Catholic University Legal Issues Abroad 2014

Agenda Risks Common Risks Negligence Intentional Harms and Crimes Risk Prevention Best Practices Laws to Know Foreign Nationals Insurance/Trips to Dangerous Areas University Policies

Common Risks Transportation Single greatest threat to travel or safety overseas Conflict of laws and customs Ex: death penalty for drug convictions in certain countries Drugs and Alcohol Alcohol is an ingrained part of culture in certain countries Mental health/Psychological problems Inadequate Health or Safety Standards Foreign Hostility

Negligence One of the largest legal risks for Universities abroad Negligence can occur when there is a failure to use common sense, exercise good judgment, or act as a reasonably prudent person

No consistent standard has been applied regarding what duties are owed by institutions of higher education abroad BUT, recent court decisions have found that a “duty of care” for the University arises where the institution should reasonably foresee risk of harm materializing out of its actions or omissions Negligence Standard

Examples of Potential Negligence Where the University could reasonably foresee a risk of harm: Vendors/Independent Contractors Bus Companies Tour Guides Housing Poor Infrastructure In High Crime Areas Bringing Students to an Unsafe Situation Medical Clinic or Restaurant Area with Violence or Anti- American sentiments

What did you know? What should you have known? How much control did you have? Were best practices followed? In loco parentis as possible standard

Intentional Harms and Crimes Same harms and crimes that occur on campus For example: robbery, sexual harassment, sexual assault, assault, arrests (liquor/drug law violations), illegal weapons possessions New Crimes for Clery purposes: stalking, domestic violence, dating violence and an expansion of the definition of “hate crimes” See Clery Slide for reporting requirements

Risk Prevention Waivers! Insurance (See Insurance Slide) Check State Department for Advisories and Register ASIRT (Association of Safe International Road Travel) for Advice on Travel Routes and to give to Students Traveling Alone Due Diligence For Vendors, Independent Contractors, Housing, and Any Other University Recommended Activities

Risk Prevention Cont. Training for Emergency Situations Emergency Response Plan and Practice Emergency Information given to Students Student Onsite Orientations Make sure students understand that any independent travel or activities is at their own risk/expense Know Best Practices Follow University Policies and Procedures Always Contact CUAbroad with Any Questions Know the Students and Any Unique Issues

Standards for managing a crisis Develop and maintain extensive crisis management protocols Trained, experienced and tested team Local management plan in place for each site Train all staff, faculty & students on plan Monitor news and consular alerts for risks Respond immediately when a crisis occurs IES Abroad Best Practices

IES Abroad Best Practices Cont. Communicate swiftly, effectively and accurately with parents, students, and DPS Partner with global health and safety group. Conduct post crisis review Designate a trained spokesperson Build redundancy into plan Entire IES document online at: publications/index.cfm publications/index.cfm

Emergencies In the event of an emergency, after contacting (as needed) local authorities, fire, or medical personnel, contact the Department of Public Safety at If medical emergency, also contact Frontier MedEx

Laws to Know Title IX Prohibits Discrimination on Basis of Sex in Educational Programs and Activities Discrimination on the Basis of Sex can Include Sexual Harassment and Sexual Violence Program Directors should Report Complaints of Harassment to CUA EO Officer, Lisa Wood, at or Report Complaints of Assault to DPS at or

Laws to Know Title IX There has been a flurry of sub-regulatory guidance in this area. CUA has revised policies. Please read the sex offenses policy and procedures Note difference between confidentiality and privacy On a college campus, a high percentage of referrals under Title IX will involve alcohol Sex harassment v. sexual assault

Laws to Know Title IX – Sexual Harassment Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when either: Submission to such conduct is made either explicitly or implicitly a term or condition of employment, education, on-campus living environment, or participation in a University activity or program; or Submission to or rejection of such conduct is used or threatened to be used as the basis for decisions affecting employment, education, on-campus living environment, or participation in a University activity or program; or Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or educational performance or creating an intimidating, hostile, or offensive environment for employment, education, on-campus living, or participation in a University activity or program.

Laws to Know Title IX Sexual Assault is sexual intercourse or sexual contact with another person without consent. Sexual assault is a criminal offense. See policy for definition under D.C. law. Choice of law issues can be sorted out by DPS and OGC, but if what occurs meets definition under DC code, treat as sexual assault under policy.

Laws to Know Title IX Responsibility of Program Directors: A school is on notice of sexual discrimination, harassment or assault where: A “Responsible Employee” knew, or in the exercise of reasonable care should have known, about the sexual misconduct. All program directors are responsible employees under policy for reporting Response to report must be: Prompt and equitable Investigation and adjudication Interim measures Remedies and sanctions

Laws to Know Title IX Must understand difference between confidentiality v. privacy We can protect the privacy of all individuals involved in a reported sexual offense. Information related to a report of an offense, aside from information disclosed to persons in legally-protected roles as described below, will only be shared with individuals whose duties require access to such information. No other persons will receive any information related to the report or investigation absent a valid subpoena or court order. If a reported sexual offense discloses an immediate threat to the campus community, the University shall issue a timely notice of the incident in the interests of the health and safety of the campus community.

Laws to Know Title IX Confidentiality The reporter may speak with certain persons in legally-protected roles. Legally-protected roles where confidential assistance may be sought include: 1. Professional mental health counselors (including but not limited to those in the University Counseling Center; 2.Physicians and others licensed to practice medicine; 3. Clergy when the communication is made in their professional capacity of giving religious or spiritual advice, and 4.Appropriately licensed rape crisis/sexual assault counselors

Laws to Know Americans with Disabilities Act (ADA) The ADA, under certain circumstances, Prohibits Discrimination against Individuals with Disabilities Ideally, Students Identify the Need for Accommodations through Disability Support Services (DSS) Prior to Departure If Disability is Brought up while Abroad, or if there are any Questions, Refer to DSS at either or

Laws to Know Clery Act (Campus Security Act) Law that Mandates the Reporting and Disclosure of Certain Crimes that Take Place at Specific Locations (Including Overseas) What Crimes Must be Reported? Homicide Sex Offenses Robbery Aggravated Assault Burglary Arson Motor Vehicle Theft Alcohol, Drugs, and Weapons Domestic violence, stalking, and dating violence Hate crimes

Laws to Know Clery Act (Campus Security Act) Reporting includes arrests for liquor law violations, drug law violations, and illegal weapons possession. Clery also requires reporting referrals for campus disciplinary action for liquor law violation, drug law violations, and illegal weapons possession.

Where Must Crimes Occur to be Reported? When Abroad, All University Owned or Controlled Property Controlled Property: Means the University rents, leases, or has some other written agreement. Crimes must be included as long as the property is Used by the Program on a regular basis BUT only for the time period in use by the program. If the specific program does not own, control, or lease property abroad (the program is taught and housed by a third party) then there are no reporting requirements Clery Cont.

Program Directors are Campus Security Authorities for Clery Purposes Security Authorities must report crimes that occur abroad to Dept. of Public Safety Report to DPS: Clery Cont.

Laws to Know Family Educational Rights and Privacy Act (FERPA) Protects Student Education Records Student must consent for CUA to release education records to a third party, with certain exceptions Directory information (i.e. name, address, photo) may be released w/o permission of the student unless the student has placed a hold on release College officials with a legitimate educational interest in the record may have access to the record In a health or safety emergency, FERPA does not prevent release of necessary data

The U.S. government has a number of laws that deal with relations with foreign nationals If you have any questions or are unclear, please contact the Office of General Counsel for guidance (202) Payments to Foreign Nationals (See Non-Resident Alien Payments and Honoraria Policies) Gifts to Foreign National (FCPA - Contact OGC) Sharing Information with Foreign Nationals (Export Control – Contact OGC) For more export control resources, see Dealing with Foreign Nationals

The University has purchased comprehensive insurance for individuals going abroad Includes medical, accidental death, dismemberment, security/evacuation, and other protections In certain situations, there are exclusions to the insurance coverage For example, the security/evacuation provision of the insurance does not apply if an individual chooses to go to a country with certain State Dept. warnings Consult the Abroad Office or OGC with any questions University Insurance

University sponsored trips to high risk areas, as determined by the State Department, are generally not approved Exceptions are possible but require the approval by the proper University representative Students traveling independently are on their own While traveling independently, students are responsible for any injury, loss, and expenses Trips to Dangerous Areas

University Policies Apply Abroad Reasonable Accommodations (ADA) Contract Approval and Signatory Authority Global Education Student Records Sexual Offenses and Sexual Harassment Travel University Policies to Review

When in Doubt, Always Ask Questions and Report it to the University Solving Potential Issues is Much Easier than Fixing Mistakes Our office contact is or Feel Free to OGC Have a Great Trip! Reminders