GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2017

H D

HOUSE BILL DRH40450-MK-149 (03/22)

Short Title: IHE Policies Sexual Assault/Sexual Consent.		(Public)
Sponsors:	Representative Meyer.
Referred to:

A BILL TO BE ENTITLED

AN ACT to direct the state board of community colleges and the board of governors of the university of north carolina to develop systemwide policies and prevention and outreach programs concerning sexual assault, domestic violence, dating violence, and stalking and to encourage private institutions of higher education to adopt similar policies and prevention and outreach programs.

The General Assembly of North Carolina enacts:

part I. Community Colleges

SECTION 1.1. The State Board of Community Colleges shall adopt a systemwide policy to be implemented at each community college concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the Higher Education Act of 1965, 20 U.S.C. § 1092(f), involving a student, both on and off a community college campus. The policy shall include at least the following components:

(1) Establish an affirmative consent standard to be applied in the determination of whether consent was given by all parties to sexual activity. The policy shall define "affirmative consent" to mean an affirmative, conscious, and voluntary agreement to engage in sexual activity. The affirmative consent standard shall also include the following:

a. Each person involved in the sexual activity is responsible for ensuring that he or she has the affirmative consent of the other or others to engage in the sexual activity.

b. Lack of protest or resistance shall not indicate consent. Silence shall not indicate consent.

c. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

d. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, shall never by itself be assumed to be an indicator of consent.

(2) Address circumstances in which affirmative consent cannot be assumed, including:

a. Intoxication.

b. Lack of reasonable steps, in the circumstances known to ascertain whether there is affirmative consent.

c. Inability to consent to the sexual activity because of any of the following circumstances:

1. The person was asleep or unconscious.

2. The person was incapacitated due to the influence of drugs, alcohol, or medication, so that the person could not understand the fact, nature, or extent of the sexual activity.

3. The person was unable to communicate due to a mental or physical condition.

(3) Provide that the standard used in determining whether the elements of a complaint are demonstrated concerning sexual assault, domestic violence, dating violence, and stalking is the preponderance of the evidence.

(4) Detailed procedures regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards and take into account the victim's circumstances. The procedures shall address at least the following:

a. Appropriate protections provided by the community college for the privacy of persons involved in incidences of sexual assault, domestic violence, dating violence, and stalking, including the extent of confidentiality for those persons.

b. Initial response by community college personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

c. Response to stranger and nonstranger sexual assault.

d. Preliminary victim interview, including the development of a victim interview protocol, and a comprehensive follow‑up victim interview, as appropriate.

e. Contact with and interview of the accused.

f. Identification and location of witnesses.

g. Written notification to the victim about the availability of, and contact information for, on‑ and off‑campus resources and services, and coordination with law enforcement, as appropriate.

h. Participation of victim advocates and other supporting people.

i. Investigation of allegations that alcohol or drugs were involved in an incident.

j. Imposition of no disciplinary sanctions on a person who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking for a violation of the community college's student conduct policy at or near the time of an incident, unless the community college determines that the violation was egregious, including an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.

k. Role of the community college's staff supervision.

l. Comprehensive, trauma‑informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

m. Confidential reporting by third parties.

SECTION 1.2. The State Board of Community Colleges shall direct each community college to provide assistance to students involved in incidences of sexual assault, domestic violence, dating violence, and stalking, to the extent feasible, by entering into memoranda of understanding, agreements, or collaborative partnerships with existing on‑campus and community‑based organizations, including rape crisis centers, and providing support services and resources for both the victim and the accused, as appropriate, including counseling, health care, victim advocacy, and legal assistance.

SECTION 1.3. The State Board of Community Colleges shall direct each community college to develop prevention strategies and outreach programs to be included as part of every incoming student's orientation and to continue to be offered throughout the academic year. The prevention strategies shall include all of the following: awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the community college's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body and campus organizations of the affirmative consent standard and the rights and responsibilities of students under the policy.

SECTION 1.4. By February 1, 2018, the State Board of Community Colleges shall report to the Joint Legislative Education Oversight Committee on the development of the policy required by Section 1.1 of this act and the plan for implementation of the policy at each community college beginning with the 2018‑2019 academic year. In addition, the State Board of Community Colleges shall include in the report the implementation of victim assistance programs and prevention and outreach programs required by this part.

part Ii. university of north carolina CONSTITUENT institutions

SECTION 2.1. The Board of Governors of The University of North Carolina shall adopt a systemwide policy to be implemented at each constituent institution concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the Higher Education Act of 1965, 20 U.S.C. § 1092(f), involving a student, both on and off the institution's campus. The policy shall include at least the following components:

a. Each person involved in the sexual activity is responsible for ensuring that he or she has the affirmative consent of the other or others to engage in the sexual activity.

b. Lack of protest or resistance shall not indicate consent. Silence shall not indicate consent.

c. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

d. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, shall never by itself be assumed to be an indicator of consent.

(2) Address circumstances in which affirmative consent cannot be assumed, including:

a. Intoxication.

b. Lack of reasonable steps, in the circumstances known to ascertain whether there is affirmative consent.

c. Inability to consent to the sexual activity because of any of the following circumstances:

1. The person was asleep or unconscious.

2. The person was incapacitated due to the influence of drugs, alcohol, or medication, so that the person could not understand the fact, nature, or extent of the sexual activity.

3. The person was unable to communicate due to a mental or physical condition.

a. Appropriate protections provided by the constituent institution for the privacy of persons involved in incidences of sexual assault, domestic violence, dating violence, and stalking, including the extent of confidentiality for those persons.

b. Initial response by constituent institution personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

c. Response to stranger and nonstranger sexual assault.

d. Preliminary victim interview, including the development of a victim interview protocol, and a comprehensive follow‑up victim interview, as appropriate.

e. Contact with and interview of the accused.

f. Identification and location of witnesses.

g. Written notification to the victim about the availability of, and contact information for, on‑ and off‑campus resources and services, and coordination with law enforcement, as appropriate.

h. Participation of victim advocates and other supporting people.

i. Investigation of allegations that alcohol or drugs were involved in an incident.

j. Imposition of no disciplinary sanctions imposed on a person who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking for a violation of the constituent institution's student conduct policy at or near the time of an incident, 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 plagiarism, cheating, or academic dishonesty.

k. Role of the constituent institution's staff supervision.

l. Comprehensive, trauma‑informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

m. Confidential reporting by third parties.

SECTION 2.2. The Board of Governors of The University of North Carolina shall direct each constituent institution to provide assistance to students involved in incidences of sexual assault, domestic violence, dating violence, and stalking, to the extent feasible, by entering into memoranda of understanding, agreements, or collaborative partnerships with existing on‑campus and community‑based organizations, including rape crisis centers, and providing support services and resources for both the victim and the accused, as appropriate, including counseling, health care, victim advocacy, and legal assistance.

SECTION 2.3. The Board of Governors of The University of North Carolina shall direct each constituent institution to develop prevention strategies and outreach programs to be included as part of every incoming student's orientation and to continue to be offered throughout the academic year. The prevention strategies shall include all of the following: awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the constituent institution's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body and campus organizations of the affirmative consent standard and the rights and responsibilities of students under the policy.

SECTION 2.4. By February 1, 2018, the Board of Governors of The University of North Carolina shall report to the Joint Legislative Education Oversight Committee on the development of the policy required by Section 2.1 of this act and the plan for implementation of the policy at each constituent institution beginning with the 2018‑2019 academic year. In addition, the Board of Governors shall include in the report the implementation of victim assistance programs and prevention and outreach programs required by this Part.

part Iii. Private postSECONDARY institutions of higher education

SECTION 3.1. Each nonprofit postsecondary institution of higher education located in North Carolina is encouraged to adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the Higher Education Act of 1965, 20 U.S.C. § 1092(f), involving a student, both on and off the institution's campus. The policy should include at least the following components:

(1) Establish an affirmative consent standard to be applied in the determination of whether consent was given by all parties to sexual activity. The policy should define "affirmative consent" to mean an affirmative, conscious, and voluntary agreement to engage in sexual activity. The affirmative consent standard should also include the following:

a. Each person involved in the sexual activity is responsible for ensuring that he or she has the affirmative consent of the other or others to engage in the sexual activity.

b. Lack of protest or resistance shall not indicate consent. Silence shall not indicate consent.

c. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

d. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, shall never by itself be assumed to be an indicator of consent.

(2) Address circumstances in which affirmative consent cannot be assumed, including:

a. Intoxication.

b. Lack of reasonable steps, in the circumstances known to ascertain whether there is affirmative consent.

c. Inability to consent to the sexual activity because of any of the following circumstances:

1. The person was asleep or unconscious.

2. The person was incapacitated due to the influence of drugs, alcohol, or medication, so that the person could not understand the fact, nature, or extent of the sexual activity.

3. The person was unable to communicate due to a mental or physical condition.

a. Appropriate protections provided by the institution for the privacy of persons involved in incidences of sexual assault, domestic violence, dating violence, and stalking, including the extent of confidentiality for those persons.

b. Initial response by institution personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

c. Response to stranger and nonstranger sexual assault.

d. Preliminary victim interview, including the development of a victim interview protocol, and a comprehensive follow‑up victim interview, as appropriate.

e. Contact with and interview of the accused.

f. Identification and location of witnesses.

g. Written notification to the victim about the availability of, and contact information for, on‑ and off‑campus resources and services, and coordination with law enforcement, as appropriate.

h. Participation of victim advocates and other supporting people.

i. Investigation of allegations that alcohol or drugs were involved in an incident.

j. Imposition of no disciplinary sanctions on a person who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking for a violation of the institution's student conduct policy at or near the time of an incident, 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 plagiarism, cheating, or academic dishonesty.

k. Role of the institution's staff supervision.

l. Comprehensive, trauma‑informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

m. Confidential reporting by third parties.

SECTION 3.2. Each nonprofit institution of higher education located in North Carolina is encouraged to provide assistance to students involved in incidences of sexual assault, domestic violence, dating violence, and stalking, to the extent feasible, by entering into memoranda of understanding, agreements, or collaborative partnerships with existing on‑campus and community‑based organizations, including rape crisis centers, and providing support services and resources for both the victim and the accused, as appropriate, including counseling, health care, victim advocacy, and legal assistance.

SECTION 3.3. Each nonprofit institution of higher education located in North Carolina is encouraged to develop prevention strategies and outreach programs to be included as part of every incoming student's orientation and to continue to be offered throughout the academic year. The prevention strategies should include all of the following: awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs should be provided to make students aware of the institution's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program should include a process for contacting and informing the student body and campus organizations of the affirmative consent standard and the rights and responsibilities of students under the policy.

Part iv. effective date

SECTION 4. This act is effective when it becomes law.