California Law Mandates Procedures re: Sex Abuse Charges

A new law that took effect January 1, 2015 requires the governing boards of each state and independent post-secondary educational institution to adopt and implement written procedures or protocols concerning accusations of rape, date violence, domestic violence or stalking. The new policies and practices are designed to assure that accusations are taken seriously and that victims receive support and those accused are treated fairly.

What follows is our summary of its provisions and the complete text of Section 67386 to the Education Code, relating to student safety.

Summary

California Consent law-SB-967 (Student Safety: sexual assault) 

Section 67386 of Education Code Amended:

  • Objective: Prevention, justice and healing
  • History: Existing law requires Cal colleges to adopt and implement written procedures and protocols to ensure that students, faculty and staff who have been sexually assaulted on campus facilities or grounds receive treatment and information, including a description of on-campus and off-campus resources.
  • Applicability. New law extends to any post-secondary school that receives state funds for student financial assistance to adopt and implement policies concerning:
    • Sexual assaults
    • Domestic violence
    • Dating violence
    • And stalking
  • Outreach. Requires comprehensive prevention and outreach programs
  • Colleges who receive state funding must have policies covering more than a dozen situations. Includes: 1) protection of privacy, 2) training campus officials, 3) counseling for victims
  • Reimbursement. Since this is a state-mandated local program, Cal Constitution requires state to reimburse local agencies and school districts for certain costs.
  • Pertains to sexual assault, domestic violence, dating violence and stalking as defined by federal law (Higher Education Act of 1965 – 20 U.S.C. 1092 (f)
  • Requires an affirmative consent standard to govern determination as to whether both parties consented to sexual activity.
    1. “affirmative, conscious and voluntary agreement”
      1. Each person engaging in sexual activity is responsible  to ensure that he/she has the affirmative consent of the other to engage in sexual activity

Defines Affirmative Consent. Requires and sets standards for affirmative consent

  • Consent can’t be given if someone is asleep or incapacitated by drugs or alcohol. Lack of protest does not mean consent
    • ISSUES: 
      • If you want to have sex, don’t drink.
      • Should parties record consent (compare to pre-nup)R
  1. Silence, lack of protest or resistance is insufficient.
  1. Consent must be ongoing throughout the activity and can be revoked at any time

STANDARD OF REVOCATION – is a single “no” or “I don’t think this is a good idea” or “I don’t think we should be doing this” revocation? What if no is followed by another statement of acquiescence?

  1. Neither the existence of a dating relationship or instances of past sexual relations is itself sufficient to demonstrate consent in a particular incident.
  2. In determining consent it is not a valid excuse if:
    1. Accused party’s belief that there was consent arose from the accused’s intoxication or recklessness
    2. Accused failed to take reasonable steps to ascertain affirmative consent in circumstances known to accused (e.g., intoxication)
      1. Asleep or unconscious
      2. Incapacitated due to drugs, alcohol or medication which prevented person from understanding the fact, nature or extent of sexual activity.
      3. Inability to communicate due to mental or physical condition.

HOW ABOUT PEER PRESSURE, LOW SELF-ESTEEM, REVENGE ON A CHEATING PERSON, DEPRESSION?

SPECIAL PROBLEM WITH UNDERAGE DRINKING

SPECIAL PROBLEM RE: NOTIFICATION OF PARENTS IF EITHER PATY IS A MINOR

  • Complainant (prosecution) has burden of proof by a preponderance of the evidence (not criminal std of beyond reasonable doubt)
  1. Institution must also adopt “detailed and victim-centered policies and protocols” regarding sexual assault, domestic and dating violence and stalking that comport with “best practices and current professional standards” including:
    1. Provisions providing appropriate privacy protections for all parties involved including confidentiality including procedures to permit confidential reporting by victims and 3rdparties.
    2. Protocols for handling: assisting victim, written info re: importance of preserving evidence and identification and location of witnesses.
  • Written notification to victim re: importance of preserving evidence and of availability of (with contact info) on and off-campus resources and services
  1. Response to stranger and nonstranger sexual assault.
  2. Protocol for initial victim and follow-up victim interview
  3. Protocol for contacting and interviewing the accused.
  • Participation of victim advocates and other supporting people
  • Investigating allegations that alcohol or drugs were involved – INCLUDING IMMUNITY TO COMPLAINANT re violations of student conduct policy “at or near the time of the incident’ UNLESS institution finds violation was egregious (places health and safety of another person at risk) OR involves plagiarism, cheating or academic dishonesty.
  1. Role of institutional staff supervision
  2. Comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic and dating violence and stalking cases.
  3. Concepts and resources introduced during orientation.

 

 

 

POTENTIAL HUGE DETRRENT TO REPORTING

Remember these judgments are often made by young people who are:

  • Impaired by drugs or alcohol
  • Immature
  • Hormones driven
  • Stupid

Beware of unintended consequences

Senate Bill No. 967
CHAPTER 748
An act to add Section 67386 to the Education Code, relating to student safety.
[ Approved by Governor  September 28, 2014. Filed with Secretary of State  September 28, 2014. ]

LEGISLATIVE COUNSEL’S DIGEST

SB 967, 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, 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. 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 collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to 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:

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

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