Below is the text of the Model Affirmative Consent Law and Policy that Anne drafted pursuant to her speech before the California Senate Education Committee.
SECTION 1. Section 67386 is added to the Education Code, to read:
(a) The governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing board of independent postsecondary institutions, as defined in paragraph (3) of subdivision (i) of Section 67381, shall adopt a policy concerning campus sexual violence, domestic violence, dating violence, and stalking that includes all of the following:
SEXUAL ACTIVITY: “Sexual activity” means any activity that is directed towards a person of the appropriate sex that is connected with or intended to facilitate, initiate, or enhance intimate physical contact between individuals.
SEXUAL BEHAVIOR: “Sexual behavior” means any activity that is directed towards a person of the appropriate sex that is intended to suggest, initiate, facilitate, or enhance physical attraction or intimate physical contact between individuals.
WILLING CONSENT: “Willing consent” is a freely and clearly communicated willingness to participate in a particular sexual activity or sexual behavior, expressed either by words or clear, unambiguous actions.
AFFECTION: “Affection” is any activity between individuals that is intended to convey favorable feelings, and does not, in and of itself, rise to the level of SEXUAL ACTIVITY or SEXUAL BEHAVIOR. Examples of AFFECTION include holding hands, hugging, and non-sexual kisses.
INCAPACITATED: “Incapacitated” means that a person, as a result of the use of alcohol and/or other substances, is unconscious or has his or her judgment otherwise so impaired that he or she is incapable of realizing and making rational decisions with respect to engaging in or participating in sexual activity or sexual behavior.
(2) A clearly defined standard to be used in the determination of whether willing consent was given at any time by a complainant; whether that consent was withdrawn at any time; whether that withdrawal of consent was effectively communicated to the accused; and whether the accused ceased the complained of activity upon receiving the communicated withdrawal of consent.
(A) It is the responsibility of each person who wants to engage in a sexual activity to ensure that he or she has the willing consent of the other person to engage in the sexual activity.
(B) The existence of a dating relationship between the parties involved, or the existence of a past sexual relationship, shall not provide the basis for a presumption of consent.
(C) Silence, lack of protest, or lack of resistance does not necessarily mean consent. Therefore, relying solely on nonverbal communication during the initiation of sexual activity or sexual behavior can lead to misunderstanding. Misunderstanding is not necessarily, in and of itself, a mitigating factor for either party.
(D) Consent must be present throughout sexual activity, and at any time, a participant can communicate that he or she no longer consents to continuing the sexual activity. If there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.
(E) Affection on its own is not sexual activity or sexual behavior for the purposes of these policies. However, affection can lead to sexual activity or sexual behavior, and when affection turns into sexual behavior or sexual activity, willing consent must be obtained.
(F) Consent to an activity or behavior cannot be withdrawn retroactively once the activity or behavior has stopped, although once an activity has stopped consent can be withdrawn for any future such activity.
(3) In the evaluation of complaints in the disciplinary process, it shall not be a defense that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief that there was willing consent arose as a direct result of self-induced intoxication the accused.
(B) The accused did not take reasonable steps to secure the willing consent of the complainant.
(4) The self-induced intoxication of the complainant is not necessarily, on its own, a mitigating factor in the presence of the communication of willing consent on the part of the complainant.
(5) In the evaluation of complaints in the disciplinary process, an individual under any of the following conditions is unable to consent to sexual activity if they are:
(A) Asleep or unconscious.
(B) Incapacitated due to the influence of drugs, alcohol, or medication.
(C) Unable to communicate either verbally or by action due to a mental or physical condition.
(6) In balancing, recognizing, and protecting the interests of a complainant who may have been the victim of unacceptable sexual activity, sexual behavior, or sexual assault, and an accused whose academic career and future professional career and livelihood may be affected by the outcome of any academic disciplinary action, a clear and convincing evidence standard is to be used in the determination of any disciplinary action. This means that the evidence being presented must be substantially more probable to be true rather than untrue.
(7) Both the complainant and the accused shall be allowed to bring with them to any disciplinary or other action related to a complaint of sexual assault or other unwanted sexual activity or behavior, a legal representative of their choosing, and at their own expense.
(b) The governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing board of independent postsecondary institutions, as defined in paragraph (3) of subdivision (i) of Section 67381, shall adopt detailed sexual assault policies and protocols that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will protect the confidentiality of both the complainant and the accused.
(2) A policy statement about how and when a complaint will be referred to local law enforcement, and whether such referral will cause the academic investigation to be closed, or conducted either concurrently or following investigations and determinations by local law enforcement.
(3) A policy statement about how and when the results of investigations by local law enforcement will be admitted to any disciplinary hearing, and when, when they are predicated on the same facts, the results of investigations by law enforcement will be given weight in the academic disciplinary hearing, and when they will be dispositive.
(4) Initial officer response to a report of sexual assault, including requirements specific to assisting the complainant, evidence collection, and the identification and location of witnesses.
(5) Response to stranger and nonstranger sexual assault.
(6) The preliminary complainant and accused interviews, including the development of interview protocols, and comprehensive followup interviews.
(7) Medical forensic examinations and coordination with the forensic examiner, if and as needed.
(8) Participation of victim advocates.
(9) Investigative considerations regarding alcohol- and drug-facilitated sexual assault, including requirements specific to evidence collection and forensic examination of complainants.
(10) The role of the institutional staff supervision.
(11) Procedures to protect the identity of sexual assault complainants, which shall balance the need for anonymity with the right of the accused to confront their accuser.
(c) To the extent feasible, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing board of independent postsecondary institutions, as defined in paragraph (3) of subdivision (i) of Section 67381, shall enter into memoranda of understanding, agreements, or similar partnerships with existing on-campus and community-based organizations, including rape crisis centers, to make services available to victims, including counseling, health, mental health, victim advocacy, and legal assistance.
(d) The governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing board of independent postsecondary institutions, as defined in paragraph (3) of subdivision (i) of Section 67381, shall implement comprehensive prevention programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, women’s empowerment programming, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction.
SEC. 2. If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.