BILL ANALYSIS Ó
SB 967
Page 1
SENATE THIRD READING
SB 967 (De León and Jackson)
As Amended August 4, 2014
Majority vote
SENATE VOTE :27-9
JUDICIARY 9-1 HIGHER EDUCATION 11-1
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|Ayes:|Wieckowski, Alejo, Chau, |Ayes:|Williams, Bloom, Fong, |
| |Dickinson, Garcia, | |Fox, |
| |Gorell, Maienschein, | |Jones-Sawyer, Levine, |
| |Muratsuchi, Stone | |Linder, Medina, |
| | | |Quirk-Silva, Weber, Wilk |
|-----+--------------------------+-----+--------------------------|
| | | | |
|Nays:|Wagner |Nays:|Olsen |
| | | | |
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APPROPRIATIONS 13-4
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|Ayes:|Gatto, Bocanegra, | | |
| |Bradford, | | |
| |Ian Calderon, Campos, | | |
| |Eggman, Gomez, Holden, | | |
| |Linder, Pan, Quirk, | | |
| |Ridley-Thomas, Weber | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bigelow, Donnelly, Jones, | | |
| |Wagner | | |
| | | | |
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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 United States
Code (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
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reasonably should have known that the complainant was
unable to consent to the sexual activity under any of the
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 protections for the privacy of individuals
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 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.
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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
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
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assistance or make services available to students, including
counseling, health, mental health, victim 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 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.
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.
2)Pursuant to state law, further requires: the governing board
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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.
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
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. The Cleary 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, the additional costs of this bill will depend on the
respective higher education segments' current practices and
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related current and pending federal requirements.
CSU [California State University] 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 the bill, go beyond federal
requirements, districts' implementation costs will be a state
reimbursable mandate. Such costs are unknown, but would likely
be significant statewide, and would involve both one-time and
ongoing costs. At just $10,000 to $20,000 per district for
initial implementation, statewide costs would be about $700,000
to $1.4 million (GF [General Fund], Prop 98).
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.
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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 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 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
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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
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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0004863