Bill S.295

SENATE DOCKET, NO. 2011 FILED ON: 1/20/2017

SENATE . . . . . . . . . . . . . . No. 295

By Ms. Lovely, a petition (accompanied by bill, Senate, No. 295) of Joan B. Lovely, Kenneth I. Gordon, F. Jay Barrows, Jason M. Lewis and other members of the General Court for legislation to prevent the sexual abuse of children and youth. Education.

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act relative to preventing the sexual abuse of children and youth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. This Act shall be known as the Comprehensive Child Sexual Abuse Prevention Act of 2017.

SECTION 2. The General Laws, as appearing in the 2014 Official Edition, are hereby amended by inserting after chapter X the following chapter:-

CHAPTER XX

CHILD SEXUAL ABUSE PREVENTION

Section 1. Definitions

For the purposes of this chapter, the following words and phrases shall have the following meanings:-

"Abuse" means an act involving a child or student that constitutes a sexual offense under the laws of the Commonwealth or any sexual contact between an adult and a child or student under the care of that individual.

“Child” or “children” as used in this chapter is interchangeable with “student” or “students.”

"Direct contact with children" means the possibility of care, supervision, guidance or control of children or routine interaction with children.

“Job performance” includes, but is not limited to abilities, attendance, attitude, awards, demotions, disciplinary actions, duties, effort, knowledge, promotions, skills, and in the case of a former school employee, the reasons for separation.

"School" means a Massachusetts public school or public school district, and includes a collaborative school, charter school, virtual school or innovation school; or a Massachusetts private day or residential school, including a special education school program approved under M.G.L. c. 71B; or a Massachusetts independent or parochial school.

"Sexual misconduct" means any act, including, but not limited to, any verbal, nonverbal, written or electronic communication or physical activity, directed toward or with a child regardless of the age of the child that is designed to promote a romantic or sexual relationship with the child. Such acts include, but are not limited to:

(a) Sexual or romantic invitation

(b) Dating or soliciting dates

(d) Making sexually suggestive comments

(e) Self-disclosure or physical exposure of a sexual, romantic or erotic nature

(f) Any sexual, indecent, romantic or erotic contact with the child or student.

Section 2. Employee Sexual Abuse Prevention Education

(a) Every school which serves early childhood, pre-kindergarten, kindergarten, elementary and secondary school students; any state-operated or state-licensed program that provides educational services to early childhood, pre-kindergarten and kindergarten to grade 12 students; and every youth-serving organization maintained by non-profit or for-profit entities, shall ensure that the following individuals receive instruction annually on prevention, identification, and reporting of child sexual abuse: employees, contractors, and volunteers in the schools or state-operated or state-licensed programs including, but not limited to: school district superintendents, school or program administrators, teachers, professional tutors, counselors, psychologists, social workers and other school mental health professionals, school nurses, Title IX coordinators, professional support personnel, athletic coaches, extracurricular activity advisors, food service workers, janitorial personnel, bus drivers, and school paraprofessionals; and the following employees, contractors and volunteers in youth-serving organizations including, but not limited to: administrators, youth counselors, mental health professionals, athletic coaches, professional support personnel, food service workers, janitorial personnel, and bus drivers. This instruction shall include comprehensive training and information to help schools, programs, and youth-serving organizations and their personnel:

(1) Recognize sexually offending behaviors in adults, and signs in adults that might indicate they pose a sexual risk to children;

(2) Recognize, appropriately respond to, and prevent sexually inappropriate, coercive, or abusive behaviors among children and youth served by schools, programs, and youth-serving organizations;

(3) Recognize behaviors and verbal cues that might indicate a child or youth has been a victim of sexual abuse;

(4) Support the healthy development of students and children and youth and the building of protective factors to mitigate against their sexual victimization by adults or by other children or youth;

(5) Establish and implement school, program, and youth-serving organization policies that support the prevention of sexual abuse through: ongoing training of staff about adult perpetration and child-on-child sexual abuse; comprehensive screening of prospective employees and volunteers; the development of codes of conduct to identify inappropriate or boundary-violating behaviors that if left unchecked could escalate to reportable sexual offenses; the assessment and modification of physical facilities and spaces to reduce opportunities for sexual abuse;

(6) Respond to disclosures of sexual abuse or reports of boundary-violating behaviors of adults or children in a supportive and appropriate manner and which meets mandated reporting requirements under Section 51A of Chapter 119 of the General Laws;

(7) Seek out community resources available to assist schools, programs, and youth-serving organizations in the prevention, identification, reporting and referral to treatment of cases involving the sexual abuse or exploitation of children or youth.

(b) Employees identified in this section shall complete the required training every year. Employees required to undergo continuing professional education shall receive credit toward the continuing professional education requirements where the training program has been approved by the Department of Elementary and Secondary Education.

(c) School Boards, state agencies operating or licensing programs that serve children and youth, and the Boards of Directors of youth-serving organizations shall use tested, research-based instructional materials which meet these requirements and which have been demonstrated to increase the prevention knowledge and skills of those trained. The mode of delivery for the trainings may include in-person or e-learning instruction.

(d) For each year or annual training required under this section, each school, state-operated or state-licensed program, or youth-serving organization shall maintain, until at least the third anniversary of the training, records that include the name of the individuals within their school, program, or organization who participated in the training during that year.

(e) School Boards, state agencies operating or licensing programs that serve children and youth, and the Boards of Directors of youth-serving organizations shall make information about such education and training opportunities available to parents, legal guardians, and other interested persons in the community.

Section 3. Youth Sexual Abuse Education

(a) Every school which serves elementary and secondary school students, every state-operated or state-licensed program serving children and youth, and every youth-serving organization maintained by non-profit or for-profit entities shall provide age-appropriate instruction to help students and children and youth served by such schools, programs, or youth-serving organizations:

(1) Recognize and report boundary-violating behaviors in adults that might indicate they pose a sexual risk to children and youth;

(2) Recognize and report boundary-violating behaviors in other children that might indicate they pose a sexual risk to children and youth;

(3) Learn how to develop healthy and respectful interpersonal relationships, including appropriate body boundaries and privacy rules;

(4) Learn how to communicate effectively to trusted adults any concerns they have about body boundaries or privacy violations; and

(5) Learn about available school and community resources to prevent and respond to sexual abuse.

(b) School Boards, state agencies operating or licensing programs that serve children and youth, and the Boards of Directors of youth-serving organizations shall use tested, research-based instructional materials which meet these requirements and which have been demonstrated to increase the prevention knowledge and skills of those trained. The mode of delivery for the trainings may include in-person or e-learning instruction.

(c) For each year or annual training required under this section, each school, state-operated or state-licensed program, or youth-serving organization shall maintain, until at least the third anniversary of the training, records that include the name of the individuals within their school, program, or organization who participated in the training during that year.

(d) School Boards, state agencies operating or licensing programs that serve children and youth, and the Boards of Directors of youth-serving organizations shall make information about such education and training opportunities available to parents, legal guardians, and other interested persons in the community.

Section 4. Sexual Abuse Prevention Hiring Requirements

(a) In addition to fulfilling the requirements of General Laws Chapter 71, §38R (relating to background checks for employment in schools), before a school or independent contractor may offer employment to an applicant who would be employed by or work in a school in a position involving direct contact with children, the school or independent contractor shall require the applicant to provide:

(1) A list, including name, address, telephone number and other relevant contact information of the applicant, including:

(i) Current employer

(ii) All former employers that were school entities

(iii) All former employers where the applicant was employed in positions that involved contact with children.

(2) A written authorization that consents to and authorizes disclosure by the applicant's current and former employers in subparagraph (1) of the information requested under subparagraph (3) and the release of related records and that releases those employers from liability that may arise from such disclosure or release of records pursuant to this section.

(3) A written statement of whether the applicant:

(i) has been the subject of an abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency or child protective services agency, unless the investigation resulted in a finding that the allegations were false;

(ii) has ever been disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct.; or

(iii) has ever had a license, professional license or certificate suspended, surrendered or revoked while allegations of abuse or sexual misconduct were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct.

Material required information shall include all of an applicant’s conduct that is known by the previous employer, regardless of whether the conduct occurred before, on or after the date of the passage of this law.

(b) Before a school or independent contractor may offer employment to an applicant who would be employed by or work in a school in a position involving contact with children, the school or independent contractor shall conduct a review of the employment history of the applicant by contacting those employers listed by the applicant and requesting the following information:

(1) The dates of employment of the applicant.

(2) A statement as to whether the applicant:

(i) was the subject of any abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement agency or child protective services agency, unless such investigation resulted in a finding that the allegations were false;

(ii) was disciplined, discharged, non-renewed, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct; or

(c) Before a school or independent contractor may offer employment to an applicant who would be employed by or in a school entity in a position involving direct contact with children, the school entity or independent contractor shall check the eligibility for employment or certification status of the applicant to determine whether the applicant holds valid and active certification appropriate for the position and is otherwise eligible for employment and whether the applicant has been the subject of professional discipline.

(d) An applicant who provides false information or willfully fails to disclose material required information shall be subject to discipline up to, and including, termination or denial of employment and may be subject to professional discipline in accordance with the regulations of the Department of Elementary and Secondary Education.

(e) No later than twenty (20) days after receiving a request for required information, an employer that has or had an employment relationship with the applicant shall disclose the information requested.

(1) The employer shall disclose the information on a standardized form developed by the Department of Elementary and Secondary Education.

(2) After reviewing the information initially disclosed under Chapter __, section 2(a) and finding an affirmative response to subsection (3) (i), (ii) or (iii), or disclosed under section 2(b) and finding an affirmative response to subsection (2) (i) (ii) or (ii0), where the prospective employing school or contractor makes a determination to further consider the applicant for employment, the school or contractor shall request that former employers provide any additional material information about the matters disclosed and all related records.

(3) Former employers shall provide the additional information requested no later than sixty (60) days after the prospective employer's request under this paragraph.

(4) Information received under this section shall not be deemed a public record for the purposes of General Laws Chapter 66, §10.

(5) A school that receives the information under this subsection may use the information for the purpose of evaluating an applicant's fitness to be hired or for continued employment and may report the information as appropriate to the Department of Elementary and Secondary Education, a State licensing agency, law enforcement agency, child protective services agency, another school, and/or prospective employer.

(f) A school or independent contractor may hire an applicant on a provisional basis for a period not to exceed ninety (90) days pending the school entity's or independent contractor’s review of information and records received under this section, provided that all of the following are satisfied:

(1) The applicant has provided all of the information and supporting documentation required.

(2) The school administrator has no knowledge of information pertaining to the applicant that would disqualify the applicant from employment.

(3) The applicant swears or affirms that the applicant is not disqualified from employment.

(4) The applicant is not permitted to work alone with children and works in the immediate vicinity of a permanent employee.

(g) A school or independent contractor may not enter into a collective bargaining agreement, an employment contract, an agreement for resignation or termination, a severance agreement or any other contract or agreement or take any action that:

(1) has the effect of suppressing information relating to an investigation of a report of suspected abuse or sexual misconduct by a current or former employee;

(2) affects the ability of the school or independent contractor to report suspected abuse or sexual misconduct to the appropriate authorities; or

(3) requires the school or independent contractor to expunge information about allegations or findings of suspected abuse or sexual misconduct from any documents maintained by the school or independent contractor, unless after investigation the allegations are found to be false.

(4) Any provision of an employment contract or agreement for resignation or termination or a severance agreement that is executed, amended or entered into after the effective date of this section and that is contrary to this section shall be void and unenforceable. Any provision of such contract or agreement executed, amended or entered into prior to the effective date of this section and that is contrary to this section shall be void and unenforceable.

(h) For substitute employees, the employment history review required by this section shall be required only prior to the initial hiring of a substitute or placement on the school entity's approved substitute list and shall remain valid as long as the substitute continues to be employed by the same school entity or remains on the school entity's approved substitute list.

(1) A substitute seeking to be added to another school entity's substitute list shall undergo a new employment history review. The appearance of a substitute on one school entity's substitute list does not relieve another school entity from compliance with this section.

(2) An employment history review conducted upon initial hiring of a substitute employee by an independent contractor, intermediate unit or any other entity that furnishes substitute staffing services to school entities shall satisfy the requirements of this section for all school entities using the services of that independent contractor, intermediate unit or other entity.

(3) An independent contractor, intermediate unit or any other entity furnishing substitute staffing services to school entities shall comply with the provisions of this Act.

(4) For purposes of this subsection, "substitute employee" shall not mean school bus drivers employed by an independent contractor.

(i) For employees of independent contractors, the employment history review required by this section shall be performed, either at the time of the initial hiring of the employee or prior to the assignment of an existing employee to perform work for a school entity in a position involving direct contact with children. The review shall remain valid as long as the employee remains employed by that same independent contractor, even though assigned to perform work for other school entities.

(1) An independent contractor shall maintain records documenting employment history reviews for all employees as required by this section and, upon request, shall provide a school entity for which an employee is assigned to perform work access to the records pertaining to that employee.

(2) Prior to assigning an employee to perform work for a school in a position involving direct contact with children, the independent contractor shall inform the school of any instance known to the independent contractor in which the employee:

(i) was the subject of any abuse or sexual misconduct investigation by any employer, State licensing agency, law enforcement authority or child protective services agency, unless such investigation resulted in a finding that allegations are false;

(ii) has ever been disciplined, discharged, non-renewed, removed from a substitute list, asked to resign from employment, resigned from or otherwise separated from any employment while allegations of abuse or sexual misconduct as described in subparagraph (i) were pending or under investigation, or due to an adjudication or findings of abuse or sexual misconduct;; or

(3) The independent contractor may not assign the employee to perform work for the school in a position involving direct contact with children where the school objects to the assignment after being informed of an instance of abuse or sexual misconduct.

(4) An applicant who has once undergone the employment history review required and seeks to transfer to or provide services to another school in the same district, diocese or religious judicatory or established and supervised by the same organization shall not be required to obtain additional reports before making such transfer.

(j) An employer, school, school administrator or independent contractor who in good faith provides information or records including personnel records about a current or former employee’s job performance and professional conduct to a prospective school employer or to the Department of Elementary of Secondary Education shall be immune from criminal and civil liability for the disclosure or any consequences of the disclosure, unless the information or records were provided with the knowledge that they were false . Such immunity shall be in addition to and not in limitation of any other immunity provided by law or any absolute or conditional privileges applicable to such disclosures by virtue of the circumstances or the applicant's consent thereto.

(1) Except where the laws of other states prevent the release of the information or records requested, or disclosure is restricted by the terms of a contract entered into prior to the effective date of this section, the willful failure of a former employer, school entity, school administrator or independent contractor to respond or provide the information and records as requested may result in civil penalties, and professional discipline where appropriate.

(2) Notwithstanding any provision of law to the contrary, an employer, school, school administrator, independent contractor or applicant shall report and disclose in accordance with this section all relevant information, records and documentation that may otherwise be confidential under General Laws Chapter 66, §10.

(3) A school or independent contractor may not hire an applicant who does not provide the information required under SECTION 4. (ii) (A), (B), or (C) for a position involving contact with children.

(k) Nothing in this section shall be construed:

(1) To prevent a prospective employer from conducting further investigations of prospective employees or from requiring applicants to provide additional background information or authorizations beyond what is required under this section, nor to prevent a former employer from disclosing more information than what is required under this section.

(2) To relieve a school, school administrator or independent contractor of its legal responsibility to report suspected incidents of abuse in accordance with the provisions of Chapter 119, section 51A or misconduct by a licensed educator in accordance with the reporting requirements of the Department of Elementary and Secondary Education.

(3) To relieve a school, school administrator or independent contractor of its legal responsibility to report suspected incidents of professional misconduct in accordance with Chapter 119, section 51A or misconduct by a licensed educator in accordance with the reporting requirements of the Department of Elementary and Secondary Education.

(4) To prohibit the right of the exclusive representative under a collective bargaining agreement to grieve and arbitrate the validity of an employee's termination or discipline for just cause or for the causes set forth in this act.

(5) The Department of Elementary and Secondary Education shall have jurisdiction to determine willful violations of this section and may, following a hearing, assess a civil penalty not to exceed ten thousand dollars ($10,000). School entities shall be barred from contracting with an independent contractor who is found to have willfully violated the provisions of this section.

(6) Notwithstanding any provision of law to the contrary, the Department of Elementary and Secondary Education may initiate disciplinary action before a hearing officer pursuant its regulations, against any applicant, employee, independent contractor or school administrator for willful violations of this section.

(7) The Department of Elementary and Secondary Education may adopt rules and regulations establishing procedures relating to disciplinary proceedings and the assessment of penalties in connection with this section.

Section 5. Responsibilities of the MA Department of Elementary and Secondary Education

(1) Access to Information

At any stage of an investigation or proceeding conducted within the scope of the Department’s authority, the Commissioner may request and shall receive from school districts and any public or private school in the Commonwealth, including an approved private school for special education, any and all relevant information and documents relating to the investigation or proceeding. Such information and documents includes but is not limited to complete personnel records, student records, and investigatory records.

(2) Subpoenas

At any stage of an investigation or proceeding conducted within the scope of the Department’s authority, the Commissioner or the Commissioner’s designee may issue a subpoena or a subpoena duces tecum to summon a witness or to compel the production of documents not otherwise subject to this section. An individual who holds or is seeking a Massachusetts educator license under G.L. c. 71, section 38G, is deemed to have sufficient contacts with the Commonwealth to confer jurisdiction pursuant to G.L. c. 223A, section 3.

(3) Required Reporting

Notwithstanding any other provision of law to the contrary, the Commissioner or the Commissioner’s designee shall report to the National Association of State Directors of Teacher Education and Certification Clearinghouse or any national databases serving the same purpose, all information required for participation in such a clearinghouse.

(4) Protection from Liability

No person who files a complaint, reports alleged wrongdoing or provides information about a licensed educator or an applicant for licensure to the Commissioner or who assists the Commissioner at his request in discharging his duties and functions shall be liable in any cause of action arising out of the provision of such information or assistance if the person acted in good faith and without malice.

SECTION 3. Clause (i) of section 21 of Chapter 119 of the General Laws, as appearing in the 2014 Official Edition, shall be amended by inserting after the word “counselor,” in line 53, the following words:- “domestic violence worker,”

SECTION 4. Clause (ii) of said section 21 of Chapter 119 shall be further amended by inserting after the word “counselor,” in line 55, the following words:- “volunteer athletic coach, professional athletic coach, professional tutor,” and;

SECTION 5. Clause (iii) of said section 21 of Chapter 119 shall be further amended by inserting after the word “officer” in line 64, the following words:- ", animal control or humane officer, commercial film or photo processor, information technology repair or service personnel"

SECTION 6. Subsection (a) of section 51A of Chapter 119 of the General Laws, as appearing in the 2014 Official Edition, shall be amended by inserting after the word “neglect.”, in line 19, the following:-

A school or mandated reporter who has reasonable cause to believe that a person who is alleged to have sexually abused a child in the past, presently represents a credible threat to a child under the age of eighteen years, shall have the same reporting obligations under this section.

SECTION 7. Section 51A of Chapter 119 of the General Laws, as most recently amended by Section 10 of Chapter 178 of the Acts of 2011, shall be amended by inserting after the second paragraph of subsection (a) the following paragraphs:

The supervisor or person in charge in an institution, who is designated to receive reports of suspected child abuse from individual mandated reporters, is responsible for confirming with that reporter that the institution filed a formal report with the department or appropriate law enforcement agency and did so within the required time period.

If the institution fails to report the suspected abuse to the department, the supervisor or person in charge in the institution shall notify the individual reporter of that decision so that the individual reporter who discovered or suspects the abuse may meet their legal responsibility to file a direct report with the department or appropriate law enforcement agency.

SECTION 8. Subsection (c) of said section 51A of Chapter 119 shall be amended by inserting after the word “injury”, in line 42, the following words:- ", a sexual assault, or"

SECTION 9. Said subsection (c) of section 51A of Chapter 119 shall be amended by inserting after the word “paragraph.”, in line 48, the following:-

Any corporation or other institution which employs a mandated reporter who fails to make a report required by this section, shall be punished by a fine of not more than one hundred thousand dollars. It shall be a defense to any prosecution under this section that the corporation or other institution has complied with the requirements of subsection (k).

SECTION 10. Section 7 of said chapter 18B, is hereby amended by adding at the end thereof the following subsection:-

(o) The commissioner, in consultation with the child advocate and other agencies the commissioner deems relevant, including, but not limited to, the Massachusetts District Attorneys Association, the Massachusetts chapter of the National Association of Social Workers, the Massachusetts Medical Society, the Massachusetts Teachers’ Association, the American Federation of Teachers, and private child service providers shall, if available, adapt, implement and maintain from another state agency or from any suitable program already in use in another state a free standardized online training program to be completed by all mandated reporters as defined in section 21 of chapter 119, and as referenced in section 51A(k) of chapter 119; provided, however, that if the commissioner cannot find an existing program to adapt to this purpose, then the commissioner shall create, implement, maintain and update such an online training program.

SECTION 11. Said chapter 119 is hereby further amended by striking out subsection (k) of section 51A, as so appearing, and inserting in place thereof the following paragraph:-

(k) A mandated reporter shall successfully complete the training referenced in section 2(e) of chapter 18C by July 1, 2018, and every year thereafter to recognize and report suspected child abuse and neglect. Beginning on July 1, 2017, any mandated reporter who applies for or renews a professional license shall provide evidence of successful completion of this training. Successful completion of this training may be used towards continuing education unit requirements. All corporations and other institutions, which employ mandated reporters not professionally licensed by the commonwealth, shall institute a program to implement the reporting requirements of this section.

SECTION 12. Section 85K of Chapter 231 appearing in the 2014 Official Edition, is hereby amended by inserting after the word "care," in line 11, the following:-

or in a civil action for sexual abuse of a minor, as that term is defined in section 4C½ of chapter 260,

SECTION 13. Section 85V of said Chapter 231 is hereby amended by inserting after clause (iii) the following clause:-

(iv) a civil action for sexual abuse of a minor, as that term is defined in section 4C½ of chapter 260.

SECTION 14. Section 85W of said Chapter 231 is hereby amended by inserting after the word “automobile”, in line 20, the following words:-

or in a civil action for sexual abuse of a minor, as that term is defined in section 4C½ of chapter 260

SECTION 15. Subsection (j) of section 10 of Chapter 258 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after paragraph (4), the following paragraph:-

(5) any claim by or on behalf of a person who alleges that he was sexually abused as a child, as that term is defined in section 4C of chapter 260.

SECTION 16. Section 2 of Chapter 258C of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after subsection (b), the following subsection:-

(b1) In the case of a claimant who was sexually abused as a minor, such good cause shall include the report of a duly licensed mental health professional stating an opinion that the claimant did not make the connection between the sexual abuse and the harm suffered by the claimant at the time the abuse occurred, and that claimant's failure to make the connection was consistent with the typical responses by such victims of childhood sexual abuse.

SECTION 17. Subsection (a) of section 5 of said Chapter 258C is hereby amended by inserting after section paragraph (1) the following paragraph:-

(1A) In the case of a claimant who was sexually abused as a minor, said three years shall commence to run when the claimant first makes the connection between the sexual abuse and the harm suffered by the claimant as a result. The report of a duly licensed mental health professional stating an opinion as to the date when the claimant first made the connection between the sexual abuse and the harm suffered by the claimant, and that the claimant's failure to make the connection prior to that date was consistent with the typical responses by such victims of childhood sexual abuse, shall be prima facie evidence in all proceedings under this chapter.

SECTION 18. Chapter 268 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by inserting after section 21B the following section:-

Section 21C. Any person who is sexually abused by an employee or contractor with any public or private school, or the department of youth services, the department of children and families, the department of mental health, the department of developmental services, or any private institution providing services to clients of such departments, and who, in the course of such employment or contract or as a result thereof, engages in sexual abuse of a person under the age of 19, or under the age of 22 under Chapter 71B, who has not received a high school diploma, a general educational development certificate, or an equivalent document and who is served by such school, department or institution, within or outside of such school, department or institution, shall have a cause of action against such an employee or contractor, under chapter 260, section 4C. In a civil action commenced under said section, a person served by such school, department or institution shall be deemed incapable of consent to sexual relations with such an employee or contractor.

Any person who is employed or contracted by a college or university, and who, in the course of such employment or as a result thereof, engages in sexual abuse of a person who is 19 years of age or under who has not received a high school diploma, a general educational development certificate or an equivalent document and who is enrolled in or attending the college or university at which the person is employed, shall have a cause of action against such an employee or contractor, under chapter 260, section 4C.

SECTION 19. Said Chapter 268 is hereby amended by inserting after section 21A the following section:-

Section 21B. Any person who is employed by or contracts with any public or private school, or the department of youth services, the department of children and families, the department of mental health, the department of developmental services, or any private institution providing services to clients of such departments, and who, in the course of such employment or contract or as a result thereof, engages in sexual abuse of a person under the age of 19, or under the age of 22 under Chapter 71B, who has not received a high school diploma, a general educational development certificate, or an equivalent document and who is served by such school, department or institution, within or outside of such school, department or institution, shall be punished by imprisonment for not more than five years in a state prison or by a fine of $10,000 or both. In a prosecution commenced under this section, an individual served by such school, department or institution shall be deemed incapable of consent to sexual relations with such person. For purposes of this section, sexual relations shall be defined as that term is used of chapter 260, section 4C.

Any person who is employed or contracted by an institution of higher learning, and who, in the course of such employment or as a result thereof, engages in sexual abuse of a person who is 19 years of age or under who has not received a high school diploma, a general educational development certificate, or an equivalent document and who is enrolled in or attending the college or university at which the person is employed, shall be punished by imprisonment for not more than five years in a state prison or by a fine of $10,000 or both. . In a prosecution commenced under this section, an individual served by such institution shall be deemed incapable of consent to sexual relations with such person. For purposes of this section, sexual relations shall be defined as that term is used of chapter 260, section 4C.

SECTION 20. Chapter 265 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out section 13B and inserting in place thereof the following: -

Section 13B. Whoever commits an indecent assault and battery on a minor under the age of 14 shall be punished by imprisonment in the state prison for not more than 10 years, or by imprisonment in the house of correction for not more than 2½ years. A prosecution commenced under this section shall neither be continued without a finding nor placed on file. In a prosecution under this section, a minor under the age of 15 years shall be deemed incapable of consenting to any conduct of the defendant for which such defendant is being prosecuted unless: (a) The defendant is no more than 3 years older than the minor; or (b) The defendant is no more than 2 years older than the minor if the minor is under 12 years of age.

Notwithstanding the provisions of section 54 of Chapter 119 or any other general or special law to the contrary, in a prosecution under this section in which the defendant is under 18 years of age at the time of the offense, the Commonwealth shall only proceed by complaint in juvenile court or in a juvenile session of a district court.

SECTION 21. Said chapter 265, as so appearing, is hereby amended by striking out section 23 and inserting in place thereof the following:-

Section 23. Whoever has sexual intercourse or unnatural sexual intercourse with a minor under 16 years of age and: (a) The defendant is more than 4 years older than the minor, or (b) The minor is under 15 years of age and the defendant is more than 3 years older than the minor; or (c) The minor is under 12 years of age and the defendant is more than 2 years older than the minor, shall be punished by imprisonment in the state prison for life or for any term of years, or, except as otherwise provided, for any term in a jail or house of correction, provided, however, that a prosecution commenced under this section shall not be placed on file or continued without a finding.

Notwithstanding the provisions of section 54 of Chapter 119 or any other general or special law to the contrary, in a prosecution under this section in which the defendant is under 18 years of age at the time of the offense, the commonwealth shall only proceed by complaint in juvenile court or in a juvenile session of a district court.

SECTION 22. This Act shall take effect on December 31, 2017.

Name:	District/Address:
Joan B. Lovely	Second Essex
Kenneth I. Gordon	21st Middlesex	1/25/2017
F. Jay Barrows	1st Bristol	1/25/2017
Jason M. Lewis	Fifth Middlesex	1/25/2017
Susannah M. Whipps	2nd Franklin	1/25/2017
Theodore C. Speliotis	13th Essex	1/26/2017
Peter J. Durant	6th Worcester	1/27/2017
Thomas M. Stanley	9th Middlesex	1/27/2017
Jennifer L. Flanagan	Worcester and Middlesex	1/27/2017
Lori A. Ehrlich	8th Essex	1/27/2017
Joseph W. McGonagle, Jr.	28th Middlesex	1/30/2017
John W. Scibak	2nd Hampshire	1/30/2017
Steven S. Howitt	4th Bristol	1/30/2017
Carole A. Fiola	6th Bristol	1/30/2017
James M. Cantwell	4th Plymouth	2/1/2017
Walter F. Timilty	Norfolk, Bristol and Plymouth	2/2/2017
Kimberly N. Ferguson	1st Worcester	2/2/2017
Paul K. Frost	7th Worcester	2/2/2017
Donald H. Wong	9th Essex	2/2/2017
Angelo L. D'Emilia	8th Plymouth	2/3/2017
Paul R. Heroux	2nd Bristol	2/3/2017
Barbara A. L'Italien	Second Essex and Middlesex	2/3/2017
Patrick M. O'Connor	Plymouth and Norfolk	2/3/2017
Tricia Farley-Bouvier	3rd Berkshire	2/3/2017
Thomas P. Walsh	12th Essex	2/3/2017
Chris Walsh	6th Middlesex	2/3/2017
John J. Lawn, Jr.	10th Middlesex	4/6/2017
Angelo J. Puppolo, Jr.	12th Hampden	4/6/2017
Jay R. Kaufman	15th Middlesex	5/24/2017
Mathew Muratore	1st Plymouth	7/18/2017
Harriette L. Chandler	First Worcester	10/20/2017