First Roundtable Discussion: The Clery Act and the Campus SaVE Act
Senator Claire McCaskill opened the first of three roundtable discussions on campus sexual assault by stating her goal to tackle the “complex labyrinth of different rules between SaVE and Clery and Title IX . . . and see if we can simplify, clarify, augment, support, perhaps provide more mandatory training but with the grants that go with that so that universities can access grants to help train people on campuses . . ..”
Yes, that means yet more new federal laws are being drafted on campus sexual assault, which McCaskill hopes to introduce by the end of the month. Here are some of the topics that were discussed, which we’ll explain in more detail below:
- making school employees mandated reporters
- training students and employees about reporting responsibilities and confidentiality
- stepping up enforcement of Clery Act compliance
Training and Mandated Reporting
As a former prosecutor of sex crimes, Sen. McCaskill is focused on bringing perpetrators to the criminal justice system and the only way to do that is if a crime is reported. The discussion about training began with McCaskill asking if all school employees should be mandated to report information about sexual violence to campus authorities.
Laura Dunn, a victim advocate and survivor of sexual assault, raised serious concerns about taking that control away from the victim-survivor: “I promise you if we handle this issue well it will go up on its own, you don’t ever have to mandate [reporting] . . . When we see that consequence we know it’s safer for us to speak out.”
McCaskill responded, “the vast majority of these perpetrators are not even getting a criminal interview . . . they’re never having that moment where the police officer sits across the table from them and asks them the difficult questions. We aren’t going to get any meaningful deterrence on this problem until that begins happening. So there is a chicken and egg problem here.”
Two panel members pointed out that training students and employees is a critical piece of any mandated reporter legislation. Holly Rider-Milkovich of the University of Michigan cautioned that, “If we require faculty especially but also staff to report information then number one we have to vigorously educate our student body about where there are confidential resources and about the responsibilities of anyone who they share information with to report and also we need to ensure that every member who has an obligation to report also has an equally robust training so that they are appropriately responding to that student . . ..”
Alison Kiss with the Clery Center for Security on Campus agreed that there needs to be “training about what do you do when a student discloses and how you handle that disclosure, [because] if there is not training then it could have a chilling effect . . ..” Kiss also pointed out that the legal definitions of sexual assault required in a school’s education program must be “in the language that students may understand what happened to them—I can actually be raped by my friend.”
McCaskill later commented on the state definitions of sexual assault, domestic violence, dating violence, and stalking, “We cannot define for states elements of their crimes.” However, she is concerned about the fact that in sixteen states lack of consent requires that the perpetrator used force or threatened to use force. So, McCaskill will be looking at ways to “incentivize states to update their definitions of consent.”
McCaskill also noted the need to “step up the enforcement side” instead of “waiting for another tragedy to hit the front pages.” According to Lynn Mahaffie with the Department of Education, there are currently only thirteen auditors who conduct about twenty Clery compliance reviews per year. The Department plans to double the number of auditors over the next few years, although even that increase will barely scratch the surface of the 7,000+ campuses covered by these laws.
Moreover, Laura Dunn pointed out that there is no integration of effort between the Office for Civil Rights that enforces all civil rights laws, including Title IX compliance, and the Federal Student Aid office that enforces Clery compliance. Ms. Dunn said, “If you’re going to spend money somewhere, please spend it on enforcement.” The absence of a specialized enforcement unit is a big part of the problem, according to Dunn: “We spend all day making laws, making rules, making regulations. It’s overwhelming institutions and when it comes to survivors who ask for enforcement we don’t even have specialized enforcers who know the details of this law or even work together.”
McCaskill jumped in here and suggested, “at least force integration” to help institutions figure out how to put these three different laws—Title IX, the Clery Act, and the Campus SaVE Act—together and streamline their compliance efforts. This provides a great segue into the second roundtable discussion on Title IX, which is the subject of a separate post.