

enforcement. 

As a result of these discussions, the 

proposed regulations would require 

institutions to compile statistics for 

certain crimes (dating violence, 

domestic violence, sexual assault, and 

stalking) that are reported to campus 

security authorities or local police 

agencies. Additionally, institutions 

would be required to include certain 

policies, procedures, and programs 

pertaining to these crimes in their 

annual security reports (ASRs). 

The purpose of the disclosures 

required by the Clery Act is to give 

prospective and current students 

information to help them make 

decisions about their potential or 

continued enrollment in a 

postsecondary institution. Prospective 


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and current students and their families, 

staff, and the public use the information 

to assess an institution’s security 

policies and the level and nature of 

crime on its campus. Institutions are 

required to disclose this data to 

students, employees, and prospective 

students and employees and to provide 

the crime statistics to the Department, 

which then makes it available to the 

public. 

Discussion of Costs and Benefits 

A benefit of these proposed 

regulations is that they would 

strengthen the rights of students and 

employees in connection with reported 

incidents of dating violence, domestic 

violence, sexual assault, and stalking. 

Institutions would be required to collect 

statistics for crimes reported to campus 

security authorities and local police 

agencies that involve incidents of dating 

violence, domestic violence, sexual 

assault, and stalking. This would 

improve crime reporting. In addition, 

students, prospective students, families, 

and employees and potential employees 

of the institutions, would be better 

informed about each campus’s safety 

and procedures. 

These proposed regulations would 

require institutions to include in their 

annual security report information 

about the institution’s policies and 

programs to prevent sexual assault, 

which would cover programs that 

address dating violence, domestic 

violence, sexual assault, and stalking. 

This information would help students 

and employees understand these rights 

and procedures. Prevention and 

awareness programs for all new students 

and employees, as well as ongoing 

prevention and awareness campaigns 

for enrolled students and faculty would 

be beneficial in providing additional 

information to students and employees. 

The revised provisions related to 

institutional disciplinary proceedings in 

cases of alleged dating violence, 

domestic violence, sexual assault, and 

stalking would protect the accuser and 

the accused by ensuring an equal 

opportunity to have an advisor at 

meetings and proceedings, an equal 

right to appeal if appeals are available, 

and the right to learn of the outcome of 

the proceedings, including the rationale. 

Accusers would gain the benefit of a 

required written explanation of their 

rights and options, including 

information about the possible sanctions 

an institution may impose on 

perpetrators and the range of protective 

measures an institution may make 

available to victims. 

Institutions would largely bear the 

costs of these proposed regulations, 

which would fall into two categories: 

Paperwork costs of complying with the 

regulations, and other compliance costs 

that institutions may incur as they 

attempt to improve security on campus. 

Under the proposed regulations, 

institutions would have to include in 

the annual security report, descriptions 

of the primary prevention and 

awareness programs offered for all 

incoming students and new employees 

and descriptions of the ongoing 

prevention and awareness programs 

provided for enrolled students and 

employees. To comply, some 

institutions may need to create or 

update material about the availability of 

prevention programs while others may 

already provide sufficient information. 

Awareness and prevention programs 

can be offered in a variety of formats, 

including electronically, so the costs of 

any changes institutions would make in 

response to the proposed regulations 

could vary significantly and the 

Department has not attempted to 

quantify additional costs associated 

with awareness and prevention 

programs. 

Another area in which institutions 

could incur costs related to the 

proposed regulations involves 

institutional disciplinary proceedings in 

cases of alleged dating violence, 

domestic violence, sexual assault, or 

stalking. Institutions will be required to 

have a policy statement describing the 

proceedings that would have to describe 

the standard of evidence that applies; 

the possible sanctions; that the accused 

and the accuser will have an equal right 

to have others present, including 

advisors of their choice; and that written 

notice of the outcomes of the 

proceedings would be given 

simultaneously to both the accused and 

the accuser. The proceedings would be 

conducted by officials who receive 

annual training on issues related to 

dating violence, domestic violence, 

sexual assault, and stalking as well as 

training on how to conduct 

investigations and hearings in a way to 

protect the safety of victims. Depending 

upon their existing procedures, some 

institutions may have to make changes 

to their disciplinary proceedings. The 

Department has not attempted to 

quantify those potential additional 

costs, which could vary significantly 

amongst institutions. 

In addition to the costs described 

above, institutions would incur costs 

associated with the reporting and 

disclosure requirements of the proposed 

regulations. This additional workload is 

discussed in more detail under the 

Paperwork Reduction Act of 1995 

section. We expect this additional 

workload would result in costs 

associated with either the hiring of 

additional employees or opportunity 

costs related to the reassignment of 

existing staff from other activities. 

Under the proposed regulations, these 

costs would involve updating the 

annual security reports; changing crime 

statistics reporting to capture additional 

crimes, categories of crimes, 

differentiation of hate crimes, and 

expansion of categories of bias reported; 

and the development of statements of 

policy about prevention programs and 

institutional disciplinary proceedings. 

In total, the proposed regulations are 

estimated to increase paperwork burden 

on institutions participating in the title 

IV, HEA programs by 77,725 hours 

annually. The monetized cost of this 

additional paperwork burden on 

institutions, using wage data developed 

using BLS data available at: 

www.bls.gov/ncs/ect/sp/ecsuphst.pdf, is 

$2,840,849. This cost was based on an 

hourly rate of $36.55 for institutions. 

Given the limited data available, the 

Department is particularly interested in 

comments and supporting information 

related to the estimated burden 

stemming from the proposed 

regulations. Estimates included in this 

notice will be reevaluated based on any 

information received during the public 

comment period. 

Net Budget Impacts 

The proposed regulations are not 

estimated to have a significant net 

budget impact in the title IV, HEA 

student aid programs over loan cohorts 

from 2014 to 2024. Consistent with the 

requirements of the Credit Reform Act 

of 1990, budget cost estimates for the 

student loan programs reflect the 

estimated net present value of all future 

non-administrative Federal costs 

associated with a cohort of loans. (A 

cohort reflects all loans originated in a 

given fiscal year.) 

In general, these estimates were 

developed using the Office of 

Management and Budget’s (OMB) Credit 

Subsidy Calculator. The OMB calculator 

takes projected future cash flows from 

the Department’s student loan cost 

estimation model and produces 

discounted subsidy rates reflecting the 

net present value of all future Federal 

costs associated with awards made in a 

given fiscal year. Values are calculated 

using a ‘‘basket of zeros’’ methodology 

under which each cash flow is 

discounted using the interest rate of a 

zero-coupon Treasury bond with the 

same maturity as that cash flow. To 

ensure comparability across programs, 

this methodology is incorporated into 

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35450 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

wide to develop estimates of the Federal 

cost of credit programs. Accordingly, 

the Department believes it is the 

appropriate methodology to use in 

developing estimates for these 

regulations. 

We are not estimating that the 

proposed regulations will have a net 

budget impact on the title IV aid 

programs. We assume that institutions 

will generally continue to comply with 

Clery Act reporting requirements and 

such compliance has no net budget 

impact on the title IV aid programs. In 

the past, the Department has imposed 

fines on institutions that violate the 

Clery Ac but those fines do not have a 

net budget impact. Therefore, we 

estimate that the proposed regulations 

will have no net budget impact on the 

title IV, HEA programs. 

Alternatives Considered 

The Department determined that 

regulatory action was needed in order to 

implement the changes made to the 

Clery Act by VAWA, reflect the 

statutory language in the regulations 

and make some technical and clarifying 

changes to the Department’s existing 

Clery Act regulations. 

During the development of the 

proposed regulations, a number of 

different approaches to implement the 

amendments made to the Clery Act were 

discussed by the Department during the 

negotiated rulemaking process. Some of 

these approaches included the addition 

of clarifying definitions for ‘‘outcomes,’’ 

‘‘initial and final determinations,’’ 

‘‘resolution,’’ ‘‘dating violence,’’ 

‘‘employees,’’ ‘‘consent,’’ and ‘‘sodomy 

and sexual assault with an object.’’ 

These alternative approaches are 

discussed below. 

Definitions of Outcomes, Initial and 

Final Determinations, and Resolution 

The Department considered 

harmonizing the terms, ‘‘outcomes’’, 

‘‘initial and final determinations’’, and 

‘‘resolution’’, used throughout the Clery 

Act regulations for internal consistency 

and to provide clarity for institutions. 

These terms are often being used 

interchangeably, along with the term 

‘‘results.’’ The Department considered 

an alternative definition of ‘‘outcomes’’ 

as one or more parts of the results. The 

Department also considered an 

alternative definition of ‘‘initial and 

final determinations,’’ which would 

have defined the term ‘‘initial 

determinations’’ to include those 

decisions made before the appeals 

process, if the institution had such 

process. A ‘‘final determination’’ would 

be the decision made after the appeals 

process had been completed. Adding a 

definition of the term ‘‘resolution’’ was 

also considered by the Department. The 

Department ultimately decided to use 

the term ‘‘results’’ in the proposed 

regulations to refer to the initial, 

interim, and final decisions. 

Alternative Definition of Dating 

Violence 

The Department considered several 

alternatives to the definition of ‘‘dating 

violence.’’ The inclusion of emotional 

and psychological abuse, along with 

sexual and physical abuse, was 

considered. The Department decided to 

include only sexual or physical abuse or 

the threat of such abuse in the 

definition. The Department decided that 

some instances of emotional and 

psychological abuse do not rise to the 

level of ‘‘violence’’ which is part of the 

statutory definition of the term ‘‘dating 

violence’’ under VAWA. The 

Department also has concerns over 

implementation by campus security 

authorities of a definition of the term if 

it included these forms of abuse. 

The Department also considered how 

to define ‘‘dating violence’’ as a crime 

for Clery Act purposes when it may not 

be a crime in some jurisdictions. To 

address this concern, the Department 

added a statement that any incident 

meeting the definition of ‘‘dating 

violence’’ was considered a crime for 

the purposes of Clery Act reporting. 

Definitions of Employees 

The Department considered adding a 

definition of ‘‘employee’’ to the 

proposed regulations. Some negotiators 

requested that the Department define 

this term to provide clarity to 

institutions. The Department decided 

not to define this term, however, since 

the existing regulations already 

effectively require institutions to 

determine who current employees are 

for the purposes of distributing their 

annual security reports. 

Definition of Consent 

The Department considered adding a 

definition of ‘‘consent’’ for the purposes 

of the Clery Act to the proposed 

regulations. Some negotiators indicated 

that a definition of ‘‘consent’’ would 

provide clarity for institutions, students, 

and employees for when a reported sex 

offense would need to be included in 

the institution’s Clery Act statistics. 

However, a definition of ‘‘consent’’ 

might also create ambiguity in 

jurisdictions that either do not define 

‘‘consent’’ or have a definition that 

differed from the one that would be in 

the regulations. The Department 

decided against including the definition 

of ‘‘consent’’ in the proposed 

regulations as we were not convinced 

that it would be helpful to institutions 

in complying with the Clery Act. For 

purposes of Clery Act reporting, all sex 

offenses that are reported to a campus 

security authority must be recorded in 

an institution’s Clery Act statistics and, 

if reported to the campus police, must 

be included in the crime log, regardless 

of the issue of consent. 

Definitions of Sodomy and Sexual 

Assault With an Object 

The Department had initially 

separated the terms ‘‘sodomy’’ and 

‘‘sexual assault with an object’’ into two 

distinct definitions for which separate 

statistics would be reported by 

institutions. However, the Department 

decided to adopt the FBI’s new 

definition of ‘‘rape.’’ This new 

definition of rape covers acts including 

rape, sodomy, and sexual assault with 

an object. Under this new definition of 

rape, all instances of sodomy and sexual 

assault with an object would be 

included in the definition of ‘‘rape.’’ 

Therefore, separate statistics would not 

be collected for these crime categories, 

and the Department therefore decided 

not to define these terms separately. 

Initial Regulatory Flexibility Act 

Analysis 

This Initial Regulatory Flexibility 

Analysis presents an estimate of the 

effect on small entities of the proposed 

regulations. The U.S. Small Business 

Administration Size Standards define 

‘‘for-profit institutions’’ as ‘‘small 

businesses’’ if they are independently 

owned and operated and not dominant 

in their field of operation with total 

annual revenue below $7,000,000. They 

define ‘‘non-profit institutions’’ as 

‘‘small organizations’’ if they are 

independently owned and operated and 

not dominant in their field of operation, 

or as ‘‘small entities’’ if they are 

institutions controlled by governmental 

entities with populations below 50,000. 

The Secretary invites comments from 

small entities as to whether they believe 

the proposed changes would have a 

significant economic impact on them 

and, if so, requests evidence to support 

that belief. 

Description of the Reasons That Action 

by the Agency Is Being Considered 

This proposed regulatory action 

would implement the changes made to 

the Clery Act by VAWA, reflect the 

statutory language in the regulations 

and make some technical and clarifying 

changes to the Department’s existing 

Clery Act regulations. The proposed 

regulations would reflect the statutory 

requirement that institutions compile 


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Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 35451 

and report statistics for incidents of 

dating violence, domestic violence, 

sexual assault, and stalking that are 

reported to campus security authorities 

or local police agencies. Additionally, 

institutions would be required to 

include certain policies, procedures, 

and programs pertaining to these crimes 

in their annual security reports. 

The purpose of these data collections 

is to give prospective and current 

students information to help them make 

decisions about their potential or 

continued enrollment in a 

postsecondary institution. Prospective 

and current students and their families, 

staff, and the public use the information 

to assess an institution’s security 

policies and the level and nature of 

crime on its campus. In addition to the 

disclosure to students and employees 

institutions must provide campus crime 

data to the Department annually. 

Succinct Statement of the Objectives of, 

and Legal Basis for, the Proposed 

Regulations 

On March 7, 2013, President Obama 

signed the Violence Against Women 

Reauthorization Act of 2013 (VAWA) 

(Pub. L. 113–4). Among other 

provisions, this law amended section 

485(f) HEA, otherwise known as the 

Clery Act. These statutory changes 

require institutions to compile statistics 

for incidents of dating violence, 

domestic violence, sexual assault, and 

stalking that are reported to campus 

security authorities or local police 

agencies. Additionally, the proposed 

regulations would require institutions to 

include certain policies, procedures, 

and programs pertaining to these crimes 

in their annual security reports. 

Description of and, Where Feasible, an 

Estimate of the Number of Small 

Entities to Which the Proposed 

Regulations Would Apply 

The proposed regulations would 

apply to institutions of higher education 

that participate in the title IV, HEA 

student aid programs, other than foreign 

institutions of higher education. From 

the most recent data compiled in the 

2012 Campus Safety and Security 

Survey, we estimate that approximately 

7,230 institutions would be subject to 

the proposed regulations, including 

2,011 public, 1,845 private not-forprofit, and 3,365 private for-profit 

institutions. Of these institutions, we 

consider all of the private not-for-profit 

institutions and approximately 40 

percent of private for-profit institutions 

as small entities. We do not believe any 

of the public institutions meet the 

definition of ‘‘small entity.’’ 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Proposed 

Regulations, Including an Estimate of 

the Classes of Small Entities That 

Would Be Subject to the Requirement 

and the Type of Professional Skills 

Necessary for Preparation of the Report 

or Record 

Table 1 shows the estimated burden 

of each information collection 

requirement to the hours and costs 

estimated and discussed in more detail 

in the Paperwork Reduction Act of 1995 

section. Additional workload would 

normally be expected to result in 

estimated costs associated with either 

the hiring of additional employees or 

opportunity costs related to the 

reassignment of existing staff from other 

activities. In total, by taking 100 percent 

(for the private non-profit institutions) 

and 40 percent (for the private for-profit 

institutions) of the estimated burden 

hours for paragraphs 668.46(b), (c), (j), 

and (k), detailed in the Paperwork 

Reduction Act section of this preamble, 

these changes are estimated to increase 

the burden on small entities 

participating in the title IV, HEA 

programs by 34,401 hours annually. The 

monetized cost of this additional 

paperwork burden on institutions, using 

a $36.55 wage rate developed using BLS 

data available at www.bls.gov/ncs/ect/

sp/ecsuphst.pdf, is $1,257,357. 

TABLE 1—ESTIMATED PAPERWORK BURDEN ON SMALL ENTITIES

Provision Reg 

section 

OMB 

control No. Hours Costs 

Annual Security Report .................................................................................... 668.46(b) 1845–0022 8,000 292,407 

Crime Statistics ................................................................................................ 668.46(c) 1845–0022 4,800 175,447 

Statement of Policy—awareness and prevention programs ........................... 668.46(j) 1845–0022 12,800 467,840 

Statement of Policy—institutional disciplinary proceedings ............................ 668.46(k) 1845–0022 8,801 321,662 

Total .......................................................................................................... ........................ ........................ 34,401 1,257,357 

Identification, to the Extent Practicable, 

of All Relevant Federal Regulations 

That May Duplicate, Overlap, or 

Conflict With the Proposed Regulations 

The proposed regulations are unlikely 

to conflict with or duplicate existing 

Federal regulations. 

Alternatives Considered 

As discussed in the ‘‘Regulatory 

Alternatives Considered’’ section of the 

Regulatory Impact Analysis, several 

different definitions for key terms were 

considered. The Department did not 

consider any alternatives specifically 

targeted at small entities. 

Clarity of the Regulations 

Executive Order 12866 and the 

Presidential memorandum ‘‘Plain 

Language in Government Writing’’ 

require each agency to write regulations 

that are easy to understand. 

The Secretary invites comments on 

how to make these proposed regulations 

easier to understand, including answers 

to questions such as the following: 

• Are the requirements in the 

proposed regulations clearly stated? 

• Do the proposed regulations contain 

technical terms or other wording that 

interferes with their clarity? 

• Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

• Would the proposed regulations be 

easier to understand if we divided them 

into more (but shorter) sections? (A 

‘‘section’’ is preceded by the symbol 

‘‘§ ’’ and a numbered heading; for 

example, § 668.46 Institutional security 

policies and crime statistics.) 

• Could the description of the 

proposed regulations in the 

SUPPLEMENTARY INFORMATION section of 

this preamble be more helpful in 

making the proposed regulations easier 

to understand? If so, how? 

• What else could we do to make the 

proposed regulations easier to 

understand? 


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35452 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

To send any comments that concern 

how the Department could make these 

proposed regulations easier to 

understand, see the instructions in the 

ADDRESSES section. 

Paperwork Reduction Act of 1995 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the Department provides the 

general public and Federal agencies 

with an opportunity to comment on 

proposed and continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995 (PRA) 

(44 U.S.C. 3506(c)(2)(A)). This helps 

ensure that: The public understands the 

Department’s collection instructions, 

respondents can provide the requested 

data in the desired format, reporting 

burden (time and financial resources) is 

minimized, collection instruments are 

clearly understood, and the Department 

can properly assess the impact of 

collection requirements on respondents. 

Table 1 summarizes the estimated 

burden on small entities, primarily 

institutions and applicants, arising from 

the paperwork associated with the 

proposed regulations. 

Section 668.46 contains information 

collection requirements. Under the PRA, 

the Department has submitted a copy of 

these sections, related forms, and 

Information Collections Requests (ICRs) 

to OMB for its review. OMB is required 

to make a decision concerning the 

collection of information contained in 

these proposed regulations between 30 

and 60 days after publication of this 

document in the Federal Register. 

Therefore, to ensure the OMB gives your 

comments full consideration, it is 

important that OMB receives your 

comments by July 21, 2014. The same 

docket ID number is used for 

commenting on both the NPRM and the 

information collection request. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless OMB approves the collection 

under the PRA and the corresponding 

information collection instrument 

displays a currently valid OMB control 

number. Notwithstanding any other 

provision of law, no person is required 

to comply with, or is subject to penalty 

for failure to comply with, a collection 

of information if the collection 

instrument does not display a currently 

valid OMB control number. 

In the final regulations, we will 

display the control numbers assigned by 

OMB to any information collection 

requirements proposed in this NPRM 

and adopted in the final regulations. 

Discussion 

Based on the most recent data 

compiled in the 2012 Campus Safety 

and Security Survey, there are 7,230 

total institutions. This figure includes 

2,011 Public, 1,845 Private Not-forProfit, and 3,365 Private For-Profit 

institutions. This data was collected 

from August to October 2013 and 

represents the most current information 

available. The PRA section will use 

these figures in assessing burden. 

Section 668.46 Institutional Security 

Policies and Crimes Statistics 

Requirements: Under proposed 

§ 668.46(b) Annual security report, we 

have revised and expanded existing 

language and added new requirements 

for items to be reported annually. We 

propose to revise § 668.46(b)(4)(i) to 

require institutions to address in their 

statements of current policies 

concerning campus law enforcement the 

jurisdiction of security personnel for the 

investigation of alleged criminal 

offenses, as well as any agreements, 

such as written memoranda of 

understanding between the institution 

and those police agencies. This 

proposed change incorporates 

modifications made to the HEA by the 

HEOA and responds to requests the 

Department has received regarding the 

memorandum of understanding between 

campus security personnel and State 

and local law enforcement. 

We propose to expand 

§ 668.46(b)(4)(iii) to include, in the 

statement of policy, the requirement 

that the institution encourage accurate 

and prompt reporting of all crimes to 

the campus police and the appropriate 

police agency when a victim of a crime 

elects to or is unable to make such a 

report. This proposed change 

incorporates modifications made to the 

HEA by VAWA, ensures complete 

reporting of crime statistics in the 

institution’s annual security report and 

provides for a safer campus community 

whether a crime is reported by the 

victim or a third-party. 

We propose to revise and restructure 

§ 668.46(b)(11). Specifically, we propose 

to require institutions to include in their 

annual security report a statement of 

policy regarding the institution’s 

programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking as well as the procedures that 

the institutions would follow when one 

of these crimes is reported. This 

proposed change incorporates 

modifications made to the HEA by 

VAWA. 

In § 668.46(b)(11)(ii) we propose that 

institutions must provide written 

information to the victim of dating 

violence, domestic violence, sexual 

assault, and stalking. This includes 

information regarding: The preservation 

of evidence to assist in proving the 

alleged criminal offense or obtaining a 

protective order; how and to whom an 

alleged offense is to be reported; options 

for the involvement of law enforcement 

and campus authorities; and where 

applicable the victim’s rights or 

institution’s responsibilities for orders 

of protection. This proposed change 

incorporates modifications made to the 

HEA by VAWA as well as changes 

discussed during the negotiations. 

In § 668.46(b)(11)(iii) we propose to 

add a section to specify that institutions 

must address in their annual security 

report how they will complete publicly 

available recordkeeping for the purposes 

of Clery Act reporting while not 

including identifying information about 

the victim and while maintaining the 

confidentiality of any accommodations 

or protective measures given to the 

victim, to the extent that such 

exclusions would not impair the ability 

of the institution to provide such 

accommodations or protective 

measures. This proposed change 

incorporates modifications made to the 

HEA by VAWA as well as discussions 

during negotiations. 

We propose to revise 

§ 668.46(b)(11)(iv) to require institutions 

to specify in their annual security 

reports that they will provide a written 

notification of an expanded list of 

services to students and employees if 

the services are available. These services 

include existing counseling, health, 

mental health, victim advocacy, legal 

assistance, visa and immigration 

services for the victim, and other 

services that may be available at the 

institution and in the community. This 

proposed change incorporates 

modifications made to the HEA by 

VAWA as well as discussions during 

negotiations. 

We propose to revise current 

§ 668.46(b)(11)(v) to require institutions 

to specify in their annual security report 

that written notification would be 

provided to victims of dating violence, 

domestic violence, sexual assault, and 

stalking regarding their options for, and 

the availability of, changes to academic, 

living, transportation, and working 

situations. These options would have to 

be afforded any victim, regardless of 

whether the victim reports the crime to 

campus police or law enforcement. This 

proposed change incorporates 

modifications made to the HEA by 

VAWA, as well as discussions during 

negotiations. 


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We propose to add a new 

§ 668.46(b)(11)(vii) to require 

institutions to specify in their annual 

security reports that when a student or 

employee of the institution reports to 

the institution that a person is a victim 

of dating violence, domestic violence, 

sexual assault, or stalking that victim 

will be provided a written explanation 

of their rights and options under this 

subsection, whether the offense 

occurred on campus or off campus. This 

proposed change incorporates 

modifications made to the HEA by 

VAWA. 

Burden Calculation: On average, we 

estimate that the proposed changes in 

§ 668.46(b)(11) would take each 

institution 2.5 hours of additional 

burden. As a result, reporting burden at 

public institutions would increase by 

5,028 hours (2,011 public institutions 

time 2.5 hours per institution). 

Reporting burden at private non-profit 

institutions would increase by 4,635 

hours (1,854 private non-profit 

institutions times 2.5 hours per 

institution). Reporting burden at private 

for-profit institutions would increase by 

8,413 hours (3,365 private for-profit 

institutions times 2.5 hours per 

institution). 

Collectively, burden would increase 

by 18,076 hours under OMB Control 

Number 1845–0022. 

Requirements: Under proposed 

§ 668.46(c), Crime statistics, we have 

revised existing language and added 

new reporting requirements for items to 

be reported in the annual survey. 

The proposed revisions to 

§ 668.46(c)(1) would add the VAWA 

crimes of dating violence, domestic 

violence, and stalking to the crimes for 

which an institution must collect and 

disclose statistics as part of their annual 

crime statistics reporting process. The 

Department is modifying its approach 

for the reporting and disclosing of sex 

offenses to reflect updates to the FBI’s 

(Uniform Crime Reporting) UCR 

program and to improve the clarity of 

§ 668.46(c)(1). The Department is 

proposing a restructuring of the 

paragraph to consolidate all the 

reportable Clery Act crimes and to 

appropriately reflect the categories of 

crimes. 

While institutions would continue to 

be required to report statistics for the 

three most recent calendar years, the 

proposed reporting requirements have 

been expanded because of the addition 

of new crimes added by VAWA. 

We have revised § 668.46(c)(4)(iii) and 

§ 668.46(c)(vii) to include gender 

identity and national origin as two new 

categories of bias that serve as the basis 

for a determination of a hate crime. The 

institution would have to identify the 

category of bias that motivated the 

crime. 

Under proposed § 668.46(c)(6), we 

added stalking as a reportable crime. 

The Department would define 

‘‘stalking’’ in the proposed regulations. 

These proposed changes implement 

the changes VAWA made to the HEA 

and improve the overall clarity of this 

paragraph. We believe that additional 

burden would be added because there 

are additional crimes, categories of 

crimes, differentiation of hate crimes, 

and expansions of the categories of bias 

that must be reported. 

Burden Calculation: On average, we 

estimate that the proposed changes to 

the reporting of crime statistics would 

take each institution 1.50 hours of 

additional burden. As a result, reporting 

burden at public institutions would 

increase by 3,017 hours (2,011 reporting 

public institutions times 1.50 hours per 

institution). Reporting burden at private 

non-profit institutions would increase 

by 2,781 hours (1,854 private non-profit 

institutions times 1.50 hours). Reporting 

burden at private for-profit institutions 

would increase by 5,048 hours (3,365 

private for-profit institutions times 1.50 

hours per institution). 

Collectively, burden would increase 

by 10,846 hours under OMB Control 

Number 1845–0022. 

Requirements: Under proposed 

§ 668.46(j), Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking, we are proposing 

to include in the regulations particular 

requirements for the required 

description of the institution’s programs 

and ongoing campaigns about 

prevention and awareness in the 

institution’s annual security report. 

Proposed § 668.46(j)(1)(i) would 

require that the institution’s statement 

would have to contain certain elements 

in the description of the primary 

prevention and awareness programs for 

incoming students and new employees 

including the institution’s prohibition of 

dating violence, domestic violence, 

sexual assault, or stalking, definitions of 

those crimes and a definition of 

‘‘consent’’ according to the applicable 

jurisdiction, a description of safe and 

positive options for bystander 

intervention, information on risk 

reduction, and other elements of 

paragraphs 668.46(b)(11)(ii)–(vii) and 

(k)(2). This is being done to incorporate 

changes made to the HEA by VAWA. 

Proposed § 668.46(j)(1)(ii) would 

require that the institution’s statement 

must contain certain elements in the 

description of the ongoing prevention 

and awareness campaigns for students 

and employees, including the 

institution’s prohibition of dating 

violence, domestic violence, sexual 

assault, or stalking; definitions of those 

crimes; a definition of consent 

according to the applicable jurisdiction, 

a description of safe and positive 

options for bystander intervention; 

information on risk reduction; and other 

elements of paragraphs 

668.46(b)(11)(ii)–(vii) and (k)(2). This is 

being done to incorporate changes made 

to the HEA by VAWA. 

Burden Calculation: On average, we 

estimate that the proposed changes to 

the institution’s statements of policy 

and description of programs and 

ongoing campaigns would take each 

institution four hours of additional 

burden. As a result, reporting burden at 

public institutions would increase by 

8,044 hours (2,011 reporting public 

institutions times 4 hours per 

institution). Reporting burden at private 

non-profit institutions would increase 

by 7,416 hours (1,854 private non-profit 

institutions times 4 hours). Reporting 

burden at private for-profit institutions 

would increase by 13,460 hours (3,365 

private for-profit institutions times 4 

hours per institution). 

Collectively, burden would increase 

by 28,920 hours under OMB Control 

Number 1845–0022. 

Requirements: Under proposed 

§ 668.46(k), Procedures for institutional 

disciplinary action in cases of alleged 

dating violence, domestic violence, 

sexual assault, or stalking, we would 

implement the statutory changes 

requiring an institution that participates 

in any title IV, HEA program, other than 

a foreign institution, to include a 

statement of policy in its annual 

security report addressing the 

procedures for institutional disciplinary 

action in cases of alleged dating 

violence, domestic violence, sexual 

assault, or stalking. 

Proposed § 668.46(k)(1) would require 

various additions to the institution’s 

statement of policy that must be 

included in the annual security report. 

While a statement of policy is required 

under current regulations (see 

§ 668.46(b)(11)(vii)), the proposed 

regulations would require the following 

additions to the statement of policy. 

Proposed § 668.46(k)(1)(i) provides 

that the statement of policy must 

describe each type of disciplinary 

proceeding used by the institution 

including the steps, anticipated 

timelines, and decision-making process 

for each, and how the institution 

determines which type of disciplinary 

hearing to use. Proposed 

§ 668.46(k)(1)(ii) would provide that the 

statement of policy must describe the 

standard of evidence that would be used 


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during any disciplinary proceeding. 

Proposed § 668.46(k)(1)(iii) provides 

that the statement of policy must list all 

possible sanctions an institution may 

impose following the results of any 

disciplinary proceeding. Proposed 

§ 668.46(k)(1)(iv) provides that the 

policy statement must describe the 

range of protective measures that the 

institution may offer following an 

allegation of dating violence, domestic 

violence, sexual assault, or stalking. 

Under proposed § 668.46(k)(2), the 

institution would have to provide 

additional information regarding its 

disciplinary proceedings in the 

statement of policy. An institution’s 

statement of policy would have to 

provide that its disciplinary proceeding 

includes a prompt, fair, and impartial 

process from the initial investigation to 

the final result under proposed 

§ 668.46(k)(2)(i). The policy statement 

would have to provide that the 

proceeding will be conducted by 

officials who receive annual training on 

the issues related to dating violence, 

domestic violence, sexual assault, and 

stalking, and annual training on how to 

conduct an investigation and hearing 

process that protects the safety of 

victims and promotes accountability 

under proposed § 668.46(k)(2)(ii). Under 

proposed § 668.46(k)(2)(iii), an 

institution’s statement of policy must 

provide that its disciplinary proceeding 

will afford the accuser and the accused 

the same opportunities to have others 

present during an institutional 

disciplinary proceeding, including the 

opportunity to be accompanied to any 

related meeting or proceeding by an 

advisor of their choice. As proposed 

under § 668.46(k)(2)(iv), an institution 

cannot limit the choice or presence of 

an advisor, however, the institution may 

establish restrictions regarding the 

advisor’s participation in the 

proceedings as long as those restrictions 

apply equally to both the accuser and 

the accused. Finally, under proposed 

§ 668.46(k)(2)(v), an institution’s 

statement of policy would require 

simultaneous notification, in writing, to 

both the accuser and the accused of the 

result of any institutional disciplinary 

proceeding, the institution’s procedures 

for the accused and the victim’s right to 

appeal the result, any change to the 

result, or when such results become 

final. 

Burden Calculation: On average, we 

estimate that the proposed changes to 

the institution’s statement of policy 

would take each institution 2.75 hours 

of additional burden. As a result, 

reporting burden at public institutions 

would increase by 5,530 hours (2,011 

reporting public institutions times 2.75 

hours per institution). Reporting burden 

at private non-profit institutions would 

increase by 5,099 hours (1,854 private 

non-profit institutions times 2.75 

hours). Reporting burden at private forprofit institutions would increase by 

9,254 hours (3,365 private for-profit 

institutions times 2.75 hours per 

institution). 

Collectively, burden would increase 

by 19,883 hours under OMB Control 

Number 1845–0022. 

Consistent with the discussion above, 

Table 4 describes the sections of the 

proposed regulations involving 

information collections, the information 

that would be collected, the collections 

that the Department will submit to OMB 

for approval and public comment under 

the PRA, and the estimated costs 

associated with the information 

collections. The monetized net costs of 

the increased burden on institutions and 

borrowers, using BLS wage data 

available at www.bls.gov/ncs/ect/sp/

ecsuphst.pdf, is $2,840,849, as shown in 

the chart below. This cost was based on 

an hourly rate of $36.55 for institutions. 

TABLE 4—COLLECTION OF INFORMATION

Regulatory section Information collection 

OMB Control number and 

estimated burden 

[change in burden] 

Estimated 

costs 

§ 668.46(b) Annual security report ............. Revises and expands existing language 

and adds new requirements for items to 

be reported annually.

OMB 1845–0022 We estimate that the 

burden would increase by 18,076 hours.

$660,678 

§ 668.46(c) Crime statistics ........................ Revises and expands existing language 

and adds new reporting requirements 

for items to be reported in the annual 

survey.

OMB 1845–0022 We estimate that the 

burden would increase by 10,846 hours.

396,421 

§ 668.46(j) Programs to prevent dating violence, domestic violence, sexual assault, and stalking.Specifies the elements of the required 

statement of policy on and description 

of the institution’s programs and ongoing campaigns about prevention and 

awareness regarding these crimes that 

must be included in the institution’s annual security report.

OMB 1845–0022 We estimate that the 

burden would increase by 28,920 hours.

1,057,026 

§ 668.46(k) Procedures for institutional 

disciplinary action in cases of alleged 

dating violence, domestic violence, sexual assault, and stalking.

Implements the statutory changes requiring an institution that participates in any 

title IV, HEA program to include a statement of policy in its annual security report addressing the procedures for institutional disciplinary action in cases of 

alleged dating violence, domestic violence, sexual assault, or stalking.

OMB 1845–0022 We estimate that the 

burden would increase by 19,883 hours.

726,724 

Intergovernmental Review 

These programs are not subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. 

Assessment of Educational Impact 

In accordance with section 411 of the 

General Education Provisions Act, 20 

U.S.C. 1221e–4, the Secretary 

particularly requests comments on 

whether the proposed regulations would 

require transmission of information that 

any other agency or authority of the 

United States gathers or makes 

available. 

Accessible Format 

Individuals with disabilities can 

obtain this document in an accessible 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 35455 

format (e.g., braille, large print, 

audiotape, or compact disc) on request 

to the person listed under FOR FURTHER

INFORMATION CONTACT. 

Electronic Access to This Document 

The official version of this document 

is the document published in the 

Federal Register. Free Internet access to 

the official edition of the Federal 

Register and the Code of Federal 

Regulations is available via the Federal 

Digital System at: www.gpo.gov/fdsys. 

At this site you can view this document, 

as well as all other documents of this 

Department published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF). To use PDF 

you must have Adobe Acrobat Reader, 

which is available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

List of Subjects 

Administrative practice and 

procedure, Aliens, Colleges and 

universities, Consumer protection, 

Grant programs—education, Loan 

programs—education, Reporting and 

recordkeeping requirements, Selective 

Service System, Student aid, Vocational 

education. 

Dated: June 16, 2014. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary of Education 

proposes to amend part 668 of title 34 

of the Code of Federal Regulations as 

follows: 

PART 668—STUDENT ASSISTANCE 

GENERAL PROVISIONS 

■ 1. The authority citation for part 668 

continues to read as follows: 

Authority: 20 U.S.C. 1001, 1002, 1003, 

1070g, 1085, 1088, 1091, 1092, 1094, 1099c, 

and 1099c–1, unless otherwise noted. 

■ 2. Section 668.46 is amended by: 

■ a. In paragraph (a), adding definitions 

of ‘‘Clery Geography’’, ‘‘Dating 

violence’’, ‘‘Domestic violence’’, 

‘‘Federal Bureau of Investigation’s (FBI) 

Uniform Crime Reporting (UCR) 

program’’, ‘‘Hate crime’’, ‘‘Hierarchy 

Rule’’, ‘‘Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking’’, ‘‘Sexual assault’’, 

and ‘‘Stalking’’; in the definition of 

‘‘Professional counselor’’, removing the 

words ‘‘his or her license’’ and adding, 

in their place, ‘‘the counselor’s license’’; 

■ b. Revising paragraph (b)(4); 

■ c. In paragraph (b)(7), removing the 

words ‘‘criminal activity in which 

students engaged at’’ and adding, in 

their place, ‘‘criminal activity by 

students at’’ and removing both 

occurrences of the word ‘‘off-campus’’ 

and adding in their place ‘‘noncampus’’; 

■ d. Revising paragraph (b)(11); 

■ e. In paragraph (b)(12), removing the 

words ‘‘Beginning with the annual 

security report distributed by October 1, 

2003, a’’ and adding in their place the 

word ‘‘A’’ and removing the words and 

punctuation ‘‘section 170101(j) of the 

Violent Crime Control and Law 

Enforcement Act of 1994 (42 U.S.C. 

14071(j)),’’ and adding in their place 

‘‘section 121 of the Adam Walsh Child 

Protection and Safety Act of 2006 (42 

U.S.C. 16921),’’; 

■ f. In paragraph (b)(13), removing the 

words ‘‘Beginning with the annual 

security report distributed by October 1, 

2010, a’’ and adding in their place the 

word ‘‘A’’ and removing the words ‘‘as 

described in’’ and adding in their place 

the words ‘‘as required by’’; 

■ g. In paragraph (b)(14), removing the 

words ‘‘Beginning with the annual 

security report distributed by October 1, 

2010, a’’ and adding in their place the 

word ‘‘A’’ and removing the words ‘‘as 

described in’’ and adding in their place 

the words ‘‘as required by’’; 

■ h. Revising paragraph (c); 

■ i. In paragraph (e)(1), adding the 

words ‘‘that withholds as confidential 

the names and other identifying 

information of victims, as defined in 

section 40002(a)(20) of the Violence 

Against Women Act of 1994 (42 U.S.C 

13925(a)(20)), and that’’ between the 

words ‘‘and’’ and ‘‘will’’; 

■ j. In paragraph (e)(1)(i), removing the 

word and number ‘‘and (3)’’; 

■ k. In paragraph (f)(1), removing the 

words ‘‘on campus, on a noncampus 

building or property, on public 

property, or within the patrol 

jurisdiction of the campus police or the 

campus security department’’ and 

adding in their place ‘‘within its Clery 

Geography and that’’; 

■ l. In paragraph (h)(1)(vi), removing the 

words and punctuation ‘‘Advise 

students that,’’ and adding in their place 

‘‘Advise students that’’; 

■ m. Adding a reserved paragraph (i); 

and 

■ n. Adding paragraphs (j) and (m). 

The additions and revisions read as 

follows: 

§ 668.46 Institutional security policies and 

crime statistics. 

(a) * * * 

Clery Geography: (1) For the purposes 

of collecting statistics on the crimes 

listed in paragraph (c) of this section for 

submission to the Department and 

inclusion in an institution’s annual 

security report, Clery Geography 

includes— 

(i) Buildings and property that are 

part of the institution’s campus; 

(ii) The institution’s noncampus 

buildings and property; and 

(iii) Public property within or 

immediately adjacent to and accessible 

from the campus. 

(2) For the purposes of maintaining 

the crime log required in paragraph (f) 

of this section, Clery Geography 

includes, in addition to the locations in 

paragraph (1) of this definition, areas 

within the patrol jurisdiction of the 

campus police or the campus security 

department. 

Dating violence: Violence committed 

by a person who is or has been in a 

social relationship of a romantic or 

intimate nature with the victim. 

(1) The existence of such a 

relationship shall be determined based 

on the reporting party’s statement and 

with consideration of the length of the 

relationship, the type of relationship, 

and the frequency of interaction 

between the persons involved in the 

relationship. 

(2) For the purpose of this 

definition— 

(i) Dating violence includes, but is not 

limited to, sexual or physical abuse or 

the threat of such abuse. 

(ii) Dating violence does not include 

acts covered under the definition of 

domestic violence. 

(3) For the purposes of complying 

with the requirements of this section 

and section 668.41, any incident 

meeting this definition is considered a 

crime for the purposes of Clery Act 

reporting. 

Domestic violence: (1) A felony or 

misdemeanor crime of violence 

committed— 

(i) By a current or former spouse or 

intimate partner of the victim; 

(ii) By a person with whom the victim 

shares a child in common; 

(iii) By a person who is cohabitating 

with, or has cohabitated with, the victim 

as a spouse or intimate partner; 

(iv) By a person similarly situated to 

a spouse of the victim under the 

domestic or family violence laws of the 

jurisdiction in which the crime of 

violence occurred, or 

(v) 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 in which the crime of 

violence occurred. 


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(2) For the purposes of complying 

with the requirements of this section 

and section 668.41, any incident 

meeting this definition is considered a 

crime for the purposes of Clery Act 

reporting. 

Federal Bureau of Investigation’s (FBI) 

Uniform Crime Reporting (UCR) 

program: A nationwide, cooperative 

statistical effort in which city, 

university and college, county, State, 

Tribal, and federal law enforcement 

agencies voluntarily report data on 

crimes brought to their attention. The 

UCR program also serves as the basis for 

the definitions of crimes in Appendix A 

to this subpart and the requirements for 

classifying crimes in this subpart. 

Hate crime: A crime reported to local 

police agencies or to a campus security 

authority that manifests evidence that 

the victim was intentionally selected 

because of the perpetrator’s bias against 

the victim. For the purposes of this 

section, the categories of bias include 

the victim’s actual or perceived race, 

religion, gender, gender identity, sexual 

orientation, ethnicity, national origin, 

and disability. 

Hierarchy Rule: A requirement in the 

FBI’s UCR program that, for purposes of 

reporting crimes in that system, when 

more than one criminal offense was 

committed during a single incident, 

only the most serious offense be 

counted. 

* * * * * 

Programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking: (1) Comprehensive, 

intentional, and integrated 

programming, initiatives, strategies, and 

campaigns intended to end dating 

violence, domestic violence, sexual 

assault, and stalking that— 

(i) Are culturally relevant, inclusive of 

diverse communities and identities, 

sustainable, responsive to community 

needs, and informed by research or 

assessed for value, effectiveness, or 

outcome; and 

(ii) Consider environmental risk and 

protective factors as they occur on the 

individual, relationship, institutional, 

community, and societal levels. 

(2) Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking include both 

primary prevention and awareness 

programs directed at incoming students 

and new employees and ongoing 

prevention and awareness campaigns 

directed at students and employees, as 

defined in paragraph (j)(2). 

* * * * * 

Sexual assault: An offense that meets 

the definition of rape, fondling, incest, 

or statutory rape as used in the FBI’s 

UCR program and included in 

Appendix A of this subpart. 

Stalking: (1) Engaging in a course of 

conduct directed at a specific person 

that would cause a reasonable person 

to— 

(i) Fear for the person’s safety or the 

safety of others; or 

(ii) Suffer substantial emotional 

distress. 

(2) For the purpose of this 

definition— 

(i) Course of conduct means two or 

more acts, including, but not limited to, 

acts in which the stalker directly, 

indirectly, or through third parties, by 

any action, method, device, or means, 

follows, monitors, observes, surveils, 

threatens, or communicates to or about 

a person, or interferes with a person’s 

property. 

(ii) Substantial emotional distress 

means significant mental suffering or 

anguish that may, but does not 

necessarily, require medical or other 

professional treatment or counseling. 

(iii) Reasonable person means a 

reasonable person under similar 

circumstances and with similar 

identities to the victim. 

(3) For the purposes of complying 

with the requirements of this section 

and section 668.41, any incident 

meeting this definition is considered a 

crime for the purposes of Clery Act 

reporting. 

* * * * * 

(b) * * * 

(4) A statement of current policies 

concerning campus law enforcement 

that— 

(i) Addresses the enforcement 

authority and jurisdiction of security 

personnel; 

(ii) Addresses the working 

relationship of campus security 

personnel with State and local police 

agencies, including— 

(A) Whether those security personnel 

have the authority to make arrests; and 

(B) Any agreements, such as written 

memoranda of understanding between 

the institution and such agencies, for 

the investigation of alleged criminal 

offenses. 

(iii) Encourages accurate and prompt 

reporting of all crimes to the campus 

police and the appropriate police 

agencies, when the victim of a crime 

elects to or is unable to make such a 

report; and 

(iv) Describes procedures, if any, that 

encourage pastoral counselors and 

professional counselors, if and when 

they deem it appropriate, to inform the 

persons they are counseling of any 

procedures to report crimes on a 

voluntary, confidential basis for 

inclusion in the annual disclosure of 

crime statistics. 

* * * * * 

(11) A statement of policy regarding 

the institution’s programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking and of 

procedures that the institution will 

follow when one of these crimes is 

reported. The statement must include— 

(i) A description of the institution’s 

educational programs and campaigns to 

promote the awareness of dating 

violence, domestic violence, sexual 

assault, and stalking, as required by 

paragraph (j) of this section; 

(ii) Procedures victims should follow 

if a crime of dating violence, domestic 

violence, sexual assault, or stalking has 

occurred, including written information 

about— 

(A) The importance of preserving 

evidence that may assist in proving that 

the alleged criminal offense occurred or 

may be helpful in obtaining a protection 

order; 

(B) How and to whom the alleged 

offense should be reported; 

(C) Options about the involvement of 

law enforcement and campus 

authorities, including notification of the 

victim’s option to— 

(1) Notify proper law enforcement 

authorities, including on-campus and 

local police; 

(2) Be assisted by campus authorities 

in notifying law enforcement authorities 

if the victim so chooses; and 

(3) Decline to notify such authorities; 

and 

(D) Where applicable, the rights of 

victims and the institution’s 

responsibilities for orders of protection, 

no-contact orders, restraining orders, or 

similar lawful orders issued by a 

criminal, civil, or tribal court or by the 

institution. 

(iii) Information about how the 

institution will protect the 

confidentiality of victims and other 

necessary parties, including how the 

institution will— 

(A) Complete publicly available 

recordkeeping and, for purposes of 

Clery Act reporting and disclosure, 

without the inclusion of identifying 

information about the victim, as defined 

in section 40002(a)(20) of the Violence 

Against Women Act of 1994 (42 U.S.C. 

13925(a)(20)); and 

(B) Maintain as confidential any 

accommodations or protective measures 

provided to the victim, to the extent that 

maintaining such confidentiality would 

not impair the ability of the institution 

to provide the accommodations or 

protective measures. 

(iv) A statement that the institution 

will provide written notification to 


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students and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, visa 

and immigration assistance, and other 

services available for victims, both 

within the institution and in the 

community; 

(v) A statement that the institution 

will provide written notification to 

victims about options for, and available 

assistance in, changing academic, living, 

transportation, and working situations. 

The institution must make such 

accommodations if the victim requests 

them and if they are reasonably 

available, regardless of whether the 

victim chooses to report the crime to 

campus police or local law enforcement; 

(vi) An explanation of the procedures 

for institutional disciplinary action in 

cases of alleged dating violence, 

domestic violence, sexual assault, or 

stalking, as required by paragraph (k) of 

this section; and 

(vii) A statement that, when a student 

or employee reports to the institution 

that the student or employee has been 

a victim of dating violence, domestic 

violence, sexual assault, or stalking, 

whether the offense occurred on or off 

campus, the institution will provide the 

student or employee a written 

explanation of the student’s or 

employee’s rights and options, as 

described in paragraphs (b)(11)(ii) 

through (vi) of this section. 

* * * * * 

(c) Crime statistics—(1) Crimes that 

must be reported and disclosed. An 

institution must report to the 

Department and disclose in its annual 

security report statistics for the three 

most recent calendar years concerning 

the number of each of the following 

crimes that occurred on or within its 

Clery Geography and that are reported 

to local police agencies or to a campus 

security authority: 

(i) Primary crimes, including— 

(A) Criminal homicide: 

(1) Murder and nonnegligent 

manslaughter, and 

(2) Negligent manslaughter. 

(B) Sex offenses: 

(1) Rape, 

(2) Fondling, 

(3) Incest, and 

(4) Statutory rape. 

(C) Robbery. 

(D) Aggravated assault. 

(E) Burglary. 

(F) Motor vehicle theft. 

(G) Arson. 

(ii) Arrests and disciplinary actions, 

including— 

(A) Arrests for liquor law violations, 

drug law violations, and illegal weapons 

possession. 

(B) Persons not included in paragraph 

(c)(1)(ii)(A) of this section who were 

referred for campus disciplinary action 

for liquor law violations, drug law 

violations, and illegal weapons 

possession. 

(iii) Hate crimes, including— 

(A) The number of each type of crime 

in paragraph (c)(1)(i) of this section that 

are determined to be hate crimes; and 

(B) The number of the following 

crimes that are determined to be hate 

crimes: 

(1) Larceny-theft. 

(2) Simple assault. 

(3) Intimidation. 

(4) Destruction/damage/vandalism of 

property. 

(iv) Dating violence, domestic 

violence, and stalking as defined in 

paragraph (a) of this section. 

(2) All reported crimes must be 

recorded. (i) An institution must 

include in its crime statistics all crimes 

reported to a campus security authority 

for purposes of Clery Act reporting. 

Clery Act reporting does not require 

initiating an investigation or disclosing 

identifying information about the 

victim, as defined in section 

40002(a)(20) of the Violence Against 

Women Act of 1994 (42 U.S.C. 

13925(a)(20)). 

(ii) An institution may not withhold, 

or subsequently remove, a reported 

crime from its crime statistics based on 

a decision by a court, coroner, jury, 

prosecutor, or other similar noncampus 

official. 

(3) Crimes must be recorded by 

calendar year. (i) An institution must 

report and disclose a crime statistic for 

the calendar year in which the crime 

was reported to local police agencies or 

to a campus security authority. 

(ii) When recording crimes of stalking 

by calendar year, an institution must 

follow the requirements in paragraph 

(c)(6) of this section. 

(4) Hate crimes must be recorded by 

category of bias. For each hate crime 

recorded under paragraph (c)(1)(iii) of 

this section, an institution must identify 

the category of bias that motivated the 

crime. For the purposes of this 

paragraph, the categories of bias include 

the victim’s actual or perceived— 

(i) Race, 

(ii) Gender, 

(iii) Gender identity, 

(iv) Religion, 

(v) Sexual orientation, 

(vi) Ethnicity, 

(vii) National origin, and 

(viii) Disability. 

(5) Crimes must be recorded by 

location. (i) An institution must specify 

whether each of the crimes recorded 

under paragraph (c)(1) of this section 

occurred— 

(A) On campus, 

(B) In or on a noncampus building or 

property, or 

(C) On public property. 

(ii) An institution must identify, of 

the crimes that occurred on campus, the 

number that took place in dormitories or 

other residential facilities for students 

on campus. 

(iii) When recording stalking by 

location, an institution must follow the 

requirements in paragraph (c)(6) of this 

section. 

(6) Recording reports of stalking. (i) 

When recording reports of stalking that 

include activities in more than one 

calendar year, an institution must 

record a crime statistic only for the 

calendar year in which the course of 

conduct was first reported to a local 

police agency or to a campus security 

authority. If the course of conduct 

continues in a subsequent year, it must 

be recorded for that year. 

(ii) An institution must record each 

report of stalking as occurring at only 

the first location within the institution’s 

Clery Geography in which: 

(A) A perpetrator engaged in the 

stalking course of conduct; or 

(B) A victim first became aware of the 

stalking. 

(iii) A report of stalking must be 

counted as a new and distinct crime and 

is not associated with a previous report 

of stalking when the stalking behavior 

continues after an official intervention 

including, but not limited to, an 

institutional disciplinary action or the 

issuance of a no-contact order, 

restraining order or any warning by the 

institution or a court. 

(7) Identification of the victim or the 

accused. The statistics required under 

this paragraph (c) may not include the 

identification of the victim or the person 

accused of committing the crime. 

(8) Pastoral and professional 

counselor. An institution is not required 

to report statistics under paragraph (c) 

of this section for crimes reported to a 

pastoral or professional counselor. 

(9) Using the FBI’s UCR program and 

the Hierarchy Rule. (i) An institution 

must compile the crime statistics 

required under paragraphs (c)(1)(i) and 

(iii) of this section using the definitions 

of crimes provided in Appendix A to 

this subpart and the Federal Bureau of 

Investigation’s UCR Hate Crime Data 

Collection Guidelines and Training 

Guide for Hate Crime Data Collection. 

For further guidance concerning the 

application of definitions and 

classification of crimes, an institution 

must use either the UCR Reporting 

Handbook or the UCR Reporting 

Handbook: National Incident-Based 

Reporting System (NIBRS) EDITION, 


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35458 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

except as provided in paragraph 

(c)(9)(ii) of this section. 

(ii) In counting crimes when more 

than one offense was committed during 

a single incident, an institution must 

conform to the requirements of the 

Hierarchy Rule in the UCR Reporting 

Handbook, with one exception: In 

counting sex offenses, the Hierarchy 

Rule does not apply. For example, if a 

victim is both raped and murdered in a 

single incident, then an institution must 

include both the rape and the murder in 

its statistics. 

(10) Use of a map. In complying with 

the statistical reporting requirements 

under this paragraph (c), an institution 

may provide a map to current and 

prospective students and employees 

that depicts its campus, noncampus 

buildings or property, and public 

property areas if the map accurately 

depicts its campus, noncampus 

buildings or property, and public 

property areas. 

(11) Statistics from police agencies. In 

complying with the statistical reporting 

requirements under this paragraph (c), 

an institution must make a reasonable, 

good faith effort to obtain the required 

statistics and may rely on the 

information supplied by a local or State 

police agency. If the institution makes 

such a reasonable, good faith effort, it is 

not responsible for the failure of the 

local or State police agency to supply 

the required statistics. 

* * * * * 

(i) [Reserved] 

(j) Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking. As required by 

paragraph (b)(11) of this section, an 

institution must include in its annual 

security report a statement of policy that 

addresses the institution’s programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking. 

(1) The statement must include— 

(i) A description of the institution’s 

primary prevention and awareness 

programs for all incoming students and 

new employees, which must include— 

(A) A statement that the institution 

prohibits the crimes of dating violence, 

domestic violence, sexual assault, and 

stalking; 

(B) The definition of ‘‘dating 

violence,’’ ‘‘domestic violence,’’ ‘‘sexual 

assault,’’ and ‘‘stalking’’ in the 

applicable jurisdiction; 

(C) The definition of ‘‘consent,’’ in 

reference to sexual activity, in the 

applicable jurisdiction; 

(D) A description of safe and positive 

options for bystander intervention; 

(E) Information on risk reduction; and 

(F) The information described in 

paragraphs (b)(11) and (k)(2) of this 

section; and 

(ii) A description of the institution’s 

ongoing prevention and awareness 

campaigns for students and employees, 

including information described in 

paragraph (j)(1)(i)(A) through (F) of this 

section. 

(2) For the purposes of this 

paragraph— 

(i) Awareness programs means 

community-wide or audience-specific 

programming, initiatives, and strategies 

that increase audience knowledge and 

share information and resources to 

prevent violence, promote safety, and 

reduce perpetration. 

(ii) Bystander intervention means safe 

and positive options that may be carried 

out by an individual or individuals to 

prevent harm or intervene when there is 

a risk of dating violence, domestic 

violence, sexual assault, or stalking. 

Bystander intervention includes 

recognizing situations of potential harm, 

understanding institutional structures 

and cultural conditions that facilitate 

violence, overcoming barriers to 

intervening, identifying safe and 

effective intervention options, and 

taking action to intervene. 

(iii) Ongoing prevention and 

awareness campaigns means 

programming, initiatives, and strategies 

that are sustained over time and focus 

on increasing understanding of topics 

relevant to and skills for addressing 

dating violence, domestic violence, 

sexual assault, and stalking, using a 

range of strategies with audiences 

throughout the institution and including 

information described in paragraph 

(j)(1)(i)(A) through (F) of this section. 

(iv) Primary prevention programs 

means programming, initiatives, and 

strategies informed by research or 

assessed for value, effectiveness, or 

outcome that are intended to stop dating 

violence, domestic violence, sexual 

assault, and stalking before they occur 

through the promotion of positive and 

healthy behaviors that foster healthy, 

mutually respectful relationships and 

sexuality, encourage safe bystander 

intervention, and seek to change 

behavior and social norms in healthy 

and safe directions. 

(v) Risk reduction means options 

designed to decrease perpetration and 

bystander inaction, and to increase 

empowerment for victims in order to 

promote safety and to help individuals 

and communities address conditions 

that facilitate violence. 

(3) An institution’s programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking 

must include, at a minimum, the 

information described in paragraph 

(j)(1) of this section. 

(k) Procedures for institutional 

disciplinary action in cases of alleged 

dating violence, domestic violence, 

sexual assault, or stalking. As required 

by paragraph (b)(11)(vi) of this section, 

an institution must include in its annual 

security report a clear statement of 

policy that addresses the procedures for 

institutional disciplinary action in cases 

of alleged dating violence, domestic 

violence, sexual assault, or stalking and 

that— 

(1)(i) Describes each type of 

disciplinary proceeding used by the 

institution; the steps, anticipated 

timelines, and decision-making process 

for each type of disciplinary proceeding; 

and how the institution determines 

which type of proceeding to use based 

on the circumstances of an allegation of 

dating violence, domestic violence, 

sexual assault, or stalking; 

(ii) Describes the standard of evidence 

that will be used during any 

institutional disciplinary proceeding 

arising from an allegation of dating 

violence, domestic violence, sexual 

assault, or stalking; 

(iii) Lists all of the possible sanctions 

that the institution may impose 

following the results of any institutional 

disciplinary proceeding for an allegation 

of dating violence, domestic violence, 

sexual assault, or stalking; and 

(iv) Describes the range of protective 

measures that the institution may offer 

following an allegation of dating 

violence, domestic violence, sexual 

assault, or stalking; 

(2) Provides that the proceedings 

will— 

(i) Include a prompt, fair, and 

impartial process from the initial 

investigation to the final result; 

(ii) Be conducted by officials who, at 

a minimum, receive annual training on 

the issues related to dating violence, 

domestic violence, sexual assault, and 

stalking and on how to conduct an 

investigation and hearing process that 

protects the safety of victims and 

promotes accountability; 

(iii) Provide the accuser and the 

accused with the same opportunities to 

have others present during any 

institutional disciplinary proceeding, 

including the opportunity to be 

accompanied to any related meeting or 

proceeding by the advisor of their 

choice; 

(iv) Not limit the choice of advisor or 

presence for either the accuser or the 

accused in any meeting or institutional 

disciplinary proceeding; however, the 

institution may establish restrictions 

regarding the extent to which the 

advisor may participate in the 


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Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 35459 

proceedings, as long as the restrictions 

apply equally to both parties; and 

(v) Require simultaneous notification, 

in writing, to both the accuser and the 

accused, of— 

(A) The result of any institutional 

disciplinary proceeding that arises from 

an allegation of dating violence, 

domestic violence, sexual assault, or 

stalking; 

(B) The institution’s procedures for 

the accused and the victim to appeal the 

result of the institutional disciplinary 

proceeding, if such procedures are 

available; 

(C) Any change to the result; and 

(D) When such results become final. 

(3) For the purposes of this 

paragraph— 

(i) A prompt, fair, and impartial 

proceeding includes a proceeding that 

is— 

(A) Completed within reasonably 

prompt timeframes designated by an 

institution’s policy, including a process 

that allows for the extension of 

timeframes for good cause with written 

notice to the accuser and the accused of 

the delay and the reason for the delay; 

(B) Conducted in a manner that— 

(1) Is consistent with the institution’s 

policies and transparent to the accuser 

and accused; 

(2) Includes timely notice of meetings 

at which the accuser or accused, or 

both, may be present; and 

(3) Provides timely access to the 

accuser, the accused, and appropriate 

officials to any information that will be 

used after the fact-finding investigation 

but during informal and formal 

disciplinary meetings and hearings; and 

(C) Conducted by officials who do not 

have a conflict of interest or bias for or 

against the accuser or the accused. 

(ii) Advisor means any individual 

who provides the accuser or accused 

support, guidance, or advice. 

(iii) Proceeding means all activities 

related to a non-criminal resolution of 

an institutional disciplinary complaint, 

including, but not limited to, factfinding investigations, formal or 

informal meetings, and hearings. 

(iv) Result means any initial, interim, 

and final decision by any official or 

entity authorized to resolve disciplinary 

matters within the institution. The 

result must include any sanctions 

imposed by the institution. 

Notwithstanding section 444 of the 

General Education Provisions Act (20 

U.S.C. 1232g), commonly referred to as 

the Family Educational Rights and 

Privacy Act (FERPA), the result must 

also include the rationale for the result 

and the sanctions. 

(l) Compliance with paragraph (k) of 

this section does not constitute a 

violation of FERPA. 

(m) Prohibition on retaliation. An 

institution, or an officer, employee, or 

agent of an institution, may not retaliate, 

intimidate, threaten, coerce, or 

otherwise discriminate against any 

individual for exercising their rights or 

responsibilities under any provision in 

this section. 

* * * * * 

■ 3. Revise appendix A to subpart D to 

read as follows: 

Appendix A to Subpart D of Part 668— 

Crime Definitions in Accordance With 

the Federal Bureau of Investigation’s 

Uniform Crime Reporting Program 

The following definitions are to be used for 

reporting the crimes listed in § 668.46, in 

accordance with the Federal Bureau of 

Investigation’s Uniform Crime Reporting 

Program. The definitions for murder; robbery; 

aggravated assault; burglary; motor vehicle 

theft; weapons: carrying, possessing, etc.; law 

violations; drug abuse violations; and liquor 

law violations are from the Uniform Crime 

Reporting Handbook. The definitions of the 

sex offenses are excerpted from the National 

Incident-Based Reporting System Edition of 

the Uniform Crime Reporting Handbook. The 

definitions of larceny-theft (except motor 

vehicle theft), simple assault, intimidation, 

and destruction/damage/vandalism of 

property are from the Hate Crime Data 

Collection Guidelines of the Uniform Crime 

Reporting Handbook. 

Crime Definitions From the Uniform Crime 

Reporting Handbook 

Arson 

Any willful or malicious burning or 

attempt to burn, with or without intent to 

defraud, a dwelling house, public building, 

motor vehicle or aircraft, personal property of 

another, etc. 

Criminal Homicide—Manslaughter by 

Negligence 

The killing of another person through gross 

negligence. 

Criminal Homicide—Murder and 

Nonnegligent Manslaughter 

The willful (nonnegligent) killing of one 

human being by another. 

Robbery 

The taking or attempting to take anything 

of value from the care, custody, or control of 

a person or persons by force or threat of force 

or violence and/or by putting the victim in 

fear. 

Aggravated Assault 

An unlawful attack by one person upon 

another for the purpose of inflicting severe or 

aggravated bodily injury. This type of assault 

usually is accompanied by the use of a 

weapon or by means likely to produce death 

or great bodily harm. (It is not necessary that 

injury result from an aggravated assault when 

a gun, knife, or other weapon is used which 

could and probably would result in serious 

personal injury if the crime were successfully 

completed.) 

Burglary 

The unlawful entry of a structure to 

commit a felony or a theft. For reporting 

purposes this definition includes: Unlawful 

entry with intent to commit a larceny or 

felony; breaking and entering with intent to 

commit a larceny; housebreaking; 

safecracking; and all attempts to commit any 

of the aforementioned. 

Motor Vehicle Theft 

The theft or attempted theft of a motor 

vehicle. (Classify as motor vehicle theft all 

cases where automobiles are taken by 

persons not having lawful access even 

though the vehicles are later abandoned— 

including joyriding.) 

Weapons: Carrying, Possessing, Etc. 

The violation of laws or ordinances 

prohibiting the manufacture, sale, purchase, 

transportation, possession, concealment, or 

use of firearms, cutting instruments, 

explosives, incendiary devices, or other 

deadly weapons. 

Drug Abuse Violations 

The violation of laws prohibiting the 

production, distribution, and/or use of 

certain controlled substances and the 

equipment or devices utilized in their 

preparation and/or use. The unlawful 

cultivation, manufacture, distribution, sale, 

purchase, use, possession, transportation, or 

importation of any controlled drug or 

narcotic substance. Arrests for violations of 

State and local laws, specifically those 

relating to the unlawful possession, sale, use, 

growing, manufacturing, and making of 

narcotic drugs. 

Liquor Law Violations 

The violation of State or local laws or 

ordinances prohibiting the manufacture, sale, 

purchase, transportation, possession, or use 

of alcoholic beverages, not including driving 

under the influence and drunkenness. 

Sex Offenses Definitions From the Uniform 

Crime Reporting Program 

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. 

A. 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. 

B. 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. 

C. Incest—Nonforcible sexual intercourse 

between persons who are related to each 

other within the degrees wherein marriage is 

prohibited by law. 

D. Statutory Rape—Nonforcible sexual 

intercourse with a person who is under the 

statutory age of consent. 


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35460 Federal Register / Vol. 79, No. 119 / Friday, June 20, 2014 / Proposed Rules 

Definitions From the Hate Crime Data 

Collection Guidelines of the Uniform Crime 

Reporting Handbook 

Larceny-Theft (Except Motor Vehicle Theft) 

The unlawful taking, carrying, leading, or 

riding away of property from the possession 

or constructive possession of another. 

Attempted larcenies are included. 

Embezzlement, confidence games, forgery, 

worthless checks, etc., are excluded. 

Simple Assault 

An unlawful physical attack by one person 

upon another where neither the offender 

displays a weapon, nor the victim suffers 

obvious severe or aggravated bodily injury 

involving apparent broken bones, loss of 

teeth, possible internal injury, severe 

laceration, or loss of consciousness. 

Intimidation 

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. 

Destruction/Damage/Vandalism of Property 

To willfully or maliciously destroy, 

damage, deface, or otherwise injure real or 

personal property without the consent of the 

owner or the person having custody or 

control of it. 

[FR Doc. 2014–14384 Filed 6–19–14; 8:45 am] 

BILLING CODE 4000–01–P 


tkelley on DSK3SPTVN1PROD with PROPOSALS2