Regular Session 2015-2016 Senate Bill 1005 P.N. 1236

PRINTER'S NO. 1236

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1005

Session of

2015

INTRODUCED BY WILLIAMS, FONTANA, TARTAGLIONE, COSTA, FARNESE,

HUGHES, RAFFERTY AND HAYWOOD, SEPTEMBER 16, 2015

REFERRED TO EDUCATION, SEPTEMBER 16, 2015

AN ACT

Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An

act relating to the public school system, including certain

provisions applicable as well to private and parochial

schools; amending, revising, consolidating and changing the

laws relating thereto," providing for sexual violence

policies at institutions of higher education.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The act of March 10, 1949 (P.L.30, No.14), known

as the Public School Code of 1949, is amended by adding an

article to read:

ARTICLE XX-H

SEXUAL VIOLENCE POLICIES AT

INSTITUTIONS OF HIGHER EDUCATION

Section 2001-H. Scope of article.

This article relates to colleges and universities adopting

affirmative consent policies in determining whether or not a

sexual activity is consensual and victim-centered procedures.

Section 2002-H. Definitions.

The following words and phrases when used in this article

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Academic year." A 12-month period commencing on or after

August 1 of the calendar year.

"Accused." An individual who is accused by a complainant of

engaging in sexual violence.

"Affirmative consent." An affirmative, conscious and

voluntary agreement to engage in sexual activity. The term does

not include any of the following:

(1) Lack of protest or resistance.

(2) Silence.

"Complainant." An individual who alleges to be a victim of

sexual violence perpetrated by the accused.

"Department." The Department of Education of the

Commonwealth.

"Independent institution of higher education." As defined in

the act of November 29, 2004 (P.L.1383, No.180), known as the

Uniform Crime Reporting Act.

"Institution of higher education." An independent

institution of higher education, a community college, a State-

related institution or a member institution of the State System

of Higher Education.

"Private licensed school." As defined in the act of December

15, 1986 (P.L.1585, No.174), known as the Private Licensed

Schools Act.

"Program." A comprehensive prevention and outreach program

established under section 2006-H(a).

"Sexual violence." An act of sexual violence as defined in

42 Pa.C.S. § 6402 (relating to definitions).

"Student." A person who is enrolled on a full-time or part-

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time basis at an institution of higher education or private

licensed school.

Section 2003-H. Affirmative consent policies.

(a) Affirmative consent.--An institution of higher education

or a private licensed school shall adopt affirmative consent

policies concerning sexual violence occurring on campus and off

campus. The institution of higher education or private licensed

school shall adopt policies for all of the following:

(1) Determining whether or not affirmative consent was

given by each individual engaged in a sexual activity in

accordance with all of the following:

(i) Affirmative consent must be ongoing throughout a

sexual activity and can be revoked at any time.

(ii) The existence of a dating relationship or past

sexual activity between the individuals engaged in a

sexual activity is not an indicator of affirmative

consent.

(iii) Before and during a sexual activity, it is the

responsibility of each individual engaged in a sexual

activity to ensure that he or she has the affirmative

consent of the other to engage or continue to engage in a

sexual activity.

(2) Determining whether or not the elements of the

complaint against the accused have been established by a

preponderance of the evidence by the complainant.

(b) Invalid defenses.--

(1) In evaluating a sexual violence complaint during a

disciplinary proceeding, an institution of higher education

or a private licensed school may not accept any of the

following as a valid defense to an alleged lack of

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affirmative consent:

(i) The accused believed that the complainant

affirmatively consented to a sexual activity due to the

intoxication or recklessness of the accused.

(ii) The accused did not take reasonable steps, in

the circumstances known to the accused at the time, to

ascertain whether or not the complainant affirmatively

consented.

(2) In evaluating a sexual violence complaint during a

disciplinary proceeding, an institution of higher education

or private licensed school may not accept as a valid defense

that the accused believed that the complainant affirmatively

consented to a sexual activity if the accused knew or should

have reasonably known that the complainant was unable to

consent to a sexual activity under any of the following

circumstances:

(i) The complainant was asleep or unconscious.

(ii) The complainant was incapacitated due to the

influence of drugs, alcohol or medication to the degree

that the complainant could not understand the fact,

nature or extent of the sexual activity.

(iii) The complainant was unable to communicate due

to a mental or physical condition.

Section 2004-H. Victim-centered procedures.

An institution of higher education or a private licensed

school shall adopt detailed, victim-centered procedures

regarding sexual violence in accordance with the best practices

and current professional standards. The institution of higher

education or private licensed school shall adopt procedures for

all of the following:

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(1) Providing appropriate protections for the privacy of

victims of sexual violence, including confidentiality.

(2) Initially responding to an incident of sexual

violence by the personnel of the institution of higher

education or private licensed school, including reporting

the incident, assisting the victim of sexual violence,

providing information in writing about the importance of

preserving evidence.

(3) Responding to stranger and nonstranger sexual

violence.

(4) Conducting a preliminary interview of a victim of

sexual violence and a comprehensive followup interview of the

victim of sexual violence, if applicable.

(5) Contacting and interviewing an accused.

(6) Seeking the identification and location of

witnesses.

(7) Providing written notification to a victim of sexual

violence about the availability of on-campus and off-campus

resources and services for victims of sexual violence.

(8) Recruiting victim advocates to support a victim of

sexual violence.

(9) Investigating whether or not drugs, alcohol or

medication were involved in an incident of sexual violence.

(10) Providing that an individual who participates as a

complainant or witness in an investigation of sexual violence

will not be subject to disciplinary sanctions for a violation

of student conduct policy at or near the time of the incident

of sexual violence, unless the institution determines that

the violation was egregious, including an action that places

the health or safety of any other person at risk or involves

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plagiarism, cheating or academic dishonesty.

(11) Providing for the role of staff supervision at the

institution of higher education or private licensed school .

(12) Establishing a comprehensive, trauma-informed

training program for campus officials involved in

investigating and adjudicating sexual violence.

Section 2005-H. Collaborative partnerships.

An institution of higher education or a private licensed

school shall, to the extent feasible, enter into collaborative

partnerships with existing on-campus organizations and

community-based organizations, including rape crisis centers, to

refer students for assistance or make services available to

students. The services shall include counseling, physical and

mental health, victim advocacy and legal assistance for the

complainant and accused.

Section 2006-H. Comprehensive prevention and outreach program.

(a) Establishment.--In addition to the education program

established under section 2003-G, an institution of higher

education or a private licensed school shall establish a

comprehensive prevention and outreach program addressing sexual

violence. The program shall include a range of prevention

strategies, including all of the following:

(1) Empowerment programming for victim prevention.

(2) Awareness raising campaigns.

(3) Primary prevention, bystander intervention and risk

reduction.

Section 2007-H. Notice of sexual violence policies.

An institution of higher education or a private licensed

school shall provide notice to the student body, campus

organizations, athletic programs and student groups of all of

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the following:

(1) The sexual violence policies of the institution of

higher education or private licensed school.

(2) The practical implications of the affirmative

consent policies required by the institution of higher

education or private licensed school under s ection 2003-H and

the rights and responsibilities of students under the

affirmative consent policies.

Section 2008-H. Duties of department.

The department shall:

(1) Ensure compliance with this article.

(2) Solicit the cooperation of other agencies,

institutions and organizations, both public and private, in

carrying out the provisions of this article.

(3) Otherwise administer the provisions of this article.

Section 2009-H. Report.

An institution of higher education or a private licensed

school shall submit a report to the department on the

implementation of the provisions of this article as required by

the department.

Section 2010-H. Financial aid prohibited.

An institution of higher education or a private licensed

school that fails to comply with the provisions of this article

may not receive Commonwealth-funded financial aid administered

by the Pennsylvania Higher Education Assistance Agency.

Section 2011-H. Applicability.

This act shall apply to academic year 2016-2017 and each

academic year thereafter.

Section 2. This act shall take effect in 60 days.

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