PRINTER'S NO. 1718
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1489
Session of
2021
INTRODUCED BY SIMS, BENHAM, DALEY, LEE, HILL-EVANS, KINSEY,
MADDEN, SCHLOSSBERG, KINKEAD, ISAACSON, DELLOSO, T. DAVIS,
SANCHEZ, GUZMAN, WARREN, KENYATTA, CIRESI AND ZABEL,
JUNE 8, 2021
REFERRED TO COMMITTEE ON EDUCATION, JUNE 8, 2021
AN ACT
Amending the act of March 10, 1949 (P.L.30, No.14), entitled "An
act relating to the public school system, including certain
provisions applicable as well to private and parochial
schools; amending, revising, consolidating and changing the
laws relating thereto," in sexual violence education at
institutions of higher learning, further providing for
heading of article, for scope of article, for definitions and
for education program, providing for affirmative consent to
sexual activity, further providing for follow-up and for
report, and providing for memorandum of understanding and for
community partnerships.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The heading of Article XX-G and sections 2001-G,
2002-G and 2003-G of the act of March 10, 1949 (P.L.30, No.14),
known as the Public School Code of 1949, are amended to read:
ARTICLE XX-G
SEXUAL VIOLENCE, DATING VIOLENCE AND STALKING EDUCATION,
PREVENTION AND RESPONSE AT
INSTITUTIONS OF HIGHER EDUCATION
Section 2001-G. Scope of article.
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This article relates to college and university sexual
violence, dating violence, domestic violence and stalking
education, prevention and response.
Section 2002-G. Definitions.
The following words and phrases when used in this article
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Affirmative consent." A conscious, voluntary and mutual
agreement among all participants to engage in sexual activity.
Words or actions may constitute affirmative consent as long as
those words or actions convey clear permission regarding a
willingness to engage in the sexual activity. The term applies
regardless of a participant's sex, sexual orientation, gender
identity or gender expression or the existence of a present or
past romantic, intimate or dating relationship between the
participants involved. The term does not include silence or lack
of protest to engage in sexual activity.
"Community entities." Local law enforcement, campus public
safety, rape crisis centers, community and campus health care
professionals, domestic violence programs, organizations
providing legal assistance or immigration services and any other
entity identified as part of an institution of higher
education's multidisciplinary sexual assault response team or
similar group.
"Department." The Department of Education of the
Commonwealth.
"Dating violence." As defined in section 1553(f).
"Domestic violence." As defined in section 2333(e) of the
act of April 9, 1929 (P.L.177, No.175), known as The
Administrative Code of 1929.
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"Domestic violence program." As defined in 23 Pa.C.S. § 6102
(relating to definitions).
"Education program." [A] An evidenced-based sexual violence,
dating violence, domestic violence and stalking awareness
education program under this article.
"Independent institution of higher education." As defined in
the act of November 29, 2004 (P.L.1383, No.180), known as the
Uniform Crime Reporting Act.
"Institution of higher [education."] education" or
"institution." An independent institution of higher education,
a community college, a State-related institution or a member
institution of the State System of Higher Education.
"Matriculating." Enrolling in an institution of higher
education or private licensed school.
"Private licensed school." As defined in the act of December
15, 1986 (P.L.1585, No.174), known as the Private Licensed
Schools Act.
"Rape crisis center." As defined in 42 Pa.C.S. § 5945.1
(relating to confidential communications with sexual assault
counselors).
"Sexual violence." An act of sexual violence as defined in
42 Pa.C.S. § 6402 (relating to definitions).
"Stalking." Engaging in a course of conduct directed at a
specific individual that would cause a reasonable individual to:
(1) fear for the individual's safety or the safety of
others; or
(2) suffer substantial emotional distress.
"Student." A person who is enrolled on a full-time basis at
an institution of higher education or private licensed school.
Section 2003-G. Education program.
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(a) General rule.--Institutions of higher education and
private licensed schools shall establish [a sexual violence
awareness educational program. Institutions of higher education
and private licensed schools may collaborate with a Statewide
nonprofit organization, local rape crisis center or local sexual
assault program that arranges for the provision of services to
sexual violence and rape victims in the development of a sexual
violence awareness education program.] or implement an education
program for all students. In developing or implementing an
education program, institutions of higher education and private
licensed schools shall consult with a local rape crisis center
and domestic violence program, as well as community entities, as
appropriate. The Pennsylvania Department of Education, in
consultation with the Pennsylvania Coalition Against Rape and
the Pennsylvania Coalition Against Domestic Violence, shall,
within 120 days, develop an online clearinghouse of model
education programs and other resources to aid institutions of
higher education and private licensed schools in fulfilling this
requirement. Each education program shall provide the following:
(1) A discussion of sexual violence, dating violence,
domestic violence and stalking.
(2) A discussion of affirmative consent, including an
explanation that the victim is not at fault.
(3) A discussion of drug and alcohol-facilitated sexual
violence.
(4) Information relating to risk education and personal
protection.
(5) Information on where and how to get assistance,
including the importance of medical treatment and evidence
collection, and how to report sexual violence to campus
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authorities and local law enforcement.
(6) The possibility of pregnancy and transmission of
sexual diseases.
(7) Introduction of members of the educational community
from:
(i) Campus police or security and local law
enforcement.
(ii) Campus health center, women's center and rape
crisis center.
(iii) Campus counseling service or any service
responsible for psychological counseling and student
affairs.
(8) A promise of discretion and dignity.
(9) [A promise of confidentiality for victims of sexual
assault.
(b) Student bill of rights.--Consistent with the campus
sexual assault victims' bill of rights under section 485(f)(8)
of the Higher Education Act of 1965 (Public Law 89-329, 20
U.S.C. § 1092(f)(8)), a student bill of rights shall be made
available to students.] Information regarding confidential
resources and services available for victims of sexual assault,
dating violence, domestic violence and stalking, including
confidential resource advisors, if applicable.
(c) Written notification of rights, accommodations and
protective measures.--A concise, written notification of rights,
accommodations and protective measures shall be made available
to students and employees, including victims of dating violence,
domestic violence, sexual assault and stalking, regardless of
where the incidences occurred, including information regarding:
(1) Existing counseling, mental health, healthcare,
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victim advocacy, legal assistance, visa and immigration
assistance, student financial aid and other services
available for victims, both within the institution and in the
community.
(2) Available options and assistance regarding how to
report to the institution, how to report to law enforcement,
obtain protections from abuse and sexual violence protection
orders, file for crime victims' compensation and assistance
program and request protective measures or changes to
academic, living, transportation, working situations or other
educational activities.
(d) Written notification.--The written notification of
rights, accommodations and protective measures required under
the Higher Education Act of 1965 (Public Law 89-329, 20 U.S.C. §
1092(f)(8)) shall satisfy the requirements of subsection (c).
(e) Accommodations and protective measures.--An institution
shall make accommodations or provide protective measures, as
necessary and reasonably available, at the victim's request,
regardless of whether the victim chooses to report the crime to
campus police or local law enforcement and regardless of where
an incidence occurred.
Section 2. The act is amended by adding a section to read:
Section 2003.1-G. Affirmative consent to sexual activity.
(a) General rule.--Each institution of higher education and
private licensed school shall adopt the definition of
affirmative consent, as defined in this article, as part of the
institution's or school's code of conduct.
(b) Conduct.--The code of conduct of an institution of
higher education and a private licensed school shall include the
following principles:
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(1) It is the responsibility of each individual who
wants to engage in sexual activity with another individual to
obtain affirmative consent from the other individual.
(2) Affirmative consent to a sexual act does not imply
affirmative consent to other sexual acts or other forms of
sexual activity now or in the future.
(3) Affirmative consent is required regardless of
whether the person initiating the act is under the influence
of drugs or alcohol.
(4) Affirmative consent may be withdrawn at any time.
(5) Affirmative consent cannot be given when an
individual is incapacitated. For purposes of this paragraph,
incapacitation occurs when an individual lacks the ability to
knowingly choose to participate in sexual activity.
Incapacitation may be caused by the lack of consciousness or
by being asleep, being involuntarily restrained or if an
individual otherwise cannot give affirmative consent, such as
an individual who has a physical or cognitive or
developmental disability. Depending on the degree of
intoxication, someone who is under the influence of alcohol,
drugs or other intoxicants may be incapacitated and unable to
give affirmative consent.
(6) Affirmative consent cannot be given when it is the
result of coercion, intimidation, force or threat of harm.
(7) When affirmative consent is withdrawn or can no
longer be given, sexual activity must cease.
Section 3. Sections 2004-G and 2006-G of the act are amended
to read:
Section 2004-G. Follow-up.
An institution of higher education and private licensed
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school shall conduct [a] at least one follow-up program for the
[duration of the school year for new] students participating in
the education program. The follow-up program may consist of the
following:
(1) Lecturers and interactive learning programs relating
to sexual violence, dating violence, domestic violence and
stalking prevention and awareness.
(2) Institutional activities relating to sexual
violence, dating violence, domestic violence and stalking
prevention and awareness.
(3) Videos and other educational materials relating to
sexual violence, dating violence, domestic violence and
stalking prevention and awareness.
Section 2006-G. Report.
An institution of higher education and a private licensed
school shall report to the department on the implementation of
the education program under section 2003-G, the memorandum of
understanding under section 2007-G and the community
partnerships under section 2008-G by the institution or school.
Section 4. The act is amended by adding a sections to read:
Section 2007-G. Memorandum of understanding.
(a) General rule.--An institution of higher education shall
enter into and maintain a memorandum of understanding with at
least one rape crisis center and one domestic violence program
to:
(1) Assist in developing the institution's policies,
programming and training regarding sexual misconduct and
other prohibited behavior, such as sexual assault, dating
violence, domestic violence and stalking, involving students
and employees.
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(2) Provide an off-campus alternative for students and
employees of the institution to receive free and confidential
services to address sexual harassment and assault and dating
and domestic violence, including:
(i) crisis and longer-term counseling;
(ii) support in navigating campus and community
reporting options; and
(iii) access to legal assistance, sexual violence
protection and protection from intimidation orders, crime
victims' compensation, a forensic rape exam conducted by
a sexual assault nurse examiner, if available, and other
services.
(3) Ensure that a student or employee of the institution
is notified of free and confidential sources of support,
counseling and advocacy services and how to access the
services both on and off campus.
(4) Ensure cooperation and cross-training between the
institution and the rape crisis center and domestic violence
center to ensure an understanding of the roles that each
respectively should play in responding to reports and
disclosures of sexual misconduct and other prohibited
behavior, such as dating violence, domestic violence and
stalking against students and employees of the institution
and the institution's protocols for investigating and
adjudicating such misconduct and for providing support and
services to students and employees.
(5) Consult in the development or implementation of an
education program under section 2003-G.
(b) Agreement to provide services.--Each memorandum of
understanding may include an agreement, including a fee
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structure, between the rape crisis center and domestic violence
program and the institution of higher education to provide
confidential victim services. Confidential victim services may
include consultation fees for the development and implementation
of student education and prevention programs, the development of
staff training and prevention curriculum and confidential on-
site office space for an advocate from a rape crisis center or
domestic violence program to meet with students or employees.
(c) Good-faith waiver.--The department may waive the
requirements of this section in the case of an institution that
demonstrates that it acted in good faith but was unable to
obtain a signed memorandum.
Section 2008-G. Community partnerships.
(a) General rule.--Institutions of higher education may also
establish partnerships with community entities to assist
students who have experienced sexual violence, dating violence,
domestic violence or stalking.
(b) Development of community partnership.--In establishing a
community partnership under subsection (a), an institution of
higher education shall consult the following in the development
of the partnership:
(1) The institution's Title IX coordinator.
(2) The institution's public safety or law enforcement
officials, if applicable.
(3) Students, including representatives from student
leadership organizations. Representatives from student
leadership organizations may include representatives of
student government, resident assistants, members of
fraternities or sororities, student athletes or
representatives from student conduct boards.
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(4) Faculty representatives.
(5) The institution's counseling or mental health
professionals.
(c) Response team.--An institution of higher education may
establish and utilize a multidisciplinary sexual assault
response team or similar group comprised of on-campus and
community-based representatives that convenes regularly to
monitor and provide a coordinated response to incidents of
sexual violence, dating violence, domestic violence and
stalking.
Section 5. The addition of section 2003.1-G of the act shall
apply to school years that begin after the effective date of
this section.
Section 6. This act shall take effect as follows:
(1) The following shall take effect immediately:
(i) The addition of section 2007-G.
(ii) This section.
(2) The remainder of this act shall take effect August
1, 2022.
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