Bill H.4418

FILED ON: 2/4/2020

HOUSE . . . . . . . . . . . . . . . No. 4418

The Commonwealth of Massachusetts

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

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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, as appearing in the 2018 official edition, of the General Laws is hereby amended by inserting after section 168C the following sections:-

Section 168D. (a) For the purposes of this section, the following terms shall have the following meanings:-

“Institution”, a public or independent institution of higher education located in the commonwealth and authorized to grant degrees pursuant to any general or special law.

“Sexual misconduct”, an incident of sexual violence, dating violence, domestic violence, gender-based violence, violence based on sexual orientation or gender identity or expression, sexual assault, sexual harassment and stalking.

(b) Each institution shall conduct a sexual misconduct climate survey of all students at said institution at least once every four years.

(c) There shall be a task force on sexual misconduct surveys. The task force shall consist of the following 23 members: the commissioner of higher education, or a designee, who shall serve as co-chair; the commissioner of public health or a designee, who shall serve as co-chair; the secretary of the executive office of public safety and security, or a designee; the attorney general, or a designee; 1 person appointed by the speaker of the house; 1 person appointed by the senate president; and 17 other members who shall be appointed by the governor, 1 of whom shall be a student attending a public institution of higher education in the commonwealth, 1 of whom shall be a student attending a private institution of higher education in the commonwealth, 1 of whom shall be a representative of the University of Massachusetts recommended by the president of the university, 1 of whom shall be a representative of the state universities recommended by the council of presidents of the state university system, 1 of whom shall be a representative of the community colleges recommended by Massachusetts Association of Community Colleges executive office, 2 of whom shall be representatives of private colleges and universities recommended by the Association of Independent Colleges and Universities in Massachusetts, Inc., 1 of whom shall be a representative recommended by Jane Doe, Inc., 1 of whom shall be a representative recommended by the Victim Rights Law Center, Inc., 2 of whom shall be representatives recommended by rape crisis and counseling centers located in an urban and rural region of the commonwealth, 2 of whom shall be representatives recommended by community-based sexual assault crisis service centers funded by the department of public health, 1 of whom shall be a representative recommended by the Massachusetts commission on lesbian, gay, bisexual, transgender, queer and questioning youth, 1 of whom shall be a representative recommended by Every Voice Coalition or any successor organization of Every Voice Coalition, 1 of whom shall be a researcher with experience in the development and design of sexual misconduct climate surveys, and 1 of whom shall be a researcher of statistics, data analytics or econometrics with experience in higher education survey analysis.

(d) The task force shall develop for the commissioner of higher education model questions for a sexual misconduct climate survey for distribution to institutions under this section, and shall provide the commissioner with any related recommendations respecting the content, timing and application of the surveys. The task force shall deliver its model survey questions and related recommendations, including but not limited to recommendations on achieving statistically valid response rates, to the commissioner of higher education.

(e) In developing the model sexual misconduct climate survey questions, the task force shall: (i) utilize best practices from peer-reviewed research and consult with individuals with expertise in the development and use of sexual misconduct climate surveys by institutions of higher education; (ii) review sexual misconduct climate surveys which have been developed and previously utilized by institutions of higher education; (iii) provide opportunities for written comment from organizations that work directly with victims and survivors of sexual misconduct to ensure the adequacy and appropriateness of the proposed content; (iv) consult with institutions of higher education on strategies for optimizing the effectiveness of the survey; (v) provide opportunities for written comment from advocates to ensure that the survey impartially addresses campus sexual misconduct; and (vi) account for the diverse needs and differences of the commonwealth’s institutions of higher education.

(f)The sexual misconduct climate surveys shall gather information on topics including, but not limited to:

(i) the number of reported and unreported incidents of sexual misconduct at the institution of higher education;

(ii) when and where incidents of sexual misconduct occurred;

(iii) student awareness of institutional policies and procedures related to campus sexual assault;

(iv) whether a victim reported the sexual misconduct, and if so, to which campus resource such report was made;

(iv) whether a victim was informed or referred to local, state, campus or other resources, or victim support services, including appropriate medical care and legal services;

(v) whether a victim was provided with information about resources for protection from retaliation, access to school-based accommodations, civil justice and criminal justice remedies;

(vi) contextual factors, such as the involvement of force, incapacitation or coercion; (vii) demographic information that could be used to identify at-risk groups;

(viii) perceptions of campus safety among members of the campus community and confidence in the institution of higher education’s ability to protect against and respond to incidents of sexual misconduct.

(g) The commissioner of higher education shall review and approve the model sexual misconduct climate survey questions recommended by the task force on sexual misconduct climate surveys, and thereafter the commissioner shall periodically review and make recommendations for changes to the model sexual misconduct climate survey questions. The commissioner of higher education shall provide a copy of the model sexual misconduct climate survey questions to all institutions; provided further, however, that an institution may develop and use its own campus-specific surveys as long as such survey is designed to provide the institution with data to inform policies to prevent and respond to sexual misconduct and includes the model survey questions.

(h) Within 120 days after completion and analysis of a sexual misconduct climate survey, each institution shall post a summary of the results on the institution’s website.

(i) The model sexual misconduct climate survey, and campus-specific surveys developed and implemented by individual institutions of higher education, shall collect anonymous responses and shall prohibit the disclosure of identifying information.

Section 168E.

(a) For the purposes of this section, the following terms shall have the following meanings:-

“Institution”, a public or independent institution of higher education located in the commonwealth and authorized to grant degrees pursuant to any general or special law.

“Reporting party”, a student or employee of the institution who reports being subject to an incident of sexual misconduct to the institution.

“Responding party”, a student or employee of the institution who has been accused of an alleged incident of sexual misconduct.

“Responsible employee”, any employee who has the authority to take action to redress sexual misconduct; who has been given the duty of reporting incidents of sexual misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.

(b) Each institution shall adopt policies on sexual misconduct involving students or employees of the institution that comport with the best practices and current professional standards and shall establish procedures for regularly reviewing and updating the policies. The policies shall be made available in writing, upon request, to an applicant, student or employee of the institution and shall be publicly available on the website in an accessible format. 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. The policies shall include, but not be limited to:

(i) procedures by which students and employees at the institution may report or disclose incidents of sexual misconduct regardless of where the offense occurred;

(ii) information on where to receive immediate emergency assistance following an incident of sexual misconduct 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) information on 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 sexual misconduct; (2) receive assistance from campus authorities in making any such notification; (3) obtain a court-issued protective order or institution issued no-contact orders against an alleged perpetrator of the assault, stalking or violence; and (4) utilize concurrently the institution’s process for investigating sexual misconduct complaints and any external civil or criminal processes available to them.

(v) Supportive or 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 sexual misconduct, 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 complaints of sexual misconduct promptly and equitably, including clear statements advising students:

(1) that notice shall be given to the responding party which shall include, but not be limited to, the date, time and location, if known, and a specific statement of which policies were allegedly violated and by what actions; (2) that an impartial 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 sexual misconduct, investigatory procedures and hearing procedures to protect the safety and rights of students and promote accountability; (3) that the responding party is presumed to be innocent of the allegations until each element of the alleged offence or offenses have been proven by the institution; (4) that both parties shall be provided equal opportunities to inspect and review evidence obtained as part of the investigation that is directly related to the allegations; (5) that the reporting party of an alleged incident of sexual misconduct and the responding party may be accompanied by and represented 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; (6) of the standard of evidence used to resolve complaints; (7) 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; (8) 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, provided, however, that evidence of prior sexual activity may be allowed when it is evidence of the reporting party’s recent conduct alleged to be the cause of any physical feature, characteristic, or condition of the reporting party or when the exclusion of which would violate the constitutional rights of the responding party; (9) that the reporting party and the responding party shall not be allowed to directly question each other during disciplinary proceedings; (10) 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; (11) 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 responding party shall be provided with an equal opportunity to appeal decisions regarding responsibility or sanctions; and (12) 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 sexual misconduct;

(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 sexual misconduct; and

(x) a summary of the institution’s policy on retaliation, noting that the university prohibits retaliation against anyone who reports sexual misconduct, who assists another in making a report, or who participates in an investigation of a report.

(c) Each institution shall adopt a memorandum of understanding 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 misconduct. Institutions 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 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 (iii) methods for notifying the appropriate district attorney’s office. In those instances where an institution is subject to the jurisdiction of more than one local law enforcement agency, one memorandum of understanding among the institution and the local law enforcement agencies will comply with this subsection.

(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.

(e) An institution shall make publicly available on its website: (i) the Annual Security Report required under the federal Clery Act relating to sexual misconduct 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 sexual misconduct; (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 sexual misconduct. The institution shall also establish the methods for sharing the federal Clery Act reporting requirements with local law enforcement authorities, and for facilitating the issuance of timely warnings and emergency notifications required by the federal Clery Act relative to crimes that may pose a serious threat to the campus or near campus communities.

The website of an institution shall also 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 sexual misconduct.

(f) Annually, not later than October 15, institutions of higher education shall transmit to students by electronic mail their policies and procedures concerning the reporting and investigation of an allegation of sexual misconduct made by a student or employee of the institution against another student or employee of the institution.

(g) Upon receiving a report of sexual misconduct, an institution shall provide a notice of the student’s or the employee’s rights and options under the institution's sexual misconduct policies to the reporting party and the responding party.

(h) An institution that does not provide its own sexual assault crisis service center 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 sexual misconduct; (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 of the roles that the institution, service center and agency should play in responding to reports and disclosures of sexual misconduct 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 shall provide a method for anonymously reporting an incident of sexual misconduct 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 sexual misconduct, including when the alleged act was reported anonymously; (ii) assess whether the report triggers the need for a timely warning or emergency notification under state or federal regulations, 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 who causes an investigation of sexual misconduct 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 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 new or 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 sexual misconduct 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 one 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 sexual misconduct shall not constitute notice to a responsible employee for Title IX purposes. 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 responding party’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.

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.

Notice to a confidential resource advisor of an alleged act of sexual misconduct 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 at which the confidential resource advisor is employed or provides contracted services.

(l) Each institution shall employ responsible employees as defined in subsection (a) who shall be responsible for reporting cases of sexual misconduct to the Title IX coordinator of the institution. Responsible employees shall report the name of the responding party, 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 training requirements consistent with best practices and current professional standards..

(m) Within 45 days of their matriculation or employment, an institution of higher education shall provide: (i) mandatory sexual misconduct primary prevention and awareness programming for newly-enrolled students and newly-hired employees of the institution that shall include: (1) an explanation of civil rights laws, their meaning, purpose, definition and applicability to all forms of sex/gender based harm; (2) the role drugs and alcohol play in changing behavior and affecting an individual’s ability to consent; (3) information on options relating to the reporting of an incident of sexual misconduct, the effects of each option and the methods to report an incident of sexual misconduct, including confidential and anonymous disclosure; (4) information on the institution's procedures for resolving sexual misconduct 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 sexual misconduct prevention and awareness campaigns and programming.

(n) An individual who participates in the implementation of an institution of higher education's disciplinary process for addressing complaints of sexual misconduct, including an individual responsible for resolving complaints of reported incidents, shall have training or experience in handling sexual misconduct complaints and the operations of the institution's applicable disciplinary process. The training shall include, but not be limited to: (i) information on working with and interviewing persons subjected sexual misconduct; (ii) information on particular types of conduct that constitute sexual misconduct;; (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 sexual misconduct 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 sexual misconduct 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; (vii) training and information regarding how sexual misconduct may impact students with developmental or intellectual disabilities; and (viii) training on the principles of due process necessary to ensure that proceedings are conducted impartially in a manner that is fundamentally fair to all parties.

(o) 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 sexual misconduct.

(p) 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 sexual misconduct at an institution of higher education shall, subject to appropriation, receive training in the awareness and prevention of sexual misconduct.

(q) Nothing within this section shall be construed to prevent any other civil rights remedies available through any other provisions of federal or state law.

(r) Annually, not later than October 1, each institution of higher education shall prepare and submit to the department of higher education a report that includes: (i) the total number of allegations of sexual misconduct 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 sexual misconduct; (iv) the number of students found not responsible for violating an institution’s policies prohibiting sexual misconduct; 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 misconduct. Said incident data shall be reported in the form and manner established by the department, in consultation with the attorney general, and in a manner that complies with state and federal privacy laws. The department shall analyze the reports and incident data and shall publish an annual report containing aggregate statewide information on the frequency and nature of sexual misconduct on campuses. The department shall file the annual report with the attorney general and with the clerks of the senate and the house of representatives who shall forward the same to the chairs of the joint committee on higher education.

SECTION 2: The task force on sexual misconduct conduct surveys established in Section 1 of this act, shall deliver its model survey questions and related material required pursuant to Section 1, to the commissioner of higher education, no later than May 31, 2021.