BILL ANALYSIS Ó
SB 967
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Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Das Williams, Chair
SB 967 (De León) - As Amended: June 18, 2014
SENATE VOTE : 27-9
SUBJECT : Student safety: sexual assault.
SUMMARY : Requires California postsecondary educational
segments to adopt policies regarding sexual assault.
Specifically, this bill :
1)Provides that, in order to receive state funds for student
financial assistance, 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 institutions
must to all of the following:
a) Adopt a policy concerning sexual assault, domestic
violence, dating violence, and stalking, as defined in the
federal Higher Education Act, involving a student, both on
and off campus, that includes:
i) An affirmative consent standard in the determination
of whether consent was given by both parties to sexual
activity; defined to mean:
(1) Affirmative, conscious, and voluntary
agreement to engage in sexual activity;
(2) It is the responsibility of each person
involved in the sexual activity to ensure that he or
she has the affirmative consent of the other or others
to engage in the sexual activity;
(3) Lack of protest or resistance does not mean
consent, nor does silence mean consent;
(4) Affirmative consent must be ongoing throughout
a sexual activity and can be revoked at any time; and,
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(5) 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.
ii) 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:
(1) The accused's belief in affirmative consent
arose from the intoxication or recklessness of the
accused; or
(2) 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.
iv) 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 under the following
circumstances:
(1) The complainant was asleep or unconscious.
(2) 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.
(3) The complainant was unable to communicate due
to a mental or physical condition.
b) Adopt detailed and victim-centered policies and
protocols regarding sexual assault, domestic violence,
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dating violence, and stalking involving a student that
comport with best practices and current professional
standards, and at a minimum cover the following:
i) A policy statement on how the institution will
provide appropriate confidentiality for individuals
involved in an incident;
ii) 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;
iii) Response to stranger and non-stranger sexual
assault;
iv) The preliminary victim interview, including the
development of a victim interview protocol, and a
comprehensive follow-up victim interview;
v) Contacting and interviewing the accused;
vi) Seeking the identification and location of
witnesses;
vii) 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;
viii) Participation of victim advocates and other
supporting people;
ix) Investigating allegations that alcohol or drugs were
involved in the incident;
x) Providing that those who participate in the
investigation 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;
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xi) The role of the institutional staff supervision;
xii) A comprehensive, trauma-informed training program
for campus officials involved in investigating and
adjudicating cases; and,
xiii) Procedures for confidential reporting by victims and
third parties.
c) 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.
d) Implement comprehensive prevention and outreach programs
that 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, and, shall include a process for contacting and
informing the student body, campus 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)Requires CCC districts, the Trustees of CSU, the Board of
Directors of the Hastings College of the Law, and the Regents
of UC ("public segments") to adopt and implement procedures,
as specified, to ensure 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. (Education Code §67385.)
2)Requires the public segments, in collaboration with victim
advocacy organizations, to provide as part of campus
orientations, educational and preventive information about
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sexual violence; to post specified sexual violence prevention
and education information on its campus website; and to
develop policies to encourage students to report any campus
crimes involving sexual violence. (Ed Code §67385.7.)
3)The federal Title IX and the Jeanne Clery Disclosure of Campus
Security Policy and Campus Crime Statistics Act (Clery Act)
requires colleges and universities, as a condition of federal
student aid program participation, to (a) publish annual
campus security reports, maintain crime logs, provide timely
warnings of crimes that present a public safety risk, and
maintain ongoing crime statistics; and (b) establish certain
rights for victims of sexual assault, including notification
to victims of legal rights, availability of counselling,
safety options for victims, and offering prevention and
awareness programs. (20 U.S.C. §1681-1688; 20 U.S.C.
§1092(f).)
FISCAL EFFECT : 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.
COMMENTS : Double-referral . This bill was heard and approved by
the Assembly Judiciary Committee on June 17, 2014.
Purpose of this bill . According to the author, sexual violence
continues to be a significant problem on college campuses across
the country; recent cases raise serious questions about the
ability of colleges and universities to provide safe learning
environments, particularly for female students. The author
believes it is necessary to provide colleges and universities
with clearer guidance on how to prevent and respond to sexual
assault cases. According to the author, this bill will
strengthen protections for victims in California by requiring
campuses to implement comprehensive prevention programs and
victim-centered sexual assault policies and protocols.
Federal action . Title IX of the Education Amendments of 1972
prohibits discrimination on the basis of sex in federally funded
education programs and activities. All institutions receiving
financial assistance are required to comply with Title IX. On
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April 4, 2011, the Office of Civil Rights (OCR) in the United
States Department of Education issued a Dear Colleague Letter on
student-on-student sexual harassment and sexual violence (DCL).
The DCL provided guidance regarding an institution's
responsibility and clearly outlined an institution's
obligations, including all of the following:
1)Once a school knows or reasonably should know of possible
sexual violence, it must take immediate and appropriate action
to investigate or otherwise determine what occurred;
2)If sexual violence has occurred, a school must take prompt and
effective steps to end the sexual violence, prevent its
recurrence, and address its effects, whether or not the sexual
violence is the subject of a criminal investigation;
3)A school must take steps to protect the complainant as
necessary, including interim steps taken prior to the final
outcome of the investigation;
4)A school must provide a grievance procedure for students to
file complaints of sex discrimination, including complaints of
sexual violence. These procedures must include an equal
opportunity for both parties to present witnesses and other
evidence and the same appeal rights;
5)A school's grievance procedures must use the preponderance of
the evidence standard to resolve complaints of sex
discrimination; and,
6)A school must notify both parties of the outcome of the
complaint.
In April 2014, the President's Task Force to Protect Students
From Sexual Assault (Task Force) issued a report outlining
action steps and recommendations to "help schools live up to
their obligation to protect students from sexual violence." The
report recommended:
1)Urging institutions to conduct Campus Climate Surveys to
better identify the extent of sexual violence problems on
campus;
2)Establish prevention programs that, among other identified
strategies, engage men and empower men to step in when someone
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is in trouble;
3)Ensure campuses effectively respond to sexual assault
including establishing confidential places for support,
comprehensive misconduct policies, trauma-informed training
for school officials, establishing better disciplinary
systems, and establishing community partnerships; and
4)Increasing transparency and improving information to students
and survivors and providing better enforcement mechanisms to
ensure institutions are fulfilling their responsibilities.
On April 29, 2014, OCR issued "Questions and Answers on Title IX
and Sexual Violence" to provide additional guidance to
institutions regarding compliance with Title IX. The document,
among other clarifications, specifies that:
1)When an institution knows or reasonably should know of
possible sexual violence, it must take immediate and
appropriate steps to investigate. If an investigation reveals
a hostile environment, the school must eliminate the hostile
environment;
2)There are only limited cases in which a student's
confidentiality should be overridden in order for an
institution to meet its Title IX obligations. Regardless of
whether a student specifically asks for confidentiality,
institutions should only disclose information regarding the
incidents to individuals who are responsible for handling the
school's response.
3)Title IX investigations are not criminal investigations and
therefore the same procedural protections and legal standards
are not required; complainants do not need to be present for
hearings, but if the institution allows one party to be
present for the entire hearing, it must do so for all parties
involved;
4)Questioning during a hearing regarding the complainant's
sexual history should not be permitted and a school should
recognize that a current or previous consensual dating or
sexual relationship does not, in itself, imply consent;
5)Institutions are required to take steps to ensure equal access
to educational programs and activities and protect the
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complainant as necessary, including taking interim measures
before the final outcome of an investigations and providing
victims with information regarding available resources and
legal rights. Schools are expected to enter into an MOU with
a local victims center if the school does not offer campus
services;
6)Effective remedial action may include disciplinary action
against the perpetrator and providing counseling for the
perpetrator; remedies for the complainant should include all
services needed to remedy the hostile environment;
7)Both parties are required to be notified in writing about the
outcome and any appeal; the perpetrator should not be notified
of remedies for the complainant;
8)Institutions are required to provide training on Title IX and
sexual violence to employees so that they can appropriately
respond, and schools should have methods for verifying that
training is effective; and
9)Institutions are required to provide training to students so
that they understand their rights under Title IX; training
should cover what constitutes sexual violence, reporting
options and grievance procedures, consequences of violating
provisions, and protections against retaliation, among other
areas.
Many of the requirements of this bill are consistent with
existing federal requirements. Additionally, it appears that
CSU and UC are currently compliant with the provisions of this
bill. On February 25, 2014, the University of California
updated its policy on Sexual Harassment and Sexual Violence; the
policy is generally consistent with the requirements of this
bill, including containing an explicit requirement for an
affirmative consent. On June 3, 2014, the CSU Chancellor issued
comprehensive executive orders providing direction to campuses
regarding compliance with federal law and prohibiting
discrimination and harassment. The definition of consent in the
CSU policy also appears consistent with the provisions of this
bill. Committee staff was unable to ascertain the extent to
which policies at CCC and independent colleges and universities
are currently compliant with this bill.
Enforcement mechanism . Committee staff notes that there is no
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clear enforcement mechanism contained in this bill. The bill
provides that institutions must comply with the provisions of
this bill in order to receive state funds for financial
assistance; however, the bill does not authorize any specific
government entity to take action if an institution is found
noncompliant. In talking with Legislative Counsel, Committee
staff understands that the provisions of this bill do not cover
financial aid to students through the Student Aid Commission
(which provides funds to students), but instead to funding
provided directly from the state to an institution (campus base
allocations that result in student aid). If this interpretation
is correct, it is unclear how the state would enforce this
requirement against independent institutions (non-public).
Committee staff understands that the author's office believes
that enforcement would be possible through subsequent audits
requested by the Legislature and subsequent actions of the
Legislature upon findings of noncompliance. To the degree that
these requirements align with federal requirements, federal
enforcement mechanisms (Title IV eligibility) may ensure
institutional compliance.
Related legislation . AB 1433 (Gatto), pending in the Senate,
would require postsecondary educational institutions to
establish specified policies governing the reporting of
specified crimes to law enforcement. AB 1549 (Rendon), pending
in the Senate, would require California postsecondary
educational institutions to post sexual harassment policies on
the institution's official Internet Web site.
REGISTERED SUPPORT / OPPOSITION :
Support
Associated Students of the University of California, Davis
California Communities United Institute
California Coalition Against Sexual Assault
California Department of Education
California State Student Association
California Police Chiefs Association
California Partnership to End Domestic Violence
California State Student Association
California Superintendent of Public Instruction
National Association of Social Workers - California Chapter
UAW Local 5810
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Opposition
National Coalition for Men
Analysis Prepared by : Laura Metune / HIGHER ED. / (916)
319-3960