BILL ANALYSIS Ó
AB 636
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Date of Hearing: May 5, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
636 (Medina) - As Amended April 29, 2015
SUMMARY: Provides specific circumstances under which a
post-secondary institution must release an alleged assailant's
name to local law enforcement. Specifically, this bill:
1)Requires a post-secondary institution to disclose the identity
of an alleged assailant to local law enforcement if the
institution determines that he or she represents a serious and
ongoing threat to the safety of persons or the institution,
and that the immediate assistance of law enforcement is
necessary to contact or to detain him or her.
2)Requires the institution to notify the victim of that
disclosure.
EXISTING FEDERAL LAW: Requires, under Title IX and the Jeanne
Clery Disclosure of Campus Security Policy and Campus Crime
Statistics Act (Clery Act), 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
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counselling, safety options for victims, and offering prevention
and awareness programs. (20 U.S.C. §1681-1688; 20 U.S.C.
§1092(f).)
EXISTING STATE LAW:
1)States that 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 postsecondary
institutions receiving public funds for student financial
assistance shall require the appropriate officials at each
campus within their respective jurisdictions to compile
records of all occurrences reported to campus police, campus
security personnel, or campus safety authorities of, and
arrests for, crimes that are committed on campus and that
involve violence, hate violence, theft, destruction of
property, illegal drugs, or alcohol intoxication. (Ed. Code, §
67380, subd. (a)(1)(A).)
2)Requires that the information concerning the crimes compiled
be available within two business days following the request of
any student or employee of, or applicant for admission to, any
campus within their respective jurisdictions, or to the media,
unless the information is the type of information exempt from
disclosure, as specified. (Ed. Code, § 67380, subd.
(a)(3)(A).)
3)Requires any report made by a victim or an employee regarding
specified violent crimes, sexual assault, or a hate crime
which is received by a campus security authority and has been
made by the victim for purposes of notifying the institution
or law enforcement, to be disclosed immediately, or as soon as
practicably possible, to the local law enforcement agency with
which the institution has a written agreement clarifying
operational responsibilities for investigations. (Ed. Code, §
67380, subd. (a)(6)(A).)
4)Stipulates that the report must not identify the victim
without his or her consent, and that if the victim does not
consent, the alleged assailant also shall not be identified.
(Ed. Code, § 67380, subd. (a)(6)(A).)
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5)Requires the governing board of each CCD, the CSU Trustees,
the UC Regents, and the governing boards of independent
postsecondary institutions receiving public funds for student
financial assistance to adopt rules requiring each of their
respective campuses to enter into written agreements with
local law enforcement agencies that clarify operational
responsibilities for investigations of specified violent
crimes occurring on each campus. (Ed. Code, § 67381, subd.
(b).)
6)Requires the governing board of each CCD, the CSU Trustees,
the Board of Directors of Hastings College of the Law, and the
UC Regents to each adopt, and implement at each of their
respective campuses 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. (Ed. Code, § 67385, subd. (a).)
7)States that 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, such as the person assigned
to transport the victim to the hospital, to refer the
victim to a counseling center, and to notify the police,
with the victim's concurrence;
e) A description of campus resources available to victims,
as well as appropriate off-campus services;
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f) Procedures for ongoing case management, including
procedures for keeping the victim informed of the status of
any student disciplinary proceedings in connection with the
sexual assault, and the results of any disciplinary action
or appeal, 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; and,
h) Each victim of sexual assault should receive information
about the existence of at least the following options:
criminal prosecutions, civil prosecutions, the disciplinary
process through the college, the availability of mediation,
alternative housing assignments, and academic assistance
alternatives. (Ed. Code, § 67385, subd. (b).)
8)Requires public postsecondary educational institution campuses
to develop policies to encourage students to report any campus
crimes involving sexual violence to the appropriate campus
authorities. (Ed. Code, § 67385.7, subd. (c).)
9)Urges campuses to adopt policies to eliminate barriers for
victims who come forward to report sexual assaults, and to
advise students regarding these policies. These policies may
include, but are not necessarily limited to, exempting the
victim from campus sanctions for being in violation of any
campus policies, including alcohol or substance abuse policies
or other policies of the campus, at the time of the incident.
(Ed. Code, § 67385.7, subd. (d).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "This bill
strikes the appropriate balance to support victims and to
protect the larger campus community."
2)Campus-Based Requirements and Remedies Required Under Federal
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Law: Under Title IX of the Higher Education Amendments of
1972 and the Jeanne Clery Disclosure of Campus Security Policy
and Campus Crime Statistics Act, post-secondary educational
institutions receiving federal financial aid are required to
disclose information about crimes on and around campuses
(Clery Act), as well as establish certain rights for victims
of sexual assault (Title IX). Title IX prohibits sex-based
discrimination in education. If an institution knows, or
reasonably should know, about discrimination, harassment, or
violence that is creating a "hostile environment" for any
student, it must act to eliminate it, remedy the harm caused,
and prevent its recurrence. The rights provided under Title
IX include notification to victims of the right to file a
complaint, 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.
The United States Department of Education Office for Civil
Rights (OCR) is responsible for enforcing campus compliance
with Title IX requirements. In the past several years, OCR
has issued strengthened guidance to colleges outlining
campuses responsibilities and obligations to promptly
investigate and respond to sexual violence. In May 2014, OCR
publically identified campuses under investigation for failing
to comply with the federal requirements. The initial list of
campuses under investigation by OCR contained 55 institutions;
by January 2015 the list had grown to 94 institutions.
3)California Actions: In California, several highly publicized
events and investigations have contributed to legislative
attention and action on campus sexual assault. In April 2013,
UC Berkeley students voted "no confidence" in the campus
handling of sexual assault disciplinary actions.
Subsequently, students at UC Berkeley, and at several other
California campuses including Occidental, University of
Southern California, and UC Santa Barbara, filed complaints
with OCR.
In June 2014, the Bureau of State Audits released a report
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noting several deficiencies in the reporting and responding to
sexual assault allegations on college campuses, as well as
containing recommendations for improving training of faculty
and staff regarding sexual assault prevention and response.
Of particular significance, the report found that the
universities do not ensure that all faculty and staff are
sufficiently trained on responding to and reporting these
incidents to appropriate officials, and that higher education
institutions must do more to properly educate students on
sexual harassment and sexual violence.
( https://www.auditor.ca.gov/reports/summary/2013-124 .)
In response, in the prior legislative session, two measures
addressing sexual assault on college campuses were adopted.
SB 967 (De León and Jackson), Chapter 748, Statutes of 2014,
establishes a requirement for "affirmative consent" and other
victim-centered standards and policies; and, AB 1433 (Gatto),
Chapter 798, Statutes of 2014, requires campuses to
immediately report specified crimes to law enforcement.
4)Confidentiality Provisions: "For Title IX purposes, if a
student requests that his or her name not be revealed to the
alleged perpetrator or asks that the school not investigate or
seek action against the alleged perpetrator, the school should
inform the student that honoring the request may limit its
ability to respond fully to the incident, including pursuing
disciplinary action against the alleged perpetrator. The
school should also explain that Title IX includes protections
against retaliation, and that school officials will not only
take steps to prevent retaliation but also take strong
responsive action if it occurs. ?
"If the student still requests that his or her name not be
disclosed to the alleged perpetrator or that the school not
investigate or seek action against the alleged perpetrator,
the school will need to determine whether or not it can honor
such a request while still providing a safe and
nondiscriminatory environment for all students, including the
student who reported [the crime]." (See Questions and Answers
on Title IX and Sexual Violence, United States Department
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Office of Civil Rights
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-
ix.pdf .) Thus, federal law allows an institution to override
the confidentiality wishes of a victim in some instances. The
school may weigh the request for confidentiality against its
obligation to provide a safe and nondiscriminatory environment
for all students, including the reporting student.
In contrast, current California law gives the victim exclusive
control over whether the perpetrator's name is disclosed to
the law enforcement agency. It states that a report to law
enforcement must be made "without identifying the victim,
unless the victim consents to being identified ... If the
victim does not consent to being identified, the alleged
assailant shall not be identified in the information disclosed
to the local law enforcement agency." (Ed. Code, §
67380(a)(6)(A).) While the confidentiality provisions were
well-intentioned, the language prohibits a post-secondary
educational institution from sharing the name of an assailant
even under circumstances in which the institution believes
assistance from law enforcement is necessary to protect the
student body and the broader campus community.
Under the provisions of this bill, a postsecondary educational
institution must now disclose the identity of the alleged
perpetrator to local law enforcement if both of the following
conditions are met: (1) the institution determines that the
alleged assailant is a serious and ongoing threat to the
safety of campus community; and (2) the immediate assistance
of local law enforcement is needed to contact or apprehend the
alleged assailant.
As introduced, this bill authorized the institution to
disclose the alleged assailant's identity if the
aforementioned conditions were met; but did not require
disclosure. As recently amended, the institution is required
to disclose the identity of the alleged assailant in all cases
where those two conditions are met. While disclosure may be
beneficial in most cases, is it better to give the institution
discretion, rather than mandating it in every case? A
situation may arise where the immediate risk of harm to the
victim might weigh in favor of non-disclosure.
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5)Argument in Support: According to the Association of
Independent California Colleges and Universities, "Education
Code section 67383 states that a report to law enforcement
must be made without identifying the victim, unless the victim
consents to being identified. If the victim does not consent
to being identified, the alleged assailant cannot be
identified in the information shared with the local law
enforcement agency. While this provision is well intentioned,
it would prohibit a university from sharing the name of the
alleged assailant even under circumstances in which the
university believes assistance from law enforcement is
necessary to protect the student body and the broader campus
community.
"AB 636 appropriately affords colleges and universities
discretion with Part I violent crimes, sexual assaults or hate
crimes to report the assailant's identity to police in
situations where the university believes the assailant is an
ongoing threat and needs the assistance of law enforcement to
contact or detain the assailant. In these cases, police
intervention would be extremely important to help the
university assess and alleviate the public safety risks to the
campus community. Law enforcement can then make the decision
whether to contact and/or detain the alleged assailant.
"AB 636 continues to respect the wish for confidentiality by
victims, which is important to protect victims from being
further violated and encourage reporting of these offenses to
university officials, particularly in cases of sexual assault.
Under Title IX, universities have an affirmative obligation to
prevent student-on-student sexual harassment and sexual
violence. AB 636 assists colleges and universities in
fulfilling their obligation under Title IX to prevent sexual
violence and protect the broader campus community by allowing
the university to provide the necessary information to the
local police when assistance is needed."
6)Related Legislation: AB 913 (Santiago) requires that the
written jurisdictional agreements between postsecondary
educational institutions and local law enforcement which
designate the agency responsible for investigating specified
violent crimes to also make a designation with respect to the
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investigation of sexual assaults and hate crimes. AB 913 is
pending hearing in the Assembly Appropriations Committee.
7)Prior Legislation: AB 1433 (Gatto), Chapter 798, Statutes of
2014, requires the governing board of each public, private and
independent postsecondary educational institution, which
receives public funds for student financial assistance, to
adopt and implement written policies and procedures governing
the reporting of specified crimes to law enforcement agencies.
REGISTERED SUPPORT / OPPOSITION:
Support
Association for Los Angeles Deputy Sheriffs
Association of Independent California Colleges and Universities
California Association of Code Enforcement Officers
California College and University Police Chiefs
California District Attorneys Association
California Narcotic Officers Association
Los Angeles Police Protective League
Riverside Sheriffs Association
Opposition
None
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744