California Legislature—2015–16 Regular Session

Assembly Bill No. 1466

Introduced by Assembly Member Burke

February 27, 2015

An act to amend Section 67386 of the Education Code, relating to student safety.

LEGISLATIVE COUNSEL’S DIGEST

AB 1466, as introduced, Burke. Student safety: sexual assault.

Existing law requires 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 to adopt and implement written procedures or protocols to ensure that students, faculty, and staff who are victims of sexual assault on the grounds or facilities of their institutions receive treatment and information, including a description of on-campus and off-campus resources.

Existing law also requires 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, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. Existing law also requires these governing boards, in order to receive those state funds, to adopt certain sexual assault policies and protocols, as specified, and requires the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. Existing law also requires the governing boards, in order to receive those state funds, to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking.

This bill would make nonsubstantive changes in this provision.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 67386 of the Education Code is amended
to read:

67386.  

(a) 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 begin delete boards of end delete begin insert board of
each end insert independent postsecondary begin delete institutions end delete begin insert institution end insert shall adopt
a policy concerning sexual assault, domestic violence, dating
violence, and stalking, as defined in the federal Higher Education
Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on
and off campus. The policy shall include all of the following:

(1) An affirmative consent standard in the determination of
whether consent was given by both parties to sexual activity.
“Affirmative consent” means 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 other or 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 a sexual activity begin insert , end insert 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.

(2) 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:

(A) The accused’s belief in affirmative consent arose from the
intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the
circumstances known to the accused at the time, to ascertain
whether the complainant affirmatively consented.

(3) 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.

(4) 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 reasonably should have known that
the complainant was unable to consent to the sexual activity under
any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) 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.

(C) The complainant was unable to communicate due to a mental
or physical condition.

(b) 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 begin delete boards of end delete begin insert board of
each end insert independent postsecondary begin delete institutions end delete begin insert institution end insert shall adopt
detailed and victim-centered policies and protocols regarding
sexual assault, domestic violence, dating violence, and stalking
involving a student that comport with best practices and current
professional standards. At a minimum, the policies and protocols
shall cover all of the following:

(1) A policy statement on how the institution will provide
appropriate protections for the privacy of individuals involved,
including confidentiality.

(2) 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.

(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development
of a victim interview protocol, and a comprehensive followup
victim interview, as appropriate.

(5) Contacting and interviewing the accused.

(6) Seeking the identification and location of witnesses.

(7) 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.

(8) Participation of victim advocates and other supporting
people.

(9) Investigating allegations that alcohol or drugs were involved
in the incident.

(10) 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.

(11) The role of the institutional staff supervision.

(12) A comprehensive, trauma-informed training program for
campus officials involved in investigating and adjudicating sexual
assault, domestic violence, dating violence, and stalking cases.

(13) Procedures for confidential reporting by victims and third
parties.

(c) 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 begin delete boards of end delete begin insert board of
each end insert independent postsecondary begin delete institutions end delete begin insert institution end insert 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 assistance or make services available to
students, including counseling, health, mental health, victim
advocacy, and legal assistance, and including resources for the
accused.

(d) 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 begin delete boards of end delete begin insert board of
each end insert independent postsecondary begin delete institutions end delete begin insert institution end insert 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.

(e) Outreach programming shall be included as part of every
incoming student’s orientation.