HOUSE DOCKET, NO. 3294        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1209

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Tricia Farley-Bouvier

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to sexual violence on higher education campuses.

_______________

PETITION OF:

HOUSE DOCKET, NO. 3294        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1209

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act relative to sexual violence on higher education campuses.

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.  Chapter 6 of the General Laws is hereby amended by inserting after section 168C the following section:-

Section 168D.  As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Reporting party” a student or employee who reports an incident of dating violence, domestic violence, sexual assault or stalking to the institution

“Responding party” a student or employee who has been accused of an alleged incident of dating violence, domestic violence, sexual assault or stalking

Each public or private degree-granting post-secondary institution of higher education shall adopt a policy on dating violence, domestic violence, sexual assault and stalking that shall be made available, upon request, to an applicant, student or employee of the institution and shall be publicly available on the website in an accessible format.  The policy shall include, but not limited to:

(i) procedures by which students and employees at the institution may report or disclose incidents of dating violence, domestic violence, sexual assault or stalking regardless of where the offense occurred;

(ii) information on where to receive immediate emergency assistance following an incident of dating violence, domestic violence, sexual assault or stalking which shall include, but not be limited to, contact information for seeking medical treatment on campus, if available, and off campus and information related to preserving evidence;

(iii) descriptions of the types of  counseling and health, safety, academic and other support services available from the institution within the local community or region or through a local community-based rape crisis center or domestic violence program, including contact information;

(iv) the rights of students and employees to: (1) notify or decline to notify law enforcement, including campus, local and state police, of an alleged incident of dating violence, domestic violence, sexual assault or stalking; (2) receive assistance from campus authorities in making any such notification; and (3) obtain a court- or institution-issued protective order against a respondent of the assault, stalking or violence

(v) protective measures reasonably available from the institution which shall include, but not be limited to, options for changing academic, living, campus transportation or working arrangements in response to an alleged incident of dating violence, domestic violence, sexual assault or stalking, regardless of where the conduct occurred or whether such conduct occurred outside of an institution’s programs or activities, and regardless of whether a complaint is filed in accordance with the institution’s policy for resolving complaints; how to request such protective measures; and the process to have any such measures reviewed;

(vi) procedures for students to notify the institution that a protective order has been issued under state or federal law and the institution’s responsibilities upon receipt of such notice.

(vii) a summary of the institution's procedures for resolving dating violence, domestic violence, sexual assault or stalking complaints , including clear statements advising students that: (1) that notice shall be given to the respondent which shall include, but not be limited to, the date, time and location, if known, and a summary of the factual allegations concerning the violation; (2) that an investigation, including any hearings and resulting disciplinary proceedings, shall be conducted by an individual who receives not less than annual training on issues relating to dating violence, domestic violence, sexual assault or stalking, investigatory procedures and hearing procedures to protect the safety and rights of students and promote accountability and a trauma-informed response; (3) that the reporting party of an alleged incident of dating violence, domestic violence, sexual assault or stalking and the responding party may be accompanied by an advisor or support person of their choice, which may include an advocate or counsel, to meet with the institution’s investigator or other fact finder and may consult with an advisor or support person, which may include an advocate or counsel, during any meetings and disciplinary proceedings; provided, however, that the institution may establish rules regarding how the proceedings will be conducted which may include guidelines on the extent to which the advisor or support person for each party may participate in a meeting or disciplinary proceeding and any limitations on participation which shall apply equally to both parties; and provided further, that the institution shall adopt reasonable measures to provide for the involvement of the advisor or support person for each party but the availability of the advisor or support person shall not significantly delay a meeting or disciplinary proceeding; (4) of the standard of evidence used to resolve complaints; (5) that the reporting party and the responding party shall be provided with a copy of the institution’s policies regarding the submission and consideration of evidence that may be used during a disciplinary proceeding and shall have equal opportunity to present evidence and witnesses on their behalf during a disciplinary proceeding; provided, however, that each party shall be provided with timely and equal access to relevant evidence that shall be used in the determination of a discipline; (6) that there may be restrictions on evidence considered by the fact finder including, but not limited to, the use of evidence of prior sexual activity or character witnesses; (7) that the reporting party and the responding party shall not be allowed to directly question each other during disciplinary proceedings; (8) that the reporting party and the responding party shall be informed in writing of the results of a disciplinary proceeding not later than 7 business days after a final determination of a complaint, not including any time for appeal, unless good cause for additional time is shown, and they shall be informed of any process for appealing the decision; (9) that if an institution offers an appeal as a result of procedural errors, previously unavailable relevant evidence that could significantly impact the outcome of a case or where the sanction is disproportionate to the findings, the reporting party and the respondent shall be provided with an equal opportunity to appeal decisions regarding responsibility or sanctions; and (10) that the institution shall not disclose the identity of the reporting party and the responding party, except as necessary to carry out a disciplinary process or as permitted under state or federal law.

(viii) a summary of the institution's employee disciplinary process as it pertains to dating violence, domestic violence, sexual assault and stalking;

(ix) the range of sanctions or penalties the institution may impose on students and employees found responsible for a violation of the applicable institutional policy prohibiting acts of dating violence, domestic violence, sexual assault and stalking; and

(x) .a summary of the institution’s policy on retaliation, noting that the university prohibits retaliation against anyone who reports sexual violence, sexual harassment, gender-based harassment, domestic violence, dating violence, stalking and retaliation, who assists another in making a report, or who participates in an investigation of a report.

For the purposes of this section, “dating violence”, “domestic violence”, “sexual assault” and “stalking” shall be defined by each institution of higher education in its applicable policies, including its policy on affirmative action or code of conduct and shall be consistent with applicable federal definitions.

SECTION 2.  Chapter 15A of the General Laws is hereby amended by adding the following section:-

Section 45. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

"Awareness programming", institution wide or audience-specific programs, initiatives, and strategies that increase audience knowledge, promote safety and share resources to prevent and reduce the occurrence of dating violence, domestic violence, sexual assault and stalking.

"Bystander intervention”, bystander intervention as defined in 34 CFR 668.46.

“Clery Act”, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or Clery Act, 20 U.S.C. § 1092(f).

''Institution for higher education'', a profit or nonprofit degree-granting educational institution, whether public or private, which is authorized by law to provide a program of education beyond the secondary school level.

"Primary prevention programming", initiatives and strategies informed by research or assessed for value, effectiveness or outcome that are intended to stop dating violence, domestic violence, sexual assault and stalking through the promotion of positive and healthy behaviors.

“Reporting party” a student or employee who reports an incident of dating violence, domestic violence, sexual assault or stalking to the institution

“Responding party” a student or employee who has been accused of an alleged incident of dating violence, domestic violence, sexual assault or stalking.

“Responsible employee”, an employee authorized to take action to redress sexual violence who has the responsibility of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee and who is a person to whom a student could reasonably believe has such authority or responsibility.

"Trauma-informed response", a response involving an understanding of the complexities of dating violence, domestic violence, sexual assault and stalking through training centered on the neurobiological impact of trauma, the influence of societal myths and stereotypes surrounding the causes and impacts of trauma, understanding the behavior of perpetrators and conducting an effective investigation.

(b) Each institution of higher education shall: (i) adopt detailed and trauma-informed policies regarding dating violence, domestic violence, sexual assault and stalking involving students or employees of the institution that comport with the best practices and current professional standards as determined by the campus safety advisor and shall establish procedures for regularly reviewing and updating the policies; and (ii) apply the same policies, as applicable, relating to claims of dating violence, domestic violence, sexual assault and stalking to all students and employees in a culturally competent way. 

The policies shall be developed in coordination with the institution’s Title IX coordinator and  may consider input from various internal and external entities including, but not limited to institutional administrators, personnel affiliated with on-campus and off-campus health care centers, personnel affiliated with on-campus, when available, and local, community-based rape crisis centers and domestic violence programs, confidential resources advisors, residence life staff, students, the department of state police and the police department and the district attorney having jurisdiction in the city or town wherein the institution’s primary campus is located.  Once an institution has adopted the policies required by this section, the opportunity for review and comment by internal and external entities shall only apply to substantive changes in those policies.  Institutions shall provide draft policies and substantive changes by electronic or regular mail to internal and external entities, with instructions on how to comment and a reasonable length of time in which comments will be accepted. 

(c) Each institution of higher education shall adopt policies and procedures with local law enforcement agencies to establish the respective roles and responsibilities of each party related to the prevention of and response to on-campus and off-campus sexual assault.  Institutions of higher education and local law enforcement agencies shall develop policies and procedures that comply with all applicable confidentiality and privacy laws and: (i) set out the jurisdiction of the local law enforcement agencies based on criteria such as location and type of incident and provide for cross-jurisdictional or multi-jurisdictional response and investigation, as appropriate; (ii) establish the methods for sharing the Clery Act reporting requirements and for facilitating the issuance of timely warnings and emergency notifications required by the Clery Act relative to crimes that may pose a serious threat to the campus or near campus communities; and (iii) establish protocols, as permitted by federal and state law, for cases where a student consents to the release of relevant documentation and information generated or acquired during local law enforcement or campus police investigations; and (iv) methods for notifying the appropriate district attorney’s office.

(d) The commissioner shall appoint within the department of higher education a campus safety advisor to facilitate and advance statewide campus safety at public and private institutions of higher education.  Such person shall have relevant public safety policy experience that may include campus public safety policy experience. The advisor shall coordinate, aggregate and disseminate best practices, training opportunities and other resources to enhance campus safety at institutions of higher education. The board of higher education shall promulgate regulations to establish and implement the role and responsibilities of the advisor including, but not limited to, establishing minimum standards for campus security and safety issues.

(e) An institution of higher education shall make publicly available on its website: (i) all annual Clery Act disclosures relating to dating violence, domestic violence, sexual assault and stalking and all information contained in an institution’s annual report as required in subsection (r); (ii) the telephone number and website for a local, state or national 24-hour hotline that provides information on dating violence, domestic violence, sexual assault and stalking; (iii) the name and contact information for the institution’s Title IX coordinator; (iv) the name and contact information for a confidential resources advisor and a description of the role of and services provided by the confidential resources advisor, which shall be updated on a timely basis; and (v) the name and location of the nearest medical facility where an individual may request that a sexual assault evidence collection kit be administered by a trained sexual violence forensic health care provider, including information on transportation options and reimbursement for travel costs, if any; and (vi) in an accessible format, the policy on dating violence, domestic violence, sexual assault and stalking.

(f) Annually, not later than October 1, institutions of higher education shall transmit to students by electronic mail its policies and procedures concerning the reporting and investigation of an allegation of dating violence, domestic violence, sexual assault or stalking made by a student or employee of the institution against another student or employee of the institution in accordance with section 168D of chapter 6.

(g) Upon receiving a report of dating violence, domestic violence, sexual assault or stalking, an institution of higher education shall provide an objectively clear and easily understood notification of the student’s or employee’s rights and options under the institution's dating violence, domestic violence, sexual assault or stalking policies to the reporting party and the responding party, when feasible.

(h) An institution of higher education shall enter into and maintain a memorandum of understanding with a community-based sexual assault crisis service center funded by the department of public health and a community-based domestic violence agency funded by the department of public health to: (i) provide an off-campus alternative for students to receive sexual assault crisis services, including access to a sexual assault nurse examiner if available, or domestic violence crisis services in response to dating violence, domestic violence, sexual assault or stalking; (ii) ensure that a student or employee of the institution may access free and confidential counseling and advocacy services either on campus or off campus; and (iii) encourage cooperation and trainings between the institution and the service center or agency to ensure an understanding the roles that the institution, service center and agency should play in responding to reports and disclosures of dating violence, domestic violence, sexual assault or stalking against students and employees of the institution and the institution's protocols for providing support and services to such students and employees.

The memorandum of understanding may include an agreement, including a fee structure, for the sexual assault crisis service center or domestic violence agency to provide confidential victim services. Confidential victim services may include: case consultation and training fees for confidential resource advisors; consultation fees for the development and implementation of student education and prevention programs; the development of staff training and prevention curriculum; and confidential on-site office space for an advocate from a sexual assault crisis service center or domestic violence agency to meet with students.     

The department of higher education may grant a waiver of the memorandum of understanding requirement to an institution that demonstrates that the institution acted in good faith but was unable to obtain a signed memorandum.

(i) An institution of higher education shall provide a method for anonymously reporting an incident of dating violence, domestic violence, sexual assault or stalking that involves a student or employee of the institution. An institution shall notify its students and employees of the institution's obligations under state and federal law to: (i) investigate or address the alleged dating violence, domestic violence, sexual assault or stalking, including when the alleged act was reported anonymously; (ii) assess whether the report triggers the need for a timely warning or emergency notification under 34 CFR 668.46(e), the obligations of which may, in limited circumstances, result in the release of the reporting party's identity; and (iii) disclose the identity of a reporting party to another student, an employee or a third party.

(j) A reporting party or a witness that causes an investigation of dating violence, domestic violence, sexual assault or stalking shall not be subject to a disciplinary sanction for a violation of the institution’s student conduct policy related to the incident unless the institution determines that the report was not made in good faith or that the violation was egregious. An egregious violation shall include, but not be limited to, taking an action that places the health and safety of another person at risk.

(k) Each institution of higher education shall establish a campus security policy that includes the designation of at least 1 confidential resource advisor.  The confidential resource advisor may have another role at the institution; provided, however, that the confidential resource advisor shall not be an employee designated as a responsible employee or a student or a Title IX coordinator.

The institution shall designate existing categories of employees that may serve as confidential resource advisors. The designation of an existing category of employees shall not preclude the institution from designating a new or existing employee or partnering with a local, state or national victim services organization to serve as a confidential resource advisor or to serve in another confidential role. An institution may partner with an outside victim advocacy organization to provide a confidential resource advisor under this section. An institution that enrolls less than 1,000 students may partner with another institution in the region or within the commonwealth to provide the services under this subsection.

If requested by the reporting party, the confidential resource advisor shall provide information on: (i) reporting options and the effects of each option; (ii) counseling services available on campus and through a local, community-based rape crisis center or domestic violence program;  (iii) medical and health services available on campus and off campus; (iv) available academic and residence life accommodations; (v) the disciplinary process of the institution; and (vi) the legal process carried out through local law enforcement agencies. The confidential resource advisor shall receive training in the awareness and prevention of dating violence, domestic violence, sexual assault and stalking and in trauma-informed response and coordinate with on-campus and off-campus sexual assault crisis service centers and, if directed by the reporting party, campus or local law enforcement agencies may, as appropriate, assist the student in contacting or reporting to campus or local law enforcement agencies. If requested by the reporting party, the confidential resource advisor, using only the reporting party’s identifying information, shall coordinate with the institutional designee  to arrange possible interim protective measures to allow the reporting party  to change academic, living, campus transportation or working arrangements in response to the alleged assault, stalking or violence.  Confidential resource advisors shall not provide services to more than 1 student in an incident and shall ensure confidentiality is maintained.

The confidential resource advisor shall also notify the reporting party of their rights and the institution's responsibilities regarding a protection order, no contact order and any other lawful orders issued by the institution or by a criminal, civil or tribal court.  The confidential resource advisor shall not be required to report an incident to the institution or a law enforcement agency unless otherwise required to do so by state or federal law and shall provide confidential services to students and employees. A request for a possible interim protective measure made by a confidential resource advisor on behalf of a reporting party to change an academic, living, campus transportation or working situation in response to alleged dating violence, domestic violence, sexual assault or stalking shall not constitute notice to a responsible employee for Title IX purposes.

The website of an institution of higher education shall list: (i) reporting options for students; (ii) the process of investigation and adjudication by the institution; and (iii) the process for requesting a possible interim protective measure, when reasonable and available, to change an academic, living, campus transportation or working situation in response to alleged dating violence, domestic violence, sexual assault or stalking.

If a conflict of interest arises for an institution in which a confidential resource advisor is advocating for the reporting party’s need for sexual assault crisis services or campus or law enforcement services, the institution shall not discipline, penalize or otherwise retaliate against the confidential resource advisor for representing the interest of the student.

A confidential resource advisor may attend an administrative or institution-based adjudication proceeding as the advisor or support person of the student’s choice.

Unless otherwise required by state or federal law, a confidential resource advisor shall not disclose confidential information without the prior written consent of the reporting party who shared the information; provided, however, that nothing in this section shall be construed to limit a defendant’s right of cross examination of the advisor in a civil or criminal proceeding if the advisor testifies after written consent has been given. A confidential communication shall not be subject to discovery and shall be inadmissible in a criminal or civil proceeding without the prior written consent of the reporting party who shared the information. Information provided to the confidential resource advisor shall not be released to a campus official or law enforcement officer or agency unless written consent has been given by the reporting party.  A confidential resource advisor shall not act as a counselor or therapist unless the confidential resource advisor holds a valid license under chapter 112 and the reporting party engages the confidential resource advisor in that capacity.  The privileges available under chapter 233 shall apply to all information received by a confidential resource advisor.

(l) An institution of higher education shall provide: (i) mandatory annual dating violence, domestic violence, sexual assault and stalking primary prevention and awareness programming for newly-enrolled students and newly-hired employees of the institution that shall include: (1) an explanation of consent as it applies to sexual activity and sexual relationships; (2) the role drugs and alcohol play in an individual’s ability to consent; (3) information on options relating to the reporting of an incident of dating violence, domestic violence, sexual assault or stalking, the effects of each option and the methods to report an incident of dating violence, domestic violence, sexual assault or stalking, including confidential and anonymous disclosure; (4) information on the institution's procedures for resolving dating violence, domestic violence, sexual assault or stalking complaints and the range of sanctions or penalties the institution may impose on students and employees found responsible for a violation; (5) the name, contact information and role of the confidential resource advisor; and (6) strategies for bystander intervention and risk reduction; and (ii) opportunities for ongoing dating violence, domestic violence, sexual assault and stalking prevention and awareness campaigns and programming.

(m) Notice to a confidential resource advisor of an alleged act of sexual assault, domestic violence, dating violence or stalking or a confidential resource advisor’s performance of a service under this section shall not be considered actual or constructive notice of such an alleged act to the institution of higher education at which the confidential resource advisor is employed or provides contracted services.

(n) Each institution of higher education shall employ responsible employees as defined in subsection (a) who shall be responsible for reporting cases of dating violence, domestic violence, sexual assault and stalking to the Title IX coordinator of the institution.  Responsible employees shall report the name of the respondent, the name of reporting party, and the date, time and location of the offense, if known, to the Title IX coordinator.  Responsible employees shall complete minimum training requirements as determined by the department of higher education in coordination with the attorney general and shall include training by a local, state or national victim services organization.  Responsible employees shall provide a student or employee who reports an incident of dating violence, domestic violence, sexual assault or stalking, whether the offense occurred on campus or off campus, with a written explanation of the student’s or employee's rights and options pursuant to section 168D of chapter 6.

(o) An individual who participates in the implementation of an institution of higher education's disciplinary process, including an individual responsible for resolving complaints of reported incidents, shall have training or experience in handling dating violence, domestic violence, sexual assault and stalking complaints and the operations of the institution's disciplinary process. The training shall include, but not be limited to: (i) information on working with and interviewing persons subjected to dating violence, domestic violence, sexual assault or stalking; (ii) information on particular types of conduct that constitute dating violence, domestic violence, sexual assault and stalking, including same-sex dating violence, domestic violence, sexual assault and stalking; (iii) information on consent and the role drugs and alcohol may play in an individual’s ability to consent; (iv) the effects of trauma, including any neurobiological impact on a person; (v) cultural competence training regarding how dating violence, sexual assault and stalking may impact students differently depending on factors that contribute to a student’s cultural background, including but not limited to: national origin, sex, ethnicity, religion, gender identity, gender expression, and sexual orientation; (vi) ways to communicate sensitively and compassionately with a reporting party of dating violence, domestic violence, sexual assault or stalking including, but not limited to, an awareness of responding to a reporting party with consideration of that party’s cultural background and providing services to or assisting in locating services for the reporting party; and (vii) training and information regarding how dating violence, domestic violence, sexual assault and stalking may impact students with developmental or intellectual disabilities.

(p) Each institution of higher education shall ensure that its Title IX coordinator and members of its special or campus police force or the campus safety personnel employed by the institution are educated in the awareness and prevention of dating violence, domestic violence, sexual assault and stalking and in trauma-informed response.

(q) Notwithstanding any general or special law to the contrary, a member of the department of state police or a local police department who acts as a first responder to a report of dating violence, domestic violence, sexual assault or stalking at an institution of higher education shall receive training in the awareness and prevention of dating violence, domestic violence, sexual assault and stalking and in trauma-informed response, subject to appropriation.

(r) Annually, not later than October 1, an institution of higher education shall prepare and submit to the department of higher education, the department of public health, the clerks of the senate and house of representatives and the senate and house chairs of the joint committee on higher education a report that includes: (i) the total number of allegations of dating violence, domestic violence, sexual assault and stalking reported to the institution’s Title IX coordinator by a responsible employee, student or employee of the institution against another student or employee of the institution; (ii) the number of cases made by a student or employee of the institution against another student or employee of the institution investigated by local or state law enforcement agency, if known; (iii) the number of students found responsible for violating an institution’s policies prohibiting dating violence, domestic violence, sexual assault and stalking; (iv) the number of students found not responsible for violating an institution’s policies prohibiting sexual assault; and (v) the number of disciplinary actions imposed by the institution as a result of a finding of responsibility for violating an institution’s policies prohibiting sexual assault. The report shall provide information in a de-identified manner that complies with state and federal privacy laws.