HOUSE BILL 142

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Elizabeth "Liz    Thomson

 

 

 

 

 

AN ACT

RELATING TO EDUCATION; CREATING THE TASK FORCE ON SEXUAL MISCONDUCT; REQUIRING PUBLIC SCHOOLS AND PUBLIC AND PRIVATE POST-SECONDARY EDUCATIONAL INSTITUTIONS TO ADOPT POLICIES AND PROCEDURES ADDRESSING AFFIRMATIVE CONSENT AND PREVENTION OF SEXUAL ASSAULT, DOMESTIC VIOLENCE, DATING VIOLENCE, HARASSMENT AND STALKING; REQUIRING PUBLIC AND PRIVATE POST-SECONDARY EDUCATIONAL INSTITUTIONS TO CONDUCT BIENNIAL SEXUAL MISCONDUCT CLIMATE SURVEYS; AMENDING THE PUBLIC SCHOOL CODE TO INCLUDE A REQUIREMENT TO SET AFFIRMATIVE CONSENT AS THE STANDARD FOR SEXUAL ACTIVITY.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

         SECTION 1. [NEW MATERIAL] POLICIES ADDRESSING AFFIRMATIVE CONSENT AND PREVENTION OF SEXUAL ASSAULT, DOMESTIC VIOLENCE, DATING VIOLENCE, HARASSMENT AND STALKING REQUIRED--SEXUAL MISCONDUCT CLIMATE SURVEYS--REPORTING REQUIREMENTS--HIGHER EDUCATION DEPARTMENT DUTIES.--

                   A. A public or private post-secondary educational institution that receives state funds for student financial assistance shall adopt detailed, trauma-informed policies and trauma-informed responses for the investigation of allegations of sexual assault, domestic violence, dating violence and harassment or stalking involving a student, faculty member, employee, contractor or regent both on and off campus.

                   B. All policies and procedures shall:

                               (1) reference an affirmative consent standard in the determination of whether consent was given by all parties to sexual activity;

                               (2) confirm that it is the responsibility of each person involved in the sexual activity to ensure that the person has the affirmative consent of all other participants engaged in that sexual activity;

(3) confirm that affirmative consent:

                                         (a) can never be given by a person who is asleep, unconscious, incapacitated due to the influence of drugs, alcohol or medication or unable to communicate due to a mental or physical condition;

                                         (b) cannot be implied, assumed or inferred from silence or lack of protest or resistance; and

                                         (c) can be revoked at any time; and

                               (4) confirm that the existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, shall never by itself be assumed to be an indicator of consent.

                   C. The standard to be used in determining whether the elements of the complaint against the responding party have been demonstrated is the preponderance of the evidence.

                   D. Policies shall include a:

                               (1) provision addressing how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality;

                               (2) provision that all parties and witnesses who participate as a complainant or witness in an investigation will not be subject to disciplinary sanctions for a violation of the school's student conduct policy at or near the time of the incident, unless the school determines that the violation was egregious, including an action that places the health or safety of any other person at risk or involves plagiarism, cheating or academic dishonesty;

                               (3) description of the role of the institutional staff supervision; and

                               (4) provision for a comprehensive, trauma-informed response training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence and harassment or stalking cases.

                   E. Procedures shall include:

                               (1) an initial response by the institution's personnel to a report of an incident, including:

                                         (a) providing written notification to the complainant about the availability of, and contact information for, on- and off-campus resources and services and coordination with law enforcement, as appropriate;

                                         (b) providing information in writing to the complainant about the importance of preserving evidence;

                                         (c) the identification and location of witnesses;

                                         (d) response to stranger and non-stranger sexual assault;

                                         (e) a preliminary complainant interview; and

                                         (f) a comprehensive follow-up complainant interview, as appropriate;

                               (2) investigation of the complaint, including:

                                         (a) contacting and interviewing the responding party;

                                         (b) seeking the identification and location of witnesses;

                                         (c) investigating allegations that alcohol or drugs were involved in the incident; provided that these allegations cannot be used against the complainant during the process of investigating the complaint; and

                                         (d) participation of complainant advocates and other support persons;

                               (3) confidential reporting by complainants and third parties; and

                               (4) evaluating complaints as appropriate.

                   F. Public or private post-secondary educational institutions that receive state funds for student financial assistance shall:

                               (1) 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 care, mental health care, complainant advocacy, legal assistance and resources for the responding party and the complainant at no cost; and

                               (2) implement comprehensive prevention and outreach programs that:

                                         (a) include a range of prevention strategies, including empowerment programming, awareness-raising campaigns, primary prevention, bystander intervention and risk reduction;

                                         (b) make students aware of the institution's policy on sexual assault, domestic violence, dating violence and harassment or stalking by contacting and informing the student body, campus organizations, athletic programs and student groups about the institution's policy, the practical implications of an affirmative consent standard and the rights and responsibilities of students under the policy; and

                                         (c) are included as part of every incoming student's orientation.

                   G. The task force on sexual misconduct shall provide a copy of the sexual misconduct climate survey pursuant to Section 4 of this 2021 act to all post-secondary educational institutions. Each post-secondary educational institution shall be permitted to append its own institution-specific questions to the sexual misconduct climate survey; provided that the questions do not require the disclosure of any personally identifying information and are not unnecessarily traumatizing for victims of sexual violence.

                   H. Each post-secondary educational institution shall biennially conduct a sexual misconduct climate survey of all students attending the institution beginning with the spring semester of 2023. Each post-secondary educational institution's sexual misconduct climate survey shall include a base set of common questions recommended by the task force on sexual misconduct pursuant to Section 4 of this 2021 act and approved by the secretary of higher education.

                   I. All students must be offered an opportunity to fill out the sexual misconduct climate survey. The sexual misconduct climate survey shall collect anonymous responses, and the disclosure of identifying information on the sexual misconduct climate survey shall be prohibited.

                   J. Within ninety days after completion of a sexual misconduct climate survey, each post-secondary educational institution shall submit a summary of the results, accompanied

by the anonymized raw data supporting the survey, to the secretary of higher education and shall also post a summary of the results on the post-secondary educational institution's website in an easily accessible manner with a link to the higher education department's statewide data on sexual misconduct climate surveys. The results shall not be presented in a manner that could identify specific students through demographic information.

                   K. The higher education department shall establish a data repository for all summaries of sexual misconduct climate surveys submitted by post-secondary educational institutions to the higher education department in accordance with this section. The secretary of higher education shall ensure that the sexual misconduct climate survey data submitted by all post-secondary educational institutions is available to the public in an easily accessible manner on the higher education department's website.

                   L. The secretary of higher education shall adopt rules, including deadlines for dissemination and collection of survey information, consistent with the purposes of this 2021 act, and shall promote effective solicitation to achieve the highest practical response rate, collection and publication of statistical information gathered from post-secondary educational institutions.

                   M. For purposes of this section:

                               (1) "affirmative consent" means affirmative, conscious and voluntary agreement to engage in sexual activity;

                               (2) "complainant" means a student or employee who reports having experienced an incident of sexual assault, domestic violence, dating violence or harassment or stalking to the institution;

                               (3) "dating violence" means violence committed by a person:

                                         (a) who is or has been in a social relationship of a romantic or intimate nature with the complainant; and

                                         (b) where the existence of such a relationship shall be determined based on the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship;

                               (4) "domestic violence" means domestic abuse as defined in Section 40-13-2 NMSA 1978 or crimes against household members described in Sections 30-3-12 through 30-3-16 NMSA 1978;

                               (5) "harassment or stalking" means harassment, stalking and aggravated stalking as described in Sections 30-3A-2 through 30-3A-3.1 NMSA 1978;

                               (6) "post-secondary educational institution" means a public, private, nonprofit or for-profit school chartered, incorporated or otherwise organized in this state that is legally authorized to award a vocational or technical certificate or a degree at an associate level or above with an established physical presence in this state;

                               (7) "responding party" means a student or employee who has been accused of an alleged incident of sexual assault, domestic violence, dating violence or harassment or stalking;

                               (8) "sexual assault" means sexual offenses described in Sections 30-9-11 through 30-9-14 and 30-9-14.3 NMSA 1978;

                               (9) "student" means an individual who is enrolled in a credit-bearing program through a public or private degree-granting post-secondary educational institution, whether part-time, full-time or as an extension student or who has taken a leave of absence or has withdrawn from the institution due to being a victim of sexual assault, domestic violence, dating violence or harassment or stalking;