VAWA - Implementation & Recent Developments

Transcription

1 VAWA - Implementation & Recent Developments REGIONS 1, 2 & 3 PRIVAE CAREER COLLEGES & SCHOOLS PHILADELPHIA, PA APRIL 18, 2016 Presentation Materials available at: Click on raining button Click on Regions 1, 2 & 3 VAWA Presentation button DELUCA LAW LLC 1

2 Disclaimer e material presented is intended for information purposes only. It is not intended as legal or professional advice and sould not be construed as suc. e material presented is included wit te understanding and agreement tat DeLuca Law LLC is not engaged in rendering legal or oter professional services by presenting tis material. e services of a competent professional sould be sougt if legal or oter specific expert assistance is required. ese presentation materials and te information provided erein ave not been reviewed and/or approved by te U.S. Department of Education or by any oter federal or state agencies. Any unautorized use of material contained erein is at te user's own risk. ransmission of te information and material erein is not intended to create, and receipt does not constitute, an agreement to create an attorney- client relationsip wit DeLuca Law LLC or any member tereof. DeLuca Law LLC does not necessarily sponsor, endorse or oterwise approve of te materials appearing in suc sites. DELUCA LAW LLC 2

3 Coordination wit itle IX Ø itle IX proibits sex discrimination in education programs tat receive federal funding. Ø Sexual arassment, including sexual assault, is a type of sex discrimination tat is banned by itle IX. Ø Sexual arassment creates a ostile environment wen it is sufficiently serious tat it interferes wit or limits a student s ability to participate in or benefit from an education program. DELUCA LAW LLC 3

4 Coordination wit itle IX If a scool knows, or reasonably sould know, about sexual arassment, including sexual assault, tat creates a ostile environment, itle IX requires tat te scool take immediate action to: Ø eliminate te arassment, Ø prevent its recurrence, and Ø address its effects. DELUCA LAW LLC 4

5 Violence Against Women Act: Wat is it? How Did We Get Here? DELUCA LAW LLC 5

6 Information provided by te Rape, Abuse & Incest National Network, accessed January 22, 2016 ttps://rainn.org/statistics DELUCA LAW LLC 6

7 Scool- by- scool enforcement map indicating scools wit resolved activities conducted by te U.S. Departments of Education and Justice. Map courtesy of NotAlone.gov, accessed January 22, 2016 (ttps:// According to e Cronicle of Higer Education, tere are 197 open investigations at 161 institutions as of January About e Cronicle s itle IX investigation tracker, e Cronicle of Higer Education, accessed January 20, 2016 ttp://projects.cronicle.com/titleix/about/ DELUCA LAW LLC 7

8 Wite House ask Force Findings: Ø One in five women is sexually assaulted in college Ø Most often by someone se knows Ø Most often not reported Ø Many survivors feel isolated, asamed or to blame Ø Altoug less often, men also victims Source: Not Alone, e First Report of te Wite House ask Force to Protect Students From Sexual Assault, April, DELUCA LAW LLC 8

9 BJS 2016 Campus Climate Survey According to Bureau of Justice Statistics survey, during te academic year: Ø 5.6% of female students experienced completed sexual battery o Ranged from 1.7% at Scool 2 to 13.2% at Scool 1. Ø 4.1% of female students experienced completed rape rape during o Ranged from 2.2% at Scool 9 to 7.9% at Scool 5 Ø e overall prevalence rate for completed sexual assault experienced by undergraduate females during te academic year, averaged across te nine scools, was 10.3% o Ranged from 4.2% at Scool 2 to 20.0% at Scool 1. Ø Key Survey erms: o Sexual battery was defined as any unwanted and nonconsensual sexual contact tat involved forced toucing of a sexual nature, not involving penetration. o Rape was defined as any unwanted and nonconsensual sexual contact tat involved a penetrative act, including oral sex, anal sex, sexual intercourse, or sexual penetration wit a finger or object. Sexual battery and rape are mutually exclusive categories o Sexual assault is te term used to describe any unwanted and nonconsensual sexual contact tat involved eiter sexual battery or rape. DELUCA LAW LLC 9

10 Key Dates Ø President Obama signs te Violence Against Women Act of 2013 ( VAWA ) Ø President establises Wite House ask Force to Protect Students from Sexual Assault Ø Dept. of Ed publises Notice of Proposed Rule Making Ø Final Regulations Publised Ø Final Regulations Effective Date DELUCA LAW LLC 10

11 Violence Against Women Reautorization Act Amended te Clery Act to require tat scools compile statistics for incidents of: domestic violence, dating violence, sexual assault; and stalking (collectively referred to as "sexual misconduct") tat occur on or near campus. DELUCA LAW LLC 11

12 Violence Against Women Reautorization Act Scool s Annual Security Report must include: Ø e scool's educational programs to promote awareness of sexual misconduct; Ø Possible sanctions scool may impose regarding sexual misconduct; Ø Procedures tat victims sould follow if an incident of sexual misconduct as occurred; Ø e scool's procedures for conducting a disciplinary proceeding in cases of alleged sexual misconduct; Ø Information about ow te scool will protect confidentiality of a victim; Ø Written notification to students and employees about counseling, ealt, victim advocacy, legal assistance and oter services available for victims; Ø Written notification to victims about available accommodations to academic and living arrangements if requested by te victim. DELUCA LAW LLC 12

13 State Policies e American Association of State Colleges and Universities publised a report in December, 2015 regarding state law activity regarding campus sexual assault. According to te report, 26 states considered legislation related to campus sexual assault in Lebioda, Kati. (2015) State Policy Proposals to Combat Campus Sexual Assault, accessed January 20, 2016, ttps:// matters/campussexualassault.pdf DELUCA LAW LLC 13

14 Campus Safety: Continuing Developments Proposed federal legislation - Campus Accountability and Safety Act Legislation would: 1. Establis new campus resources and support services for student survivors 2. Ensure minimum training standards for on- campus personnel 3. Create new transparency requirements 4. Require a uniform discipline process and coordination wit law enforcement 5. Establis enforceable itle IX penalties and stiffer penalties for Clery Act violations Scools tat do not comply wit certain requirements under te bill may face a penalty of up to 1 percent of te institution s operating budget. e bill would increase penalties for Clery Act violations to up to $150,000 per violation, from te current penalty of $35,000 per violation. Proposed federal legislation e Safe Campus Act Legislation would strengten due process rigts of students accused of sexual assault and prevent campus investigations from taking place unless a victim also reports te allegations to law enforcement. DELUCA LAW LLC 14

15 Education & Prevention Programs An institution s annual security report must include a statement of policy tat addresses te institution s programs to prevent dating violence, domestic violence, sexual assault, and stalking. e statement must include i. A description of te institution s primary prevention and awareness programs for all incoming students and new employees, and ii. A description of te institution s ongoing prevention and awareness campaigns for students and employees DELUCA LAW LLC 15

16 Annual VAWA raining Required Institutional disciplinary earings must be: conducted by officials wo receive annual training on te issues related to domestic violence, dating violence, sexual assault, and stalking and ow to conduct an investigation and earing process tat protects te safety of victims and promotes accountability 20 USC 1092(f)(8)(iv)(I)(bb) DELUCA LAW LLC 16

17 itle IX Coordinator Dear Colleague Letter April 24, 2015 Ø Reminds all scools to designate a itle IX Coordinator Ø Contact information must be widely distributed on scool s website and various publications Ø Department will begin collecting information about scools itle IX Coordinators in 2015 DELUCA LAW LLC 17

18 itle IX Coordinator Responsibilities Include: Overseeing te scool s response to itle IX reports and complaints. Identifying and addressing any patterns or systemic problems revealed by suc reports and complaints. Must ave knowledge of te requirements of itle IX and of te scool s own policies and procedures on sex discrimination. Must be informed of all reports and complaints raising itle IX issues. Providing training to students, faculty, and staff on itle IX issues. Conducting itle IX investigations and determining appropriate sanctions against te perpetrator and remedies for te complainant. Determining appropriate interim measures for a complainant upon learning of a report or complaint of sexual violence. Ensuring appropriate policies and procedures for working wit local law enforcement, advocacy organizations and service providers. DELUCA LAW LLC 18

19 Sexual Misconduct Policies & Procedures DELUCA LAW LLC 19

20 DELUCA LAW LLC 20

21 Policy Cecklist: NotAlone.gov Ø ask Force created cecklist for sexual misconduct policies to igligt elements tat are particularly important for institutions to consider wen drafting sexual misconduct policies as part of teir overall response to sexual misconduct. Ø Scools cautioned not to adopt cecklist witout first engaging in a compreensive drafting process tat considers te unique aspects of te institution and its student body. Ø Items in te cecklist intended to be guidelines, neiter exaustive nor exclusive, to elp a scool cover te important bases. DELUCA LAW LLC 21

22 Clearly define all conduct proibited by te policy, including: Sexual arassment Hostile environment caused by sexual arassment Sexual assault Non- consensual sexual contact Non- consensual sexual intercourse Domestic violence Dating violence Sexual exploitation Stalking Retaliation Intimidation DELUCA LAW LLC 22

23 Definition of Consent Department of Education considered and cose not to define consent for VAWA purposes. At minimum, te definition sould recognize tat: consent is a voluntary agreement to engage in sexual activity; someone wo is incapacitated cannot consent; past consent does not imply future consent; silence or an absence of resistance does not imply consent; consent to engage in sexual activity wit one person does not imply consent to engage in sexual activity wit anoter; consent can be witdrawn at any time; and coercion, force, or treat of eiter invalidates consent. DELUCA LAW LLC 23

24 Reporting Policies Ø Identify formal reporting options e.g., criminal complaint, institutional complaint, report to responsible employee, including te itle IX coordinator. Ø Explain ow eac option works and include contact information for te people to wom one can make a report. Ø Identify alternatives to reporting e.g., privileged or confidential disclosures Ø Describe policies governing confidentiality Ø Explain te process for tird- party and anonymous reporting. Ø Ensure te policy proibits retaliation against tose wo file a complaint or tird- party report. Ø Coordinate reporting wit te drug free scool policy. DELUCA LAW LLC 24

25 Wo is a responsible employee? A responsible employee includes any employee: wo as te autority to take action to redress sexual violence; wo as been given te duty of reporting incidents of sexual violence or any oter misconduct by students to te itle IX coordinator or oter appropriate scool designee; or wom a student could reasonably believe as tis autority or duty. Wen a responsible employee knows or reasonably sould know of possible sexual violence, te Office of Civil Rigts deems a scool to ave notice of te sexual violence. United States Department of Education, Office for Civil Rigts, Questions and Answers on itle IX and Sexual Violence, April 29, ttp://www2.ed.gov/about/offices/list/ocr/docs/qa title- ix.pdf DELUCA LAW LLC 25

26 Is a scool required to process complaints of alleged sexual violence tat occurred off campus? Answer: Yes. Under itle IX, a scool must process all complaints of sexual violence, regardless of were te conduct occurred, to determine weter te conduct occurred in te context of an education program or activity or ad continuing effects on campus or in an off- campus education program or activity. Even if te misconduct did not occur in te context of an education program or activity, a scool must consider te effects of te off- campus misconduct wen evaluating weter tere is a ostile environment on campus or in an off- campus education program or activity because students often experience te continuing effects of off- campus sexual violence wile at scool or in an off- campus education program or activity. United States Department of Education, Office for Civil Rigts, Questions and Answers on itle IX and Sexual Violence, April 29, ttp://www2.ed.gov/about/offices/list/ocr/docs/qa title- ix.pdf DELUCA LAW LLC 26

27 Assistance Following an Incident Immediate Assistance Ø Scool sould identify and provide contact information for te trained on- and off- campus advocates and counselors wo can provide an immediate confidential response in a crisis situation obtain needed resources; explain reporting options; and elp navigate te reporting process Ø Provide emergency numbers for on- and off- campus safety, law enforcement, and oter first responders Ø Identify ealt care options, bot on- and off- campus Ongoing Assistance Ø Counseling, Advocacy, and Support On and Off Campus DELUCA LAW LLC 27

28 Academic Accommodations and Interim Measures Scool must describe te immediate steps and interim measures tat it can provide to ensure te safety and well- being of te victim, suc as: te ability to move dorms, cange work scedules, alter academic scedules, witdraw from/retake a class witout penalty, and access academic support (e.g., tutoring). Scool must describe additional interim measures tat it may be able to provide for complainants wile an investigation is pending suc as: no contact orders canging te alleged perpetrator s living arrangements or course scedule. DELUCA LAW LLC 28

29 itle IX Investigations Ø Investigation refers to te process te scool uses to resolve sexual violence complaints. Ø Includes te fact- finding investigation and any earing and decision- making process te scool uses to determine: (1) weter or not te conduct occurred; and, (2) if te conduct occurred, wat actions te scool will take to end te sexual violence, eliminate te ostile environment, and prevent its recurrence. Ø A scool s itle IX investigation must be adequate, reliable, impartial, and prompt. Ø Investigation must include te opportunity for bot parties to present witnesses and oter evidence. Ø e investigation may include a earing to determine weter te conduct occurred, but itle IX does not necessarily require a earing. United States Department of Education, Office for Civil Rigts, Questions and Answers on itle IX and Sexual Violence, April 29, ttp://www2.ed.gov/about/offices/list/ocr/docs/qa title- ix.pdf DELUCA LAW LLC 29

30 Investigation Procedures and Protocols Identify wo conducts te investigation and wat an investigation migt entail. Specify a reasonably prompt time frame for conducting te investigation and resolving te complaint, as well as te process for extending te timeframe. Explain te processes for preserving evidence. Provide te respondent and complainant equitable rigts during te investigative process. Describe wat information may and may not be sared during a parallel investigation wit law enforcement Explain tat were necessary, te scool will take immediate steps to protect complainants pending te final outcome of an investigation, including academic accommodations and oter interim measures Explain te scool s response if a victim s request for confidentiality limits te scool s ability to investigate a particular matter. DELUCA LAW LLC 30

31 Grievance/Adjudication Procedures Explain te grievance/adjudication process, including: tat mediation is never appropriate in sexual assault cases tat te preponderance- of- te- evidence (i.e., more likely tan not) standard will be used in any itle IX fact- finding and related proceedings, including any earings Identify te adjudicators, including: te trained individuals wo determine weter te alleged sexual misconduct occurred te individuals wo determine te sanction a process by wic eiter party may raise issues related to potential conflicts of interest of suc individuals te persons wo may attend and/or participate in te adjudication process and te extent of tat participation. DELUCA LAW LLC 31

32 Grievance/Adjudication Procedures Outline te rigts and roles of bot parties in te adjudication process, including: notice of earing(s) to bot parties; an opportunity for bot parties to present witnesses and oter evidence, including: a description of te types of evidence tat may or may not be presented, including but not limited to proibiting questioning or evidence about te complainant s prior sexual conduct wit anyone oter tan te alleged perpetrator clarifying tat evidence of a prior consensual dating or sexual relationsip between te parties by itself does not imply consent or preclude a finding of sexual misconduct If te scool conducts a earing, and generally allows for cross- examination, a description of alternative metods tat preclude te respondent from personally cross- examining te complainant DELUCA LAW LLC 32

33 Grievance/Adjudication Procedures Explain te possible results of te adjudication process, including: sanctions; remedies/accommodations for te victim; additional remedies for te scool community. Outline ow te parties will be informed of te results of te adjudication, including simultaneous written notice to bot parties of te outcome of te complaint and te option to appeal, if applicable Describe te appellate procedures (if appeals are permitted), including grounds for appeal, standards of review, te person/entity tat will decide appeals, and te applicable reasonably prompt time frames. DELUCA LAW LLC 33

34 ank You! 34 Cristoper DeLuca DeLuca Law LLC Pone: (513) Fax: (513) website: DeLucaLawLLC.com DELUCA LAW LLC