National Association of Attorneys General

National Association of Attorneys General National Association of Attorneys General

Steps Attorneys General Are Taking to Reduce Sexual Violence on College Campuses

NAGTRI Law Clerk Gabrielle Lucero, 2014 Bill Brown Fellow Emily Martin and NAGTRI Visiting Fellow Jared McClain contributed to this article.

Each year, an average of 237,868 Americans over the age of 12 are sexually assaulted.1 An estimated 19.3 percent of women and 1.7 percent of men have been raped during their lifetimes.2 At institutions of higher education (IHEs), one in five undergraduate women3 and one in 16 men4 experience attempted or completed sexual assault. Women between the ages of 15 and 24 who are attending an IHE are four times more likely than other groups to be sexually assaulted.5 Most of these assaults occur during the “Red Zone,” defined as the beginning of a student’s first academic year through Thanksgiving break.6 While the average person associates sexual assault with violent attacks by strangers, in reality, close to 90 percent of campus sexual assault victims are acquainted with their attacker.7 Moreover, most sexual assaults on campus are committed by a small number of “repeat offenders.” In one study, 63 percent of the men who admitted to committing rape in college stated that they had committed an average of six rapes each.8

While the commission of sexual assault on college campus is certainly not a new phenomenon, over recent years, this issue has become more widely publicized. The media have focused on the number of schools currently under investigation by the Office of Civil Rights of the U.S. Department of Education (DOE), as well as on “rape culture” and binge drinking on college campuses. The issues surrounding the prevention, investigation and prosecution of college campus sexual assault are varied and sometimes controversial. From the definitions of “consent” and “incapacitation” to the burden of proof that should be used during administrative investigations to the need for improved communication between law enforcement and universities, it is impossible to devise a “one-size-fits-all” solution.

This article was originally intended to be its own newsletter that would serve to educate the National Association of Attorneys General (NAAG) community as to the underlying issues involving college campus sexual assault. However, over the past months, it has evolved into a NAAGazette article examining these sometimes controversial issues and outlining the relevant recent legislative activity.

The full version of this article can be accessed here. What follows are excerpts focusing on common issues relating to college campus sexual assaults and the steps taken by state attorneys general to reduce sexual violence on college campuses.

Common Issues Encountered by Stakeholders

Why Don’t Most Campus Sexual Assault Victims Report These Crimes?

A recent U.S. Senate report found that less than 5 percent of college campus sexual assault victims report their attacks to law enforcement.9 Many victims “experienced confusion over how to report, confusion over acceptable standards of conduct and definitions of rape and sexual assault, and fear of punishment for activities preceding some assaults, such as underage drinking.”10 At least half of campus sexual assaults involve the use of alcohol or drugs by the victim and/or the perpetrator.11 Many victims blame themselves or fear blame from other people because of their drug or alcohol use, their manner of dress or their past sexual history.12 Victims are also often embarrassed and unwilling to share their experiences with their friends and family.13

The nature of campus sexual assaults makes victims particularly reluctant to report. As stated in the article introduction, most perpetrators are acquaintances of the victim. Many college campuses are mini-universes of their own and victims are aware that they will encounter those who assaulted them in their classes, dormitories and dining halls. Victims often fear retaliation from the perpetrator or his or her friends and do not want to become ostracized from this close-knit community.14 Last, many victims do not have faith in the criminal justice system.15

Marginalized groups report at even lower rates. Men often feel guilty for not “protecting themselves” and fear that they will not be believed or that their masculinity will be questioned.16 Members of the lesbian, gay, bisexual, transgender, questioning (LGBTQ) community sometimes fear being “outed,” or worry that they will be ridiculed because of a campus’ lack of acceptance of their sexual orientation, and do not believe that the campus’ services are inclusive.17 Cultural considerations can also cause victims to fear reporting.18

To read more about common issues encountered by stakeholders, including the special vulnerabilities of college sex crimes victims and inconsistent definitions of “consent” and “incapacitation,” please access the full version of this article here.

What Are the Current Federal Regulations That Apply to College Campuses?

The Clery Act

Congress amended the Higher Education Act of 1965 by passing the Crime Awareness and Campus Security Act of 1990,19 which required all IHEs receiving federal funding for student financial assistance programs20 to disclose campus crime statistics and security information. Under the current version of the Act, which is now known as the Clery Disclosure of Campus Sexual Policy and Campus Crime Statistics (the Clery Act),21 IHEs are subject to numerous requirements. In summary, IHEs must publish an annual report disclosing campus security policies22 and three years’ worth of certain crime statistics23 and make timely warnings to the campus community about crimes that pose an ongoing threat to students and employees.24 Each IHE which has a police or security department must also ensure that the department maintains a crime log documenting the “nature, date, time and general location of each crime” and its disposition, if known.25 This log should be made accessible to the public within two business days of the crime and remain open for 60 days following the crime.26

To read more about the requirements imposed on IHEs by the Clery Act, please access the full version of this article here.


The Family Education Rights and Privacy Act (FERPA) protects the rights of students to access education records, challenge the content of these records, and to have control over the disclosure of personal identifying information contained in the records.27 Under FERPA, “education records” are defined as records, files, documents and other materials which contain information directly relating to a subject and are maintained by an educational agency or institution or by a person acting for an agency or institution.28 All IHEs receiving federal funding must comply with FERPA.29

There are certain exceptions to the FERPA regulations which relate to campus sexual assault. For example, campus law enforcement records do not fall into the category of “education records.” 30 Additionally, an exception applies when the release of the education records is necessary to protect the health or safety of others.31 The application of FERPA exceptions to complainant confidentiality is discussed in the full version of this article, available here.

Title IX

Title IX of the Educational Amendments of 1972 states that “[n]o person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving [federal] financial assistance.”32 Courts have interpreted the language of Title IX to prohibit sexual violence as a form of sex discrimination.33 The conduct at issue will be deemed prohibited by Title IX if it is sufficiently serious that it interferes with a student’s ability to participate in or benefit from a school’s program. 34 Title IX applies to all programs, services and opportunities offered by schools, on or off campus,35 and protects students, employees, third parties and minors.36

An IHE violates a student’s Title IX rights when it has been given notice of the alleged sexual violence and “fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence and, as appropriate, remedy its effects.”37 An IHE is deemed to have notice of the assault if a “responsible employee” knew or should have known about the incident. 38 Responsible employees have a duty to report all relevant details of a sexual assault to the IHE’s Title IX coordinator.39

Under Title IX, institutions are also required to adopt and publish policies prohibiting sex-based discrimination, designate a Title IX coordinator and publish notice of discrimination.40 The Office on Constitutional Rights (OCR) of the DOE, which is responsible for the enforcement of Title IX, also recommends that schools implement education and training programs.41 To learn more about Title IX requirements as well as recent guidance provided by the OCR to IHEs, please access the full version of this article here. The complete article also explores the tensions between the Clery Act, Title IX and FERPA, and examines whether the regulations do an adequate job of protecting complainant confidentiality as well as the due process rights of the accused.

Recent Actions of State Attorneys General


Maryland Attorney General Doug Gansler has urged state IHEs to update their campus sexual assault policies by the end of the year.42 Following the attorney general’s request, the Board of Regents of the University System of Maryland, which includes 11 four-year universities, began drafting new policies addressing the prevention of assault and reporting procedures.43 The draft policies include requirements that IHEs act quickly upon receipt of a Title IX complaint and enter into memoranda of understanding with local law enforcement, as well as identify a Title IX coordinator.44 The draft policy also provides an updated, lengthier definition of consent.45


After allegations that the University of Montana, the Missoula County Police Department, and the Missoula County Attorney’s Office mishandled the investigation and prosecution of sexual assault cases, the U.S. Department of Justice (DOJ) announced an investigation into all three institutions in May 2012.46 While the University of Missoula and the Missoula County Police Department entered into agreements with the DOJ to reform their practices,47 questions arose as to the jurisdiction of the DOJ to investigate the County Attorney’s Office.48 Missoula County Attorney Fred Van Valkenburg eventually filed a lawsuit disputing that jurisdiction.49

The Montana Attorney General’s Office has oversight authority over all county attorneys in Montana.50 Pursuant to that authority, Montana Attorney General Tim Fox stepped in as the mediator between the DOJ and Missoula County and helped the parties reach an agreement. The agreement specifies that the Attorney General’s Office will oversee the development and implementation of new standards and procedures for how the County Attorney’s Office handles sexual assault cases.51 The new standards and procedures will encompass attorney and staff training, the development of policies and guidelines for sexual assault cases, strategies for improving collaboration with law enforcement and the community, and funding for expert witnesses.52 The attorney general will monitor the implementation of the standards, retain a technical advisor and review sexual assault cases that the county attorney has declined to prosecute.53 Additionally, Mr. Van Valkenberg agreed to dismiss his claim against DOJ and DOJ agreed to not file any claims against the Missoula County Attorney’s Office.54

New Jersey

This summer, New Jersey Acting Attorney General John J. Hoffman revised the evidence retention guidelines released by his office relating to the retention of sexual assault evidence kits to require that the kits be retained for five years while victims decide whether or not they wish to proceed with a criminal investigation.55 Prior to Attorney General Hoffman’s actions, some counties only retained such evidence for 90 days.56 At the conclusion of the five years, the Attorney General’s Office can take custody of the kit and continue to preserve the evidence contained within.57


Virginia Gov. Terry McAuliffe ordered a review of policies on sexual violence at the state’s campuses.58 As a result, a state task force has been created, which is chaired by Attorney General Mark Herring.59 The task force will identify best practices for investigating sexual assaults and resolving complaints and provide a final report by June 1, 2015. The task force will then make recommendations on an ongoing basis.60 Attorney General Herring has also begun a review of each Virginian IHE’s current policies and procedures for prevention and response61 and will begin an extensive training program for college and university staff.62


Wisconsin Attorney General J.B. Van Hollen heads the Wisconsin Department of Justice, which has spearheaded a number of projects geared towards supporting sexual assault victims and the prosecutors who handle these cases. For example, the Department of Justice’s Violence Against Women Resource Prosecutor (VAWRP) project provides technical assistance to local district attorneys’ offices in the investigation and prosecution of these crimes, “using best practices and collaborative community models.”63 Attorney General Van Hollen also recently commended the University of Wisconsin-Madison for its use of a new, interactive online bystander prevention program and encouraged other schools to implement the program and ongoing faculty and staff training as well as protocols that include “solid partnerships with community service providers,” in order to ensure a “supportive and respectful response” for the victims of these crimes.64

Takeaways from NAAG Eastern Region Meeting

NAAG’s Eastern Region Meeting, Sept. 30 – Oct. 1 in Providence, R.I., provided a forum for all stakeholders involved in issues relating to campus sexual assault to share information, debate difficult topics, and learn from each other. The moderators were Rhode Island Attorney General and NAAG Eastern Region Chair Peter F. Kilmartin, Connecticut Attorney General George Jepsen, Maryland Attorney General Doug Gansler, Montana Attorney General Tim Fox, and New Hampshire Attorney General Joseph Foster, as well as the U.S. Attorney for Rhode Island Peter Neronha. A keynote address was given by U.S. Senator Sheldon Whitehouse.

Given the varying backgrounds of the moderators and panelists,65 attendees heard many viewpoints. However, there were certain fundamental ideas on which all parties seemed to agree, including the necessity of collaboration between local and campus law enforcement, the importance of ensuring that victims were well-informed as to their options, the need for effective prevention and education programs, and the value of bystander intervention strategies. For a complete examination of the “takeaways” from the NAAG Eastern Region Meeting, please access the full version of this article here.


While the current statistics show that there is much to be done to reduce campus sexual violence and to change the societal mindset as it relates to acquaintance rape, all involved are beginning to work together to protect the safety of all college students. Collaboration between stakeholders, with a focus on protecting the rights of the complainants as well as the rights of the accused, is necessary to foster a safe environment that is conducive to learning.

1 How Often Does Sexual Assault Occur?, RAINN (last visited Oct. 8, 2014), (compiling data from Bureau of Justice Statistics, National Crime Victimization Survey (2011) (defining sexual assault as “attacks or attempted attacks generally involving unwanted sexual contact between the victim and offender that may or may not include force.”)). “Sexual assault” is defined as any type of sexual contact or behavior that occurs without the explicit consent of the recipient, including forced sexual intercourse, forcible sodomy, child molestation, incest, fondling and attempted rape.

2 Centers for Disease Control and Prevention, Prevalence and Characteristics of Sexual Violence, Stalking and Intimate Partner Violence Victimization – National Intimate Partner and Sexual Violence Survey, United States (2011).

3 Maj. Staff of S. Comm. on Financial & Contracting Oversight, 114th Cong., Sexual Violence on Campus (Comm. Print 2014), available at [hereinafter McCaskill Report]

4 Mollie Lam, Here’s Your Talking-Points Memo on Campus Sexual Assault, The Am. Assoc. of U. Women. (last visited Oct. 8, 2014),

5 61 Cath. UL Rev 457, 461, n.14, citing Nancy Chi Cantalupo, How Should Colleges and Universities Respond to Peer Sexual Violence on Campus? What the Current Legal Environment Tells Us, 3 NASPA J. ABOUT WOMEN HIGHER EDUC 49, 52 (2010).

6 Walter Bogdanich, Reporting Rape, and Wishing She Hadn’t, New York Times (July 12, 2014),

7Most Victims Know Their Attacker, Nat’l Institute of Justice (Oct. 1. 2008),

8 Marcia A. Hamilton, The Federal Government Turns Its Focus to Sexual Assault on Campus, Verdict (Jan. 30, 2014),

9 Sexual Violence on Campus, supra note 3, at 1.

10 Id. at. 4-5.

11 Christopher P. Krebs, Ph.D. et. al. The Campus Sexual Assault (CSA) Study, Nat’l Institute of Justice 1-4 (Oct. 2007),

12 Center for Disease Control and Prevention, Understanding Sexual Violence: Fact Sheet (2012), available at

13 Id.

14 Id.

15 See Why Don’t All Survivors Report?, Sexual Assault Victim Advocate Center, (last visited Oct. 8, 2014); see also Michelle J. Anderson, Diminishing the Legal Impact of Negative Social Attitudes Toward Acquaintance Rape Victims,13 New Crim. L. Rev. 644 (2010).

16 Male Survivors, Brown University, (last visited Oct. 8, 2014).

17 LGBT Victims, West Virginia Foundation for Rape Information & Services, (last visited Oct. 8, 2014).

18 Why Don’t All Survivors Report?, supra note 16.

19 20 U.S.C. ¿ 1092(f) (2014).

20 Only three United States institutions of higher education do not receive any federal funding: Hillsdale College in Michigan, Grove City College in Pennsylvania, and Patrick Henry College in Virginia. Katie Jo Baumgardner, Note, Resisting Rulemaking: Challenging the Montana Settlement’s Title IX Sexual Harassment Blueprint, 89 Notre Dame L. Rev. 1813, 1814 n.3 (2014).

21 Jeanne Clery was a 19 year old undergraduate student at Lehigh University in Pennsylvania who was raped and murdered in her dorm room by another student who was unknown to Jeanne at the time. See

22 20 U.S.C. ¿ 1092(f)(1) (2014).

23 20 U.S.C. ¿ 1092(f)(1)(F) (2014). Note that the Clery Act requires disclosure of all reported crime, not just criminal convictions or administrative adjudications of guilty.

24 Notably, the Act’s requirements extend beyond an IHE’s physical campus. Subpart Twelve sets out four separate categories for institutions to use in their reports when classifying incidents: criminal offenses occurring on campus, in or on a non-campus building or property, on public property, and in dormitories or other residential facilities for students on campus. 20 U.S.C. 1092(f)(12) (2014).

25 20 USC ¿ 1092(f)(4); see also Summary of the Jeanne Clery Act, Clery Center, (last visited Oct. 8, 2014).

26 Id.

27 20 U.S.C.S. ¿1232(g); see also Nat’l Center for Education Statistics, U.S. Dep’t of Ed., Protecting the Privacy of Student Records (1997), available at

28 20 U.S.C.S. ¿1232(g)(a)(2)(4)(A).

29 IHEs that do not comply with FERPA may lose federal funding. FERPA Primer, National Association of Colleges and Employers,, (last visited Oct. 8, 2014).

30 20 U.S.C.S. ¿1232(g)(a)(2)(4)(B)(ii) (“Records maintained by a law enforcement unit of the educational agency or institution that were created by the law enforcement unit for the purpose of law enforcement” do not constitute “education records.”).

31 U.S. Dep’t of Ed., Family Education Rights and Privacy Act (FERPA) and the Disclosure of Student Information Related to Emergencies and Disasters (June 2010), available at [hereinafter FERPA Student Disclosures]

32 20 U.S.C.S. ¿ 1681(a). However, note that military schools are not subject to Title IX. See 20 USCS ¿ 1681(a)(4). As per Captain Erin E. Stone, JAGC, USN, a panelist at the recent Eastern Region meeting, military schools are subject to Title X regulations, the Uniform Code of Military Justice (UCMJ) and local and federal laws. Reserve Officers’ Training Corps (ROTC) programs are subject to Title IX and are not subject to the UCMJ, as it only applies to active duty personnel, with two exceptions: ROTC students involved in summer training are considered to be active duty personnel, and prior enlisted personnel are considered to be students.

33 Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, other verbal, non-verbal or physical conduct of a sexual nature, sexual misconduct or violence, and other verbal, non-verbal or physical conduct of a sexual nature. See Office of Civil Rights, U.S. Dep’t. of Ed., Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students or Third Parties 2 (2011), available at Sexual violence includes physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent, such as rape, sexual assault, sexual battery, sexual abuse and sexual coercion. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (holding that sexual harassment can constitute discrimination).

34 Office for Victims of Crimes, Dep’t of Justice, Promoting Effective Criminal Investigations of Campus Sex Crimes, at 5 (Jan. 25, 2012), available at

35 Dear Colleague Letter, supra note 27, at 2 (noting that protection applies to all education programs and activities, even if they take place off campus).

36 See Office for Civil Rights, Dep’t of Ed., Questions and Answers on Title IX and Sexual Violence, at B-5, available at, B-5 (April 29, 2014) [hereinafter Title IX and Sexual Violence] Title IX protects third parties from sexual violence in a school’s education program/activity. See note 11, which provides the example of a high school student participating in a college recruitment program. An appropriate institutional response, when the accused is not affiliated with the IHE, differs “depending on the level of control the school has over the alleged perpetrator,” but that regardless of this level of control, the school must still make sure that the victim and the entire school community is provided with appropriate remedies, which can include support services and the issuance of policy statements.”

37 Id. at A-2.

38 Id. at A-4. Notably, according to the OCR, a resident advisor is not automatically a “responsible employee,” but that is still subject to the Clery Act reporting requirements as they are considered “campus security authorities.” Id. at D-5, n.24. The school is tasked with much responsibility in this regard. For example, even if the victimized student did not utilize the school’s grievance procedures, and the assault was featured by the media and on social network sites, the school is deemed to have known or should have known about the activity and is therefore required to take “prompt and effective corrective action.” Id. at A-4.

39 34 C.F.R. ¿ 106.8 (2014).

40 Id.

41 Title IX and Sexual Violence, supra note 37, at J.

42 Carrie Wells, State University System Revising Sexual Assault Policy, The Baltimore Sun (May 30, 2014),

43 Id.

44 Linderman, Juliet. “Maryland Universities Updating Sexual Misconduct Policy.”

45 Wells, supra note 43.

46 Allie Grasgreen, ‘Blueprint’ Balancing Act, Inside Higher Ed (Oct. 18, 2013),

47 The DOJ’s investigation of the University of Montana, in conjunction with the DOE, concluded in a Resolution Agreement which requires the University to clarify its policies and procedures for dealing with sexual assault, to fully investigate and appropriately respond to reports of sexual assault, and to eliminate any hostile environments that contribute to and arise from sexual assault, and to use a third-party consultant to evaluate its efforts to comply with the agreement. Resolution Agreement, OCR Case No. 10126001, DOJ DJ Number 169-44-9 (May 9, 2013), available at>. 21 July 2014.

48 Kingkade, Tyler and Reilly, Ryan. “Montana Prosecutor Who Accused Feds of Bullying Reaches Agreement on Sexual Assault Reforms.” The Huffington Post. 10 June 2014. < missoula-sexual-assault-reform-doj_n_5475261.html>. 21 July 2014.

49 Kathryn Haake, Van Valkenburg, DOJ Get More Time to Resolve Lawsuit, Missoulian (April 18, 2014),

50 Press Release, Dep’t of Justice, Department of Justice Reaches Landmark Agreement to Improve Missoula County Attorney’s Office’s Response to Sexual Assault (June 10, 2014), available at

51 Press Release, Montana Dep’t of Justice, Attorney General Fox Secures Agreements Resolving Dispute Between Missoula County Attorney and U.S. Department of Justice (June 10, 2014), available at

52 Id.

53 Memorandum of Understanding Between the Montana Attorney General, the Missoula County Attorney’s Office, Missoula County, and the United States Department of Justice (June 10, 2014), available at

54 Id.

55 Press Release, The State of New Jersey Office of the Attorney General, Attorney General Issues New Directive Requiring Longer of DNA and Other Evidence from Medical Exams in Sexual Assault Cases, available at [hereinafter NJ AG Press Release]

56 Susan K. Livio, NJ Sex Assault Evidence Must be Saved for at Least 5 Years, AG Says, (July 10, 2014, 2:07 AM),

57 NJ AG press release, supra note 56.

58 Press release, Virginia Governor Terry McAuliffe, Virginia Launches Comprehensive Effort to Address Sexual Violence on College Campuses (Aug. 21, 2014), available at [hereinafter Aug. 21 Virginia Press Release]

59 Id.

60 Id.

61 Press release, Virginia Attorney General Mark Herring, Governor McAuliffe Announces Members of the Governor’s Task Force on Combating Campus Sexual Violence (Sept. 22, 2014), available at

62 Aug. 21 Virginia press release, supra note 170.

63 Press release, Wisconsin Attorney General J.B. Van Hollen, Preventing Sexual Assault on College Campuses (Oct. 3, 2012), available at

64 Id.

65 Participants included state attorneys general staff with varying forms of criminal and civil jurisdiction, representatives from federal agencies, district attorneys, law enforcement, school administrators, campus police, victim advocates and at least one forensic nurse.

Who's My AG?

Find the attorney general who represents you.

Meetings & Trainings

Stay informed of NAAG meetings and the NAGTRI trainings we offer.

AG Spotlight

Brian Frosh, Maryland Attorney General

Brian Frosh was sworn in as Maryland attorney general in January 2015.