Amended in Assembly May 31, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1778

Introduced by Assembly Member Quirk

February 3, 2016

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

LEGISLATIVE COUNSEL’S DIGEST

AB 1778, as amended, Quirk. Postsecondary education: sexual assault and sexual violence training.

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, in order to receive state funds for student financial assistance, to 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, covering specified topics, including a comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

This bill begin delete would end delete begin insert would, commencing January 1, 2018, end insert require those institutions, in order to receive state funds for student financial assistance, to conduct annual training of their respective employees, in addition to the training described above, on the employee’s obligations in responding to and reporting incidents of sexual assault, domestic violence, dating violence, and stalking involving students. begin insert The bill would provide that an employee trained pursuant to these provisions is deemed to have satisfied the annual training requirement for each campus or community college district, as applicable, within each segment that the employee is employed at for that year. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. 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 boards of independent
postsecondary institutions 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 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 boards of independent
postsecondary institutions 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 boards of independent
postsecondary institutions 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 boards of independent
postsecondary institutions 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)  begin delete In end delete begin insert (1) end insert begin insert   end insert begin insert Commencing January 1, 2018, in end insert 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 boards of independent postsecondary institutions
shall conduct annual training of their respective employees, in
addition to the training required by paragraph (12) of subdivision
(b), on the employee’s obligations in responding to and reporting
incidents of sexual assault, domestic violence, dating violence,
and stalking involving students.

begin insert

(2) An employee trained pursuant to this subdivision shall be
deemed to have satisfied the annual training requirement for each
campus or community college district, as applicable, within each
segment that the employee is employed at for that year.

end insert

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