BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-2014 Regular Session
BILL NO: SB 967
AUTHOR: De León
INTRODUCED: February 10, 2014
FISCAL COMM: Yes HEARING DATE: March 19, 2014
URGENCY: No CONSULTANT: Lynn Lorber
SUBJECT : University and college student safety: sexual
assault.
SUMMARY
This bill requires 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 board of independent postsecondary
institutions to adopt a policy concerning campus sexual
violence, domestic violence, dating violence and stalking
that includes specified components.
BACKGROUND
Federal laws and guidance
Federal statutes addressing sexual assault on or around
institutions of higher education include Title IX and the
Jeanne Clery Disclosure of Campus Security Policy and
Campus Crime Statistics Act (Clery Act).
The Clery Act requires public and private postsecondary
educational institutions that receive federal financial aid
to disclose information about crimes on and around campuses
as well as establish certain rights for victims of sexual
assault. Those rights include notification to victims of
the right to file criminal charges, available counseling
services, the results of disciplinary proceedings, and the
option for victims to change their academic schedule or
living arrangements.
The federal Campus Sexual Violence Elimination Act amended
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the Clery Act to, among other things, require postsecondary
institutions to offer prevention and awareness programs to
new students and employees regarding rape, domestic and
dating violence, sexual assault, and stalking. Programs
must include a definition of those offenses and consent
with reference to sexual offenses. Institutions are also
required to compile statistics of incidents of sexual
assault, domestic violence, dating violence and stalking.
This Act also requires the Annual Security Report to
contain additional information such as prevention programs,
procedures once incidents are reported, and possible
sanctions following an institutional disciplinary
procedure.
The United States Department of Education's Office for
Civil Rights issued a "Dear Colleague" letter on April 4,
2011, providing guidance on ensuring compliance with Title
IX specific to sexual harassment and sexual violence. This
guidance stated, among other things, that:
1) Institutions must use a preponderance of the evidence
standard (it is more likely than not that sexual
harassment or violence occurred) in order for the
grievance procedures to be consistent with Title IX
standards.
2) Institutions are not relieved of their duty under
Title IX to resolve complaints promptly and equitably
whether or not a criminal investigation is underway.
3) Institutions need to ensure their employees are
trained to know how to report harassment and how to
respond properly.
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-
201104.pdf
The White House announced on January 22, 2014, the
establishment of the Task Force to Protect Students from
Sexual Assault, directing the Office of the Vice President
and the White House Council on Women and Girls to lead an
interagency effort to address campus rape and sexual
assault, including coordinating federal enforcement efforts
and helping institutions meet their obligations under
federal law.
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http://www.whitehouse.gov/the-press-office/2014/01/22/memora
ndum-establishing-white-house-task-force-protect-students-se
xual-a
State law
Current law requires the governing board of each community
college district, the Trustees of the California State
University, the Board of Directors of the Hastings College
of the Law, and the Regents of the University of California
to each adopt, and implement at each campus or other
facilities, a written procedure or protocols to ensure, to
the fullest extent possible, that students, faculty and
staff who are victims of sexual assault committed on
grounds maintained by the institution or affiliated student
organizations, receive treatment and information. The
written procedures or protocols must contain at least the
following information:
1) The college policy regarding sexual assault on campus.
2) Personnel on campus who should be notified, and
procedures for notification, with the consent of the
victim.
3) Legal reporting requirements and procedures for
fulfilling them.
4) Services available to victims and personnel
responsible for providing these services.
5) A description of campus resources available to
victims, as well as appropriate off-campus services.
6) Procedures for ongoing case management, including
keeping the victim informed of the status of any
student disciplinary proceedings and helping the
victim deal with academic difficulties that may arise
because of the victimization and its impact.
7) Procedures for guaranteeing confidentiality and
appropriately handling requests for information from
the press, concerned students and parents.
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8) Each victim of sexual assault should receive
information about the existence of at least the
following options:
a) Criminal prosecutions.
b) Civil prosecutions.
c) The disciplinary process through the
college.
d) The availability of mediation.
e) Alternative housing assignments.
f) Academic assistance alternatives.
(Education Code § 67385)
Current law requires:
1) The governing board of each community college district
and the Trustees of the California State University,
and requests the Regents of the University of
California, in collaboration with campus- and
community-based victim advocacy organizations, to
provide as part of campus orientations, educational
and preventive information about sexual violence.
2) Each campus of the California Community Colleges and
the California State University, and requests each
campus of the University of California, to post sexual
violence prevention and education information on its
campus website. The information must include specific
components including how to file a complaint, and the
availability and contact information for resources for
victims.
3) Each campus of the California Community Colleges and
the California State University, and requests each
campus of the University of California, to develop
policies to encourage students to report any campus
crimes involving sexual violence. (EC § 67385.7)
ANALYSIS
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This bill requires 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 board of independent postsecondary
institutions to adopt a policy concerning campus sexual
violence, domestic violence, dating violence and stalking
that includes specified components. Specifically, this
bill:
1) Requires governing boards to adopt a policy concerning
campus sexual violence, domestic violence, dating
violence, and stalking that includes all of the
following:
a) An affirmative consent standard in
the determination of whether consent was given by
a complainant.
b) A prohibition on the use as a
defense (in the evaluation of complaints in the
disciplinary process) that the accused believed
that the complainant consented to the sexual
activity under either of the following
conditions:
i) The accused's belief
in consent arose from the self-induced
intoxication or recklessness of the accused.
ii) The accused did not take
reasonable steps, in the circumstances known
to the accused at the time, to ascertain
that the complainant was consenting.
c) A preponderance of the evidence
standard in the determination of disciplinary
action.
d) A determination (in the evaluation
of complaints in the disciplinary process) that
an individual under any of the following
conditions is unable to consent to the sexual
activity:
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i) Asleep or unconscious.
ii) Incapacitated due to the influence
of drugs, alcohol, or medication.
iii) Unable to communicate due to a
mental or physical condition.
2) Defines "affirmative consent" as a freely and
affirmatively communicated willingness to participate
in particular sexual activity or behavior, expresses
either by words or clear, unambiguous actions. This
bill requires consent to be present throughout sexual
activity and authorizes a
participant, at any time, to communicate that he or
she no longer consents to continuing the sexual
activity.
3) Provides that lack of protest or resistance does not
mean consent, nor does silence. This bill prohibits
the existence of a dating relationship
between the persons involved, or the fact of a past
sexual relationship, from providing the basis for an
assumption of consent.
4) States that it is the responsibility of the person who
wants to engage in the sexual activity to ensure that
he or she has the consent of the other person to
engage in the sexual activity. This bill also states
that, 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.
5) Requires governing boards to adopt detailed and
victim-centered sexual assault policies and protocols
that comport with best practices and current
professional standards. This bill requires the
policies and protocols to cover, at a minimum, all of
the following:
a) A policy statement on how the
institution will protect the confidentiality of
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victims.
b) Initial officer response to a
report of sexual assault, including requirements
specific to assisting the victim, evidence
collection, and the identification and location
of witnesses.
c) Response to stranger and
non-stranger sexual assault.
d) The preliminary victim interview,
including the development of a victim interview
protocol, and a comprehensive follow-up victim
interview.
e) Contacting and interviewing the
accused.
f) Medical forensic examinations and
coordination with the forensic examiner.
g) Participation of victim advocates.
h) Investigative considerations
regarding alcohol- and drug-facilitated sexual
assault, including requirements specific to
evidence collection and forensic examination of
victims.
i) The role of the institutional
staff supervision.
j) Procedures for anonymous reporting
of sexual assault.
6) Requires governing boards, to the extent feasible, to
enter into memoranda of understanding, agreements, or
similar partnerships with existing on-campus and
community-based organizations (including rape
crisis centers) to make services available to victims
(including counseling, health, mental health, victim
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advocacy, and legal assistance).
7) Requires governing boards to implement comprehensive
prevention programs addressing sexual violence,
domestic violence, dating violence, and stalking.
This bill requires a comprehensive prevention program
to 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.
STAFF COMMENTS
1) Application . This bill addresses policies and
protocols relative to disciplinary procedures
conducted by postsecondary educational institutions
but does not apply to law enforcement investigations,
including those by institutions' police departments.
2) How is this bill different from federal law ? This
bill provides additional specificity to some policies
and procedures currently required by federal law, such
as:
a) Providing a definition of consent as being
affirmative consent. The federal Campus Sexual
Violence Elimination Act requires institutions to
offer prevention and awareness programs to new
students and employees regarding rape, domestic
and dating violence, sexual assault, and
stalking. Programs must include a definition of
those offenses and consent with reference to
sexual offenses.
b) Requiring policies and protocols to be
victim-centered, specifying initial officer
response to include evidence collection, and the
identification and location of witnesses,
preliminary victim interview, contacting and
interviewing the accused, and medical forensic
examinations and coordination with the forensic
examiner.
c) Requiring a comprehensive prevention program
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to include women's empowerment programming,
awareness raising campaigns, primary prevention,
bystander intervention, and risk reduction.
d) Requiring governing boards, to the extent
feasible, to enter into memoranda of
understanding, agreements, or similar
partnerships with existing on-campus and
community-based organizations to make services
available to victims.
3) Draft federal regulations . Federal regulations
implementing the Campus Sexual Violence Elimination
Act are being drafted; the negotiated rulemaking
process will be completed on April 1, 2014, and the
regulations will subsequently be finalized. The draft
regulations currently define "consent" for the
purposes of determining whether a sex offense is
reportable, as the affirmative, unambiguous, and
voluntary agreement to engage in a specific sexual
activity during a sexual encounter. The draft
regulations provide that consent cannot be given by an
individual who:
a) Is asleep, or mentally or physically
incapacitated, either through the effect of drugs
or alcohol or for any other reason;
b) Is under duress, threat, coercion, or force;
or
c) Inferred under circumstances in which
consent is not clear, including but not limited
to:
i) The absence of "no" or "stop" or
ii) The existence of a prior or
current relationship or sexual activity.
4) Policy of California's public universities . The
University of California updated policies relative to
sexual harassment and violence effective February 25,
2014. These policies define consent as affirmative,
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require the victim to be provided with a written
explanation of rights and options, authorizes remedies
such as counseling and changes to academic schedule or
living arrangements, and a statement that any person
who is found to have engaged in sexual harassment or
violence is subject to disciplinary action including
dismissal. The policy also includes procedures for
training and education, a process for reporting
incidents, identification of on- and off-campus
resources for victims, and providing prompt and
effective response to reports of incidents.
http://policy.ucop.edu/doc/4000385/SHSV
The California State University is currently in the process
of updating policies to reflect the changes in federal
law as described in the Background section of this
analysis.
5) Preponderance of evidence . The United States
Department of Education's Office for Civil Rights
issued a "Dear Colleague" letter on
April 4, 2011, providing guidance on ensuring compliance
with Title IX
specific to sexual harassment and sexual violence.
This guidance reiterated that:
a) Institutions must use a preponderance of the
evidence standard (it is more likely than not
that sexual harassment or violence occurred)
in order for the grievance procedures to be
consistent with Title IX standards.
b) The "clear and convincing" standard (it is
highly probable or reasonably certain that the
sexual harassment or violence occurred) currently
used by some institutions is a higher standard of
proof. Grievance procedures that use this higher
standard are
inconsistent with the standard of proof
established for violations of the civil rights
laws, and are thus not equitable under Title IX.
6) Victim-centered policies and protocols . This bill
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requires governing boards to adopt detailed and
victim-centered sexual assault policies and protocols
that comport with best practices and current
professional standards, and requires, among other
things, the following to be included:
a) Initial officer response to a report of
sexual assault, including requirements specific
to assisting the victim, evidence collection, and
the identification and location of witnesses.
This bill addresses policies and protocols
specific to institution disciplinary procedures
for which there may or may not be a related
criminal investigation. Staff recommends an
amendment to strike reference to officer and
evidence collection, and instead clarify the
response is by institution personnel and
reference the existing requirement that
institutions provide to victims information on
the importance of preserving evidence.
b) Medical forensic examinations and
coordination with the forensic examiner. This
bill addresses policies and protocols specific to
institution disciplinary procedures for which
there may or may not be a related criminal
investigation. Staff recommends amendments to
instead (i) reference the existing requirement
that institutions provide to victims information
on the availability of and contact information
for on- and off-campus resources and services;
(ii) address coordination with law enforcement,
as appropriate.
c) Investigative considerations regarding
alcohol- and drug-facilitated sexual assault,
including requirements specific to evidence
collection and forensic examination of victims.
Staff recommends an amendment to clarify that
allegations of the involvement of alcohol or
drugs in the incident are to be investigated.
d) A policy statement on how the institution
will protect the confidentiality of victims.
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Staff recommends an amendment to require the
policy statement to include information about how
the institution will protect the confidentiality
of individuals involved, rather than just the
victim.
7) Memorandum of Understanding . This bill requires
governing boards, to the extent feasible, to enter
into memoranda of understanding, agreements, or
similar partnerships with existing on-campus and
community-based organizations (including rape crisis
centers) to make services available to victims
(including counseling, health, mental health, victim
advocacy, and legal assistance). Staff recommends
amendments to:
a) Broaden partnerships to include less-formal
relationships including a process of referral to
community-based organizations.
b) Link to the existing requirement that
institutions provide to the victims information
on the availability of and contact information
for on- and off-campus resources and services.
8) Argument in defense . This bill requires policies to
include a prohibition on the use as a defense (in the
evaluation of complaints in the disciplinary process)
that the accused believed that the complainant
consented to the sexual activity under either of the
following conditions:
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.
It is questionable if a policy can restrict a person
accused of committing an offense from claiming any
particular defense. Staff recommends an amendment to
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clarify that policies must prohibit the consideration
(in the evaluation of complaints in the disciplinary
process) of the conditions above as a credible
explanation. The exact terminology will be determined
in collaboration with Legislative Counsel.
9) Technical amendment . Staff recommends an amendment to
change a cross-reference regarding the definition of
"independent postsecondary institution" to ensure this
bill applies to any institution that receives public
funds for financial assistance, rather than only those
institutions employing peace officers or others who
are authorized to exercise the powers of arrest. On
page 2, lines 6-7, strike "paragraph (3) of
subdivision (i) of Section 67381" and insert
"subdivision (a) of Section 67380."
10) Related legislation . AB 1433 (Gatto) requires
governing boards of each public and private
postsecondary educational institution to adopt and
implement policies and procedures to ensure that any
report of a Part 1 violent crime, sexual assault, or
hate crime is immediately forwarded to the appropriate
law enforcement agency. AB 1433 is scheduled to be
heard by the Assembly Higher Education Committee on
March 18, 2014.
SB 991 (Jackson) creates a new category of "second degree
rape," which includes specified sexual activity that
occurs without affirmative and freely given consent.
SB 991 is scheduled to be heard by the Senate Public
Safety Committee on April 22, 2014.
SUPPORT
California Coalition Against Sexual Assault
California Communities United Institute
California Partnership to End Domestic Violence
Superintendent of Public Instruction
OPPOSITION
None on file.
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