Landmark Massachusetts Campus Sexual Violence Act Effective August 1, 2021 | Foley & Lardner srl

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We would like to thank Foley Summer Associate Tori Breese for his contributions to this article.

Sexual misconduct on college campuses remains prevalent: Recent studies show that 13% of college students have reported non-consensual sexual touching while in college, but only 20% of female student victims report such incidents to law enforcement. To promote the goals of increased security and fairness for students at Massachusetts institutions of higher education, the Commonwealth enacted the Campus Sexual Violence Act. As of August 1, 2021, this historic law is the analog of the state to Title IX, the federal law prohibiting sex discrimination in education. The Campus Sexual Violence Act, which applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority, goes beyond Title IX by imposing additional requirements, such as mandatory sexual misconduct training for students and employees.

Mandatory training for students and employees

The new law requires Massachusetts colleges and universities to provide comprehensive sexual misconduct training to all new students and employees within 45 days of enrollment or employment, respectively. This training should generally cover prevention and awareness of sexual misconduct, but the law specifies several training requirements. For example, training should include an explanation of civil rights laws, the role drugs and alcohol play in the ability to consent, bystander intervention, and harm reduction strategies.

Training for students and employees should also cover the sexual misconduct policies of the individual institution. For example, training should explain the options, methods and effects of reporting sexual misconduct, including confidential and anonymous disclosure. In addition, the institution should provide information on its complaint resolution procedures and the range of penalties it may impose on students or employees who commit sexual misconduct.

Mandatory training for those who implement an institution’s sexual misconduct procedures

In addition to mandatory training for students and employees, the law requires “at least annual” training tailored to those involved “in the implementation of an institution’s disciplinary process to deal with misconduct complaints. sexual abuse, including a person responsible for resolving complaints of reported incidents. This requirement is worded broadly and likely means that your HR staff involved in handling sexual misconduct complaints should also be trained. The law requires that these individuals, who may or may not be employees, have training or experience in handling complaints of sexual misconduct and in operating the institution’s disciplinary process. Overall, this training aims to provide these people with strategies to resolve complaints more effectively and fairly.

For example, this training should cover communication and interview with victims of sexual misconduct, specific types of sexual misconduct, the role of drugs and alcohol in consent, the effects of trauma (including neurobiological impacts), how sexual misconduct may affect people with disabilities, and due process principles to ensure complaints are resolved fairly. Additionally, training should include information on “cultural competency” on how sexual misconduct may impact individuals differently based on their cultural background, including, but not limited to, the national origin, sex, ethnicity, religion, gender identity, gender expression and sexual orientation.

Practical tips for Massachusetts colleges and universities

  • Ensure that the institution’s Title IX / Campus Sexual Misconduct policies are updated to meet the requirements of the new Massachusetts law.
  • Update or create a training program that covers the topics required for students, employees, and others responsible for investigating and enforcing your institution’s policies.
  • Consider adding employee training to the school’s existing driving and / or compliance training programs.
  • When discussing this information with employees and students, be careful not to stereotype individuals within certain protected categories. Each victim, regardless of their cultural background, can have a unique experience of sexual misconduct.
  • Add employee training to the institution’s new hiring / onboarding checklists.

An overview of upcoming changes at the federal level and in other states?

Although the Massachusetts Campus Sexual Violence Act only applies to colleges and universities in Massachusetts, employers in other states with similar laws should take this into account, as the new law may be a preview of future trends in this area. . For example, the Illinois Higher Education Sexual Violence Prevention Act requires that institutions offer primary prevention and sexual violence awareness programs to all students who attend one or more courses on the campus. Following the lead of Massachusetts, Illinois and other states with similar laws may decide to implement sexual misconduct training for campus employees in the future.

Employers in all states can also expect Title IX changes at the federal level. For example, we discussed the implementation of the anti-discrimination provisions relating to gender identity and sexual orientation in Title IX following last summer. Bostock decision. Additionally, in June, the US Department of Education held a Title IX Commentary Hearing in which several members of the public advocated for changes to Trump-era sexual misconduct rules, such as those regarding off-campus reports, hearings and cross-examination requirements. Going forward, the Biden administration may make other Title IX changes that more closely mirror the new Massachusetts campus sexual violence law.

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