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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