BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 967 (de León) - Student Safety: Sexual Assault
Amended: March 27, 2014 Policy Vote: Education 6-0
Urgency: No Mandate: Yes
Hearing Date: April 7, 2014
Consultant: Jacqueline Wong-Hernandez
This bill meets the criteria for referral to the Suspense File.
Bill Summary: SB 967 requires the governing board of each
community college district (CCD), the Trustees of the California
State University (CSU), the Regents of the University of
California (UC), and the governing board of independent
postsecondary institutions in California to each adopt a policy
concerning campus sexual violence, domestic violence, dating
violence and stalking that includes specified components and
standards.
Fiscal Impact: This bill may result in significant additional
costs to each named entity, to the extent that its requirements
exceed the scope of an institution's current policies and
procedures. To the extent that many of the new requirements
mirror new federal regulations likely to be adopted in the near
future, those costs would still be incurred absent this bill.
Mandate: CCDs - Potentially substantial reimbursable
mandate on CCDs to comply with the policy and educational
requirements. See staff comments.
Background: 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.
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The federal Campus Sexual Violence Elimination (Campus SaVE) Act
amended 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. Campus SaVE also
requires the Annual Security Report to contain additional
information on prevention programs, procedures once incidents
are reported, and possible sanctions following an institutional
disciplinary procedure. Federal regulations implementing Campus
SaVE are currently in the adoption process.
Existing state law requires the governing board of each CCD, the
Trustees of the CSU, and the UC Regents 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
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academic difficulties that may arise because of the
victimization.
7) Procedures for guaranteeing confidentiality and
appropriately handling requests for information from the
press, concerned students and parents.
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; and, f) academic assistance alternatives.
(Education Code § 67385)
Existing state law further requires that the segments, in
collaboration with campus and community-based victim advocacy
organizations, provide as part of campus orientations,
educational and preventive information about sexual violence.
Each campus is required to post sexual violence prevention and
education information on its campus website, including how to
file a complaint, and the availability and contact information
for resources for victims. Each campus is also required to
develop policies to encourage students to report any campus
crimes involving sexual violence.
(EC § 67385.7)
Proposed Law: This bill requires each CCD governing board, the
CSU Trustees and the UC Regents, and any independent
postsecondary institution receiving public funds for student
financial aid, to adopt a policy concerning campus sexual
violence, domestic violence, dating violence, and stalking that
includes all of the following: 1) an "affirmative consent"
standard in the determination of whether consent was given by a
complainant, as specified; 2) a provision specifying that a
claim by the accused that he or she believed that the
complainant consented to the sexual activity shall not be
considered under specified circumstances; 3) a "preponderance of
the evidence" standard in the determination of disciplinary
action; and, 4) in the evaluation of complaints in the
disciplinary process, specified conditions under which an
individual is deemed unable to consent.
This bill further requires those entities to adopt detailed and
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victim-centered sexual assault policies and protocols which, at
a minimum, cover all of the following:
1) A policy statement on how the institution will protect
the confidentiality of individuals involved.
2) Initial response by the institution's personnel to a
report of sexual assault, as specified.
3) Response to stranger and non-stranger sexual assault.
4) The preliminary victim interview, including the
development of a victim interview protocol, and a
comprehensive follow-up victim interview.
5) Contacting and interviewing the accused.
6) Providing written notification to the victim about
resources and services, as specified, and coordination with
law enforcement, as appropriate.
7) Participation of victim advocates.
8) Investigating allegations that alcohol or drugs were
involved in the incident.
9) The role of the institutional staff supervision.
10) Procedures for anonymous reporting of sexual assault.
This bill requires those institutions to implement comprehensive
prevention programs addressing sexual violence, domestic
violence, dating violence, and stalking; and, to the extent
feasible, to enter into memoranda of understanding (MOUs) or
other partnerships with existing on-campus and community-based
organizations to refer victims for assistance or make services
available to victims.
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 currently in the Assembly Public
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Safety Committee.
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.
Staff Comments: The requirements of this bill necessitate that
all 72 CCD governing boards, the CSU Trustees and the UC
Regents, and any independent postsecondary institution receiving
public funds for student financial aid complete numerous
activities relative to establishing and implementing policies
and programs to address sexual assault incidents involving their
students.
While the requirements of this bill are more extensive than
those in existing state law, the degree to which they are more
extensive than the forthcoming federal Campus SaVE
implementation regulations is unclear. Those regulations are not
expected to be final until later this year, though draft
regulations substantially overlap with the requirements of this
bill. The higher education institutions affected by this bill
will have to comply with the Campus SaVE federal regulations,
whatever they ultimately are, in order to continue to receive
federal financial aid for their students; campuses also have to
comply with federal Title IX requirements. To the extent that
this bill goes beyond federal law and future regulations, and
beyond what individual campuses are currently doing, it will
likely result in significant costs to all affected institutions
to meet the new programmatic and policy requirements.
As an entity, CCDs are eligible to seek reimbursement for the
cost of state mandates imposed upon them. If a state law is
similar to a federal law, the Commission on State Mandates
generally deems only the parts of state law that go beyond the
federal requirements to be reimbursable. This bill, however, is
likely to result in a reimbursable state mandate on CCDs for all
requirements that go beyond existing state law (e.g. more
specific and extensive protocols, prevention programs, MOUs,
etc.). Unlike the Clery Act (and Campus SaVE amendments), which
makes federal financial aid eligibility contingent on adherence,
this bill simply mandates that the governing boards of each CCD
comply with the bill. While impractical, CCDs can technically
opt not to comply with the federal requirements, and choose to
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forego federal financial aid participation; they cannot opt out
of SB 967. Thus, regardless of the degree of overlap between
(current and future) federal requirements and state law, only
state law imposes an unavoidable mandate on CCDs meet the new
policy and programmatic requirements. All of the CCDs will
implement any needed changes and activities to meet the federal
requirements, and some already do meet them, but this bill would
allow all CCDs to seek state reimbursement for those activities
if they are also required by the state to comply, which will
likely cost the state millions of dollars annually.
The other institutions of higher education will incur differing
levels of cost, depending both on the degree to which their
policies and procedures already comply with the bill and the
degree to which they would have had to make the same changes to
comply with federal requirements.