BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 967
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          Date of Hearing:  June 17, 2014

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
               SB 967 (De León and Jackson) - As Amended: May 27, 2014

                              As Proposed to be Amended

           SENATE VOTE  :  27-9
           
          SUBJECT  :  STUDENT SAFETY: COLLEGES AND UNIVERSITIES
           
          KEY ISSUE  :  SHOULD CALIFORNIA COLLEGES AND UNIVERSITIES BE  
          REQUIRED TO ADOPT POLICIES AND PROTOCOLS REGARDING SEXUAL  
          ASSAULT AND OTHER SERIOUS OFFENSES IN ORDER TO BETTER PROTECT  
          STUDENTS?
                                          
                                      SYNOPSIS
          
          This measure seeks to improve the safety and fair treatment of  
          students at California colleges and universities.  It would  
          require that covered institutions adopt policies and procedures  
          regarding sexual assault and related offenses when a student is  
          involved as either the victim or the accused.  The authors and  
          supporters note that sexual violence continues to be a  
          significant problem on college campuses, and that recent cases  
          raise serious questions about the ability of these institutions  
          to provide safe learning environments for students, and  
          particularly female students.  They contend that the bill is  
          necessary to provide colleges and universities with clearer  
          guidance on how to prevent these crimes and to ensure that  
          survivors ultimately get justice and adequate services to  
          address their trauma.  Opponents claim the bill is unnecessary,  
          misdirected and vague, and that it will result in the unfair  
          treatment of men.

           SUMMARY  :  Specifies policies involving sexual assault, domestic  
          violence, dating violence, and stalking that covered higher  
          education institutions must adopt in order to be eligible for  
          student financial assistance.  Specifically,  this bill  :  

          1)Provides that in order to receive state funds for student  
            financial assistance, the governing board of each community  
            college district, the Trustees of the California State  
            University, the Regents of the University of California, and  








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            the governing boards of independent postsecondary institutions  
            shall adopt a policy concerning sexual assault, domestic  
            violence, dating violence, and stalking, as defined in Section  
            485(f) of the Higher Education Act of 1965 (20 U.S.C.  
            1092(f)), involving a student, both on and off campus.  This  
            policy shall include all of the following:

             a)   An affirmative consent standard in the determination of  
               whether consent was given by both parties to sexual  
               activity.  "Affirmative consent" means an affirmative,  
               conscious and voluntary agreement to engage in sexual  
               activity.  It is the responsibility of each person involved  
               in the sexual activity to ensure that he or she has the  
               affirmative consent of the others to engage in the sexual  
               activity.  Lack of protest or resistance does not mean  
               consent, nor does silence mean consent.  Affirmative  
               consent must be ongoing throughout the sexual activity and  
               can be revoked at any time.  The existence of a dating  
               relationship between the persons involved, or the fact of  
               past sexual relations between them, should never by itself  
               be assumed to be an indicator of consent.

             b)   A policy that, in the evaluation of complaints in any  
               disciplinary process, it shall not be a valid excuse to  
               alleged lack of affirmative consent that the accused  
               believed that the complainant consented to the sexual  
               activity under either of the following circumstances:

               i)     The accused's belief in affirmative consent arose  
                 from the 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 whether the complainant affirmatively  
                 consented.
               iii)   A policy that the standard used in determining  
                 whether the elements of the complaint against the accused  
                 have been demonstrated is the preponderance of the  
                 evidence.

             c)   A policy that, in the evaluation of complaints in the  
               disciplinary process, it shall not be a valid excuse that  
               the accused believed that the complainant affirmatively  
               consented to the sexual activity if the accused knew or  
               reasonably should have known that the complainant was  
               unable to consent to the sexual activity under any of the  








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               following circumstances:

               i)     The complainant was asleep or unconscious.
               ii)    The complainant was incapacitated due to the  
                 influence of drugs, alcohol, or medication, so that the  
                 complainant could not understand the fact, nature, or  
                 extent of the sexual activity.
               iii)   The complainant was unable to communicate due to a  
                 mental or physical condition.

          2)Provides that in order to receive state funds for student  
            financial assistance, 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 boards of independent postsecondary institutions  
            shall adopt detailed and victim-centered policies and  
            protocols regarding sexual assault, domestic violence, dating  
            violence, and stalking, as defined in Section 485(f) of the  
            Higher Education Act of 1965 (20 U.S.C. 1092(f)) involving a  
            student that comports with best practices and current  
            professional standards.  At a minimum, the policies and  
            protocols shall cover all of the following: 

             a)   A policy statement on how the institution will provide  
               appropriate privacy and confidentiality for individuals  
               involved in the incident.
             b)   Initial response by the institution's personnel to a  
               report of an incident, 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 nonstranger sexual assault.
             d)   The preliminary victim interview, including the  
               development of a victim interview protocol, and a  
               comprehensive follow-up victim interview, as appropriate.
             e)   Contacting and interviewing the accused. 
             f)   Seeking the identification and location of witnesses.
             g)   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.
             h)   Participation of victim advocates and other supporting  
               people.
             i)   Investigating allegations that alcohol or drugs were  
               involved in the incident. 








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             j)   Providing that those who participate in the  
               investigation of sexual assault, domestic violence, dating  
               violence and stalking, either as a complainant or a  
               third-party witness, will not be subject to disciplinary  
               sanctions for violations of the institution's student  
               conduct policy at or near the time of the incident, if the  
               violations did not place the health or safety of any other  
               person at risk.
             aa)  The role of the institutional staff supervision.
             bb)  A comprehensive, trauma-informed training program for  
               campus officials involved in investigating and adjudicating  
               sexual assault, domestic violence, dating violence, and  
               stalking cases.
             cc)  Procedures for confidential reporting by victims and  
               third parties.

          3)Provides that in order to receive state funds for student  
            financial assistance, 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 boards of independent postsecondary institutions  
            shall, to the extent feasible, 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.

          4)Provides that in order to receive state funds for student  
            financial assistance, 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 boards of independent postsecondary institutions  
            shall implement comprehensive prevention and outreach programs  
            addressing sexual violence, domestic violence, dating  
            violence, and stalking.  A comprehensive prevention program  
            shall include a range of prevention strategies, including, but  
            not limited to, empowerment programming, awareness raising  
            campaigns, primary prevention, bystander intervention, and  
            risk reduction.  Outreach programs shall be provided to make  
            students aware of the institution's policy on sexual assault,  
            domestic violence, dating violence, and stalking.  At a  
            minimum, an outreach program shall include a process for  
            contacting and informing the student body, campus  








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            organizations, athletic programs, and student groups 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.   
            Outreach programming shall be included as part of new student  
            orientation.

           EXISTING LAW  :  

          1)Provides pursuant to state law that 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 specified information.   
            (Education Code section 67385.)

          2)Pursuant to state law, further requires: 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; 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; and 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.  (Educ. Code section 67385.7.)

          3)Provides pursuant to Title IX and the Jeanne Clery Disclosure  
            of Campus Security Policy and Campus Crime Statistics Act  
            (Clery Act) that private postsecondary educational  
            institutions that receive federal financial aid to disclose  








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            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, and  
            requires 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.  (20 U.S.C. sections 1681-1688; 20 U.S.C. section  
            1092(f).)

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

           COMMENTS  :  According to the authors, this bill is needed to  
          address the continuing serious problem of sexual violence on  
          college campuses.  They state:

               Recent reports have made clear that many colleges  
               throughout the country fail to adequately address victims'  
               needs.  In several instances, colleges have mishandled  
               alleged sexual assaults - repeatedly failing to take  
               appropriate disciplinary action against perpetrators.

               In [Sen. De León's] district there have been a number of  
               serious problems with Occidental College, which is now  
               under investigation by the United States Department of  
               Education.  According to complaints by 37 students, faculty  
               and alumni, the school improperly reported and adjudicated  
               sexual assaults.  The situation at Occidental is just one  
               example of a nationwide problem.  The Obama Administration  
               is currently investigating 55 schools across the country.

               Although new federal requirements under the Campus SaVE  
               Act, communication from the U.S. Department of Education  
               (DOE) Office for Civil Rights, and documents released by  
               the U.S. Department of Justice (DOJ) have provided general  








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               guidance for colleges and universities on how to protect  
               and provide services and support for sexual assault  
               victims, there is much inconsistency in how intuitions  
               apply sexual violence prevention and adjudication  
               standards. 

               This uneven application of federal laws was most recently  
               highlighted in President Barack Obama's release of a  
               memorandum on January 22, 2014, establishing a White House  
               Task Force to Protect Students from Sexual Assault.  Citing  
               that compliance by institutions of higher education is  
               inconsistent and in too many cases inadequate, the  
               directive orders 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 the coordination of federal enforcement  
               efforts and helping colleges and universities meet their  
               legal obligations.  

               SB 967 would also address this issue and strengthen  
               protections for victims in California by requiring college  
               campuses to implement comprehensive prevention programs and  
               victim-centered sexual assault policies and protocols.   
               Institutions will be required to form partnerships with on  
               campus and community-based organizations to assist victims  
               with connecting to services.  Additionally this measure  
               will provide for more consistency across campuses by  
               requiring institutions to adopt universal standards for the  
               adjudication process, including the determination of  
               consent.

           This Measure Would Specify Additional Policies and Protocols  
          Higher Education Institutions Must Adopt In Order To Be Eligible  
          To Receive State Funds For Financial Aid.   This bill would  
          require the governing boards of each community college district,  
          the Trustees of the California State University, the Regents of  
          the University of California, and the governing boards of  
          independent postsecondary institutions that receive public funds  
          for student financial assistance to adopt policies concerning  
          sexual assault, domestic violence, dating violence, and stalking  
          that include certain elements, including an affirmative consent  
          standard in the determination of whether consent was given by a  
          complainant. 

          The bill would also require these governing boards to adopt  








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          certain sexual assault policies and protocols, as specified, and  
          would require the governing boards, to the extent feasible, to  
          enter into memoranda of understanding or other agreements or  
          less formal partnerships with on-campus and community-based  
          organizations to refer victims for assistance or make services  
          available to victims. 

          In addition, the bill would also require the governing boards to  
          implement comprehensive prevention programs addressing sexual  
          assault, domestic violence, dating violence, and stalking. 

           ARGUMENTS IN SUPPORT  :  The bill is supported by the California  
          Coalition Against Sexual Assault (CALCASA), which argues that  
          college students are more vulnerable to rape than any other age  
          group.  "It is essential that public, private, and community  
          colleges and universities develop victim-centered policies and  
          practices to address sexual assault on their campuses.  
          Additionally, campuses need to provide resources to student  
          survivors for counseling, health, mental health, advocacy and  
          legal assistance.  Colleges and universities should collaborate  
          the with the local rape crisis center that serves their region  
          in order to provide coordinated and consistent information to  
          students.  Comprehensive legislation to address campus sexual  
          assault is a means to have a positive impact and make college  
          campuses safer for all students."

          The California Police Chiefs Association likewise supports the  
          bill, stating "It is imperative that sexual violence, domestic  
          violence, dating violence and stalking be taken just as  
          seriously on a college or university campus as when that conduct  
          takes place in the rest of our communities.  Senate Bill 967  
          will provide needed focus and guidance in assuring that these  
          crimes are taken seriously."

           ARGUMENTS IN OPPOSITION  :  The National Coalition for Men writes  
          in opposition to the bill, prior to the proposed amendments,  
          arguing:

               NCFM applauds efforts to end all forms of violence,  
               including violence against the wrongly accused and against  
               protections for fair and equal treatment.

               The adoption of SE 967 will deny people at California  
               colleges and universities fundamental rights of equal  
               protection and due process when accused of sexual violence,  








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               domestic violence, dating violence and stalking.

               There are no provisions for holding false accusers  
               accountable because the legislation is "victim-centered" a  
               euphemism for anti-male.  Instead, SB 967 encourages false  
               accusations by not safeguarding against them.

               In essence SB 967 allows anonymous allegations, reduces  
               evidentiary standards to the lowest level of "preponderance  
               of evidence." does not allow the accused to question  
               his/her accuser, and prevents the accused from offering  
               his/her belief of what happened; all of which defeat honest  
               disciplinary and judicial systems.

               Provisions requiring schools to adopt policies based on  
               best practices are similarly flawed if those policies were  
               developed with little or no concern for constitutional  
               protections or the falsely accused, the latter compelling  
               the former.

               SB 967 primarily targets men.  Though it is well  
               established women commit sexual assault even against men,  
               roughly an equal amount of domestic violence against men as  
               men against women, a large share if not the majority of  
               dating violence, the majority of child abuse, and a high  
               rate intimate partner violence in same sex couples.

               Even so, SB 967 appears to be riding the artificial tsunami  
               of rape culture hysteria along with Washington D.C.  
               initiatives designed to pry open education system doors  
               through which questionable, if not fabricated rationale can  
               take root.

               SB 967 provisions are broadly vague, key components lack  
               specificity; it is heavy with constitutional issues,  
               inevitably subjecting the state to costly litigation.

               Crime rates including those for sexual assault and domestic  
               violence have continually declined for over a decade.   
               Billions of dollars are spent annually on thousands of  
               victim oriented programs.  Related definitions of crime  
               have expanded to include more offensive behaviors.  We're  
               doing something right. SB 967 is not necessary.










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          The California Right to Life Committee writes:

               This is not good public policy in that it attempts to  
               civilize sexual behavior in an unrealistic manner.  We have  
               been told that kids will be kids and abstinence is not  
               happening.  We have been told that adults can determine  
               their own lifestyles as they are adults. 

               SB 967 appears to acknowledge that these college young or  
                     older adults are not capable of adult decision making.  It  
               appears to acknowledge that college students at public and  
               private independent institutions have little restraint in  
               sexual matters.  It acknowledges the inability of college  
               students to listen and hear each others' wishes at such  
               vulnerable times for both males and females. 

               SB 967 addresses the situation of unrestrained sexual  
               activity among unmarried and married students.  It should  
               be addressing such behaviors in lower grades with the  
               development of respect for the individual person and not  
               promote the use of contraceptives and abortifacients to  
               take care of those oops moments. 

               CRLC, Inc. believes that this measure of closing the barn  
               door after the horses have galloped out should be reworked  
               to authorize more severe penalties for any criminal sexual  
               behavior.  Consider the statement of CBS2/KCAL9 legal  
               consultant Steve Meister: "I think it's a bad idea .... You  
               don't take a report of a major felony to a university  
               student affairs officer who's used to dealing with problems  
               arising from keg parties; you go to the cops."  He feels  
               the issue of consent and sexual assault allegations should  
               be left to law enforcement. 

          The bill is also opposed by the organization by Stop Abusive and  
          Violent Environments, which contends: 

               The bill's broad definitions would serve to dissipate  
               scarce resources and make it harder for victims to be  
               believed.  SB 967 would require students contemplating any  
               form of 'sexual activity' to express their prior consent  
               through 'clear, unambiguous actions.'  SB 967 also  
               encourages partners to reaffirm consent on a continuing  








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               basis throughout the sex act.  National columnist Cathy  
               Young reveals the notion of mandating verbal consent to sex  
               has been "widely ridiculed as political correctness gone  
               mad.  With the California bill, we now have a state  
               legislature effectively mandating how people-at least  
               college students-should behave during sex,' Young notes.  
               'Whatever happened to getting the government out of the  
               bedroom?'

               Civil rights expert KC Johnson believes SB 967 embodies a  
               clear "hostility to due process" by mandating the  
               "preponderance-of-evidence threshold in branding a student  
               a rapist."  By expanding the definition of sexual assault,  
               the number of persons charged with sexual offenses would be  
               likely to increase exponentially.  Columnist Hans Bader  
               asks, "How will classifying most consensual sex as rape  
               help rape victims?" 

               "The California bill would flood the system with students  
               falsely accused of sexual assault," notes SAVE spokesperson  
               Sheryle Mutter. "This would make investigators more  
               skeptical of persons claiming to be raped, and leave real  
               victims less likely to report the crime.  Who in their  
               right mind would want that?"
           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Association of University Women
          Associated Students of UC Davis
          California Coalition Against Sexual Assault
          California Communities United Institute
          California Partnership to End Domestic Violence
          California Police Chiefs Association
          California State Student Association
          National Association of Social Workers - CA chapter
          Planned Parenthood Affiliates of CA
          Tom Torlakson, Superintendent of Public Instruction
          UAW Local 5810
           
            Opposition 
           
          California Right to Life Committee, Inc.
          National Coalition for Men
          Stop Abusive and Violent Environments








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           Analysis Prepared by  :   Kevin G. Baker / JUD. / (916) 319-2334