BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 636        Hearing Date:    July 14, 2015    
          
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          |Author:    |Medina                                               |
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          |Version:   |April 29, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|LT                                                   |
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                 Subject:  Postsecondary Education:  Student Safety



          HISTORY

          Source:   Author

          Prior Legislation:AB 1433 (Gatto), Chapter 798, Statutes of 2014

          Support:  Rancho Santiago Community College District;  
                    Association                                       of  
                    Independent California Colleges and Universities;  
                    Association for Los Angeles Deputy Sheriffs;  
                    California Association of Code Enforcement Officers;  
                    California College and University Police Chiefs  
                    Association; California Community Colleges  
                    Chancellor's Office; California District Attorneys  
                    Association; California Narcotic Officers Association;  
                    Los Angeles Police Protective League; Riverside  
                    Sheriffs Association; Los Angeles County District  
                    Attorney's Office; North Orange County Community  
                    College District

          Opposition:University of California Student Association

          Assembly Floor Vote:                 79 - 0









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          PURPOSE

          The purpose of this bill is to provide specific circumstances  
          under which a postsecondary institution must release an alleged  
          assailant's name to local law enforcement.

          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  
          counselling, safety options for victims, and offering prevention  
          and awareness programs. (20 U.S.C. § 1681-1688; 20 U.S.C. § 1092  
          (f).)

          Existing law 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 (a)(1)(A).)

          Existing law 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 (a)(3)(A).)

          Existing law 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  








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          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 (b).)

          Existing law 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 (a).)

          Existing law states that the written procedures or protocols  
          must contain at least the following information: 

                 The college policy regarding sexual assault on campus;

                 Personnel on campus who should be notified, and the  
               procedures for notification, with the consent of the  
               victim;

                 Legal reporting requirements, and procedures for  
               fulfilling them;

                 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;

                 A description of campus resources available to victims,  
               as well as appropriate off-campus services;

                 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;









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                 Procedures for guaranteeing confidentiality and  
               appropriately handling requests for information from the  
               press, concerned students, and parents; and,

                 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 (b).)

          Existing law 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 (c).)

          Existing law urges campuses to adopt policies that 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 (d).)

          Existing law 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 (a)(6)(A).)

          Existing law 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 (a)(6)(A).)

          This bill requires a postsecondary institution to disclose the  
          identity of an alleged assailant to local law enforcement even  
          if the victim does not consent to being identified if the  
          institution determines that he or she represents a serious and  








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          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. 

          This bill requires the institution to immediately inform the  
          victim of that disclosure. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  








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          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for This Legislation

          The author states that "this bill strikes the appropriate  
          balance to support victims and to protect the larger campus  
          community."

          2.  Background:  Federal Law Requirements for PostSecondary  
          Educational Institutions

          Under Title IX of the Higher Education Amendments of 1972 and  
          the Jeanne Clery Disclosure of Campus Security Policy and Campus  
          Crime Statistics Act, postsecondary 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,  








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          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.  Confidentiality Provisions

          According to Questions and Answers on Title IX and Sexual  
          Violence:

               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]."








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               (See United States Department Office of Civil Rights  
               http://www2.ed.gov/about/offices/list/ocr/docs/qa-20140 
               4-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 postsecondary 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 would be required to 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 the 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 the institution to  
          disclose.  As amended, the institution is required to disclose  
          the identity of the alleged assailant in all cases where those  
          two conditions are met. Is it better to give the institution  
          discretion instead of mandating it in every case? While  
          disclosure may be beneficial in most cases, a situation may  
          arise where the immediate risk of harm to the victim might weigh  
          in favor of non-disclosure. 








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          4.  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 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  
          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. 

          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  








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               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.  Argument in Opposition

          According to the University of California Student Association  
          (UCSA):

               This bill opens the door for retaliation toward a  
               survivor in the event that an assailant becomes upset  
               that they were reported. While UCSA wants all sexual  
               violence to be reported, we continue to support a  








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               survivor's right to privacy and right to choose as a  
               primary right.

          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. 

          8.  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 investigation of sexual assaults  
          and hate crimes.  AB 913 is currently on the suspense file in  
          the Senate Appropriations Committee. 

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