The Campus SaVE Act and the Prospect of a Safer Campus

Miguel Lozano – Sandra Day O’Connor College of Law

Introduction

“It was bad enough that I felt defeated and powerless in other ways, and then to feel defeated and powerless by a school that I just paid $40,000 to go to, [a school] that’s supposed to protect, care, and value their students.”[i]

In this statement, Margaux refers to the treatment she received after falling victim to sexual assault at Indiana University.  After investigation by the university, the perpetrator was determined to be responsible for the act and received a one – term suspension, the summer term.[ii]  Margaux was rightfully distraught and eventually dropped out of Indiana University because of the outcome of the university disciplinary proceedings and the fact that the perpetrator would be present on campus when she returned.[iii]  Sentiments such as these are afflictions that have contaminated colleges and universities throughout the country for far too long and while there is universal acknowledgement that these afflictions exist, there is not nearly enough being done to remedy this problem that has burdened young college students at an increasingly alarming rate.  These afflictions are domestic violence, dating violence and sexual assault, all involving students on and off campus at public and private institutions alike, including Arizona State University (ASU).  The alarming rates of these criminal acts have come to the forefront of American Politics in recent years and the concern drawn from such increases was culminated with the passage of the Campus Sexual Violence Elimination Act, known as the Campus SaVE act.[iv]  This act was incorporated into the 2013 reauthorization of the Violence Against Women Act (VAWA)[v] and provides significant amendments to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or Clery Act.[vi]  The Campus SaVE Act addresses some of these issues and creates a wider array of protections for college students whose unfortunate experiences or sexual preferences may not have been covered by the previous provisions of the Clery Act.[vii]  Due to the increase in gender-based violence on campuses, its negative impact on students, and the rampant underreporting of such incidents by individuals and institutions throughout the country, ASU should immediately create university policies that would implement the Campus SaVE Act as a minimum standard to protect its students, but should also expand the protections far beyond those mandated by the Act.

1. Changes to VAWA through the Campus SaVE Act

The Campus SaVE Act brought about many welcomed additions to VAWA including the addition of protected classes as well as covered crimes.  VAWA now recognizes crimes committed based on a person’s sexual orientation and gender identity as being hate crimes that must be reported along with crimes against traditionally protected classes such as race and gender.[viii]  This was a needed change as hate crimes against the LGBTQ community have been on the rise.[ix]  In 2007 such crimes were at their highest levels in five years.[x]  Additionally, VAWA now requires reporting for crimes of domestic violence, dating violence, and stalking and includes federal definitions of these offenses removing the sometimes limited coverage of some of the varying state statutes.[xi]  While forcible and non-forcible sexual offenses have been a staple of these requirements for quite some time now, these new classifications will inform institutions, their employees, and incoming and current students as to the prevalence of these violent and harmful acts.

The Campus SaVE Act also provides significant guidance on Campus Statements of Policy which are available to every potential student of any university receiving federal funds or participating in federal financial aid.  The initial piece of this section requires that statements of policy shall be developed and distributed with the purpose of informing students about any prevention programs related to dating violence, domestic violence, sexual assault and stalking.[xii]  There is also significant language designed to protect potential victims.[xiii]  The procedures should include rules for preservation of evidence as well as victim’s reporting rights. [xiv]   Institutions should have clear policies regarding the disciplinary procedures that occur when a victim reports an incident of domestic violence, dating violence, sexual assault, or stalking as well as confidentiality procedures when such reporting occurs.[xv] The final addition to the Campus SaVE Act specifically addresses the very real and prolific issues of discrimination and witness tampering.  This subsection states that any coercion or discrimination by any person working on behalf of an institution is strictly prohibited.[xvi]

1. Institutional Best Practices and Recommendations
2. Dissemination of Information

ASU’s first priority should focus on ensuring that the information of the Campus Security Report is in the hands of each and every student on and off campus and that it presented in its entirety and also in a student friendly format.  This pamphlet should include non-emergency and counseling numbers for victim and bystander support as well as proactive safety planning information.  The University of California Santa Cruz expands on the dissemination requirement by putting together a weekly saturation campaign that is aimed at informing any person on campus about the policies related to sexual assault on campus.[xvii]   However, just handing these security reports out is not nearly enough to assure the university that this information is widely known and that it remains widely available.  The university should require that each and every student that lives on campus keep a report in their dorm room. To verify compliance, room checks can be executed.  Currently the university places this report with the admissions materials provided to each and every incoming student, but it is not guaranteed that students or parents even open this report.   The university should require incoming students to not only attend an information session solely with the purpose of awareness of campus security policies, but also to complete a mandatory quiz on the information provided in the report.

1. Prevention

            ASU currently has several very promising and beneficial programs in place to prevent gender-based violence on campus; however, the university has the opportunity to take further steps to alter the environment of the university to ensure that these crimes do not occur.  ASU should require attendance because students often choose not to attend as they feel the class is unnecessary, that is, until a situation arises that creates a need for the information.  Another effective method the university has not yet fully adopted is the curriculum infusion model.  Several universities, including Georgetown and Illinois State University, have taken health and wellness issues and placed them at the forefront of some of the required curriculum by bringing in guest speakers, requiring related readings, and facilitating classroom discussions about these topics.[xviii]  ASU should examine classroom curriculum to determine ways to integrate awareness information into required courses.

ASU should also be looking to empower students as bystanders of these criminal acts.  This approach has had evidence of success in providing awareness and creating a community of support in the prevention of all types of violence on campus.[xix]  The bystander approach is aimed at training students how to react as a bystander of sexual violence in order to overcome the typical predictors of a bystander’s unwillingness to act.[xx]  This type of training for employees and students is meant to completely alter the environment of the campus as well as provide additional awareness measures to inform students about the types of crimes that occur on campus and how they can identify them.[xxi]

1. Policies

            ASU’s first priority in the creation of a new policy structure should be to integrate the newly classified gender-based crimes into the university’s Campus Security Report.  Since there are already specific programs and support systems specifically created for these newly classified crimes and the individuals who have fallen victim to them, the university should be proactive in explicitly and clearly integrating those programs into the report.  It should also be a priority of the university to provide accurate reporting in order to determine the extent of effectiveness of current and future programs.

1. Individual Reporting and Subsequent Investigations

            The reporting procedures in place for victims of gender-based violence at ASU are sufficient to cover the newly classified crimes, but some additional steps should be taken to address the distinct aspects of these crimes.  The victim should be permitted to make decisions about the direction and pace of the investigation and proceedings after a report has been made.[xxii]  Oklahoma State University treats decisions to prosecute, adjudicate through the university, or file a civil action as separate steps, each with its own distinct decision.[xxiii]  The victim is advised of the consequences of each decision made throughout the process.[xxiv]  ASU should clearly explain this process in their Campus Security Report in order to assure students that reporting does not commit a victim to any course of action.

Although ASU currently attempts to maintain confidentiality when possible, procedures should be written more concretely to guarantee such confidentiality during an investigation until the victim provides written permission to disclose their identity in order to continue the investigation.  Victims who decide not to pursue charges or disciplinary action by the university should not be required to disclose their identity to the suspected perpetrator because of the risk of retaliation.  Also, the university should have protocols in place to assure information sharing between all campus security officials in order to refrain from subjecting the victim to the completion of multiple incident reports.[xxv]  The university wellness centers should also employ trained medical staff that can identify signs of intimate partner abuse and sexual assault. These employees should be utilized in the investigation whenever possible.

1. Adjudication

            Adjudication is a particular area of weakness for many universities, including ASU, and was not addressed by the Campus SaVE Act, but should not be overlooked by universities as they reform their procedures to comply with the act.  The mission of university adjudication should move from education and rehabilitation to accountability.  Students should no longer have to fear the consequences of reporting a crime if the abuser is allowed to remain on campus with little positive protection for the victim.  ASU should take the lead in implementing mandatory consequences for a guilty student that should not be less than a one year suspension for any of the newly classified crimes as well as sexual assault.  Furthermore, these consequences should not be tied to criminal sentencing in any way because this will provide an avenue for results to the victim outside of pressing criminal charges.

Conclusion

            Arizona State University has an opportunity to become a leader in the movement to end gender-based violence on campus.  As it takes steps to reform its policies to adhere to the new requirements of the Campus SaVE Act, ASU should venture further to ensure that these new changes are not merely lip service, but are significant steps to combat a very real problem at colleges and universities throughout the country.  Some steps will require significant capital and support from the academic and local community while others will require mere alterations to current university policies; however, if the university is not serious about these changes, they serve as nothing more than words on a page and their apathy will become more evident as the Campus Security Reports continue to communicate increases in gender-based crimes on and off campus.  The university cannot achieve the goal of educating students if it is ineffective at making sure they are safe. Without significant change, student’s safety cannot be assured. Failure to execute a sustainable and sufficient system of protecting students from violent crimes prohibits ASU from achieving its ultimate goal – and that is the education of all students who call Arizona State University home.

[i] Sexual Assault on Campus: Margaux J. Interview Part II, PublicIntegrity.org, http://www.publicintegrity.org/2010/02/24/4360/lack-consequences-sexual-assault (last visited Nov. 2, 2013).

[ii] Id.

[iii] Kristen Lombardi, A Lack of Consequences for Sexual Assault, PublicIntegrity.org, http://www.publicintegrity.org/2010/02/24/4360/lack-consequences-sexual-assault (last visited Nov. 2, 2013).

[iv] See, e.g., Kristen Lombardi, Biden, Duncan Highlight New Federal Guidance on Campus Sex assault probe, PublicIntegrity.org, (Apr. 4, 2011, 1:52 PM), http://www.publicintegrity.org/2011/04/04/3885/biden-duncan-highlight-new-federal-guidance-campus-sex-assault-probes; KristenLombardi, Campus Sexual Violence Elimination Act Headed for President’s Signature, PublicIntegrity.org, (Mar. 1 2013, 12:39 PM),  http://www.publicintegrity.org/2013/03/01/12259/campus-sexual-violence-elimination-act-headed-presidents-signature.

[v] Violence Against Women Reauthorization Act of 2013, PUB. L. No. 113–4, 127 Stat. 54.

[vi] Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (2012).

[vii] Campus Sexual Violence Elimination Act, 20 U.S.C.A. § 1092(f).

[viii] 20 U.S.C.A. § 1092(f)(1)(F)(ii).

[ix] Hate Crimes Against Lesbian, Gay, Bisexual, And Transgender Individuals, CivilRights.org, http://www.civilrights.org/publications/hatecrimes/lgbt.html (last visited Dec. 1, 2013).

[x] Id.

[xi] 20 U.S.C.A. § 1092(f)(1)(F)(iii).

[xii] 20 U.S.C.A. § 1092(f)(8)(A)(i).

[xiii] 20 U.S.C.A. § 1092(f)(8)(B)(iii).

[xiv] 20 U.S.C.A. § 1092(f)(8)(B)(iii).

[xv] 20 U.S.C.A. §§ 1092(f)(8)(B)(iv), 1092(f)(8)(B)(v).

[xvi] 20 U.S.C.A. § 1092(f)(17).

[xvii] See Nati’l Inst. of Just.,  Sexual Assault on Campus: What Colleges are doing about it 12.

[xviii]See generally Sabrina White et al., Impact of Curriculum Infusion on College Students’ Drinking Behavior, 58 J. Amer. C. Health 515, 516.

[xix]See Ann L Coker et al., Evaluation of Green Dot: An Active Bystander Intervention to Reduce Sexual Assault on College Campuses 4 (2011).

[xx] Id. at 3.

[xxi] See Id.

[xxii] Nati’l Inst. of Just., supra note 17 at  13.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.