The Clery Act requires institutions to disclose certain crime statistics that occur on its Clery geography in its Annual Security Report and to the U.S. Department of Education (ED) each year.   The crimes to be disclosed are as follows:

Category Description
Primary Criminal Offenses Murder/Non-Negligent Manslaughter; Manslaughter by Negligence; Rape; Fondling; Statutory Rape; Incest; Robbery; Aggravated Assault; Burglary; Motor Vehicle Theft; and Arson
Hate Crimes

A hate crime is a criminal offense that manifests evidence that the victim was intentionally selected because of the perpetrator’s bias against the victim.  For Clery Act purposes:

·         Hate crimes include the primary criminal offenses listed above (except Manslaughter by Negligence) plus: Larceny-Theft; Simple Assault; Intimidation; and Destruction/Damage/Vandalism to Property.

·         The eight categories of bias that may result in a hate crime being reported are as follows: race, gender, gender identity, religion, sexual orientation, ethnicity, national origin, or disability.

VAWA Offenses Dating Violence; Domestic Violence; and Stalking
Arrests and Disciplinary Referrals The number of arrests and the number of persons referred for disciplinary action for the following law violations: Drug Abuse Violations; Liquor Law Violations; and Weapons: Carrying, Possessing, Etc.

However, Chapter 3 of the 2016 edition of The Handbook for Campus Safety and Security Reporting (“Clery Handbook”) discusses some specific rules that apply when multiple crimes are reported in a single incident that may result in some crimes not being disclosed.

Those in the Clery world may be familiar with the concept of the “hierarchy rule.”  Stated simply, the hierarchy rule applies when there are multiple primary criminal offenses reported in a single incident.  In such situations, the following hierarchy applies:

  • Murder/Non-Negligent Manslaughter
  • Manslaughter by Negligence
  • Sexual Assault (Rape; Fondling; Statutory rape; Incest)
  • Robbery
  • Aggravated Assault
  • Burglary
  • Motor Vehicle Theft

When two or more incidents from the list above occur in a single incident, the application of the hierarchy rule results in only the more serious offense being disclosed.  So, if there is a report of a rape that occurred during a robbery, the only statistic that should be disclosed is the rape statistic (note: the Daily Crime Log should still list both crimes).

There are several other things you may have noticed in the list above, particularly the exclusion of some crimes.  These are discussed below (assume the crimes occurred on your institution’s Clery geography).

  • Arson—a primary criminal offense—should always be disclosed as a crime statistic, even if it occurs during a multiple offense incident. For example, if there is a report that an individual burglarized a residential facility and set fire to the building, a statistic should be disclosed for both arson and burglary. But, if someone died as a result of the intentional fire (i.e., murder/non-negligent manslaughter), the application of the hierarchy rule would preclude disclosure of the burglary, and only the arson and murder/non-negligent manslaughter statistics would be disclosed.
  • VAWA offenses (dating violence, domestic violence, and stalking) are not part of the hierarchy, meaning they too should always be disclosed. Therefore, if an incident is properly characterized as both aggravated assault and dating violence, a statistic should be disclosed for each category.
  • Arrests and disciplinary referrals for violations of law are also not part of the hierarchy. This is a change from the previous version of the Clery Handbook.  Under the old handbook, a single incident involving a rape and violation of drug laws would only be disclosed as a rape.  Under the new Clery Handbook, statistics for both offenses should be disclosed.

There are also a number of other rules and guidelines related to crime statistics discussed in Chapter 3 of the Clery Handbook that must be considered when preparing your institution’s statistical disclosures.  In addition, note that dating violence and domestic violence cannot occur in the same incident, meaning you would never disclose statistics for both categories based on a single incident.   We mention this rule here because this concept is specified in the VAWA regulations, not in the Clery Handbook.

What this means for you

Disclosing crime statistics can be complicated, especially when multiple offenses occur in a single incident.  Prior to disclosing statistics in your ASR and to ED each year, be sure to review the hierarchy rule and other rules and guidelines so that your disclosures are accurate.  A significant portion of Penn State’s $2.4 million fine in 2016 was based on misreporting crime statistics, and the potential fine amounts per violation have increased since then.

Webinar & CCT

Please plan on joining us for a webinar covering Clery Act compliance on July 25, 2017, Noon – 1:00 p.m. CDT.  You may register now here.  In addition, if you would like more information about how the Husch Blackwell Clery Compliance Toolset uses automated technology to help institutions with their Clery compliance, please contact the authors of this blog post or visit this webpage: http://www.huschblackwell.com/content/cct.

*This is post #4 of an ongoing Clery Blog Series leading up to our July 25 webinar.  Additional posts on relevant Clery topics will be posted between now and then.  Prior posts in the series include the following:

Yes, Clery Fines Increase Again

ED Uses Multi-pronged Approach to Checking Your Clery Compliance

Clery’s “One-Mile Rule” – What is it? Why does it matter?