New Virginia Laws on Sexual Assault Applicable to Virginia Colleges & Universities

Gentry Locke Partner Todd Leeson is an associate member of the National Association of College and University Attorneys. He has represented private colleges in Virginia on employment law and student conduct issues (including Title IX sexual misconduct matters) for almost 20 years. Todd appreciates the work of Brad Tobias, a former associate at Gentry Locke, who assisted in the compilation of this article. 

As the Virginia General Assembly convened in early 2015, there were high profile tragedies and stories regarding the important topic of protecting our college students from sexual assaults. Hannah Graham, a 19 year old student at UVA was murdered in the fall of 2014 after disappearing from the Downtown Mall in Charlottesville. The man charged with her murder, Jesse Matthew, had been accused of sexual assaults at two other colleges in Virginia and had left those schools shortly after each allegation. Moreover, in November 2014, Rolling Stone published an explosive article entitled “A Rape on Campus,” that focused upon an alleged gang rape of a UVA student at a fraternity. The article was subsequently discredited. Nevertheless, the General Assembly concluded that it was necessary to take additional steps to protect college students in Virginia. This article summarizes two of the new laws in Virginia that will take effect July 1, 2015.

Notations on Transcripts in Sexual Violence Cases (Va. Code § 23-9.2:15)

S.B. 1193 is entitled “Academic transcripts; suspension, permanent dismissal, or withdrawal from institution.” The law will require that registrars of higher education institutions in Virginia place a prominent notation on the academic transcript of each student who has been suspended for, permanently dismissed for, or who withdraws while under investigation for an offense involving sexual violence.

Once this notation is placed on the offending student’s transcript, colleges will be required to notify the student of the notation, and adopt a procedure for removing the notation if the student is subsequently found not to have committed the offense. In addition, if a student is suspended and completes the term and conditions of the suspension and is determined to be in good standing, the college shall remove the notation.

New Reporting Requirements for Acts of Sexual Violence (Va. Code § 23-9:15 and § 23-9:16)

The Virginia House of Delegates and Senate also unanimously passed identical bills, H.B. 1930 and S.B. 712, that establish reporting requirements applicable to certain College officials as to alleged acts of sexual violence.

Reporting Obligation of “Responsible Employees” of College

Certain exceptions are made for university employees who obtained the information through any communication considered “privileged” under state or federal law or the employee received the information in the course of providing services as a licensed health care professional, a professional counselor, campus victim support personnel, a clergy member or an attorney. Additionally, no employee is required to inform the Title IX coordinator of the alleged acts of sexual assault if he or she has actual knowledge that the same information has already been reported to the Title IX coordinator, the Commonwealth Attorney or the law enforcement agency responsible for investigating the alleged act of sexual violence.

The first obligation applies to a person deemed a “responsible employee” of the college. The law uses the same definition that the Federal Office of Civil Rights uses for Title IX sexual violence cases. Once a “responsible employee” obtains information that an act of sexual violence may have been committed, he must report it to the Title IX coordinator “as soon as practicable” after addressing the immediate needs of the victim.

Reporting Obligation of Title IX coordinator to “review committee”

The Title IX coordinator (or designee) in turn is required to “promptly report” the information, including any personally identifiable information, to a “review committee.” The review committee must consist of at least three or more persons including the Title IX coordinator or designee, a law enforcement representative and a student affairs representative. The review committee may be the “threat assessment team” established under Va. Code 23-9.2:10 or a separate body.

Reporting Obligation and Function of “review committee”

The review committee is required to meet within 72 hours of receiving the Title IX coordinator’s report, and thereafter as necessary. The committee has the power to obtain law-enforcement records, criminal history records, health records, available institutional conduct or personnel records and information or evidence known to the institution or law enforcement.

The review committee (or the representative of law enforcement if the committee does not reach a consensus) must determine if disclosure of the information, including personally identifiable information, is necessary to protect the health and safety of the student or other individuals. If so, the law enforcement representative shall “immediately” disclose such information to the responsible law-enforcement agency. In addition, the Title IX coordinator or designee shall notify the victim is such a disclosure is made.

As to alleged acts of sexual violence that would constitute a felony under Virginia law, the law enforcement representative on the committee will be imposed with the duty to consult with the local Commonwealth’s attorney and provide him or her with the information received by the review committee without disclosing personally identifiable information. Putting further burden on the committee, the bill provides that if the law-enforcement representative does not think that alleged acts constitute a felony, yet other members of the committee individually do, then it is that person’s duty to provide the same information within 24 hours to the Commonwealth’s Attorney.

Protocol After of Review Committee Determination

After the review committee makes its determinations discussed above, its work is done as to that particular report. However, the Title IX coordinator and the law enforcement representative shall each retain the authority to proceed with any further investigation or adjudication allowed under federal or state law. Similarly, both retain the right to keep and maintain independent records of the committee’s considerations.

Information that colleges must provide to a victim of an alleged act of sexual violence

The new law also requires the institution to ensure that a victim of an alleged act of sexual violence is informed of the following eight matters:
  • Available law-enforcement options
  • Importance of collection and preservation of evidence
  • Available options for a protective order
  • Available campus options for investigation and adjudication
  • Right to participate or decline to participate in any investigation under applicable law
  • Applicable federal or state confidentiality provisions
  • Available on-campus resources and any unaffiliated community resources (e.g., sexual assault crisis centers, domestic violence crisis centers, or other victim-support services)
  • Importance of seeking appropriate medical attention.

Memorandum of Understanding (MOU) with Appropriate Community Resources

Another provision of the new law will require universities in Virginia to establish written agreements with local sexual assault crisis centers or other victim support services that are aimed at providing sexual assault victims with immediate access to a confidential, independent advocacy services. Universities will be required to disseminate these agreements promoting access to victim services through adopted university-wide policies.

The law also includes language that under this new Virginia law, a person who is the victim of an alleged act of sexual violence is not required to report such violation.

Final Thoughts[1]

As noted, the General Assembly and Governor felt it was important to take steps to protect college students as to campus sexual assaults. These new requirements are in addition to existing mandates and pronouncements of the Federal Government, especially the Office of Civil Rights (OCR) regarding laws including Title IX, as well as the Violence Against Women Reauthorization Act of 2013 (VAWA) and its new Section 304 Regulations that also take effect on July 1, 2015. Please let us know if you have further questions about the new Virginia laws, or the existing Federal requirements, as to campus sexual assaults.

[1] HB 1785 is another new law that imposes obligations upon colleges.  Among other things, colleges will be required to enter into mutual aid agreements and/or to notify the local commonwealth’s attorney within 48 hours of beginning any investigation involving an alleged felony criminal sexual assault.  This will be part of Va. Code 23-234

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