BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 967


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          Date of Hearing:  April 21, 2015


                       ASSEMBLY COMMITTEE ON HIGHER EDUCATION


                                 Jose Medina, Chair


          AB 967  
          Williams - As Amended March 26, 2015


          SUBJECT:  Postsecondary education:  sexual assault cases


          


          SUMMARY:  Establishes minimum disciplinary standards and  
          reporting requirements for sexual assault complaints received by  
          California Community College districts (CCD), California State  
          University (CSU), the University of California (UC) and  
          independent postsecondary educational institutions.   
          Specifically, this bill:  





          1)Requires, in order to receive state funds for student  
            financial assistance, the governing board of a CCD, the  
            Trustees of the CSU, the Regents of the UC, and the governing  
            board of each independent postsecondary institution to adopt  
            and carry out a uniform process, applicable to each campus,  
            for disciplinary proceedings related to claims of sexual  
            assault.










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          2)Requires the policies to conform to the following:



             a)   The institution shall not carry out a different  
               disciplinary process on the same campus for a matter of  
               sexual violence, or alter the uniform process based on the  
               status or characteristics of a student who will be involved  
               in that disciplinary proceeding, including characteristics  
               such as a student's membership on an athletic team, a  
               student's academic major, or any other characteristic or  
               status of a student.



             b)   The institution shall develop and implement a minimum  
               standard of discipline of at least two years suspension, up  
               to expulsion, for students found responsible for: rape,  
               forced sodomy, forced oral copulation, rape by a foreign  
               object, sexual battery, threat of sexual assault, and any  
               other forms of sexual assault. 



             c)   Requires minimum standards to provide for specific forms  
               of discipline, to include expulsion, suspension, loss of  
               financial aid or scholarships, loss of activity privileges,  
               and removal from student housing.



          3)Requires, in order to receive state funds for student  
            financial assistance, the governing board of a CCD, the  
            Trustees of the CSU, the Regents of the UC, and the governing  
            board of each independent postsecondary institution to report  
            all of the following on an annual basis:










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             a)   The number of sexual assault cases that were  
               investigated by the institution;



             b)   The number of sexual assault cases that were referred  
               for a disciplinary proceeding at the institution;



             c)   The number of sexual assault cases that were referred to  
               local or state law enforcement;



             d)   The number of alleged perpetrators who were found  
               responsible at the disciplinary proceedings of the  
               institution;



             e)   The number of alleged perpetrators who were found not  
               responsible at the disciplinary proceedings of the  
               institution; 



             f)   A description of and the number of final sanctions  
               imposed by the institution for each offense perpetrated;  
               and,



             g)   The number of disciplinary proceedings at the  
               institution that closed without resolution.











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          4)Defines "sexual assault" to include, but not be limited to,  
            rape, forced sodomy, forced oral copulation, rape by a foreign  
            object, sexual battery, or a threat of sexual assault  
            involving a student, whether on or off campus.



          5)Requires the information to be reported in a manner that  
            provides appropriate protections for the privacy of those  
            involved, including, but not necessarily limited to,  
            protection of the confidentiality of the alleged victim and of  
            the alleged perpetrator.
          


          EXISTING LAW:  


          


          1)Requires the governing board of public, private, and  
            independent postsecondary educational institution that  
            receives public funds for student financial assistance to  
            compile records of crimes on campus, make crime records  
            available upon request, and to disclose a reported Part 1  
            violent crime, sexual assault, or hate crime, to the local law  
            enforcement agency where the campus is located.  (Education  
            Code Section 67380, 67383)

          2)Requires, under the Kristen Smart Campus Safety Act, UC  
            Regents, CSU Trustees, CCD governing boards, and independent  
            colleges that meet specified conditions to enter into specific  
            written agreements with local law enforcement agencies  
            regarding the coordination and responsibilities for  
            investigating Part 1 violent crimes which occur on campus.  
            (EDC Section 67381)

          3)Requires public postsecondary educational institutions to each  








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            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.  (EDC Section  
            67385.)

          4)Requires public postsecondary educational institutions, and  
            requests 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 and to develop policies to encourage students  
            to report any campus crimes involving sexual violence.  (EDC  
            Section 67385.7.)

          5)Requires public and independent postsecondary institutions, as  
            a condition of receipt of student aid funds, to adopt a policy  
            concerning campus sexual violence, domestic violence, dating  
            violence, and stalking that includes specified components and  
            standards, including an "affirmative consent" standard for  
            determining whether consent was given by both parties to  
            sexual activity.  Establishes a preponderance of evidence as  
            the evidentiary standard for determining if sexual  
            violence/harassment occurred. (EDC Section 67386)



          6)Requires, under the federal Jeanne Clery Disclosure of Campus  
            Security Policy and Campus Crime Statistics Act (Clery Act),  
            public and private postsecondary educational institutions that  
            participate in the federal financial aid program to disclose  
            information about crimes on and around campuses. (20 U.S.C.  
            section 1092(f))

          7)Requires, under federal Title IX (20 U.S.C. sections  
            1681-1688), public and private postsecondary educational  
            institutions that participate in the federal financial aid  








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            program to establish certain rights for victims of sexual  
            assault, including:

             a)   Institutions are responsible for immediately and  
               effectively responding to any sexual harassment or violence  
               that creates a hostile environment.  The institution must  
               eliminate the harassment or violence, prevent its  
               recurrence, and address its effects.  Regardless of whether  
               a student chooses to file a complaint with the institution,  
               the institution is responsible for investigating and taking  
               appropriate steps to resolve the situation.  A criminal  
               investigation does not relieve the school of its duty under  
               Title IX.

             b)   Institutions must have and distribute policies against  
               sex discrimination; the policy must state that inquiries  
               concerning Title IX may be referred to the institution's  
               Title IX coordinator or to the Office of Civil Rights  
               (OCR).

             c)   Institutions must have a designated Title IX coordinator  
               and notify students and employees of the name and contact  
               information for the Title IX coordinator.  The coordinator  
               is responsible for overseeing all complaints of sex  
               discrimination, which include harassment and assault, and  
               identifying and addressing patterns or systemic problems.

             d)   Institutions are required to have and make known the  
               procedures for students to file complaints of sex  
               discrimination, and procedures must provide for prompt and  
               equitable resolution of sex discrimination complaints.  All  
               complainants must have the right to present his or her  
               case, including the right to a full investigation, to  
               present witnesses and evidence, and to an appeal process  
               (available to both parties).

             e)   Establishes a preponderance of the evidence standard  
               (more likely than not) when determining if sexual  
               harassment or violence occurred.








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             f)   Provides complainants the right to be notified of the  
               outcome of the complaint, including the sanction.   
               Complainants cannot be required to abide by a nondisclosure  
               agreement.

             g)   Authorizes grievance procedures to include voluntary  
               informal methods (such as mediation) for resolving some  
               types of sexual harassment complaints.  However, mediation  
               is not appropriate in cases involving allegations of sexual  
               assault.    
          


          FISCAL EFFECT:  Unknown


          


          COMMENTS:  Background.  College students who are victims of  
          sexual assault are entitled to the protections and services  
          provided to victims of the general population (law enforcement  
          investigations, rape crisis center services, district attorney  
          criminal prosecutions, etc.) and to the protections and services  
          required to be provided by colleges and universities under state  
          and federal laws (see: Existing Law).  In recent years, there  
          has been an increasing public awareness of sexual violence  
          occurring on and near college campuses.  State and federal  
          governments have responded through laws and regulations that  
          seek to strengthen partnerships between colleges and local law  
          enforcement agencies (criminal investigations) and to improve  
          campus handling of sexual assault complaints (Title IX  
          responsibilities).    













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          Committee oversight.  On June 30, 2014, the Assembly Higher  
          Education Committee held a joint oversight hearing to review  
          compliance with federal sexual harassment laws at California's  
          public universities.  There was overwhelming consensus that  
          campuses can and should do more to protect and respond to sexual  
          assault.  At that time, the author (and former-committee chair)  
          committed to monitor campus progress and, if necessary,  
          introduce follow-up legislation.  This past fall, the author  
          organized three roundtable discussions: in September at UC  
          Berkeley, in October at UC Santa Barbara, and in December at  
          UCLA.  Among the comments presented by roundtable participants  
          and the public was a strong sentiment that campuses were not  
          doing enough to ensure meaningful penalties for students found  
          in violation of sexual misconduct policies.  In addition, when  
          data regarding disciplinary outcomes was presented by the  
          institutions to the author and committee members, many members  
          noted that data showed very few sanctions being imposed on  
          students found in violation of sexual misconduct.  



          Purpose of this bill.  According to the author, "the state of  
          California has an obligation to provide a safe and secure  
          learning environment at our college and university campuses.   
          Students, families, and the general public need assurance that  
          colleges and universities take campus sexual assault seriously.   
          The Washington Post obtained data from approximately 100  
          institutions surveyed in 2012 and 2013; in regards to campus  
          sanctions in sexual assault cases they discovered that out of  
          478 sanctions for sexual assault, only 12% resulted in expulsion  
          and 28% resulted in suspensions."





          The author believes that in order to address rape culture on  
          college campuses, there needs to be meaningful sanctions that  
          truly serve as a deterrent.  This bill is intended to provide  








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          clear and consistent direction to colleges and universities on  
          imposing sanctions for sexual assault, and will require  
          reporting of adjudication outcome data to ensure compliance with  
          these standards.  


          


          Issues to consider.  





          1)Minimum sanctions.  This bill requires institutions to impose  
            minimum standards of discipline of at least two years  
            suspension, up to expulsion, for students found responsible  
            for any of the following: 



             a)   Rape 



             b)   Forced sodomy



             c)   Forced oral copulation



             d)   Rape by a foreign object



             e)   Sexual battery








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             f)   Threat of sexual assault, and 



             g)   Any other forms of sexual assault.



            In the past year, a handful of institutions, including Amherst  
            College, Duke University and Vassar College, have put more  
            emphasis on expulsion as a penalty.  Most institutional  
            policies stop short of making expulsion mandatory.  Duke's  
            policy refers to expulsion in cases of sexual misconduct as  
            the "preferred sanction." In 2014, Dartmouth College announced  
            a policy making expulsion the mandatory punishment for  
            students who commit certain kinds of sexual assault (rape).  





            The author and committee may wish to consider narrowing the  
            violations under which an assailant would face these minimum  
            disciplinary standards.  Specifically, the author and  
            committee may wish to consider removing "sexual battery,  
            threat of sexual assault, and any other form of sexual  
            assault" from this list.  Removing these violations from this  
            list would not preclude a campus from imposing a suspension or  
            expulsion, but would provide a campus with flexibility in  
            issuing discipline based on the circumstances of the  
            violation.  













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          2)Reporting requirements.  To ensure disciplinary reporting  
            requirements are consistent with other laws governing campus  
            handling of sexual assault cases, the author and committee may  
            wish to consider the following amendments:  



            (b) Notwithstanding Section 67400, 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 board of each independent  
            postsecondary institution shall report all of the following on  
            an annual basis:


             (1) The number of sexual assault cases that were investigated  
            by the institution.


            (2) The number of sexual assault cases that were referred for  
            a disciplinary proceeding at the institution.


            (3) The number of sexual assault cases that were referred to  
            local or state law enforcement.


            (4) The number of alleged perpetrators who were found  
            responsible at the disciplinary proceedings of the  
            institution.


            (5) The number of alleged perpetrators who were found not  
            responsible at the disciplinary proceedings of the  
            institution.


            (6) A description of and the number of final sanctions imposed  








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            by the institution for each offense perpetrated.


            (7) The number of disciplinary proceedings at the institution  
            that closed without resolution.


              (1) The number of sexual assault, domestic violence, dating  
            violence and stalking complaints received by the institution;


            (2) The number of sexual assault, domestic violence, dating  
            violence and stalking complaints investigated by the  
            institution;


            (3) The number of sexual assault, domestic violence, dating  
            violence and stalking complaints that were not investigated by  
            the institution;


            (4) The number of investigations, conducted pursuant to (2),  
            in which the respondent was held responsible;


            (5) The number of investigations, conducted pursuant to (2),  
            in which the evidence was found insufficient to hold the  
            respondent responsible;


            (6) The number of cases pursuant to (3) in which discipline  
            was imposed, disaggregated by the type of discipline imposed  
            in, at minimum, the following categories:


                 (i) Expulsion


                 (ii) Suspension of two years or longer








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                 (iii) Suspension of fewer than two years     


                 (iv) Probation


           3)Definition of sexual assault.  In conforming to the  
            aforementioned reporting requirements, the definition of  
            "sexual assault" as contained in this bill is no longer  
            necessary. The author and committee may wish to consider the  
            following amendment:



            (c) For purposes of this section,  "sexual assault" includes,  
            but is not limited to, rape, forced sodomy, forced oral  
            copulation, rape by a foreign object, sexual battery, or a  
            threat of sexual assault involving a student, whether on or  
            off campus  .  "sexual assault, domestic violence, dating  
            violence, and stalking" includes all categories of misconduct  
            in the institution's policy adopted pursuant to section 67386.  


          REGISTERED SUPPORT / OPPOSITION:


          


          Support


          


          California Federation of Teachers









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          National Association of Social Workers - California Chapter


          California Coalition Against Sexual Assault 


          


          Opposition


          


          None on File


          


          Analysis Prepared by:Laura Metune / HIGHER ED. / (916) 319-3960