Vol. 79 Monday, 

No. 202 October 20, 2014 

Part III 

Department of Education 

34 CFR Part 668 

Violence Against Women Act; Final Rule 


tkelley on DSK3SPTVN1PROD with RULES2
62752 Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 

DEPARTMENT OF EDUCATION 

34 CFR Part 668 

[Docket ID ED–2013–OPE–0124] 

RIN 1840–AD16 

Violence Against Women Act 

AGENCY: Office of Postsecondary 

Education, Department of Education. 

ACTION: Final regulations. 

SUMMARY: The Secretary amends 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 regulations are intended 

to update, clarify, and improve the 

current regulations. 

DATES: These regulations are effective 

July 1, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Ashley Higgins, U.S. Department of 

Education, 1990 K Street NW., Room 

8037, Washington, DC 20006–8502. 

Telephone (202) 219–7061 or by email 

at: Ashley.Higgins@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. L. 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 are amending § 668.46 of 

title 34 of the Code of Federal 

Regulations (CFR) to implement these 

statutory changes. Additionally, we are 

updating this section by incorporating 

provisions added to the Clery Act by the 

Higher Education Opportunity Act, 

enacted in 2008, deleting outdated 

deadlines and cross-references, and 

making other changes to improve the 

readability and clarity of the 

regulations. We have published 34 CFR 

668.46 in its entirety at the end of these 

regulations for our readers’ 

convenience. 

Summary of the Major Provisions of 

This Regulatory Action: The final 

regulations will— 

• Require institutions to maintain 

statistics about the number of incidents 

of dating violence, domestic violence, 

sexual assault, and stalking that meet 

the definitions of those terms; 

• Clarify the very limited 

circumstances in which an institution 

may remove reports of crimes that have 

been ‘‘unfounded’’ and require 

institutions to report to the Department 

and disclose in the annual security 

report the number of ‘‘unfounded’’ 

crime reports; 

• Revise the definition of ‘‘rape’’ to 

reflect the Federal Bureau of 

Investigation’s (FBI) 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 Incident-Based 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 separate categories; 

• Require institutions to provide to 

incoming students and new employees 

and describe in their annual security 

reports primary prevention and 

awareness programs. These programs 

must include: a statement that the 

institution prohibits the crimes of dating 

violence, domestic violence, sexual 

assault, and stalking, as those terms are 

defined in these final regulations; the 

definitions 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 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; how to file a 

disciplinary complaint; 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 

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 and equal 

access to information that will be used 

during informal and formal disciplinary 

meetings and hearings; 

• Define the terms ‘‘proceeding’’ and 

‘‘result’’; and 

• 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). 

Costs and Benefits: A benefit of these 

final regulations is that they will 

strengthen the rights of victims of dating 

violence, domestic violence, sexual 

assault, and stalking on college 

campuses. Institutions will 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 will improve 

crime reporting and will help ensure 


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1Title IX prohibits discrimination on the basis of 

sex in federally funded education programs or 

activities. 

that students, prospective students, 

families, and employees and potential 

employees of the institutions will be 

better informed about each campus’ 

safety and security procedures. 

Ultimately, the improved reporting and 

transparency will promote safety and 

security on college campuses. 

Institutions are likely to incur two 

types of costs under the final 

regulations: Paperwork costs of 

complying with the regulations, and 

other compliance costs that institutions 

may incur as they take required steps to 

improve security on campus. 

Institutions will incur paperwork costs 

involved in: Changing the reporting of 

crime statistics 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 will also incur additional 

compliance costs. Costs to improve 

safety on campus will 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 final regulations are not estimated 

to have a significant net budget impact 

on the title IV, HEA student aid 

programs over loan cohorts from 2014 to 

2024. 

On June 20, 2014, the Secretary 

published a notice of proposed 

rulemaking (NPRM) for these 

regulations in the Federal Register (79 

FR 35418). The final regulations contain 

several changes from the NPRM. We 

fully explain the changes in the 

Analysis of Comments and Changes 

section of the preamble that follows. 

Implementation date of these 

regulations: Section 482(c) of the HEA 

requires that regulations affecting 

programs under title IV of the HEA be 

published in final form by November 1, 

prior to the start of the award year (July 

1) to which they apply. However, that 

section also permits the Secretary to 

designate any regulation as one that an 

entity subject to the regulations may 

choose to implement earlier and the 

conditions for early implementation. 

The Secretary has not designated any 

of the provisions in these final 

regulations for early implementation. 

Therefore, these final regulations are 

effective July 1, 2015. 

Public Comment: In response to our 

invitation in the NPRM, approximately 

2,200 parties submitted comments on 

the proposed regulations. In addition, 

approximately 3,600 individuals 

submitted a petition expressing their 

support for comments submitted by the 

American Association of University 

Women. We group major issues 

according to subject, with appropriate 

sections of the regulations referenced in 

parentheses. We discuss other 

substantive issues under the sections of 

the proposed regulations to which they 

pertain. Generally, we do not address 

technical or other minor changes. 

Analysis of Comments and Changes: 

An analysis of the comments and of any 

changes in the regulations since 

publication of the NPRM follows. 

General 

Comments: The great majority of the 

commenters expressed strong support 

for the proposed regulations. They 

believed that these regulations would: 

Improve the data related to incidents of 

dating violence, domestic violence, and 

stalking at institutions; foster greater 

transparency and accountability around 

institutional policies and procedures; 

strengthen institutional efforts to 

prevent dating violence, domestic 

violence, sexual assault, and stalking; 

and ensure proper training for 

individuals who are involved in 

institutional disciplinary proceedings. 

The commenters believed that these 

changes would lead to greater 

institutional accountability and result in 

better information for students and 

families. They also believed that these 

regulations would foster more 

supportive environments for victims of 

dating violence, domestic violence, 

sexual assault, and stalking to come 

forward to report these crimes. 

Although generally supportive of the 

regulations, a few commenters urged the 

Department to consider the needs and 

perspectives of an accused student, 

particularly in regard to the regulations 

pertaining to institutional disciplinary 

proceedings. 

Several commenters noted that the 

changes that VAWA made to the Clery 

Act did not alter an institution’s 

obligations to comply with 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 However, many commenters 

noted that institutions’ obligations 

under the Clery Act and under title IX 

overlap in some areas, and they urged 

the Department to provide as much 

guidance as possible about how to 

comply with both laws to promote best 

practices and to reduce regulatory 

burden. 

Finally, some of the commenters 

stressed the need for institutions to 

consider students and employees with 

disabilities when designing their 

campus safety policies, especially their 

campus sexual assault policies. The 

commenter noted that women with 

disabilities are at a high risk for sexual 

and other forms of violence. 

Discussion: We appreciate the 

commenters’ support. We note that the 

White House Task Force to Protect 

Students from Sexual Assault, which 

was established on January 22, 2014, 

has released and continues to develop 

guidance and model policies for 

institutions to use in working to comply 

with the Clery Act and title IX. Those 

resources are available to institutions at 

the Web site www.notalone.gov under 

the ‘‘Schools’’ tab. The Department 

intends to build on these resources and 

provide additional tools and guidance 

where possible for institutions, 

including by updating The Handbook 

for Campus Safety and Security 

Reporting (http://www2.ed.gov/admins/

lead/safety/handbook.pdf). 

Changes: None. 

Implementation 

Comments: Several of the commenters 

requested clarification regarding the 

implementation of these new 

regulations. Some commenters 

wondered whether institutions would 

be expected to identify whether crimes 

included in statistics in previous 

calendar years met the definitions of 

‘‘dating violence,’’ ‘‘domestic violence,’’ 

or ‘‘stalking’’ or to revise their statistics 

pertaining to rape using the revised 

definition. Other commenters stressed 

that institutions should be given 

significant time to develop or revise 

procedures, learn how to categorize the 

new crimes, and update their annual 

security reports to comply with these 

final regulations. 

Discussion: As first explained by the 

Department in an electronic 

announcement published on May 29th, 

2013, and later reiterated in Dear 

Colleague Letter GEN–14–13 (http://

ifap.ed.gov/dpcletters/GEN1413.html), 

institutions must make a good-faith 

effort to include accurate and complete 

statistics for dating violence, domestic 

violence, sexual assault, and stalking as 

defined in section 40002(a) of the 

Violence Against Women Act of 1994 

for calendar year 2013 in the annual 

security report that must be published 

by October 1, 2014. Institutions will not 

be required to revise their statistics for 

calendar years 2013 or 2014 to reflect 

the final regulations. 


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62754 Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 

Section 485(f)(1)(F) and (f)(5) of the 

Clery Act requires institutions to 

disclose and report crime statistics for 

the three most recent calendar years in 

each annual security report. Consistent 

with the approach that we took when 

implementing the changes to the Clery 

Act and the annual fire safety report 

added by the Higher Education 

Opportunity Act, we will phase in the 

new statistical requirements. The first 

annual security report to contain a full 

three years of data using the definitions 

in these final regulations will be the 

annual security report due on October 1, 

2018. 

Section 304(b) of VAWA specified 

that the amendments made to the Clery 

Act would be effective with respect to 

the annual security report prepared by 

an institution of higher education one 

calendar year after the date of enactment 

of VAWA, and each subsequent 

calendar year. Accordingly, institutions 

are legally required to update their 

policies, procedures, and practices to 

meet the statutory requirements for the 

annual security report issued in 2014. 

These final regulations will become 

effective on July 1, 2015, providing 

institutions at least seven months after 

the regulations are published to further 

update or refine their policies, 

procedures, and programs before the 

next annual security report is due on 

October 1, 2015. We believe that this is 

sufficient time for institutions to come 

into compliance. 

Changes: None. 

Burden 

Comments: Several commenters 

raised concerns about the burden on 

institutions imposed by these 

regulations, particularly by the 

requirements for the development of 

prevention programs and the 

requirements for campus disciplinary 

proceedings. The commenters believed 

that the cost to institutions of complying 

with these regulations could be 

significant. One commenter noted that 

these regulations would result in higher 

tuition costs because it would require 

institutions to divert funds from the 

delivery of education to hiring 

administrative staff and legal support. 

These and other commenters urged the 

Department to provide best practices 

and model policies and programs to 

help reduce the costs associated with 

implementing these changes. 

Discussion: We understand the 

commenters’ concerns about the burden 

associated with implementing these 

regulations. However, these 

requirements are statutory and 

institutions must comply with them to 

participate in the title IV, HEA 

programs. As discussed previously 

under ‘‘General,’’ the Department is 

committed to providing institutions 

with guidance where possible to 

minimize the additional costs and 

burdens. For additional information 

about the costs and burden associated 

with these regulations, please see the 

discussion under ‘‘Paperwork Reduction 

Act of 1995.’’ 

Changes: None. 

Availability of Annual Security Report 

and Statistics 

Comments: Several commenters made 

suggestions for changes in how 

institutions must make their annual 

security reports and statistics available. 

One commenter suggested that 

institutions should have to publish their 

statistics on their Web sites so that 

parents and students can make informed 

decisions about where to enroll. 

Another commenter noted that it is 

often difficult to find the required 

policies and procedures on an 

institution’s Web site. One commenter 

recommended requiring institutions to 

post all information related to an 

institution’s policies for dating violence, 

domestic violence, sexual assault, and 

stalking in one place on its Web site. If 

related information appears on other 

pages of an institution’s Web site, the 

commenter recommended requiring 

institutions to provide links to the text 

of its policy to prevent 

misunderstandings about the school’s 

policy or procedures. Another 

commenter urged the Department to 

require institutions to provide 

information to students and employees 

in languages other than English, 

particularly where a dominant portion 

of the campus community speaks a 

language other than English. Several 

commenters raised concerns about 

whether and how students, employees, 

and prospective students and employees 

would know when an institution 

updated its policies, procedures, and 

programs—particularly those related to 

campus disciplinary proceedings. 

Finally, one commenter suggested that 

the annual security report is unlikely to 

be effective or to influence behavior 

because it is just one of numerous 

disclosures that institutions must 

provide and is easily overlooked. 

Discussion: With regard to the 

commenters’ concerns that campus 

safety- and security-related statistics 

and policies can be difficult to find, we 

note that this information must all be 

contained in an institution’s annual 

security report. Institutions must 

distribute the annual security report 

every year to all enrolled students and 

employees through appropriate 

publications and mailings, including 

direct mailing to each individual 

through the U.S. Postal Service, campus 

mail, or electronic mail; by providing a 

publication directly to each individual; 

or by posting it on the institution’s Web 

site. Institutions must also distribute the 

annual security report to all prospective 

students and employees upon request. 

Although institutions are not required 

by the Clery Act to post their annual 

security report on their Web site, the 

Department collects the crime statistics 

from institutions each fall and makes 

the data available to the public on the 

Department’s College Navigator Web 

site at www.collegenavigator.gov, and on 

the Office of Postsecondary Education’s 

Data Analysis Cutting Tool at http://

www.ope.ed.gov/security/. We 

encourage institutions that post annual 

security reports on their Web site to 

place related information on the same 

central Web site or to provide a link to 

this related information from the site 

where the annual security report is 

posted so individuals will have easy 

access to the institution’s policies. 

Although not required by the Clery Act, 

consistent with Federal civil rights laws, 

institutions must take appropriate 

measures to ensure that all segments of 

its community, including those with 

limited English proficiency, have 

meaningful access to vital information, 

such as their annual security reports. 

In response to the comments about 

requiring notification when an 

institution updates its campus security 

policies and procedures, we note that 

the Clery Act requires an institution to 

distribute its annual security report 

annually (by October 1 each year). If an 

institution changes its policies during 

the year, it should notify its students 

and employees. Institutions that publish 

their annual security reports on an Intraor Internet site would be able to post the 

new version of any changed policies or 

procedures on a continuing basis 

throughout the year, and they could 

notify the campus community of the 

changes through a variety of means 

(such as, electronic mail, an 

announcement on the institution’s home 

page or flyers). 

Finally, although we understand the 

commenter’s concern that the campus 

safety disclosures may be overlooked by 

students and employees, the commenter 

did not provide any recommendations 

for how to ensure that these disclosures 

are not overlooked. 

Changes: None. 


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668.46(a) Definitions 

Clery Geography 

Comments: Several commenters 

supported the inclusion of a definition 

of ‘‘Clery geography’’ in the interest of 

making these regulations more userfriendly and succinct. A few 

commenters, however, raised some 

questions and concerns about the 

proposed definition. One commenter 

was unsure about what areas would be 

considered ‘‘public property’’ for Clery 

Act reporting purposes, particularly for 

institutions located in strip malls or 

office buildings, and requested 

additional clarification. Another 

commenter believed that the definition 

is confusing and suggested instead 

creating one definition pertaining to 

locations for which an institution must 

maintain crime statistics and another 

definition pertaining to locations for 

which an institution must include 

incidents in its crime log. A third 

commenter requested clarification about 

what the phrase ‘‘within the patrol 

jurisdiction of the campus police or the 

campus security department’’ would 

include. 

Discussion: We appreciate the support 

from the commenters, and reiterate that 

we are not changing the long-standing 

definitions of ‘‘campus,’’ ‘‘noncampus 

buildings or property,’’ and ‘‘public 

property’’ in § 668.46(a). Instead, we 

have added the definition of ‘‘Clery 

geography’’ to improve the readability 

and understandability of the 

regulations. The definition of ‘‘public 

property’’ continues to include all 

public property, including 

thoroughfares, streets, sidewalks, and 

parking facilities, that is within the 

campus, or immediately adjacent to and 

accessible from the campus. The 

Handbook for Campus Safety and 

Security Reporting includes several 

examples of what would be considered 

a part of a school’s ‘‘Clery geography,’’ 

including how to determine a school’s 

‘‘public property,’’ but we will consider 

including additional examples when we 

update that guidance in the future. 

We disagree with the commenter that 

it would be more appropriate to separate 

the definition of ‘‘Clery geography’’ into 

two definitions. We believe that the 

definition as written makes it clear that 

institutions must consider campus, 

noncampus, and public property 

locations when recording the statistics 

required under § 668.46(c), and that 

they must consider campus, 

noncampus, public property, and 

locations within the patrol jurisdiction 

of the campus police or campus security 

department when recording crimes in 

the crime log required under § 668.46(f). 

To clarify, the phrase ‘‘patrol 

jurisdiction of the campus police or 

campus security department’’ refers to 

any property that is regularly patrolled 

by the campus public safety office but 

that does not meet the definitions of 

campus, noncampus, or public property. 

These patrol services are typically 

provided pursuant to a formal 

agreement with the local jurisdiction, a 

local civic association, or other public 

entity. 

Changes: None. 

Consent 

Comments: We received numerous 

comments regarding our decision not to 

define ‘‘consent’’ for the purposes of the 

Clery Act. Many of the commenters 

disagreed with the Department’s 

conclusion that a definition of 

‘‘consent’’ is not needed because, for 

purposes of Clery Act reporting, 

institutions are required to record all 

reported sex offenses in the Clery Act 

statistics and the crime log regardless of 

any issue of consent. The commenters 

strongly urged the Department to define 

‘‘consent’’ in these final regulations to 

provide clarity for institutional officials 

and to promote consistency across 

institutions. The commenters noted that 

the definition of ‘‘consent’’ varies by 

locality, and that some States do not 

have a definition. These commenters 

believed that establishing a Federal 

definition in these regulations would 

inform State efforts to legislate on this 

issue. In States that do not have a 

definition of ‘‘consent,’’ some 

commenters argued, schools are left to 

determine their own definitions and 

have inappropriately deferred to local 

law enforcement for determinations 

about whether ‘‘consent,’’ was provided 

based on a criminal evidentiary 

standard. 

Other commenters argued that 

including statistics about offenses in 

reports without considering whether 

there was consent ignores a critical part 

of the definition of some VAWA crimes, 

rendering the crime statistics over 

inclusive. In other words, they believed 

that not considering consent in the 

categorization of an incident would 

result in some actions being reported 

regardless of whether a key component 

of the crime existed. 

Some other commenters believed that 

the Department should define ‘‘consent’’ 

because it is an essential part of 

education and prevention programming. 

They argued that, even if a definition is 

not needed for recording sex offenses, 

not having a definition ignores current 

conversations about campus sexual 

assault. 

Some of the commenters who 

supported including a definition of 

‘‘consent’’ provided definitions for the 

Department’s consideration. Several 

commenters recommended using the 

definition that the Department included 

in the draft language provided to the 

non-Federal negotiators at the second 

negotiating session. One commenter 

recommended defining ‘‘consent’’ as 

was proposed at the second negotiating 

session but making a slight modification 

to clarify that one’s agreement to engage 

in a specific sexual activity during a 

sexual encounter can be revoked at any 

time. Another commenter made a 

similar recommendation but suggested 

clarifying that consent to engage in 

sexual activity with one person does not 

imply consent to engage in sexual 

activity with another person and that 

incapacitation could include having an 

intellectual or other disability that 

prevents an individual from having the 

capacity to consent. One commenter 

suggested that, at a minimum, the 

Department should provide that the 

applicable jurisdiction’s definition of 

‘‘consent’’ applies for purposes of 

reporting under these regulations. 

By contrast, some commenters agreed 

with the Department that a definition of 

‘‘consent’’ should not be included in 

these regulations. These commenters 

urged the Department to provide 

guidance on the definition of ‘‘consent,’’ 

rather than establish a regulatory 

definition. 

Discussion: During the second 

negotiation session, we presented draft 

language that would have defined 

‘‘consent’’ to mean ‘‘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 be able to 

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. 

We continue to believe that this draft 

language is a valid starting point for 

other efforts to define consent or for 

developing education and prevention 

programming, and we will provide 

additional guidance where possible to 

institutions regarding consent. 

However, we do not believe that a 

definition of consent is needed for the 

administration and enforcement of the 

Clery Act. Section 485(f)(1)(F)(i) of the 

HEA requires schools to include in their 


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62756 Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 

statistics crimes that are reported, not 

crimes that are reported and proven to 

have occurred. We reiterate that, for 

purposes of Clery Act reporting, all sex 

offenses that are reported to a campus 

security authority must be included 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. 

We note the comments suggesting that 

a definition of ‘‘consent’’ was needed so 

institutions do not defer to law 

enforcement for determining whether 

there was consent. However, as 

discussed earlier, a definition of 

‘‘consent’’ is not needed for purposes of 

reporting crimes under the Clery Act. If 

an institution needs to develop a 

definition of ‘‘consent’’ for purposes of 

its proceedings it can develop a 

definition that is appropriate to its 

administrative proceedings based on the 

definition we discussed at negotiated 

rulemaking sessions and definitions 

from experts in the field. 

Changes: None. 

Dating Violence 

Comments: We received numerous 

comments related to the definition of 

‘‘dating violence.’’ In particular, the 

commenters addressed: The basis for 

determining whether the victim and the 

perpetrator are in a social relationship 

of a romantic or intimate nature; what 

would be considered ‘‘violence’’ under 

this definition; and how to distinguish 

between dating violence and domestic 

violence. 

Social Relationship of a Romantic or 

Intimate Nature 

Several individuals commented on 

the proposal in the NPRM that, for Clery 

Act purposes, the determination of 

whether or not the victim and the 

perpetrator were in a social relationship 

of a romantic or intimate nature would 

be made based on the reporting party’s 

statement and taking into consideration 

the length of the relationship, the type 

of relationship, and the frequency of 

interaction between the persons 

involved in the relationship. Some of 

the commenters expressed support for 

this provision. While supporting this 

approach, other commenters stressed 

the need for the institution to place 

significant weight on the reporting 

party’s statement and to allow for a 

balanced and flexible determination of 

the relationship status. However, these 

commenters were also concerned that 

institutional officials making judgments 

about the length of the relationship, the 

type of relationship, and the frequency 

of the relationship may omit dating 

relationships where the reporting party 

describes the relationship as ‘‘talking,’’ 

‘‘hanging out,’’ ‘‘seeing one another,’’ 

‘‘hooking up,’’ and so on. Along these 

lines, some of the commenters 

recommended expanding the definition 

of ‘‘dating’’ to encompass social or 

romantic relationships that are casual or 

serious, monogamous or nonmonogamous, and of long or short 

duration. 

One commenter raised concerns about 

using a third party’s assessment when 

determining whether the victim and the 

accused were in a social relationship of 

a romantic or intimate nature. The 

commenter argued that, absent the 

victim’s characterization of the 

relationship, third party reporters would 

be unable to make an accurate 

evaluation of the relationship and that 

statistics would therefore be inaccurate. 

The commenter suggested that it would 

be inappropriate to rely on a third 

party’s characterization of a 

relationship, and that in this situation 

the incident should be included as a 

‘‘sex offense’’ and not as dating 

violence. Further, the commenter 

asserted that the lack of State standards 

for determining what constitutes dating 

violence, combined with the need to 

determine the nature of a relationship, 

would complicate the question of how 

to categorize certain incidents and could 

lead to inconsistencies in statistics, 

making comparisons across institutions 

difficult. 

Inclusion of Psychological or Emotional 

Abuse 

Some commenters supported the 

proposal to define ‘‘dating violence’’ to 

include sexual or physical violence or 

the threat of such abuse. These 

commenters expressed concerns about 

how institutions would operationalize a 

definition that included more subjective 

and less concrete behavior, such as 

psychological and emotional abuse. 

However, numerous commenters raised 

concerns about our proposal not to 

include psychological or emotional 

abuse in the definition of ‘‘dating 

violence.’’ Many of these commenters 

urged the Department to expand the 

definition of ‘‘dating violence’’ to 

explicitly include emotional and 

psychological abuse. The commenters 

argued that an expanded definition 

would more accurately reflect the range 

of victims’ experiences of abuse and 

recognize the serious and disruptive 

impact that these forms of violence 

have. The commenters believed that the 

reference to the threat of sexual or 

physical abuse did not sufficiently 

describe these forms of violence and 

that victims would not feel comfortable 

reporting or pressing charges for cases 

in which they were psychologically or 

emotionally abused if the definition did 

not explicitly speak to their experiences. 

Along these lines, some commenters 

believed that not including these forms 

of abuse would exclude significant 

numbers of victimized students from the 

statistics, and they recommended 

revising the definition to encompass the 

range of abuse that all victims face. 

Some of the commenters argued that 

it is inappropriate to exclude 

psychological or emotional abuse from 

the definition of ‘‘dating violence’’ 

simply because they are ‘‘invisible’’ 

forms of violence. In particular, they 

noted that a victim’s self-report of 

sexual or physical abuse would be 

included, even if that abuse is not 

immediately and visibly apparent. They 

argued that, similarly, a victim’s selfreport of emotional or psychological 

abuse should also be included in an 

institution’s statistics. 

Other commenters disagreed with the 

Department’s view that including 

emotional and psychological abuse 

would be inconsistent with the statute. 

In arguing for a broader interpretation of 

‘‘violence’’ for the purposes of ‘‘dating 

violence,’’ they cited Supreme Court 

Justice Sotomayor’s opinion for the 

Court in U.S. v. Castleman, 134 S.Ct. 

1405 (2014) that, ‘‘whereas the word 

‘violent’ or ‘violence’ standing alone 

connotes a substantial degree of force; 

that is not true of ‘domestic violence.’ 

‘Domestic violence’ is a term of art 

encompassing acts that one might not 

characterize as violent in a nondomestic 

context.’’ 134 S.Ct. at 1411. 

Some of the commenters were 

concerned that the proposed regulations 

would set an inadequate starting point 

for prevention programming by not 

portraying psychological or emotional 

abuse as valid forms of violence on 

which to focus prevention efforts, even 

though research indicates that 

emotional or psychological abuse often 

escalates to physical or sexual violence. 

They argued that it was important to 

recognize psychological and emotional 

abuse as forms of violence when 

training students to look for, and to 

intervene when they observe, warning 

signs of behavior that could lead to 

violence involving force. 


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Relationship Between Dating Violence 

and Domestic Violence 

A few commenters raised concerns 

about the statement in the definition of 

‘‘dating violence’’ that provides that 

dating violence does not include acts 

covered under the separate definition of 

‘‘domestic violence.’’ Some commenters 

expressed support for this approach. 

However, one commenter argued that 

using this approach would result in 

most dating violence incidents being 

included in the domestic violence 

category. As a result, institutions would 

report very few dating violence crimes. 

This commenter recommended 

specifically identifying which types of 

relationship violence would be included 

under dating violence rather than 

including this ‘‘catch-all’’ provision. 

One commenter was concerned that 

defining ‘‘dating violence’’ as 

‘‘violence,’’ but defining ‘‘domestic 

violence’’ as ‘‘a felony or misdemeanor 

crime of violence’’ would create a 

higher threshold to report domestic 

violence than dating violence and 

would treat the two types of incidents 

differently based on the status of the 

parties involved. The commenter 

believed that, from a compliance 

perspective, the only determining factor 

between recording an incident as dating 

violence or domestic violence should be 

the relationship of the parties, not the 

nature of the underlying incident. As a 

result, the commenter suggested that 

institutions should be required to count 

dating violence and domestic violence 

crimes only where there is a felony or 

misdemeanor crime of violence. The 

commenter recommended that the 

Department provide additional guidance 

for institutions about what would 

constitute ‘‘violence’’ when the incident 

is not a felony or misdemeanor crime of 

violence. 

Discussion: 

Social Relationship of a Romantic or 

Intimate Nature 

We appreciate the commenters’ 

support for our proposal that the 

determination of whether or not the 

victim and the perpetrator were in a 

social relationship of a romantic or 

intimate nature would be made based 

on the reporting party’s statement and 

taking into consideration the length of 

the relationship, the type of 

relationship, and the frequency of 

interaction between the persons 

involved in the relationship. Institutions 

are responsible for determining whether 

or not an incident meets the definition 

of dating violence, and they must 

consider the reporting party’s 

characterization of the relationship 

when making that determination. We 

stress that generational or other 

differences in terminology and culture 

may mean that a reporting party may 

describe a dating relationship using 

different terms from how an 

institutional official might describe 

‘‘dating.’’ When the reporting party 

asserts that there was a dating 

relationship, institutions should err on 

the side of assuming that the victim and 

the perpetrator were in a dating 

relationship to avoid incorrectly 

omitting incidents from the crime 

statistics and the crime log. The victim’s 

use of terms such as ‘‘hanging out’’ or 

‘‘hooking up’’ rather than ‘‘dating,’’ or 

whether or not the relationship was 

‘‘monogamous’’ or ‘‘serious’’ should not 

be determinative. 

We disagree with the commenter who 

was concerned that a third party who 

makes a report would be unable to 

accurately characterize a relationship. 

Third parties who are reporting an 

incident of dating violence are not 

required to use specific terms to 

characterize the relationship or to 

characterize the relationship at all; 

however, they should be asked whether 

they can characterize the relationship. 

Ultimately, the institution is responsible 

for determining whether the incident is 

an incident of dating violence. 

Furthermore, the commenter’s 

suggestion to classify all third-party 

reports as sexual assaults is unworkable 

because dating violence does not always 

involve a sexual assault. Lastly, this 

commenter’s concern that the lack of 

State laws criminalizing dating violence 

will lead to inaccurate statistics is 

unwarranted because schools must use 

the definition of ‘‘dating violence’’ in 

these final regulations when compiling 

their statistics. 

Inclusion of Psychological or Emotional 

Abuse 

Although we fully support the 

inclusion of emotional and 

psychological abuse in definitions of 

‘‘dating violence’’ used for research, 

prevention, victim services, or 

intervention purposes, we are not 

persuaded that they should be included 

in the definition of ‘‘dating violence’’ for 

purposes of campus crime reporting. We 

are concerned that such a broad 

definition of ‘‘dating violence’’ would 

include some instances of emotional 

and verbal abuse that do not rise to the 

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

statutory definition of dating violence 

under VAWA. With respect to the 

Supreme Court’s opinion in U.S. v. 

Castleman, Justice Sotomayor’s 

statement was made in a very different 

context and that case, which interpreted 

an entirely different statute, is in no way 

controlling here. Furthermore, we 

continue to believe that including 

emotional and psychological abuse in 

the definition would pose significant 

challenges in terms of compliance and 

enforcement of these provisions. 

Relationship Between Dating Violence 

and Domestic Violence 

We disagree with the 

recommendation to remove the 

provision specifying that dating 

violence does not include acts covered 

under the definition of domestic 

violence. This provision is needed to 

prevent counting the same incident 

more than once, because incidents of 

dating violence include a subset of 

incidents that also meet the definition of 

domestic violence. 

Lastly, in response to the concern that 

the threshold for an incident to meet the 

definition of ‘‘domestic violence’’ is 

higher than for ‘‘dating violence,’’ we 

note that this aspect of the definitions 

is consistent with the definitions in 

section 40002(a) of the Violence Against 

Women Act of 1994. We also note that 

an incident that does not constitute a 

felony or misdemeanor crime of 

violence committed by an individual in 

a relationship specified in the definition 

of ‘‘domestic violence’’ nevertheless 

could be recorded as dating violence. 

We believe that this would still provide 

valuable information about the extent of 

intimate partner violence at the 

institution. 

Changes: None. 

Domestic Violence 

Comments: The commenters generally 

supported the proposed definition of 

‘‘domestic violence.’’ However, one 

commenter believed that the definition, 

as written, would require institutions in 

some States to include incidents 

between roommates and former 

roommates in their statistics because 

they would be considered household 

members under the domestic or family 

laws of those jurisdictions. This 

commenter was concerned about 

inadvertently capturing situations in 

which two individuals are living 

together, but are not involved in an 

intimate relationship in the statistics. 

Discussion: We appreciate the 

commenters’ support. With regard to the 

comment about roommates, the final 

definition of ‘‘domestic violence,’’ 

consistent with the proposed definition, 

requires more than just two people 

living together; rather, the people 

cohabitating must be spouses or have an 

intimate relationship. 

Changes: None. 


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FBI’s UCR Program 

Comments: A few commenters 

expressed support for including this 

definition, agreeing that it added clarity 

to the regulations. 

Discussion: We appreciate the 

commenters’ support. 

Changes: None. 

Hate Crime 

Comments: A few commenters 

supported the inclusion of a definition 

of ‘‘hate crime’’ in § 668.46(a) to 

improve the clarity of these regulations. 

The commenters also supported the 

inclusion of gender identity and 

national origin as categories of bias that 

would serve as the basis for identifying 

a hate crime, as discussed under 

‘‘Recording hate crimes.’’ 

Discussion: We appreciate the 

commenters’ support. 

Changes: None. 

Hierarchy Rule 

Comments: The commenters generally 

supported the inclusion of a definition 

of the term ‘‘Hierarchy Rule’’ in 

§ 668.46(a). One commenter, however, 

recommended that we clarify in the 

definition that a case of arson is an 

exception to the rule that when more 

than one offense is committed during a 

single incident, only the most serious 

offense is counted. The commenter said 

that arson is always counted. 

Discussion: We appreciate the 

commenters’ support. The commenter is 

correct that there is a general exception 

to the Hierarchy Rule in the Summary 

Reporting System from the FBI’s UCR 

Program for incidents involving arson. 

When multiple reportable incidents are 

committed during the same incident in 

which there is also arson, institutions 

must report the most serious criminal 

offense along with the arson. We have 

not made the treatment of arson explicit 

in the definition of ‘‘Hierarchy Rule,’’ 

however, because we believe that it is 

more appropriate to state the general 

rule in the definitions section and 

clarify how arson must be recorded in 

§ 668.46(c)(9), which explains how 

institutions must apply the Hierarchy 

Rule. Please see ‘‘Using the FBI’s UCR 

Program and the Hierarchy Rule’’ for 

additional discussion. 

Changes: None. 

Programs To Prevent Dating Violence, 

Domestic Violence, Sexual Assault, and 

Stalking 

Comments: Many commenters 

strongly supported the proposed 

definition of ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking.’’ They 

believed that the definition would 

promote the development of effective 

prevention programs that focus on 

changing social norms and campus 

climates instead of focusing on 

preventing single incidents of abuse 

from occurring, and it would promote 

programs that do not engage in 

stereotyping or victim blaming. In 

particular, many commenters expressed 

support for the language requiring that 

an institution’s programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking be culturally 

relevant, inclusive of diverse 

communities and identities, sustainable, 

responsive to community needs, and 

informed by research or assessed for 

value, effectiveness, or outcome. 

Other commenters recommended 

several changes to the definition. 

Several commenters recommended 

requiring that an institution’s 

prevention programs be informed by 

research and assessed for value, 

effectiveness or outcome, rather than 

allowing one or the other. One 

commenter, although agreeing that it is 

important for programs to be researchbased, stressed the need to identify the 

source of research and what would 

qualify as ‘‘research-based.’’ This 

commenter was also concerned that 

institutions without the funding to 

support home-grown prevention 

education staff would use ‘‘check-thebox’’ training offered by third party 

training and education vendors to meet 

this requirement. 

One commenter supported the 

definition but urged the Department to 

explicitly require institutions to include 

programs focused on the lesbian, gay, 

bisexual, transgender, and queer 

(LGBTQ) community to meet this 

requirement. The commenter believed 

that it is important to name LGBTQ 

community programs in this definition 

because evidence suggests that LGBTQ 

students are frequently targets of sexual 

violence. Several other commenters 

stressed that prevention programs need 

to address the unique barriers faced by 

some of the communities within an 

institution’s population. 

One commenter stated that computerbased prevention programs can be 

effective, but believed that such training 

would not satisfy the requirement that 

prevention training be comprehensive, 

intentional, and integrated. Another 

commenter stated that the regulations 

should specify that a ‘‘one-time’’ 

training does not comply with the 

definition because a comprehensive 

prevention framework requires an 

ongoing prevention strategy, in 

partnership with local rape crisis 

centers or State sexual assault 

coalitions, or both. 

One commenter was concerned that 

the phrases ‘‘culturally relevant’’ and 

‘‘informed by research or assessed for 

value, effectiveness, or outcome’’ were 

ambiguous, and that it could cost 

institutions significant time and 

resources to develop programs that meet 

this definition. Several commenters 

stressed the need for the Department to 

provide information on best practices 

and further guidance about effective 

programs to support institutions in 

complying with the definition, to help 

ensure that programming reaches all 

parts of an institution, and to help 

minimize burden. Other commenters 

stated that the definition exceeded the 

scope of the statute and would be timeconsuming and expensive to implement, 

especially for small institutions. 

Discussion: We appreciate the 

commenters’ support, and we believe 

that this definition is consistent with 

the statute and will serve as a strong 

foundation for institutions that are 

developing primary prevention and 

awareness programs and ongoing 

prevention and awareness campaigns, as 

required under § 668.46(j). We agree 

with the commenters that these 

programs should focus on changing the 

social norms and stereotypes that create 

conditions in which sexual violence 

occurs, and that these programs must be 

tailored to the individual communities 

that each school serves to ensure that 

they are culturally relevant and 

inclusive of, and responsive to, all parts 

of a school’s community. As discussed 

in the NPRM, this definition is designed 

to provide that institutions must tailor 

their programs to their students’ and 

employees’ needs (i.e. that the programs 

must be ‘‘culturally relevant’’). We note 

that these programs include ‘‘ongoing 

prevention and awareness campaigns,’’ 

which, as defined in § 668.46(j)(2)(iii), 

requires that programs be sustained over 

time. 

We do not agree with the 

recommendations to require that these 

programs be both informed by research 

and assessed for value and that we set 

standards for the research or prohibit 

certain forms of training. During the 

negotiations, the negotiators discussed 

the extent to which an institution’s 

prevention programs must be based on 

research and what types of research 

would be acceptable. Ultimately, they 

agreed that ‘‘research’’ should be 

interpreted broadly to include research 

conducted according to scientific 

standards as well as assessments for 

efficacy carried out by institutions and 

other organizations. There is a relative 

lack of scientific research showing what 

makes programs designed to prevent 

dating violence, domestic violence, 


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sexual assault, and stalking effective. 

Adopting the limitations suggested by 

the commenter could significantly limit 

the types of programs that institutions 

develop, and could preclude the use of 

promising practices that have been 

assessed for value, effectiveness, or 

outcome but not subjected to a scientific 

review. We believe that this definition 

will help to guard against institutions 

using approaches and strategies that 

research has proven to be ineffective 

and that reinforce and perpetuate 

stereotypes about gender roles and 

behaviors, among other things. 

We do not agree with the 

recommendations to specify in the 

definition that these programs must 

include a component focused on 

LGBTQ students. We believe that the 

requirement that institutions consider 

the needs of their campus communities 

and be inclusive of diverse communities 

and identities will ensure that the 

programs include LGBTQ students, 

students with disabilities, minority 

students, and other individuals. 

With respect to the comment asking 

whether computer-based programming 

could be ‘‘comprehensive, intentional, 

and integrated’’, the statute requires 

institutions to provide these programs 

and to describe them in their annual 

security reports. However, the 

Department does not have the authority 

to mandate or prohibit the specific 

content or mode of delivery for these 

programs or to endorse certain methods 

of delivery (such as computer based 

programs) as long as the program’s 

content meets the definition of 

‘‘programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking.’’ Similarly, institutions may 

use third party training vendors so long 

as the actual programs offered meet the 

definitions for ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking.’’ 

We encourage institutions to draw on 

the knowledge and experience of local 

rape crisis centers and State sexual 

assault coalitions when developing 

programs. Over time, we hope to share 

best practices based on research on 

effective approaches to prevention that 

institutions may use to inform and tailor 

their prevention programming. 

Although we understand institutions’ 

concerns about the burden associated 

with developing prevention programs, 

the statute requires institutions to 

develop these programs. In terms of 

providing programs that meet this 

specific definition, we reiterate that we 

are committed to providing institutions 

with guidance where possible to clarify 

terms such as ‘‘culturally relevant’’ and 

to minimize the additional costs and 

burden. As discussed previously under 

‘‘General,’’ the White House Task Force 

to Protect Students from Sexual Assault 

has developed guidance and continues 

to develop model policies and best 

practices related to preventing sexual 

assault and intimate partner violence on 

college campuses. We expect that these 

resources will help schools to develop 

the types of programs that these 

regulations require, resulting in less 

burden. 

Changes: None. 

Sexual Assault 

Comments: The commenters generally 

supported our proposal to include this 

definition in the regulations. They 

agreed that specifying that, for the 

purposes of the Clery Act statistics, 

‘‘sexual assault’’ includes rape, 

fondling, incest, or statutory rape, as 

those crimes are defined in the FBI’s 

UCR program, would clarify the 

regulations and ensure more consistent 

reporting across institutions. 

Discussion: We appreciate the 

commenters’ support. 

Changes: None. 

Stalking 

Comments: The commenters generally 

supported the proposed definition of 

‘‘stalking.’’ In particular, many of the 

commenters supported defining the 

term ‘‘course of conduct’’ broadly to 

include all of the various forms that 

stalking can take and the range of 

devices or tactics that perpetrators use, 

including electronic means. These 

commenters also supported the 

proposed definition of ‘‘reasonable 

person’’ as a reasonable person under 

similar circumstances and with similar 

identities to the victim. 

One commenter suggested modifying 

the definition of stalking to include 

consideration of the extent to which the 

victim indicates that the stalking has 

affected them or interfered with their 

education. 

Other commenters raised concerns 

about the proposed definition. Some 

commenters believed that the proposed 

definition was overly broad. One 

commenter argued that the proposed 

definition was inconsistent with the 

description of stalking in 18 U.S.C. 

2261A, as amended by VAWA, which 

prohibits actions committed with a 

criminal intent to kill, injure, harass, or 

intimidate. This commenter believed 

that the final regulations should require 

that to be included as stalking in the 

institution’s statistics, there had to be a 

determination that the perpetrator had 

the intent to cause substantial emotional 

distress rather than requiring that the 

course of conduct have the effect of 

causing substantial emotional distress. 

Otherwise, the commenter believed that 

the proposed definition raised First 

Amendment concerns by impermissibly 

restricting individual speech. 

Lastly, several commenters expressed 

concern that the proposed definition of 

‘‘substantial emotional distress’’ risked 

minimizing the wide range of responses 

to stalking and trauma. The commenters 

believed that institutions would 

overlook clear incidences of stalking in 

cases where the victim is not obviously 

traumatized or is reacting in a way that 

does not comport with the decision 

maker’s preconceived expectations of 

what a traumatic reaction should look 

like. Along these lines, some 

commenters believed that the definition 

was too subjective and were concerned 

that it could make it challenging for 

institutions to investigate a report of 

stalking. 

Discussion: We appreciate the 

commenters’ support for our proposed 

definition. 

The statutory definition of ‘‘stalking’’ 

in section 40002(a) of the Violence 

Against Women Act of 1994 (which the 

Clery Act incorporates by reference) 

does not refer to or support taking into 

account the extent to which the stalking 

interfered with the victim’s education. 

We disagree with the commenters 

who argued that the definition of 

stalking is overly broad, and raises First 

Amendment concerns. Section 304 of 

VAWA amended section 485(f)(6)(A) of 

the Clery Act to specify that the term 

‘‘stalking’’ has the meaning given that 

term in section 40002(a) of the Violence 

Against Women Act of 1994. Thus, the 

HEA is clear that the definition of 

‘‘stalking’’ in section 40002(a) of the 

Violence Against Women Act of 1994 

should be used for Clery Act purposes— 

not the definition in the criminal code 

(18 U.S.C. § 2261A). Section 40002(a) of 

the Violence Against Women Act of 

1994 defines ‘‘stalking’’ to mean 

‘‘engaging in a course of conduct 

directed at a specific person that would 

cause a reasonable person to fear for his 

or her safety or the safety of others; or 

suffer substantial emotional distress.’’ In 

these final regulations, we have defined 

the statutory phrase ‘‘course of conduct’’ 

broadly to capture the wide range of 

words, behaviors, and means that 

perpetrators use to stalk victims, and, as 

a result, cause their victims to fear for 

their personal safety or the safety of 

others or suffer substantial emotional 

distress. This definition serves as the 

basis for determining whether an 

institution is in compliance with the 

Clery Act and does not govern or limit 

an individual’s speech or behavior 

under the First Amendment. 


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We appreciate the commenters’ 

concern that the definition would lead 

institutions to undercount the number 

of stalking incidents based on a 

misunderstanding of the victim’s 

reaction. We encourage institutions to 

consider the wide range of reactions that 

a reasonable person might have to 

stalking. Institutions should not exclude 

a report of stalking merely because the 

victim’s reaction (or the description of 

the victim’s reaction by a third party) 

does not match expectations for what 

substantial emotional distress might 

look like. 

Changes: None. 

Sec. 668.46(b) Annual Security Report 

Policies Concerning Campus Law 

Enforcement (§ 668.46(b)(4)) 

Comments: The commenters generally 

supported the proposed changes in 

§ 668.46(b)(4) that would: Clarify the 

term ‘‘enforcement authority of security 

personnel;’’ require institutions to 

address in the annual security report 

any memoranda of understanding 

(MOU) in place between campus law 

enforcement and State and local police 

agencies; and clarify that institutions 

must have a policy that encourages the 

reporting of crimes to campus law 

enforcement when the victim elects to 

or is unable to report the incident. They 

believed that these changes would 

clearly define for students and 

employees the different campus and 

local law enforcement agencies and the 

reporting options based on Clery 

geography, improve transparency about 

any relevant MOUs, and empower 

victims to make their own decisions 

about whether or not to report an 

incident. 

One commenter requested guidance 

on the applicability of § 668.46(b)(4) to 

smaller institutions and institutions 

without campus law enforcement or 

campus security personnel. 

Several commenters raised concerns 

about the phrase ‘‘elects to or is unable 

to make such a report’’ in 

§ 668.46(b)(4)(iii). Some believed that 

the language could be confusing without 

additional context and could be 

incorrectly interpreted to include 

situations in which a victim is 

unwilling to make a report. These 

commenters recommended clarifying in 

the final regulations that ‘‘unable to 

make such a report’’ means physically 

or mentally incapacitated and does not 

refer to situations in which someone 

may be unwilling—i.e., psychologically 

unable—to report because of fear, 

coercion, or any other reason. One 

commenter asked how this provision 

would apply in situations in which an 

institution is subject to mandatory 

reporting of crimes against children or 

individuals with certain disabilities 

occurring on an institution’s Clery 

geography. 

Several commenters urged the 

Department to mandate, or at a 

minimum, encourage institutions to 

make clear to students and employees 

what opportunities exist for making 

confidential reports for inclusion in the 

Clery Act statistics, for filing a title IX 

complaint with the institution, or for 

obtaining counseling or other services 

without initiating a title IX investigation 

by the institution or a criminal 

investigation. These commenters 

explained that providing information 

about the range of options for reporting 

to campus authorities would empower 

victims to make informed choices and 

would foster a climate in which more 

victims come forward to report. Along 

these lines, one commenter requested 

that the Department provide a model or 

suggestion for a reporting regime that 

institutions could use to satisfy the 

confidential reporting provisions in the 

Clery Act and title IX. 

Discussion: We appreciate the 

commenters’ support for these 

provisions. All institutions participating 

in the title IV, HEA programs, regardless 

of size or whether or not they have 

campus law enforcement or security 

personnel, must address their current 

policies concerning campus law 

enforcement in their annual security 

report. This information will vary 

significantly in terms of detail, content, 

and complexity based on the school’s 

particular circumstances. However, all 

institutions must address each of the 

elements of this provision. If an 

institution does not have a policy for 

one of these elements because, for 

example, it does not have campus law 

enforcement staff, the institution must 

provide this explanation. 

With regard to the concerns about the 

phrase ‘‘elects to or is unable to make 

such a report,’’ we note that the 

negotiators discussed this issue 

extensively and ultimately agreed to 

include the statutory language of 

‘‘unable to report,’’ in the regulations. 

The negotiators believed that this 

language captured both physical and 

mental incapacitation. The committee 

did not intend for ‘‘unable to report’’ to 

include situations where a victim is 

unwilling to report, consistent with the 

commenter’s suggestion. We believe that 

this language appropriately strikes a 

balance between empowering victims to 

make the decision about whether and 

when to report a crime and encouraging 

members of the campus community to 

report crimes of which they are aware. 

Additionally, as required under 

§ 668.46(c)(2), all crimes that occurred 

on or within an institution’s Clery 

geography that are reported to local 

police or a campus security authority 

must be included in the institution’s 

statistics, regardless of whether an 

institution is subject to mandatory 

reporting of crimes against children or 

individuals with certain disabilities. 

The requirement in § 668.46(c)(2) is 

unaffected by § 668.46(b)(4)(iii), which 

addresses an institution’s policies on 

encouraging others to accurately report 

crimes. 

We agree with the commenters that it 

is important for institutions to make 

clear to students and employees how to 

report crimes confidentially for 

inclusion in the Clery Act statistics. We 

note that institutions must address 

policies and procedures for victims or 

witnesses to report crimes on a 

voluntary, confidential basis for 

inclusion in the annual disclosure of 

crime statistics. The Clery Act does not 

require institutions to include in their 

annual security report procedures for 

filing a title IX complaint with the 

institution or how to obtain counseling 

or other services without initiating a 

title IX investigation by the institution 

or a criminal investigation. The White 

House Task Force to Protect Students 

from Sexual Assault has developed 

some materials to support institutions in 

complying with the requirements under 

the Clery Act and title IX, and we intend 

to provide additional guidance in the 

Handbook for Campus Safety and 

Security Reporting. 

Changes: None. 

Procedures Victims Should Follow If a 

Crime of Dating Violence, Domestic 

Violence, Sexual Assault, or Stalking 

Has Occurred (§ 668.46(b)(11)(ii)) 

Comments: The commenters 

expressed support for the requirement 

that institutions inform victims of 

dating violence, domestic violence, 

sexual assault, or stalking of: 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; 

their options and how to notify law 

enforcement authorities; and their 

option to decline to notify those 

authorities. The commenters believed 

that providing this information would 

dramatically improve the clarity and 

accessibility of criminal reporting 

processes for students and employees, 

and they strongly urged the Department 

to retain these provisions. 

Some commenters suggested 

expanding these provisions to require 

institutions to provide additional 


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information to victims. One commenter 

recommended requiring institutions to 

include information about where to 

obtain a forensic examination at no cost 

when explaining the importance of 

preserving evidence. The commenter 

further recommended requiring 

institutions to inform victims that 

completing a forensic examination does 

not require someone to subsequently file 

a police report. 

Another commenter recommended 

revising § 668.46(b)(11)(ii)(C) to also 

require institutions to inform victims of 

how to request institutional protective 

measures and pursue disciplinary 

sanctions against the accused, including 

filing a title IX complaint with the 

institution. 

One commenter recommended 

requiring institutions to go beyond 

assisting a victim in notifying law 

enforcement and to also help them 

while they are working with prosecutors 

and others in the criminal justice system 

by allowing flexible scheduling for 

completing papers and exams and by 

providing transportation, leaves of 

absence, or other supports. 

Another commenter recommended 

modifying § 668.46(b)(11)(ii)(D) to 

further require institutions to disclose 

the definitions of dating violence, 

domestic violence, sexual assault, 

stalking, and consent that would apply 

if a victim wished to obtain orders of 

protection, ‘‘no-contact’’ orders, 

restraining orders, or similar lawful 

orders issued by a criminal, civil, or 

tribal court or by the institution. 

Finally, one commenter was unsure 

about how institutions should 

implement § 668.46(b)(11)(ii)(C)(3) 

which would require institutions to 

explain to victims that they can decide 

not to notify law enforcement 

authorities, including on-campus and 

local police. The commenter was 

particularly concerned about how this 

would be applied in States with 

mandatory reporting requirements. 

Discussion: We appreciate the 

commenters’ support. We believe that 

the requirement that institutions 

provide this information will improve 

the clarity and accessibility of criminal 

reporting processes for students and 

employees. 

Institutions must provide information 

to victims about the importance of 

preserving evidence that may assist in 

proving that the alleged criminal offense 

occurred or that may be helpful in 

obtaining a protection order. The statute 

does not require institutions to provide 

information specifically about where to 

obtain forensic examinations; however, 

we urge institutions to provide this 

information when stressing the 

importance of preserving evidence. We 

encourage institutions to make clear in 

their annual security report that 

completing a forensic examination 

would not require someone to file a 

police report. While some victims may 

wish to file a police report immediately 

after a sexual assault, others may wish 

to file a report later or to never file a 

police report. Regardless, institutions 

may wish to advise students that having 

a forensic examination would help 

preserve evidence in the case that the 

victim changes their mind about how to 

proceed. For further discussion on 

forensic evidence please see ‘‘Services 

for victims of dating violence, domestic 

violence, sexual assault, or stalking’’. 

With regard to the recommendation to 

modify § 668.46(b)(11)(ii)(C) to require 

institutions to inform victims of how to 

request institutional protective 

measures, we note that this provision is 

intended to ensure that victims 

understand that they can choose 

whether or not to notify appropriate law 

enforcement authorities, and that if they 

choose to notify those authorities, 

campus authorities will help them to do 

so. We do not believe that information 

about how to request institutional 

protective measures belongs in this 

provision. However, an institution must 

provide victims of dating violence, 

domestic violence, sexual assault, and 

stalking with written notification that it 

will make accommodations and provide 

protective measures for the victim if 

requested and reasonably available 

under § 668.46(b)(11)(v). As part of this 

notification, an institution must inform 

victims of how to request those 

accommodations or protective 

measures. Additionally, under 

§ 668.46(b)(11)(vi) and (k), an institution 

must include information about its 

disciplinary procedures for allegations 

of dating violence, domestic violence, 

sexual assault, and stalking in its annual 

security report. We agree with the 

commenter that this statement should 

include information for how to file a 

disciplinary complaint, and we have 

modified § 668.46(k)(1)(i) to make this 

clear. 

We believe that the provisions in 

§ 668.46(b)(11)(ii) and (v) adequately 

address the commenter’s concern about 

providing institutional supports for 

victims who opt to file a criminal 

complaint after dating violence, 

domestic violence, sexual assault, or 

stalking. In particular, institutions must 

provide accommodations related to the 

victim’s academic, living, 

transportation, and working situation if 

the victim requests those 

accommodations and if they are 

reasonably available. Institutions may 

provide additional accommodations. We 

strongly encourage institutions to 

provide these types of accommodations 

to support students while they are 

involved with the criminal justice 

system, and we encourage them to work 

with victims to identify the best ways to 

manage those accommodations. 

We disagree with the 

recommendation to require institutions 

to provide the definitions of dating 

violence, domestic violence, sexual 

assault, stalking, and consent that 

would apply for someone to obtain a 

protection order or similar order from a 

court or the institution. This provision 

is intended to ensure that individuals 

understand what an institution’s 

responsibilities are for enforcing these 

types of orders. Jurisdictions vary 

widely in the standards that they use 

when issuing a protection order or 

similar order, and it would not be 

reasonable to expect an institution to 

identify all of these possible standards 

in its annual security report. Institutions 

must provide the definitions of dating 

violence, domestic violence, sexual 

assault, and stalking, as defined in 

§ 668.46(a), as well as the definitions of 

dating violence, domestic violence, 

sexual assault, stalking, and consent (in 

reference to sexual activity) in their 

jurisdiction in their annual security 

report. We believe that it will be clear 

in the annual security report what 

definitions would apply if an institution 

is asked to issue a protection order or 

similar order and that additional 

clarification in § 668.46(b)(11)(ii)(D) is 

not needed. 

Lastly, these regulations require 

institutions to explain in their annual 

security report a victim’s options for 

involving law enforcement and campus 

authorities after dating violence, 

domestic violence, sexual assault, or 

stalking has occurred, including the 

options to notify proper law 

enforcement authorities, to be assisted 

by campus authorities in notifying law 

enforcement authorities, and to decline 

to notify law enforcement authorities. 

This requirement does not conflict with 

an institution’s obligation to comply 

with mandatory reporting laws because 

the regulatory requirement relates only 

to the victim’s right not to report, not to 

the possible legal obligation on the 

institution to report. 

As discussed previously under 

‘‘Policies concerning campus law 

enforcement,’’ institutions must 

describe any policies or procedures in 

place for voluntary, confidential 

reporting of crimes for inclusion in the 

institution’s Clery Act statistics. 

Although this requirement applies only 

to Clery Act crimes, institutions may 


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wish to reiterate or reference their 

policies and procedures that are specific 

to dating violence, domestic violence, 

sexual assault, and stalking to ensure 

that victims are aware of where they can 

go to report any crime confidentially. 

Changes: We have revised 

§ 668.46(k)(1)(i) to make it explicit that 

institutions must also provide 

information in the annual security 

report on how to file a disciplinary 

complaint. 

Protecting Victim Confidentiality 

(§ 668.46(b)(11)(iii)) 

Comments: The commenters generally 

supported requiring institutions to 

address, in their annual security report, 

how they will protect the confidentiality 

of victims and other necessary parties 

when completing publicly available 

recordkeeping requirements or 

providing accommodations or protective 

measures to the victim. These 

commenters asserted that protecting 

victim confidentiality is critical to 

efforts to support a campus climate in 

which victims feel safe coming forward. 

Additionally, several commenters 

expressed support for incorporating the 

definition of ‘‘personally identifying 

information’’ in section 40002(a)(20) of 

the Violence Against Women Act of 

1994 in these regulations. 

Several commenters, however, raised 

some concerns and questions about this 

requirement. Some commenters 

believed that the Department should 

limit institutions’ discretion in 

determining whether maintaining a 

victim’s confidentiality would impair 

the ability of the institution to provide 

accommodations or protective 

measures. These commenters believed 

that institutions should have to obtain 

the informed, written, and reasonably 

time-limited consent of the victim 

before sharing personally identifiable 

information that they believe to be 

necessary to provide the 

accommodation or protective measures 

or, at a minimum, notify the victim 

when it determines that the disclosure 

of that information is needed. 

A few commenters noted that it can 

be very difficult to provide a victim 

with total confidentiality. One 

commenter asserted that, in some cases, 

merely including the location of a rape, 

for instance, as part of a timely warning, 

can inadvertently identify the victim. 

Another commenter noted that some 

institutions, particularly those with very 

small populations or very limited 

numbers of reportable crimes, might not 

be able to achieve the goals of the Clery 

Act without disclosing the victim’s 

identity. The commenters requested 

guidance on how to implement the 

proposed requirements in these 

circumstances, when it might be 

impossible to fully protect 

confidentiality. 

Discussion: We appreciate the 

commenters’ support. We believe that 

this provision makes it clear that 

institutions must protect a victim’s 

confidentiality while also recognizing 

that, in some cases, an institution may 

need to disclose some information about 

a victim to a third party to provide 

necessary accommodations or protective 

measures. Institutions may disclose only 

information that is necessary to provide 

the accommodations or protective 

measures and should carefully consider 

who may have access to this 

information to minimize the risk to a 

victim’s confidentiality. We are not 

requiring institutions to obtain written 

consent from a victim before providing 

accommodations or protective 

measures, because we do not want to 

limit an institution’s ability to act 

quickly to protect a victim’s safety. 

However, we strongly encourage 

institutions to inform victims before 

sharing personally identifiable 

information about the victim that the 

institution believes is necessary to 

provide an accommodation or protective 

measure. 

As discussed under ‘‘Timely 

warnings,’’ we recognize that in some 

cases, an institution may need to release 

information that may lead to the 

identification of the victim. We stress 

that institutions must balance the need 

to provide information to the campus 

community while also protecting the 

confidentiality of the victim to the 

maximum extent possible. 

Change: None. 

Services for Victims of Dating Violence, 

Domestic Violence, Sexual Assault, or 

Stalking (§ 668.46(b)(11)(iv)) 

Comments: The commenters 

expressed support for the proposed 

provision requiring institutions to 

provide victims of dating violence, 

domestic violence, sexual assault, and 

stalking with information about 

available services and assistance both 

on campus and in the community that 

could be helpful and informative. In 

particular, several commenters 

supported the requirement that 

institutions provide victims with 

information about visa and immigration 

services. Some of the commenters 

recommended also requiring 

institutions to provide student victims 

with financial aid information, noting 

that this can be critical to a student’s 

persistence in higher education. 

Discussion: We appreciate the 

commenters’ support. We also agree that 

it is critical for schools to provide 

student victims with financial aidrelated services and information, such 

as information about how to apply for 

a leave of absence or about options for 

addressing concerns about loan 

repayment terms and conditions and are 

revising the regulations accordingly. An 

institution must address in its annual 

security report what services are 

available. This notification should 

provide information about how a 

student or employee can access these 

services or request information, such as 

providing a contact person whom 

student victims may contact to 

understand their options with regard to 

financial aid. 

We also note that information about 

health services that are available on 

campus and in the community would 

include information about the presence 

of, and services provided by, forensic 

nurses, if available. We recommend that 

institutions provide information to 

victims about forensic nurses who may 

be available to conduct a forensic 

examination, but we also suggest that 

they inform victims that having a 

forensic examination does not require 

them to subsequently file a police 

report. Including this information will 

improve the likelihood that victims will 

take steps to have evidence preserved in 

case they file criminal charges or 

request a protection order. 

Additionally, we encourage 

institutions to reach out to organizations 

that assist victims of dating violence, 

domestic violence, sexual assault, and 

stalking, such as local rape crisis centers 

and State and territorial coalitions 

against domestic and sexual violence, 

when developing this part of the annual 

security report. These types of 

organizations might provide resources 

and services to victims that can 

complement or supplement the services 

available on campus. 

Changes: We have added ‘‘student 

financial aid’’ to the list of services 

about which institutions must alert 

victims. 

Accommodations and Protective 

Measures for Victims of Dating 

Violence, Domestic Violence, Sexual 

Assault, or Stalking (§ 668.46(b)(11)(v)) 

Comments: The commenters strongly 

supported proposed § 668.46(b)(11)(v), 

which would require institutions to 

specify in their annual security reports 

that they will provide written 

notification to victims of dating 

violence, domestic violence, sexual 

assault, or stalking of accommodations 

available to them and that the 

institution will provide those 

accommodations if requested by the 


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victim, regardless of whether the victim 

chooses to report the crime to the 

campus public safety office or to local 

law enforcement. The commenters 

stated that these accommodations are 

critical for supporting victims and for 

reducing barriers that can lead victims 

to drop out of school or leave a job. 

Some of the commenters 

recommended strengthening this 

provision by requiring institutions to 

also disclose the process the victim 

should use to request accommodations. 

One commenter asked for guidance 

about what schools could require from 

a student who requests accommodations 

and whether it would be appropriate to 

expect that the student will disclose 

sufficient information to determine the 

potential nature of the crime and 

whether or not the student has sought 

support, such as counseling, elsewhere. 

Other commenters requested additional 

guidance around the meaning of 

‘‘options for’’ accommodations and 

what would be considered ‘‘reasonably 

available.’’ Additionally, some 

commenters noted that institutions 

could offer accommodations other than 

those listed in the regulations. 

Discussion: We appreciate the 

commenters’ support. We agree that the 

proposed regulations did not make it 

sufficiently clear that, in notifying 

victims of dating violence, domestic 

violence, sexual assault, and stalking 

that they may request accommodations, 

institutions must specify how to request 

those accommodations. We have 

clarified the regulations to provide that 

institutions must explain how to request 

accommodations and protective 

measures. In complying with this 

requirement, we expect institutions to 

include the name and contact 

information for the individual or office 

that would be responsible for handling 

these requests so that victims have easy 

access to this information. 

We note that institutions must 

provide victims with written 

notification of their option to request 

changes in their academic, living, 

transportation, and working situations, 

and they must provide any 

accommodations or protective measures 

that are reasonably available once the 

student has requested them, regardless 

of whether the student has requested or 

received help from others or whether 

the student provides detailed 

information about the crime. An 

accommodation or protective measure 

for a victim must be reasonably 

available, and what is ‘‘reasonably 

available’’ must be determined on a 

case-by-case basis. Institutions are 

expected to make reasonable efforts to 

provide acceptable accommodations or 

protective measures, but if a change of 

living or academic situation or 

protective measure requested by a 

victim is unreasonable, an institution is 

not required to make the change or 

provide the protective measure. 

However, institutions are not required 

to list all examples of acceptable 

accommodations or protective measures 

in the annual security report. 

We stress that institutions may 

provide information about 

accommodations or protective measures 

beyond those included in these final 

regulations. 

Changes: We have revised 

§ 668.46(b)(11)(v) to specify that an 

institution must notify victims of dating 

violence, domestic violence, sexual 

assault, and stalking of how to request 

changes to academic, living, 

transportation, and working situations 

and how to request protective measures. 

Written Explanation of Rights and 

Options (§ 668.46(b)(11)(vii)) 

Comments: Several commenters 

supported providing victims of dating 

violence, domestic violence, sexual 

assault, or stalking with written 

notification of their rights and options. 

A few other commenters made 

suggestions for modifying or 

strengthening this provision. One 

commenter suggested specifying in the 

regulations that institutions may meet 

their obligations by providing a victim 

with a copy of the annual security 

report, noting that the annual security 

report contains all of the information 

required to be in the written 

notification. Another commenter 

believed that this written notification 

should be provided to all students each 

year, not just to those who are victims 

of dating violence, domestic violence, 

sexual assault, or stalking, and that the 

notification should be posted on line. 

The commenter opined that highlighting 

victims’ rights could help to educate the 

campus community and suggested that 

it could also serve as a deterrent to 

potential assailants by reminding them 

of the possibility of institutional 

sanctions and criminal prosecution. 

Lastly, one commenter recommended 

requiring institutions to provide 

students and employees who are 

accused of perpetrating dating violence, 

domestic violence, sexual assault, or 

stalking with clear, detailed information 

about their rights and options, 

particularly with regard to institutional 

disciplinary procedures. 

Discussion: We appreciate the 

commenters’ support for this provision. 

We disagree with the commenter who 

suggested that institutions should be 

considered in compliance with this 

provision if they provide a victim with 

a copy of the annual security report. 

Institutions must distribute the annual 

security report to all enrolled students 

and current employees and to all 

prospective students and employees. 

However, the annual security report 

contains a great deal of information 

beyond an institution’s campus sexual 

assault policies. We believe that 

Congress intended for institutions to 

provide a specific document to 

individuals who report that they were 

victims of dating violence, domestic 

violence, sexual assault, or stalking with 

information that they would specifically 

want or need to know. This targeted 

information would be more helpful and 

supportive for victims than directing 

them to the longer, broader annual 

security report. For the general campus 

community, the statute requires 

institutions to distribute their annual 

security report. The statute does not 

support requiring institutions to provide 

the more personalized written 

explanation to the general campus 

community, although an institution may 

choose to make this information widely 

available. The different types of 

information the statute requires 

institutions to provide strikes an 

appropriate balance between ensuring 

that victims have relevant information 

when they are most likely to need it and 

ensuring that the campus community 

has general access to information. 

As discussed under ‘‘Availability of 

Annual Security Report and Statistics,’’ 

we do not have the authority to require 

institutions to publish their annual 

security reports online. However, we 

encourage institutions to do so in order 

to make the annual security reports as 

accessible to students, employees, and 

prospective students and employees as 

possible. 

We agree that it is critical for 

individuals who are accused of 

committing dating violence, domestic 

violence, sexual assault, or stalking to 

be informed of their rights and options, 

particularly as they relate to the 

institution’s disciplinary policies. 

Additionally, we note that responding 

to these sorts of allegations, whether in 

the criminal justice system or in an 

institution’s disciplinary procedures 

will likely be very stressful for the 

accused as well as the accuser. 

Therefore, institutions should consider 

providing the accused with information 

about existing counseling, health, 

mental health, legal assistance, and 

financial aid services both within the 

institution and in the community. 

Although we encourage institutions to 

provide written notification of this sort 

to an accused student or employee, the 


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statute does not refer to or support 

requiring it. 

Changes: None. 

Other Comments Pertaining to Campus 

Sexual Assault Policies 

Comments: One commenter 

recommended requiring institutions to 

specify in their annual security reports 

that victims of sexual assault will not be 

charged with misconduct related to 

drugs or alcohol. The commenter 

explained that since drugs and alcohol 

render an individual incapable of 

consenting to a sexual activity, to the 

extent that an institution has such a 

policy, students and employees would 

benefit from having this explicitly stated 

in the annual security report. 

Discussion: We agree with the 

commenter that it would be helpful for 

victims to know an institution’s policies 

for handling charges of misconduct that 

are related to drugs or alcohol in the 

case of a sexual assault, particularly 

because some victims may not seek 

support or report a sexual assault out of 

fear that they may be subjected to a 

campus disciplinary proceeding for 

breaking an institution’s code of 

conduct related to drug and alcohol use. 

We encourage institutions to consider 

whether their disciplinary policies 

could have a chilling effect on students’ 

reporting of sexual assault or 

participating as witnesses where drugs 

or alcohol are involved, and to make 

their policies in this area clear in the 

annual security report or through other 

communications with the campus 

community about their sexual assaultrelated polices. However, although we 

encourage institutions to include this 

information in their annual security 

reports, the statute does not refer to or 

require it. 

Changes: None. 

Sec. 668.46(c) Crime Statistics 

Crimes That Must Be Reported and 

Disclosed (§ 668.46(c)(1)) 

Comments: The commenters 

overwhelmingly supported including 

the requirement for the reporting and 

disclosure of statistics for dating 

violence, domestic violence, and 

stalking, explaining that the enhanced 

statistics would elevate the seriousness 

of these behaviors and would provide 

important information about the extent 

of these incidents on campuses for 

students, faculty, prospective students 

and their parents, community members, 

researchers, and school administrators. 

However, a few commenters raised 

concerns about how these new 

requirements would be implemented. 

One commenter expressed concern 

about including dating violence as a 

reportable crime when it is only so 

designated in one State. This 

commenter believed that including 

these ‘‘incidents’’ instead of reporting 

behaviors that are ‘‘crimes’’ under 

criminal statutes dilutes the purpose of 

the Clery Act. 

We received several comments in 

response to our question about whether 

the proposed regulations should be 

modified to capture information about 

the relationship between a perpetrator 

and a victim for some or all of the Clery 

Act crimes. Some of the commenters 

urged the Department to maintain the 

approach in the proposed regulations, 

which would not capture detail about 

the relationship between a perpetrator 

and a victim. These commenters 

believed that this approach protects a 

victim’s right to privacy and the victim’s 

right to choose how much detail to 

include when reporting a crime; would 

make it simpler for institutions to 

comply with the regulations; and would 

provide clear, easy-to-understand data 

for students, families, and staff. Other 

commenters, however, recommended 

that the Department require institutions 

to report and disclose the relationship 

between the offender and the victim. 

They believed that this detail would 

provide a more complete picture of the 

nature of crime on college campuses 

and help institutions craft the most 

appropriate response and target their 

prevention resources effectively. 

We also received several comments 

about our proposal to replace the 

existing list of forcible and nonforcible 

sex offenses with rape, fondling, incest, 

and statutory rape to more closely align 

with the FBI’s updated definitions and 

terminology. Numerous commenters 

strongly supported using the definition 

of ‘‘rape’’ in the FBI’s Summary 

Reporting System (SRS) because they 

believed that it is more inclusive of the 

range of behaviors and circumstances 

that constitute rape. Other commenters 

disagreed with the proposal, arguing 

that defining sex or intimate touching 

without advance ‘‘consent’’ as ‘‘sexual 

assault’’ when it would otherwise not be 

defined as such under State law would 

go beyond the Department’s authority. 

Additionally, some commenters 

requested additional clarification about 

what types of incidents would be 

considered rape or sexual assault and 

which would not. 

One commenter recommended that 

we replace the term ‘‘fondling’’ with the 

term ‘‘molestation,’’ arguing that this 

term more accurately portrays the 

gravity of the crime and the seriousness 

of such an allegation. 

Lastly, one commenter recommended 

combining ‘‘incest’’ and ‘‘statutory 

rape’’ into a single category for the Clery 

Act statistics, opining that the 

disaggregation of these statistics could 

create confusion about the statistics and 

that these two crimes are rare on college 

campuses. 

Discussion: We appreciate the 

commenters’ support. In response to the 

commenters who were concerned that 

these regulations would require 

institutions to maintain statistics on 

incidents that may not be considered 

‘‘crimes’’ in many jurisdictions, we note 

that the statistical categories are 

required by section 485(f)(1)(F)(iii) of 

the Clery Act. Further, the HEA 

specifies that ‘‘dating violence,’’ 

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

and ‘‘stalking’’ are to be defined in 

accordance with section 40002(a) of the 

Violence Against Women Act of 1994. 

Although we recognize that these 

incidents may not be considered crimes 

in all jurisdictions, we have designated 

them as ‘‘crimes’’ for the purposes of the 

Clery Act. We believe that this makes it 

clear that all incidents that meet the 

definitions in § 668.46(a) must be 

recorded in an institution’s statistics, 

whether or not they are crimes in the 

institution’s jurisdiction. 

Although we believe that capturing 

data about the relationship between a 

victim and a perpetrator in the statistics 

could be valuable, we are not including 

this requirement in the final regulations 

given the lack of support for, and 

controversy around, this issue that was 

voiced during the negotiations and the 

divergent views of the commenters. 

However, we note that institutions may 

choose to provide additional context for 

the crimes that are included in their 

statistics, so long as they do not disclose 

names or personally identifying 

information about a victim. Providing 

this additional context could provide a 

fuller picture of the crimes involving 

individuals who are in a relationship to 

anyone interested in such data. In 

particular, as discussed under 

‘‘Recording stalking,’’ providing 

narrative information related to 

statistics for stalking may be valuable. 

We appreciate the commenters’ 

support for our proposal to use the FBI’s 

updated definition of ‘‘rape’’ under the 

SRS. With respect to the comments 

objecting to specific aspects of the FBI’s 

definitions, section 485(f)(6)(A)(v) of the 

Clery Act specifies that sex offenses are 

to be reported in accordance with the 

FBI’s UCR program, which these 

regulations reflect. With respect to the 

commenters who requested additional 

clarification on the types of incidents 

that would constitute ‘‘rape’’ or a ‘‘sex 


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offense’’ we refer to the definitions of 

these terms in Appendix A. 

Although not raised by the 

commenters, we have made a slight 

modification to the regulations in 

§ 668.46(c)(1)(ii) to clarify that, 

consistent with section 485(f)(1)(i)(IX) of 

the HEA, institutions must report arrests 

and referrals for disciplinary action for 

liquor law violations, drug law 

violations, and illegal weapons 

possession. 

Changes: We have revised 

§ 668.46(c)(1)(ii) to require institutions 

to report statistics for referrals (in 

addition to arrests) for disciplinary 

action for liquor law violations, drug 

law violations, and illegal weapons 

possession. 

All Reported Crimes Must Be Recorded 

(§ 668.46(c)(2)) 

Comments: We received a few 

comments on our proposal that all 

crimes reported to a campus security 

authority be included in an institution’s 

crime statistics. One commenter 

recommended that the Department 

specify that an institution may 

withhold, or subsequently remove, a 

reported crime from its crime statistics 

if it finds that the report is false or 

baseless (that is, ‘‘unfounded’’). 

Another commenter requested 

clarification about whether third-party 

reports that are provided anonymously 

and that cannot be confirmed should be 

included in an institution’s statistics. 

The commenter was concerned that 

requiring these reports could give rise to 

unsubstantiated accusations from those 

who do not identify themselves as 

victims. 

One commenter was concerned that 

institutions with numerous campus 

security authorities could receive 

multiple reports of the same incident 

and that the duplication could result in 

data that do not accurately represent the 

number of crimes occurring on campus. 

This commenter urged the Department 

to require institutions to review their 

reports to eliminate duplication. 

One commenter believed that 

institutions should be able to remove 

statistics for crimes if a jury or coroner 

has decided that an accused individual 

did not commit the crime. The 

commenter accused the Department of 

designing the regulations to artificially 

inflate the number of reported crimes on 

campuses, and they believed that 

maintaining this type of report would 

not help students accurately judge the 

safety of an institution. 

Finally, one commenter suggested 

clarifying that an institution must 

include all reports of crimes occurring 

on or within the institution’s Clery 

geography, not just ‘‘all crimes 

reported.’’ 

Discussion: Pursuant to section 

485(f)(1)(F)(i) of the Clery Act, 

institutions must include all reports of 

a crime that occurs on or within an 

institution’s Clery geography, regardless 

of who reports the crime or whether it 

is reported anonymously. For example, 

if an institution provides for anonymous 

reporting through an online reporting 

form, the institution must include in its 

statistics crimes that occurred within 

the Clery geography that are reported 

through that form. We also note that 

institutions must record all reports of a 

single crime, not all reports. If after 

investigating several reports of a crime, 

an institution learns that the reports 

refer to the same incident, the 

institution would include one report in 

its statistics for the crime that multiple 

individuals reported. In addition, we do 

not believe it is necessary to require 

institutions to review their reports to 

eliminate duplication in their statistics, 

as such a requirement is difficult to 

enforce and institutions have an 

incentive to do this without regulation. 

We agree with the commenter that 

there is one rare situation—so-called 

‘‘unfounded’’ reports—in which it is 

permissible for an institution to omit a 

reported Clery Act crime from its 

statistics, and we have added language 

to the regulations to recognize this 

exemption. However, we are concerned 

that some institutions may be 

inappropriately unfounding crime 

reports and omitting them from their 

statistics. To address this concern, we 

have added language to the regulations 

to require an institution to report to the 

Department and disclose in its annual 

security report statistics the number of 

crime reports that were ‘‘unfounded’’ 

and subsequently withheld from its 

crime statistics during each of the three 

most recent calendar years. This 

information will enable the Department 

to monitor the extent to which schools 

are designating crime reports as 

unfounded so that we can provide 

additional guidance about how to 

properly ‘‘unfound’’ a crime report or 

intervene if necessary. 

We remind institutions that they may 

only exclude a reported crime from its 

upcoming annual security report, or 

remove a reported crime from its 

previously reported statistics after a full 

investigation. Only sworn or 

commissioned law enforcement 

personnel can make a formal 

determination that the report was false 

or baseless when made and that the 

crime report was therefore 

‘‘unfounded.’’ Crime reports can be 

properly determined to be false only if 

the evidence from the complete and 

thorough investigation establishes that 

the crime reported was not, in fact, 

completed or attempted in any manner. 

Crime reports can only be determined to 

be baseless if the allegations reported 

did not meet the elements of the offense 

or were improperly classified as crimes 

in the first place. A case cannot be 

designated ‘‘unfounded’’ if no 

investigation was conducted or the 

investigation was not completed. Nor 

can it be designated unfounded merely 

because the investigation failed to prove 

that the crime occurred; this would be 

an inconclusive or unsubstantiated 

investigation. 

As stated above, only sworn or 

commissioned law enforcement 

personnel may determine that a crime 

reported is ‘‘unfounded.’’ This does not 

include a district attorney who is sworn 

or commissioned. A campus security 

authority who is not a sworn or 

commissioned law enforcement 

authority cannot ‘‘unfound’’ a crime 

report either. The recovery of stolen 

property, the low value of stolen 

property, the refusal of the victim to 

cooperate with law enforcement or the 

prosecution or the failure to make an 

arrest does not ‘‘unfound’’ a crime. The 

findings of a coroner, court, jury (either 

grand or petit), or prosecutor do not 

‘‘unfound’’ crime reports of offenses or 

attempts. 

Consistent with other recordkeeping 

requirements that pertain to the title IV, 

HEA programs, if a crime was not 

included in the Clery Act statistics 

because it was ‘‘unfounded,’’ the 

institution must maintain accurate 

documentation of the reported crime 

and the basis for unfounding the crime. 

This documentation must demonstrate 

that the determination to ‘‘unfound’’ the 

crime was based on the results of the 

law enforcement investigation and 

evidence. The Department can and does 

request such documentation when 

evaluating compliance with Federal 

law. 

We also remind institutions that have 

a campus security or police department 

that all reported crimes must be 

included in their crime log, as required 

by § 668.46(f). The crime log must 

include the nature, date, time, and 

general location of each crime, as well 

as the disposition of the complaint. If a 

crime report is determined to be 

‘‘unfounded,’’ an institution must 

update the disposition of the complaint 

to ‘‘unfounded’’ in the crime log within 

two business days of that determination. 

It may not delete the report from the 

crime log. 

We disagree with the commenter that 

institutions should be able to remove 


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statistics for crimes where an accused 

individual is exonerated of committing 

a crime. A verdict that a particular 

defendant is not guilty of a particular 

charge (or, more technically, that there 

was not sufficient admissible evidence 

introduced demonstrating beyond a 

reasonable doubt that the accused 

committed the crime) does not mean 

that the crime did not occur. The Clery 

Act statistics are not based on the 

identity of the perpetrator. Therefore, all 

reports of crimes must be included in 

the statistics, except in the rare case that 

a crime report is ‘‘unfounded,’’ as 

discussed earlier in this section. 

Lastly, in response to the 

recommendation for greater specificity 

about which crimes must be reported, 

we have clarified that an institution 

must include all reports of Clery Act 

crimes occurring on or within the 

institution’s Clery geography. We 

believe that this adds clarity to the 

regulations. 

Changes: We have revised 

§ 668.46(c)(2)(iii) to clarify that, in rare 

cases, an institution may remove reports 

of crimes that have been ‘‘unfounded’’ 

and to specify the requirements for 

unfounding. We have added new 

§ 668.46(c)(2)(iii)(A) requiring an 

institution to report to the Department, 

and to disclose in its annual security 

report, the number of crime reports 

listed in § 668.46(c)(1) that were 

‘‘unfounded’’ and subsequently 

withheld from its crime statistics 

pursuant to § 668.46(c)(2)(iii) during 

each of the three most recent calendar 

years. We have also reserved 

§ 668.46(c)(2)(iii)(B). Lastly, we have 

also clarified throughout § 668.46(c) that 

an institution must include all reports of 

Clery Act crimes that occurred on or 

within the institution’s Clery geography. 

Recording Crimes by Calendar Year 

(§ 668.46(c)(3)) 

Comments: The commenters 

expressed support for this proposed 

provision. 

Discussion: We appreciate the 

commenters’ support. 

Changes: None. 

Recording Hate Crimes (§ 668.46(c)(4)) 

Comments: The commenters generally 

supported the inclusion of ‘‘gender 

identity’’ and ‘‘national origin’’ as 

categories of bias for the purposes of 

recording hate crime statistics. One 

commenter recommended collecting 

and disaggregating information on the 

actual or perceived race, ethnicity, and 

national origin of victims of hate crimes. 

This commenter believed that this 

information would improve public 

awareness and knowledge of the 

prevalence of certain forms of abuse, 

including hate crimes, directed at 

certain populations, such as the Latino/ 

Latina college population. 

Discussion: We appreciate the 

commenters’ support for adding ‘‘gender 

identity’’ and ‘‘national origin’’ as 

categories of bias and for adding a 

definition of ‘‘hate crime.’’ 

Section 485(f)(1)(F)(ii) of the Clery 

Act requires institutions to collect and 

report crimes that are reported to 

campus security authorities or local 

police agencies ‘‘according to category 

of prejudice.’’ Accordingly, institutions 

collect and report hate crimes according 

to the bias that may have motivated the 

perpetrator. At this time, we do not 

believe it is necessary to also require 

institutions to collect and report data 

about, for example, the victim’s actual 

race, ethnicity, or national origin. 

Changes: None. 

Recording Reports of Stalking 

(§ 668.46(c)(6)) 

Comments: We received numerous 

comments in response to our request for 

feedback about how to count stalking 

that crosses calendar years, how to 

apply an institution’s Clery geography 

to reports of stalking, and how to 

identify a new and distinct course of 

conduct involving the same perpetrator 

and victim. 

Stalking Across Calendar Years 

Some of the commenters supported 

the approach in the proposed 

regulations, arguing that it would 

provide an accurate picture of crime on 

campus for each calendar year. The 

commenters suggested, however, 

modifying the language to clarify that an 

institution must include a statistic for 

stalking in each and every year in which 

a particular course of conduct is 

reported to a local police agency or 

campus security authority. One 

commenter recommended requiring 

institutions to report stalking in only the 

first calendar year in which a course of 

conduct was reported, rather than 

including it each and every year in 

which the conduct continues and is 

reported. Another commenter suggested 

requiring institutions to disaggregate 

how many incidents of stalking are 

newly reported in that calendar year 

and how many are continuations from 

the previous calendar year to avoid a 

misinterpretation of the crime statistics. 

Stalking by Location 

The commenters provided varied 

feedback with regards to recording 

stalking by location. Some of the 

commenters supported the approach in 

the proposed regulations that would 

require institutions to include stalking 

at only the first location within the 

institution’s Clery geography in which a 

perpetrator engaged in the stalking 

course of conduct or where a victim first 

became aware of the stalking. Other 

commenters generally agreed with this 

approach but urged the Department to 

modify the regulations so that stalking 

using an institution’s servers, networks, 

or other electronic means would be 

recorded based on where the 

institution’s servers or networks are 

housed. These commenters were 

concerned that, without this change, 

some instances of stalking would not be 

accounted for in the statistics if the 

perpetrator or the victim is never 

physically located on or within the 

institution’s Clery geography. 

Some of the commenters 

recommended reporting stalking based 

only on the location of the perpetrator. 

These commenters argued that using the 

location of the victim would result in 

institutions including reports of stalking 

where the perpetrator was nowhere near 

the institution but the victim was on 

campus. They believed that this 

information would not be meaningful 

because it would not help members of 

the campus community protect 

themselves while on the school’s Clery 

geography. Along these lines, one 

commenter suggested giving institutions 

the option to exclude reports of stalking 

if the perpetrator has never been on or 

near the institution’s Clery geography if 

the institution can document its reasons 

for doing so. Other commenters believed 

that reporting based on the location of 

the perpetrator would be more 

consistent with how other crimes are 

reported under the Clery Act. The 

commenter noted, for example, that 

motor vehicle theft is only included in 

an institution’s statistics if the 

perpetrator stole the car from a location 

within the institution’s Clery geography, 

regardless of whether the car’s owner 

learned of the theft while within the 

institution’s Clery geography. 

Some of the commenters 

recommended recording stalking based 

only on the location of the victim. These 

commenters argued that it would be 

much easier for institutions to 

determine the location of the victim 

than the location of the perpetrator. 

Lastly, a few commenters addressed 

our discussion in the NPRM about how 

stalking involving more than one 

institution should be handled. The 

commenters supported our statement 

that, when two institutions are 

involved, both institutions should 

include the stalking report in their Clery 

Act statistics. One commenter, however, 

requested clarification about an 


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institution’s responsibility to notify 

another institution if the stalking 

originated on the other institution’s 

Clery geography. 

Stalking After an ‘‘Official Intervention’’ 

We received several comments related 

to when an institution should count a 

report of stalking as a new and distinct 

crime in its statistics. Some of the 

commenters supported the approach in 

the NPRM under which stalking would 

be counted separately after an official 

intervention. An official intervention 

would include any formal or informal 

intervention and those initiated by 

school officials or a court. One 

commenter generally supported this 

approach but was concerned that an 

institution might not be aware when an 

‘‘official intervention’’ has occurred if 

that intervention did not involve the 

institution, such as when a court has 

issued a no-contact order or a 

restraining order. The commenter 

recommended revising the regulations 

to specify that an institution would 

record stalking in these cases as a new 

and distinct crime only to the extent 

that the institution has actual 

knowledge that an ‘‘official 

intervention’’ occurred. 

Other commenters urged the 

Department to remove § 668.46(c)(6)(iii), 

arguing that counting a new incident of 

stalking after an official intervention 

would not be consistent with treating 

stalking as a course of conduct. They 

explained that stalking cases often have 

numerous points of intervention, but 

that despite those interventions, it is 

still the same pattern or course of 

conduct, and that recording a new 

statistic after an ‘‘official intervention’’ 

would be arbitrary. The commenters 

believed that requiring that stalking be 

recorded in each and every subsequent 

year in which the victim reports the 

same stalking course of conduct would 

appropriately capture the extent of 

stalking without introducing an 

arbitrary bright line, such as an ‘‘official 

intervention’’ or a specific time period 

between stalking behaviors. 

Several commenters recommended 

encouraging institutions to provide 

narrative information about each 

incident of stalking in their reports to 

provide context. They believed that this 

narrative would provide more useful 

information by explaining whether a 

particular course of conduct spanned 

several years, whether it continued after 

one or multiple interventions, and how 

many behaviors or actions on the part of 

the perpetrator made up the single 

course of conduct. 

Discussion: We thank the commenters 

for their feedback. 

Stalking Across Calendar Years 

We appreciate the commenters’ 

support for our proposal to record 

incidents of stalking that cross calendar 

years. This approach strikes a balance 

by ensuring that stalking is adequately 

captured in an institution’s statistics 

without inflating the number of 

incidents of stalking by counting each 

behavior in the pattern. In response to 

recommendations from the commenters, 

we have modified § 668.46(c)(6)(i) to 

clarify that an institution must record a 

report of stalking in each and every year 

in which the stalking course of conduct 

is reported to local police or a campus 

security authority. An institution is not 

required to follow up with victims each 

year to determine whether the behavior 

has continued, although institutions are 

not precluded from doing so. If, as a 

result of following up with a stalking 

victim, the institution learns that the 

behavior has continued into another 

year, the institution must record the 

behavior as a new report of stalking in 

that year. Otherwise, institutions must 

record only reports that they receive in 

each year. 

We appreciate the suggestion that 

institutions should disaggregate 

statistics for stalking each year based on 

which incidents were continuations for 

stalking reported in a previous calendar 

year and which were new reports of 

stalking, but we believe that the 

approach in the final regulations is 

simpler for institutions to understand 

and implement. However, we encourage 

institutions to provide additional detail, 

such as whether a report represents a 

continuation of a previous year’s report, 

in their annual security report. 

Stalking By Location 

With regard to recording stalking 

based on the location of either the 

victim or perpetrator, we note that the 

negotiating committee reached 

consensus on the proposed language, 

which accounts for the location of both 

the victim and the perpetrator. Given 

the disagreement among the 

commenters about how to modify these 

provisions, we have decided to adopt 

the approach approved by the 

negotiating committee. We do not 

believe that the analogy to motor vehicle 

theft is appropriate because the crime of 

stalking is not a crime perpetrated 

against property and, thus, it presents 

different considerations. 

We are not persuaded that we should 

include stalking based on the use of the 

institution’s servers or networks, but 

where neither the victim nor the 

perpetrator was on or within the 

institution’s Clery geography. Including 

these incidents would be inconsistent 

with our traditional approach in regard 

to the Clery Act, which uses physical 

location as the determining factor. 

Moreover, it may not always be clear 

whether a particular message used a 

particular institution’s computer servers 

or networks. Of course, an institution 

may still be able to take action to 

address a stalking incident that used its 

servers or networks. Many institutions 

have terms of use associated with the 

use of those networks, and violations of 

those terms of use may subject an 

individual to disciplinary action. 

Lastly, if stalking occurs on more than 

one institution’s Clery geography and is 

reported to a campus security authority 

at both institutions, then both 

institutions must include the stalking in 

their statistics. Although the statute 

does not require an institution that 

learns of stalking occurring on another 

campus to alert the other campus, we 

strongly encourage an institution in this 

situation to do so. 

Stalking After an ‘‘Official Intervention’’ 

We agree with the commenters who 

argued that requiring institutions to 

record stalking involving the same 

victim and perpetrator as a new crime 

after an official intervention would be 

arbitrary. We also agree that it could be 

difficult for institutions to track stalking 

incidents if the institution does not have 

actual knowledge of the intervention. As 

a result, we have not included proposed 

§ 668.46(c)(6)(ii) in the final regulations. 

We believe that the requirement that 

institutions record stalking in each and 

every year in which it is reported is an 

effective, straightforward, and less 

arbitrary approach than including the 

concept of an ‘‘official intervention.’’ 

We encourage institutions to provide 

narrative information in their annual 

security reports about incidents of 

stalking to the extent possible to provide 

individuals reading the annual security 

report with a fuller picture of the 

stalking. In addition to explaining 

whether a report represents stalking that 

has continued across multiple calendar 

years, institutions may provide 

additional context for these statistics by 

explaining, for example, whether the 

stalking continued despite interventions 

by the institution or other parties, 

whether it lasted for a short but intense 

period or occurred intermittently over 

several months, and whether the 

perpetrator or the victim was located on 

or within the institution’s Clery 

geography. 

Changes: We have revised 

§ 668.46(c)(6)(i) to clarify that stalking 

that crosses calendar years must be 

recorded in each and every year in 


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which the stalking is reported to a 

campus security authority or local 

police. We have also removed proposed 

§ 668.46(c)(6)(iii), which would have 

required institutions to record a report 

of stalking as a new and distinct crime 

when the stalking behavior continues 

after an official intervention. 

Using the FBI’s UCR Program and the 

Hierarchy Rule (§ 668.46(c)(9)) 

Comments: We received several 

comments on our proposal to modify 

the application of the Hierarchy Rule 

under the FBI’s UCR Program, as well as 

comments about how to further update 

and clarify § 668.46(c)(9). First, with 

regard to applying the Hierarchy Rule, 

some of the commenters supported our 

proposal to create an exception so that 

when both a sex offense and murder are 

committed in the same incident, both 

crimes would be counted in the 

institution’s statistics. These 

commenters believed that this approach 

would more accurately reflect the full 

range of incidents involving intimate 

partner violence. One commenter 

recommended clarifying that the 

exception would apply only to cases 

involving rape and murder, noting that 

every rape would involve fondling. 

Other commenters, however, 

disagreed with our proposal to create an 

exception to the Hierarchy Rule, arguing 

that if the Department continues to use 

the Hierarchy Rule, it should do so in 

its entirety. These commenters 

recommended having subcategories 

under the primary crimes so that they 

could report elements of each crime as 

a subset, rather than as a freestanding 

incident. For example, one commenter 

believed that instead of requiring an 

institution to record a statistic for a 

murder and for dating violence if a 

victim was murdered by someone the 

victim was dating, the Department 

should require an institution to record 

a murder and to include dating violence 

as an element of that murder. The 

commenter believed that this would 

reduce double-counting and would 

make the data more transparent. 

Another commenter recommended 

abandoning the Hierarchy Rule 

altogether, arguing that it detracts from 

the value and clarity of the Clery Act 

statistics and leads to an 

underrepresentation of the extent of 

crimes on a given college campus. 

With regards to clarifying the 

regulation, one commenter noted that 

proposed § 668.46(c)(9) referred to 

outdated guidance and documents 

issued by the FBI for the UCR program. 

They recommended replacing references 

to the ‘‘UCR Reporting Handbook’’ and 

the ‘‘UCR Reporting Handbook: National 

Incident-Based Reporting System 

(NIBRS) EDITION’’ with references to 

the ‘‘Criminal Justice Information 

System (CJIS) Division Uniform Crime 

Reporting (UCR) Program Summary 

Reporting System (SRS) User Manual,’’ 

and the ‘‘Criminal Justice Information 

System (CJIS) Division Uniform Crime 

Reporting (UCR) Program National 

Incident-Based Reporting System 

(NIRBRS) User Manual,’’ respectively. 

The commenter recommended also 

updating the references in Appendix A 

to refer to the appropriate User Manuals 

and to identify the correct system source 

(SRS or NIBRS) for the definitions of 

rape, fondling, statutory rape, and 

incest. 

One commenter recommended 

importing the breadth of the UCR 

program into the regulations to provide 

more clarity and guidance for campus 

security authorities to help them in 

categorizing crimes, particularly at 

institutions that do not have a campus 

law enforcement division. 

Discussion: We appreciate the 

commenters’ support. We have decided 

to retain the Hierarchy Rule and the 

exception to that rule for situations 

involving a sex offense and murder. We 

believe that the Hierarchy Rule provides 

a useful approach for recording the 

numbers of crimes without 

overreporting and note that it is used by 

other crime reporting systems. However, 

in light of the statute’s purpose and the 

appropriate public concern about sex 

offenses on campus, we have 

determined that an exception to ensure 

that all sex offenses are counted is 

necessary for Clery Act purposes. 

Without this exception, under the 

Hierarchy Rule, an incident that 

involves both a rape and a murder, for 

example, would be recorded only as a 

murder, obscuring the fact that the 

incident also included a sexual assault. 

We believe that Congress intended to 

capture data about sexual assaults at 

institutions participating in the title IV, 

HEA programs, and this exception will 

ensure that all cases of sexual assault 

are included in an institution’s 

statistics. Some of the commenters 

misinterpreted the proposed regulations 

to mean that an institution would have 

to include all of the elements of a sex 

offense in its statistics. For example, 

they believed that an institution would 

include both fondling and rape in its 

statistics in any incident involving rape. 

We intended for the exception to the 

Hierarchy Rule to apply when a rape, 

fondling, incest, or statutory rape occurs 

in the same incident as murder. As a 

result, we have clarified 

§ 668.46(c)(9)(vii) to make it clear that 

this exception to the Hierarchy Rule 

would apply only when a sex offense 

and murder are involved in the same 

incident, and that, in these cases, an 

institution would include statistics for 

the sex offense and murder, rather than 

including only the murder. 

As discussed under ‘‘Hierarchy Rule,’’ 

we agree with the commenter who 

recommended clarifying in the 

regulations that, consistent with 

treatment in the FBI’s UCR program, an 

arson that occurs in the same incident 

as other crimes must always be included 

in an institution’s statistics. As a result, 

we have clarified in § 668.46(c)(9)(vi) 

that an institution must always record 

an arson in its statistics, regardless of 

whether or not it occurs in the same 

incident as other crimes. We believe 

that including this provision related to 

arson in the same place as the exception 

for sex offenses will make it easier for 

readers to understand how to apply the 

Hierarchy Rule. 

We agree with the commenter who 

argued that the references to the FBI’s 

UCR Program may be confusing for 

institutions that do not have a campus 

law enforcement division that is 

familiar with the UCR Program. We 

have clarified in § 668.46(c)(9)(i) that an 

institution must compile the crime 

statistics for murder and nonnegligent 

manslaughter, negligent manslaughter, 

rape, robbery, aggravated assault, 

burglary, motor vehicle theft, arson, 

liquor law violations, drug law 

violations, and illegal weapons 

possession using the definitions of those 

crimes from the ‘‘Summary Reporting 

System (SRS) User Manual’’ from the 

FBI’s UCR Program. We also have 

clarified in § 668.46(c)(9)(ii) that an 

institution must compile the crime 

statistics for fondling, incest, and 

statutory rape using the definitions of 

those crimes from the ‘‘National 

Incident-Based Reporting System 

(NIBRS) User Manual’’ from the FBI’s 

UCR Program. Further, we have 

specified in § 668.46(c)(9)(iii) that an 

institution must compile the crime 

statistics for the hate crimes of larcenytheft, simple assault, intimidation, and 

destruction/damage/vandalism of 

property using the definitions provided 

in the ‘‘Hate Crime Data Collection 

Guidelines and Training Manual’’ from 

the FBI’s UCR Program. We have made 

corresponding changes to Appendix A 

to reflect the UCR Program sources from 

which the Clery Act regulations draw 

these definitions. Finally, we have 

reiterated in § 668.46(c)(9)(iv) that an 

institution must compile the crime 

statistics for dating violence, domestic 

violence, and stalking using the 

definitions provided in § 668.46(a). We 

believe that these changes, combined 


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with our revisions to Appendix A and 

the updated references to the FBI’s UCR 

Program materials will make clear to 

institutions which definitions they must 

use when classifying reported crimes. 

We intend to include additional 

guidance on these issues when we 

revise the Handbook for Campus Safety 

and Security Reporting. 

Changes: We have revised paragraph 

§ 668.46(c)(9) to clarify how the 

definitions in the FBI’s UCR Program 

apply to these regulations, updated 

references to the FBI’s UCR Program 

materials, revised the exception to the 

Hierarchy Rule to clarify that it applies 

in cases where a sex offense and a 

murder occur during the same incident, 

and that under the Hierarchy Rule an 

institution must always include arson in 

its statistics. 

Statistics From Police Agencies 

(§ 668.46(c)(11)) 

Comments: One commenter was 

concerned that the proposed regulations 

would require an institution to gather 

and review individual reports from 

municipal police authorities and to 

determine whether the offenses 

described in the reports meet the 

definition of ‘‘dating violence,’’ 

‘‘domestic violence,’’ or ‘‘stalking’’ in 

the regulations, even if they do not 

constitute criminal offenses in the 

jurisdiction. The commenter opined that 

such a collection and review would be 

very burdensome for institutions and 

would require significant cooperation 

by municipal police authorities. 

Discussion: Initially, we note that the 

requirement to collect crime statistics 

from local or State police agencies has 

been a longstanding requirement under 

the Clery Act. Under § 668.46(c)(11) of 

the regulations, institutions are required 

to make a good-faith effort to obtain the 

required statistics and may rely on the 

information supplied by a local or State 

police agency. We would consider an 

institution to have made a good-faith 

effort to comply with this requirement 

if it provided the definitions in these 

regulations to the local or State police 

agency and requested that that police 

agency provide statistics for reports that 

meet those definitions with sufficient 

time for the local or State police agency 

to gather the requested information. As 

a matter of best practice, we strongly 

recommend that institutions make this 

request far in advance of the October 1 

deadline for publishing their annual 

security reports and follow up with the 

local or State police agency if they do 

not receive a response. As long as an 

institution can demonstrate that it made 

a good-faith effort to obtain this 

information, it would be in compliance 

with this requirement. 

Changes: None. 

Timely Warnings (§ 668.46(e)) 

Comments: The commenters strongly 

supported our proposal to clarify that 

institutions must keep confidential the 

names and personally identifying 

information of victims when issuing a 

timely warning. Some commenters, 

however, requested additional guidance 

for how institutions can most effectively 

comply with this requirement. 

Discussion: We appreciate the 

commenters’ support. Generally, 

institutions must provide timely 

warnings in response to Clery Act 

crimes that pose a continuing threat to 

the campus community. These timely 

warnings must be provided in a manner 

that is timely and that will aid in the 

prevention of similar crimes. Under 

these final regulations, institutions must 

not disclose the names and personally 

identifying information of victims when 

issuing a timely warning. However, in 

some cases to provide an effective 

timely warning, an institution may need 

to provide information from which an 

individual might deduce the identity of 

the victim. For example, an institution 

may need to disclose in the timely 

warning that the crime occurred in a 

part of a building where only a few 

individuals have offices, potentially 

making it possible for members of the 

campus community to identify a victim. 

Similarly, a perpetrator may have 

displayed a pattern of targeting victims 

of a certain ethnicity at an institution 

with very few members of that ethnicity 

in its community, potentially making it 

possible for members of the campus 

community to identify the victim(s). 

Institutions must examine incidents 

requiring timely warnings on a case-bycase basis to ensure that they have 

minimized the risk of releasing 

personally identifying information, 

while also balancing the safety of the 

campus community. 

Changes: None. 

Programs To Prevent Dating Violence, 

Domestic Violence, Sexual Assault, and 

Stalking (668.46(j)) 

General 

Comments: One commenter sought 

clarification regarding the proposed 

language in § 668.46(j)(1) that states that 

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 

and that the statement must include a 

description of the institution’s primary 

prevention and awareness programs for 

all incoming students and new 

employees, which must include the 

contents of § 668.46(j)(1)(i)(A)–(F). The 

commenter sought clarification as to 

whether this language meant simply 

that the description of an institution’s 

primary prevention and awareness 

programs had to contain these elements 

or if it meant that the actual programs, 

as administered on an institution’s 

campus, had to incorporate and address 

these elements. 

Several commenters asked that the 

final regulations be modified to redefine 

who would be considered a ‘‘student’’ 

for the purposes of the institution’s 

obligation to provide primary 

prevention and awareness programs and 

ongoing prevention and awareness 

campaigns. Noting that the Department 

interprets the statute in this regard 

consistent with other Clery Act 

requirements by requiring institutions to 

offer training to ‘‘enrolled’’ students, as 

the term ‘‘enrolled’’ is defined in 

§ 668.2, the commenters were concerned 

about the burden of providing 

prevention training to students who are 

enrolled only in continuing education 

courses, online students, and students 

who are dually enrolled in high school 

and community college classes and 

suggested that prevention training 

should be focused on students who are 

regularly on campus. 

One commenter was concerned that 

institutions may allow collective 

bargaining agreements to be a barrier to 

offering primary prevention and 

awareness programs and ongoing 

prevention and awareness campaigns to 

current employees who belong to a 

union. 

Another commenter asked the 

Department to clarify whether an 

institution must require and document 

that every member of its community 

attend prevention programs and training 

or whether it is mandatory that an 

institution simply make such 

programming widely available and 

accessible for members of its 

community and maintain statistical data 

on the frequency, type, duration, and 

attendance at the training. 

One commenter opined that the final 

regulations should require institutions 

to work with local and State domestic 

violence and sexual assault coalitions to 

develop ‘‘best practice’’ training models, 

access programs for confidential 

services for victims, and serve on 

advisory committees that review 

campus training policies and protocols 

for dealing with sexual violence issues. 

Lastly, one commenter believed that 

the final regulations should require 

prevention programs to focus on how 


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existing technology can be used to help 

prevent crime. This commenter believed 

that such a focus will ultimately reduce 

institutional burden to report, classify, 

and respond to reports of dating 

violence, domestic violence, sexual 

assault, and stalking. 

Discussion: In response to the first 

comment, the actual prevention 

programs administered on an 

institution’s campus must incorporate 

and address the contents of 

§ 668.46(j)(1)(i)(A)–(F) as well as meet 

the definition of ‘‘programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking’’ in 

§ 668.46(a) of these final regulations. It 

is important to note that the 

Department’s Clery Compliance staff 

will verify an institution’s compliance 

with both §§ 668.46(a) and (j) during a 

Clery Act compliance review. 

We do not agree that we should 

redefine who would be considered a 

‘‘student’’ for the purposes of providing 

primary prevention and awareness 

programs and ongoing prevention and 

awareness campaigns. We believe that 

every enrolled student should be offered 

prevention training because anyone can 

be a victim of dating violence, domestic 

violence, sexual assault, or stalking, not 

just students regularly on campus. As 

we stated in the preamble to the NPRM, 

under §§ 668.41 and 668.46, institutions 

must distribute the annual security 

report to all ‘‘enrolled’’ students, as 

defined in § 668.2. Applying that same 

standard for prevention training makes 

it clear that the same students who must 

receive the annual security report must 

also be offered the training. 

Without further explanation by the 

commenter, we cannot see any reason 

why collective bargaining agreements 

could be a barrier to offering prevention 

training to employees who belong to a 

union. We note that institutions have 

distributed their annual security reports 

to ‘‘current employees’’ under §§ 668.41 

and 668.46 for many years regardless of 

whether an employee is a member of a 

union, and we expect that these 

employees will now be offered the new 

prevention training in the same manner 

as they were offered the training in the 

past. 

In response to the question about 

whether an institution must require 

mandatory attendance at primary and 

ongoing prevention programs and 

campaigns, we note that neither the 

statute nor the regulations require that 

every incoming student, new employee, 

current student, or faculty member, take 

or attend the training. The regulations 

require only that institutions offer 

training to all of these specified parties 

and that the training includes the 

contents of § 668.46(j)(1)(i)(A)–(F) and 

meets the definition of ‘‘programs to 

prevent dating violence, domestic 

violence, sexual assault, and stalking’’. 

Institutions must be able to document, 

however, that they have met these 

regulatory requirements. Although the 

statute and regulations do not require 

that all students and employees take or 

attend training, we encourage 

institutions to mandate such training to 

increase its effectiveness. Lastly, the 

final regulations do not require 

institutions to maintain statistical data 

on the frequency, type, duration, and 

attendance at the training, although if an 

institution believes that maintaining 

such data is informative, we would 

encourage such efforts. 

We do not believe that we have the 

statutory authority to require 

institutions to work with local and State 

domestic violence and sexual assault 

coalitions to develop policies and 

programs. The statute requires only that 

institutions provide 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. 

However, we strongly encourage 

institutions and local and State 

domestic violence and sexual assault 

coalitions to form such relationships so 

that victims of sexual violence will be 

better served. 

We disagree that the final regulations 

should be changed to emphasize the use 

of existing technology in prevention 

programs. The Department cannot 

require the specific content of an 

institution’s prevention training, 

although we strongly encourage 

institutions to consider including 

information on existing technology so as 

to better inform their audiences. 

Changes: None. 

Definition of ‘‘Applicable Jurisdiction’’ 

(§ 668.46(j)(1)(i)(B) and (C)) 

Comments: Section 668.46(j)(1)(i)(B) 

and (C) requires an institution to 

include, in its annual security report 

policy statement on prevention 

programs, the applicable jurisdiction’s 

definitions of ‘‘dating violence,’’ 

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

‘‘stalking,’’ and ‘‘consent.’’ Several 

commenters asked for guidance on how 

to comply with § 668.46(j)(1)(i)(B) and 

(C) when those terms are not defined by 

the local jurisdiction. Several 

commenters requested that the 

Department clarify in the final 

regulations whether institutions must 

use the definitions in criminal statutes 

or whether institutions can reference 

definitions from other sources of law, 

such as domestic abuse protection order 

requirements, or from State and local 

agencies. These commenters noted that 

applicable criminal codes often do not 

define these terms, but that reference to 

the definitions in statutes outside the 

criminal law or from State and local 

agencies are appropriate to provide in 

this policy statement. One commenter 

requested that the proposed regulations 

be changed to allow institutions to 

incorporate by reference the definitions 

in the applicable jurisdiction, to avoid 

confusing language in their prevention 

program materials. This commenter 

noted that legal definitions can be long 

and complicated, and that allowing 

incorporation by reference would 

increase the chance that these 

definitions will remain accurate. 

Discussion: If an institution’s 

applicable jurisdiction does not define 

‘‘dating violence,’’ ‘‘domestic violence,’’ 

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

‘‘consent’’ in reference to sexual 

activity, in its criminal code, an 

institution has several options. An 

institution must include a notification 

in its annual security report policy 

statement on prevention programs that 

the institution has determined, based on 

good-faith research, that these terms are 

not defined in the applicable 

jurisdiction. An institution would need 

to document its good-faith efforts in this 

regard. In addition, where the 

applicable jurisdiction does not define 

one or more of these terms in its 

criminal code, the institution could 

choose to provide definitions of these 

terms from laws other than the criminal 

code, such as State and local 

administrative definitions. For example, 

an institution could provide a definition 

officially announced by the State’s 

Attorney General to provide relevant 

information about what constitutes a 

crime in the jurisdiction. 

We do not believe that simply 

referencing the definition meets the 

requirement that institutions provide 

the definition of the terms ‘‘dating 

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

assault,’’ ‘‘stalking,’’ and ‘‘consent’’ in 

reference to sexual activity in the 

applicable jurisdiction. Section 

485(f)(8)(B)(i)(I)(bb) and (cc) of the Clery 

Act, as amended by VAWA, require an 

institution to provide the definitions, 

not a cross-reference or link, to the 

definition of these terms. 

Changes: None. 


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Definitions of ‘‘Awareness Programs,’’ 

‘‘Bystander Intervention,’’ ‘‘Ongoing 

Prevention and Awareness Campaigns,’’ 

‘‘Primary Prevention Programs,’’ and 

‘‘Risk Reduction’’ (§ 668.46(j)(2)(i)–(v)) 

Comments: One commenter stated 

that the definitions of ‘‘awareness 

programs,’’ ‘‘bystander intervention,’’ 

‘‘ongoing prevention and awareness 

campaigns,’’ ‘‘primary prevention 

programs,’’ and ‘‘risk reduction’’ in 

paragraphs 668.46(j)(2)(i)–(v) assume a 

context of student-on-student sexual 

assault, making the definitions 

inadequate in cases in which the 

offender is an employee of the 

institution. The commenter stated that 

prevention activities should include 

instruction on healthy boundaries, 

power differentials, and exploitation to 

address situations where the perpetrator 

is an employee. 

One commenter asked for clarification 

of the terms ‘‘institutional structures 

and cultural conditions that facilitate 

violence,’’ and ‘‘positive and healthy 

behaviors that foster healthy, mutually 

respectful relationships and sexuality,’’ 

in § 668.46(j)(2)(ii) and (iv). Another 

commenter stated that bystander 

intervention trainings should be 

mandatory for incoming students and 

that the Department should establish 

basic guidelines and strategies to ensure 

uniformity and quality of bystander 

intervention training across institutions. 

Lastly, one commenter recommended 

that the definition of ‘‘risk reduction’’ in 

§ 668.46(j)(2)(v) be removed from the 

regulations because risk reduction 

efforts, unless coupled with 

empowerment approaches, leave 

potential victims with the false 

impression that victimization can be 

avoided. The commenter believed that 

this was tantamount to victim blaming. 

Discussion: We disagree that the 

definitions of ‘‘awareness programs,’’ 

‘‘bystander intervention,’’ ‘‘ongoing 

prevention and awareness campaigns,’’ 

‘‘primary prevention programs,’’ and 

‘‘risk reduction’’ in § 668.46(j)(2)(i)–(v) 

assume a context of student-on-student 

sexual assault. We believe that the 

language in the definitions is broad and 

covers situations where the perpetrator 

is an employee and the commenter did 

not specifically identify any language 

for us to revise. 

In response to the commenter who 

asked for clarification of certain terms in 

§ 668.46(j)(2), we believe that examples 

of ‘‘institutional structures and cultural 

conditions that facilitate violence,’’ 

might include the fraternity and sports 

cultures at some institutions. We believe 

that examples of ‘‘positive and healthy 

behaviors that foster healthy, mutually 

respectful relationships and sexuality,’’ 

might include the promotion of good 

listening and communication skills, 

moderation in alcohol consumption, 

and common courtesy. 

As for the commenter who suggested 

that bystander intervention training be 

mandatory for incoming students and 

that the Department should establish 

basic guidelines and strategies to ensure 

uniformity and quality for that training, 

the statute does not mandate student or 

employee participation in prevention 

training, nor does the statute authorize 

the Department to specify what an 

institution’s training must contain. The 

statute and the regulations contain 

broad guidelines and definitions to 

assist institutions in developing training 

that takes into consideration the 

characteristics of each campus. 

Lastly, we disagree with the 

commenter who recommended that the 

definition of ‘‘risk reduction’’ in 

§ 668.46(j)(2)(v) be removed. 

Empowering victims is incorporated 

into the definition of risk reduction. The 

term ‘‘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. 

Changes: None. 

Institutional Disciplinary Proceedings in 

Cases of Alleged Dating Violence, 

Domestic Violence, Sexual Assault, or 

Stalking (§ 668.46(k)) 

Comments: Many commenters 

supported proposed § 668.46(k) 

regarding institutional disciplinary 

proceedings. These commenters 

believed that the proposed regulations 

properly reflected the importance of 

transparent, equitable procedures for 

complainants and accused students, 

provided clear and concise guidance on 

the procedures an institution must 

follow to comply with the VAWA 

requirements, and would lead to more 

accurate reporting of campus crime 

statistics. Several commenters also 

expressed appreciation for the 

Department’s statements in the NPRM 

that an institution’s responsibilities 

under the Clery Act are separate and 

distinct from those under title IX, and 

that nothing in the proposed regulations 

alters or changes an institution’s 

obligations or duties under title IX as 

interpreted by OCR. 

Other commenters did not support 

proposed § 668.46(k). These 

commenters stated that only the 

criminal justice system is capable of 

handling alleged incidents of dating 

violence, domestic violence, sexual 

assault, and stalking, not institutions of 

higher education. These commenters 

also believed that the proposed 

regulations eliminate essential due 

process protections, and entrust 

unqualified campus employees and 

students to safeguard the interests of the 

parties involved in adjudicating 

allegations. Several commenters also 

stated that the proposed regulations 

would place a considerable compliance 

burden on small institutions and asked 

the Department to consider mitigating 

that burden in the final regulations. 

One commenter asked the Department 

to clarify in the final regulations that 

disciplinary procedures apply more 

broadly than just to student disciplinary 

procedures and suggested adding 

language specifying that the procedures 

apply to student, employee, and faculty 

discipline systems. 

One commenter asked the Department 

to clarify whether an institution’s 

disciplinary procedures must always 

comply with § 668.46(k) or just the 

procedures related to incidents of dating 

violence, domestic violence, sexual 

assault, and stalking. Another 

commenter asked that we clarify that 

there need not be an allegation of crime 

reported to law enforcement for the 

accused or accuser to receive the 

procedural protections afforded through 

a campus disciplinary proceeding. This 

commenter suggested that we replace 

‘‘allegation of dating violence, domestic 

violence, sexual assault, or stalking’’ in 

proposed § 668.46(k)(1)(ii) with 

‘‘incident arising from behaviors that 

may also be allegations of the crimes of 

dating violence, domestic violence, 

sexual assault, or stalking.’’ 

Finally, one commenter requested 

that the final regulations affirm that a 

complainant bringing forth a claim of 

dating violence, domestic violence, 

sexual assault, or stalking cannot be 

subject to any legal investigation of their 

immigration status because that would 

discourage undocumented students 

from reporting incidents and 

participating in a disciplinary 

proceeding. 

Discussion: We appreciate the 

commenters’ support. In response to the 

commenters who objected to 

institutional disciplinary procedures in 

cases involving dating violence, 

domestic violence, sexual assault, or 

stalking under the regulations, section 

485(f)(8)(B)(iv) of the Clery Act clearly 

requires institutions to have 

disciplinary procedures in place for 

these incidents. We disagree with the 

comments that the procedures under 

§ 668.46(k) violate due process rights 

and entrust unqualified employees with 

adjudicatory responsibility. The statute 


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and these final regulations require that: 

an institution’s disciplinary proceedings 

be fair, prompt, and impartial to both 

the accused and the accuser; the 

proceedings provide the same 

opportunities to both parties to have an 

advisor of their choice present; and the 

proceedings be conducted by officials 

who receive training on sexual assault 

issues and on how to conduct a 

proceeding that protects the safety of 

victims and promotes accountability. 

Thus, these procedures do provide 

significant protections for all parties. 

We also note that institutions are not 

making determinations of criminal 

responsibility but are determining 

whether the institution’s own rules have 

been violated. We note that there is no 

basis to suggest that students and 

employees at small institutions should 

have fewer protections than their 

counterparts at larger institutions. 

We do not agree that the final 

regulations should be revised to clarify 

that disciplinary procedures apply to 

student, employee, and faculty 

discipline systems. Section 

668.46(k)(1)(i) requires an institution’s 

annual security report policy statement 

addressing procedures for institutional 

disciplinary action in cases of dating 

violence, domestic violence, sexual 

assault, and stalking to describe each 

type of disciplinary proceeding used by 

the institution. If an institution has a 

disciplinary proceeding for faculty and 

staff, the institution would be required 

to describe it in accordance with 

§ 668.46(k)(1)(i). 

We agree with the commenters who 

suggested that we clarify which 

incidents trigger a ‘‘disciplinary’’ 

proceeding under § 668.46(k) because 

many institutions have a disciplinary 

process for incidents not involving 

dating violence, domestic violence, 

sexual assault, and stalking. We have 

revised the introductory language in 

§ 668.46(k) to specify that an 

institution’s policy statement must 

address disciplinary procedures for 

cases of alleged dating violence, 

domestic violence, sexual assault, and 

stalking, as defined in § 668.46(a). We 

believe that making this clear up front 

best clarifies the scope of the paragraph. 

Lastly, with respect to the suggestion 

that § 668.46(k) state that a complainant 

bringing forth a claim of dating 

violence, domestic violence, sexual 

assault, or stalking is not subject to any 

legal investigation of their immigration 

status, the Department does not have the 

authority to provide or require such an 

assurance, though the Department 

reminds institutions of the Clery Act’s 

prohibition against retaliation in this 

regard. Specifically, institutions should 

be aware that threatening an individual 

with deportation or invoking an 

individual’s immigration status in an 

attempt to intimidate or deter the 

individual from filing or participating in 

a complaint of dating violence, domestic 

violence, sexual assault, or stalking 

would violate the Clery Act’s protection 

against retaliation as reflected in 

§ 668.46(m). 

Changes: We have revised the 

introductory language in § 668.46(k) to 

specify that an institution’s policy 

statement must address disciplinary 

procedures for cases of alleged dating 

violence, domestic violence, sexual 

assault, and stalking, as defined in 

§ 668.46(a). 

Standard of Evidence (§ 668.46(k)(1)(ii)) 

Comments: Proposed § 668.46(k)(1)(ii) 

requires an institution to describe in its 

annual security report policy statement 

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. 

Several commenters supported 

requiring institutions to use the 

preponderance of evidence standard for 

institutional disciplinary proceedings 

under the Clery Act to be consistent 

with the standard of evidence required 

to comply with title IX. The commenters 

believed that requiring the use of the 

preponderance of evidence standard 

would reduce confusion and would 

eliminate disputes over whether a 

criminal standard of proof should be 

applied. One commenter felt that using 

any other standard of proof, such as 

‘‘clear and convincing’’ or ‘‘beyond a 

reasonable doubt’’ would send a 

message that one student’s presence at 

the institution is more valued than the 

other’s. Other commenters did not 

believe the preponderance of evidence 

standard should be specified in the 

regulations because they asserted that 

Congress considered requiring the use of 

the preponderance of evidence standard 

and rejected it when debating the 

VAWA amendments to the Clery Act. 

One commenter stated that the ‘‘clear 

and convincing’’ standard of evidence 

should be used because this standard 

better safeguards due process. 

Discussion: We disagree that final 

§ 668.46(k)(1)(ii) should require that to 

comply with the Clery Act, institutions 

use the preponderance of evidence 

standard or any other specific standard 

when conducting a disciplinary 

proceeding. Unlike title IX, the Clery 

Act only requires that an institution 

describe the standard of evidence it will 

use in a disciplinary proceeding. A 

recipient can comply with both 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. 

Changes: None. 

Sanctions Resulting From a Disciplinary 

Proceeding (§ 668.46(k)(1)(iii)) 

Comments: Several commenters 

supported the requirement in 

§ 668.46(k)(1)(iii) that institutions list 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 in its annual security 

report policy statement. These 

commenters stated that some 

institutions use sanctions such as 

suspensions for a summer semester only 

or expulsions issued after the 

perpetrator has graduated which 

minimize the perpetrator’s 

accountability. These commenters 

believed that listing all possible 

sanctions would make the imposition of 

inappropriate sanctions untenable. 

Other commenters did not support 

listing all possible sanctions because 

they believe that such a listing would 

limit an institution’s ability to 

effectively adjudicate these cases on an 

individual basis, hamper the 

institution’s ability to strengthen 

sanctions, and limit the institution’s 

ability to be innovative in imposing 

sanctions. Other commenters requested 

that this requirement be phased in to 

give institutions additional time to 

review current practices relating to 

sanctions and so that institutions are not 

forced to list hypothetical penalties to 

address situations of dating violence, 

domestic violence, sexual assault, and 

stalking that they have not imposed 

before. 

Discussion: We appreciate the 

commenters’ support for 

§ 668.46(k)(1)(iii), which requires 

institutions to list 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 in its annual security report 

policy statement. 

We have not been persuaded to 

change this requirement. We believe 

that listing all possible sanctions that an 

institution may impose following the 

results of a disciplinary proceeding in 

cases of dating violence, domestic 

violence, sexual assault, and stalking 

will deter institutions from listing (and 

subsequently imposing) inappropriately 


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light sanctions. As noted in the NPRM, 

§ 668.46(k)(1)(iii) does not prohibit an 

institution from using a sanction not 

listed in its most recently issued annual 

security report, provided the 

institution’s list is updated in its next 

annual security report. We do not 

believe that phasing in this requirement 

is appropriate. The regulations are 

effective on July 1, 2015, which will 

give institutions at least seven months 

to implement the requirement to list all 

possible sanctions that an institution 

may impose following the results of a 

disciplinary proceeding. 

Changes: None. 

Training for Officials Who Conduct 

Disciplinary Proceedings 

(§ 668.46(k)(2)(ii)) 

Comments: Several commenters 

supported the requirement that an 

institution’s disciplinary proceedings 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. The 

commenters believed that proper 

training will minimize reliance on 

stereotypes about victims’ behavior and 

will ensure that officials are educated 

on the effects of trauma. 

Other commenters did not support the 

training requirement because they 

considered it to be an unfunded 

mandate. One commenter stated that the 

training requirement goes beyond 

congressional intent. Another 

commenter believed that the costs to 

obtain the training would have a 

negative impact on small institutions 

and asked the Department to provide a 

waiver of the annual training 

requirement for small institutions. 

Alternatively, the commenter asked that 

the Department develop and provide the 

required training at no cost to 

institutions through a Webinar or 

computer-assisted modular training. 

Discussion: The Department 

appreciates the support of commenters 

and agrees that ensuring that officials 

are properly trained will greatly assist in 

protecting the safety of victims and in 

promoting accountability. 

We disagree with the commenter who 

asserted that the training requirement 

goes beyond congressional intent. The 

training requirement in § 668.46(k)(2)(ii) 

reflects what is required by section 

485(f)(8)(B)(iv)(I)(bb) of the Clery Act as 

amended by VAWA. We acknowledge 

that there will be costs associated with 

the training requirement and we urge 

institutions to work with rape crisis 

centers and State sexual assault 

coalitions to develop training that 

addresses the needs and environments 

on small campuses. Lastly, we cannot 

waive this requirement for small 

institutions or provide the training as 

requested. We note that all title IV 

institutions are already required to 

ensure that their officials are trained 

and are knowledgeable in areas such as 

Federal student financial aid 

regulations. Congress added this new 

training requirement to protect students. 

We note that these final regulations are 

effective July 1, 2015, which will give 

institutions ample time to implement 

this requirement in a compliant and 

cost-effective manner. 

Changes: None. 

Advisor of Choice (§ 668.46(k)(2)(iii) 

and (iv)) 

Comments: We received many 

comments on proposed 

§ 668.46(k)(2)(iii) and (iv). Proposed 

§ 668.46(k)(2)(iii) would require that an 

institution’s disciplinary proceeding 

provide the accuser and the accused 

with the same opportunities to have 

others present, including the 

opportunity to be accompanied to any 

related meeting or proceeding by the 

advisor of their choice. Proposed 

§ 668.46(k)(2)(iv) would prohibit the 

institution from limiting the choice of 

advisor, or an advisor’s presence for 

either the accuser or the accused in any 

meeting or institutional disciplinary 

proceeding, although the institution 

may establish restrictions on an 

advisor’s participation as long as the 

restrictions apply equally to both 

parties. 

Many commenters supported 

proposed § 668.46(k)(2)(iii) and (iv) but 

asked that the regulations allow 

institutions to remove or dismiss 

advisors who are disruptive or who do 

not abide by the restrictions on their 

participation to preserve the decorum, 

civility, and integrity of the proceeding. 

Other commenters asked that the 

regulations be revised to detail the 

extent to which an advisor can 

participate in a disciplinary proceeding 

or the type of restrictions an institution 

can place on an advisor’s participation 

in the proceeding, such as prohibiting 

an advisor to speak or to address the 

disciplinary tribunal, or question 

witnesses, to ensure an efficient and fair 

process. One commenter asked that the 

regulations be revised to allow an 

institution to define a pool of 

individuals, including members of the 

campus community, who may serve as 

an advisor. Another commenter asked 

that the regulations require that an 

advisor be willing and able to attend 

disciplinary proceedings in person as 

scheduled by the institution and that an 

advisor can be present in meetings or 

disciplinary proceedings only when the 

advisee is present to ensure that 

disciplinary proceedings are not 

unnecessarily delayed. One commenter 

stated that the regulations should allow 

an advisor only at an initial meeting or 

documentation review of a disciplinary 

proceeding. Another commenter 

believed that allowing an advisor to be 

present at ‘‘any related meeting or 

proceeding’’ would cause unreasonable 

delays if an institution was forced to 

schedule meetings at an advisor’s 

convenience. One commenter asked that 

the regulations prohibit an advisor from 

acting as a proxy for either the accused 

or the accuser so as to not compromise 

their privacy rights. One commenter 

asked that § 668.46(k)(2)(iv) be revised 

to prohibit immigration agents from 

serving in a disciplinary proceeding as 

an advisor. This commenter was 

concerned that if, for example, the 

accused had an immigration agent as an 

advisor and the accuser was not a U.S. 

citizen, the threat of an immigration 

enforcement action would pose a 

significant barrier to participation in a 

disciplinary proceeding for the accuser. 

Discussion: We do not believe that 

any changes to the regulations are 

necessary. Institutions may restrict an 

advisor’s role, such as prohibiting the 

advisor from speaking during the 

proceeding, addressing the disciplinary 

tribunal, or questioning witnesses. An 

institution may remove or dismiss 

advisors who become disruptive or who 

do not abide by the restrictions on their 

participation. An institution may also 

form a pool of individuals, including 

members of the campus community, 

who may serve as advisors as long as the 

choice of an advisor by the accused or 

the accuser is not limited to such a pool. 

We believe that regulating an 

institution’s actions in these areas 

would restrict their flexibility to protect 

the interests of all parties. 

We do not believe that the regulations 

should specify that an advisor must 

attend disciplinary proceedings in 

person. Section 668.46(k)(2)(iii) does 

not require an advisor to be present but 

merely requires that each party have the 

same opportunity to have an advisor 

present. An institution would not need 

to cancel or delay a meeting simply 

because an advisor could not be present, 

so long as the institution gave proper 

notice of the meeting under 

§ 668.46(k)(3)(i)(B)(2); however we 

encourage institutions to consider 

reasonable requests to reschedule. We 

also do not believe that the final 

regulations should specify that an 


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advisor cannot be present in meetings or 

disciplinary proceedings unless the 

advisee is present. An institution is not 

required to permit an advisor to attend 

without the advisee but may find that 

permitting an advisor to attend with the 

advisee’s agreement will make it easier 

to arrange procedural meetings. 

We do not believe that permitting an 

institution to limit an advisor to attend 

only an initial meeting or 

documentation review of a disciplinary 

proceeding is supported by the statute. 

Section 485(f)(8)(B)(iv)(II) of the Clery 

Act provides that the accuser and the 

accused are entitled to the opportunity 

to be accompanied ‘‘to any related 

meeting or proceeding’’ by an advisor of 

their choice. 

We do not believe that the regulations 

need to prohibit an advisor from acting 

as a proxy for either the accused or the 

accuser in the interest of protecting the 

parties’ privacy. Assuming an 

institution allowed an advisor to act as 

a proxy, if the accused or accuser 

authorized their advisor to serve as a 

proxy and consented to any disclosures 

of their records to their advisor, this 

would alleviate any privacy concerns. 

Lastly, we believe that including in 

the final regulations a general 

prohibition on immigration agents 

serving as an advisor to the accused or 

the accuser in a disciplinary proceeding 

is not supported by the statute. As 

stated above, section 485(f)(8)(B)(iv)(II) 

of the Clery Act, as amended by VAWA, 

provides that the accuser and the 

accused are entitled to the opportunity 

to be accompanied to any related 

meeting or proceeding by an advisor of 

their choice. However, institutions 

should be aware that allowing an 

immigration agent to serve as an advisor 

in order to intimidate or deter the 

accused or the accuser from 

participating in a disciplinary 

proceeding to resolve an incident of 

dating violence, domestic violence, 

sexual assault, or stalking would violate 

the Clery Act’s protection against 

retaliation as reflected in § 668.46(m). 

Changes: None. 

Attorney as Advisor of Choice 

(§§ 668.46(k)(2)(iii) and (iv) 

Comments: Many commenters 

supported the Department’s 

interpretation of the statutory language 

in section 485(f)(8)(B)(iv)(II) of the Clery 

Act, as amended by VAWA, that the 

accuser or the accused may choose to 

have an attorney act as their advisor in 

an institution’s disciplinary proceeding. 

The commenters believed that this 

interpretation protects the rights of both 

parties and the integrity of the 

proceedings. Several commenters stated 

that the final regulations should detail 

the type of restrictions an institution 

may impose on an attorney advisor; 

other commenters believed that no 

restrictions on an attorney should be 

permitted. 

Other commenters did not support 

allowing attorneys to act as advisors and 

stated that such an interpretation goes 

beyond the statutory intent. These 

commenters stated that section 

485(f)(8)(B)(iv)(II) of the Clery Act 

provides only ‘‘the opportunity’’ for the 

accused or the accuser to have an 

advisor present during meetings or 

proceedings. Commenters believed that 

allowing attorneys to participate as 

advisors in an institution’s disciplinary 

proceeding will create inequities in the 

process if one party has an attorney 

advisor and the other party does not and 

the presence of attorneys will make the 

campus disciplinary proceeding more 

adversarial and more like a courtroom 

than an administrative proceeding. One 

commenter believed that allowing 

attorney advisors would create a 

chilling effect for complainants and 

discourage them from reporting or going 

forward with a disciplinary process to 

resolve that complaint. Another 

commenter believed that allowing 

attorney advisors would force schools to 

hire court reporters and have legal 

representation present, which would 

drain resources. Another commenter 

believed that allowing attorneys to act 

as advisors would compromise the 

privacy rights of individuals involved in 

the process. One commenter asked that 

the final regulations require institutions 

to provide legal representation in any 

meeting or disciplinary proceeding in 

which the accused or the accuser has 

legal representation but the other party 

does not. One commenter stated that the 

proposed regulations incorrectly suggest 

that State laws providing students with 

a right to counsel in disciplinary 

hearings, like North Carolina’s Student 

and Administration Equality Act, are 

inconsistent with VAWA and requested 

that the language be amended in the 

final rule. 

Discussion: We are not persuaded that 

any changes are necessary to the 

regulations with regard to allowing 

attorneys to participate in an 

institution’s disciplinary proceeding as 

advisors. Section 485(f)(8)(B)(iv)(II) of 

the Clery Act clearly and 

unambiguously supports the right of the 

accused and the accuser to be 

accompanied to any meeting or 

proceeding by ‘‘an advisor of their 

choice,’’ which includes an attorney. 

Section 668.46(k)(2)(iv) allows an 

institution to establish restrictions on an 

advisor’s participation in a disciplinary 

proceeding. As stated earlier in the 

preamble, we believe that specifying 

what restrictions are appropriate or 

removing the ability of an institution to 

restrict an advisor’s participation would 

unnecessarily limit an institution’s 

flexibility to provide an equitable and 

appropriate disciplinary proceeding. 

Nothing in the regulations requires 

institutions to hire court reporters or 

have their own legal representation. Nor 

do we believe that allowing attorneys to 

act as advisors would compromise the 

privacy rights of individuals involved in 

the process, as explained previously. 

We do not believe that the statute 

permits us to require institutions to 

provide legal representation in any 

meeting or disciplinary proceeding in 

which the accused or the accuser has 

legal representation but the other party 

does not. Absent clear and unambiguous 

statutory authority, we would not 

impose such a burden on institutions. 

We would note, however, that the 

statute does require institutions to 

provide written notification to students 

and employees about legal assistance 

available for victims, both on-campus 

and in the community. We encourage 

institutions to also provide information 

about available legal assistance to the 

accused. We also note that the ability of 

the institution to restrict the role of all 

advisors means that all advisors are 

equal and that the presence of an 

attorney should not have a chilling 

effect on complainants. Before a 

proceeding is scheduled, schools should 

inform the parties of any limitations on 

the advisor’s role so that both parties 

understand and respect these 

limitations. Lastly, we do not believe 

that the proposed regulations 

incorrectly suggested that State laws 

providing students with a right to 

counsel in disciplinary hearings are 

inconsistent with VAWA. The 

regulations do not require an institution 

to impose restrictions on the advisor’s 

participation, they merely permit the 

institution to do so. Where State law 

prohibits such a restriction, State law 

would trump any institutional policy 

intended to restrict the advisor’s 

participation that would otherwise be 

permissible under these regulations. 

Changes: None. 

Simultaneous Notification 

(§ 668.46(k)(2)(v)) 

Comments: Several commenters 

supported proposed § 668.46(k)(2)(v) 

which would 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 dating violence, domestic violence, 


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sexual assault, or stalking; the 

institution’s procedures for appeal of 

the result; any change to the result; and 

when the result becomes final. The 

commenters stated that having 

simultaneous notification will eliminate 

the possibility of unannounced, secret 

proceedings at which testimony or 

evidence adverse to the accused is 

gathered without his or her knowledge. 

Another commenter asked the 

Department to issue public guidance 

that incorporates the preamble 

discussion in the NPRM on what 

constitutes ‘‘written simultaneous 

notification’’. 

Discussion: We appreciate the support 

of commenters. We also intend to 

include guidance on what constitutes 

‘‘written simultaneous notification’’ in 

the updated Handbook for Campus 

Safety and Security Reporting. 

Changes: None. 

Definition of ‘‘Prompt, Fair, and 

Impartial’’ (§§ 668.46(k)(3)(i)) 

Comments: One commenter argued 

that the requirement in 

§ 668.46(k)(3)(i)(B)(1) that an 

institution’s disciplinary proceeding 

must be ‘‘transparent’’ to the accuser 

and the accused does not have legal 

meaning, and creates ambiguities and 

unrealistic expectations. 

One commenter believed that the 

requirement for timely notice of 

meetings in § 668.46(k)(3)(i)(B)(2) 

should be revised to specify that the 

timely notice applies only to meetings 

in which both the accused and the 

accuser will be present. Several 

commenters believed the timely notice 

provision interferes with an institution’s 

ability to contact the accused student 

upon receipt of an incident report to 

schedule a meeting and, if necessary, 

take immediate action such as imposing 

an interim suspension, relocation from 

a dormitory, or removal from class. The 

commenters considered this a safety 

issue for both the accuser and the 

community. 

Several commenters were concerned 

that the requirement in 

§ 668.46(k)(3)(i)(C) that an institution’s 

disciplinary proceeding be conducted 

by officials who do not have a conflict 

of interest or bias for or against the 

accuser or the accused does not address 

situations in which inappropriately 

partial or ideologically inspired people 

dominate the pool of available 

participants in a proceeding. This 

commenter suggested that the accused 

or the accuser be afforded an appeal or 

opportunity to object if a member of the 

adjudicating body is biased. Several 

commenters suggested that the final 

regulations should prohibit adjudicating 

officials with responsibility for 

administering informal resolution 

procedures from having any 

involvement in, or contact with, a 

formal disciplinary board that has 

responsibility for resolving the same 

complaint, to reduce the appearance 

that officials are trying to influence the 

outcome of a proceeding in favor of 

either party. 

Lastly, one commenter recommended 

that the final regulations should provide 

that the accused or the accuser have the 

right to appeal the results of an 

institutional disciplinary proceeding, 

for an institution’s proceeding to be 

considered prompt, fair, and impartial. 

This commenter stated that appeals are 

part of any well-functioning 

disciplinary process and ensure that any 

unfairness in the process is addressed 

by university leadership. 

Discussion: We do not believe it is 

necessary to clarify the term 

‘‘transparent.’’ With respect to a 

disciplinary proceeding, the term 

‘‘transparent’’ means a disciplinary 

proceeding that lacks hidden agendas 

and conditions, makes appropriate 

information available to each party, and 

is fair and clear to all participants. 

We do not believe that the 

requirement for timely notice of 

meetings in § 668.46(k)(3)(i)(B)(2) 

should be modified to apply to only 

meetings in which both the accused and 

the accuser will be present. We believe 

that an institution should provide 

timely notice for meetings at which only 

the accused or the accuser will be 

present so that the parties are aware of 

meetings before they occur. 

Furthermore, we do not believe that the 

timely notice provision compromises an 

institution’s ability to schedule a 

meeting with an accused student after 

receiving an incident report. In this 

context, ‘‘timely’’ just means that the 

institution must notify the accuser of 

this meeting as quickly as possible, but 

it does not mean that the institution 

must unreasonably delay responsive 

action to provide advance notice to the 

accuser. 

We are not persuaded that we should 

revise the requirement in 

§ 668.46(k)(3)(i)(C) that an institution’s 

disciplinary proceeding be conducted 

by officials who do not have a conflict 

of interest or bias for or against the 

accuser or the accused to be considered 

prompt, fair, and impartial. With respect 

to the specific scenarios described by 

the commenters where they believe 

certain institutions’ proceedings are 

being conducted by officials with bias, 

without more facts we cannot declare 

here that such scenarios present a 

conflict of interest, but if they did, 

§ 668.46(k)(3)(i)(C) would prohibit this 

practice. The Clery compliance staff will 

monitor the presence of any conflicts of 

interest and we may revisit these 

regulations if we identify significant 

problems in this area. 

Lastly, we disagree with the 

commenters who recommended that the 

final regulations should provide the 

accused or the accuser with the right to 

appeal the results of an institutional 

disciplinary proceeding. We do not 

believe we have the statutory authority 

to require institutions to provide an 

appeal process. 

Changes: None. 

Definition of ‘‘Proceeding’’ 

(§ 668.46(k)(3)(iii)) 

Comments: One commenter 

recommended that the definition of 

‘‘proceeding’’ should expressly exclude 

communications between complainants 

and officials regarding interim 

protective measures for the 

complainant’s protection. Another 

commenter suggested changing the 

definition to clarify that ‘‘proceeding’’ 

includes employee and faculty 

disciplinary proceedings as well as 

student disciplinary proceedings. 

Discussion: We agree that the 

definition of ‘‘proceeding’’ should be 

modified to not include 

communications regarding interim 

protective measures. In many cases 

protective measures may be necessary 

for the protection of the accuser and 

treating these communications as 

‘‘proceedings’’ could lessen that 

protection. We do not agree that 

changing the definition of ‘‘proceeding’’ 

to reflect employee and faculty 

disciplinary proceedings is necessary. 

Nothing in the definition limits a 

proceeding to only one involving 

students, and an institution is already 

required to describe each type of 

disciplinary proceeding used by the 

institution in its annual security report 

policy statement in accordance with 

§ 668.46(k)(1)(i). 

Changes: We have revised the 

definition of ‘‘proceeding’’ by adding 

that a ‘‘proceeding’’ does not include 

communications and meetings between 

officials and victims concerning 

accommodations or protective measures 

to be provided to a victim. 

Definition of ‘‘Result’’ 

(§ 668.46(k)(3)(iv)) 

Comments: Several commenters 

believed that the Department’s 

reasoning in the NPRM for defining 

‘‘result’’ to include the rationale for the 

result, that the accused or the accuser 

could use the result as the basis for an 

appeal, was flawed and not supported 


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2U.S. Department of Education. Institute of 

Education Sciences, National Center for Education 

Statistics. http://nces.ed.gov/ipeds/datacenter/

InstitutionList.aspx. 

by statute. The commenters requested 

that the Department change the 

definition of ‘‘result’’ to require 

institutions to provide the rationale for 

the result to the accuser if it does so for 

the accused. 

Discussion: We do not agree that the 

reasoning in the NPRM for defining 

‘‘result’’ to include the rationale for the 

result is flawed. That either the accused 

or the accuser could use the result for 

the basis of an appeal is common sense. 

We also do not agree that the definition 

of ‘‘result’’ needs to be modified because 

§ 668.46(k)(2)(v)(A) requires an 

institution to simultaneously notify both 

the accuser and the accused of the result 

of any institutional disciplinary 

proceeding. 

Changes: None. 

§ 668.46(m) Prohibition on Retaliation 

Comments: One commenter expressed 

support for incorporating section 

485(f)(17) of the Clery Act into the 

regulations. 

Discussion: We appreciate the 

commenter’s support. 

Changes: None. 

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 Integrated 

Postsecondary Education Data System 

(IPEDS) data, a total of 7,508 institutions 

were participating in title IV programs 

in 2012.2 The Department reviews 

institutions for compliance with the 

Clery Act and has imposed fines for 

significant non-compliance. 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 final 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 

on a reasoned determination that their 

benefits justify their costs (recognizing 

that some benefits and costs are difficult 

to quantify); 

(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 final regulations 

only on a reasoned determination that 

their benefits 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 final 

regulations are consistent with the 

principles in Executive Order 13563. 

We also have determined that this 

regulatory action does not unduly 

interfere with State, local, or tribal 

governments in the exercise of their 

governmental functions. 

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 six 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 and provide crime 

prevention and safety information to 

students and employees. 

The section titled ‘‘Summary of 

Changes from the NPRM’’ summarizes 

the most important revisions the 

Department made in these final 

regulations since the NPRM. These 

changes were informed by the 

Department’s consideration of over 

approximately 2,200 parties who 

submitted comments on the proposed 

regulations, along with approximately 

3,600 individuals who submitted a 

petition expressing support for 

comments submitted by the American 

Association of University Women. The 

changes are intended to clarify the 

reporting of stalking across calendar 

years, remove the requirement by 

institutions to report stalking as a new 

and distinct crime after an official 

intervention, and clarify cases in which 

an institution may remove from its 

crime statistics reports of crimes that 

have been unfounded. 

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 

regulations. First, we expect students 

and prospective students and employees 

and prospective employees to be better 


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informed and better able to make 

choices in regards to higher education 

attendance and employment because the 

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 

institutional 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 features 

of the regulations, including definitions 

of ‘‘outcomes,’’ ‘‘initial and final 

determinations,’’ ‘‘resolution,’’ ‘‘dating 

violence,’’ ‘‘employees,’’ and ‘‘consent.’’ 

Finally, the ‘‘Final Regulatory 

Flexibility Analysis’’ considers issues 

relevant to small businesses and 

nonprofit institutions. 

Elsewhere in this section under 

Paperwork Reduction Act of 1995, we 

identify and explain burdens 

specifically associated with information 

collection requirements. 

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 VAWA 

provisions 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 

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. 

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 

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. 

Summary of Changes From the NPRM 

Reporting Stalking Crossing Calendar 

Years 

The Department modified 

§ 668.46(c)(6)(i) to clarify that stalking 

which crosses calendar years should be 

recorded in each and every year in 

which the stalking is reported to a 

campus security authority or local 

police. While commenters supported 

the approach in the proposed 

regulations, arguing that it would 

provide an accurate picture of crime on 

campus for each calendar year, they also 

suggested modifying the language to 

clarify that an institution must include 

a statistic for stalking in each and every 

year in which a particular course of 

conduct is reported to a local police 

agency or campus security authority. 

The modification was made to address 

this concern. 

Stalking After an ‘‘Official Intervention’’ 

The Department removed proposed 

§ 668.46(c)(6)(iii) which would have 

required institutions to record a report 

of stalking as a new and distinct crime, 

and not associated with a previous 

report of stalking, when the stalking 

behavior continues after an official 

intervention. 

Some of the commenters supported 

the approach in the NPRM under which 

stalking would be counted separately 

after an official intervention, including 

formal and informal intervention and 

those initiated by school officials or a 

court. 

Other commenters urged the 

Department to remove § 668.46(c)(6)(iii) 

and argued that the proposed approach 

would be inconsistent with treating 

stalking as a course of conduct. They 

explained that stalking cases often have 

numerous points of intervention, but 

that despite one or multiple 

interventions, it is still the same pattern 

or course of conduct, and that recording 

a new statistic after an ‘‘official 

intervention’’ would be arbitrary. The 

Department agreed with this argument. 

Recording All Reported Crimes 

(§ 668.46(c)(2)) 

The Department received comments 

asking us to clarify how the regulation 

that provides that all crimes reported to 

a campus security authority must be 

included in an institution’s crime 

statistics relates to ‘‘unfounded’’ crime 

reports. The Department has clarified in 

the final regulations that an institution 

may remove from its crime statistics 


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(but not from its crime log) reports of 

crimes that have been determined to be 

‘‘unfounded.’’ We have also added a 

requirement that institutions report to 

the Department and disclose in the 

annual security report statistics the 

number of crime reports that were 

‘‘unfounded’’ and subsequently 

withheld from its crime statistics during 

each of the three most recent calendar 

years. This information will enable the 

Department to monitor the extent to 

which reports of Clery Act crimes are 

unfounded so that we can provide 

additional guidance about how to 

properly ‘‘unfound’’ a crime report or 

intervene if necessary. 

Discussion of Costs and Benefits 

A benefit of these regulations is that 

they will strengthen the rights of 

campus victims 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 regulations will require 

institutions to include in their annual 

security report information about the 

institution’s policies and programs to 

prevent sexual assault, which would 

include information about programs that 

address dating violence, domestic 

violence, sexual assault, and stalking. 

This information would help students 

and employees understand these rights, 

procedures and programs. 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 equal 

opportunities for the presence of 

advisors at meetings and proceedings, 

an equal right to appeal if appeals are 

available, and the right to learn of the 

outcome of the proceedings. Victims of 

these crimes would gain the benefit of 

a written explanation of their rights and 

options. 

Institutions would largely bear the 

costs of these regulations, which will 

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 

regulations, institutions will 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 will have to create or update 

the material or the availability of 

prevention programs while others may 

have sufficient information and 

programs in place. 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 regulations can 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 

regulations involves institutional 

disciplinary proceedings in cases of 

alleged dating violence, domestic 

violence, sexual assault, or stalking. The 

policy statement describing the 

proceedings will have to include: a 

description of the standard of evidence 

that applies; a description of the 

possible sanctions; a statement that the 

accused and the accuser will have an 

equal right to have others present, 

including an advisor of their choice; and 

a statement that written notice of the 

outcome 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 would 

have to make changes to their 

disciplinary proceedings. The 

Department has not attempted to 

quantify those potential additional 

costs, which could vary significantly 

among institutions. 

In addition to the costs described 

above, institutions will incur costs 

associated with the reporting and 

disclosure requirements of the 

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 regulations, these costs will 

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 

actions. In total, the regulations are 

estimated to increase burden on 

institutions participating in the title IV, 

HEA programs by 77,725 hours 

annually. The monetized cost of this 

additional 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. 

Net Budget Impacts 

The 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 zeroes’’ 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 

the calculator and used governmentwide 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 

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 


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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 Act 

but those fines do not have a net budget 

impact. Therefore, we estimate that the 

regulations will have no net budget 

impact on the title IV, HEA programs. 

Alternatives Considered 

The Department determined that 

regulatory action was needed 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 

regulations, a number of different 

regulatory approaches were discussed 

by the Department and the non-Federal 

negotiators 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,’’ and ‘‘consent.’’ The 

alternative approaches to these 

definitions considered by the 

Department are discussed in the 

following section. 

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 used 

interchangeably, along with the term 

‘‘results.’’ The Department considered 

defining ‘‘outcomes’’ to be one or more 

parts of the results. An alternative 

definition of ‘‘initial determinations’’ 

was also considered by the Department 

and would have referred to decisions 

made before the appeals process, if the 

institution had such a process, meaning 

prior to a final determination. A ‘‘final 

determination’’ would have been 

defined as 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 

regulations to include the initial, 

interim, and final decisions. 

Alternative Definition of Dating 

Violence 

The Department considered several 

alternatives in 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 

emotional and psychological abuse did 

not always elevate into violence and 

had concerns over the ability of campus 

security authorities to identify this 

abuse. 

The Department also took into 

consideration the definition of ‘‘dating 

violence’’ as a crime when it is not a 

prosecutable crime in some 

jurisdictions. To address this concern, 

the Department added a statement that 

any incident meeting the definition of 

‘‘dating violence’’ is considered a crime 

for the purposes of Clery Act reporting. 

Definition of Employees 

The Department considered adding a 

definition of ‘‘employees’’ to the 

regulations. This definition would 

clarify whether contractors and other 

employees, such as hospital employees 

affiliated with the hospital of the 

institution, were included as employees 

since they had a presence on campus. 

The Department decided not to include 

this definition as the statute already 

requires 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 purposes of 

the Clery Act. Some of the negotiators 

argued 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’’ would also create ambiguity 

in jurisdictions which either do not 

define ‘‘consent,’’ or have a definition 

that differs from the one that would be 

in the regulations. The Department 

decided against including the definition 

of ‘‘consent’’ in the 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 or the campus security 

department, must be included in the 

crime log, regardless of the issue of 

consent. 

Final Regulatory Flexibility Act 

Analysis 

The regulations would apply to 

institutions of higher education that 

participate in the title IV, HEA Federal 

student financial aid programs, other 

than foreign institutions of higher 

education. The U.S. Small Business 

Administration (SBA) 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. The 

SBA Size Standards define nonprofit 

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. We do not consider any 

institution dominant in the field of 

higher education, so all non-profit 

institutions and for-profit institutions 

with total revenues under $7 million in 

IPEDS are assumed to be small entities. 

No public institutions are assumed to be 

small entities. 

Description of the Reasons That Action 

by the Agency Is Being Considered 

This 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 regulations 

would reflect the statutory requirement 

that institutions compile 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. 


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Succinct Statement of the Objectives of, 

and Legal Basis for, the 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) of the 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 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 Regulations 

Would Apply 

The regulations would apply to 

institutions of higher education that 

participate in the title IV, HEA Federal 

student financial 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 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 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 § 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 Regulations 

The 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. 

Paperwork Reduction Act of 1995 

The Paperwork Reduction Act of 1995 

does not require you to respond to a 

collection of information unless it 

displays a valid OMB control number. 

We display the valid OMB control 

numbers assigned to the collections of 

information in these final regulations at 

the end of the affected sections of the 

regulations. 

Section 668.46 contains information 

collection requirements. Under the 

Paperwork Reduction Act of 1995 (PRA) 

(44 U.S.C. 3507(d)), the Department has 

submitted a copy of these sections, 

related forms, and Information 

Collections Requests (ICRs) to the Office 

of Management and Budget (OMB) for 

its review. 

Section 668.46 Institutional Security 

Policies and Crimes Statistics 

Requirements: Under the final 

regulations in § 668.46(b) Annual 

security report, we are revising and 

expanding existing language and adding 

new requirements for items to be 

reported annually. We are revising 

§ 668.46(b)(4)(i) to require institutions 

to, in addition to the existing required 

information, address in their statements 

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 

agencies, for the investigation of alleged 

criminal offenses. This change 

incorporates modifications made to the 

Clery Act by the Higher Education 

Opportunity Act. 

We are revising and restructuring 

§ 668.46(b)(11). Specifically, we 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 will follow when one of 

these crimes is reported. This change 

incorporates modifications made to the 

Clery Act by VAWA. 

Under § 668.46(b)(11)(ii), institutions 

must provide written information to the 

victim of dating violence, domestic 

violence, sexual assault, and stalking. 

Institutions are required to provide 

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 


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applicable, the victim’s rights or 

institution’s responsibilities for orders 

of protection. This change incorporates 

modifications made to the Clery Act by 

VAWA, discussions during the 

negotiations, and input we received 

from public comments. 

In § 668.46(b)(11)(iii), we are adding a 

provision to specify that institutions 

must address in their annual security 

report how they will complete publicly 

available record-keeping for the 

purposes of the 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 institutions to provide such 

accommodations or protective 

measures. This change incorporates 

modifications made to the Clery Act by 

VAWA, discussions during the 

negotiations, and input we received 

from public comments. 

In § 668.46(b)(11)(iv), we are requiring 

institutions to specify in their annual 

security report that they will provide a 

written notification of the services that 

are available to victims of dating 

violence, domestic violence, sexual 

assault and stalking. The notice must 

provide information on existing 

counseling, health, mental health, 

victim advocacy, legal assistance, visa 

and immigration services, and other 

services that may be available at the 

institution and in the community. This 

change incorporates modifications made 

to the Clery Act by VAWA, discussions 

during negotiations, and input we 

received from public comments. 

We are revising § 668.46(b)(11)(v) to 

require institutions to specify in their 

annual security report that written 

notification will 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 will be afforded any 

victim, regardless of whether the victim 

reports the crime to campus policy or 

law enforcement. This change 

incorporates modifications made to the 

Clery Act by VAWA, discussions during 

negotiations, and input we received 

from public comments. 

In § 668.46(b)(11)(vi), we are adding a 

new provision to require institutions to 

specify in their ASR 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 the 

victim will be provided a written 

explanation of their rights and options, 

whether the offense occurred on campus 

or off campus. This change incorporates 

modifications made to the HEA by 

VAWA. 

Burden Calculation: We estimate that 

the changes in § 668.46(b)(11) will add 

2.5 hours of additional burden for an 

institution. As a result, reporting burden 

at public institutions will increase by 

5,028 hours (2,011 public institutions 

time 2.5 hours per institution). 

Reporting burden at private non-profit 

institutions will increase by 4,635 hours 

(1,854 private non-profit institutions 

times 2.5 hours per institution). 

Reporting burden at private for-profit 

institutions will increase by 8,413 hours 

(3,365 private for-profit institutions 

times 2.5 hours per institution). 

Collectively, burden will increase by 

18,076 hours under OMB Control 

Number 1845–0022. 

Requirements: Under the final 

regulations in § 668.46(c), Crime 

statistics, we will revise and expand 

existing language and add new reporting 

requirements for items to be reported in 

the annual survey. 

The final revisions to § 668.46(c)(1) 

will add the VAWA crimes of dating 

violence, domestic violence and stalking 

to the list of crimes about which 

institutions must collect and disclose 

statistics in their annual crime statistics 

reports. The Department is also 

modifying its approach for the reporting 

and disclosing of sex offenses to reflect 

updates to the FBI’s Uniform Crime 

Reporting (UCR) Program. The 

Department is making other changes to 

improve the clarity of this paragraph. 

While institutions will continue to be 

required to report statistics for the three 

most recent calendar years, the 

reporting requirements in these final 

regulations are expanded because of the 

addition of new crimes added by 

VAWA. 

Under the final regulations in 

§ 668.46(c)(2)(iii), an institution may 

withhold, or subsequently remove, a 

reported crime from its crime statistics 

if, after a full investigation, a sworn or 

commissioned law enforcement officer 

makes a formal determination that the 

crime is false or baseless and therefore 

‘‘unfounded.’’ Under the final 

regulations in § 668.46(c)(2)(iii)(A), an 

institution must report to the 

Department and disclose in its annual 

security report statistics the total 

number of crimes that were 

‘‘unfounded’’ and subsequently 

withheld from its crime statistics during 

each of the three most recent calendar 

years. We have determined that the 

burden associated with 

§§ 668.46(c)(2)(iii) and (iii)(A), is de 

minimus in nature. ‘‘Unfounding’’ a 

crime report is a long-standing process 

and, as indicated in the preamble to this 

final rule, the Department has required 

institutions to maintain accurate 

documentation of the investigation and 

the basis for ‘‘unfounding’’ a crime 

report when removing it from their 

crime statistics for compliance purposes 

for some time. Institutions are already 

expected to have documentation in the 

situation in which a crime has been 

‘‘unfounded,’’ and they already report 

crime report statistics to the Department 

through our electronic, Web-based 

reporting system. Because this provision 

requires institutions to report 

information that they must already 

collect through an existing system, there 

is no burden associated with this 

provision. 

The final regulations under §§ 668.46 

(c)(4)(iii) and 668.46 (c)(vii) will include 

gender identity and national origin as 

two new categories of bias that serve as 

the basis for a determination of a hate 

crime. 

Under the final regulations in § 668.46 

(c)(6), we added stalking as a reportable 

crime and defined it in the regulations. 

These changes implement the 

modifications VAWA made to the HEA, 

and improve the overall clarity of this 

paragraph. We believe that burden will 

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 changes to the 

reporting of crime statistics will take 

each institution 1.50 hours of additional 

burden. As a result, reporting burden at 

public institutions will 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 

will increase by 5,048 hours (3,365 

private for-profit institutions times 1.50 

hours per institution). 

Collectively, burden will increase by 

10,846 hours under OMB Control 

Number 1845–0022. 

Requirements: The final regulations in 

§ 668.46(j), Programs to prevent dating 

violence, domestic violence, sexual 

assault, and stalking, specify the 

elements of the required statement of 

policy on 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. 

The final regulations in 

§ 668.46(j)(1)(i) require the institution’s 


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62782 Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 

statement to contain certain elements in 

the description of the primary 

prevention and awareness programs for 

incoming students and new employees 

including: The prohibition of dating 

violence, domestic violence, sexual 

assault, or stalking, definitions of those 

crimes and a definition of consent 

according to the applicable jurisdiction, 

and descriptions of safe and positive 

options for bystander intervention, 

information on risk reduction, as well as 

other elements of §§ 668.46(b)(11)(ii)– 

(vii) and (k)(2). These changes 

incorporate modifications made to the 

HEA by VAWA. 

The final regulations in 

§ 668.46(j)(1)(ii) 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 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 as 

well as other elements of 

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

amendatory language is required to 

incorporate changes made to the HEA 

by VAWA. 

Burden Calculation: On average, we 

estimate that the changes to the 

institution’s statements of policy and 

description of programs and ongoing 

campaigns will take each institution 

four hours of additional burden. As a 

result, reporting burden at public 

institutions will increase by 8,044 hours 

(2,011 reporting public institutions 

times 4 hours per institution). Reporting 

burden at private non-profit institutions 

will increase by 7,416 hours (1,854 

private non-profit institutions times four 

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

13,460 hours (3,365 private for-profit 

institutions times four hours per 

institution). 

Collectively, burden will increase by 

28,920 hours under OMB Control 

Number 1845–0022. 

Requirements: Under the final 

regulations in § 668.46(k), Procedures 

for institutional disciplinary action in 

cases of alleged dating violence, 

domestic violence, sexual assault, or 

stalking, we are implementing 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. 

The final regulations in § 668.46(k)(1) 

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 final 

regulations require the following 

additions to the statement of policy. 

The final regulations in 

§ 668.46(k)(1)(i) provide that the 

statement of policy must describe each 

type of disciplinary proceeding used by 

the institution, including the steps, 

anticipated timelines, and decisionmaking process for each, and how the 

institution determines which type of 

disciplinary hearing to use. 

The final regulations in 

§ 668.46(k)(1)(ii) provide that the 

statement of policy must describe the 

standard of evidence that will be used 

during any disciplinary proceeding. 

The final regulations in 

§ 668.46(k)(1)(iii) provide that the 

statement of policy must list all possible 

sanctions an institution may impose 

following the results of any disciplinary 

proceeding. 

The final regulations in 

§ 668.46(k)(1)(iv) provide 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 the final regulations in 

§ 668.46(k)(2), the institution will have 

to provide additional information 

regarding its disciplinary proceedings in 

the statement of policy. Section 

668.46(k)(2)(i) requires that an 

institution’s statement of policy must 

provide that its disciplinary proceeding 

includes a prompt, fair, and impartial 

process from the initial investigation to 

the final result. 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 the final 

regulations in § 668.46(k)(2)(ii). 

Under the final regulations in 

§ 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. The final regulations in 

§ 668.46(k)(2)(iv), provide that 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 

the final regulations in § 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 any 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. 

Burden Calculation: On average, we 

estimate that the changes to the 

institution’s statement of policy will 

take each institution 2.75 hours of 

additional burden. As a result, reporting 

burden at public institutions will 

increase by 5,530 hours (2,011 reporting 

public institutions times 2.75 hours per 

institution). Reporting burden at private 

non-profit institutions will increase by 

5,099 hours (1,854 private non-profit 

institutions times 2.75 hours). Reporting 

burden at private for-profit institutions 

will increase by 9,254 hours (3,365 

private for-profit institutions times 2.75 

hours per institution). 

Collectively, burden will increase by 

19,883 hours under OMB Control 

Number 1845–0022. 

Consistent with the discussion above, 

the table below describes the final 

regulations involving information 

collections, the information being 

collected, and 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 wage data developed using BLS 

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

sp/ecsuphst.pdf, is $2,840,848.75, as 

shown in the following chart. This cost 

was based on an hourly rate of $36.55 

for institutions. 


tkelley on DSK3SPTVN1PROD with RULES2
Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 62783 

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 will increase by 18,076 hours.

$660,677.80 

§ 668.46(c) Crime statistics .................... Revises and expands existing language and adds new reporting requirements for items to be reported 

in the annual crime statistics report.

OMB 1845–0022. We estimate that the 

burden will increase by 10,846 hours.

396,421.30 

§ 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 will increase by 28,920 hours.

$,057,026.00 

§ 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 will increase by 19,883 hours.

726,723.65 

Assessment of Educational Impact 

In the NPRM we requested 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. 

Based on the response to the NPRM 

and on our review, we have determined 

that these final regulations do not 

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 format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the program contact 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. 

(Catalog of Federal Domestic Assistance 

Number does not apply.) 

List of Subjects in 34 CFR Part 668 

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: October 7, 2014. 

Arne Duncan, 

Secretary of Education. 

For the reasons discussed in the 

preamble, the Secretary of Education 

amends 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. Revise § 668.46 to read as follows: 

§ 668.46 Institutional security policies and 

crime statistics. 

(a) Definitions. Additional definitions 

that apply to this section: 

Business day. Monday through 

Friday, excluding any day when the 

institution is closed. 

Campus. (i) 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 

(ii) Any building or property that is 

within or reasonably contiguous to the 

area identified in paragraph (i) of this 

definition, that is owned by the 

institution but controlled by another 

person, is frequently used by students, 

and supports institutional purposes 

(such as a food or other retail vendor). 

Campus security authority. (i) A 

campus police department or a campus 

security department of an institution. 

(ii) Any individual or individuals 

who have responsibility for campus 

security but who do not constitute a 

campus police department or a campus 

security department under paragraph (i) 

of this definition, such as an individual 

who is responsible for monitoring 

entrance into institutional property. 

(iii) Any individual or organization 

specified in an institution’s statement of 

campus security policy as an individual 

or organization to which students and 

employees should report criminal 

offenses. 

(iv) An official of an institution who 

has significant responsibility for student 

and campus activities, including, but 

not limited to, student housing, student 

discipline, and campus judicial 


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proceedings. If such an official is a 

pastoral or professional counselor as 

defined below, the official is not 

considered a campus security authority 

when acting as a pastoral or professional 

counselor. 

Clery geography. (i) 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— 

(A) Buildings and property that are 

part of the institution’s campus; 

(B) The institution’s noncampus 

buildings and property; and 

(C) Public property within or 

immediately adjacent to and accessible 

from the campus. 

(ii) 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 (i) 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. 

(i) 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. 

(ii) For the purposes of this 

definition— 

(A) Dating violence includes, but is 

not limited to, sexual or physical abuse 

or the threat of such abuse. 

(B) Dating violence does not include 

acts covered under the definition of 

domestic violence. 

(iii) For the purposes of complying 

with the requirements of this section 

and § 668.41, any incident meeting this 

definition is considered a crime for the 

purposes of Clery Act reporting. 

Domestic violence. (i) A felony or 

misdemeanor crime of violence 

committed— 

(A) By a current or former spouse or 

intimate partner of the victim; 

(B) By a person with whom the victim 

shares a child in common; 

(C) By a person who is cohabitating 

with, or has cohabitated with, the victim 

as a spouse or intimate partner; 

(D) 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 

(E) 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. 

(ii) For the purposes of complying 

with the requirements of this section 

and § 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. 

Noncampus building or property. (i) 

Any building or property owned or 

controlled by a student organization that 

is officially recognized by the 

institution; or 

(ii) 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 within the same 

reasonably contiguous geographic area 

of the institution. 

Pastoral counselor. A person who is 

associated with a religious order or 

denomination, is recognized by that 

religious order or denomination as 

someone who provides confidential 

counseling, and is functioning within 

the scope of that recognition as a 

pastoral counselor. 

Professional counselor. A person 

whose official responsibilities include 

providing mental health counseling to 

members of the institution’s community 

and who is functioning within the scope 

of the counselor’s license or 

certification. 

Programs to prevent dating violence, 

domestic violence, sexual assault, and 

stalking. (i) Comprehensive, intentional, 

and integrated programming, initiatives, 

strategies, and campaigns intended to 

end dating violence, domestic violence, 

sexual assault, and stalking that— 

(A) 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 

(B) Consider environmental risk and 

protective factors as they occur on the 

individual, relationship, institutional, 

community, and societal levels. 

(ii) 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) of this 

section. 

Public property. All public property, 

including thoroughfares, streets, 

sidewalks, and parking facilities, that is 

within the campus, or immediately 

adjacent to and accessible from the 

campus. 

Referred for campus disciplinary 

action. The referral of any person to any 

campus official who initiates a 

disciplinary action of which a record is 

kept and which may result in the 

imposition of a sanction. 

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. (i) Engaging in a course of 

conduct directed at a specific person 

that would cause a reasonable person 

to— 

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

safety of others; or 

(B) Suffer substantial emotional 

distress. 

(ii) For the purposes of this 

definition— 

(A) 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. 

(B) Reasonable person means a 

reasonable person under similar 

circumstances and with similar 

identities to the victim. 

(C) Substantial emotional distress 

means significant mental suffering or 

anguish that may, but does not 


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Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 62785 

necessarily, require medical or other 

professional treatment or counseling. 

(iii) 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. 

Test. Regularly scheduled drills, 

exercises, and appropriate followthrough activities, designed for 

assessment and evaluation of emergency 

plans and capabilities. 

(b) Annual security report. An 

institution must prepare an annual 

security report reflecting its current 

policies that contains, at a minimum, 

the following information: 

(1) The crime statistics described in 

paragraph (c) of this section. 

(2) A statement of policies regarding 

procedures for students and others to 

report criminal actions or other 

emergencies occurring on campus. This 

statement must include the institution’s 

policies concerning its response to these 

reports, including— 

(i) Policies for making timely warning 

reports to members of the campus 

community, as required by paragraph (e) 

of this section, regarding the occurrence 

of crimes described in paragraph (c)(1) 

of this section; 

(ii) Policies for preparing the annual 

disclosure of crime statistics; 

(iii) A list of the titles of each person 

or organization to whom students and 

employees should report the criminal 

offenses described in paragraph (c)(1) of 

this section for the purposes of making 

timely warning reports and the annual 

statistical disclosure; and 

(iv) Policies or procedures for victims 

or witnesses to report crimes on a 

voluntary, confidential basis for 

inclusion in the annual disclosure of 

crime statistics. 

(3) A statement of policies concerning 

security of and access to campus 

facilities, including campus residences, 

and security considerations used in the 

maintenance of campus facilities. 

(4) A statement of 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. 

(5) A description of the type and 

frequency of programs designed to 

inform students and employees about 

campus security procedures and 

practices and to encourage students and 

employees to be responsible for their 

own security and the security of others. 

(6) A description of programs 

designed to inform students and 

employees about the prevention of 

crimes. 

(7) A statement of policy concerning 

the monitoring and recording through 

local police agencies of criminal activity 

by students at noncampus locations of 

student organizations officially 

recognized by the institution, including 

student organizations with noncampus 

housing facilities. 

(8) A statement of policy regarding the 

possession, use, and sale of alcoholic 

beverages and enforcement of State 

underage drinking laws. 

(9) A statement of policy regarding the 

possession, use, and sale of illegal drugs 

and enforcement of Federal and State 

drug laws. 

(10) A description of any drug or 

alcohol-abuse education programs, as 

required under section 120(a) through 

(d) of the HEA, otherwise known as the 

Drug-Free Schools and Communities 

Act of 1989. For the purpose of meeting 

this requirement, an institution may 

cross-reference the materials the 

institution uses to comply with section 

120(a) through (d) of the HEA. 

(11) A statement of policy regarding 

the institution’s programs to prevent 

dating violence, domestic violence, 

sexual assault, and stalking, as defined 

in paragraph (a) of this section, 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, including Clery Act 

reporting and disclosures, without the 

inclusion of personally 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 

students and employees about existing 

counseling, health, mental health, 

victim advocacy, legal assistance, visa 

and immigration assistance, student 

financial aid, 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, available 

assistance in, and how to request 

changes to academic, living, 

transportation, and working situations 

or protective measures. The institution 

must make such accommodations or 

provide such protective measures 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; 


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62786 Federal Register / Vol. 79, No. 202 / Monday, October 20, 2014 / Rules and Regulations 

(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. 

(12) A statement advising the campus 

community where law enforcement 

agency information provided by a State 

under section 121 of the Adam Walsh 

Child Protection and Safety Act of 2006 

(42 U.S.C. 16921), concerning registered 

sex offenders may be obtained, such as 

the law enforcement office of the 

institution, a local law enforcement 

agency with jurisdiction for the campus, 

or a computer network address. 

(13) A statement of policy regarding 

emergency response and evacuation 

procedures, as required by paragraph (g) 

of this section. 

(14) A statement of policy regarding 

missing student notification procedures, 

as required by paragraph (h) 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 referrals for 

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 

listed in paragraph (c)(1) of this section 

occurring on or within its Clery 

geography that are reported to a campus 

security authority for purposes of Clery 

Act reporting. Clery Act reporting does 

not require initiating an investigation or 

disclosing personally 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. 

(iii) An institution may withhold, or 

subsequently remove, a reported crime 

from its crime statistics in the rare 

situation where sworn or commissioned 

law enforcement personnel have fully 

investigated the reported crime and, 

based on the results of this full 

investigation and evidence, have made 

a formal determination that the crime 

report is false or baseless and therefore 

‘‘unfounded.’’ Only sworn or 

commissioned law enforcement 

personnel may ‘‘unfound’’ a crime 

report for purposes of reporting under 

this section. The recovery of stolen 

property, the low value of stolen 

property, the refusal of the victim to 

cooperate with the prosecution, and the 

failure to make an arrest do not 

‘‘unfound’’ a crime report. 

(A) An institution must report to the 

Department and disclose in its annual 

security report statistics the total 

number of crime reports listed in 

paragraph (c)(1) of this section that were 

‘‘unfounded’’ and subsequently 

withheld from its crime statistics 

pursuant to paragraph (c)(2)(iii) of this 

section during each of the three most 

recent calendar years. 

(B) [Reserved] 

(3) Crimes must be recorded by 

calendar year. (i) An institution must 

record 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 for each and 

every year in which the course of 

conduct is reported to a local police 

agency or to a campus security 

authority. 

(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. 

(7) Identification of the victim or the 

accused. The statistics required under 

paragraph (c) of this section do 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 


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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 for 

murder and nonnegligent manslaughter, 

negligent manslaughter, rape, robbery, 

aggravated assault, burglary, motor 

vehicle theft, arson, liquor law 

violations, drug law violations, and 

illegal weapons possession using the 

definitions of those crimes from the 

‘‘Summary Reporting System (SRS) User 

Manual’’ from the FBI’s UCR Program, 

as provided in Appendix A to this 

subpart. 

(ii) An institution must compile the 

crime statistics for fondling, incest, and 

statutory rape using the definitions of 

those crimes from the ‘‘National 

Incident-Based Reporting System 

(NIBRS) User Manual’’ from the FBI’s 

UCR Program, as provided in Appendix 

A to this subpart. 

(iii) An institution must compile the 

crime statistics for the hate crimes of 

larceny-theft, simple assault, 

intimidation, and destruction/damage/

vandalism of property using the 

definitions provided in the ‘‘Hate Crime 

Data Collection Guidelines and Training 

Manual’’ from the FBI’s UCR Program, 

as provided in Appendix A to this 

subpart. 

(iv) An institution must compile the 

crime statistics for dating violence, 

domestic violence, and stalking using 

the definitions provided in paragraph 

(a) of this section. 

(v) 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 ‘‘Summary 

Reporting System (SRS) User Manual. 

(vi) If arson is committed, an 

institution must always record the arson 

in its statistics, regardless of whether or 

not it occurs in the same incident as 

another crime. 

(vii) If rape, fondling, incest, or 

statutory rape occurs in the same 

incident as a murder, an institution 

must record both the sex offense and the 

murder in its statistics. 

(10) Use of a map. In complying with 

the statistical reporting requirements 

under this paragraph (c) of this section, 

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. (i) 

In complying with the statistical 

reporting requirements under paragraph 

(c) of this section, an institution must 

make a reasonable, good-faith effort to 

obtain statistics for crimes that occurred 

on or within the institution’s Clery 

geography and may rely on the 

information supplied by a local or State 

police agency. 

(ii) 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. 

(d) Separate campus. An institution 

must comply with the requirements of 

this section for each separate campus. 

(e) Timely warning and emergency 

notification. (1) An institution must, in 

a manner that is timely and 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 will 

aid in the prevention of similar crimes, 

report to the campus community on 

crimes that are— 

(i) Described in paragraph (c)(1) of 

this section; 

(ii) Reported to campus security 

authorities as identified under the 

institution’s statement of current 

campus policies pursuant to paragraph 

(b)(2) of this section or local police 

agencies; and 

(iii) Considered by the institution to 

represent a threat to students and 

employees. 

(2) An institution is not required to 

provide a timely warning with respect 

to crimes reported to a pastoral or 

professional counselor. 

(3) If there is an immediate threat to 

the health or safety of students or 

employees occurring on campus, as 

described in paragraph (g)(1) of this 

section, an institution must follow its 

emergency notification procedures. An 

institution that follows its emergency 

notification procedures is not required 

to issue a timely warning based on the 

same circumstances; however, the 

institution must provide adequate 

follow-up information to the community 

as needed. 

(f) Crime log. (1) An institution that 

maintains a campus police or a campus 

security department must maintain a 

written, easily understood daily crime 

log that records, by the date the crime 

was reported, any crime that occurred 

within its Clery geography, as described 

in paragraph (ii) of the definition of 

Clery geography in paragraph (a) of this 

section, and that is reported to the 

campus police or the campus security 

department. This log must include— 

(i) The nature, date, time, and general 

location of each crime; and 

(ii) The disposition of the complaint, 

if known. 

(2) The institution must make an 

entry or an addition to an entry to the 

log within two business days, as defined 

under paragraph (a) of this section, of 

the report of the information to the 

campus police or the campus security 

department, unless that disclosure is 

prohibited by law or would jeopardize 

the confidentiality of the victim. 

(3)(i) An institution may withhold 

information required under paragraphs 

(f)(1) and (2) of this section if there is 

clear and convincing evidence that the 

release of the information would— 

(A) Jeopardize an ongoing criminal 

investigation or the safety of an 

individual; 

(B) Cause a suspect to flee or evade 

detection; or 

(C) Result in the destruction of 

evidence. 

(ii) The institution must disclose any 

information withheld under paragraph 

(f)(3)(i) of this section once the adverse 

effect described in that paragraph is no 

longer likely to occur. 

(4) An institution may withhold 

under paragraph (f)(2) and (3) of this 

section only that information that would 

cause the adverse effects described in 

those paragraphs. 

(5) The institution must make the 

crime log for the most recent 60-day 

period open to public inspection during 

normal business hours. The institution 

must make any portion of the log older 

than 60 days available within two 

business days of a request for public 

inspection. 

(g) Emergency response and 

evacuation procedures. An institution 

must include a statement of policy 

regarding its emergency response and 

evacuation procedures in the annual 

security report. This statement must 

include— 

(1) The procedures the institution will 

use to immediately notify the campus 

community upon the confirmation of a 

significant emergency or dangerous 

situation involving an immediate threat 

to the health or safety of students or 

employees occurring on the campus; 

(2) A description of the process the 

institution will use to— 

(i) Confirm that there is a significant 

emergency or dangerous situation as 

described in paragraph (g)(1) of this 

section; 

(ii) Determine the appropriate 

segment or segments of the campus 

community to receive a notification; 

(iii) Determine the content of the 

notification; and 

(iv) Initiate the notification system. 

(3) A statement that the institution 

will, without delay, and taking into 


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account the safety of the community, 

determine the content of the notification 

and initiate the notification system, 

unless issuing a notification will, in the 

professional judgment of responsible 

authorities, compromise efforts to assist 

a victim or to contain, respond to, or 

otherwise mitigate the emergency; 

(4) A list of the titles of the person or 

persons or organization or organizations 

responsible for carrying out the actions 

described in paragraph (g)(2) of this 

section; 

(5) The institution’s procedures for 

disseminating emergency information to 

the larger community; and 

(6) The institution’s procedures to test 

the emergency response and evacuation 

procedures on at least an annual basis, 

including— 

(i) Tests that may be announced or 

unannounced; 

(ii) Publicizing its emergency 

response and evacuation procedures in 

conjunction with at least one test per 

calendar year; and 

(iii) Documenting, for each test, a 

description of the exercise, the date, 

time, and whether it was announced or 

unannounced. 

(h) Missing student notification 

policies and procedures. (1) An 

institution that provides any on-campus 

student housing facility must include a 

statement of policy regarding missing 

student notification procedures for 

students who reside in on-campus 

student housing facilities in its annual 

security report. This statement must— 

(i) Indicate a list of titles of the 

persons or organizations to which 

students, employees, or other 

individuals should report that a student 

has been missing for 24 hours; 

(ii) Require that any missing student 

report must be referred immediately to 

the institution’s police or campus 

security department, or, in the absence 

of an institutional police or campus 

security department, to the local law 

enforcement agency that has jurisdiction 

in the area; 

(iii) Contain an option for each 

student to identify a contact person or 

persons whom the institution shall 

notify within 24 hours of the 

determination that the student is 

missing, if the student has been 

determined missing by the institutional 

police or campus security department, 

or the local law enforcement agency; 

(iv) Advise students that their contact 

information will be registered 

confidentially, that this information will 

be accessible only to authorized campus 

officials, and that it may not be 

disclosed, except to law enforcement 

personnel in furtherance of a missing 

person investigation; 

(v) Advise students that if they are 

under 18 years of age and not 

emancipated, the institution must notify 

a custodial parent or guardian within 24 

hours of the determination that the 

student is missing, in addition to 

notifying any additional contact person 

designated by the student; and 

(vi) Advise students that the 

institution will notify the local law 

enforcement agency within 24 hours of 

the determination that the student is 

missing, unless the local law 

enforcement agency was the entity that 

made the determination that the student 

is missing. 

(2) The procedures that the institution 

must follow when a student who resides 

in an on-campus student housing 

facility is determined to have been 

missing for 24 hours include— 

(i) If the student has designated a 

contact person, notifying that contact 

person within 24 hours that the student 

is missing; 

(ii) If the student is under 18 years of 

age and is not emancipated, notifying 

the student’s custodial parent or 

guardian and any other designated 

contact person within 24 hours that the 

student is missing; and 

(iii) Regardless of whether the student 

has identified a contact person, is above 

the age of 18, or is an emancipated 

minor, informing the local law 

enforcement agency that has jurisdiction 

in the area within 24 hours that the 

student is missing. 

(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, as those terms are defined in 

paragraph (a) of this section; 

(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 

(j)— 

(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 


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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, as 

defined in paragraph (a) of this section, 

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; 

how to file a disciplinary complaint; 

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 

to the victim 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 

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 

(k)— 

(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 and equal access 

to the accuser, the accused, and 

appropriate officials to any information 

that will be used 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. Proceeding does 

not include communications and 

meetings between officials and victims 

concerning accommodations or 

protective measures to be provided to a 

victim. 

(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 

(UCR) Program. The definitions for murder, 

rape, robbery, aggravated assault, burglary, 

motor vehicle theft, weapons: carrying, 

possessing, etc., law violations, drug abuse 

violations, and liquor law violations are from 

the ‘‘Summary Reporting System (SRS) User 

Manual’’ from the FBI’s UCR Program. The 

definitions of fondling, incest, and statutory 

rape are excerpted from the ‘‘National 

Incident-Based Reporting System (NIBRS) 

User Manual’’ from the FBI’s UCR Program. 

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 and Training Manual’’ 

from the FBI’s UCR Program. 

Crime Definitions From the Summary 

Reporting System (SRS) User Manual From 

the FBI’s UCR Program 

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. 

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. 


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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. 

Crime Definitions From the National 

Incident-Based Reporting System (NIBRS) 

User Manual from the FBI’s UCR 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. 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. 

B. Incest—Sexual intercourse between 

persons who are related to each other within 

the degrees wherein marriage is prohibited 

by law. 

C. Statutory Rape—Sexual intercourse 

with a person who is under the statutory age 

of consent. 

Crime Definitions From the Hate Crime Data 

Collection Guidelines and Training Manual 

From the FBI’s UCR Program 

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. 2014–24284 Filed 10–17–14; 8:45 am] 

BILLING CODE 4000–01–P 


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