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 SB 967 Page 2 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. SB 967 Page 3 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. SB 967 Page 4 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 SB 967 Page 5 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: SB 967 Page 6 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 SB 967 Page 7 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 SB 967 Page 8 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 SB 967 Page 9 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, SB 967 Page 10 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 SB 967 Page 11 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. SB 967 Page 12 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 SB 967 Page 13 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. SB 967 Page 14