Amended in Senate May 27, 2014

Amended in Senate March 27, 2014

Senate Bill No. 967

Introduced by Senators De León and Jackson

(Principal coauthor: Assembly Member Lowenthal)

(Coauthors: Senators Beall, Cannella, Evans, Galgiani, Monning, Pavley, Torres, Wolk, and Yee)

(Coauthors: Assembly Members Ammiano, Fong, Gonzalez, Quirk-Silva, Skinner, Ting, and Williams)

February 10, 2014

An act to add Section 67386 to the Education Code, relating to student safety.

LEGISLATIVE COUNSEL’S DIGEST

SB 967, as amended, De León. Student safety: sexual assault.

Existing law requires the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.

This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary begin delete institutions that end delete begin insert institutions, in order to end insert receive begin delete public end delete begin insert state end insert funds for student financial begin delete assistance end delete begin insert assistance, end insert to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or begin delete less formal end delete begin insert collaborative end insert partnerships with on-campus and community-based organizations to refer begin delete victims end delete begin insert students end insert for assistance or make services available to begin delete victims. end delete begin insert students. end insert The bill would also require the governing boards to implement comprehensive prevention begin insert and outreach end insert programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 67386 is added to the Education Code,
to read:

67386.  

(a)  begin delete The end delete begin insert In order to receive state funds for student
financial assistance, the end insert governing board of each community
college district, the Trustees of the California State University, the
Regents of the University of California, and the governing boards
of independent postsecondary institutions begin delete that receive public funds
for student financial assistance end delete shall adopt a policy concerning
campus sexual violence, domestic violence, dating violence, and
stalking that includes all of the following:

(1) An affirmative consent standard in the determination of
whether consent was given by a complainant. “Affirmative
consent” is begin delete a freely and affirmatively communicated willingness
to participate in particular sexual activity or behavior, expressed
either by words or clear, unambiguous actions. end delete begin insert an affirmative,
unambiguous, and conscious decision by each participant to
engage in mutually agreed-upon sexual activity. Consent is
informed, freely given, and voluntary. end insert It is the responsibility of
the person begin delete who wants to engage in end delete begin insert initiating end insert the sexual activity to
ensure that he or she has the consent of the other person to engage
in the sexual activity. Lack of protest or resistance does not mean
consent, nor does silence mean consent. begin delete For that reason, relying
solely on nonverbal communication can lead to misunderstanding.
The existence of a dating relationship between the persons
involved, or the fact of a past sexual relationship, shall not provide
the basis for an assumption of consent. end delete Consent must be begin delete present end delete
begin insert ongoing end insert throughout begin insert a end insert sexual begin delete activity, and at any time, a participant
can communicate that he or she no longer consents to continuing
the sexual activity. If there is confusion as to whether a person has
consented or continues to consent to sexual activity, it is essential
that the participants stop the activity until the confusion can be
clearly resolved. end delete begin insert encounter and can be revoked at any time. end insert begin insert The
existence of a dating relationship between the persons involved,
or the fact of past sexual relations between them, should never by
itself be assumed to be an indicator of consent. end insert

begin delete

(2) A provision specifying that a claim by the accused that he
or she believed that the complainant consented to the sexual activity
shall not be considered

end delete

begin insert (2) end insert begin insert   end insert begin insert A policy that, in the evaluation of complaints in the
disciplinary process, it shall not be a valid excuse that the accused
believed that the complainant consented to the sexual activity end insert under
either of the following circumstances:

(A) The accused’s belief in consent arose from the self-induced
intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain that
the complainant was consenting.

(3) A preponderance of the evidence standard in the
determination of disciplinary action.

(4)  begin delete In end delete begin insert A policy that, in end insert the evaluation of complaints in the
disciplinary process, begin delete an individual under any of the following
conditions is unable to consent to the sexual activity: end delete begin insert it shall not
be a valid excuse that the accused believed that the complainant
consented to the sexual activity if the accused knew or reasonably
should have known that the complainant was unable to consent to
the sexual activity under any of the following circumstances: end insert

(A)  begin delete Asleep end delete begin insert The complainant was asleep end insert begin insert end insert or unconscious.

(B)  begin delete Incapacitated end delete begin insert The complainant was incapacitated end insert begin insert end insert due to
the influence of drugs, alcohol, or begin delete medication. end delete begin insert medication, so that
the complainant could not understand the fact, nature, or extent
of the sexual situation. end insert

(C)  begin delete Unable end delete begin insert The complainant was unable end insert begin insert end insert to communicate due
to a mental or physical condition.

(b)  begin delete The end delete begin insert In order to receive state funds for student financial
assistance, the end insert governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions begin delete that receive public funds for student
financial assistance end delete shall adopt detailed and victim-centered sexual
assault policies and protocols that comport with best practices and
current professional standards. At a minimum, the policies and
protocols shall cover all of the following:

(1) A policy statement on how the institution will protect the
confidentiality of individuals involved in the incident.

(2) Initial response by the institution’s personnel to a report of
sexual assault, including requirements specific to assisting the
victim, providing information in writing about the importance of
preserving evidence, and the identification and location of
witnesses.

(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development
of a victim interview protocol, and a comprehensive followup
victim interview.

(5) Contacting and interviewing the accused.

(6) Providing written notification to the victim about the
availability of, and contact information for, on- and off-campus
resources and services, and coordination with law enforcement,
as appropriate.

(7) Participation of victim advocates.

(8) Investigating allegations that alcohol or drugs were involved
in the begin delete incident. end delete begin insert incident, and providing amnesty from disciplinary
action if the victim violated the school’s end insert begin insert policy when the sexual
assault occurred. end insert

(9) The role of the institutional staff supervision.

begin insert

(10) A comprehensive, trauma-informed training program for
campus officials involved in investigating and adjudicating campus
sexual violence, domestic violence, dating violence, and stalking
cases.

end insert begin delete

(10)

end delete

begin insert (11) end insert  Procedures for anonymous reporting of sexual assault.

(c)  begin delete To the extent feasible, end delete begin insert In order to receive state funds for
student financial assistance, end insert the governing board of each
community college district, the Trustees of the California State
University, the Regents of the University of California, and the
governing boards of independent postsecondary institutions begin delete that
receive public funds for student financial assistance shall end delete begin insert shall, to
the extent feasible, end insert enter into memoranda of understanding,
agreements, or begin delete less formal end delete begin insert collaborative end insert partnerships with existing
on-campus and community-based organizations, including rape
crisis centers, to refer begin delete victims end delete begin insert students end insert for assistance or make
services available to begin delete victims, end delete begin insert students, end insert including counseling, health,
mental health, victim advocacy, begin insert student advocacy, end insert and legal
assistance.

(d)  begin delete The end delete begin insert In order to receive state funds for student financial
assistance, the end insert governing board of each community college district,
the Trustees of the California State University, the Regents of the
University of California, and the governing boards of independent
postsecondary institutions begin delete that receive public funds for student
financial assistance, end delete shall implement comprehensive prevention
begin insert and outreach end insert programs addressing sexual violence, domestic
violence, dating violence, and stalking. A comprehensive
prevention program shall include a range of prevention strategies,
including, but not limited to, women’s empowerment programming,
awareness raising campaigns, primary prevention, bystander
intervention, and risk reduction. begin insert Outreach programs shall be
provided to make students aware of the institution’s policy on
campus sexual violence, domestic violence, dating violence, and
stalking. At a minimum, an outreach program shall include a
process for contacting and informing the student body, campus
organizations, athletic programs, and student groups about the
institution’s overall sexual assault policy, the practical implications
of an affirmative consent standard, and the rights and
responsibilities of students under the policy. Outreach
programming shall be included as part of new student orientation. end insert

SEC. 2.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.