Amended in Assembly August 4, 2014

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, and Wolk)

(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 sexual assault, 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 sexual
assault, domestic violence, dating violence, and stalking, as defined
in the federal Higher Education Act of 1965 (20 U.S.C. Sec.
1092(f)) involving a student, both on and off campus. The policy
shall include all of the following:

(1) An affirmative consent standard in the determination of
whether consent was given by both parties to sexual activity.
“Affirmative consent” 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. Lack of protest or resistance does not mean consent,
nor does silence mean consent. Affirmative consent must be
ongoing throughout a sexual activity 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 any
disciplinary process, it shall not be a valid excuse to alleged lack
of affirmative consent that the accused believed that the
complainant consented to the sexual activity under either of the
following circumstances:

(A) The accused’s belief in affirmative consent arose from the
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
whether the complainant affirmatively consented.

(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.

(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 affirmatively 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 activity.

(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
policies and protocols regarding sexual assault, domestic violence,
dating violence, and stalking involving a student 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 provide
appropriate begin delete confidentiality for individuals involved in an incident. end delete
begin insert protections for the privacy of individuals involved, including
confidentiality. end insert

(2) Initial response by the institution’s personnel to a report of
an incident, 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, as appropriate.

(5) Contacting and interviewing the accused.

(6) Seeking the identification and location of witnesses.

(7) 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.

(8) Participation of victim advocates and other supporting
people.

(9) Investigating allegations that alcohol or drugs were involved
in the incident.

(10) Providing that begin delete those end delete begin insert an individual end insert who begin delete participate end delete
begin insert participates as a complainant or witness end insert in begin delete the end delete begin insert an end insert investigation
of sexual assault, domestic violence, dating violence, begin delete and stalking,
either as a complainant or a third-party witness, end delete begin insert or stalking end insert will
not be subject to disciplinary sanctions for begin delete violations end delete begin insert a violation end insert
of the institution’s student conduct policy at or near the time of
the begin delete incident if the violations did not place end delete begin insert incident, unless the
institution determines that the violation was egregious, including,
but not limited to, an action that places end insert the health or safety of any
other person at begin delete risk. end delete begin insert risk or involves plagiarism, cheating, or
academic dishonesty. end insert

(11) The role of the institutional staff supervision.

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

(13) Procedures for confidential reporting by victims and third
parties.

(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, begin delete student
advocacy, end delete and legal assistance begin insert , and including resources for the
accused end insert .

(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, empowerment begin delete programming, end delete
begin insert programming for victim prevention, end insert 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 sexual assault, 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. begin delete Outreach end delete

begin insert (e) end insert begin insert   end insert begin insert Outreach end insert programming shall be included as part of begin delete new
student orientation. end delete begin insert every incoming student’s 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.