OLR Bill Analysis
sHB 5376 (as amended by House "A" and "B")*
AN ACT CONCERNING AFFIRMATIVE CONSENT AND CONSENT FOR THE CARE AND TREATMENT OF COLLEGE STUDENTS WHO ARE THE VICTIM OF SEXUAL ASSAULT.
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.) The 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.”
Lastly, the bill makes technical and conforming changes.
*House Amendment “A” (1) modifies the definition of affirmative consent and makes conforming changes, (2) specifies that higher education institutions are not required to adopt the bill's definition verbatim, and (3) removes a provision in the underlying bill ( File 73) that allowed sexual assault forensic examiners to treat or provide immediate care to certain sexual assault victims younger than age 18.
*House Amendment “B” specifies that higher education institutions have sole authority to adopt a definition of “affirmative consent.”
EFFECTIVE DATE: July 1, 2016
The bill defines “affirmative consent” as an active, clear, and voluntary agreement by a person to engage in sexual activity with another person. It specifies that higher education institutions, in exercising their sole authority to adopt a definition of “affirmative consent,” are not required to adopt the bill's definition verbatim but must use a definition that has the same or a substantially similar meaning.
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 regarding sexual assault and intimate partner violence,
1. affirmative consent (a) is the standard used to determine whether sexual activity was consensual and (b) may be revoked at any time during the sexual activity;
2. each person is responsible for ensuring that (a) he or she has affirmative consent from all people engaged in the sexual activity and (b) the affirmative consent is sustained throughout 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.
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.
Higher Education and Employment Advancement Committee
Joint Favorable Substitute