WEST virginia legislature
2020 regular session
House Bill 4902
By Delegate S. Brown
[Introduced February 11, 2020; Referred to the Committee on Education then the Judiciary]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-4-5b, relating to requiring state institutions of higher education and community and technical colleges to adopt policies and programs relating to sexual assault, domestic violence, dating violence, and stalking involving students.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. GENERAL ADMINISTRATION.
§18B-4-5b. Required policies and programs concerning sexual assault, domestic violence, dating violence and stalking.
(a) The governing board of each state institution of higher education and of each community and technical college shall adopt a policy concerning sexual assault, domestic violence, dating violence and stalking, as defined in the federal Higher Education Act of 1965, 20 U.S.C. § 1092(f), involving a student, both on-campus and off-campus, applicable to standards of student conduct and to disciplinary matters involving students. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time, including situations after initial consent to physical intercourse has been given; consent may be withdrawn to continued intercourse after actual, consensual penetration has occurred. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that the standard to be used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(3) A policy that, in the evaluation of complaints in any disciplinary process, is not a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(4) A policy that, in the evaluation of complaints in the disciplinary process, is not a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious;
(B) The complainant was incapacitated due to the influence of drugs, alcohol or medication, so that the complainant could not understand the fact, nature or extent of the sexual activity; or
(C) The complainant was unable to communicate due to a mental or physical condition.
(b) The governing board of each state institution of higher education and of each community and technical college shall adopt detailed and victim-centered 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 subjects:
(1) An affirmative statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality;
(2) Initial response by the institution’s 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;
(3) Response to stranger and nonstranger sexual assault;
(4) The preliminary victim interview, including the development of a victim interview protocol and a comprehensive follow-up victim interview, as appropriate;
(5) Contacting and interviewing the accused;
(6) Seeking the identification and location of witnesses;
(7) Providing written notification to the victim about the availability of and contact information for, on-campus and off-campus resources and services, and coordination with law enforcement, as appropriate;
(8) Participation of victim advocates and other supporting people;
(9) Investigating allegations that alcohol or drugs were involved in the incident;
(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty;
(11) The role of the institutional staff supervision;
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence and stalking cases;
(13) Procedures for confidential reporting by victims and third parties; and
(14) Adequate staffing to ensure prompt availability of trained, on-campus personnel to students, victims, and witnesses at all times.
(c) The governing board of each state institution of higher education and of each community and technical college shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, legal assistance and including resources for the accused.
(d) The governing board of each state institution of higher education and of each community and technical college shall implement comprehensive prevention and outreach 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, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the state’s and the institution’s policy on sexual assault, domestic violence, dating violence, and stalking, with the definitions clearly stated and with a clear statement of the rights of victims. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of the orientation for every incoming student, including students transferring from another institution.
NOTE: The purpose of this bill is to require state institutions of higher education and community and technical colleges to implement policies and programs relating to sexual assault, domestic violence, dating violence and stalking, including adoption of an “affirmative consent” standard in conduct rules and disciplinary proceedings at each institution.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.