Massachusetts Passes Campus Sexual Assault Law

February 4, 2021

Colleges and universities have already had to adjust to many changes this year.  In the middle of the COVID-crisis, the U.S. Department of Education finalized new Title IX regulations (summarized in this VAC blog post).  Now Massachusetts colleges and universities have additional rules to contend with.

Last month, Massachusetts passed new legislation addressing the obligations of higher education institutions to respond to campus sexual assault.  It applies to public and private higher ed institutions operating in Massachusetts, and it generally obligates these schools to provide certain information, resources, and procedural rights to students and employees involved in incidents of sexual misconduct on campus.  The full text of the legislation can be found here.  These are some of the key provisions.

Confidential Resource Provider.  According to the new legislation, Massachusetts institutions must designate at least 1 “confidential resource provider” (who is not the Title IX coordinator).  The designee is responsible for providing to those involved in incidents of sexual assault, information regarding available reporting options, counseling and medical services available, the disciplinary process of the institution, and the legal process concerning such incidents as carried out through local law enforcement agencies.

MOU with Law Enforcement.  Schools must adopt a memorandum of understanding with local law enforcement agencies to establish the respective roles and responsibilities of each party related to the prevention of and response to on-campus and off-campus sexual misconduct.

Anonymous Reporting Option.  Massachusetts higher educational institutions must also provide a method for students and employees to anonymously reporting an incident of sexual misconduct.

Sexual Assault Crisis Services.  The law requires Massachusetts schools to offer free access to sexual assault crisis services.  If the institution does not provide its own sexual assault crisis service center, it must enter into and maintain a memorandum of understanding with a community-based sexual assault crisis service center funded by the department of public health and a community-based domestic violence program funded by the department of public health.

Climate Surveys.  The new law also requires schools to conduct a sexual misconduct climate survey of all students not less than once every 4 years.  The climate survey must gather information about a variety of topics including, among other things, the number of reported and unreported incidents of sexual misconduct, when and where incidents of sexual misconduct occurred, demographic information regarding the misconduct to be used to identify groups at higher risk, and other contextual factors such whether the incident of sexual misconduct involved force, incapacitation or coercion.  Institutions must also post the results of these surveys 120 days after completion.  The legislation establishes a sexual misconduct task force staffed by government and institution designees and students who will prepare and oversee sexual misconduct climate surveys.

Website Updates.  Schools must make publicly available on their websites 1) the telephone number and website for a local, state or national 24-hour hotline that provides information on sexual misconduct; 2) the name and contact information for the institution’s Title IX coordinator; 3) the name and contact information for a confidential resource provider and a description of his/her role, as well as 4) the name and location of the nearest medical facility which administers sexual assault evidence collection kits, and information on transportation options and reimbursement for travel costs thereto.

Information to be Included Complaint Procedures.  The law also requires schools to specifically include a clear notice in their complaint procedures that as part of the complaint process, the institution will, among other things, 1) provide notice to the responding party with the date, time and location, if known, of the alleged incident and a statement of which policies were allegedly violated; 2) conduct impartial investigations, including hearings and resulting disciplinary proceedings, by an individual with at least annual training; 3) utilize a presumption that the responding party is not responsible for the alleged conduct; 4) offer equal opportunities for all parties to inspect and review evidence; 5) allow representation by an advisor or support person, which may include an advocate or counsel; 6) notify participants of the standard of evidence and restrictions on what type can be considered including restrictions on the use of evidence of prior sexual activity or character witnesses; 7) restrict the reporting and responding parties from directly questioning each other; 8) provide the parties written notice of the results of a hearing or disciplinary proceeding not later than 7 business days after a final determination; and 9) ensure equal appeal opportunities.

Policy Updates.  Finally, the legislation requires institutions to adopt and regularly update policies on sexual misconduct involving students or employees.  Such policies must include, among other things:

  • procedures for students and employees to report or disclose incidents of sexual misconduct regardless of where the offense occurred;
  • information about how to receive immediate emergency assistance, including how to preserve evidence and obtain medical treatment;
  • descriptions and contact information for counseling, academic and other support services available;
  • information on the rights of students and employees to notify or decline to notify law enforcement and simultaneously pursue an internal investigation;
  • information about interim protective measures such as for example options for changing academic, living, campus transportation or working arrangements;
  • summaries of the institution’s procedures for resolving complaints of sexual misconduct, the disciplinary process and range of sanctions and institution’s anti-retaliation policy.

The new law takes effect August 1, 2021.  Massachusetts colleges and universities are therefore well-advised to review their campus sexual assault policies and procedures once again to ensure they comply not only with the Title IX regulations, but the requirements in this new legislation, as well.