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Overview of Federal Mandates Pertaining to Sexual Assault
Incidences that Occur at Institutions of Higher Education
Creating a Victim-Centered and Federally Compliant
Institutional Sexual Misconduct Policy
2012 ACPA Presentation by Laura Aispuro
Contents:
Higher Education Act of 1965 page 2
Clery Act page 3
Campus Sexual Assault Victim’s Bill of Rights page 5
Campus SaVE Act page 6
Title IX page 8
FERPA page 10
Resources page 11
Laura Aispuro
Associate Dean of Students/Director of Residence Life at Georgetown College
Phone: (502) 863-7969 Email: Laura_Aispuro@georgetowncollege.edu
Address: 400 E. College St., Georgetown, KY 40324
2
Higher Education Act of 1965
History
The Higher Education Act of 1965 was signed into law by President Lyndon Johnson on November 8, 1965 as
part of the Great Society domestic agenda.
Overview
Its goal was to strengthen IHE (Institution of Higher Education) resources and provide financial assistance to
IHE students through increased federal money allocated to IHEs, creating scholarship and providing low-
interest loans for education. The act is reauthorized every 4 years (with the first re-authorization beginning in
1968) and amendments and changes can be made by Congress before each reauthorization.
A large amount of the legislation pertaining to sexual assault on IHE campuses is part of the Higher Education
Act of 1965 including:
The Jeanne Cleary Act
The Campus Sexual Assault Victims’ Bill of Rights
Campus SaVE Act
3
Jeanne Clery Act
Also known as the Crime Awareness and Campus Security Act
History
Development of the law was led by Connie and Howard Cleary after their daughter, Jeanne was raped and
murdered in her residence hall on April 5th, 1986 at Leigh University. The Cleary’s discovered that there had
been 38 other violent crimes that had taken place on the Leigh campus in the previous 3 years before their
daughter’s rape and murder. The Cleary’s joined with other victim advocates to create crime reporting
requirements for IHEs so that students could be aware of safety threats.
Overview
The Jeanne Clery Act is part of the Higher Education Act of 1965. It was signed into law in 1990 by President
George Bush as the Crime Awareness and Campus Security Act. The law addresses IHE campus crime and
security reporting requirements.
What it says
By October 1st of every year, IHEs must publish a report which contains 3 years of campus crime
statistics. This report can be done electronically, as long as students, prospective students and
employees are provided the internet address of the report and can request a paper copy. The report must
also be submitted to the U.S. Department of Education.
Statistics must be broken down geographically by:
1 On Campus
2 Residential Facilities for Students on Campus
3 Non-campus Buildings or Properties - any property owned/controlled by an institutionally
recognized student organization (such as Greek houses) or one that is used to support the IHEs
educational purposes (such as remote classrooms)
4 On Public Property (such as sidewalks, streets) adjacent to or running through the campus
Campus Security policy statements must be included in this annual report. These statements must
address where and how students report crimes, IHE sexual assault policies, the law enforcement
authority held by campus police
The statistics shall be gathered from campus security officials, local law enforcement, and school
officials who have responsibilities that intersect with crime issues i.e. judicial affairs, residence life, etc.
Professional mental health counselors and religious counselors are exempt from the reporting
requirements due to confidentiality expectations surrounding the profession
4
Crimes that must be reported fall into 7 major categories. Several are broken down into sub-categories
1 Criminal Homicide 3 Robbery
Murder and Non-negligent 4 Aggravated Assault
Manslaughter 5 Burglary
Negligent Manslaughter 6 Motor Vehicle Theft
2 Sex Offenses 7 Arson
Forcible Sex Offenses
Non-forcible Sex Offenses
Statistics for the following incidents must also be reported if they result in campus disciplinary
proceedings or arrest
1 Liquor Law 2 Drug Law 3 Illegal Weapons
Violations Violations Possession
IHE campuses must let the campus community know where they can access information about
registered sex offenders residing on campus. (2000 amendment)
The report must indicate if any of the reported crimes are hate crimes. Hate crime statistics also include
issues relating to larceny-theft, simple assault, intimidation and vandalism. (2008 amendment).
If IHE campus security officials have agreements with local or state law enforcement on policies for
investigating crimes, these must be included in the report. (2008 amendment)
Sexual assault victims and “whistleblowers” are protected from acts of retaliation for implementing any
Clery Act provisions. (2008 amendment)
Institutions located abroad are exempt from reporting obligations of the Clery Act
If a crime poses and on-going threat to students or employees, the IHE must provide a timely warning.
Crimes requiring a timely-warning are limited to those crimes reported in the annual report.
IHEs with a campus police or security department must publish an on-going crime log. The log:
1 Must be available to the public during normal business hours
2 Logged incidents must be available for 60 days after
3 The log must include the date, date, time, general location and disposition of each reported crime
4 Any reported incident must be included in the log within 2 days of its occurrence.
5 Only information protecting victim confidentiality may be withheld.
6 Limited information may be temporarily withheld if it confidentiality is necessary for an on-
going investigation, however once the potential adverse effect to releasing this information has
passed, the information must be reported
5
Campus Sexual Assault Victims’ Bill of Rights
History
In July 1992 President George Bush signed into law the “Campus Sexual Assault Victims’ Bill of Rights”. This
was one of several amendments to the Jeanne Clery Act. These amendments are known as the Higher
Education Amendments of 1992,
The legislation was developed by Frank Carrington who was then counsel to Security On Campus, Inc. The
legislation has also been referred to as the “Ramstad Act” after Congressman Jim Ramstad who originally
introduced the bill in May of 1991.
Overview
Creation of the Sexual Assault Victims’ Bill of Rights was an effort to decrease the potential for re-
victimization of rape victims as IHEs navigate through accountability proceedings and legal mandates following
a sexual assault.
What it Says
The Campus Sexual Assault Victims Bill of Rights requires the following of any IHE that utilizes federal
student aid afford the victim certain basic rights. These are:
The IHE must notify the victim of his/her right to report the assault to law enforcement
Victims must be informed of counseling services
The IHE must give the accuser and the accused equal opportunity to have witnesses present in
disciplinary proceedings
Both parties must be notified of the outcome of disciplinary proceedings
Victims will be given the opportunity to change classes or living situations in order to avoid the alleged
assailant
6
Campus Sexual Violence Elimination Act
Also known as The Campus SaVE Act
History
This is a new bill currently pending before Congress. Creation of the legislation was a result of the May 2010
death of University of Virginia senior Yeardely Love. Her boyfriend was the alleged assailant and the tragedy
heightened attention on issues surrounding dating violence.
Overview
The intention of this bill is to strengthen and add new, more effective policies to the Campus Sexual Assault
Victim’s Bill of Rights (part of the Clery Act portion of the Higher Education Act of 1965). While the Clery
Act focuses primarily on crime reporting to increase awareness and risk avoidance as well as victim support, the
SaVE Act aims to take a more preventative approach to sexual assault. This will be attempted by adding
bystander intervention education. Such efforts would help to address issues related to stalking and partner-
violence. As most sexual assaults are committed by acquaintances, such an approach could be very impactful.
The focus of the legislations is educating and empowering students to safely intervene to support peers
potentially at risk for partner violence.
The SaVE bill also offers enhancement to the Sexual Assault Victim’s Bill of Rights efforts to take the
emotional needs of the victim into account when reporting a sexual assault. The SaVe bill provides framework
for IHEs to follow after an incident is reported that focuses on the emotional needs of victims with efforts to
reduce the potential for re-victimization.
What it says
The Campus SaVe Act amends the Sexual Assault Victim’s Bill of Rights to say:
IHEs must provide a policy statement that identifies
o Educational programs on sex offenses
o On-campus disciplinary procedures for alleged sex offense, intimate partner violence, stalking,
dating violence and domestic violence. Likewise, potential sanctions resulting from IHE
disciplinary proceedings must be included.
o Steps victims should take following a sex offense including who to contact for help and to whom
the incident should be reported. There should also be an explanation of the importance of
preserving evidence in order to provide proof in a criminal sexual assault case
7
IHEs sexual assault educational efforts must be aimed at awareness, risk reduction and prevention.
They must address issues of partner violence, stalking and dating violence. Programs must include
information about
o Gaining consent in sexual relationships
o How to report sex offenses (whether they occur on or off campus)
o Methods of bystander intervention
o Risk reduction strategies
The term “intimate partner violence” includes:
o Any physical, sexual or psychological harm resulting from a current or former partner
o Stalking, dating violence, sexual violence and domestic violence
o Heterosexual and same-sex relationships
o Is not limited to sexual intimacy
If a sex offense of intimate partner violence offense (including stalking or dating violence) is reported,
the IHE must provide the victim with
o A written explanation of victim rights to notify proper law enforcement with the option to utilize
campus assistance when notifying such authorities
o A written explanation of victim rights “to obtain protective orders such as no contact or
retraining orders
o A written list of contact information with support services including counseling, mental and
physical health services and legal assistance available both on campus and in the local
community
In disciplinary proceedings
o The proceedings must “be conducted by officials trained to understand the issues of sex offense
and other intimate partner violence”
o The victim may request that prompt action be taken to initiate proceedings and the IHE must
comply
o Both the accuser and accused have the same opportunity to have others present during the
proceedings
o Both the accuser and accused will be informed in writing of the results from any disciplinary
proceedings within 1 business day of their conclusion
8
Title IX
History
Title IX is part of the Civil Rights Act of 1964 which focused on ending discrimination based on race, color or
national origin. President Johnson and activist Bernice Sandler initiated the movement to more intentionally
include women’s rights in Title IX. Sandler joined Representative Edith Green’s subcommittee on Higher
Education. Representative Green and Congresswoman Patsy Mink proposed the changes and the Title IX we
know today passed into law in June of 1972.
Overview
When most people think of Title IX, athletics come to mind. However, Title IX encompasses far more,
including sexual assault.
Title IX focuses on issues that can prohibit students from participating in or receiving educational opportunities
based on gender. Sexual harassment is one issue that can do just that. The U.S. Department of Education
defines sexual harassment as “unwelcome conduct of a sexual nature”. Under this definition, sexual assault is a
form of sexual harassment.
The bill states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” Section 1681 (a)
IHEs must create and publish processes by which Title IX complaints will be addressed.
What it Says
In 1981 the Office for Civil Rights stated sexual harassment was prohibited under Title IX. IHEs are
Under Title IX and IHEs sexual harassment policy must:
Provide grievance procedures for students to file complaints of sex discrimination, including complaints
of sexual violence.
Include an equal opportunity for both parties to present witnesses and other evidence and the same
appeal rights
Outline what will happen after the complaint is filed
Have proceedings in place so that sexual harassment issues can be handled promptly and fairly
Use the preponderance of the evidence standard to resolve complaints of sex discrimination.
9
Title IX requires that upon obtaining knowledge of a sexual harassment issue and IHE must:
Inform the victim of options to take both informal and formal action
Take immediate and appropriate action to investigate or otherwise determine what occurred once a
school knows or reasonably should know of sexual violence event
Take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its
effects, whether or not the sexual violence is the subject of a criminal investigation.
Take steps to protect the complainant as necessary, including interim steps taken prior to the final
outcome of the investigation.
Make every effort to keep the names of individuals involved confidential . This includes the alleged
victim, accused and witnesses.
Inform the complaints that a choice to keep his/her name confidential and whithold information could
limit and impact the investigation.
Keep the names of all individuals involved confidential except situations in which doing so would
prevent the IHE from responding effectively or preventing the harassment.
Release information regarding disciplinary proceedings resulting from sexual harassment complaints to
the both parties
Impact and Compliance
Title IX is part of the Education Amendments of 1972. It is a Federal Law so any IHE accepting federal aid
must comply. It is enforced by the U.S. Department of Education. Title IX requires that IHEs appoint an
employee to coordinate compliance and students and staff must be told how to contact this employee. This
must be done through announcements, bulletins, catalogs and applications.
10
FERPA
History and Overview
Congress passed the Federal Education Right to Privacy Act (FERPA) in 1974 with the intent to protect the
privacy of a student's educational records. Any school that receives federal funds must abide by the policies set
forth by FERPA. FERPA intersects with sexual assault issues on a couple of fronts.
What it Says
The Health and Safety Emergency Provision
While FERPA protects the privacy rights of students and says they should be treated with all the same privacy
rights as adults, there are several exceptions outlined. These exceptions include threats to health and
safety. The health and safety emergency provision (99.36(b)) states that an educational institution may disclose
information “to appropriate parties, including parents of an eligible student in connection with an emergency if
knowledge of the information is necessary to protect the health or safety of the student or other individuals”
11
Resources and Support for IHE Compliance
With so many policies and federal regulations surrounding IHEs responsibilities regarding sexual assault,
compliance can be an overwhelming task. There are several resources available to help IHEs in this.
Handbook for Campus Safety and Security Reporting
The U.S. Department of Education has prepared “The Handbook for Campus Safety and Security Reporting”.
This contains step by step guidance for IHEs to take to ensure they are in compliance with all aspects of the
Higher Education Act of 1965, which includes The Clery Act and The Campus Sexual Assault Victim’s Bill of
Rights. The handbook can be downloaded from
http://www2.ed.gov/admins/lead/safety/campus.html#handbook
National Center for Higher Education Risk Management
“NCHERM is a law and consulting firm that is dedicated to best practices for campus health and safety.
NCHERM emphasizes best practices for policy, training, and prevention as proactive risk management.”
Services include consultation, workshops, legal representation, expert witness, and student programs.
www.ncherm.org
Department of Education Office of Civil Rights
“The mission of the Office for Civil Rights is to ensure equal access to education and to promote educational
excellence throughout the nation through vigorous enforcement of civil rights.”
www.ed.gov
Security on Campus
Security on Campus (SOC) is a non-profit organization out of Pennsylvania co-founded by Connie and Howard
Clery. It is dedicated to helping IHEs create safe campuses for students. SOC offers several trainings,
guidelines and resources to help IHEs understand Clery Act reporting as well as several other mandates under
the Higher Education Act of 1965. They can be contacted at:
Phone: 1-888-251-7959
Email: soc@securityoncampus.org
www.securityoncampus.org
