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