Massachusetts Enacts Sweeping New Campus Sexual Assault Law

By: Kim Pacelli, J.D., Partner, TNG Consulting

Massachusetts has recently enacted a sweeping new campus sexual assault law that adds additional requirements to complement Title IX.

Massachusetts has joined the growing number of states that have passed comprehensive statewide campus sexual assault laws. Aimed at improving higher education institutions’ response to sexual violence on campus, the new law was signed by Governor Charlie Baker on January 12, 2021, and applies to all public and private degree-granting institutions in the state. Institutions that are solely online, non-degree-granting, or located solely in other states are not subject to the law.

The Massachusetts law is one of the few statewide campus sexual violence bills to be enacted after the promulgation of the federal 2020 Title IX regulations, and the new law appears to have been crafted with campuses’ existing federal obligations in mind. The law mostly syncs with Title IX and Clery Act/VAWA §304 requirements, thus seeming to avoid conflicts and preemption issues. The Massachusetts law can be best characterized as additive, by requiring more resources for campuses’ intake processes and promoting transparency for campus communities with clear and thorough policies and procedures, campus climate surveys, and extensive publication of information on campus websites.

Enhanced Intake Procedures and Required Confidential Resources

The law places significant emphasis on the reporting and intake process by ensuring flexible reporting options and ready access to information about support resources on- and off-campus. Campus policies and websites must contain detailed information about reporting channels, including a method for anonymous reports. The law includes detailed requirements for policies and websites to describe resources on- and off-campus, including where and how to receive emergency assistance, counseling, health services, safety support, and academic and other support services. Each campus must provide for at least one confidential resource provider, which may either be an employee or a person from an outside victim support services organization. This confidential resource will be available to provide information on reporting options, campus disciplinary processes, law enforcement processes, and other services available on-campus and in the local community.

Required Coordination with Law Enforcement and Community Services

The law also directs institutions to enter into a Memorandum of Understanding (MOU) with local law enforcement agencies and community-based sexual assault crisis services if the institution does not already provide those services on-campus. The law enforcement MOU must clarify respective roles and responsibilities regarding prevention and response to on-campus and off-campus incidents, speak to the jurisdiction of the law enforcement entity vis-à-vis campus police or campus security, and establish protocols for sharing investigative information with student or employee consent. The crisis services MOU will provide for an off-campus reporting alternative for students and employees, including ready access to a sexual assault nurse examiner (SANE). The MOU may, but is not required to, articulate how the on-campus confidential resource can access case consultation and coordinate other community-based support services separate from existing on-campus support.

Climate Surveys and Required Policies

Each Massachusetts institution is now required to conduct a climate survey of students at least every four years. The required survey scope is detailed in the law and seeks to gather information on reported and unreported incidents, student awareness of campus policies and procedures, student satisfaction with the advice and guidance students received, access to support on- and off-campus, and perceptions of campus safety. Summaries of survey results must be published on the institution’s website. A state-level task force overseen by the Commissioner of Higher Education will develop a model survey, but institutions may develop and use their own survey with certain limitations. In addition to the surveys, institutions are required to report to the state Department of Education annually on the number of sexual misconduct reports, completed investigations, findings of responsibility (or not), and the disciplinary sanctions imposed.

The new law also requires institutions to adopt sexual misconduct policies and procedures; this requirement is clearly intended to bolster existing federal requirements under both Title IX and Clery Act/VAWA §304. Many of the required policy elements mirror aspects of the 2020 Title IX regulations, such as detailed written notice of allegations, a presumption of non-responsibility, and parties’ access to evidence gathered in the investigation. In other ways, however, the Massachusetts law is additive to Title IX by requiring that policies integrate best practices and current professional standards and clearly describe support and safety resources available to students and employees both on- and off-campus.

Additionally, policies must contain a clear description of how a student or employee can notify the institution that a protective order has been issued by a court. Lastly, the Massachusetts law mandates an amnesty provision for student complainants and witnesses, requiring that any student conduct violations that arise in the context of a good faith report should not be subject to any disciplinary sanction so long as the conduct did not endanger the health and safety of another person.

Two procedural requirements require some synthesis with Title IX’s Section 106.45 grievance procedures. First, under the Massachusetts law, the parties are entitled to be informed in writing no later than seven business days after the final determination; this specific deadline does not exist under the Title IX regulations. Second, the Massachusetts law permits a campus policy to restrict the use of character witnesses as evidence. This conflicts with the Title IX regulations, which permit character evidence when relevant. Massachusetts may be anticipating that there may be gaps to be filled by state law if and when the federal Title IX regulations are rescinded or struck down.

Training Requirements

Lastly, the Massachusetts law contains extensive training requirements tailored to various stakeholders. These requirements are complementary to the training requirements already required under the Title IX regulations and the Clery Act/VAWA §304. Newly-enrolled students and newly-hired employees must receive prevention and awareness programming, but with a higher degree of specificity in curriculum than VAWA §304 already requires, including, among others: an explanation of civil rights laws, the role of drugs and alcohol and their effect on consent, and options including confidential and anonymous reporting mechanisms. Individuals who serve in the investigation and disciplinary process must receive extensive training on a series of special topics, such as skills for interviewing persons who have experienced sexual misconduct; the conduct that constitutes sexual misconduct; the role of drugs and alcohol; the effects of trauma, including any neurobiological impact; cultural competency skills; the impact of sexual misconduct based upon a person’s cultural background; the specific impacts of sexual misconduct on persons with developmental or intellectual disabilities; and principles of due process. Lastly, each institution’s Title IX Coordinator and campus police/safety personnel must be trained in the awareness and prevention of sexual misconduct.

Implementation

This new law takes effect on August 1, 2021; institutions in Massachusetts will want to begin working now on compliance plans for policies, staffing, MOUs, training, and websites. The law directs the Commissioner of Higher Education to convene a task force to design the state-level climate survey that is required to complete its work by January 1, 2022.

We can help you to get ready for August 1, 2021! ATIXA experts will continue to monitor the implementation of the new Massachusetts law. Let us know how we can support your compliance efforts; ATIXA consultants provide private consultation services, policy development, MOU development, climate survey support, as well as customized training for campus stakeholders. Additionally, ATIXA will be making available an updated MA-compliant version of its well-respected 1P2P model of comprehensive policies and procedures to address campus sexual misconduct. Please feel free to reach out to Kim Pacelli if we can help your campus get a handle on the new requirements under this law.

View Kim’s biography: Kim Pacelli, J.D., Partner, TNG Consulting