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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