Preventing Sexual Violence in Higher Education Act Imposes Even More Requirements than Title IX

Following considerable advocacy by Illinois Attorney General Lisa Madigan and rapid progress through the Illinois Legislature, Governor Rauner signed Public Act 99-426 into law. The majority of PA 99-426 consists of the new Preventing Sexual Violence in Higher Education Act, though it also contains related amendments to the Campus Security Enhancement Act of 2008, the Board of Higher Education Act, and the Illinois Code of Civil Procedure.

Preventing Sexual Violence in Higher Education Act

The Preventing Sexual Violence in Higher Education Act (the “Act”) applies to all Illinois higher education institutions, which are defined to include public universities, public community colleges, and independent not-for-profit or for-profit higher education institutions.

Many of the Act’s requirements mirror those already imposed upon federally funded higher education institutions by Title IX of the Education Amendments of 1972 (“Title IX”) and the Violence Against Women Reauthorization Act (“VAWA”). Other requirements, however, go above and beyond those required pursuant to Title IX. The Act specifically requires that on or before August 1, 2016, Illinois higher education institutions:

1. Adopt a “comprehensive policy” concerning sexual violence, domestic violence, dating violence, and stalking. The “comprehensive policy” must include:

a. A definition of “consent” that complies with the minimum definition of consent set forth in Section 10(1) of the Act.

b. Reporting procedures for students to follow regardless of where the incident of sexual violence, domestic violence, dating violence or stalking occurred. Section 10(2) of the Act identifies seven elements that must be included in reporting procedures, including procedures for reporting to “confidential advisors,” electronic reporting, anonymous reporting, and reporting by third parties and bystanders.

c. Procedures for responding to reports of alleged sexual violence, domestic violence, dating violence and stalking, including:

i. Assisting and interviewing the survivor;

ii. Identifying and locating witnesses;

iii. Contacting and interviewing the respondent;

iv. Contacting and cooperating with law enforcement, when applicable; and

v. Providing information regarding the importance of preserving physical evidence of sexual violence and the availability of a medical forensic examination at no charge to the survivor.

d. A statement of the higher education institution’s obligation to provide survivors with concise written information concerning the survivor’s rights and options upon receipt of a report of an alleged violation.

e. The name, address and telephone number of the nearest medical facility where a survivor may have a medical forensic examination completed at no cost to the survivor pursuant to the Sexual Assault Survivors Emergency Treatment Act.

f. The name, address, telephone number and website, if available, of community-based, State, and national sexual assault crisis centers.

g. A statement notifying survivors of the interim protective measures and accommodations reasonably available from the higher education institution.

h. Complaint resolution procedures that comply with the minimum complaint resolution procedures set forth in Section 25 of the Act.

i. The range of sanctions that may be imposed in response to alleged violations.

j. Immunity for students who in good faith report an alleged violation of this policy so that the reporting student will not receive a disciplinary sanction for a student conduct violation (e.g., underage drinking) revealed in the course of reporting, unless the violation was “egregious” (e.g. places the health or safety of another person at risk).

k. A statement prohibiting retaliation against those who in good faith report or disclose an alleged violation of this policy, file a complaint, or otherwise participate in the complaint resolution process.

2. Provide survivors with a concise notification of his/her rights and options, including six items set forth in Section 15(a) of the Act.

3. Respond to electronic reports of alleged violations within 12 hours, at a minimum, to provide the reporter with the six items set forth in Section 15(a) of the Act and to provide a list of available resources.

4. Provide students with access to a “confidential advisor” to provide emergency and ongoing support to survivors of sexual violence. A “confidential advisor” is defined as “a person who is employed or contracted by a higher education institution” and received 40 hours of training. Thereafter, confidential advisors must annually receive six hours of education training on issues related to sexual violence. “Responsible Employees” under Title IX may not be designated as confidential advisors.

5. Provide individuals who resolve complaints with at least 8-10 hours of annual training on issues related to sexual violence, domestic violence, dating violence, and stalking and how to conduct the institution’s complaint resolution procedures.

Beginning with the 2016-2017 school year, higher education institutions must:

1. Provide sexual violence primary prevention and awareness programming for all students who attend one or more classes on campus.

2. Annually provide survivor-centered and trauma-informed response training to any employee who is involved in:

a. The receipt of a student report of an alleged incident of sexual violence, domestic violence, dating violence, or stalking;

b. The referral or provision of services to a survivor; or

c. Any campus complaint resolution procedure that results from an alleged incident of sexual violence, domestic violence, dating violence, or stalking.

The Title IX Coordinator, campus law enforcement, and campus security are included within this training category.

Amendments to the Campus Security Enhancement Act of 2008

On or before August 1, 2016, higher education institutions must either establish their own campus-wide task force or participate in a regional task force designed to improve coordination between community leaders and service providers to prevent sexual violence, domestic violence, dating violence, and stalking and to ensure a coordinated response in terms of law enforcement and victim services.

The task force must be composed of representatives of campus staff, campus students, community-based organizations, and law enforcement. If the task force established is a campus-wide task force, then the higher education institution’s president, chancellor or designee will select task force members after inviting each of the following entities to identify appropriate individuals to serve:

• A community-based sexual assault crisis center;
• A community-based domestic violence agency;
• Local law enforcement; and
• The local State’s Attorney’s office.

Campus-wide task forces are to meet at least two times per calendar year to discuss and improve upon the following areas:

1. Best practices as they relate to prevention, awareness, education, and responses to sexual violence, domestic violence, dating violence, and stalking;

2. The higher education institution’s comprehensive policy and procedures; and

3. Collaboration on information-sharing among the higher education institution, community-based organizations, and law enforcement, including without limitation discussing memoranda of understanding, protocols, or other practices for cooperation. 

The composition and duties of regional task forces are similar to those of campus-wide tasks forces.

Amendments to the Board of Higher Education Act

Section 9.21(a) of the Board of Higher Education Act now requires yearly (instead of monthly) reporting to the Illinois Department of Human Rights and the Illinois Attorney General on each adjudicated case in which a finding of racial, ethnic or religious intimidation or sexual harassment made in a grievance, affirmative action or other proceeding established by that institution to investigate and determine such allegations.

New Section 9.21(b) of the Board of Higher Education Act requires that on or before November 1, 2017 and annually thereafter, higher education institutions provide an annual report to the Illinois Department of Human Rights and the Illinois Attorney General containing the following components:

1. A copy of the higher education institution’s most recent comprehensive policy adopted in accordance with Section 10 of the Preventing Sexual Violence in Higher Education Act.

2. A copy of the higher education institution’s most recent written notification of a survivor’s rights and options under its comprehensive policy, required pursuant to Section 15 of the Preventing Sexual Violence in Higher Education Act.

3. The number, type, and number of attendees, if applicable, of primary prevention and awareness programming at the higher education institution.

4. The number of incidents of sexual violence, domestic violence, dating violence, and stalking reported to the Title IX coordinator or other responsible employee, pursuant to Title IX of the federal Education Amendments of 1972.

5. The number of confidential and anonymous reports of sexual violence, domestic violence, dating violence, and stalking.

6. The number of allegations in which the survivor requested not to proceed with the higher education institution’s complaint resolution procedure.

7. The number of allegations of sexual violence domestic violence, dating violence, and stalking that were investigated.

8. The number of allegations of sexual violence, domestic violence, dating violence, and stalking that were referred to local or State law enforcement.

9. The number of allegations of sexual violence, domestic violence, dating violence, and stalking that were reviewed through complaint resolution procedures.

10. With respect to all allegations of sexual violence, domestic violence, dating violence, and stalking reviewed under the complaint resolution procedure, an aggregate list of the number of students who were (i) dismissed or expelled, (ii) suspended, (iii) otherwise disciplined, or (iv) found not responsible for violation of the comprehensive policy through the complaint resolution procedure during the reporting period.

Noncompliant higher education institutions will be listed on the Attorney General’s website.

Amendment to the Illinois Code of Civil Procedure

New Section 8-804 of the Illinois Code of Civil Procedure (735 ILCS 5/8-804) protects the communications between a student survivor of sexual violence and a “confidential advisor” from public disclosure unless the survivor consents to the disclosure in writing, the disclosure falls within an enumerated exception (e.g., pursuant to court order following in camera inspection of the communications), or failure to disclose would result in a clear, imminent risk of serious physical injury to or death of the survivor or another person. “Communications” include all records kept by the confidential advisor in the course of providing the survivor with services related to the incident of sexual violence.