Clery Act criteria subjective for each case, experts say

The University’s decision not to alert students and staff after a hospital employee was attacked Sept. 20 has raised questions about Duke’s criteria for notifying campus personnel of criminal activity under the Clery Act.

Duke’s responsibility in reporting crime is outlined by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, or Clery Act, a federal statute that requires all U.S. colleges to report certain statistics and criminal activity to students and employees. The legislation is named after Jeanne Clery, a student at Lehigh University who was raped and murdered in 1986 by another Lehigh student. Clery’s parents argued that her death could have been avoided with more public crime reports. Michael Schoenfeld, vice president for public affairs and government relations, previously said that the hospital incident did not meet the Clery Act’s criteria.

The Clery Act states that colleges must “immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus...unless issuing a notification will compromise efforts to contain the emergency.”

The Handbook for Campus Safety and Security Reporting published by the U.S. Department of Education explains how colleges should classify Clery Act crimes and what types of incidents warrant notification—including cases of sexual assault and aggravated assault.

The alert notification itself depends on who reports the crime along with several other factors such as the geographic region and definition of a college’s campus. Alison Kiss, executive director of the Clery Center for Security On Campus, noted the need to protect members of the campus community without risking identifying the victim through notifications. She added that the decision to issue a warning relies partially on the discretion of law enforcement as well as the institution.

“Some factors that typically come into weighing this decision are: is there a current or on-going threat? Will issuance of a warning impede on an investigation? Will issuance of a warning risk identifying or placing the victim in harm or identifying this person?” Kiss said. “After these factors are weighed, if a decision is made not to issue the warning, this decision needs to be documented.”

Kiss said this documentation is often not made public.

The Clery Act only requires universities to issue warnings for incidents happening on campus, but whether or not certain locations qualify as on-campus is a “gray area,” wrote Rebecca Bach, associate professor of the practice and director of undergraduate studies in sociology, in an email. Schoenfeld confirmed via email that the medical center is considered on-campus for reporting purposes.

Even if Duke Hospital were to be considered off campus, Bach said, an alert for the Sept. 20 incident would not have been unprecedented.

“I would think that sending an alert for this instance would be consistent with the spirit of the Clery Act, if not the letter of the law,” Bach wrote. “Moreover, in the past, many schools have sent alerts for Clery crimes committed near campus in addition to those on campus. This is especially relevant when colleges are located in a large urban area and many students live off campus.”

Sophomore Emma Miles, who has done research on the Clery Act under Bach, said that when off-campus incidents have occurred geographically between Duke and the University of North Carolina at Chapel Hill, UNC sent out alerts while Duke did not.

“For private universities it’s a big deal to send out an alert, because no one wants to admit that we’re actually in danger,” Miles said.

Bach’s research has also found that a significant number of alerts being sent out on campuses nationwide are not Clery crimes but rather alerts for weather or traffic incidents.

Duke Chief of Police John Dailey noted that although DUPD receives reports of relevant incidents on campus, the responsibility for reporting certain crimes does not fall solely under one jurisdiction.

“While the police department generally receives reports of incidents on campus, numerous other individuals (such as some Student Affairs staff) must also report specific crimes they are aware of,” Dailey wrote in an email.

DukeALERT, the notification system through which students and staff receive information about criminal activity, has reported several other incidents recently. These include an armed robbery near Swift Avenue July 24, an investigation of a reported sexual assault on Science Drive Aug. 20 and another armed robbery on Central Campus Sept. 2.

Miles and Bach noted that although the Clery Act is supposed to represent a federal standard, in practice subjectivity is baked into the criteria for reporting crimes.

“Unfortunately, schools show a great deal of variation in how they comply with Clery,” Bach wrote.