MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary B
By: Representatives Cockerham, Anthony, Faulkner
AN ACT TO CREATE THE "SEXUAL ASSAULT RESPONSE FOR COLLEGE STUDENTS ACT"; TO PROVIDE CERTAIN DEFINITIONS FOR THE ACT; TO REQUIRE ALL HIGHER EDUCATION INSTITUTIONS TO ADOPT A COMPREHENSIVE POLICY THAT IS CONSISTENT WITH FEDERAL AND STATE LAW REGARDING THE INSTITUTION'S RESPONSE TO ALLEGATIONS OF SEXUAL ASSAULT, DOMESTIC VIOLENCE, DATING VIOLENCE, SEXUAL EXPLOITATION AND STALKING; TO LIST THE MINIMUM REQUIREMENTS TO BE INCLUDED IN SUCH POLICY; TO REQUIRE each higher education institution TO prominently publish, timely update, and have easily accessible on its official school website SUCH POLICY; TO REQUIRE EACH HIGHER education institution TO HAVE ACCESS TO AN ON-CAMPUS CONFIDENTIAL ADVISOR TO PROVIDE COUNSELING, MENTAL HEALTH SUPPORT AND PHYSICAL HEALTH SUPPORT TO COMPLAINANTS, RESPONDENTS, AND SURVIVORS; TO REQUIRE THE HIGHER EDUCATION INSTITUTION TO TRAIN ALL EMPLOYEES, STUDENT EMPLOYEES AND PERSONS WITH SUPERVISING AUTHORITY REGARDING STANDARDS TO ASSIST ANY STUDENT WHO ALLEGES A VIOLATION OF THE COMPREHENSIVE POLICY DESCRIBED BY THIS ACT; TO REQUIRE ALL HIGHER EDUCATION INSTITUTIONS TO ADOPT PROCEDURES TO RESOLVE COMPLAINTS OF ALLEGED VIOLATIONS OF SUCH POLICY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as "The Sexual Assault Response for College Students Act."
SECTION 2. (1) The terms below shall have the following meanings, described herein, unless the context indicates otherwise:
(a) "Complainant" means a student who alleges to the higher education institution that he or she has been the victim of a violation of the comprehensive policy, regardless of whether the complaint was initially submitted to the higher education institution by him or her, or by someone else.
(b) "Comprehensive policy" means a policy created and implemented by a higher education institution to address student allegations of sexual assault, sexual exploitation, domestic violence, dating violence, and stalking.
(c) "Confidential advisor" means a person who is employed or contracted by a higher education institution to provide support to student survivors, complainants, or respondents in the context of an investigation of alleged violation of the comprehensive policy described herein, or in seeking assistance or accommodations related to such an alleged violation.
(d) "Confidential communication" means information exchanged between a survivor, complainant, or respondent and a confidential advisor during the course of the advisor providing support and assistance, including all records kept by the advisor concerning the survivor, complainant or respondent and services provided to the survivor, complainant, or respondent, except where failure to disclose the information would violate the law, would result in an imminent threat of physical harm, or would violate a professional oath or the requirements of a professional license.
(e) "Higher education institution" means a public university under the management and control of the Board of Trustees of the State Institutions of Higher Learning, any public community and junior college under the management and control of the Mississippi Community College Board and any post secondary institution of higher learning, both public and private.
(f) "Respondent" means a student involved in the complaint resolution procedure who has been accused of violating a higher education institution's comprehensive policy.
(g) "Sexual assault" means physical sexual contact attempted or perpetrated without a person's consent, as defined by the higher education institution's policy consistent with the requirements of this act.
(h) "Survivor" means any student who has experienced sexual assault, domestic violence, dating violence, sexual exploitation or stalking while enrolled at a higher education institution, irrespective of whether or not he or she seeks disciplinary action under the comprehensive policy, accommodations, or confidential assistance.
(2) Nothing in this section shall require any higher education institution to use the particular terminology listed herein in its comprehensive policy, provided that the policy meets the requirements set forth in this act.
SECTION 3. On or before August 1, 2021, all higher education institutions shall adopt a comprehensive policy that is consistent with federal and state law regarding the institution's response to allegations of sexual assault, domestic violence, dating violence, sexual exploitation and stalking. The policy shall govern the conduct of all students and employees, which includes contractual and non-contractual employees with teaching or supervisory authority at the higher education institution. The comprehensive policy shall include, at a minimum, all of the following:
(a) A definition of consent that recognizes that:
(i) Consent refers to words or actions that show a voluntary agreement to sexual activity,
(ii) A person's lack of verbal or physical resistance or submission resulting from the use or threat of force does not constitute consent,
(iii) A person's consent to past sexual activity does not constitute consent to future sexual activity,
(iv) A person can withdraw consent at any time,
(v) The use of force to cause someone to engage in sexual activity is never consent, and
(vi) A person cannot consent to sexual activity if that person is unable to understand the nature of the activity due to circumstances, including, but not limited to, the following:
1. The person is incapacitated due to the use or influence of alcohol or drugs;
2. The person is asleep or unconscious;
3. The person is under the applicable age of consent; or
4. The person is incapacitated due to a mental disability.
(b) Step by step procedures for students of the higher education institution to follow if they choose to report an alleged violation of the comprehensive policy, regardless of where the violation occurred. The procedure shall explain how to report student to student complaints and student to employee complaints.
(c) All elements of the policy necessary to maintain compliance with applicable federal law, including the Jeanne Clery Act, the VAWA amendments to the Clery Act, and Title IX.
(d) A statement of the higher education institution's commitment to provide anonymity and amnesty to any student who reports or discloses an alleged violation of the comprehensive policy or participates in the complaint resolution procedure in a manner that clarifies that a student will not receive a disciplinary sanction by the higher education institution for use of alcohol or use of drugs that would otherwise be considered a student conduct violation.
(e) A statement of the higher education institution's prohibition against retaliation upon any person who reports or discloses an alleged violation of the comprehensive policy, files a complaint, or otherwise participates in the complaint resolution procedure.
(f) A description of prohibited conduct covered by the comprehensive policy, including, but not limited to, sexual assault, domestic violence, dating violence, sexual exploitation and stalking.
(g) A clear statement that the comprehensive policy applies on-campus and off-campus.
(h) A clear detailed description of how to report a violation whether on-campus or off-campus of the comprehensive policy, including a description of the persons, agencies or groups to whom a report may be made. The description shall include the contact information of the institution's Title IX coordinator or coordinators, confidential advisors, on-campus resources for mental or physical assistance or exams, off-campus resources for mental or physical assistance or exams, which shall include the nearest community-based sexual assault crisis center, campus law enforcement, and local law enforcement. For purposes of this paragraph, the phrase "contact information" means, phone number, email address, and physical address, if applicable.
(i) The higher education institution's procedure for responding to a report of any violation of the policy including, but not limited to, (i) assisting and interviewing the complainant, (ii) identifying and locating witnesses, (iii) contacting and interviewing the respondent, (iv) cooperating with law enforcement, when applicable, (v) seeking medical assistance, (vi) providing information regarding the importance of preserving physical evidence of the sexual violence and obtaining a medical forensic examination, and (vi) providing interim protective measures and accommodations, including academic, living, dining, and transportation accommodations, or a campus-issued no contact order, if such protective measures and accommodations are reasonably available, or an order of protection or no contact order in state court.
(j) A statement regarding the obligation and requirement of all employees, student employees and contractual or non-contractual employees with teaching or supervisory authority to report any violation of the policy to the Title IX Coordinator or member of the Title IX team, unless such employee is a confidential advisor or counselor who is required to keep information confidential.
(k) A list of rights for any complainant, including, but not limited to the right:
(i) To report or not report the alleged incident to the higher education institution, law enforcement, or both, including information about the complainant's right to privacy and which reporting methods are confidential.
(ii) To receive the contact information of the institution's Title IX coordinator or coordinators, confidential advisors, and any community-based sexual assault crisis center, campus law enforcement, and local law enforcement.
(iii) To request and receive assistance from campus authorities in notifying law enforcement.
(iv) To request interim protective measures and accommodations, including academic, living, dining, and transportation accommodations, or a campus-issued no contact order, if such protective measures and accommodations are reasonably available.
(v) To provide assistance, upon the complainant's request, in accessing and navigating campus and local health, mental health, counseling, and advocacy services.
(vi) To receive a detailed copy of the higher education institution's complaint resolution procedures under its comprehensive policy.
(vii) To not be impeded by any employee, student or third party contractor of the institution from reporting an alleged violation of the comprehensive policy to any local or other law enforcement agency, and will cooperate as required by applicable law with any law enforcement investigation of an alleged violation.
(viii) To request and receive assistance from campus authorities without a requirement to file a complaint.
(l) A detailed list of school penalties for violating the policy.
(m) A clear statement that the policy governs the conduct of all students and employees, which shall include contractual and non-contractual employees with teaching or supervisory authority.
SECTION 4. (1) On or before August 1, 2021, each higher education institution shall prominently publish and have easily accessible on its official school Internet website:
(a) The full comprehensive policy required by Section 3 of this act.
(b) The contact information for the Title IX coordinator(s), on-campus law enforcement, or security, and local law enforcement, confidential advisors, which shall include at a minimum: an email address, phone number and physical address.
(c) Information regarding the various individuals, departments, or organizations to whom a student may report a violation of the comprehensive policy. This information should include an option for students to report to a confidential advisor.
(d) The name, address, and telephone number of the nearest medical facility to each campus of the higher education institution where a complainant may have a medical forensic examination completed at no cost.
(e) The name, telephone number, address, and website URL, if available, of local community-based, state, and national sexual assault crisis centers.
The higher education institution shall update the information required by subsection (1) in a timely manner from any changes.
SECTION 5. (1) Each higher education institution shall have access to a confidential advisor to provide resources, counseling, mental health support and physical health support to complainants, respondents, and survivors. Communication with such a confidential advisor shall not constitute reporting an alleged violation to the higher education institution for purposes of this act, nor trigger the complaint resolution procedure described in this act.
(2) Persons designated as confidential advisors, while serving in that capacity, shall not be assigned any job duties that would trigger any requirement to report or disclose any alleged violation of the comprehensive policy under Title IX of the Education Amendments of 1972 or any other law. Nothing in this act shall affect any duty to report or disclose information, or refrain from reporting or disclosing information, arising directly as a result of a professional oath or license. Nothing in this section precludes a higher education institution from partnering with a community-based sexual assault crisis center to provide confidential advisors.
SECTION 6. The higher education institution shall train and inform all employees, student employees and persons with supervising authority how to assist any student who alleges a violation of the comprehensive policy described by this act.
SECTION 7. (1) All higher education institutions shall adopt procedures to resolve complaints of alleged violations of the comprehensive policy, which shall provide at a minimum, the following:
(a) The opportunity for complainants and respondents to have the complaint resolution procedure begin confidentially, promptly and proceed in a timely manner with defined timelines for filing, responding and resolving complaints.
(b) Training that conforms to federal and state law regarding confidentiality for all employees, officials, or agents of the higher education institution who are involved in the investigation or resolution of alleged violations of the comprehensive policy.
(c) The higher education institution shall have a sufficient number of individuals trained to resolve complaints so that (i) a substitution can occur in the case of a conflict of interest or recusal and (ii) an individual or individuals with no prior involvement in the initial determination or finding may hear any appeal brought by a party.
(d) In adjudicating whether an alleged violation of the comprehensive policy occurred, a higher education institution shall apply a preponderance of the evidence standard.
(e) The complainant and respondent shall, be provided defined days by the higher education institution before the investigation begins, (i) receive notice of the individual or individuals with authority to make a final determination of responsibility or impose a sanction in advance of any meeting, hearing, or proceeding before such individuals, and (ii) have reasonable opportunity to request a trained substitute if the participation of an individual with authority to make a final determination of responsibility or impose a sanction poses a conflict of interest.
(f) Any meeting, hearing or proceeding held to investigate or resolve complaints of alleged student violations of the comprehensive policy shall protect the privacy of the participating parties and witnesses to the greatest extent feasible. All meetings, hearings or proceeding described in this paragraph shall be closed to the public.
(g) The complainant and the respondent shall have the opportunity to present arguments, information, evidence, and/or witnesses on their behalf during the complaint resolution procedure, and to respond and to cross-examine regarding any argument, information, evidence, and/or testimony that is introduced against them.
(h) In any hearing or proceeding on an alleged violation of the comprehensive policy, an institution may, at its discretion, limit or prohibit direct cross-examination of the complainant and respondent. Any such limitation or prohibition must apply equally to both the complainant and the respondent, and the institution must provide some alternative means, such as the submission of written questions, by which the complainant and respondent may pose questions to one another.
(i) The complainant and the respondent shall be notified of the date, time, and location of the hearing or proceeding, the specific charge to be considered, the identity of any witness whose statement or testimony may be introduced, and shall be notified of and afforded a reasonable opportunity to review any evidence that may be introduced before any hearing or proceeding at a time defined by the higher education institution.
(j) Both parties may request and must be allowed to have an advisor and/or an attorney of their choice to accompany them for support and consultation to any meeting, hearing, or proceeding related to an alleged violation of the comprehensive policy, provided that the involvement of the advisor or attorney does not result in an undue delay of the meeting, hearing, or proceeding.
(k) Neither the complainant nor the respondent will be compelled to testify in person. Upon request by the complainant or the respondent, the institution of higher education shall make available an option to testify remotely, such that the testimony can be heard by all parties involved.
(l) The complainant and the respondent shall be provided simultaneous, written notification of the results of the complaint resolution procedure, including information regarding appeal rights, with a specific timeline defined by the higher education institution of a decision or sooner if required by applicable law.
(m) The complainant and the respondent shall have the right to appeal the complaint resolution procedure's findings or imposed sanctions. The higher education institution shall define the timeline for appeals.
(n) The higher education institution shall not disclose the identity of the complainant or the respondent without express permission from the complainant or respondent, except as necessary to investigate or resolve the complaint or to implement interim protective measures and accommodations or when provided by state or federal law.
(o) Either the respondent or complainant may request a privacy screen or some other appropriate means to assure the parties do not personally confront each other. The higher educations institution may provide such non-confrontational means without request of either party.
(2) No student or student employees shall be involved in any part of the investigation or resolution of alleged violations of the comprehensive policy.
SECTION 8. (1) The provisions of this act shall apply only to the extent they are not preempted by, or in conflict with, federal statutes, regulations or agency guidance. Each provision of this act is declared to be severable from the remainder of the act. If any provision of this act or any application thereof is held to be preempted or otherwise invalid, the preemption or invalidity shall not affect the other provisions or applications of the act that can be given effect without the preempted or invalid provision or application.
(2) Nothing in this act is intended to be construed to create a private right of action against any institution of higher education, nor any official, employee, or agent thereof.
(3) Nothing in this act shall be construed to prohibit any higher education institution from instituting any rules or regulations to comply with Title IX, nor authorize any higher education institution to create any policies or procedures that conflict with Title IX rules or regulations.
(4) Nothing in this act shall be construed to affect or restrict other obligations under federal law for a higher education institution to report threats to the community or to law enforcement.
SECTION 9. This act shall take effect and be in force from and after July 1, 2020.