§ 168E — Adoption of policies on sexual misconduct involving students or employees

Massachusetts § 168E

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title II: EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
• Ch. 6: THE GOVERNOR, LIEUTENANT GOVERNOR AND COUNCIL, CERTAIN OFFICERS UNDER THE GOVERNOR AND COUNCIL, AND STATE LIBRARY

Text

Section 168E. (a) For the purposes of this section, the following terms shall have the following meanings unless the context clearly requires otherwise:''Institution'', a public or independent institution of higher education located in the commonwealth and authorized to grant degrees pursuant to any general or special law.''Reporting party'', a student or employee of an institution who reports being subject to an incident of sexual misconduct to the institution.''Responding party'', a student or employee of an institution who has been accused of an alleged incident of sexual misconduct.''Sexual misconduct'', an incident of sexual violence, dating violence, domestic violence, gender-based violence, violence based on sexual orientation or gender identity or expression, sexual assault, sexual harassment or stalking.''Title IX'', Title IX of the federal Education Amendments of 1972.''Title IX coordinator'', the employee of an institution responsible for the institution's compliance with Title IX.(b) Consistent with applicable state and federal law and regulation, each institution shall adopt policies on sexual misconduct involving students or employees of the institution that comport with best practices and current professional standards and shall establish procedures for regularly reviewing and updating the policies. The policies shall be publicly available on the institution's website in an accessible format and shall be made available in writing to an applicant, student or employee of the institution upon request. The policies shall be developed in coordination with the institution's Title IX coordinator and may consider input from internal and external entities including, but not limited to, institutional administrators, personnel affiliated with on-campus or off-campus health care centers, personnel affiliated with on-campus, when available, or local, community-based rape crisis centers or domestic violence programs, confidential resource providers, residence life staff, students, the department of state police and the police department or district attorney having jurisdiction in the city or town in which the institution's primary campus is located. The policies shall include, but not be limited to: (i) procedures by which students and employees at the institution may report incidents of sexual misconduct regardless of where the offense occurred; (ii) information on where to receive immediate emergency assistance following an incident of sexual misconduct, which shall include, but not be limited to, information related to preserving evidence and contact information for seeking medical treatment on campus, if available, and off campus; (iii) descriptions of the types of counseling and health, safety, academic and other support services available from the institution within the local community or region or through a local community-based rape crisis center or domestic violence program, including contact information; (iv) information on the rights of students and employees to: (A) notify or decline to notify law enforcement, including campus, local and state police, of an alleged incident of sexual misconduct; (B) receive assistance from campus authorities in making any such notification; (C) obtain a court-issued protective order or an institution-issued no-contact order against an alleged perpetrator of the sexual misconduct; and (D) concurrently utilize the institution's process for investigating sexual misconduct complaints and any external civil or criminal processes available to the student or employee; (v) school-based supportive measures reasonably available from the institution, which shall include, but not be limited to, options for changing academic, living, campus transportation or working arrangements in response to an alleged incident of sexual misconduct, regardless of where the conduct occurred or whether such conduct occurred outside of an institution's programs or activities, and regardless of whether a complaint is filed in accordance with the institution's policy for resolving complaints, how to request such measures and the process to have any such measures reviewed; (vi) procedures for students or employees to notify the institution that a protective order has been issued under state or federal law and the institution's responsibilities upon receipt of such notice; (vii) a summary of the institution's procedures for resolving complaints of sexual misconduct promptly and equitably, including clear statements advising students and employees: (A) that notice shall be given to the responding party and shall include, but not be limited to, the date, time and location, if known, of the alleged incident of sexual misconduct and a specific statement of which policies were allegedly violated and by what actions; (B) that an impartial investigation, including any hearings and resulting disciplinary proceedings, shall be conducted by an individual who receives not less than annual training on issues relating to sexual misconduct, investigatory procedures and hearing procedures to protect the safety and rights of students and employees and promote accountability; (C) that there is a presumption that the responding party is not responsible for the alleged conduct until a determination regarding responsibility is made by the institution at the conclusion of the relevant process; (D) that both parties shall be provided equal opportunities to inspect and review evidence obtained as part of the investigation that is directly related to the allegations; (E) that the reporting party of an alleged incident of sexual misconduct and the responding party may be accompanied by and represented by an advisor or support person of their choice, which may include an advocate or counsel, to meet with the institution's investigator or other fact finder and may consult with an advisor or support person, which may include an advocate, confidential resource provider or counsel, during any meetings, hearings and disciplinary proceedings; provided, however, that the institution may establish rules regarding how the meetings, hearings and disciplinary proceedings will be conducted, which may include guidelines on the extent to which the advisor, confidential resource provider or support person for each party may participate in a meeting, hearing or disciplinary proceeding and any limitations on participation; provided further, that the rules, including guidelines on participation and limits of participation, shall apply equally to both parties; and provided further, that the institution shall adopt reasonable measures to provide for the involvement of the advisor, confidential resource provider or support person for each party but the availability of the advisor, confidential resource provider or support person shall not significantly delay a meeting or disciplinary proceeding; (F) of the standard of evidence used to resolve complaints; (G) that the reporting party and the responding party shall be provided with a copy of the institution's policies regarding the submission and consideration of evidence that may be used during a hearing or disciplinary proceeding and shall have equal opportunity to present evidence and witnesses on their behalf during a hearing or disciplinary proceeding; provided, however, that each party shall be provided with timely and equal access to relevant evidence that shall be used in the determination of a disciplinary action; (H) that there may be restrictions on evidence considered by the fact finder including, but not limited to, the use of evidence of prior sexual activity or character witnesses;(I)that the reporting party and the responding party shall not be personally allowed to directly question each other during a hearing or disciplinary proceeding; (J) that the reporting party and the responding party shall be informed in writing of the results of a hearing or disciplinary proceeding not later than 7 business days after a final determination of a complaint, not including any time for appeal, unless good cause for additional time is shown, and that they shall be informed of any process for appealing the decision; (K) that if an institution offers an appeal as a result of procedural errors, previously unavailable relevant evidence that could significantly impact the outcome of a case or where the sanction is disproportionate to the findings, the reporting party and the responding party shall be provided with an equal opportunity to appeal decisions regarding responsibility or sanctions; and (L) that the institution shall not disclose the identity of the reporting party and the responding party, except as necessary to carry out a disciplinary process or as permitted under state or federal law; (viii) a summary of the institution's employee disciplinary process as it pertains to sexual misconduct; (ix) the range of sanctions or penalties the institution may impose on students and employees found responsible for a violation of the applicable institutional policy prohibiting acts of sexual misconduct; and (x) a summary of the institution's policy on retaliation, noting that the institution prohibits retaliation against anyone who reports sexual misconduct, assists another in making a report or participates in an investigation of a report.(c) Each institution shall, to the extent feasible, adopt a memorandum of understanding with local law enforcement agencies to establish the respective roles and responsibilities of each party related to the prevention of and response to on-campus and off-campus sexual misconduct. In adopting the memorandum of understanding, institutions and local law enforcement agencies shall develop policies and procedures that comply with all applicable confidentiality and privacy laws and that: (i) set out the jurisdiction of the local law enforcement agencies based on criteria such as location and type of incident and provide for cross-jurisdictional or multi-jurisdictional response and investigation, as appropriate; (ii) establish protocols, as permitted by federal and state law, for cases where a student or employee consents to the release of relevant documentation and information generated or acquired during local law enforcement or campus police investigations; and (iii) include methods for notifying the appropriate district attorney's office. If an institution is subject to the jurisdiction of more than 1 local law enforcement agency, 1 memorandum of understanding among the institution and the local law enforcement agencies shall comply with this subsection.(d) The commissioner of higher education shall appoint within the department of higher education a campus safety advisor to facilitate and advance statewide campus safety at public and private institutions of higher education. Such person shall have relevant public safety policy experience that may include campus public safety policy experience. The advisor shall coordinate, aggregate and disseminate best practices, training opportunities and other resources to enhance campus safety at institutions.(e) An institution shall make publicly available on its website, in an accessible format: (i) the Annual Security Report required under the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, codified as subsection (f) of 20 U.S.C. section 1092, relating to sexual misconduct and all information contained in an institution's annual report as required in subsection (q); (ii) the telephone number and website for a local, state or national 24-hour hotline that provides information on sexual misconduct; (iii) the name and contact information for the institution's Title IX coordinator; (iv) the name and contact information for a confidential resource provider, appointed pursuant to subsection (l), and a description of the role of and services provided by a confidential resource provider, which shall be updated on a timely basis; (v) the name and location of the nearest medical facility where an individual may request that a sexual assault evidence collection kit be administered by a trained sexual violence forensic health care provider, including, but not limited to, information on transportation options and reimbursement for travel costs, if any; (vi) its policies on sexual misconduct; (vii) sexual misconduct reporting options for students and employees; (viii) the process of investigation and adjudication by the institution; and (ix) the process for requesting a possible interim school-based supportive measure, when reasonable and available, to change an academic, living, campus transportation or working situation in response to alleged sexual misconduct. The institution shall also establish the methods for sharing reports with local law enforcement authorities pursuant to the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, codified as subsection (f) of 20 U.S.C. section 1092, and for facilitating the issuance of timely warnings and emergency notifications required by the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, codified as subsection (f) of 20 U.S.C. section 1092, relative to crimes that may pose a serious threat to the campus or near campus communities.(f) Annually, not later than August 20, institutions shall transmit to students and employees by electronic mail their policies and procedures concerning the reporting and investigation of an allegation of sexual misconduct made by a student or employee of the institution against another student or employee of the institution.(g) Upon receiving a report of sexual misconduct, an institution shall provide a notice of the student's or the employee's rights and options under the institution's sexual misconduct policies to the reporting party.(h) An institution that does not provide its own sexual assault crisis service center shall enter into and maintain a memorandum of understanding with a community-based sexual assault crisis service center funded by the department of public health and a community-based domestic violence program funded by the department of public health to: (i) provide an off-campus alternative for students and employees to receive sexual assault crisis services, including access to a sexual assault nurse examiner if available, or domestic violence crisis services in response to sexual misconduct; (ii) ensure that a student or employee of the institution is able to access free and confidential counseling and advocacy services either on campus or off campus; and (iii) encourage cooperation and trainings between the institution and the service center or program to ensure an understanding of the roles that the institution, service center and program should play in responding to reports and disclosures of sexual misconduct against students and employees of the institution and the institution's protocols for providing support and services to the students and employees.The memorandum of understanding may include an agreement, including a fee structure, for the sexual assault crisis service center or domestic violence program to provide confidential victim services. Confidential victim services may include: (i) case consultation and training fees for confidential resource employees; (ii) consultation fees for the development and implementation of student education and prevention programs; (iii) the development of staff training and prevention curricula; and (iv) confidential on-site office space for an advocate from a sexual assault crisis service center or domestic violence program to meet with students and employees.The department of higher education may waive the memorandum of understanding requirement to an institution that demonstrates that the institution acted in good faith but was unable to obtain a signed memorandum.(i) An institution shall provide a method for anonymously reporting an incident of sexual misconduct that involves a student or employee of the institution.(j) An institution shall notify its students and employees of the institution's obligations under state and federal law to: (i) investigate or address the alleged sexual misconduct, including when the alleged act was reported anonymously; (ii) assess whether the report triggers the need for a timely warning or emergency notification under state or federal regulations, the obligations of which may, in limited circumstances, result in the release of the reporting party's identity; and (iii) disclose the identity of a reporting party to another student, an employee or a third party.(k) A reporting party or a witness who causes an investigation of sexual misconduct shall not be subject to a disciplinary sanction for a violation of the institution's student conduct policy related to the incident unless the institution determines that the report was not made in good faith or that the violation was egregious. An egregious violation shall include, but not be limited to, taking an action that places the health and safety of another person at risk.(l) Each institution shall establish a campus security policy that includes the designation of at least 1 confidential resource provider. The confidential resource provider may have another role at the institution; provided, however, that the confidential resource provider shall not be a student, a Title IX coordinator or an employee who is required by Title IX to report to the Title IX coordinator. The institution shall designate new or existing categories of employees that may serve as confidential resource providers. The designation of an existing category of employees shall not preclude the institution from designating a new or existing employee or partnering with a local, state or national victim services organization to serve as a confidential resource provider or to serve in another confidential role. An institution may partner with an outside victim support services organization to provide a confidential resource provider under this section. An institution that enrolls less than 1,000 students may partner with another institution in the region or within the commonwealth to establish a campus security policy and provide a confidential resource provider.Upon the request of the reporting party or responding party, the confidential resource provider shall provide information on: (i) reporting options and the effects of each option; (ii) counseling services available on campus and through a local, community-based rape crisis center or domestic violence program; (iii) medical and health services available on campus and off campus; (iv) available school-based supportive measures related to academic and residence life; (v) the disciplinary process of the institution; and (vi) the legal process carried out through local law enforcement agencies.The confidential resource provider shall receive training in the awareness and prevention of sexual misconduct and in trauma-informed response and coordinate with any on-campus or off-campus sexual assault crisis service center or domestic violence program and, if directed by the reporting party, campus or local law enforcement agencies may, as appropriate, assist the student or employee in contacting or reporting to campus or local law enforcement agencies. If requested by the reporting party, the confidential resource provider, using only the reporting party's identifying information, shall coordinate with the appropriate institutional personnel to arrange possible interim school-based supportive measures to allow the reporting party to change academic, living, campus transportation or working arrangements in response to the alleged sexual misconduct. A confidential resource provider shall not provide services to adverse parties in an incident of sexual misconduct and shall ensure confidentiality is maintained.The confidential resource provider shall notify the reporting party of their rights and the institution's responsibilities regarding a protection order, no contact order and any other lawful orders issued by the institution or by a criminal, civil or tribal court. The confidential resource provider shall not be required to report an incident to the institution or a law enforcement agency unless otherwise required to do so by state or federal law and shall provide confidential services to students and employees. A request for a possible interim school-based supportive measure made by a confidential resource provider on behalf of a reporting party to change an academic, living, campus transportation or working situation in response to alleged sexual misconduct shall not require the reporting party to file a formal complaint for Title IX purposes. A confidential resource provider may attend an administrative or institution-based adjudication proceeding as the advisor or support person of the student's or employee's choice.Unless otherwise required by state or federal law, a confidential resource provider shall not disclose confidential information without the prior written consent of the reporting party who shared the information; provided, however, that nothing in this section shall limit a responding party's right of cross examination of the confidential resource provider in a civil or criminal proceeding if the confidential resource provider testifies after being given written consent to do so by the party. A confidential communication shall not be subject to discovery and shall be inadmissible in a criminal or civil proceeding without the prior written consent of the party who shared the information. Information provided to the confidential resource provider shall not be released to a campus official or law enforcement officer or agency unless written consent has been given by the reporting party. A confidential resource provider shall not act as a counselor or therapist unless the confidential resource provider holds a valid and applicable license under chapter 112 and the reporting party engages the confidential resource provider in that capacity. The privileges available under chapter 233 shall apply to all information received by a confidential resource provider.If a conflict of interest arises for an institution in which a confidential resource provider is advocating for the reporting party's need for sexual assault crisis services or campus or law enforcement services, the institution shall not discipline, penalize or otherwise retaliate against the confidential resource provider for representing the interest of the reporting party.Notice to a confidential resource provider of an alleged act of sexual misconduct or a confidential resource provider's performance of a service under this section shall not be considered actual or constructive notice of such an alleged act to the institution at which the confidential resource provider is employed or provides contracted services.(m) Within 45 days of their matriculation or employment, an institution shall provide to newly-enrolled students and newly-hired employees: (i) mandatory sexual misconduct primary prevention and awareness programming for newly-enrolled students and newly-hired employees of the institution that shall include, but not be limited to: (A) an explanation of civil rights laws, their meaning, purpose, definition and applicability to all forms of sex-based and gender-based harm; (B) the role drugs and alcohol play in changing behavior and affecting an individual's ability to consent; (C) information on options relating to the reporting of an incident of sexual misconduct, the effects of each option and the methods to report an incident of sexual misconduct, including confidential and anonymous disclosure; (D) information on the institution's policies and procedures for resolving sexual misconduct complaints and the range of sanctions or penalties the institution may impose on students and employees found responsible for a violation; (E) the name, contact information and role of the confidential resource provider; and (F) strategies for bystander intervention and risk reduction; and (ii) information on opportunities for ongoing sexual misconduct prevention and awareness campaigns and programming.(n) An individual who participates in the implementation of an institution's disciplinary process for addressing complaints of sexual misconduct, including an individual responsible for resolving complaints of reported incidents, shall have training or experience in handling sexual misconduct complaints and the operation of the institution's applicable disciplinary process. The training shall include, but not be limited to: (i) information on working with and interviewing persons subjected to sexual misconduct; (ii) information on particular types of conduct that constitute sexual misconduct; (iii) information on consent and the role drugs and alcohol may play in an individual's ability to consent; (iv) the effects of trauma, including any neurobiological impact on an individual; (v) cultural competence training regarding how sexual misconduct may impact individuals differently depending on factors that contribute to an individual's cultural background, including, but not limited to, national origin, sex, ethnicity, religion, gender identity, gender expression and sexual orientation; (vi) ways to communicate sensitively and compassionately with a reporting party of sexual misconduct including, but not limited to, an awareness of responding to a reporting party with consideration of that party's cultural background and providing services to or assisting in locating services for the reporting party; (vii) training and information regarding how sexual misconduct may impact individuals with developmental or intellectual disabilities; and (viii) training on the principles of due process necessary to ensure that proceedings are conducted impartially in a manner that is fundamentally fair to all parties.(o) Each institution shall ensure that its Title IX coordinator and members of its special or campus police force or the campus safety personnel employed by the institution are educated and trained in the awareness and prevention of sexual misconduct.(p) Nothing in this section shall prevent any other civil rights remedies available through any other provision of state or federal law.(q) Annually, not later than December 1, each institution shall prepare and submit to the department of higher education a report that includes: (i) the total number of reports of sexual misconduct reported to the institution's Title IX coordinator by a student or employee of the institution against another student or employee of the institution; (ii) the number of reports made by a student or employee of the institution against another student or employee of the institution investigated by a local or state law enforcement agency, if known; (iii) the number of students and employees found responsible for violating an institution's policies prohibiting sexual misconduct; (iv) the number of students and employees found not responsible for violating an institution's policies prohibiting sexual misconduct; and (v) the number of disciplinary actions imposed by the institution as a result of a finding of responsibility for violating an institution's policies prohibiting sexual misconduct. Such incident data shall be reported in the form and manner established by the department of higher education, in consultation with the attorney general, and in a manner that complies with state and federal privacy laws. The department of higher education shall analyze the incident data and shall publish an annual report containing aggregate statewide information on the frequency and nature of sexual misconduct at institutions. The department of higher education shall file the annual report with the attorney general, the clerks of the senate and the house of representatives and the joint committee on higher education.(r) The department of higher education shall promulgate regulations necessary to implement this section.