Massachusetts' New Campus Sexual Violence Law Takes Effect: Are You Ready?
- The state's landmark Campus Sexual Violence Act (Act) took effect Aug. 1, 2021, and new regulations from the Massachusetts Department of Higher Education (DHE) will take effect Aug. 13.
- All public and private institutions of higher education physically located in Massachusetts are subject to the Act and the DHE regulations and must begin their compliance efforts now.
- Institutions are required to email all students and employees, not later than Aug. 20, the "policies and procedures regarding the reporting and investigation of an allegation of sexual misconduct by a student or employee of the institution against another student or employee of the institution."
- Institutions must contact local law enforcement agencies and work toward a memorandum of understanding regarding respective roles and responsibilities in preventing and responding to sexual misconduct on and off campuses.
Signed into law back in January 2021, the state's landmark Campus Sexual Violence Act (Act) took effect Aug. 1, 2021, and new regulations from the Massachusetts Department of Higher Education (DHE) will take effect Aug. 13. The Act is codified at General Laws Chapter 6, Sections 168D and 168E, and the regulations will be published in 610 CMR 14.00. All public and private institutions of higher education physically located in Massachusetts are subject to the Act and the DHE regulations and must begin their compliance efforts now.
Priority Compliance Requirements
Institutions are required to email all students and employees, not later than Aug. 20, the "policies and procedures regarding the reporting and investigation of an allegation of sexual misconduct by a student or employee of the institution against another student or employee of the institution." Before sending these emails, institutions should ensure with legal counsel that their policies and procedures comply with current state and federal requirements. The state requirements were summarized in a previous Holland & Knight alert (See "Massachusetts Enacts Landmark Campus Sexual Violence Law," Jan. 15, 2021).
Institutions must also promptly update their websites to include their sexual misconduct policies and procedures, the annual campus security report required by the federal Clery Act, timely warning and emergency notification information as required by the Clery Act, contact information for the Title IX Coordinator and confidential resource provider, medical and "rape kit" resources as well as transportation options, and contact information for a 24-hour hotline for sex misconduct information.
All new students and employees must, within 45 days of their matriculation or employment, be trained on sexual misconduct prevention, identification, reporting and response. Persons involved in implementing the sexual misconduct complaint process must satisfy rigorous training or experience requirements that include interviewing witnesses, consent, the impact of drugs and alcohol, the effects of trauma, sensitivity, disabilities, due process and "cultural competence" to understand how sexual misconduct may impact people differently depending on their backgrounds.
Law Enforcement MOUs
Institutions are now obligated to contact local law enforcement and attempt in good faith to adopt a memorandum of understanding (MOU) about their respective roles and responsibilities concerning incidents of sexual misconduct on and off campus. The new DHE regulations govern this MOU obligation.
Institutions must contact each municipal or state law enforcement agency with jurisdiction on or around the campus. Exact boundaries are not defined, which suggests that institutions should be overinclusive when deciding which law enforcement agencies to contact. Institutions may enter into a single MOU with multiple agencies.
The purpose of the MOU, as stated in the regulations, is to facilitate effective communication and the sharing of information, best practices and training resources to prevent and respond to incidents of sexual misconduct. The regulations incorporate the Act's broad definition of sexual misconduct, which encompasses sexual assault, domestic violence, dating violence, stalking and other forms of sexual violence based on sexual orientation and gender identity or expression.
The regulations prescribe the content of each MOU, which "shall" contain primary points of contact, methods for notifying the district attorney's office, protocols and standards for information sharing, delineation and description of respective jurisdictions including cross-jurisdictional and multijurisdictional responses, and the institution's responsibilities and procedures under Title IX and other applicable laws. With respect to the last item, presumably institutions may simply refer to their published sexual misconduct prevention and complaint policies, but it is not clear from the regulations whether additional information is necessary. Information sharing is expressly limited by a victim's consent and applicable state and federal privacy laws, which for students will include the Family Educational Rights and Privacy Act (FERPA). Jurisdiction and corresponding roles and responsibilities should be described with respect to the "location and type of incident." No elaboration is provided in the regulations. Reasonably read, this provision requires institutions and law enforcement to talk through how they would respond to various forms of sexual misconduct on and off campus.
Many of these open questions may be answered with sample or model MOUs. None are currently available, but the DHE indicates that it will be posting some on its website in the coming months.
MOUs must be sent to the DHE along with the institution's Annual Report, due no later than Dec. 1 each year. As part of their Annual Report, institutions are required to list all the law enforcement agencies with jurisdiction on or around their campuses and to certify that they have entered into a legally compliant MOU with each agency or else have determined that an MOU is "infeasible" for that year. The regulations do not specify who must provide the certification, nor the form or manner by which to submit the certification to the DHE. The DHE is expected to publish further guidance prior to the Dec. 1 deadline.
In determining whether an MOU is feasible in a given year, institutions may consider various factors, specifically including whether law enforcement refuses to cooperate or fails to respond in a timely manner to reasonable requests from the institution, and whether despite good faith efforts the parties cannot finalize terms that are compliant with the institution's legal obligations. Infeasibility determinations must be reported to the DHE with the Annual Report and must contain "a summary of and attestation to the institution's good faith efforts" toward obtaining an MOU. The regulations do not specify who should sign the attestation or what form it should take, but institutions are well advised to maintain detailed records of all efforts to secure an MOU and the response (or lack of response) from law enforcement agencies.
Public Disclosure of Compliance Status
The DHE will publish on its website whether each institution is in compliance with the MOU requirements. Compliance status will be updated at least annually. Institutions should notify the DHE if any published information is incorrect.
More to Come
Further guidance is expected from the DHE and other state agencies over the next several months regarding the form and manner for submitting MOUs, certifications, feasibility reports and Annual Reports. After initial submissions, institutions should also expect requests for additional information and documentation as compliance standards develop. Of particular note, the state is expected to publish by Jan. 1, 2022, recommendations and model questions for the student surveys required by the Act. Institutions are advised to check the DHE's website regularly for updates.
For more information about compliance with the Campus Sexual Violence Act, Title IX, the Clery Act or campus safety more generally, please contact the author or your contact on Holland & Knight's Education Team.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.