PA 16-106—sHB 5376

Higher Education and Employment Advancement Committee

AN ACT CONCERNING AFFIRMATIVE CONSENT

SUMMARY: This act requires higher education institutions in Connecticut to use an affirmative consent standard when determining, in the context of their required policies on sexual assault and intimate partner violence, whether sexual activity is consensual. It requires that the policies include clear statements advising students and employees of the affirmative consent standard.

Additionally, the act 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 act also requires that an official trained annually in issues relating to sexual assault, stalking, and intimate partner violence conduct investigations if students are the respondents. (Existing law applies this requirement to disciplinary proceedings if students are the respondents. )

The act requires higher education institutions (except for Charter Oak State College) to include an explanation of the affirmative consent standard in the awareness programming they offer to students and employees. It also replaces references to “victim” and “accused” in prior 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 act makes technical and conforming changes.

EFFECTIVE DATE: July 1, 2016

AFFIRMATIVE CONSENT

The act 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 this definition but must use one that has the same or a substantially similar meaning.

Institutional Policies

By law, higher education institutions in Connecticut must adopt and disclose policies on sexual assault, stalking, and intimate partner violence. The policies must include provisions on (1) providing information about assistance options to students and employees who report or disclose being subject to such violence, (2) disciplinary procedures, and (3) possible sanctions.

The act requires that institutions' sexual assault, stalking, and intimate partner violence policies include provisions for informing students and employees that, in the context of alleged violations of the policies on 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 is not by itself 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 drugs, alcohol, or medication.

Awareness Programming

The act requires higher education institutions (except for Charter Oak State College) to include an explanation of the affirmative consent standard in the awareness programming they offer to students and employees. Under existing law, higher education institutions (except for Charter Oak State College) must offer 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.

OLR Tracking: TA; JO; PF; bs