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A BILL TO BE ENTITLED
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AN ACT
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relating to a sexual assault policy at public and private |
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institutions of higher education. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 51.9363, Education Code, is amended to |
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read as follows: |
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Sec. 51.9363. [CAMPUS] SEXUAL ASSAULT POLICY. (a) In this |
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section, "postsecondary educational institution" means an |
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["]institution of higher education or a private or independent |
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institution of higher education, as those terms are defined ["
has
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the meaning assigned] by Section 61.003. |
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(b) Each postsecondary educational institution [of higher
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education] shall adopt a policy on [campus] sexual assault |
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applicable to any person employed by the institution and to each |
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student enrolled in the institution. The policy must: |
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(1) incorporate an affirmative consent standard for |
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determining consent to engage in sexual activity, including by |
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reflecting the affirmative consent principles described by |
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Subsection (b-1); |
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(2) include: |
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(A) definitions of prohibited behavior; |
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(B) sanctions for violations; and |
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(C) the protocol for reporting and responding to |
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reports of [campus] sexual assault; and |
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(3) [(2)] be approved by the institution's governing |
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board before final adoption by the institution. |
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(b-1) Each postsecondary educational institution shall |
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ensure the institution's sexual assault policy reflects the |
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following principles regarding affirmative consent to engage in |
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sexual activity: |
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(1) affirmative consent requires words or actions that |
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clearly demonstrate a knowing and voluntary agreement to engage in |
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sexual activity; |
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(2) a person's silence or the absence of the words "no" |
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or "stop" is not sufficient to establish affirmative consent to |
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engage in sexual activity; |
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(3) the requirement to obtain affirmative consent to |
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engage in sexual activity applies to each student enrolled at the |
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institution regardless of whether the sexual activity occurs on or |
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off campus; |
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(4) each participant is responsible for obtaining |
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affirmative consent and ensuring that the affirmative consent |
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continues throughout the duration of the sexual activity; |
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(5) affirmative consent to engage in a sexual act or |
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prior consensual sexual activity with any person does not |
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constitute affirmative consent to engage in any other sexual act; |
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(6) affirmative consent may be withdrawn at any time; |
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(7) a person cannot affirmatively consent to engage in |
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sexual activity if it is the result of any coercion, intimidation, |
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force or threat of harm; |
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(8) a person cannot affirmatively consent to engage in |
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sexual activity when the person is incapacitated or otherwise lacks |
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the ability to knowingly choose to engage in the activity, |
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regardless of whether the person is incapacitated due to any |
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physical or mental condition, lack of consciousness, being asleep, |
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being involuntarily restrained, being under the influence of drugs |
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or alcohol to the level of incapacitation, or for any other reason; |
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and |
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(9) an accused person will not be excused for |
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believing the complainant affirmatively consented to engage in |
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sexual activity if: |
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(A) the accused person knew or reasonably should |
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have known that the complainant was incapacitated as described by |
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Subdivision (7); or |
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(B) the accused believed that the complainant |
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affirmatively consented to engage in the sexual activity and the |
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belief is based upon: |
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(i) the accused's intoxication; or |
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(ii) the accused failing to take reasonable |
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steps to ascertain whether the complainant affirmatively consented |
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to engage in the sexual activity. |
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(c) Each postsecondary educational institution [of higher
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education] shall make the institution's [campus] sexual assault |
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policy available to students, faculty, and staff members by: |
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(1) including the policy in the institution's student |
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handbook and personnel handbook; [and] |
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(2) creating and maintaining a web page on the |
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institution's Internet website dedicated solely to the policy[.]; |
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and |
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(3) develop and implement a public awareness campaign |
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informing students, staff, and faculty of the affirmative consent |
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standard implemented by the institution, including that the |
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affirmative consent standard shall be applied in alleged violations |
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of the sexual assault policy of the institution. |
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(d) Each postsecondary educational institution [of higher
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education] shall require each entering freshman or undergraduate |
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transfer student to attend an orientation on the institution's |
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[campus] sexual assault policy before or during the first semester |
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or term in which the student is enrolled at the institution. The |
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institution shall establish the format and content of the |
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orientation. |
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(e) Each biennium, each postsecondary educational |
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institution [of higher education] shall review the institution's |
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[campus] sexual assault policy and, with approval of the |
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institution's governing board, revise the policy as necessary. |
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SECTION 2. Section 51.9363, Education Code, as amended by |
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this Act, applies beginning with the 2017 fall semester. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2017. |