AMENDED IN SENATE MAY 27, 2014 AMENDED IN SENATE MARCH 27, 2014

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

SENATE BILL No. 967

Introduced by Senators De León and Jackson (Principal coauthor: Assembly Member Lowenthal) (Coauthors: Senators Beall, Cannella, Evans, Galgiani, Monning, Pavley, Torres, Wolk, and Yee) (Coauthors: Assembly Members Ammiano, Fong, Gonzalez, Quirk-Silva, Skinner, Ting, and Williams)

February 10, 2014

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

###LEGISLATIVE COUNSEL'S DIGEST

SB 967, as amended, De León. 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.

This bill would require 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 that institutions, in order to receive public state funds for student financial assistance assistance, to adopt policies concerning campus sexual violence, 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. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or less formal collaborative partnerships with on-campus and community-based organizations to refer victims students for assistance or make services available to victims. students. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

DIGEST KEY Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes

###BILL TEXT THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 67386 is added to the Education Code, to read: 67386.

(a) The 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 that receive public funds for student financial assistance shall adopt a policy concerning campus sexual violence, domestic violence, dating violence, and stalking that includes all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by a complainant. “Affirmative consent” is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent is informed, freely given, and voluntary. It is the responsibility of the person who wants to engage in initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. For that reason, relying solely on nonverbal communication can lead to misunderstanding. The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent. Consent must be present ongoing throughout a sexual activity, and at any time, a participant can communicate that he or she no longer consents to continuing the sexual activity. If there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved. encounter 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 provision specifying that a claim by the accused that he or she believed that the complainant consented to the sexual activity shall not be considered

(2) 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 consented to the sexual activity under either of the following circumstances:

(A) The accused’s belief in consent arose from the self-induced 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 that the complainant was consenting.

(3) A preponderance of the evidence standard in the determination of disciplinary action.

(4) In A policy that, in the evaluation of complaints in the disciplinary process, an individual under any of the following conditions is unable to consent to the sexual activity: it shall not be a valid excuse that the accused believed that the complainant 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) Asleep The complainant was asleep or unconscious.

(B) Incapacitated The complainant was incapacitated due to the influence of drugs, alcohol, or medication. medication, so that the complainant could not understand the fact, nature, or extent of the sexual situation.

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

(b) The 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 that receive public funds for student financial assistance shall adopt detailed and victim-centered sexual assault policies and protocols 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 protect the confidentiality of individuals involved in the incident.

(2) Initial response by the institution’s personnel to a report of sexual assault, 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.

(5) Contacting and interviewing the accused.

(6) 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.

(7) Participation of victim advocates.

(8) Investigating allegations that alcohol or drugs were involved in the incident. incident, and providing amnesty from disciplinary action if the victim violated the school’s policy when the sexual assault occurred.

(9) The role of the institutional staff supervision.

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

(10) (11) Procedures for anonymous reporting of sexual assault.

(c) To the extent feasible, 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 that receive public funds for student financial assistance shall shall, to the extent feasible, enter into memoranda of understanding, agreements, or less formal collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer victims students for assistance or make services available to victims, students, including counseling, health, mental health, victim advocacy, student advocacy, and legal assistance.

(d) The 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 that receive public funds for student financial assistance, 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, women’s empowerment programming, 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 campus sexual violence, 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. Outreach programming shall be included as part of new student orientation.

SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.