BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 967| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 967 Author: De León (D), et al. Amended: 5/27/14 Vote: 21 SENATE EDUCATION COMMITTEE : 6-0, 3/19/14 AYES: Liu, Block, Galgiani, Hancock, Hueso, Monning NO VOTE RECORDED: Wyland, Correa, Huff SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/23/14 AYES: De León, Hill, Lara, Padilla, Steinberg NOES: Walters, Gaines SUBJECT : University and college student safety: sexual assault SOURCE : Author DIGEST : This bill 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 boards of independent postsecondary institutions (IPIs), as specified, to adopt a policy concerning campus sexual violence, domestic violence, dating violence, and stalking that includes specified components and standards. ANALYSIS : 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 CONTINUED SB 967 Page 2 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 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. The White House announced on January 22, 2014, the establishment CONTINUED SB 967 Page 3 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. Existing state law: 1.Requires the governing board of each CCD, the CSU Trustees, the Board of Directors of the Hastings College of the Law, 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: A. The college policy regarding sexual assault on campus. B. Personnel on campus who should be notified, and procedures for notification, with the consent of the victim. C. Legal reporting requirements and procedures for fulfilling them. D. Services available to victims and personnel responsible for providing these services. E. A description of campus resources available to victims, as well as appropriate off-campus services. F. 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. G. Procedures for guaranteeing confidentiality and appropriately handling requests for information from the press, concerned students and parents. CONTINUED SB 967 Page 4 H. Each victim of sexual assault should receive information about the existence of at least the following options: (1) Criminal prosecutions. (2) Civil prosecutions. (3) The disciplinary process through the college. (4) The availability of mediation. (5) Alternative housing assignments. (6) Academic assistance alternatives. 1.Requires the governing board of each CCD and the Trustees of the CSU, and requests the Regents of the UC, 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.Requires each campus of the California Community Colleges and the CSU, and requests each campus of the UC, to post sexual violence prevention and education information on its campus Internet Web site. The information must include specific components including how to file a complaint, and the availability and contact information for resources for victims. 3.Requires each campus of the California Community Colleges and the CSU, and requests each campus of the UC, to develop policies to encourage students to report any campus crimes involving sexual violence. This bill: 1.Requires, in order to receive state funds for student financial assistance, the governing board of each CCD, the CSU Trustees, the UC Regents, and the governing boards of IPIs 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 provision specifying that a claim by the accused that he/she believed that the complaint consented to the sexual CONTINUED SB 967 Page 5 activity shall not be considered under either of the following circumstances: (1) The accused's belief in consent arose from the self-induced intoxication or recklessness of the accused. (2) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. A. A preponderance of the evidence standard in the determination of disciplinary action. B. 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: (1) Asleep or unconscious. (2) Incapacitated due to the influence of drugs, alcohol, or medication so that the complainant could not understand the fact, nature, extent of the sexual situation. (3) The complainant was unable to communicate due to a mental or physical condition. 1.Defines "affirmative consent" as an affirmative, unambiguous and conscious decision by each participant to engage in a mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. Requires consent to be ongoing throughout a sexual activity and authorizes a participant, at any time, to communicate that he/she no longer consents to continuing the sexual activity. 2.Provides that lack of protest or resistance does not mean consent, nor does silence. 3.States that it is the responsibility of the person who initiating the sexual activity to ensure that he/she has the consent of the other person to engage in the sexual activity. States that, if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is CONTINUED SB 967 Page 6 essential that the participants stop the activity until the confusion can be clearly resolved. 4.Requires, in order to receive state funds for student financial assistance, the governing board of each CCD, the CSU Trustees, the UC Regents, and the governing boards of the IPIs to adopt detailed and victim-centered sexual assault policies and protocols that comport with best practices and current professional standards. 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 individuals involved in the incident. B. Initial response by the institution's personnel to a report of sexual assault, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, 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. 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. G. Participation of victim advocates. H. Investigating allegations that alcohol or drugs were involved in the incident, and providing amnesty from disciplinary action if the victim violated the school's policy when the sexual assault occurred. I. The role of the institutional staff supervision. J. A comprehensive, trauma informed training program for CONTINUED SB 967 Page 7 campus officials involved in investigating and adjudicating campus sexual violence, domestic violence and dating violence, and stalking cases. AA. Procedures for anonymous reporting of sexual assault. 1.Requires, in order to receive state funds for student financial assistance, the governing board of each CCD, the CSU Trustees, the UC Regents, and the governing boards of IPIs to the extent feasible, to 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, student advocacy, and legal assistance). 2.Requires, in order to receive state funds for student financial assistance, the governing board of each CCD, the CSU Trustees, the UC Regents, and the governing boards of IPIs to implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A. A comprehensive prevention program shall 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. B. An outreach program shall be provided to make students aware of the institution's policy on campus sexual violence, domestic violence, dating violence, and stalking. Requires, at a minimum, the outreach program to include a process for contacting and informing specified entities 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. Stipulates that outreach programming be included as part of new student orientation. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes CONTINUED SB 967 Page 8 According to the Senate Appropriations Committee, 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. SUPPORT : (Verified 5/27/14) Superintendent of Public Instruction, Tom Torlakson California Coalition Against Sexual Assault California Communities United Institute California Partnership to End Domestic Violence California State University Student Association University of California, Davis University of California Student Association OPPOSITION : (Verified 5/27/14) National Coalition for Men Stop Abusive and Violent Relationships PQ:e 5/27/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED