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.
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.
- “affirmative, conscious and voluntary agreement”
- 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
- “affirmative, conscious and voluntary agreement”
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
- If you want to have sex, don’t drink.
- Should parties record consent (compare to pre-nup)R
- Silence, lack of protest or resistance is insufficient.
- 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?
- Neither the existence of a dating relationship or instances of past sexual relations is itself sufficient to demonstrate consent in a particular incident.
- In determining consent it is not a valid excuse if:
- Accused party’s belief that there was consent arose from the accused’s intoxication or recklessness
- Accused failed to take reasonable steps to ascertain affirmative consent in circumstances known to accused (e.g., intoxication)
- Asleep or unconscious
- Incapacitated due to drugs, alcohol or medication which prevented person from understanding the fact, nature or extent of sexual activity.
- 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)
- 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:
- Provisions providing appropriate privacy protections for all parties involved including confidentiality including procedures to permit confidential reporting by victims and 3rdparties.
- 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
- Response to stranger and nonstranger sexual assault.
- Protocol for initial victim and follow-up victim interview
- 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.
- Role of institutional staff supervision
- Comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic and dating violence and stalking cases.
- 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
- Hormones driven
Beware of unintended consequences
|Senate Bill No. 967|
LEGISLATIVE COUNSEL’S DIGEST
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
Section 67386 is added to the Education Code, to read:
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.