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California Mandates Campus Sexual Assault Reporting to Police
Posted by On Monday, October 27, 2014

Nearly a year ago, a California bill proposing to mandate campuses to report sexual assault and other crimes to the police garnered national attention. Now, that bill (designated AB 1433) has become law. AB 1433 requires most colleges, as a condition of receiving state Cal Grant funds, to immediately – or as soon as practically possible – report specified crimes against students to local law enforcement agencies without disclosing the student’s identity (unless the student consents). The reporting law takes effect immediately. However, schools have until July 1, 2015 to additionally adopt and implement policies and procedures to ensure that crimes are reported to local law enforcement.

What has changed

On September 29, 2014, AB 1433 became law, requiring California colleges and universities to immediately (or as soon as practically possible) alert the campus police or local law enforcement when a student or employee reports a violent crime:

  • willful homicide, forcible rape, robbery, or aggravated assault (“Part 1 violent crimes”), as defined in the Uniform Crime Reporting Handbook of the Federal Bureau of Investigation
  • sexual assault (e.g., rape or rape with an object, forced sodomy or oral copulation, sexual battery, or the threat of any of these)
  • any hate crime committed because of another person’s disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with any of these characteristics

This new law makes reporting a condition of receiving Cal Grants that help qualifying students pay for college. And, no later than July 1, 2015, institutions of higher learning must “adopt and implement written policies and procedures to ensure” that crimes are immediately reported to law enforcement.

To protect victim’s privacy, the law requires that no identifying information about the alleged victim can be included in the report unless the victim consents. According to Newsweek, this provision was added after victims’ advocates objected that the initial draft of the bill, by making reporting mandatory without the alleged victim’s consent, would pressure sexual assault survivors to work with the police against their wishes.

Sexual assault survivor and UC Berkeley student Sofie Karasek, whom AB 1433 author Assemblyman Mike Gatto consulted in drafting the bill, put it this way:

“I figured it would be much easier and less stressful to report to the school as opposed to trying to go to trial, especially since I was an out-of-state freshman . . . I wasn’t interested in going through a long, ardorous [sic] process with police, who I thought probably wouldn’t believe what I was saying and wouldn’t put their full effort into my case.”

Karasek, according to Newsweek, joined other UC Berkeley students in a 2013 federal lawsuit against the University for failing to provide a timely and proper response to sexual assault allegations. AB 1433 was inspired by federal complaints against Occidental college involving more than 50 student and faculty members for violating federal law, by allegedly failing to disclose assault claims and discouraging women from reporting.

Agreements with police

In California, many colleges have established campus police forces with the primary authority for providing police, security, or investigative services on their campuses. Existing law requires written agreements with the city or county law enforcement agency responsible for policing the community where the campus is located.

AB 1433 does not change this, but it does require that local police be kept “in the loop” as soon as campus police receive crime reports. Reporting directly to the police will increase transparency and public accountability, according to Gatto as cited in the Assembly Floor Analysis of AB 1433:

“The bill’s author [Gatto] indicates that law enforcement agencies have expressed concern that they are not completely aware of crime trends in their jurisdictions because some university agreements do not require campus security to pass information along to local law enforcement . . . The author believes this bill is necessary to ensure that local law enforcement agencies are aware of crime trends, by ensuring campuses pass along reports.”

Gatto also “contends this bill could result in a closer working relationship between campuses and local police and sheriffs’ departments, which will result in more thorough investigations, better outcomes for victims, and safer communities.”

Note: Similar bills are pending in New Jersey. However, lawmakers and advocates for greater victim privacy oppose the proposed laws as written. We will keep you posted on further developments.

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Counting New Crime Statistics
Posted by On Tuesday, March 25, 2014

In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.

Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.

Racially motivated hate crimes are not confined to southern states.  At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.

Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.

Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.

Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.

The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:

  • define the new crimes
  • count and disclose statistics for these offenses

One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.

One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.

Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?

On May 29, 2013, the Department of Education issued a memorandum, stating that:

[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.

The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”

In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.

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Prevention Must Include the LGBTQ Community
Posted by On Monday, November 18, 2013

Recent research suggests that members of the LGBTQ community are just as—if not more—likely to be victims of sexual violence as their heterosexual peers. The Centers for Disease Control and Prevention 2010 Findingson Victimization by Sexual Orientation found that nearly half of lesbian women, four in ten gay men, half of bisexual men, and three-quarters of bisexual women have been victims of sexual violence in their lifetime. Such alarming figures make it clear that sexual assault is a problem that affects students of all sexual orientations. Moreover, the often marginalized position of the LGBTQ community compounds and complicates numerous issues faced by survivors of sexual assault.

For example, as we’ve written about in the past, it’s not unusual for survivors to be discouraged from reporting by the fear that they will encounter hostility on the part of law enforcement and other first responders. The fear of hostility motivated by homophobia compounds the problem for members of the LGBTQ community. For some LGBTQ survivors, reporting a sexual assault could mean “outing” themselves before they’re prepared to reveal their sexuality. There’s also the fear that, because the conventionally accepted narrative of sexual violence focuses on heterosexual assaults, an assault involving members of the LGBTQ community will be sensationalized.

Another ugly fact is that homophobia not only contributes to underreporting of sexual assault in the LGBTQ community, but can also motivate assaults against members of that community. According to theUniversity of Minnesota Morris Violence Prevention Center, sexual assault is often used as a weapon by those who wish to humiliate LGBTQ people for their sexual orientation, or (especially in cases where a lesbian woman is assaulted by a straight man) somehow “cure” them of their orientation. The unhappy overlap between hate crimes and sexual assault is especially important for administrators to be aware of in light of the Campus SaVE Act’s requirements for schools to include hate crimes based on sexual orientation or gender identity in their annual security reports.

These issues make clear the importance of harm-prevention programming that encompasses the entire spectrum of a campus population. The current conversation about sexual assault on college campuses is, of course, incredibly important and a welcome change from decades of silence on an issue that won’t go away unless it’s addressed directly. But does the conversation campuses are having about sexual violence include all of the students affected by the problem? A conversation about sexual violence on college campuses that revolves around or even assumes scenarios involving heterosexual male perpetrators and heterosexual female victims fails to address the needs of survivors whose experiences fall outside the range of that common but by no means universal experience.

Administrators need to consider programming designed to help all students by covering the unique problems faced by members of the LGBTQ community. By bringing these issues into the conversation, schools encourage students to report sexual assault, regardless of their gender, race, or sexual orientation.  Inclusive and effective prevention training must recognize the grim but important truth that sexual assault can affect any student on campus.

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Clery Act: Stricter Enforcement and New Requirements
Posted by On Monday, July 22, 2013

After Jeanne Clery was raped and murdered in her Lehigh University dorm room in 1986, her parents fought to give other families access to information about campus safety, which they hoped would help prevent violence at colleges and universities. Out of their efforts grew the Clery Act, requiring colleges and universities to disclose statistics about crimes that occur on and around their campuses in an Annual Security Report (ASR).

Schools began submitting ASRs in 1992, but enforcement of the act has been lax. According to a 2005 National Institute of Justice report, only 37 percent of schools reported statistics in a manner consistent with federal laws. Yet Senator Arlen Specter claimed in a 2006 Senate hearing that the Department of Education (ED) had imposed only three fines in 20 years.

Now it looks like ED is getting serious about the issue of campus safety and is no longer issuing free passes to noncompliant colleges and universities.

Even as ED ramps up Clery Act enforcement, a series of high-profile complaints filed by students across the country suggest a popular groundswell against noncompliant schools. A group of student activists even hand delivered a petition to ED requesting stricter enforcement of the Clery Act and Title IX.

New Federal Requirements

Indeed, the federal government placed campus safety front and center on March 7, 2013, when they enacted the Campus Sexual Violence Elimination (SaVE) Act. The SaVE Act expanded the crime categories in a school’s ASR to include:

  • hate crimes based on national origin, sexual orientation, and gender identity
  • domestic and dating violence
  • stalking

The SaVE Act also requires schools to create policies and education programs for students and staff that promote awareness and focus on prevention of sexual violence. These education programs are aimed at preventing sexual violence and will bolster the ED’s enforcement effort to bring about lasting change.

Given the tragic consequences of sexual violence, helping students stay safe is a goal we all share and support.

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