II. The Legal Context of Campus Crime
The legal context of campus crime focuses on two branches of government: the judicial and the legislative. The judicial side involves court rulings that PSIs can be held civilly liable for victimizations occurring on campus, while the legislative side includes efforts by Congress and state-level legislatures to pass laws designed to address the problem of campus crime. Both judicial and legislative attention to campus crime is relatively recent and is continuing.
A. Postsecondary Institutional Liability
Turning first to liability issues relating to campus crime (Burling, 2003), courts have repeatedly ruled that PSIs may be liable for criminal victimization occurring on campus. This interpretation arises primarily through the law of torts, specifically negligence, although some courts have used contract law as the basis for their rulings (Burling, 2003). Under a negligence action, a victim can shift to the institution some, if not all, losses he or she incurred, but only when the plaintiff (victim) proves the following: (a) The university or college owed him or her a duty; (b) the university or college acted (or failed to act) in such a way as to breach that duty; (c) as a result of the breach, the plaintiff was injured; and (d) if the PSI had not acted (or failed to act) as it had, the plaintiff would not have been injured. Under contract law, the plaintiff/victim must prove the existence of either an expressed or an implied contract, the resulting breach of which resulted in his or her personal injury or property loss.
Generally, in negligence cases involving PSIs, the key issue for the court is to determine whether the institution had a duty to the victim and, if so, the basis of that duty. In making this determination, courts first have to establish that the relationship between the parties was such that from it, the PSI had a duty to the victim to prevent the victimization. To establish this, the courts have relied on three theories. First, some courts have argued that the relationship between the institution and victim, especially if a student, is intrinsically “special.” Other courts have argued the relationship between the victim and institution is comparable to that of landowner–business invitee, and thus specific duties arise on the part of the PSI. Finally, still other courts have argued the relationship between the PSI and victim is more protective than that of a landowner–business invitee, and instead is comparable to that of a landlord and tenant, which again gives rise to specific duties on the part of the PSI (Burling, 2003). Crucial here is that no one consensus theory has emerged nor has a national-level standard been created. Rather, courts in various jurisdictions have used one or more of these theories in their rulings.
Finally, some courts have not relied upon theories of negligence in establishing PSI liability, but have instead used breach of express or implied contract to hold them liable for campus crime–related victimizations. Courts using this theory have done so in cases where the PSI provided housing to students in dorms or university-owned apartments, and ruled the PSI may be liable for lax security under what is known as an “implied contract of habitability” that is included in the typical housing contract signed by the PSI and the student resident. In addition, because PSIs use advertising relating to housing as a way to attract prospective students, the courts have held that a PSI may, through its advertising, form either an express or implied contract with a prospective student to provide security measures to him or her in the dormitory, and if the measures are implemented incorrectly or are relaxed, the PSI may be held liable for damages under the theory of breach of contract.
B. Legislative Responses to Campus Crime
Beginning in the 1990s and extending into the present, Congress and nearly half of the states passed “campus crime” statutes. The first significant piece of federal legislation (Carter & Bath, 2007) was the Student Right-to-Know and Campus Security Act of 1990 (hereafter, “Security Act”), which for the first time mandated that all postsecondary institutions eligible to receive federal financial aid funds under Title IV of the Higher Education Act of 1965, annually report and make available to the public their campus crime statistics and security policies. Institutional noncompliance could result in civil fines of up to $25,000 per violation, and in extreme cases, loss of eligibility to receive federal financial aid funds.
The significance of this legislation was its reporting requirements (Carter & Bath, 2007). Prior to passage of the Security Act, the only source of data on campus crime was available through the Federal Bureau of Investigation’s (FBI) Uniform Crime Reports (UCR) program, which annually compiles and presents statistical analyses of crimes reported to law enforcement agencies at the municipal, county, and state levels of government, and is probably the best known and most widely used source of information on crime in the United States. The UCR published data on campus crime, but prior to passage of the Security Act, less than 5% of all PSIs in the United States provided their data to the FBI for inclusion in the UCR. Further, there was variability from year to year in not only the total number of schools participating in the UCR reporting program, but also in whether a specific school participated every year. Not uncommon was the situation where a school would participate 1 year, then drop out for 2 or 3 years, then return to the program (Sloan, Fisher, & Cullen, 1997). This kind of movement into and out of the UCR program made it difficult, if not impossible, to identify overall national-level trends in campus crime as well as trends at a particular campus.
With passage of the Security Act, Congress mandated that all PSIs make available to the public, on an annual basis, a compilation of crimes known to campus police/ security and to publicly report the school’s security policies, including whether the school had a campus police department with full arrest powers and the department’s jurisdiction. The Security Act was subsequently amended several times during the 1990s, until in 1998 it was renamed the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (hereafter, “Clery”) in remembrance of Jeanne Clery (Carter & Bath, 2007).
In its present form, Clery contains three key revisions to the original Security Act involving the reporting of campus crime data, dissemination of timely crime information to the campus community, and ensuring the protection of basic rights of both accuser and accused in sexual assault cases addressed using campus disciplinary mechanisms. As a result of these revisions, the security report now requires all PSIs, by October 1 of each year, to make publicly available a statistical compilation of serious violent and property crimes reported on their campuses, including hate crimes, by location of the incident, and violations involving drugs/alcohol/weapons that resulted either in an arrest or student disciplinary proceeding, as well as a description of the PSI’s security policies, including those relating to sexual assault and the power/authority/jurisdiction of campus police or security. The requirement of timely dissemination of information involves making crime logs available to the public that include the date, time, nature, general location, and known disposition of each reported offense, and— through warnings issued to the campus community— providing notice of serious incidents on campus that pose an ongoing threat to members of the community. Finally, PSIs are required to disclose specific policies in place to ensure basic rights for both accuser and accused in sexual assault cases handled via campus disciplinary proceedings. Clery also requires postsecondary institutions to publicly disclose where the public can find information on registered sex offenders attending classes at the school.
State legislatures have also passed their own Clery-style legislation (Sloan & Shoemaker, 2007). As of 2006, over 50% of the states had passed some type of “campus crime” legislation that involved either enabling statutes allowing colleges or universities in a particular state to create a fully functional campus law enforcement agency whose officers had full arrest powers and could use deadly force should the situation arise, or statutes that required PSIs to report their crime statistics to a designated state agency, such as the attorney general’s office, although there is a great deal of variation in the specific mandates of these statutes.
Proponents of Clery and similar state-type legislation argue that greater public awareness of campus crime will result in reduced levels of on-campus victimization, as people will take better precautions once they know the danger they face. Critics, however, argue that Clery and its state-level clones represent little more than symbolic efforts by Congress and the states to address campus crime because (a) the statutes’ reporting requirements are based only on incidents actually known to campus police/security, which victimization research shows accounts for only a small portion of all crime occurring on campus and as a result, seriously undercounts the true extent and nature of campus crime; (b) the statutes fail to include reporting requirements for the most common form of campus crime—thefts—and as a result, the reporting requirements overemphasize the reporting of violence while underemphasizing the reporting of property crimes like theft; and (c) sanctions for institutional noncompliance (civil fines of up to $25,000 per violation in the case of Clery) are minimal and have rarely been implemented, while none of the current state-level statutes contains any sanctions for noncompliance.
In summary, the legal context of campus crime involves efforts by both the judicial and legislative branches of government to address such crime. These efforts have involved determining that PSIs can be held liable for on-campus victimizations, particularly of students, under several theories of negligence or under contract law. Legislative efforts, particularly those of Congress, resulted in statutes mandating that all PSIs annually report their crime statistics and security policies, thus breaking the “wall of silence” that had surrounded campus crime for decades. While proponents of such legislation argue that these statutes will reduce on-campus victimization by educating members of the campus community about the extent and nature of crime on a particular campus, critics argue that because of flaws in the legislation, including omission of any reporting requirements for certain commonly occurring crimes like theft, a lack of significant sanctions for noncompliance, and the fact that the reporting requirements rely only on data compiled from crimes actually reported to campus authorities, legislative efforts are little more than symbolic attempts to address the problem.