California Issues Guidance on New Campus Sexual Assault Laws

California Attorney General Kamala D. Harris on Tuesday issued an information bulletin to all California state and local law enforcement agencies, college/university police, security personnel and college/university administrators on how they should implement two recently passed sexual assault and campus safety laws.

AB 1433 requires campus security authorities to immediately (or as soon as possible) disclose to local law enforcement reports of violent crime, hate crime or sexual assault, whether the crimes are committed on campus or off campus. These include reports made directly to campus security authorities as well as reports victims make to other campus employees that are then conveyed to campus security authorities.

Failure to report could result in the loss of funding from the Cal Grant Program.

AB 1433 defines the “local law enforcement agency” that must receive the disclosure as the city or county law enforcement agency with operational responsibilities for police services in the community in which the campus is located, and with which the institution has a written agreement.

Although the incident must be reported, the victim’s identity could be withheld if she or he chooses to remain unidentified. When this occurs, the alleged perpetrator’s identity should not be disclosed either.

Institutions must adopt new written policies and procedures by July 1.

SB 967, also known as the Affirmative Consent Law, went into effect Jan. 1. It requires colleges and universities receiving state funds for student financial assistance to adopt comprehensive policies and disciplinary procedures concerning sexual assault, domestic violence, dating violence, and stalking involving a student, both on and off campus.

Campuses must adopt an affirmative consent standard to determine whether a sexual assault complainant consented to the alleged conduct. “Affirmative consent” is defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. Under the law, neither the lack of protest or resistance nor silence constitutes consent, and consent may be withdrawn at any time. Affirmative consent must be given by all parties to sexual activity.

The policy must also make clear that, for the purpose of evaluating complaints during the campus disciplinary process, it is not a valid excuse that the accused believed the complainant consented if: (A) the accused’s belief arose from his or her own intoxication or recklessness, or (B) the accused did not take reasonable steps to ascertain whether the complainant affirmatively consented.

Similarly, it will not be a valid excuse that the accused believed the complainant affirmatively consented where the accused knew or reasonably should have known that the complainant was unable to consent because he or she was: (A) asleep or unconscious, (B) incapacitated due to drugs/alcohol/medication, or (C) unable to communicate due to a mental or physical condition.

SB 967 also stipulates that a campus’ policy must require the use of a preponderance of evidence standard when adjudicating complaints in the disciplinary process. The evidence must show that it is “more likely than not”- i.e., greater than 50% likelihood – that the victim did not consent.

The Attorney General’s Office also said it would release additional guidance in the future.

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