H.B. NO.














relating to STUDENT SAFETY.





     SECTION 1.  The legislature finds that the University of Hawaii must provide consistency across its several campuses in how it investigates and responds to reports of campus violence, particularly, sexual assault.  Presently, determining whether a person consented to sexual activity may be difficult when it is unclear whether consent was willingly given or whether it was given while under the influence of drugs, alcohol, or medication.  Accordingly, the legislature finds that affirmative consent language should be made a central principle of school sexual assault policies.  Use of an affirmative consent standard to determine whether or not consent was given will change how campus officials investigate sexual assault allegations.

     The purpose of this Act is to require the board of regents of the University of Hawaii to adopt policies for investigating and responding to reports of sexual assault, domestic violence, dating violence, and stalking, involving a student that include among other things, the use of affirmative consent as a standard for determining whether persons consented to sexual activity.

     SECTION 2.  Chapter 304A, Hawaii Revised Statutes, is amended by adding a new subpart to part II to be appropriately designated and to read as follows:

" .  Student Safety

     §304A-    Student safety.  (a)  The board of regents shall adopt policies concerning sexual assault, domestic violence, dating violence, and stalking, involving a student, both on and off campus.  The policies shall include all of the following:

     (1)  An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity.  It shall be the responsibility of each person involved in the sexual activity to ensure that the person has the affirmative consent of the other or others to engage in the sexual activity;

     (2)  A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse for an alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

         (A)  The accused's belief in affirmative consent arose from the intoxication or recklessness of the accused; or

         (B)  The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented;

     (3)  A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated shall be the preponderance of the evidence standard;

     (4)  A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

         (A)  The complainant was asleep or unconscious;

         (B)  The complainant was incapacitated due to the influence of drugs, alcohol, or medication, such that the complainant could not understand the fact, nature, or extent of the sexual activity; or

         (C)  The complainant was unable to communicate due to a mental or physical condition.

     (b)  The board of regents shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards.  At a minimum, the policies and protocols shall cover all of the following:

     (1)  A policy statement on how the university will provide appropriate protections for the privacy of individuals involved, including confidentiality;

     (2)  The initial response by university personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses;

     (3)  Response to stranger and nonstranger sexual assault;

     (4)  The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive follow up victim interview, as appropriate;

     (5)  Contacting and interviewing the accused;

     (6)  Seeking the identification and location of witnesses;

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

     (8)  Participation of victim advocates and other supporting people;

     (9)  Investigating allegations that alcohol or drugs were involved in the incident;

    (10)  Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the university's student conduct policy at or near the time of the incident, unless the university 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;

    (11)  The role of university staff supervision;

    (12)  A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases; and

    (13)  Procedures for confidential reporting by victims and third parties.

     (c)  The board of regents, to the extent feasible, shall 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, mental health, victim advocacy, and legal assistance, and including resources for the accused.

     (d)  The board of regents shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking.  A comprehensive prevention program shall include a range of prevention strategies, including empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction.  Outreach programs shall be provided to make students aware of the university's policy on sexual assault, domestic violence, dating violence, and stalking.  At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the university's overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.

     (e)  Outreach programming shall be included as part of every incoming student's orientation.

     (f)  For the purposes of this section, "affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity.  Silence, the lack of protest, or the lack of resistance shall not mean consent.  Affirmative consent shall be required throughout a sexual activity and may be revoked at any time.  The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, shall not, by itself, be assumed to indicate consent."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.








Report Title:

Student Safety; Sexual Assault; Violence; Policies



Requires the BOR to adopt policies concerning student safety, sexual assault, and violence.




The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.