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 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 967 Author: De León (D), et al. Amended: 8/4/14 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 SENATE FLOOR : 27-9, 5/29/14 AYES: Beall, Block, Cannella, Corbett, Correa, De León, DeSaulnier, Evans, Galgiani, Hancock, Hernandez, Hill, Hueso, Jackson, Lara, Leno, Lieu, Liu, Mitchell, Monning, Padilla, Pavley, Roth, Steinberg, Torres, Wolk, Wyland NOES: Anderson, Berryhill, Gaines, Huff, Knight, Morrell, Nielsen, Vidak, Walters NO VOTE RECORDED: Calderon, Fuller, Wright, Yee ASSEMBLY FLOOR : 57-20, 8/25/14 - See last page for vote SUBJECT : University and college student safety: sexual assault SOURCE : Author DIGEST : This bill requires the governing board of each CONTINUED SB 967 Page 2 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. Assembly Amendments 1) provide a definition of stalking; 2) revise the affirmative consent standard; 3) require the policy and protocols developed by the insitutions provide appropriate protections for the privacy of individuals involved, including confidentiality, that it seek the identification and location of witnesses, and provide that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty; and 4) require outreach programming be included as part of every incoming student's orientation. 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 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 CONTINUED SB 967 Page 3 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 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 CONTINUED SB 967 Page 4 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. 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. CONTINUED SB 967 Page 5 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.Provides that 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 shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined, 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/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: CONTINUED SB 967 Page 6 (1) The accused's belief in affirmative consent arose from the 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 whether the complainant affirmatively consented. (3) 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. A. 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 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. 1.Provides that in order to receive state funds for student financial assistance, the governing board of each CCD, the Trustees of the CSU, the Regents of the UC, and the governing boards of IPIs shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking, as defined, 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 protections for the privacy of individuals CONTINUED SB 967 Page 7 involved in the incident, including confidentiality. 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 non-stranger 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. J. Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty. AA. The role of the institutional staff supervision. BB. A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating CONTINUED SB 967 Page 8 sexual assault, domestic violence, dating violence, and stalking cases. CC. Procedures for confidential reporting by victims and third parties. 1.Provides that in order to receive state funds for student financial assistance, the governing board of each CCD, the Trustees of the CSU, the Regents of the UC, and the governing boards of IPIs 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, and legal assistance. 2.Provides that in order to receive state funds for student financial assistance, the governing board of each CCD, the Trustees of the CSU, the Regents of the UC, and the governing boards of IPIs 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 for victim prevention, 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 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 each incoming student's orientation. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes According to the Assembly Appropriations Committee, the additional costs of this bill will depend on the respective CONTINUED SB 967 Page 9 higher education segments' current practices and related current and pending federal requirements. CSU indicates that they have updated their policies to generally mirror the requirements of this bill, and thus anticipate any additional compliance costs will be minor and absorbable. UC also believes its costs will be minor and absorbable. The California Community Colleges Chancellor's Office indicates that many districts likely do not currently implement all the requirements of this bill, specifically: a trauma-informed training program for campus officials involved in investigating these crimes; MOUs [Memorandums of Understanding] with organizations serving victims of these crimes; and comprehensive prevention and outreach programs. To the extent any of these, or other requirements in this bill, go beyond federal requirements, districts' implementation costs will be a state reimbursable mandate. Such costs are unknown, but will likely be significant statewide, and will involve both one-time and ongoing costs. At just $10,000 to $20,000 per district for initial implementation, statewide costs will be about $700,000 to $1.4 million (General Fund, Prop 98). SUPPORT : (Verified 8/26/14) California Coalition Against Sexual Assault California Communities United Institute California Partnership to End Domestic Violence California State University California State University Student Association Superintendent of Public Instruction, Tom Torlakson University of California University of California Student Association University of California, Davis OPPOSITION : (Verified 8/26/14) National Coalition for Men Stop Abusive and Violent Relationships ASSEMBLY FLOOR : 57-20, 8/25/14 CONTINUED SB 967 Page 10 AYES: Alejo, Ammiano, Bloom, Bocanegra, Bonilla, Bonta, Bradford, Buchanan, Ian Calderon, Campos, Chau, Chesbro, Cooley, Dababneh, Dickinson, Eggman, Fong, Fox, Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Hall, Roger Hernández, Holden, Jones-Sawyer, Levine, Linder, Lowenthal, Maienschein, Medina, Mullin, Muratsuchi, Nazarian, Nestande, Pan, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Weber, Wieckowski, Wilk, Williams, Yamada, Atkins NOES: Achadjian, Allen, Bigelow, Brown, Chávez, Conway, Dahle, Donnelly, Beth Gaines, Grove, Hagman, Harkey, Jones, Logue, Mansoor, Melendez, Olsen, Patterson, Wagner, Waldron NO VOTE RECORDED: Daly, John A. Pérez, Vacancy PQ:e 8/26/14 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED