Amended in Assembly June 18, 2014

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, begin insert and end insert Wolk begin delete , and Yee end delete )

(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 institutions, in order to receive state funds for student financial assistance, to adopt policies concerning begin delete campus sexual violence, end delete begin insert sexual assault, end insert 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 collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. The bill would also require the governing boards to implement comprehensive prevention and outreach 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) In order to receive state funds for student financial
assistance, 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 shall adopt a policy concerning begin delete campus end delete
sexual begin delete violence, end delete begin insert assault, end insert domestic violence, dating violence, and
begin delete stalking end delete begin delete that includes end delete begin insert stalking, as defined in end insert begin insert the federal Higher
Education Act of 1965 end insert begin insert (20 U.S.C. Sec. 1092(f) end insert begin insert ) involving a student,
both on and off campus. The policy shall include end insert all of the
following:

(1) An affirmative consent standard in the determination of
whether consent was given by begin delete a complainant. end delete begin insert both parties to sexual
activity. end insert “Affirmative consent” begin delete is an affirmative, unambiguous,
and conscious decision by each participant to engage in mutually
agreed-upon sexual activity. Consent is informed, freely given,
and voluntary. It is the responsibility of the person initiating the
sexual activity to ensure that he or she has the consent of the other
person to engage in the sexual activity. end delete begin insert means affirmative,
conscious, and voluntary agreement to engage in sexual activity.
It is the responsibility of each person involved in the sexual activity
to ensure that he or she has the affirmative consent of the other
or others to engage in the sexual activity. end insert Lack of protest or
resistance does not mean consent, nor does silence mean consent.
begin delete Consent end delete begin insert Affirmative consent end insert must be ongoing throughout a sexual begin delete encounter end delete begin insert activity end insert and can be revoked at any time. 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.

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

(A) The accused’s belief in begin insert affirmative end insert consent arose from the
begin delete self-induced end delete 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 begin delete that end delete
begin insert whether end insert the complainant begin delete was consenting. end delete begin insert affirmatively consented. end insert

begin delete

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

end delete begin insert

(3) A policy that the standard used in determining whether the
elements of the complaint against the accused have been
demonstrated is the preponderance of the evidence.

end insert

(4) 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 begin insert affirmatively end insert 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:

(A) The complainant was asleep or unconscious.

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

(C) The complainant was unable to communicate due to a mental
or physical condition.

(b) In order to receive state funds for student financial assistance,
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 shall adopt detailed and victim-centered
begin delete sexual assault end delete policies and protocols begin insert regarding sexual assault,
domestic violence, dating violence, and stalking involving a student end insert
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 begin delete protect the end delete
begin insert provide appropriate end insert confidentiality begin delete of end delete begin insert for end insert individuals involved in
begin delete the end delete begin insert an end insert incident.

(2) Initial response by the institution’s personnel to a report of
begin delete sexual assault, end delete begin insert an incident, end insert 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 begin delete interview. end delete begin insert interview, as appropriate. end insert

(5) Contacting and interviewing the accused.

begin insert

(6) Seeking the identification and location of witnesses.

end insert begin delete

(6)

end delete

begin insert (7) end insert  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.

begin delete

(7)

end delete

begin insert (8) end insert  Participation of victim begin delete advocates. end delete begin insert advocates and other
supporting people. end insert

begin delete

(8)

end delete

begin insert (9) end insert  Investigating allegations that alcohol or drugs were involved
in the begin delete incident, and providing amnesty from disciplinary action if
the victim violated the school’s policy when the sexual assault
occurred. end delete begin insert incident. end insert

begin insert

(10) Providing that those who participate in the investigation
of sexual assault, domestic violence, dating violence, and stalking,
either as a complainant or a third-party witness, will not be subject
to disciplinary sanctions for violations of the institution’s student
conduct policy at or near the time of the incident if the violations
did not place the health or safety of any other person at risk.

end insert begin delete

(9)

end delete

begin insert (11) end insert  The role of the institutional staff supervision.

begin delete

(10)

end delete

begin insert (12) end insert  A comprehensive, trauma-informed training program for
campus officials involved in investigating and adjudicating begin delete campus
sexual violence, end delete begin insert sexual assault, end insert domestic violence, dating violence,
and stalking cases.

begin delete

(11)

end delete

begin insert (13) end insert  Procedures for begin delete anonymous end delete begin insert confidential end insert reporting begin delete of sexual
assault. end delete begin insert by victims and third parties. end insert

(c) In order to receive state funds for student financial assistance,
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 shall, to the extent feasible, enter into
memoranda of understanding, agreements, or collaborative
partnerships with existing on-campus and community-based
organizations, including rape crisis centers, to refer students for
assistance or make services available to students, including
counseling, health, mental health, victim advocacy, student
advocacy, and legal assistance.

(d) In order to receive state funds for student financial assistance,
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 shall implement comprehensive
prevention and outreach 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, begin delete women’s end delete empowerment programming,
awareness raising campaigns, primary prevention, bystander
intervention, and risk reduction. Outreach programs shall be
provided to make students aware of the institution’s policy on
begin delete campus sexual violence, end delete begin insert sexual assault, end insert 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.

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.