OLR Bill Analysis

sHB 5376

AN ACT CONCERNING AFFIRMATIVE CONSENT AND CONSENT FOR THE CARE AND TREATMENT OF COLLEGE STUDENTS WHO ARE THE VICTIM OF SEXUAL ASSAULT.

SUMMARY:

By law, higher education institutions in Connecticut must adopt and disclose one or more policies on sexual assault, stalking, and intimate partner violence. Among other things, the policies must include provisions about (1) providing, to students and employees who report or disclose being victims of such violence, information about their options for assistance; (2) disciplinary procedures; and (3) possible sanctions.

This bill requires institutions to use a standard of affirmative consent when determining, in the context of these policies, whether sexual activity is consensual. The policies must include clear statements advising students and employees of the affirmative consent standard. Additionally, the bill specifies that the policies must describe the institutions' investigation procedures for students and employees. (Existing law requires that the policies describe the institutions' disciplinary procedures.) It also requires that an official trained annually in issues relating to sexual assault, stalking, and intimate partner violence conduct investigations in which the respondents are students. (Existing law applies this requirement to disciplinary proceedings in which the respondents are students.)

The bill requires higher education institutions (except for Charter Oak State College) to include, in the awareness programming they offer to students and employees, an explanation of the affirmative consent standard. It also replaces references to “victim” and “accused” in current law. Generally, it replaces references to (1) “victim” with “student or employee who reports or discloses the alleged violation” and (2) “accused” with “student or employee responding to such report or disclosure.”

The bill allows sexual assault forensic examiners (SAFEs) to treat or provide immediate care to a sexual assault victim, and collect evidence pertaining to an investigation, if the victim is (1) a patient in a “health care facility” operated by a higher education institution, or an acute care hospital; (2) a student at a Connecticut higher education institution; and (3) younger than age 18.

Lastly, the bill makes technical and conforming changes.

EFFECTIVE DATE: July 1, 2016

AFFIRMATIVE CONSENT

The bill defines “affirmative consent” as an active, clear, and voluntary agreement by a person to engage in sexual activity with another person. The agreement must be sustained throughout the sexual activity and may be revoked at any time by any person.

Institutional Policies

The bill requires that institutions' sexual assault, stalking, and intimate partner violence policies include provisions for informing students and employees that, in the context of the policies,

1. affirmative consent is the standard used to determine whether sexual activity was consensual;

2. each person is responsible for ensuring that he or she has affirmative consent from all people engaged in the sexual activity; and

3. a past or current dating or sexual relationship, by itself, is not determinative of a finding of affirmative consent.

The policies must also provide that an alleged lack of affirmative consent is not excused by the respondent's belief that the student or employee complainant consented because the respondent was intoxicated, reckless, or failed to take reasonable steps to ascertain whether the complainant affirmatively consented. It is similarly not excused if the respondent knew or should have known that the complainant was unable to consent because the complainant was unconscious, asleep, unable to communicate due to a mental or physical condition, or was incapacitated due to the influence of drugs, alcohol, or medication.

Awareness Programming

The bill requires higher education institutions (except for Charter Oak State College) to include, in the awareness programming they offer to students and employees, an explanation of the affirmative consent standard. Under existing law, higher education institutions (except for Charter Oak State College) must offer, within existing budgetary resources, sexual assault, stalking, and intimate partner violence primary prevention and awareness programming for all students and employees that includes an explanation of the definition of consent in sexual relationships.

SEXUAL ASSAULT FORENSIC EXAMINERS

Under the State of Connecticut Technical Guidelines for Health Care Response to Victims of Sexual Assault (see BACKGROUND), a parent or guardian generally must provide consent before a sexual assault victim younger than age 18 is examined by a SAFE. The bill allows SAFEs to treat or provide immediate care to a sexual assault victim who is younger than age 18, and collect evidence pertaining to an investigation, if the victim is a (1) patient in a “health care facility” or acute care hospital and (2) student at a Connecticut higher education institution.

Under existing law, a “health care facility” is a facility, operated by a higher education institution, that is (1) licensed by the Department of Public Health as an infirmary operated by an educational institution or as an outpatient clinic and (2) accredited by the Joint Commission or the Accreditation Association for Ambulatory Health Care. SAFEs are state-licensed registered nurses, advanced practice registered nurses, or physicians.

BACKGROUND

Technical Guidelines for Health Care Response to Victims of Sexual Assault

The state's Commission on the Standardization of the Collection of Evidence in Sexual Assault Investigations publishes these guidelines (CGS 19a-112a).

COMMITTEE ACTION

Higher Education and Employment Advancement Committee

Joint Favorable Substitute

Yea

14

Nay

3

(03/03/2016)