Our primary focus has been on federal legislation to address campus sexual violence, including the pending HALT and CASA bills, as well as the Violence Against Women Reauthorization Act of 2013 regulations that become effective July 1, 2015.
However, there have been a number of recent state law developments that pose additional challenges to many school administrators across the country. Below is a snapshot of some of the current state requirements for responding to and preventing campus sexual violence.
Previously, we reported on California’s “Yes Means Yes” law, which requires California’s colleges and universities receiving state funds for student financial aid to adopt a policy that defines what does and does not constitute consent to sexual activity. The law also has a July 1, 2015 deadline to have policies in place to ensure reports of violent crime, hate crime, and sexual assault received by campus security authorities are immediately disclosed to local law enforcement. To help schools comply with this requirement, California Attorney General Kamala Harris released a Model Memorandum of Understanding, which Harris said “will help break down silos between campuses and law enforcement agencies to provide sexual assault victims with the help they need and hold more perpetrators accountable.” This MOU adopts best practices for collaboration between school officials and law enforcement agencies, including: clarifying their respective duties following an assault, working together to connect victims to services, and providing regular training for campus and law enforcement communities.
On May 4, 2015, Colorado Governor John Hickenlooper signed HB 15-1220, which requires agreements between public and private colleges and universities and medical or other facilities where sexual assault victims can receive medical and forensic exams. Schools also need to make transportation to these facilities and referrals to advocates available to victims, and have sexual assault training and response policies.
Over the past several months, Connecticut has enacted laws to:
- allow an anonymous reporting option, and require annual reports to the legislature on the school’s policies, victim rights, crime reports, and the number of disciplinary cases with final outcomes (HB 2059)
- require memoranda of understanding with community-based assault crisis service centers and domestic violence agencies (HB 6695)
- require sexual assault forensic examiners to provide care and treatment to victims of sexual assault at school health care facilities (SB 966)
Connecticut Senate Bill 636 is currently pending, which would establish an affirmative consent standard similar to California’s to be applied in sexual assault and intimate partner violence cases.
Both Houses of the Illinois legislature have passed HB 821, the Preventing Sexual Violence in Higher Education Act, requiring colleges and universities to adopt comprehensive policies to address campus sexual violence. If signed by the governor, this Act will require schools to provide survivors’ notification of their rights and options, confidential advisors, and emergency and ongoing support. In addition, schools would need to establish one procedure to resolve complaints and provide sexual violence awareness training and education.
Effective July 1, 2015, HB 571 requires colleges to:
- conduct climate surveys on or before June 1, 2016, and every two years thereafter
- submit reports to the Higher Education Commission on sexual assault data gathered, including number of complaints received, disciplinary action taken, and victim accommodations made, beginning on October 1, 2016, and every two years thereafter
- pursue agreements with local law enforcement and local rape crisis programs
- provide amnesty from code of conduct violations for alcohol or drugs to students who make good faith reports of sexual assault and witnesses who participate in investigations
Effective October 1, 2015, Maryland SB 477 adds victims of dating violence (who have had a sexual relationship with the offender within the past year) to the list of persons eligible for protective orders that provide broader protection for a longer period of time.
Effective January 1, 2017, the Higher Education Omnibus Bill requires public and certain private institutions to adopt policies that:
- allow victims to decide if their case is referred to law enforcement
- protect victims’ privacy
- provide health care or counseling services, or referrals to services
- prohibit victim blaming and retaliation
- grant amnesty from drug or alcohol conduct violations to students who make good faith reports of sexual harassment, including sexual violence
- establish cooperative agreements with local law enforcement
- establish an online reporting system that allows anonymous reports
- train investigators and persons adjudicating sexual assault complaints
- train students within 10 days after the start of a student’s first semester of classes
- annually train persons responsible for responding to sexual assault reports
- designate a staff member at student health or counseling centers as a confidential resource
New York’s “Enough is Enough” bill has passed both houses and is expected to be signed by Governor Cuomo. This legislation codifies a sexual assault prevention policy already adopted by all 64 SUNY campuses, requiring public and private colleges and universities with New York campuses to adopt policies that:
- define consent as a clear, unambiguous and voluntary agreement to engage in specific sexual activity
- grant immunity for students reporting incidents of sexual assault or violence from certain campus policy violations, such as drug or alcohol use
- provide a Bill of Rights to all students, informing them of their legal rights and available resources, including outside law enforcement
- require comprehensive training for administrators, staff, and students
Effective August 1, 2015, Senate Bill 2150 was signed by North Dakota’s governor, making it the third state (see North Carolina General Statutes § 116-40.11 and Arkansas Act 1194) to allow students facing suspension or expulsion the right to be represented by an attorney or non-attorney advocate who may fully participate during disciplinary proceedings involving matters other than academic misconduct.
Effective June 10, 2015, HB 3476 prohibits disclosure of communications with victims of sexual violence when they seek help from counselors and advocates unless the victim consents.
Effective January 1, 2016, SB 790 requires school districts to adopt policies that incorporate domestic violence education into training programs for students in grades 7-12 and school employees.
On June 13, 2015, Texas Governor Greg Abbott signed a “campus carry” bill into law, which allows students who are 21 or older to carry concealed firearms on public and certain private college and university campuses. Before the law goes into effect on August 1, 2016, Senate Bill 11 allows school administrators to designate gun-free zones on campus and establish rules for storing handguns in dorms and other residential facilities, but those restrictions may not generally prohibit students from carrying handguns on campus.
Enacted April 15, 2015, SB 712 requires specific action when responsible employees receive information about sexual violence, including:
- the information must be reported to the Title IX coordinator “as soon as practicable after addressing the immediate needs of the victim”
- the Title IX coordinator must meet within 72 hours with the review committee, which includes representatives of law enforcement and student affairs
- if the allegations involve felony sexual assault the law enforcement representative must consult with a local prosecutor within 24 hours (however, personally identifiable information about persons involved will not be disclosed unless it is necessary to protect the victim or others)
- schools must have a memorandum of understanding with a local sexual assault crisis center or other victim support service to connect victim with those services
Additionally, SB 1193 enacted on April 30, 2015, requires schools to include a “prominent notation” on the academic record of anyone who is suspended or dismissed for a sexual violence offense, or withdraws while under investigation. However, the notation will be removed if the student completes the disciplinary action and is thereafter deemed a student in good standing.
Effective July 24, 2015, Washington’s SB 5518 requires:
- all institutions of higher education to establish one disciplinary process for sexual violence complaints
- four-year institutions to conduct campus climate surveys to assess the prevalence of campus sexual assault, evaluate student and employee attitudes and awareness of campus sexual violence issues, and make recommendations for addressing and preventing sexual violence on and off campus
- report survey results to the legislature by December 31, 2016
- report on steps taken to enter into memoranda of understanding with local law enforcement by July 1, 2016
The Washington Student Achievement Council will also work with schools to develop rules and guidelines to eliminate gender discrimination, including sexual harassment, against students.