By: Howard H.B. No. 3818
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to a sexual assault policy at public and private
  institutions of higher education.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 51.9363, Education Code, is amended to
  read as follows:
         Sec. 51.9363.  [CAMPUS] SEXUAL ASSAULT POLICY.  (a)  In this
  section, "postsecondary educational institution" means an
  ["]institution of higher education or a private or independent
  institution of higher education, as those terms are defined [" has
  the meaning assigned] by Section 61.003.
         (b)  Each postsecondary educational institution [of higher
  education] shall adopt a policy on [campus] sexual assault
  applicable to any person employed by the institution and to each
  student enrolled in the institution.  The policy must:
               (1)  incorporate an affirmative consent standard for
  determining consent to engage in sexual activity, including by
  reflecting the affirmative consent principles described by
  Subsection (b-1);
               (2)  include:
                     (A)  definitions of prohibited behavior;
                     (B)  sanctions for violations; and
                     (C)  the protocol for reporting and responding to
  reports of [campus] sexual assault; and
               (3) [(2)]  be approved by the institution's governing
  board before final adoption by the institution.
         (b-1)  Each postsecondary educational institution shall
  ensure the institution's sexual assault policy reflects the
  following principles regarding affirmative consent to engage in
  sexual activity:
               (1)  affirmative consent requires words or actions that
  clearly demonstrate a knowing and voluntary agreement to engage in
  sexual activity;
               (2)  a person's silence or the absence of the words "no"
  or "stop" is not sufficient to establish affirmative consent to
  engage in sexual activity;
               (3)  the requirement to obtain affirmative consent to
  engage in sexual activity applies to each student enrolled at the
  institution regardless of whether the sexual activity occurs on or
  off campus;
               (4)  each participant is responsible for obtaining
  affirmative consent and ensuring that the affirmative consent
  continues throughout the duration of the sexual activity;
               (5)  affirmative consent to engage in a sexual act or
  prior consensual sexual activity with any person does not
  constitute affirmative consent to engage in any other sexual act;
               (6)  affirmative consent may be withdrawn at any time;
               (7)  a person cannot affirmatively consent to engage in
  sexual activity if it is the result of any coercion, intimidation,
  force or threat of harm;
               (8)  a person cannot affirmatively consent to engage in
  sexual activity when the person is incapacitated or otherwise lacks
  the ability to knowingly choose to engage in the activity,
  regardless of whether the person is incapacitated due to any
  physical or mental condition, lack of consciousness, being asleep,
  being involuntarily restrained, being under the influence of drugs
  or alcohol to the level of incapacitation, or for any other reason;
  and
               (9)  an accused person will not be excused for
  believing the complainant affirmatively consented to engage in
  sexual activity if:
                     (A)  the accused person knew or reasonably should
  have known that the complainant was incapacitated as described by
  Subdivision (7); or
                     (B)  the accused believed that the complainant
  affirmatively consented to engage in the sexual activity and the
  belief is based upon:
                           (i)  the accused's intoxication; or
                           (ii)  the accused failing to take reasonable
  steps to ascertain whether the complainant affirmatively consented
  to engage in the sexual activity.
         (c)  Each postsecondary educational institution [of higher
  education] shall make the institution's [campus] sexual assault
  policy available to students, faculty, and staff members by:
               (1)  including the policy in the institution's student
  handbook and personnel handbook; [and]
               (2)  creating and maintaining a web page on the
  institution's Internet website dedicated solely to the
  policy[.];and
               (3)  develop and implement a public awareness campaign
  informing students, staff, and faculty of the affirmative consent
  standard implemented by the institution, including that the
  affirmative consent standard shall be applied in alleged violations
  of the sexual assault policy of the institution.
         (d)  Each postsecondary educational institution [of higher
  education] shall require each entering freshman or undergraduate
  transfer student to attend an orientation on the institution's
  [campus] sexual assault policy before or during the first semester
  or term in which the student is enrolled at the institution.  The
  institution shall establish the format and content of the
  orientation.
         (e)  Each biennium, each postsecondary educational
  institution [of higher education] shall review the institution's
  [campus] sexual assault policy and, with approval of the
  institution's governing board, revise the policy as necessary.
         SECTION 2.  Section 51.9363, Education Code, as amended by
  this Act, applies beginning with the 2017 fall semester.
         SECTION 3.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2017.