Requires college campuses to adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, involving on and off campus students; where feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students; implements comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking.
STATE OF NEW YORK
________________________________________________________________________
5400
2015-2016 Regular Sessions
IN ASSEMBLY
February 20, 2015
___________
Introduced by M. of A. PAULIN, ENGLEBRIGHT, JAFFEE, STIRPE, BARRETT,
DINOWITZ, GALEF, HOOPER, MAGNARELLI, OTIS, ROBINSON, RUSSELL, SCARBOR-
OUGH, SKOUFIS, THIELE, TITONE -- Multi-Sponsored by -- M. of A. BREN-
NAN, LAVINE -- read once and referred to the Committee on Higher
Education
AN ACT to amend the education law, in relation to requiring college
campuses to adopt a policy concerning sexual assault, domestic
violence, dating violence, and stalking, involving on and off campus
students
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The education law is amended by adding a new section 6432-a
2 to read as follows:
3 § 6432-a. Policy concerning sexual assault, domestic violence, dating
4 violence and stalking. 1. The trustees or other governing board of every
5 college chartered by the regents or incorporated by special act of the
6 legislature and which maintains a campus, unless otherwise provided,
7 shall adopt a policy concerning sexual assault, domestic violence,
8 dating violence, and stalking, involving a student, both on and off
9 campus. The policy shall include all of the following:
10 a. An affirmative consent standard in the determination of whether
11 consent was given by both parties to sexual activity. "Affirmative
12 consent" means affirmative, conscious, and voluntary agreement to engage
13 in sexual activity. It is the responsibility of each person involved in
14 the sexual activity to ensure that he or she has the affirmative consent
15 of the other or others to engage in the sexual activity. Lack of protest
16 or resistance does not mean consent, nor does silence mean consent.
17 Affirmative consent must be ongoing throughout a sexual activity and can
18 be revoked at any time. The existence of a dating relationship between
19 the persons involved, or the fact of past sexual relations between them,
20 should never by itself be assumed to be an indicator of consent.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08742-01-5
A. 5400 2
1 b. A policy that, in the evaluation of complaints in any disciplinary
2 process, it shall not be a valid excuse to alleged lack of affirmative
3 consent that the accused believed that the complainant consented to the
4 sexual activity under either of the following circumstances:
5 (i) The accused's belief in affirmative consent arose from the intoxi-
6 cation or recklessness of the accused.
7 (ii) The accused did not take reasonable steps, in the circumstances
8 known to the accused at the time, to ascertain whether the complainant
9 affirmatively consented.
10 c. A policy that the standard used in determining whether the elements
11 of the complaint against the accused have been demonstrated is the
12 preponderance of the evidence.
13 d. A policy that, in the evaluation of complaints in the disciplinary
14 process, it shall not be a valid excuse that the accused believed that
15 the complainant affirmatively consented to the sexual activity if the
16 accused knew or reasonably should have known that the complainant was
17 unable to consent to the sexual activity under any of the following
18 circumstances:
19 (i) The complainant was asleep or unconscious.
20 (ii) The complainant was incapacitated due to the influence of drugs,
21 alcohol, or medication, so that the complainant could not understand the
22 fact, nature, or extent of the sexual activity.
23 (iii) The complainant was unable to communicate due to a mental or
24 physical condition.
25 (iv) The complainant was threatened with physical injury or was
26 prevented from leaving the site where the sexual activity occurred, or
27 was coerced to consent to the sexual activity.
28 2. The trustees or other governing board of every college chartered by
29 the regents or incorporated by special act of the legislature and which
30 maintains a campus, unless otherwise provided, shall adopt detailed and
31 victim-centered policies and protocols regarding sexual assault, domes-
32 tic violence, dating violence, and stalking involving a student that
33 comport with best practices and current professional standards. At a
34 minimum, the policies and protocols shall cover all of the following:
35 a. A policy statement on how the institution will provide appropriate
36 protections for the privacy of individuals involved, including confiden-
37 tiality.
38 b. Initial response by the institution's personnel to a report of an
39 incident, including requirements specific to assisting the victim,
40 providing information in writing about the importance of preserving
41 evidence, and the identification and location of witnesses.
42 c. Response to stranger and non-stranger sexual assault.
43 d. The preliminary victim interview, including the development of a
44 victim interview protocol, and a comprehensive follow-up victim inter-
45 view, as appropriate.
46 e. Contacting and interviewing the accused.
47 f. Seeking the identification and location of witnesses.
48 g. Providing written notification to the victim about the availability
49 of, and contact information for, on- and off-campus resources and
50 services, and coordination with law enforcement, as appropriate.
51 h. Participation of victim advocates and other supporting people.
52 i. Investigating allegations that alcohol or drugs were involved in
53 the incident.
54 j. Providing that an individual who participates as a complainant or
55 witness in an investigation of sexual assault, domestic violence, dating
56 violence, or stalking will not be subject to disciplinary sanctions for
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1 a violation of the institution's student conduct policy at or near the
2 time of the incident, unless the institution determines that the
3 violation was egregious, including, but not limited to, an action that
4 places the health or safety of any other person at risk or involves
5 plagiarism, cheating, or academic dishonesty.
6 k. The role of the institutional staff supervision.
7 l. A comprehensive, trauma-informed training program for campus offi-
8 cials involved in investigating and adjudicating sexual assault, domes-
9 tic violence, dating violence, and stalking cases.
10 m. Procedures for confidential reporting by victims and third parties.
11 3. The trustees or other governing board of every college chartered by
12 the regents or incorporated by special act of the legislature and which
13 maintains a campus, unless otherwise provided, shall, to the extent
14 feasible, enter into memoranda of understanding, agreements, or collabo-
15 rative partnerships with existing on-campus and community-based organ-
16 izations, including rape crisis centers, to refer students for assist-
17 ance or make services available to students, including counseling,
18 health, mental health, victim advocacy, and legal assistance, and
19 including resources for the accused.
20 4. The trustees or other governing board of every college chartered by
21 the regents or incorporated by special act of the legislature and which
22 maintains a campus, unless otherwise provided, shall implement compre-
23 hensive prevention and outreach programs addressing sexual violence,
24 domestic violence, dating violence, and stalking. A comprehensive
25 prevention program shall include a range of prevention strategies,
26 including, but not limited to, empowerment programming for victim
27 prevention, awareness raising campaigns, primary prevention, bystander
28 intervention, and risk reduction. Outreach programs shall be provided to
29 make students aware of the institution's policy on sexual assault,
30 domestic violence, dating violence, and stalking. At a minimum, an
31 outreach program shall include a process for contacting and informing
32 the student body, campus organizations, athletic programs, and student
33 groups about the institution's sexual assault policy, the practical
34 implications of an affirmative consent standard, and the rights and
35 responsibilities of students under the policy.
36 5. a. Every college under this section shall provide copies of the
37 policies and protocols required to be adopted under subdivisions one and
38 two of this section to all students enrolled in said college.
39 b. Each college shall annually file with the department on or before
40 the first day of July a certificate of compliance with the provisions of
41 this section, together with copies of the policies and protocols
42 required to be adopted by such college under this section.
43 c. If a college fails to file a certificate of compliance pursuant to
44 paragraph b of this subdivision within sixty days of the time required,
45 such college shall not be eligible to receive any state aid or assist-
46 ance until such certificate of compliance is duly filed.
47 § 2. Paragraphs a and c of subdivision 3 of section 6431 of education
48 law, as amended by chapter 13 of the laws of 2009, are amended to read
49 as follows:
50 a. educating the campus community, including security personnel and
51 those persons who advise or supervise students, about sexual assault,
52 domestic violence, dating violence and stalking offenses pursuant to
53 section sixty-four hundred thirty-two of this article;
54 c. reporting sexual assaults, domestic violence, dating violence and
55 stalking incidents and assisting victims during investigations, consist-
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1 ent with the provisions of subdivision two of section sixty-four hundred
2 thirty-two-a of this article;
3 § 3. The section heading, the opening paragraph and subdivisions 2 and
4 5 of section 6432 of education law, as amended by chapter 13 of the laws
5 of 2009, are amended to read as follows:
6 Sexual assault, domestic violence, dating violence and stalking
7 prevention information. Each college shall inform incoming students
8 about its policies and protocols regarding sexual assault, domestic
9 violence, dating violence, and stalking, including prevention measures
10 through comprehensive prevention and outreach programs as described in
11 subdivision four of section sixty-four hundred thirty-two-a of this
12 article and such other programs which may include workshops, seminars,
13 discussion groups, and film presentations, in order to disseminate
14 information, promote discussion, encourage reporting, and facilitate
15 prevention of sexual assault, domestic violence, dating violence and
16 stalking. Such information shall include, but not be limited to:
17 2. the penalties for the commission of a sex offense, a domestic
18 violence incident, a dating violence incident and a stalking offense;
19 5. the nature of and common circumstances relating to sex offenses,
20 incidents of domestic violence, incidents of dating violence and stalk-
21 ing offenses on college campuses; and
22 § 4. This act shall take effect immediately.
